Full opinion text
NOEL, District Judge: Preface Plaintiffs ask this Court to abolish House Bill 195, Acts of the 59th Legislature, Regular Session, 1965, c. 351, which reapportions ******the House of Representatives of the State of Texas. Having won the first round in this Court but lost the second round in the Texas Legislature, plaintiffs return here for the third round of a now-typical reapportionment struggle. The issue now is not whether, but how, to reapportion Texas for the election of its House of Representatives. Plaintiffs vigorously urge that all members of the House should, indeed must, be elected from single-member districts. Plaintiffs press upon the Court their own single-member district reapportionment plan. Plaintiffs first offered their plan to the Texas Legislature in 1965. It was rejected. Instead, the Legislature adopted House Bill 195 which embraces a combination plan of single-member, multimember, and flotorial districts. Plaintiffs attack the plan of House Bill 195 on various constitutional grounds. But their ultimate thrust is for judicial sanctions which would substitute plaintiffs’ plan of single-member districts, only, for the Legislature’s combination plan of House Bill 195. The Court holds that House Bill 195 does not violate the federal Constitution, except as it causes dilution of voting strength in the eleven flotorial districts. The Court declares the Bill federally unconstitutional as to the flotorial districts solely because it dilutes the voting rights of those citizens living in such districts who are permitted to vote for only one legislator. But the Court expressly rejects plaintiffs’ contentions that the combination plan of House Bill 195 constitutes an unlawful scheme to minimize the voting strength of or to disenfranchise certain racial and political elements. The Court declines to substitute its judgment for that of the Texas Legislature as to the preferable composition and configuration of legislative districts, The injunctive relief prayed for is denied. The Court recommits to the Legislature for accomplishment by August 1, 1967 the job of equalizing the votes of citizens living in the flotorial districts, failing which all Representatives from such districts will be elected at large as in multi-member districts. The Prior and Present Proceedings The present proceedings are in continuation of the suit instituted July 15, 1963 by some of the plaintiffs. In the first round, plaintiffs attacked the state legislative apportionment statutes then in effect for Senators as well as Representatives. By summary judgment entered January 11, 1965, the Court declared in Article 3, §§ 25 and 26a of the Texas Constitution, Vernon’s Ann.St., and the apportionment statutes enacted thereunder to be violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. The Court declined to grant plaintiffs’ requests for injunctive relief and an oral hearing. The Court retained jurisdiction and provided that in the event the Legislature had not enacted a constitutionally valid legislative apportionment scheme by August 2, 1965, plaintiffs might petition the Court for further relief. Plaintiffs have returned for that purpose. The positions of all present parties as well as amicus curiae are set forth in Appendix “A.” At the invitation of the Court, counsel attended the pretrial conference held on July 28, 1965 in the companion case involving congressional reapportionment. With the benefit of the Court’s views there expressed, counsel prepared a pretrial order in this case, which the Court approved on September 9, 1965. The pretrial order specifies the issues for decision as: (1) Whether or not the population disparity between state legislative districts, created by House Bill 195, is invidiously discriminatory, and deprives certain citizens and voters, because of their place of residence within the State, the equal protection of the laws, in violation of the Fourteenth Amendment to the United States Constitution, so as to render House Bill 195 unconstitutional. (2) Whether or not the particular use of multi-member and flotorial districts created by House Bill 195 constitutes a scheme of representation which has the effect of minimizing or cancelling out the voting strength of racial and political elements within said districts; and if so, does it deny to those racial and political elements, equal protection of the law, in violation of the Fourteenth Amendment to the United States Constitution so as to render House Bill 195 unconstitutional. (3) Whether or not the particular use of multi-member districts created by House Bill 195 denies to negro citizens their right to vote as guaranteed under the Fifteenth Amendment to the United States Constitution, so as to render House Bill 195 unconstitutional. (4) Whether or not the particular mixture of multi-member, flotorial and single-member districts created by House Bill 195 is an arbitrary and capricious “crazy-quilt” manner of apportionment lacking any rationale, so as to render House Bill 195 unconstitutional under the Fourteenth Amendment to the United States Constitution. An evidentiary hearing was held on October 14,1965. The evidence presented consisted of stipulations, depositions, maps, charts, statistical tables, certified copies of the election statutes from numerous states, and election returns. No witnesses testified in person. Counsel orally summarized the essential testimony contained in the various depositions. Trial briefs were received and extended oral arguments were heard. Shortly after the hearing, the Court through its Clerk invited counsel to submit additional briefs and written arguments regarding possible remedies in the event the Court should find any of the eleven flotorial districts created in H.B. 195 to be in violation of the Equal Protection Clause, and therefore invalid. In response to this invitation, counsel for plaintiffs filed their Supplemental Brief on November 24, 1965, directed to “new considerations, substantive as well as remedial.” The Attorney General of Texas replied to this new brief on December 16, 1965. The case is now ripe for decision. The expansion of plaintiffs’ Supplemental Brief to cover the new issue was undoubtedly occasioned by an objection to plaintiffs’ evidence made by defendants, and questions asked by the Court at the oral hearing. The issue will be deemed to have been incorporated in the pretrial order as follows: (5) Whether or not, once it is shown that the Legislature could have devised an apportionment scheme with a substantially lessened range of deviation from the ideal, and within the same system established by State policy, the scheme is presumptively invalid and the burden of proof shifts to the proponents thereof. For simplicity of reference, the Court will refer to these issues as: (1) population disparity, (2) gerrymandering (which is divided into political and racial), (3) Negro disenfranchisement, (4) “crazy-quilt” apportionment, and (5) burden of proof. Also, for simplicity and a degree of brevity, much important material, including elaboration of the Court’s views, has been placed in the notes. The Court has jurisdiction pursuant to 28 U.S.C.A. Sections 2281 and 2284, and retains continuing jurisdiction of the subject matter under 28 