No. _____________________
________________________________________________________________________
________________________________________________________________________
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM 2003
______________
FRENCHIE HENDERSON
Appellant,
vs.
RICK PERRY, et al.
Appellees,
______________
On Appeal from the United States District Court
for the Eastern District of Texas
______________
JURISDICTIONAL STATEMENT
______________
OPINIONS BELOW
The Judgment and Majority Opinion of the three-judge panel of United States
District Court for the Eastern District of Texas (App., infra, 1a-101a), from which review
is sought, is reported at 289 F.Supp.2d 451 (E.D.Tex.2004). The dissenting opinion of
United States District Judge T. John Ward follows. (App., infra, 1b-27b); 289 F.Supp.2d
at 515.
2
JURISDICTION
The Majority Opinion of the three-judge District Court panel below, which denied
Appellant’s motion for summary judgment and dismissed Appellant’s claims for
injunctive relief, was entered January 6, 2004. (App., infra, 1a). The Final Judgment
below was entered on January 15, 2004. (App., infra, 100a). Appellant’s Notice of
Appeal to this Court was filed January 7, 2004. (App., infra, 1c). On February 25, 2004,
Justice Scalia, sitting as Circuit Justice, granted an Application for Extension of Time to
File Jurisdictional Statement (No. 03A739) joined in by Appellant, and extended the time
for Appellant to file his Jurisdictional Statement to and including April 5, 2004. (App.,
infra, 1d). This Court’s jurisdiction is invoked under 28 U.S.C. Section 1253.
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Elections Clause of Article I, Section 4 of the United States Constitution
provides:
“The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature
thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.”
Title 2, U.S.C. Section 2c provides:
“In each State entitled in the Ninety-first Congress or in any
subsequent Congress thereafter to more than one Representative
under an apportionment made pursuant to the provisions of section
2a(a) of this title, there shall be established by law a number of
districts equal to the number of Representatives to which such State is
so entitled, and Representatives shall be elected only from districts so
established, no district to elect more than one Representative (except
that a State which is entitled to more than one Representative and
which has in all previous elections elected its Representatives at Large
may elect its Representatives at Large to the Ninety-first Congress).”
3
Title 2, U.S.C. Section 7 provides:
“The Tuesday next after the 1st Monday in November, in every even
numbered year, is established as the day for the election, in each of the
States and Territories of the United States, of Representatives and
Delegates to the Congress commencing on the 3d day of January next
thereafter.”
STATEMENT OF THE CASE
Due to the increase in population reflected by the 2000 federal decennial census,
Texas became entitled to an increase of two Congressional seats after the federal
reapportionment. On November 14, 2001, a federal three-judge panel of the Eastern
District of Texas in Balderas v. Texas, No. 6:01CV158 (E.D. Tex.), based upon the
continuing “failure of the State [of Texas] to produce a congressional redistricting plan”,
reluctantly accepted the “unwelcome obligation of performing in the legislature’s stead.”
Id., slip op. at page 1.1 The Balderas court, after reviewing the evidence and the parties’
submissions, ultimately fashioned and implemented new Congressional districts based on
the 2000 census, designated by the court as “Plan 1151C”. Id., at 4-14. The Balderas
court’s decision on its face did not express any intention that Plan 1151C was to be
considered an “interim” plan, but suggested the contrary by its designation as a final
judgment “pursuant to Federal Rule of Civil Procedure 54(b).” Id., at 16.
On February 12, 2002, certain Balderas plaintiffs filed a jurisdictional statement
in the United States Supreme Court and sought review of the remedy provided in the
Balderas judgment. See Balderas v. Texas, No. 01-1196, (Supreme Court Docket). On
March 5, 2002, Republican congressman Tom Delay, a named party in Balderas v. Texas,
supra, filed a waiver of his right to respond to the Balderas plaintiffs’ appeal in the
1
This slip opinion issued on November 14, 2001 is available at: http://gis1.tlc.state.tx.us/static/crtadopt.htm
4
Supreme Court. On March 4, 2002, the State of Texas, which did not itself appeal, filed a
motion responding to the Balderas plaintiffs’ appeal and urged the United States Supreme
Court to affirm the lower court’s November 14, 2001 Judgment which, as a remedy for
the violation of the Balderas plaintiffs’ constitutional rights, had established and
implemented the new Congressional districts under Plan 1151C. Ibid. On June 17, 2002,
the Supreme Court summarily affirmed the Balderas panel’s Judgment without written
opinion. Balderas v. Texas, 536 U.S. 919 (2002).
In November of 2002, Congressional elections were held using Plan 1151C.
