In the Supreme Court of the United States

No. ______

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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

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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 2

United States District Judge T. John Ward follows. (App., infra, 1b-27b); 289 F.Supp.2d at 515.

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 3

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).”

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

1 This slip opinion issued on November 14, 2001 is available at: http://gis1.tlc.state.tx.us/static/crtadopt.htm 4

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

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”, 5

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

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 post- judgment relief separately filed by certain plaintiff-parties to the final judgment in 6

Balderas was consolidated with Appellant’s case. Consolidation of other post-judgment claims filed by other Balderas plaintiffs followed.

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 II-

G, 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. 7

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

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, 8 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.

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 single- minded 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 9 has validly been redistricted, can be derived from an original power that has never existed.2

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

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.”).

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 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 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 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”). 4Legislature 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 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 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

6This legal treatise has been favorably cited and relied upon for constitutional interpretation by most, if not all, current Members of this Court. 12

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

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 13 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.

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 14 judgment in Balderas),7 would mean State Legislatures have “continuing” constitutional 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 7 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). 15 regulations for Congressional elections during the period of time after each decennial enumeration and prior to the next Congressional election. Examination of the Elections

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 Intra-

Decennial 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

8 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”). 16 statewide, as mechanically stated ad nauseum by virtually all witnesses testifying on 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 so- called “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

9 I The Records of the Federal Constitution of 1787, at 461-462 (M. Farrand rev. ed. 1937)(italics in original)(hereafter “Farrand”). 17 of Representatives to the People and not the Legislatures of the States, supposes that the 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 intra- decennial 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 intra- decennial 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 intra- decennial 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

Intra-Decennial 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, 27th 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 John S. Ament, III Texas Bar No. 07991330 P.O. Box 751 1602 E. McKinney Jacksonville, Texas 75766 Denton, Texas 76209 (903) 586-3561 (940) 323-9307 Counsel of Record for Appellant Of Counsel

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. 24

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