U.S. C.A. Section 1343(3). The classes specified are properly before the Court and the parties plaintiff, as well as those aligned as plaintiffs, have standing to sue. Because of its basic import and critical effect on plaintiffs’ case as now postured, involving what they characterize as “a virgin and ill-defined area of the law,” we first turn to the basic principles involved in Issue 5. Burden of Proof Plaintiffs’ contentions will be taken verbatim from their Supplemental Brief. At the outset, they outline in three steps their conception of “the proper basis for the judicial review of legislative reap-portionments in terms of federal constitutional standards,” and immediately thereafter furnish their guide for placing the burden of proof, and erection of the new beacon. Plaintiffs’ full contention is then summarized at the end of their argument, as follows: “In summary, Plaintiffs submit that once it is shown that the Legislature could have devised an apportionment scheme with a substantially lessened range of deviation from the ideal, and within the same system established by State policy, that the scheme is presumptively invalid and the burden of proof shifts to the proponents thereof. Once again, the Defendants have wholly failed in their burden of proof.” In short, plaintiffs argue that it is the burden of defendants to legitimize and justify apportionment departures from a strict population standard unless de minimis, but they do not set out the limits of de minimis. In response, defendants argue that “The basic difference between the parties on this issue comes down to a disagreement as to the point at which a presumption of invidiousness arises.” Defendants contend that variations in H.B. 195 ranging from 15% above average to 15% below average are within the limits of the Legislature’s unrevlewable discretion, or in plaintiffs’ terminology, the Legislature has a 30% range of deviation which is de minimis, and that “ * * * the presumption [of invidiousness] does not arise if the deviation is less than 15%.” These arguments will be treated later, but here we shall deal with the basic principles involved and plaintiffs’ theory “that once plaintiffs show that the Legislature could have devised an apportionment scheme with a lessened range of deviation from the ideal, and within the same system established by State policy, that the scheme is presumptively invalid and the burden of proof shifts to the proponents thereof.” The issue of the burden of proof has not been squarely raised in any of the recently decided reapportionment cases, undoubtedly because the disparities involved were invidious per se. But henceforth, the questions for decision will likely be more refined. We are here assaying the constitutionality of a statute passed for the express purpose of complying with the requirements of the Equal Protection Clause. We should decide this important question which involves evidence, procedure, and statutory construction. In neither Reynolds, supra, nor Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964), important recent authority, did the Court have before it this question. Hearing and decision of reapportionment lawsuits are governed by the time-honored rules of constitutional law, procedure, and statutory construction. Reapportionment suits in this respect are not sui generis. Therefore, these rules will be reviewed. The party assailing the constitutionality of a statute has a heavy burden of persuasion, the more so because it may prove very tedious. The phrase “presumption of constitutionality” is frequently used with regard to challenged statutes, sometimes as an ordinary presumption in the evidentiary sense. While embodying the notion that the challenging party has the initial burden of going forward with evidence, the presumption relates more accurately to the burden of persuasion. Affirmatively stated, it is the burden of persuasion of the party alleging the unconstitutionality of a statute to negate the existence of any state of facts which would sustain the constitutionality of the legislation. Madden v. Com. of Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940). The United States Supreme Court has held in a long, unbroken line of decisions that under the Equal Protection Clause of the Fourteenth Amendment, the party charging unconstitutionality of a state statute must demonstrate that the classification of the statute rests upon grounds which admit of but one conclusion “beyond a rational doubt”- that the grounds are arbitrary or unreasonably discriminatory. Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911). In summary, the key language of the Supreme Court which furnishes guidance for a lower court in reviewing a state apportionment statute, bare of context, is the following: “* * * [A]n individual’s right to vote for state legislators is unconstitutionally impaired when its weight is in a substantial fashion diluted when compared with votes of citizens living in other parts of the State.” Reynolds v. Sims, 377 U.S. at 568, 84 S.Ct. at 1385. (Emphasis added.) “So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy, some deviations from the equal-population principle are constitutionally permissible with respect to the apportionment of seats in either or both of the two houses of a bicameral state legislature.” Reynolds v. Sims, 377 U.S. at 579, 84 S.Ct. at 1391. “ * * * [T]he proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U.S. at 710, 84 S.Ct. at 1548. “We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.” Reynolds v. Sims, 377 U.S. at 577, 84 S.Ct. at 1390 (footnote omitted). The Court interprets the foregoing language of the Supreme Court, when read in context with the opinions from which it is taken and the applicable basic principles, as providing the guidelines for placing the burden of proof in this or any other state legislative reapportionment case, as follows: (1) One who attacks the federal constitutionality of a state apportionment statute must prove that the weight of an individual’s vote for state legislators, when compared with votes of citizens living in other parts of the State, has been diluted in a substantial fashion. (2) The attacking party, such as plaintiffs, would clearly prove a substantial dilution if the deviations were shown to be of such magnitude that no policy could justify them, which is a concept of invidiousness per se. (3) If the attacking party, such as plaintiffs, cannot or does not prove invidiousness per se, then he must prove that the divergences from a strict population standard are not based on any legitimate consideration incident to the effectuation of a rational state policy. (4) The person so attacking, such as plaintiffs, in order to prove minor deviations impermissible would do so by proving that such deviations were arbitrary and therefore discriminatory because based upon factors which could not be justified on any rational ground. Plaintiffs’ contention that any population deviation above a de minimis figure from exact population equality raises a presumption of unconstitutionality, lacks Supreme Court authority. The language quoted from page 579 of Reynolds, 84 S.Ct. page 1391, upon which they rely, does not support their assertion of its dictate. In the context of the legislative reapportionment cases, the United States Supreme Court has struck down statutes in which the ratio of the population in the largest district to the population in the smallest district was 12.7 to l, 12 to l, 6 to l, 4.7 to l, and 4.36 to l. Additionally, the Court in Reynolds v. Sims stated in dicta that “* * * [I]f a State should provide that the votes of citizens in one part of the State should be given two times * * * the weight of votes of citizens in another part of the State, it could hardly be contended that the right to vote of those residing in the disfavored areas had not been effectively diluted.” 