Following examination of statewide election returns in Texas and several other States
cast in the November, 2002 elections, several national Republican Party figures,
including but not limited to Tom Delay (the Republican majority leader of the United
States House of Representatives), and Karl Rove (a high level Republican political
advisor to George W. Bush, President of the United States), devised a political strategy to
pressure local Republican members of the State Legislatures of Colorado and Texas
(wherein the Republican Party had gained a dominant political majority after elections in
November, 2002), to revise existing Congressional districting lines and enact new
partisan Congressional districting statutes that would ensure the future election of
Republican candidates to a disproportionate share of each of those States’ Congressional
delegations. Beginning in the Spring of 2003, at the behest of Tom Delay, and in reliance
on an advisory legal opinion issued by the Republican Texas Attorney General which
concluded that “Texas legislators are entirely free to replace the court-ordered plan”,
Tex.Att’y Gen.Op., No. GA-0063 (April 23, 2003), at page 4, Republican members of the
Texas Legislature embarked on a purely partisan political mission to enact new
5
Congressional districts that would ensure the long-term future election of Republican
candidates to a disproportionate share of the Texas Congressional delegation.
In October of 2003, at the end of the 3rd Called Special Session of the 78th Texas
Legislature, the State of Texas, using the identical statistical census information used by
the Balderas court when it fashioned Plan 1151C, enacted “Plan 1374C” to provide new
Congressional districts for the State of Texas. As enacted, Plan 1374C: 1) separates
Appellant and his fellow Cherokee County, Texas neighbors from their rural community
of interest; 2) deliberately submerges the Appellant and other rural voters within a
Congressional district containing 320, 639 urban, Republican voters in Dallas County
some 125 miles and cultural worlds away; 3) by design effectively terminates Appellant’s
political relationship with his present congressman, Jim Turner; and 4) in operation
eliminates any reasonable expectation that Appellant or his neighbors, in the foreseeable
future, will receive any meaningful representation in the United States Congress.
On October 12, 2003, the Appellant, who had not been involved in the Balderas
litigation, filed his Original Complaint (App., infra, 1e) in the Eastern District of Texas
challenging the assumption of power by the State of Texas to alter or revise the
Congressional districts implemented by the Balderas court under Plan 1151C. Shortly
thereafter, a three-judge District Court panel was designated in accordance with 28
U.S.C. Section 2284(b)(1), and by sua sponte Order of that panel, a motion for postjudgment relief separately filed by certain plaintiff-parties to the final judgment in
Balderas was consolidated with Appellant’s case. Consolidation of other post-judgment
claims filed by other Balderas plaintiffs followed.
6
On November 12, 2003, the Appellant filed a Motion for Summary Judgment
relying on the Elections Clause and Title II, U.S.C., Section 2c. The District Court
elected to take no immediate action on either the Appellant’s Motion for Summary
Judgment, or on a Motion to Dismiss filed by the Appellees. Instead, the District Court
conducted a bench trial on the merits of numerous other claims raised by numerous
parties to the Balderas litigation, whose renewed (or revived) claims had been
consolidated with the Appellant’s case. After the conclusion of the aforementioned trial
on December 19, 2003, the District Court, with one Judge dissenting, on January 6, 2004
rendered its decision. In its decision, the District Court denied Appellant’s motion for
summary judgment and granted the Appellees’ motion to dismiss. The District Court’s
analysis of the Appellant’s claims appears under paragraphs II through II-D, II-F and IIG, of the majority opinion. (App., infra, 1a- 21a); 298 F.Supp.2d at 458-469.
THE QUESTION PRESENTED IS SUBSTANTIAL
I.
The Regulatory Power delegated by the Elections Clause is Only
Commensurate with the Need to Provide Valid Regulations for
Holding Congressional Elections after Each Enumeration. The
District Court’s Unprecedented Recognition of State Power under the
Elections Clause to “At Any Time” make or alter Congressional
District Boundaries for an Illegitimate Reason, or for No Reason at
All, Invites Nationwide Chaos, Constitutes a Unauthorized Expansion
of Elections Clause Power in favor of State legislatures, and is
Contrary to Federal Statutory Law.
The Appellant’s contention, as stated in his Original Complaint (App., infra, 7e-
10e), is that once the valid Congressional redistricting map in Balderas v. Texas, No.
6:01CV158 (E.D. Tex.), aff’d., 536 U.S. 919 (2002); was ordered in a final judgment by
the three-judge District Court in accordance with authority delegated to the District Court
by Congress under Title 2, U.S.C. Section 2c (predicated upon the default of the Texas
7
Legislature to timely redistrict after being afforded a reasonable opportunity to do so), no
future Congressional redistricting statute revising the boundaries of Texas Congressional
districts could constitutionally be enacted by the Texas Legislature until after the next
decennial enumeration or census conducted under federal law pursuant to Article I,
Section 2, Clause 3. The Appellant further contends that only one narrow exception to the
foregoing constitutional rule exists, and that such an exception would apply only under
circumstances not presented here, such as wherein a State can demonstrate a legitimate
governmental objective supported by a substantial shift in population, or some other
politically neutral change in circumstances, that compels revision and implementation of
new or different Congressional district lines.
