Avery v. Midland County

390 U.S. 474

Case Year: 1968

Case Ruling: 5-3, Vacated and Remanded

Opinion Justice: White

More Information

Concurring Opinions

Dissenting Opinions

Court Opinion Joiner(s):

Black, Brennan, Douglas, Warren


1st Concurring Opinion



1st Dissenting Opinion

Author: Fortas


2nd Concurring Opinion



2nd Dissenting Opinion

Author: Harlan


3rd Concurring Opinion



3rd Dissenting Opinion

Author: Stewart


Other Concurring Opinions:


Hank Avery, a citizen of Midland County, Texas, filed a lawsuit claiming that the county's general governing body, the Commissioners Court, was improperly constituted. The city of Midland was the only town of appreciable size in a largely rural area. The Commissioners Court was composed of five members--a county judge elected at large and four commissioners elected from districts. There were significant population differences among these districts. The largest, which included almost all of the city of Midland, had 67,906 residents. The remaining three districts had populations of 852, 828, and 414, respectively. Avery claimed that this apportionment violated the Equal Protection Clause of the Fourteenth Amendment. The state trial court judge ruled in favor of Avery, but the state supreme court interpreted the case differently. It held that while the county's apportionment plan was defective, factors other than just population could be taken into account in redesigning the districts. For example, the reapportionment process could consider the fact that Midland was primarily a rural county, and that issues of concern to the rural areas dominated the Commissioners Court's attention. Avery requested that the United States Supreme Court review the decision.



...In Reynolds v. Sims the Equal Protection Clause was applied to the apportionment of state legislatures.

Every qualified resident, Reynolds determined, has the right to a ballot for election of state legislators of equal weight to the vote of every other resident, and that right is infringed when legislators are elected from districts of substantially unequal population. The question now before us is whether the Fourteenth Amendment likewise forbids the election of local government officials from districts of disparate population. As has almost every court which has addressed itself to this question, we hold that it does.... Although the forms and functions of local government and the relationships among the various units are matters of state concern, it is now beyond question that a State's political subdivisions must comply with the Fourteenth Amendment. The actions of local government are the actions of the State. A city, town, or county may no more deny the equal protection of the laws than it may abridge freedom of speech, establish an official religion, arrest without probable cause, or deny due process of law.

When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population....

That the state legislature may itself be properly apportioned does not exempt subdivisions from the Fourteenth Amendment....

We are urged to permit unequal districts for the Midland County Commissioners Court on the ground that the court's functions are not sufficiently "legislative." The parties have devoted much effort to urging that alternative labels--"administrative" versus "legislative"--be applied to the Commissioners Court.... [T]his unit of local government cannot easily be classified in the neat categories favored by civics texts. The Texas commissioners courts are assigned some tasks which would normally be thought of as "legislative," others typically assigned to "executive" or "administrative" departments, and still others which are "judicial." In this regard Midland County's Commissioners Court is representative of most of the general governing bodies of American cities, counties, towns, and villages....

... While the Texas Supreme Court found that the Commissioners Court's legislative functions are "negligible,"... the court does have power to make a large number of decisions having a broad range of impacts on all the citizens of the county. It sets a tax rate, equalizes assessments, and issues bonds. It then prepares and adopts a budget for allocating the county's funds, and is given by statute a wide range of discretion in choosing the subjects on which to spend. In adopting the budget the court makes both long-term judgments about the way Midland County should develop--whether industry should be solicited, roads improved, recreation facilities built, and land set aside for schools--and immediate choices among competing needs.

The Texas Supreme Court concluded that the work actually done by the Commissioners Court "disproportionately concern[s] the rural areas."... Were the Commissioners Court a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents, we would have to confront the question whether such a body may be apportioned in ways which give greater influence to the citizens most affected by the organization's functions. That question, however, is not presented by this case, for while Midland County authorities may concentrate their attention on rural roads, the relevant fact is that the powers of the Commissioners Court include the authority to make a substantial number of decisions that affect all citizens, whether they reside inside or outside the city limits of Midland. The Commissioners maintain buildings, administer welfare services, and determine school districts both inside and outside the city. The taxes imposed by the court fall equally on all property in the county. Indeed, it may not be mere coincidence that a body apportioned with three of its four voting members chosen by residents of the rural area surrounding the city devotes most of its attention to the problems of that area, while paying for its expenditures with a tax imposed equally on city residents and those who live outside the city. And we might point out that a decision not to exercise a function within the court's power--a decision, for example, not to build an airport or a library, or not to participate in the federal food stamp program--is just as much a decision affecting all citizens of the county as an affirmative decision.

The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious. The conclusion of Reynolds v. Simswas that bases other than population were not acceptable grounds for distinguishing among citizens when determining the size of districts used to elect members of state legislatures. We hold today only that the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body....

... [T]he Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population.

The judgment below is vacated and the case is remanded for disposition not inconsistent with this opinion.

It is so ordered.


I could not disagree more with this decision, which wholly disregards statutory limitations upon the appellate jurisdiction of this Court in state cases and again betrays such insensitivity to the appropriate dividing lines between the judicial and political functions under our constitutional system.

I believe that this Court lacks jurisdiction over this case because, properly analyzed, the Texas judgment must be seen either to rest on an adequate state ground or to be wanting in "finality." The history of the Texas proceedings, as related in the Court's opinion,... clearly reveals that the decision of the Texas Supreme Court disallowing the present county apportionment scheme rests upon a state as well as a federal ground. The state ground--Art. V, 18, of the Texas Constitution--was clearly adequate to support the result. This should suffice to defeat the exercise of this Court's jurisdiction....

Nor does this Court have jurisdiction to review the Texas Supreme Court's statement that in reapportioning the county in the future the county commissioners may take into account factors other than population. That holding obviously does not amount to a "[f]inal judgment....

On these scores, I would dismiss the writ as improvidently granted.

On the merits, which I reach only because the Court has done so, I consider this decision, which extends the state apportionment rule of Reynolds v. Sims to an estimated 80,000 units of local government throughout the land, both unjustifiable and ill-advised.

I continue to think that these adventures of the Court in the realm of political science are beyond its constitutional powers, for reasons set forth at length in my dissenting opinion in Reynolds....


I would dismiss the writ in this case as improvidently granted. The Texas Supreme Court held the districting scheme unlawful under the Texas Constitution. It ordered redistricting. In this difficult and delicate area I would await the result of the redistricting so that we may pass upon the final product of Texas' exercise of its governmental powers, in terms of our constitutional responsibility, and not upon a scheme which Texas itself has invalidated....

The Court, however, now plunges to adjudication of the case of Midland County, Texas, in midstream, apparently because it rejects any result that might emerge which deviates from the literal thrust of one man, one vote. Since it now adopts this simplistic approach, apparently the majority believes that it might as well say so and save Texas the labor of devising an answer.

I am in fundamental disagreement. I believe... that in the circumstances of this case equal protection of the laws may be achieved--and perhaps can only be achieved--by a system which takes into account a complex of values and factors, and not merely the arithmetic simplicity of one equals one....


...I continue to believe that the Court's opinion in [ Reynolds v. Sims] misapplied the Equal Protection Clause of the Fourteenth Amendment--that the apportionment of the legislative body of a sovereign State, no less than the apportionment of a county government, is far too subtle and complicated a business to be resolved as a matter of constitutional law in terms of sixth-grade arithmetic....