377 U.S. at 562, 84 S.Ct. at 1382. Such language could be read to indicate that any reapportionment scheme containing a district which gives the weight of the vote in that district twice the weight, or more, of the weight of the vote in the smallest district in the state would be constitutionally defective, in fact; that is, invidious per se. However, the final opinion in the reapportionment group decided by the same Court on the same day as Reynolds must be considered. It helps in refining the teaching of Reynolds. In Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), the challenged plan of apportionment contained a ratio of deviation in the State House of Representatives between the largest district and the smallest district of 1.7 to 1. 377 U.S. at 727, 84 S.Ct. at 1469. The Court observed at two places in that opinion that the House of Representatives was at least arguably apportioned substantially on a population basis. Although the Court does not hold that the 1.7 to 1 ratio standing alone, without consideration of other factors, would represent apportionment substantially on a population basis, it does furnish a valuable insight into the thinking of the Court. This language clearly implies, even if it does not decide, the invidiousness per se does not arise by a mere showing of a ratio of 1.7:1. If the deviation, divergence or disparity, the label used being of no significance, does not come within the per se classification of Reynolds; Davis; WMCA, Inc.; Roman; or Maryland Comm.; but yet it is not de minimis, then it would come within the constitutionally permissible concept of Lucas, the usual presumptions operating in favor of sustaining the statute. If the reviewing court determines that the ratio of deviation in a state apportionment statute is not de minimis, but on the other hand it determines that such deviation does not cause invidiousness per se, then the presumption of its constitutionality will be the postulate of adjudication. People of State of New York v. O’Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959). “It is * * * a maxim of constitutional law that a legislature is presumed to have acted within constitutional limits, upon ■ full knowledge of the facts, and with the purpose of promoting the interests of the people as a whole, and courts will not lightly hold that an act duly passed by the legislature was one in the enactment of which it has transcended its power.” Atchison, T. & S. F. R. Co. v. Matthews, 174 U.S. 96, 104, 19 S.Ct. 609, 43 L.Ed. 909 (1899). In addition to the presumption of validity, the presumption of reasonableness is with the statute, Salsburg v. State of Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954) ; and this presumption continues until the contrary is “shown beyond a rational doubt,” F. H. A. v. Darlington, Inc., 358 U.S. 84, 91, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958), despite the fact that in practice the law in question may result in some inequality. McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Some inequality is permissible in the area of reapportionment. Reynolds v. Sims, 377 U.S. at 578, 84 S.Ct. at 1390. “To be able to find fault with a law is not to demonstrate its invalidity. * * * The problems of government are practical ones and may justify, if they do not require, rough accommodations, — illogical, it may be, and unscientific. * * * Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void under the 14 Amendment * * Metropolis Theater Co. v. City of Chicago, 228 U.S. 61, 69-70, 33 S.Ct. 441, 443, 57 L.Ed. 730 (1913). Indeed, in this area of permissible deviation, the presumption of invidiousness for which plaintiffs contend does not exist. “On the contrary, it is to be presumed that the state in enforcing its local policies will conform its requirements to the Federal guarantees. Doubts on this point are to be resolved in favor of, and not against, the state.” Corporation Comm. of Okla. v. Lowe, 281 U.S. 431, 438, 50 S.Ct. 397, 399, 74 L.Ed. 945 (1930). A federal court does not sit in a reapportionment case as a superlegislature. The presumption of constitutionality with which a statute comes before a court for review bars the Court from lightly choosing that reading of the statute which will invalidate it, over that which will save it. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960). Defendants are not here in a position of having to justify the constitutionality of H.B. 195, but instead plaintiffs must demonstrate that defendants cannot explain its provisions on any rational ground. As the Supreme Court has said: “It is a salutary principle of judicial decision, long emphasized and followed by this Court, that the burden of establishing the unconstitutionality of a statute rests on him who assails it, and that courts may not declare a legislative discrimination invalid unless, viewed in the light of facts made known or generally assumed, it is of such a character as to preclude the assumption that the classification rests upon some rational basis within the knowledge and experience of the legislators. A statutory discrimination will not be set aside as the denial of equal protection of the laws if any state of facts reasonably may be conceived to justify it.” Metropolitan Cas. Ins. Co. of New York v. Brow-nell, 294 U.S. 580, 584, 55 S.Ct. 538, 540, 79 L.Ed. 1070 (1935). (Footnote omitted.) To prevail, plaintiffs must show that no reasonable explanation for the population deviations exists which will sustain the constitutionality of H.B. 195. Procedurally, the case moves as follows: (1) because of the presumption of the constitutionality of H.B. 195, plaintiffs have the initial burden of going forward with evidence to demonstrate an existing population disparity between districts; (2) if no per se invidiousness exists, then plaintiffs have the burden of persuasion in negating the existence of any reasonable, and therefore not arbitrary consideration which would justify the existence of minor population disparities, because this fact is essential to their case; and (3) if there are conflicting inferences to be drawn from the evidence offered by plaintiffs or defendants or both, the fact-finder has the responsibility to choose among the disputed inferences. A court is not compelled to draw an inference of unconstitutionality if there is evidence that the inference of constitutionality is “equally, or more, persuasive.” Wright v. Rockefeller, 376 U.S. 52, 57, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964). In summary, the answer to the question posed in Issue 5 is that the law does not recognize a presumption of unconstitutionality