Department can easily apply nationally. Do not equate the employment of the English-only ballot, or, alternatively, the readiness of a jurisdiction to employ a bilingual ballot, with the severity of the voting discrimination problem. The Congress has the responsibility to give clear guidance to the Justice Department as to the jurisdictions to be covered by the Voting Rights Act. I can think of no clearer alternative criterion which is both characteristic of Mexican-American voting problems and provides clearer direction to the Executive Branch than the inclusion of an English-only ballot as a test or device. To contend that the mere printing of bilingual registration forms and ballots negates the need for expansion of the Voting Rights Act to Mexican-American jurisdictions, is to stand logic on its head. Bilingual ballots will not prevent gerrymandering. Bilingual ballots will not prevent barriers to candidacy. Bilingual ballots will not prevent local election officials from employing a myriad of ingenious devices to prevent or dilute the votes of Mexican-Americans. I am here today because I believe the voting rights of Mexican-Americans and Blacks in Texas are consistently violated because they are a minority race. They are discriminated against on racial grounds, not because their language is different. If language were the problem I would be testifying before the Education Committees of Congress, not the Committee with jurisdiction over civil rights legislation. To provide a remedy for these discriminatory voting practices perpetrated upon Blacks and Mexican-Americans, I have introduced legislation, along with Congressmen Badillo and Roybal. Similar legislation, amendment #312 to S. 1279 is before this Subcommittee. The bill would guarantee to Mexican-Americans and Blacks residing in the newly covered jurisdictions the same special attention to their voting rights now afforded Blacks in the South. The bill, in an amended form has been unanimously approved by the House Subcommittee on Civil and Constitutional Rights. My hope is that after hearing the testimony, this Subcommittee will also act to report the bill with unanimity. COMPTROLLER OF PUBLIC ACCOUNTS, AUSTIN, TEX., April 18, 1975. Hon. BARBARA JORDAN U.S. Congresswoman House Office Building, Washington, D.C. DEAR BARBARA: As a former Secretary of State for the State of Texas, I was the Chief Election officer charged with the duty "to maintain uniformity in the application, operation and interpretation of the election laws" in Texas. During my tenure as Secretary of State, the elections division was dedicated to extending the franchise as widely as possible, especially to minority groups who were historically disenfranchised by state laws such as the poll tax. My office actively supported the revised voter registration act which provides for yearround registration with a 30-day cutoff period prior to an election. The act eliminates a long-standing administrative obstacle which required each voter to re-register each year during a three month period some four months prior to the May Primary. Despite these modifications of the voter registration system which eliminate the more discriminatory obstacles, registration is only one facet of the problem. The underlying problem is economic or physical intimidation at the local level of minority voters who are predominately in lower income groups. Texas statutes place all election duties upon local officials. Even if the Secretary of State has access to information concerning intimidation or improper influence of a voter, the office has no statutory authority to take even minimal action. In addition the Attorney General can intervene only where the irregularities involve more than one county. Then, if a local official chose to ignore a directive from my office, I had no power to enforce these administrative rulings or statutory proviso I do not mean to impugn the integrity of any local officials because they perform a herculean task in running the elections. However, these officials are understandably susceptible to political, social and sometime economic pressures from those public officers whose names appear on the ballot. I firmly believe that the presence of an impartial observer who does not have a stake in the outcome of the election could reduce the likelihood of intimidation. 52-004 075 17 The Texas Legislature will adjourn in a little over one month. No one has introduced any legislation to alleviate this severe problem. The federal voting rights act should be extended to Texas in order to grant enforcement authority. I wholeheartedly support this legislation as an office holder, and a concerned voter. Sincerely, BOB BULLOCK, Comptroller of Public Accounts. IN THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS, TYLER DIVISION [Civil Action No. TY-CA-73-236] FRANK J. ROBINSON, RODNEY HOWARD, AND TIMOTHY S. SMITH V. COMMISSIONERS COURT, ANDERSON COUNTY, AND HON. N. R. LINK, COUNTY JUDGE, ANDERSON COUNTY, TEX. FINDINGS OF FACT 1. Plaintiffs Frank J. Robinson, Rodney Howard, and Timothy S. Smith, are residents and registered voters of Anderson County, Texas, within the Eastern District of Texas. 