The District Court’s decision rejecting Appellant’s claims rests on the erroneous
(and sweepingly overbroad) assumption that “[u]nless and until Congress chooses to act,
the states’ power to redistrict remains unlimited by constitutional text.” (App., infra, 6a);
298 F.Supp.2d at 459. Given the sharply divided and acrimonious state of the present
National political landscape, the District Court’s failure to recognize that the power
delegated by the Elections Clause to the States is commensurate with the need for
regulation dangerously invites State legislatures across the Nation to engage in
Congressional redistricting at will, for an illegitimate reason, or ostensibly for no reason
at all. The product of this judicial promulgation and delegation of unprecedented power
to State legislatures, untethered by any requirement of a legitimate regulatory purpose,
thus invites if it does not guarantee electoral turmoil, electoral instability, and a denial of
meaningful representation in the United States Congress to millions of American voters.
8
The basis for the District Court’s decision to reject Appellant’s contention (that
the regulatory power conferred by the Elections Clause is commensurate with the
necessity to provide constitutionally valid regulations for holding Congressional
elections), is grounded on it’s legal assumption that a “residual” constitutional power
remains vested in the States under the Elections Clause, after a State has once been
validly redistricted following a decennial enumeration, and after a biennial Congressional
election has been held. The District Court’s legal assumption is seriously in error for
several reasons.
A) No Residual Power Exists Under the Election Clause to Dictate Electoral
Outcomes after Valid Congressional Districts have been Implemented.
The Appellees’ avowed purpose for engaging in intra-decennial Congressional
redistricting, as candidly and unequivocally expressed in trial testimony presented by the
Appellees, was essentially “to defeat as many incumbent Democratic congressman as
possible”. As the District Court found, “[t]here is little question but that the singleminded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan
advantage.” (App., infra, 24a); 298 F.Supp.2d at 470. However, the power delegated to
the States under the Elections Clause does not include any power “to dictate electoral
outcomes, to favor or disfavor a class of candidates, or to evade important constitutional
restraints.” Cook v. Gralike, 531 U.S. 510, 511 (2001). No residual power, after a State
has validly been redistricted, can be derived from an original power that has never
existed.2
See also (App., infra, 2b); 298 F.Supp.2d at 516 (Ward, J., dissenting)(“it seems to me that the Elections
Clause power would be equally offended by a state’s abuse of its authority regardless of whether such
abuse occurred in the beginning, or the end, of a decade following the release of the census data.”).
2
9
B) Legislative Authority to Revise Electoral Districts Has Widely Been
Recognized as Only Commensurate with the Need to Provide Valid Districts.
The District Court’s legal assumption that “the power given the states [by the
Elections Clause] is broad enough to encompass mid-decade redistricting” (App., infra,
11a); 298 F.Supp.2d at 463, is also clearly at odds with the reasoning of numerous State
Courts of last resort which have held under their respective State Constitutions that the
power of a legislature to enact political district boundaries is limited, and commensurate
with the need for such regulation. Thus, these States have held that, while legislatures
remain under a “continuing duty” to act after they have failed to timely enact new
legislative districts, “once a valid apportionment law is enacted no future act may be
passed by the Legislature until after the next regular apportionment period by the
constitution.”3 Applying this analysis, for example, the Supreme Court of California has
3
Harris v. Shanahan, 387 P.2d 771, 779-80 (Kan. 1963)(Kan.Const.Article X, Section 2)(italics added),
citing 18 Am. Jur., Elections, § 14, p. 190 (1958); Lanning v. Carpenter, 20 N.Y. 447, 451
(N.Y.1859)(N.Y.Const. of 1846, Article III, Section 5)(“the apportionment and districts so to be made shall
remain unaltered until another enumeration shall be taken”); Denny v. Balser, 42 N.E. 929, 931-33 (Ind.
1896)(Ind.Const. of 1881, Article IV, Sections 4 and 5)(after enumeration, “the apportionment of members
of the legislature shall be made at the next ensuing session of the general assembly, and only then”);
Harmison v. Ballot Commissioners, 31 S.E. 394, 395 (W.Va. 1898)(W.Va.Const. of 1872, Article VI,
Sections 7 and 10)(“We plainly see that both sections contemplate one apportionment and arrangement of
districts after each census, not a changing one every session of the legislature.”); People v. Hutchinson, 50
N.E. 599, 601-602 (Ill. 1898)(Ill.Const. of 1870, Article IV, Section 6)(“provisions giving specific
directions to make the apportionment at a particular time…manifest an intention to impose a negative upon
the exercise of the power at any other time.”); Noecker v. Woods, 102 A. 507, 508-510 (Pa.
1917)(Pa.Const. of 1874, Section 14)(providing for apportionment of judicial districts “at the next
succeeding session after each decennial census and not oftener”, construed to require that “districts of the
state cannot be changed by the Legislature, session after session, but only at intervals of ten years”);
Opinion of the Judges, 246 N.W. 295, 296 (S.D. 1933)(S.D.Const.Article 3, Section 5)(providing that
Legislature shall enact legislative districts at “its first regular session” after each federal decennial census
“but at no other time”); Herbert v. Bricker, 41 N.E. 2d 377, 383 (Ohio 1942)(Ohio Const. Of 1851, Article
XI, Section 10)(referring to text of constitutional provision that states “no change shall ever be
made…except as above provided”, and construing provision to mean “districts continue unchanged from
decennium to decennium except insofar as the Constitution itself prescribes a change.”); Jones v. Freeman,
146 P.2d 564 (Okla. 1944)(Okla.Const.Article 5, Sections 9(a), 10(b), and 10(c))(“Once a valid law is
enacted no further act may be passed by the Legislature until after the next federal decennial census.”);
Opinion of the Judges, 47 So.2d 714 (Ala.1950)(Ala.Const. Sections 198 and 200)(“only one
apportionment is contemplated during the ten-year period that a given census enumeration is in effect”);
Cahill v. Leopold, 103 A.2d 818, 827(Conn. 1954)(Conn.Const.Amend. II of 1828, and Amend. XXXI of
10
ruled its State constitution limits Congressional redistricting to a period “immediately
after each decennial census and not again thereafter until the next census”. 4 Very
recently, the Colorado Supreme Court has followed suit.5 Typical of these cases is People
v. Hutchinson, 50 N.E. 599, 603 (Ill. 1898), wherein the Supreme Court of Illinios
rejected precisely the argument made by Appellees (and wholly accepted by the District
Court in the present case), with the following observation:
“It is further argued that a fair construction of the provision in question
is that it was to secure to the people a reapportionment at least once in
10 years, rather than to fix the time for the exercise of the power or to
operate as an exclusion of apportionments at other times. The same
argument was insisted upon in Denny v. State, supra [42 N.E. 929,
931-33 (Ind. 1896)], but did not prevail, and it was held that the
apportionment could only be made after the taking of an enumeration,
and that, when a valid apportionment was once made, it must stand
until after the making of the next apportionment.”
C) The District Court Ignored a Fundamental Cannon of Construction to
Reach its Decision.
The District Court’s decision likewise ignores an equally fundamental cannon of
construction that has developed among the State Courts of last resort that have considered
whether intra-decennial redistricting is legally permissible. This cannon of construction,
which has been found applicable to both statutory and constitutional provisions, provides
that it is only in the “absence of restrictive or mandatory provisions…as to the time when
and how often the legislature may make a representative apportionment, [that] the
legislature may, in its discretion, make apportionments as often as it wills.” Annot.,
Territorial Units; Districts and Precincts; Apportionment,18 Am. Jur., Elections, § 14, at
1901)(both amendments providing that “districts shall not be altered…except at any session of the General
Assembly next after the completion of a census of the United States”).
4
Legislature v. Deukmejian, 669 P.2d 17, 22 (Cal. 1983)(Cal.Const. of 1879, Article IV, Section 6).
5
Salazar v. Davidson, 79 P.3d 1221 (Colo.2003).
11
page 190 (1958). Conversely, “when there are provisions inserted by the people as to the
time when a power shall be exercised, there is at least a strong presumption that they
design it should be exercised at that time, and in the designated mode only.” People v.
Hutchinson, supra, 50 N.E. at 601, citing T. Cooley, Constitutional Limitations, 94 (6th
ed. 1890).6 As further explained in the State legislative redistricting context by the
Supreme Court of Illinois in People v. Hutchinson, supra, at 601, under the identified
cannon of construction:
“If legislative power is given in general terms, and is not regulated, it may
be exercised in any manner chosen by the Legislature; but where the
constitution [or a regulation] fixes the time and mode of exercising a
particular power it contains a necessary implication against anything
contrary to it, and by setting a particular time for its exercise it also sets a
boundary to the legislative power.”
Application of the foregoing cannon of construction to federal “regulatory” law
that governs Congressional redistricting, discloses both “time” and “manner” directives
that confine Congressional redistricting to a period of time immediately after the federal
decennial census and apportionment. The constitutional power to “regulate” the manner
of holding elections for the United States House of Representatives may be exercised by
the States “only within the exclusive delegation of power under the Elections Clause.”
Cook v. Gralike, supra, 531 U.S. at 523. Thus, as a matter of Federal constitutional law,
after each decennial census the Legislatures of the several States are required to provide,
if necessary, new regulations for the manner of electing their respective Congressional
Representatives based on the enumeration of the population and the Congressional
apportionment of the number of Representatives to which each State is entitled. Under
the constitutional principle of “one man, one vote” first described in Gray v. Sanders, 372
6
This legal treatise has been favorably cited and relied upon for constitutional interpretation by most, if not
all, current Members of this Court.
12
U.S. 368, 381 (1963), a Congressional apportionment that increases the number of
Representatives to which a State is entitled under U.S. Const. art. I, Section 2, cl. 3,
necessarily triggers a federal constitutional obligation, imposed on each State entitled to
an increased number of Representatives, to provide new Congressional districts, in
accordance with Title II, U.S.C. Section 2c, before the next biennial Congressional
election.