of a state statute as measured by the Equal Protection Clause. The presumption is always in favor of the constitutionality of the statute, albeit the reviewing court after considering all of the evidence may determine that the attacking party has proved such invalidity. Neither the burden of proof which we find to be the burden of persuasion, nor the burden of going forward with the evidence, shifts to the defendants when the reapportionment review involves an alleged deviation which exceeds de minimis but which is less than what the Court finds to be invidious per se, upon it being shown by the plaintiffs that the Legislature could have devised an apportionment scheme with a lessened range of deviation from the ideal within the same system established by State policy. With this preliminary, but nonetheless important subsidiary question settled, we shall proceed to consideration of the case upon the merits. Population Disparity Proceeding now to the four issues delineated in the pretrial order, the first to be determined concerns population disparity between districts and whether because of their place of residence certain citizens suffer dilution of their votes in violation of the Equal Protection Clause. This question will be treated first as to flotorial districts, and second as to districts other than flotorial. A. Flotorial Districts The Constitution of the State of Texas authorizes the use of flotorial districts. Historically, their use in Texas dates from 1848, and it has been continuous since 1875. Provision for them in House Bill 195 is neither novel nor experimental, but instead is a continuation of a long-established State practice. But although there is a genuine historical basis for their use, should any invidious discrimination result from their use under House Bill 195, it must cease. “* * * [N] either history alone, nor * * * other sorts of interests, are permissible factors in attempting to justify disparities from population-based representation. Citizens, not history * * *, cast votes.” Reynolds v. Sims, 377 U.S. at 579-580, 84 S.Ct. at 1391. (Footnote omitted.) The evil is not inherent in this type of district, but in the discrimination resulting from use in the particular manner of H.B. 195. The Supreme Court of the United States has indicated that the use of flo-torial districts may be permissible in the apportionment of one of the houses of a bicameral state legislature, in Reynolds: “Single-member districts may be the rule in one State, while another State might desire to achieve some flexibility by creating multimember or floterial districts.” 377 U.S. at 579, 84 S.Ct. at 1390 (Footnotes omitted.) The critical definition of a flotorial district, as understood by the Supreme Court, appears in a footnote in Davis v. Mann, 377 U.S. 678, at 686 n. 2, 84 S.Ct. 1441, at 1445 (1964): “The term ‘floterial. district’ is used to refer to a legislative district which includes within its boundaries several separate districts or political subdivisions which independently would not be entitled to additional representation but whose conglomerate population entitles the entire area to another seat in the particular legislative body being apportioned.” (Emphasis added.) Bearing in mind that the Court speaks in terms of additional representation, the flotorial district must satisfy the clear command of Reynolds that', holds: “Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” 377 U.S. at 579, 84 S.Ct. at 1390. The Supreme Court used the example of Lynchburg, Virginia, to illustrate its concept of a flotorial district in Davis, 377 U.S. at 686 n. 2, 84 S.Ct. at 1445. This example has the value of an illustration only. It cannot be considered' an example of a valid flotorial district because the Court in that opinion held the statute which created the district to be-unconstitutional. In the final analysis, the sole authoritative guideline from the Supreme Court is that of Reynolds which applies to all voting, irrespective of the kind of district in which it is done,- — it is that the vote of any citizen must be approximately equal in weight to that of any other citizen in the state. Plaintiffs allege that these flotorial districts effect such an extreme dilution of the votes of the residents of certain counties that these districts are unconstitutional per se under Reynolds. Inasmuch as there are deviations from the population mean ranging from +82.8% to +294% and ratios of these districts to the smallest district ranging from 2.13-to-l to 4.63-to-l, the Court sustains this contention. The two examples from H.B. 195 discussed below illustrate the population disparities present in these flotorial districts. The first example is District 46F which has the greatest population variation of the eleven challenged districts. The composition of District 46F includes Nueces County, with a population of 221,573, and Kleberg County, with a population of 30,052./ Nueces County, which alone constitutes District 45 and receives three places therein, will be referred to as the “dominant” county. Kleberg County, which has no representation in any district other than 46F, will be referred to as C_the “appurtenant” county. The 251,625 inhabitants of the two counties elect four Representatives, in all. Inasmuch as the population of an ideal or average district in Texas is 63,864, the defendants argue that the 251,625 people of Kleberg and Nueces Counties combined elect four Representatives, and thus there is one Representative for every 62,906 persons. This would mean the average overrepresentation is 1% for the four districts. In total, this conclusion is correct. This analysis does not approach the problem correctly, however. The ratio of this district, the most populous in the State, to District 81, the least populous, is 4.63 to 1. The population of 46F deviates from the mean of 63,864 by 294%. This is an egregious disparity. Additionally, the situation of the voters in Kleberg • County, the appurtenant county in this district, emphasizes the extreme dilution effected by H.B. 195 in District 46F. With a population of 30,052, the votes, of Kleberg County residents should equal approximately % _(30,052). 