              TXXE ATTORNEY    GENERAL
                      OF TEXAS




Hon. Ned Granger                            Opinion   No. M- 1182
County Attorney
Travis County Courthouse                    Re:   Whether the boundaries     of
P. 0. Box 1748                                    county commissioners    precincts
Austin, Te xas   78767                            should be determined    by the
                                                  number of registered    voters
                                                  or by the total   population
                                                  in order to comply with the
                                                  “one man, one vote” rule
Dear Mr. Granger:                                 the U.S. Supreme Court.

             Your recent   letter   requesting    the opinion   of this office
concerning    the referenced     matter states,    in part,   as follows:

             “Travis   County Commissioners      precinct    bound-
      aries   are currently    determined    in accordance     with
      the total    number of persons     registered     to vote in
      Travis County.      The recent changes in election          laws
      which now permit persons of age eighteen            to vote
      have altered     the previous   ratio    of registered
      voters    to total  population   in some areas due, in
      part,   to the concentration     of students      in some
      parts of Travis County.

             “The Travis County Commissioners   are now
      confronted   with the following question:

             “Should the forthcoming        redefining   of County
      Commissioners     precinct    boundaries     be done in
      accordance    with total     numbers of persons      registered
      to vote in Travis County, or does the U.S. Supreme
      Court’s    requirement     of ‘one man, one vote’       require
      that precinct     boundaries    be established     on the
      basis of total     population     within Travis County?”

            In Reynolds v. Sims, 377 U.S. 533 (1964),     the United States
Supreme Court held that the Equal Protection     Clause of the Fourteenth
Amendment applied    to the apportionment of state legislatures,     that
every qualified   resident  had the right to a ballot   for election   of



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Hon. Ned Granger,     page   2            (M-1182)



state legislators     that was of equal weight to the vote of every
other resident,     and that such right was infringed   when legislator
were elected    from districts   of substantially  unequal population.
However, the Court also said in Reynolds v. Sims, supra, that:
            “We do not here consider        the difficult
     question    of the proper remedial devices           which
     federal   courts    should utilize     in State legis-
     lative   apportionment      cases.   Remedial techniques
     in this new and developing         area of the law will
     probably    often differ     with the circumstances         of
     the challenged      apportionment     and a variety      of
     local   conditions.      . . .I’ 377 U.S. at 585.

           In Avery v. Midland County, 390 U.S. 474 (1968),         the
Supreme Court applied     the Reynolds rule to Texas county commissio,
precincts,  and held that local      units with general   governmental
powers over an entire     geographic   area may not, consistently    with
the Equal Protection    Clause,   be apportioned    among single-member
districts  of substantially     unequal population.

             The Court’s decision    in Aver   consistently   spoke in ten
of districts    of equal population,    -8
                                        rat er than districts     having an
equal number of registered      voters.    The Court said
            II. . . We hold today only that the Constitu-
      tion permits no substantial       variation  from e ual
      population   in drawing districts      for units o &al
      government having general       governmental   powers over
      the entire   geographic    area served by the body.”
      (Emphasis added.)       390 U.S. at 484-85.

Further,   in the course     of   the Avery     decision,   the   Court   stated   th:
             11      Our decision    today is only that the
      Consti;u;i&r     imposes one ground rule for the
      development    of arrangements     of local    government:
      a requirement     that units with general       govern-
      mental powers over an entire         geographic    area
      not be apportioned      among single-member      districts
      of substantially      unequal population.”        (Emphasis
      added. ) -Id. at 435-86.

          In Hadley v. Junior College  Dist.  of Metro. Kansas City~
MO., 397 U.S. 50  (1970), the Supreme Court  applied  the Reynolds-



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Hon. Ned Granger,      page    3               (M-l 182)



Aver      rationale   to the   election       of trustees   of   a junior   college
a+.
 istrict.        The Court’s   language       in Hadley.spoke     as follows:
              I, . . . We therefore      hold today that as a
      general      rule . . . the Equals Protection         Clause
      of the Fourteenth         Amendment requires      that each
      qualified      voter must be given an equal oppor-
      tunity      to participate      in (elections)      . .
      and when members of an elected             body are cho;en
      from separate       districts,     each district     must be
      established       on a basis that will insure,          as far
      as is practicable,          that equal numbers of voters
      can- vote for proportionally           equal numbersof
      officials.”        (Emphasis added.)         397 U.S. at 56.