The foregoing constitutional obligation to draw new Congressional districts in
States entitled to an increased number of Representatives based on the 2000 federal
census, such as Texas, would necessarily have accrued not later than March, 2001,
coinciding with the federal release of the block-by-block census figures. At the other end
of the temporal spectrum, Title 2, U.S.C., Section 7, provides that Congressional
elections must take place on “[t]he Tuesday next after the 1st Monday in November, in
every even numbered year”. Consequently, the federal constitutional and statutory
obligations to design new Congressional districts after apportionment based on the 2000
census required new Congressional districts to be drawn and implemented, and the power
delegated to the States by the Elections Clause to be exercised, at the latest, during the
approximate 19 month period between March, 2001, and the next biennial Congressional
election held on Tuesday, November 5, 2002. Because federal law (constitutional,
statutory and decisional) that regulates the power delegated to State Legislatures under
the Elections Clause both “fixes the time and mode of exercising [that] particular
power[,] it contains a necessary implication against anything contrary to it, and by setting
a particular time for its exercise it also sets a boundary to the legislative power.” People
v. Hutchinson, supra, 50 N.E. at 601.
13
The District Court’s response to the foregoing argument is that the Framers did
not “inten[d] to deprive states of authority to regulate [the manner of holding
Congressional elections] whenever Congress spoke on the subject.” (App., infra, 15a);
298 F.Supp.2d at 464 n. 35. In this regard, the District Court has overlooked the absurd
consequences that would result were its decision allowed to stand. Under the same
federal Elections Clause that delegates to State Legislatures the primary authority to
devise Congressional districts, the State Legislatures are also delegated the primary
constitutional authority to prescribe the “times” for election of Congressional
Representatives. See U.S. Const. art. I, Section 4, cl. 1 (“The Times, Places and Manner
of holding Elections for Senators and Representatives, shall be prescribed in each State
by the Legislature thereof; but the Congress may at any time by Law make or alter such
Regulations, except as to the Places of chusing Senators.”). As to the “times” for holding
Congressional elections, Congress has exercised its express constitutional authority, as
noted above, to enact a statute, Title II, U.S.C., Section 7, which provides that
Congressional elections must take place on “[t]he Tuesday next after the 1st Monday in
November, in every even numbered year”. The District Court’s conclusion that State
Legislatures retain some sort of residual constitutional authority to act, even after the
power to “regulate” elections conferred by the Elections Clause has been validly
exercised by another governmental body (for example, either by Congress or, as in this
case, by the District Court as proxy for Congress under Section 2c when entering the final
judgment in Balderas),7 would mean State Legislatures have “continuing” constitutional
The Elections Clause, of course, not only delegates power to state legislatures, but also directly “grant[s]
to Congress” the constitutional power “to lay out or alter boundaries for congressional districts”, Oregon v.
Mitchell, 400 U.S. 112, 121 (1970), and to delegate to federal and state courts, as its proxy, the same
constitutional power. Branch v. Smith, 538 U.S. 254 (2003).
7
14
authority, notwithstanding Title II, U.S.C., Section 7, to hold Congressional elections as
often and as many times as they wish within the statutory two year election cycle.
Yet this Court has held that Title II, U.S.C., Section 7, by “establishing” the date
for biennial Congressional elections, forecloses State legislatures from “establishing”
additional dates for Congressional elections. Foster v. Love, 522 U.S. 627 (1997). Under
another federal statute, Title III, U.S.C. Section 1, which provides that electors of
President and Vice President “shall be appointed” by each State at a designated time, the
Court has held State legislatures are precluded from appointing electors at additional or
other times. McPherson v. Blacker, 146 U.S. 1 (1892). The Appellant’s argument is
simply that Section 2c, which mandates that single member Congressional districts “shall
be established by law” and that “Representatives shall be elected only from districts so
established”, together with Section 7, which “establishes” the date for biennial
Congressional elections, express both “time and mode” restrictions that by necessary
implication prohibited the State of Texas from assuming Elections Clause power after
valid Congressional districts had been “established by law”, and after Representatives
had been elected “from districts so established”.
D) The Literal Text of the Elections Clause Supports the Conclusion that the
Power to Devise Congressional Districts is Commensurate with the Need for
Regulation.
The literal text of the Elections Clause supports the notion that the Framers
intended State Legislatures to have a temporarily limited opportunity to prescribe
regulations for Congressional elections during the period of time after each decennial
enumeration and prior to the next Congressional election. Examination of the Elections
15
Clause discloses it is only Congress, and not the State Legislatures, that “may at any
time” make or alter regulations governing the manner of holding Congressional elections.
As explained by Alexander Hamilton, the primary reason why the Elections Clause
reserved to Congress the power to “make” regulations under the Elections Clause was
that the Framers feared the State legislatures might fail to timely act during “[the] period
of making” regulations after each enumeration.8 The Framers were also familiar with the
maxim expressio unius exclusio alterious, see U.S. Term Limits, Inc. v. Thornton, 514
U.S. 779, 793 n. 9 (1995). If the Framers had intended for State Legislatures, in addition
to Congress, to be delegated power under the Elections Clause to “make or alter”
regulations for Congressional elections “at any time”, and to be delegated regulatory
authority beyond the contemplated “period of making” regulations, it seems odd they
would have expressed that intention in the terms stated by the Elections Clause. The
District Court found Appellant’s more limited textual interpretation of the Elections
Clause “just too convenient and tailored” (App., infra, 7a); 298 F.Supp.2d at 459.