0£ the total * (63,864) necessary to elect one Representative to the House of Representatives. It is self-evident that the potential value of the votes of the residents of Kleberg County equals not % of District 46F, but instead equals only % (251,625j °f the total necessary to elect the sole Representative for whom they can vote. Thus, the vote of a resident of Kleberg County is diluted so that it only has 25% of the weight that it should ideally have. The second example is District 20F, which has the least population disparity of the eleven challenged districts. The composition of District 20F includes Brazoria County with a population of 76,205 and Fort Bend County with a population of 40,527. Fort Bend County, the “appurtenant” county, has no representation in any district other than District 20F. Brazoria County, the “dominant”. county, alone constitutes District 19, which is allocated one place, so the 116,731 inhabitants of these two counties elect two Representatives, in all. The ratio of this district to District 20F, the least populous in the State, is 2.13 to 1. Although this is the lowest ratio of any of the eleven flotorial districts, such a ratio is invidious per se under Reynolds. The population of 20F deviates from the mean of 63,864 by +82.8%. Although the votes of the residents of Fort Bend County should equal approximately % of the total necessary to elect one Representative, they equal only %, and thus have merely 50% of their proper value. Although the percentages vary, similar dilution exists in the remaining nine flotorial districts, the average deviation for the eleven being +147.3%. The dilution of the value of these votes in the “appurtenant” counties such as Kleberg and Fort Bend denies equal protection of the law to the citizens who reside in these “appurtenant” counties and is impermissible on any ground, the Constitution of the State of Texas and prior history notwithstanding. The vote of any citizen must be approximately equal in weight to that of any other citizen in the State, Reynolds v. Sims, supra, and 50% is not “approximate equality.” See Honsey v. Donovan, 236 F.Supp. 8 (D.Minn.1964), and in particular at page 20. As is demonstrated by footnote, valid flotorial districts can be created in Texas pursuant to said Section 26. And as should be apparent from what has been said thus far, the Court does not hold to be unconstitutional that portion of Article 3, Section 26 of the Constitution of the State of Texas, which authorizes the creation of flotorial districts. The Court does find as a fact and conclude as a matter of law (a) that the numerical composition of such flo-torial districts violates the Fourteenth Amendment; (b) that such composition so dilutes voting strength in such districts as to cause discrimination which is invidious per se; and (c) that Districts 15F, 20F, 32F, 36F, 38F, 40F, 46F, 48F, 62F, 69F and 77F are therefore invalid. Before leaving our review of the flo-torial districts, we further find that their composition is based upon more than one hundred years of precedent in Texas. And also, that the discrimination which occurs, invidious though it be, results from a good-faith attempt by the Legislature to meet the requirements of the federal Constitution, the State Constitution, and this Court. This is evidenced by the legislative history of H.B. 195, most of which is contained in the deposition of Honorable G. F. Mutscher taken by defendants and introduced in evidence, first by plaintiffs as their Exhibit 17 and then by defendants as their Exhibit 19. He was Chairman of the Committee on Congressional and Legislative Districts which conducted extensive hearings before undertaking to write the Bill. Attached to Chairman Mutscher’s deposition is an extract from the House of Representatives Journal, pages 3502-3505, under date of May 31, 1965. It is entitled “Remarks by the Honorable G. F. Mutscher Pertaining to House Bill No. 195,” which we shall refer to as the “Mutscher report” and treat as the Committee report, since no formal Committee report as such appears to have been printed. The Mutscher deposition and report provide the most reliable evidence in the record as to what was done by the Legislature, and why, in the preparation of H.B. 195. The Mutscher report explains why the Committee found it necessary to use flotorial districts, and it reflects their computation of the deviations of populations in such districts from the population of an ideal district. For example, Chairman Mutscher says they consist of “two districts with a deviation of more than 10%. * * * Both- are 13% below the ideal population.” The record is barren of any indication that any Member of the House, or anyone else, thought at that time that the Committee computations were incorrect. Since the Committee was using 15% deviation from the ideal district as its standard, and all districts so computed having met that standard, it is apparent that the flotorials would have been differently constituted had the Committee and the Legislature realized that the deviations in these districts should be computed as found by this Court. The deviations in these districts when computed as this Court finds they should be, were unintended and not anticipated. To further test the composition of these districts and in considering the remedy to be adopted by this Court, we have hypothesized them as multi-member districts and compared their deviations and ratios as multi-member districts with' their deviations and ratios as flotorial districts. So hypothesized, the maximum deviation from the ideal district would be 13.3% and occur in Districts 15F and 40F; and, the ratio of the population in the most populous flotorial district to the least populous district of H.B. 195, would be 1.21 to 1 and occur m District 62F. By a comparison of the schedule contained in footnote 29 with the one in Appendix “C”, it is seen that if the flotorial districts as presently composed were treated as multi-member districts and the remaining districts were left as presently composed, the maximum range of deviation would remain at 26.4% and the population-variance ratio would remain at 1.31 to 1. In other words, if this were done, the maximum range of deviation and population-variance ratio for all districts would remain as they now exist in the remaining districts. And this leads to our examination of plaintiffs’ charges of population disparity in the remaining districts. B. Other Than Flotorial — Remaining Districts: In their original brief, plaintiffs predicate the unconstitutionality of the remaining districts primarily on the 26.4% maximum range of deviation in population. This maximum range extends from a minus 14.8% to a plus 11.6%, as related to the population of the ideal district. Plaintiffs assert this range to be unreasonable, unnecessary, and invidiously discriminatory. As authority, they cite Reynolds v. Sims, 377 U.S. at 577, 84 S.Ct. 1362 (1964); and, the recent three-judge court decision of Toombs v. Fortson, 241 F.Supp. 65 (N.D.Ga.1965), in which case the variances from the average (which in the language of our case would be, deviations from the ideal) were held to be invidious per se. Defendants say in general that if the population disparity is not manifestly unreasonable — that is, if it does not manifestly constitute invidious discrimination — it is (in the language of defendants’ briefing) “within the limits of the Legislature’s unreviewable discretion.” Specifically, defendants say that the population disparities of H.B. 195 are within permissible limits and that the apportionment plan meets the requirements of the Equal Protection Clause, but additionally, they express the view that since the plus and minus deviations from the ideal are less than 15% and the range of such deviations are less than 30%, such deviations are manifestly reasonable and therefore not reviewable. Defendants, of course, measure disparities by these deviations. While not using the term “unreviewable discretion,” plaintiffs generally acknowledge that a deviation of 4% is de minimis and therefore will not be noticed by a reviewing court. Without adopting either defendants’ label of un-reviewable discretion or plaintiffs’ label of de minimis, it would seem that in the view of both plaintiffs and defendants there is a degree of deviation which a reviewing court will consider manifestly reasonable or reasonable per se. Thus, it would appear that the real difference between the parties as to what in the words of plaintiffs is “de minimis” or what in the words of defendants is “within the limits of the Legislature’s ‘unreviewable discretion,’ ” is the degree of deviation from the ideal district, that is, whether it is 4% or 15%. Until later elucidation might come from the Supreme Court, the Court in Toombs v. Fortson, supra, said that, for Georgia, it would “base any test as to the reasonableness of variances on the departure figure of 15%.” In other words, any variance above 15% would be regarded as invidious per se by the Toombs Court. We do not regard Toombs as authority for holding either that the range of deviation in this case is invidious per se, or that, being less than 30%, it is manifestly reasonable. Perhaps it would be more convenient for plaintiffs and defendants if this Court were to set a maximum limit for reasonableness in deviation or variance, as was done in Toombs. But, in view of (a) the good response made by the Legislature to the Court’s first order entered in this case, and (b) the lack of any necessity for doing so, the Court will not set such maximum limit at this time. By pleading that this Court declare Senate Bill 318 to be the plan of apportionment for Texas, and by offering their extensive proof in support of this plan, plaintiffs at the very least have judicially admitted that in this case a range in deviation from minus 8.7% to plus 6.9%, and a maximum range of 15.6%, are constitutionally permissible. Having set the frame of reference, we return to the particular deviations and ratio of H.B. 195. While not included in plaintiffs’ brief, other computations are of significance in considering the maximum deviation in the evaluation of plaintiffs’ charge. For example, the average deviation for the remaining districts is 12.7%, extending from a plus 6.01% to a minus 6.7%. The population of and deviations in all of the remaining districts as computed by the Court are shown in Appendix “C.” The ratio of the population in the largest of the remaining districts to that of the smallest of such districts is 1.31 to 1. In order to establish the lowest limit of invidiousness per se for use in our consideration of this case only, we accept the ratio of 1.7 to 1 provided by the Supreme Court in Lucas, supra. Compared to the 1.7-to-l ratio of Lucas, the 1.31-to-l ratio of H.B. 195 is 30% lower. In other words, on the basis of ratio, H.B. 195 is 30% closer than Lucas to the ideal apportionment based substantially upon population. By the Lucas standard, H.B. 195 at least arguably apportions the Texas House substantially on a population basis, and plaintiffs have the burden of persuasion to show that it is not so apportioned. But at the same time and to repeat, we do not hold that the 1.31-to-l population variance. ratio of the Bill, or its maximum deviation of 26.4% or its average deviation of 12.7%, places the Bill beyond the reach of this Court’s review as may be contended by defendants. References to percentages of deviation and ratios from other cases are not dispositive of this case because as the Supreme Court so cogently points out, “What is marginally permissible in one State may be unsatisfactory in another, depending upon the particular circumstances of the case.” Reynolds, 377 U.S. at 578, 84 S.Ct. at 1390. The Supreme Court has not established “rigid mathematical standards” for evaluating legislative apportionments, but has observed that, “Rather, the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U.S. at 710, 84 S.Ct. at 1458. Plaintiffs cite no case in which the total range of deviation in population comparable to the 26.4% and 12.7% in issue here, did not satisfy the command of Reynolds, Diligent research has disclosed no such case. In following the judicial approach of Roman, supra, this Court will bear in mind the further teaching of the Supreme Court found in Reynolds at page 579 of 377 U.S., at page 1391 of 84 S.Ct., to the effect that “[s]o long as the divergences from a strict population standard * * * based on legitimate considerations incident to the effectuation of a rational state policy [are involved] some deviations from the equal-population principle are constitutionally permissible.” Basic to the consideration of this case is the proposition that any Texas reapportionment statute must first meet the requirements of the United States Constitution and then, to the extent there is no conflict, it must meet the requirements of the Texas Constitution, the applicable provision of which is Art. 3, Sec. 26 This provision must be interpreted by this Court in order to determine the necessity, if any, for accommodating it to the requirements of the federal Constitution. This involves a question of State law, but our research has revealed no decision in point. The Court must therefore make its own interpretation. In explanation of H.B. 195 and the State policy it is claimed to effectuate, defendants offered in evidence a copy of the opinion of the Attorney General of Texas dated May 1965, addressed to the Speaker of the House of Representatives. While not binding on this Court, such an opinion is entitled to weight. Perry v. Larson, Coll, of Internal Revenue, 104 F.2d 728 (5th Cir. 1939). The Court has concluded that the opinion of the Attorney General (a) correctly interprets the requirements of Section 26, and (b) correctly recognizes that if the keeping of counties intact should result in a violation of the federal Constitution, then the county lines would have to be violated, but only to the extent necessary for such compliance. The Court finds that Section 26 embodies the State policy to maintain the integrity of counties and county lines, that such is a rational policy, and that H.B. 195 was drawn in an effort to comply with the Attorney General’s opinion. In Reynolds the Supreme Court has said that there is no inherent federal constitutional infirmity in the maintenance of county integrity as the basis for legislative districts so long as any population variance between districts is not significant. The Court went on to observe that, “Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.” 377 U.S. at 578, 579, 84 S.Ct. at 1390. The word “significant” is not defined in the Court’s Opinion. This Court will accept the definition in Webster’s Third New International Dictionary, which is consistent with Reynolds, as follows: “1: Having meaning: esp: full of import * * * 2a: suggesting or containing some concealed, disguised or special meaning:” In this sense, neither the maximum range of deviation, the individual differences in deviation between particular districts, nor the population variance ratio of 1.31 to 1, as such, is significant. Whether or not these differences are important in the light of plaintiffs’ claims of political and racial gerrymandering is discussed later. Returning to our consideration of the deviations and population variance ratios of - H.B. 195, plaintiffs rely heavily upon and quote extensively from Calkins v. Hare, 228 F.Supp. 824 (E.D.Mich. 1964), in support of their contention that virtual mathematical equality is necessary for constitutional validity of state legislative districts; and, indeed the language is thoughtful and impressive. But Calkins is a congressional case decided by the United States District Court for the Eastern District of Michigan, before the Supreme Court decided Reynolds, supra. The significance of this timing is that the Supreme Court in Reynolds, a state reapportionment case like this, relaxed the more severe requirement of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), which was followed in Calkins by saying, “Somewhat more flexibility may * * * be constitutionally permissible with respect to state legislative apportionment than in congressional districting.” Calkins being a congressional case decided by a District Court, and Reynolds having been decided later by the Supreme Court, Calkins is not the beacon to be followed in this state reapportionment case. In their Supplemental Brief, plaintiffs expand their argument concerning deviation in several different ways, the most significant of which concerns the burden of proof. Plaintiffs argue that this burden shifts to the defending party in an apportionment case when the attacking party shows that a better plan of apportionment could have been achieved. In the previous Section styled Burden of Proof, the Court rejected this concept. Another argument contained in their later brief proceeds from a candid recognition that certain deviations, which in Supreme Court language they categorize as “minor,” may be justified by a constitutionally permissible, rational State policy, if necessarily related to that policy. Plaintiffs argue two instances of minor deviations which they deem apparently (obviously) arbitrary and therefore not justified by such policy. Plaintiffs say such minor deviations are “tainted.” Plaintiffs rely upon the Supreme Court language contained in Roman, supra, referred to numerous times in this opinion. The Court, there, used the word “taint” and from it, plaintiffs postulate what they call “the taint rule.” But we find no new concept in the so-called taint rule. We are of the opinion that in Roman the Supreme Court simply used the noun “taint” in restating the elementary rule of constitutional law, that a classification having an arbitrary and therefore discriminatory basis violates the Equal Protection Clause. This argument will be evaluated by this elementary rule. The main factual ground upon which plaintiffs rely to demonstrate the so-called taint of H.B. 195 concerns not ratios or percentages of deviation, which are the criteria of the controlling apportionment decisions, but instead concerns numbers. They argue that Dallas County, with a population of 951,527 is “patently” entitled to 15 Representatives instead of 14. Further, they argue that Bexar County should have received 11 Representatives rather than 10. They show that, arithmetically, the addition of a Representative in each district would almost achieve mathematical perfection, and that it would almost eliminate any deviation whatsoever in these districts. Plaintiffs query, “What possible ‘rational’ and constitutionally permissible policy of State prevented the Texas Legislature from giving [these districts] the * * * representatives [their] population demanded?” The answer is contained in their own evidence, the Arnold Foundation Monograph, which shows that districting is a mechanical process and that the decision to delineate any particular district necessarily affects all other districts in the State, ultimately. Plaintiffs’ plan, the preparation of which is explained in the Monograph, took a year to complete because, as it points out, “when an initial string of hypothesized districts through a region pushed an inadequate population fragment into a corner, backtracking [was necessary] to find compensating adjustments on diverse compass bearings * * Professor Hamlett explained that “ * * * it [was] necessary to indulge in considerable surgery on Brazoria County” because “ * * * here is [another] situation where the mechanics of the situation necessitated our deviating from our desire to adhere as much as possible to county lines * * *. [W]e are blocked into the corner.” Professor Hamlett and his colleagues used “compensating adjustments” in developing plaintiffs’ plan, and such accords with a rational State policy. Reynolds v. Sims, 377 U.S. at 578, 84 S.Ct. at 1390. The Legislature did the same in their attempt to maintain county integrity within permissible limits of deviation. In his cross-examination, Chairman Mutscher explained their solution to these differences. He testified generally “that tolerances in some cases had to be adjusted in favor of the metropolitan areas and sometimes the other way.” As to Dallas County, he testified that “After working with the delegation and trying to accept the advice that they had to pass on to us, they felt that the fourteen was a reasonable figure.” Thus, in preparing its plan, the Legislature encountered substantially the same problems encountered by those who prepared the plans approved by plaintiffs, and went about solving these problems in much the same way. For the purpose of further evaluating this argument concerning the claimed underrepresentations and overrepresen-tations, they have been tabulated in Table 1 below, for comparison with certain un-derrepresentations and overrepresenta-tions of which plaintiffs approve, tabulated in Table 2, as follows: Table 1 District County Complained of by Plaintiffs % Under— representation % Over-representation 22 Harris 0 7.0 33 Dallas 7.0 0 57 Bexar 8.0 0 Percentages taken from Plaintiffs’ Exhibit No. 4. Table 2 Proposed Proposed County District Composition Approved by Plaintiffs Plaintiffs’ Plan * Representation PARC “A” ** Representation PARC “B” *** Representation Over Under Over Under Over Under 33 Gregg 0 8.7 96 Medina et al. 6.9 0 17 Van Zandt 0 10.8 et al. 47 Bandera et al. 9.6 0 14 Van Zandt 0 10.8 et al. 60 Potter 9.6 0 * Plaintiffs’ Exhibit 11, pp. 12, 20 and 25, Arnold Foundation Monograph B. ** Exhibit 1 of Plaintiffs’ Exhibit 14-1, the McCleskey deposition. *** Exhibit 1 of Plaintiffs’ Exhibit 14-1, the McCleskey deposition. The percentages of underrepresentation complained of in Districts 33 and 57 of H.B. 195 as shown in Table 1 are conspicuously less than the percentage of underrepresentation urged by plaintiffs as constitutional for Gregg County (their proposed District 33) under their plan as shown in Table 2; and, the percentage of overrepresentation in District 22 is substantially the same (6.9% compared with 7.0%) urged by plaintiffs- as "constitutional for Medina and other counties (their proposed District 96). Also, the percentages complained of in the three H.B. 195 districts are substantially less than those which plaintiffs find constitutional in PARC Plans “A” and “B” for the counties shown in Table 2. The three plans referred to in Table 2, which find such favor with plaintiffs, were prepared by experts in the field of government, working in the calm atmosphere of their academic pursuits. T.heir work was tedious and extended over long periods of time. Even with such care in preparation, these experts found it necessary to create districts containing underrepresentations and over-representations of the magnitude set forth in Table 2. The