             The foregoing  language of the Supreme Court would seem to
indicate    that districts  composed of an equal number of registered
voters,    as opposed to persons,   would be constitutionally sanctioned.

               In Pate v. El~Paso County, Texas, 324 F.Supp. 935 (W.D.
Tex.)    (3-judge   court)    aff’d    400 U.S. 806 (1970),    the court had
occasion     to pass upon’thenstitutionality          of an El Paso County
redistricting      action   in which the four county commissioners’         pre-
cincts    had been redrawn.        In that case, the county commissioners
had redrawn the precinct         lines   on the basis of registered     voters
in the district,       rather than on a population      basis.    The federal
district     court concluded     as follows:
            I,       (T)he Court having determined          that
      because of’the     large military    personnel      in El
      Paso County who maintain voting         residence     in
      other places    a division    by registered      voters
      would more fairly      comply with the one man,
      one vote rule than by population,          and the
      Commissionersounty                               having
      submitted   to the Court a map dividing          the    -
      county into four Commissioners         precincts     with
      voter registration      as follows:

             “Commissioners        Precinct     l---23,674

             “Commissioners        Precinct     Z---23,721

             “Commissioners        Precinct     3---23,923

             “Commissioners        Precinct     4---23,971


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Hon. Ned Granger,     page   4             (M-1182)



            “In accordance    with the registered voters
      list  of January 31, 1970, the Court finds that
      said division    as appears on said map . . . is
      reasonable    and proper. ” 324 F.Supp. at 940.

Thus, the Pate decision        explicitly   sanctioned     the use of districts
based on theumber         of registered    voters   resident   therein as being
constitutional     in light    of Reynolds,    Aver     and Hadle
decision    was affirmed,    -without opinion,+’ y the Unite +&a%           sern,
Court.

             In view of the foregoing,        we are of the opinion       that the
Travis County Commissioners        Court may adopt the redistricting           plan
which most fairly     complies    with the one man, one vote rule for its
four commissioners’     precincts;      that is, based upon that criterion,
to .ado.pt one based on either       registered     voters   or total  population
of the new districts,      and that either       of such methods of redistrict-
ing so adopted would be constitutional             in light   of the Supreme Court
“one man, one vote” rule,       provided     the numbers in each district,         of
either   registered   voters   or total     population,     was substantially     equa
to that of the other districts.

            In so holding,       we would point out that once a commissioner
court decides    on which of      .the two formulas   to use as a basis for re-
districting   (i.e.,  either      registered   voters  or total population),     it
must apply the formula to         each of its four commissioners’     precincts.

                             SUMMARY

             To comply with the U.S. Supreme Court re-
      quirement of “one man, one vote”,             a commissioners
      court may, in its judgment,          depending upon which
      most fairly      complies    with the one man, one vote
      rule    redistrict      its- four precincts     on the basis
      of either     total   registered    voters     or total
      population,      resident    in each precinct,      provided
      that, as redistricted,          the number of registered
      voters,    or total    population,     in each precinct      is
      substantially       similar    to the others.      Once the
      registered     voter or total      population    formula is
      adopted?    it must be applied       to each of the four
      commissioners’       precincts.




                                               ey General     of   Texas
Hon. Ned Granger,       page   5            (M-1182)



Prepared    by Austin    C. Bray,   Jr.
Assistant    Attorney    General

APPROVED:
OPINION COMMITTEE

Kerns Taylor,   Chairman
W. E. Allen,   Co-Chairman
Gerald Ivey
Bob Lemens
Linward Shivers
Harriet  Burke

SAMUELD. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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