2. Defendants are the Commissioners Court of Anderson County, Texas, which is charged with the responsibility of dividing the county into appropriate commissioners precincts for the purpose of county commissioners' elections pursuant to Article 5, Section 18, of the Constitution of the State of Texas; and the Honorable N. R. Link, County Judge of Anderson County, Texas. 3. In 1970, Anderson County had a population of 27,789 and Palestine, the county seat and largest municipality in the county, had a population of 14,525. Whites constitute approximately 74.6% of the county population and blacks constitute approximately 25.1%. In Palestine, 74.0% of the population is white and 25.58 is black. The black population of Palestine is concentrated primarily in the southwest quadrant of the city. 4. The Commissioners Court of Anderson County is the legislative body for the county and is comprised of four Commissioners and the County Judge. Each Commissioner is elected from a separate precinct, but the Judge is elected at large. Prior to 1969, one precinct included essentially the City of Palestine and over 50% of the county's population, while the remainder of the county was divided into the other three precincts. 5. In 1969, a realignment of precinct lines was made by the Commissioners Court based on voter registration figures. At that time the Commissioners assumed that a 10% deviation in those figures was within acceptable limits. This realignment within the City of Palestine followed neither established census enumeration districts nor logical boundaries. Significantly, in establishing the commissioner precincts within the City of Palestine, the Commissioners drew a "wedge" through the greatest black concentration within the southwestern portion of the City of Palestine, dividing the black community of the City of Palestine into three commissioner precincts. See Appendix A. This black community lies primarily within census enumeration districts 21. 22, and 23; of the approximately 2,200 residents of this community, 83% are black. Since only 6,972 of the County's 27,789 residents are black, this black pocket represents a significant portion of the black population. 6. In 1969, Timothy Smith, a black, served as an elected Democratic Precinct Chairman in Anderson County and as a member of the County Democratic Executive Committee representing a largely black precinct in the City of Palestine. One boundary of the "wedge" referred to in the preceding finding was a section of Dye Street in front of Smith's house. Thus, one result of this "wedge" dividing the black population into separate voting precincts was the placement of Smith in a precinct with a white majority; he was subsequently defeated in the race for Democratic Precinct Chairman. Smith was the first black ever to serve as a Democratic Precinct Chairman in the county. (The County Democratic Executive Committee on which he served is a policy-making body of the Democratic Party for Anderson County). 7. Relying upon the 1970 United States Bureau of Census figures, the court finds that the commissioner precincts effective January 1, 1974, contain an 11% deviation between commissioner precincts 3 and 4. Since the Commissioners Court did not rely on available 1970 census data in effecting the modification of the precinct lines, but rather placed exclusive reliance upon voter registration figures, the reapportionment is distorted. In one predominantly black enumeration district in Palestine, only 69% of the residents are over the age of 14; in predominantly white enumeration districts elsewhere in the county, as much as 82% of the population are over the age of 14 years. 8. In redrawing the precinct lines in 1969 and modifying those lines effective January 1, 1974, the Commissioners intended to dilute the voting strength of the black community, which has suffered from, and continues to suffer from, the effects of oppressive and restrictive voting legislation and racial discrimination generally in the state of Texas, see White v. Regester, 412 U.S. 755 (1973), as well as the effects of an unresponsive and generally inaccessible county electoral and legislative apparatus in Anderson County. 9. The Commissioners Court of Anderson County has been generally unresponsive to the needs and interests of the black community of that county. For example, the Commissioners appointed as juvenile officer a former deputy sheriff who was forced to resign as a result of community pressure stemming from charges of brutality in the shooting of a black citizen of Anderson County; refused to join in sponsorship of a community action project designed to establish a day care center; and abolished the office of the black home demonstration agent without conferring with representatives of the black community. Moreover, no blacks have been appointed to any of the boards and commissions filled by the Commissioners Court. 10. The defendants have proposed no alternative commissioner precinct plan; the plaintiffs have proposed a plan based solely on 1970 census data that conforms to established census enumeration district lines, as well as recognizable physical boundaries. This plan contains no cognizable population variance and restores the fragmented black community in southwest Palestine into a single commissioners precinct. 11. The plaintiffs have demonstrated that they have suffered, and will continue to suffer, irreparable injury by virtue of the past and present commissioner precinct divisions in Anderson County. The defendants on the other hand, have failed to show the existence of any equities that would justify postponing further the implementation of a constitutional apportionment plan. CONCLUSIONS OF LAW 1. This court has jurisdiction under the due process clause and the equal protection clause of the Fourteenth Amendment, as well as the Fifteenth Amendment of the United States Constitution, pursuant to 28 U.S.C.A. § 1331; and 42 U.S.C.A. § 1983, pursuant to 28 U.S.C.A. § 1343. 2. The requirement of "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," Reynolds v. Sims, 377 U.S. 533, 579 (1964), applies to the apportionment of county commissioner courts. Avery v. Midland County, 390 U.S. 474 (1968). 3. A redistricting plan, though not subject to attack on the grounds of malapportionment, is nevertheless constitutionally impermissible if plaintiffs prove a racially motivated gerrymander, or a plan drawn along racial lines, Wright v. Rockefeller, 376 U.S. 52 (1964); Gomillion v. Lightfoot, 364 U.S. 339 (1960), or prove that, whether by design or otherwise, an apportionment scheme, under the circumstances of a particular case, operates to minimize or cancel out the voting strength of racial or political elements of the voting population, White v. Regester, 412 U.S. 755 (1973); Whitcomb v. Chavis, 403 U.S. 124 (1971). Thus, a finding of unconstitutional gerrymandering, apart from any finding of malapportionment, is sufficient to invalidate a county-wide redistricting plan. Howard v. Adams County Board of Supervisors, 453 F. 2d 455 (5th Cir. 1972). 4. Although this court pretermits decision on the issue of whether an 11% deviation in population in county commissioner precincts constitutes a violation of the equal protection requirement of "substantial equality among the various districts," cf. Mahan v. Howell, 410 U.S. 315 (1973) ("fundamental differences" between congressional apportionment and state legislative apportionment require more stringent scrutiny of the former), the court does reach the question of whether the lines as redrawn constitute an unconstitutional gerrymander. 5. The redrawing of the county commissioner precinct lines so as to form a wedge through a substantial section of the black community by means of an Sshaped curve dividing the blacks into three different precincts, under circumstances demonstrating that the black community is largely confined to one quadrant of the four-precinct district and that the Commissioners Court historically has been unresponsive to the needs and interests of the black community, constitutes a racially motivated gerrymander, Wright v. Rockefeller, supra; Gomillion v. Lightfoot, supra, as well as an apportionment scheme operating to minimize or cancel out the voting strength of the black community, White v. Regester, supra; Whitcomb v. Chavis, supra. 6. With respect to the remedy, the defendants have neither proposed an alternative reapportionment plan to the court, nor suggested any reason why a constitutionally acceptable plan cannot be implemented in time for the 1974 elections. Furthermore, plaintiffs have made the requisite showing of irreparable harm; failure to implement a constitutionally acceptable plan would simply perpetuate the existing constitutional deprivations. The redistricting plan proposed by the plaintiffs is based solely upon census enumeration districts; is an accurate division of the population; is free from the racial bias that affects the existing commissioner precinct lines; and is not otherwise susceptible of constitutional attack. Thus, the reapportionment plan proposed by the plaintiffs is adopted by the court and promulgated as a plan for the holding of the 1974 primary and general elections in Anderson County. See Appendix B. 7. Since they litigate as "private attorneys general" in behalf of the public interest, plaintiffs are entitled to an award of attorney's fees as part of the costs to be paid by the defendants. See Lee v. Southern Home Sites Corporation, 444 F. 2d 143 (5th Cir. 1971), noted in 50 Texas L. Rev. 204 (1971) (attorneys' fees should be awarded to the successful plaintiff bringing suit under 42 U.S.C.A. § 1982); NAACP v. Allen, 340 F. Supp. 703, 707-10 (M.D. Ala. 1973) (Johnson, J.) (attorneys' fees should be awarded to the successful plaintiff bringing suit under 42 U.S.C.A. § 1983 on policy considerations similar to those announced in Lee v. Southern Home Sites Corporation, supra). Signed and entered this 15th day of March, 1974. WM. WAYNE JUSTICE, |