Court finds in the testimony of these experts and in their product, as well as in the testimony of Chairman Mutscher, a reasonable explanation and justification for the minor deviations of which plaintiffs here complain, in Districts 22, 33, and 57. Other undisputed testimony offered by plaintiffs which concerns District No. 22, Harris County, supports this conclusion. Chairman Mutscher testified about District 22 as follows: “District No. 22 was explained to us by the members of the Harris County delegation as a district that probably today already has more people in it than the twenty-four [sic], and the growth potential was in this area, and that by the 1970 census, it would very adequately prove that this would be the most logical place to put the seventh member.” Next, in their Supplemental Brief plaintiffs urge their postulated “best plan rule” which we have not found articulated either as a new constitutional doctrine or as a gloss on an old doctrine. In their Supplemental Brief plaintiffs concede that the State policy to maintain county integrity in reapportionment “is an instance of a rationally and constitutionally permissible State policy which may justify population departures of a minor nature as necessarily related to that policy.” But in the final analysis, this argument of plaintiffs proceeds on the premise that the deviations of H.B. 195 really are not of a minor nature. The Court understands their best-plan-rule argument to be as follows: (1) That the remaining districts contain “consistently high departures from the ideal * * * which it is patently clear * * * were not necessary to effect a districting scheme preserving the integrity of county lines. * * * ” (2) That the “cumulative high range of minor deviations contained in H. B. 195 is unnecessary.” (3) That this is demonstrated by three better plans introduced in evidence by plaintiffs, each of which contained lower ranges of deviation. (4) That this violates the mandate of Reynolds which requires an apportionment to be as “nearly as practicable” to the ideal, which plaintiffs extrapolate into their best plan rule. This argument does not complain of the magnitude of the maximum or average range of deviations, or of the ratio of variance in population contained in H.B. 195, as was done in their first brief. Their argument here seems to be made in the alternative, but we regard it as being embraced within the attack last above mentioned, as to which we have held adversely to plaintiffs’ position. But more importantly, in reviewing the validity of an apportionment statute, it is not within the reach of the Court’s inquiry to determine which is the better or best, wiser or wisest, of two or more apportionment proposals. The only function of this Court is to gauge the validity of an apportionment as adopted by the Legislature, by the requirements of the federal Constitution for which the best plan search is not appropriate. Whether or not the Legislature might have made a better or wiser choice than H.B. 195 is not a justiciable question because there is no judicially discoverable and manageable standard for reviewing the legislative choice as between one or more apportionment plans. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Coleman v. Miller, 307 U.S. 433, 454-455, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). The concern of the federal Constitution, and therefore of this Court, is not that which might have been done, but that which was done. Sincock v. Roman, 233 F.Supp. 615, at 619 (D.Del.1964), and Boineau v. Thornton, 235 F.Supp. 175, 182 (E.D.S.C.1964). We quote with approval from the Opinion of the Court in the latter case: “Whether or not the Legislature might have made a wiser choice is not a justiciable question. There are those who find desirability in some provision for minority representation, and various schemes for cumulative and proportional voting have their advocates. It was the Legislature’s prerogative, however, to weigh the contending considerations and to make an enlightened choice among the several alternatives open to it. As long as the alternative it selected cannot be said to be arbitrarily unfair or discriminatory, it cannot be said to be impermissible under the Fourteenth Amendment.” In conclusion, we find (1) that plaintiffs’ have not discharged their burden of proving the remaining districts unconstitutional; and (2) that plaintiffs’ evidence demonstrates that under the circumstances existing in Texas, the remaining districts provided for in H.B. 195 represent a faithful adherence to a plan of population-based representation and that they contain only minor deviations which the Court finds to be reasonable and therefore not arbitrary. Accordingly, the Court concludes that the remaining districts do not violate the Equal Protection Clause of the United States Constitution. Gerrymandering Plaintiffs contend that the apportionment of Texas into single-member, multi-member and flotorial districts, rather than into single-member districts only, is the arbitrary, capricious result of gerrymandering, for partisan advantage and that “their use constitutes a scheme designed to minimize or cancel out the voting strength of racial and political elements (i. e., the Republican Party, liberal democrats and the Negro race) within said districts.” They claim that the combination plan of H.B. 195 results in constitutionally proscribed political and racial gerrymandering, which are embraced in Issue 2 and we shall take up first the claim of political gerrymandering. A. Political Although the etymology of the gerrymander is known, the constitutional source for a cause of action entitling a party to relief upon proof thereof is not. Suits based upon allegations of political gerrymandering seem to draw their vitality from some dicta in Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965), but such dicta is inapposite and cannot be the basis for this Court, or any Court, to grant relief merely because someone feels that he or his political party has been gerrymandered. The Equal Protection Clause demands that one man’s vote be substantially equal in weight to the vote of any other man, and no more. The right protected is the right to vote, which is a personal right, and the federal Constitution guarantees no political party the right to have a state so apportioned that a candidate from such party’s membership, or from a particular faction, splinter or segment of such membership, will be elected, nor does it guarantee the right even to have the best or better, or even poorer, opportunity to be elected. No citizen and no political party or any other group or organization can claim a personal right protected by the federal Constitution which assures him that he or it will be represented in any legislative body by a Republican, a Democrat, or by any member of either such party who claims to be a liberal, a conservative, a moderate, or any other category in the spectrum of viewpoints or leanings embraced within the membership of such party, or by a member of any other group or organization. The constitutionally protected right here under consideration is personal to him, it does not belong to any group or organization with which he may be affiliated, and it is to have his ba