E) The Illegitimate Purpose that Motivated the Appellees to Engage in IntraDecennial Congressional Redistricting Directly Conflicts with the Framer’s
Original Intent when Adopting the Elections Clause.
Because the Appellees’ purpose when engaging in intra-decennial Congressional
redistricting was to “reflect the voting trends” of the Republican majority of Texas voters
statewide, as mechanically stated ad nauseum by virtually all witnesses testifying on
As stated by Hamilton: “If the State legislatures were to be invested with an exclusive power of regulating
these elections, every period of making them would be a delicate crisis in the national situation, which
might issue in a dissolution of the Union”. The Federalist, No. 59 (italics added). See also Paschal, The
House of Representatives: “Grand Depository of the Democratic Principle”?, 17 Law & Contemp Probs
276, 279 (Spring 1952)(hereafter “Paschal”)(noting this justification for the Congressional reservation “was
repeated in practically every ratifying convention”).
8
16
behalf of the Appellees, the power asserted by the Appellees directly conflicts with the
Framers’ understanding of the limited power delegated to State Legislatures by the
Elections Clause. Again, no residual power can be derived from an original power that
has never existed, and a brief historical survey of the Framers’ intent clarifies this point.
As noted in Wesberry v. Sanders, 376 U.S. 1, 11-13 (1964), the most volatile
disagreement among the delegates at the Federal Constitutional Convention of 1787
concerned the composition of the National Legislature. After extended debate, the socalled “Great Compromise” was ultimately reached between the lesser and more
populous States on this subject. The concept of this “Great Compromise”, as noted in
Wesberry v. Sanders, supra, 376 U.S. at 13 n.29, and as more fully recorded by James
Madison when summarizing the comments of William Samuel Johnson of Connecticut,
was that:
“[I]n some respects the States are to be considered in their political
capacities, and in others as districts of individual citizens, the ideas
embraced on different sides, instead of being opposed to each other,
ought to be combined; that in one branch the people, ought to be
represented; in the other, the States.9
The “Great Compromise” was subsequently incorporated in Article I, Section 2,
Clause 1, which provides for a House of Representatives “composed of Members chosen
every second Year by the People of the several States” (italics added); and under Article
I, Section 3, Clause 1, which provides that the Senate of the United States shall be
“composed of two Senators from each State, chosen by the Legislature thereof” (italics
added). As explained by Madison, “[t]he policy of referring the appointment of the House
of Representatives to the People and not the Legislatures of the States, supposes that the
9
I The Records of the Federal Constitution of 1787, at 461-462 (M. Farrand rev. ed. 1937)(italics in
original)(hereafter “Farrand”).
17
result will be influenced by the mode”, II Farrand, at 240. Thus, while the manner of
holding elections for Members of the House of Representatives would, under the
Elections Clause, still primarily be “prescribed in each State by the Legislature thereof”,
no power was intended to be conferred upon the Legislatures that would authorize them
“to mould their regulations as to favor the candidates they wished to succeed”. Ibid. As
later observed by Charles Cotsworth Pickney at the South Carolina ratifying convention
on January 8, 1788, had such a constitutional power been delegated to State Legislatures
by the Elections Clause, the intent of the Great Compromise would have been undone,
such that “by the intrigues of a ruling faction in a state, the members of the House of
Representatives should not really represent the people of the state.”10
Other provisions of the Federal Constitution likewise suggest the Appellees were
without power under the Elections Clause to revise Congressional districts after the
District Court in Balderas, in accordance with then existing State law, fashioned and
implemented Plan 1151C while utilizing neutral, non-partisan districting principles.
Under the “Elector-Qualifications Clause” of Article I, Section 2, cl.1, the Framers
required that persons in each State who were entitled to vote in elections for “the most
numerous branch” of each State Legislature would likewise be entitled to vote for
election of Representatives to the National Legislature. By thus ensuring “that the
qualifications for federal electors be the same as those for state electors”, the Framers
sought to prevent application of any contrary rule that “would have rendered too
dependent on the State governments that branch of the federal government which ought
10
IV The Debates of the Several State Conventions on the Adoption of the Federal Constitution as
Recommended by the General Convention at Philadelphia in 1787, at 303 (Elliott ed. 1937)(hereafter
“Elliot’s Debates”).
18
to be dependent on the people alone.” U.S. Term Limits, Inc. v. Thornton, supra, 514
U.S. at 809, quoting The Federalist, No. 52 (Madison, Feb. 8, 1788), at 326.
The District Court in its decision does not dispute that evidence exists to support
Appellant’s contention that “a provision in the Texas Constitution of 1876 that limits the
Texas legislature to once-a-decade [legislative] redistricting…remains in force.” (App.,
infra, 19a n.48); 298 F.Supp.2d at 467 n. 48. Nor does the District Court dispute that,
when the District Court fashioned and implemented Plan 1151C “in the legislature’s
stead”, Texas had “[n]either a history [n]or tradition of mid-decade redistricting.” (App.,
infra, 17a); 298 F.Supp.2d at 466. Yet by vesting in the State of Texas a temporally
amorphous power to regulate Congressional elections “at any time”, in a manner that is
divorced entirely from traditional State districting principles and a parallel provision in
the Texas Constitution that prohibits intra-decennial redistricting for State elective
offices, the District Court has empowered the State of Texas to achieve precisely the
same constitutionally impermissible goal: render the composition of the United States
House of Representatives dependent not on the will of the People they represent, but
instead on the partisan whims of a political majority in a State Legislature.
The District Court replies to the foregoing argument by stating there is “no
reasoned basis” to require a State to adhere to a judicially implemented Congressional
redistricting plan until after the next federal decennial enumeration and apportionment,
even when a court has devised Congressional districts in accordance with existing State
law, and has done so at a time when existing State law has never before recognized intradecennial Congressional redistricting. In the District Court’s view, “such a rule would, in
effect, freeze the state’s redistricting traditions in place” (App., infra, 19a); 298
19
F.Supp.2d at 467; and the State would forever “be bound to follow whatever districting
traditions were in force as of the passage of [Title II, U.S.C.] Section 2c.” Id., (App.,
infra, 19a n. 47); 298 F.Supp.2d at 467 n. 47. The dire consequences envisioned by the
District Court are illusory.
The power to regulate Congressional elections is a “delegated” power that must
periodically be vested in, and exercised by, a State Legislature after each federal
decennial census. At that time, the “laws” and “traditional districting principles” of a
State are “in effect adopted by Congress”, Ex Parte Siebold, 100 U.S. 371, 388 (1879)(or
perhaps more accurately, implicitly incorporated as the relevant “law thereof” within the
meaning of the Elections Clause). It is therefore not difficult to fix the time, after each
federal decennial enumeration, at which the power delegated by the Elections Clause is
“vested” in the State. For example, the power delegated to the 77th Texas Legislature by
the Elections Clause to draw 32 Congressional districts (instead of 30 districts) was
vested on January 27, 2001, the date on which, as specified by Title 2, U.S.C. Section
2a(b), the State of Texas became “entitled” to its additional Congressional representation.
Had the 77th Texas Legislature expressed a desire to start a new tradition of intradecennial Congressional redistricting before the delegated power was exercised by the
District Court in Balderas; nothing in Section 2c, at least, would have prevented it from
doing so. Similarly (and assuming the existence of a legitimate regulatory purpose),
should the 78th (or any future) Texas Legislature desire to start a new tradition of intradecennial Congressional redistricting, with such a new tradition to become effective after
the next federal enumeration and apportionment, it need only express that intent on or
before the exercise of that power delegated by the Elections Clause.
20
F) The Illegitimate Purpose that Motivated the Appellees to Engage in IntraDecennial Congressional Redistricting Violates Title II, U.S.C. Section 2c,
and Conflicts with the Legislative Intent of that Statute.
Beyond the purported “residual” constitutional power claimed by the Appellees
directly under the Elections Clause, the only other plausible source of Elections Clause
power to support intra-decennial Congressional redistricting (after districts have been
validly “established by law”) must derive from Title 2, U.S.C Section 2c. Under this
theory, a State’s residual power would flow from a discretionary delegation of power by
a Court---State or Federal, arising out of the Court’s own judicial power statutorily
delegated by Congress to the Courts under Section 2c. See (App., infra, 8a); 298
F.Supp.2d at 460. An obvious defect in this argument, however, is that, even apart from
the question of whether Section 2c authorizes courts to further delegate their own
Elections Clause power to State legislatures after districts have been validly established,
the Appellees’ purpose for intra-decennial Congressional redistricting in the present case
was motivated by the desire to engage in partisan political gerrymandering, and the
Appellees’ use of regulatory power for that malevolent purpose would be foreclosed at
the federal statutory level under Section 2c for the same reason it is foreclosed at the
constitutional level under the Elections Clause.
Although the Framers at the Constitutional Convention of 1787 appear to have
assumed that either Congress, or the States individually, would promptly enact
regulations to require election of members to the United States House of Representatives
by single member districts---in order to protect local communities of interest, see
21
Wesberry v. Sanders, supra 376 U.S. at 16 n. 38; and id., 376 U.S. at 17 n. 45;11 it is true,
as the District Court has noted (App., infra, 7a); 298 F.Supp.2d at 459-460; that this did
not occur for another 53 years. In 1842, in order to give effect to the concerns expressed
by the Framers, and based on the belief that single member districts had been intended by
the Framers at the time of the federal constitutional convention, 12 the Congressional
apportionment bill enacted by Congress after the sixth federal decennial census provided:
“That in every case where a State is entitled to more than one
Representative, the number to which each State shall be entitled, under this
apportionment, shall be elected by districts, composed of contiguous
territory, equal in number to the number of Representatives to which said
State may be entitled; no one district electing more than one
Representative.”
