*2 POSNER, Before BAUER and Circuit GRANT, Judges, District Senior Judge.* BAUER, Judge. Circuit appeal Defendants from the district court requiring order them to increase the size of the Board of Commissioners Cook members, (“Board”) from fifteen nine elect- suburbs, Chicago ed from and six from members, ten elected from seventeen Chicago and seven from the suburbs. De- fendants contend that the district court ordering reapportionment erred in because plaintiffs prove failed to apportionment fifteen plan Board’s member voting rights diluted their in violation of the fourteenth amendment. We affirm. Plaintiffs originally filed this reappor tionment suit in 1973. They alleged that Board, which then had members, fifteen ten elected from Chicago and five elected suburbs, overrepresented Chicago citizens by 4.87% and underrepresented sub urban citizens 4.87%. The district court held that the 9.74% total deviation diluted the voting rights of the suburban voters in violation of the fourteenth amendment. The court ordered the Board to increase its members, size to sixteen ten to be elected from the city and six from the suburbs. The court’s reapportionment plan decreased the total 1.4%, deviation to the smallest feasible Dunne, deviation. Sutton v. F.Supp. 483 (N.D.Ill.1973). