Texas Attorney General Opinion: DM-6 Page: 10 of 13
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Honorable Chet Brooks - Page 10 (DM-6)
Honorable Tom Uher
This more basic question is whether the triggering event of publication also requires
that the published data be used as the sole basis for determining population for state
legislative redistricting, regardless of its accuracy and its disproportionate impact on
segments of the population. The population data contained in the triggering publication is
not the sole permissible basis for determining the population base to be used in the process
of redistricting.
The federal Equal Protection Clause and United States Supreme Court precedent
elucidating its reach in the context of state legislative redistricting must be consulted to
understand what data the legislature may and must use as a guide in undertaking its
redistricting responsibilities. The Supremacy Clause of the United States Constitution
establishes the primacy of those federal standards over state constitutional standards. 'The
requirement of the United States Constitution takes precedence and any inconsistency
therewith in the Texas Constitution is thereby vitiated." Smith v, Craddick, 471 S.W.2d 375,
377 (Tex. 1971) (considering requirements of article III, section 26, of the Texas
Constitution).
In Revnolds v. Sims, 377 U.S. 533, 568 (1964), the Supreme Court held that the
equal protection clause requires state legislative seats to be apportioned on a population
basis. The districts must be as nearly of equal population as practicable, i at 577,
although deviations from absolute equality have been permitted. See. eg.. White v,
Regester 412 U.S. 755, 763-65 (1973) (upholding 9.9% total maximum deviation). The
most recent federal court pronouncement in this area also concludes that population is an
appropriate basis for state legislative apportionment. Garza v. County of Los Angeles, 918
F.2d 763, 774 (9th Cir. 1990), cert. denied, 111 S.Ct. 681 (1991); .g Burns v. Richardson,
384 U.S. 73, 91 (1966) (stating that the equal protection clause does not require that
federal census population figures be used in redistricting, but doing so in a context where
the use of other figures yielded substantially the same result). The problem, though, is how
the basic building block of population is to be ascertained.
In Opffney v. Cummings, 412 U.S. 735, 745-47 (1973), the Supreme Court discussed
the inexactitude of the census both in the snapshot it takes of the nation's population and
due to the passage of time. In particular, the court observed that the census' inexactitude is
"most evident with respect to minorities." id at 745 n.10. Finally, Gaffney recognized that,
in reapportioning state legislatures, states are permitted to work with "both political and
census data." I4 at 753-54.
A review of the cases after Reynolds, Burns, and Gaffnev indicates that courts havenot read the federal constitution as requiring states to adhere rigidly to federal census
p. 34
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Texas. Attorney-General's Office. Texas Attorney General Opinion: DM-6, text, February 27, 1991; (https://texashistory.unt.edu/ark:/67531/metapth273813/m1/10/?q=%22%22~1: accessed July 16, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu.; crediting UNT Libraries Government Documents Department.