Speaking in favor of the foregoing statutory requirement on May 31, 1842,
Senator Jabez Williams Huntington of Connecticut explained the purpose of this
provision on the Senate floor13 as follows:
“In this form, and only this form, will the just and equal rights of minorities
in the States be preserved. It needs no argument to prove the importance of
minorities to the preservation of public liberty, and the administration of
Government. They have rights, too, which ought to be protected. The people
ought to be fully represented, and they cannot and will not be so
represented, except the election be by districts. If the general ticket system
be adopted, that political party which is in a minority, however near it may
approximate to an equality in numbers, will virtually be disenfranchised,
and the State be represented by men of the same party, and elected not by
the whole people, but, as the case may be, by a bare majority of them. Thus
the minority will be unrepresented, and free and equal representation of the
people be prevented.”
11
As reported by Madison, George Mason, a fellow delegate from Virginia, contended the elected
members of the House of Representatives “ought to know & sympathise with every part of the community;
and ought therefore to be taken not only from different parts of the whole republic, but also from different
districts of the larger members of it” so as to reflect “different interests and views arising from different
produce, of habits, &c. &c.” I Farrand, 48-49.
12
See Paschal, supra, 17 Law & Contemp Probs at 281, citing 5 Stat. 491 (1842), and Cong.Globe, 27 th
Cong., 2d Sess. App. 343, 493, 513 (1842)
13
Cong.Globe, 27th Cong., 2d Sess. App. at 493 (1842)(italics in original).
22
As later observed by this Court, the evil that Congress sought to condemn by
enactment of single member Congressional districting requirements, such as the
requirement presently contained in Section 2c, was any “system of electing all the
members of the House of Representatives from a State by general ticket…[which] gave
an undue preponderance of power to the political party which had a majority of votes in
the State.” Ex Parte Yarbrough, 110 U.S. 651, 660-661 (1884).14 But as previously noted
herein, the Appellees’ sole purpose for engaging in intra-decennial Congressional
redistricting was to guarantee, to the extent possible, the election of only Republican
Party candidates for the United States Congress, through an impermissible and blunt use
of raw State governmental power. Thus, the Appellees’ purpose to “reflect the voting
trends” and supposed political will of the majority of Texas voters statewide, given the
historical record of the Framers’ intent and the foregoing legislative history of Section 2c,
directly conflicts with both the Framers’ understanding of the constitutionally limited
power delegated to State Legislatures by the Elections Clause, and the Congressional
intent of Section 2c. The legislative history of Section 2c and its forerunners clearly
discloses it was the intent of Congress to prohibit partisan abuse of Elections Clause
power by a State legislature, such as occurred in the present case, when that abuse of
14
The single member district requirement enacted by Congress in 1842 was carried forward in the
Congressional apportionment acts of 1882, 1891, 1901, and 1911. As each of these statutes “re-enacte[d] in
the same words” the single member districting requirement originally enacted in 1842, “it is a reasonable
presumption that the purpose was…to continue it in uninterrupted operation.” T. Cooley, Constitutional
Limitations, at 75 (5th ed. 1883). This series of Congressional single member district requirements expired
upon passage of the Reapportionment Act of 1929, Wood v. Broom, 287 U.S. 1 (1932). The single member
district requirement did not again apply to Congressional elections until enactment of present Section 2c in
1967. As presently enacted, Section 2c continues to provide that members of Congress “shall be elected
only from districts…[with] no district to elect more than one Representative”.
23
power comes at the expense of defenseless political minorities and local communities of
interest within a State.15
CONCLUSION
The court should note probable jurisdiction to consider and decide the Question
Presented by Appellant.
Respectfully submitted,
Richard Gladden
Texas Bar No. 07991330
1602 E. McKinney
Denton, Texas 76209
(940) 323-9307
Of Counsel
John S. Ament, III
P.O. Box 751
Jacksonville, Texas 75766
(903) 586-3561
Counsel of Record for Appellant
April 5, 2004
________________________________________________________________________
________________________________________________________________________
15
Representative Emanuel Celler of New York, who as Chairman of the House Judiciary Committee
proposed adoption of Section 2c in 1967, see Branch v. Smith, 338 U.S. 254, 287 (2003)(Stevens, J.,
concurring), was a contributor to the 1952 symposium on congressional redistricting that resulted in
publication of the legal article written by Joel Francis Paschal cited supra, this document, at note 8. See
Celler, Congressional Apportionment—Past, Present, and Future, 17 Law & Contemp Probs. 268 (Spring
1952). As an evident historian and expert on congressional redistricting in his own right, it is certain that
Representative Celler was personally familiar with the specific legislative forerunners, Congressional
intent, and legislative history of Section 2c, including the comments of Senator Huntington, quoted supra,
when he proposed reenactment of Section 2c.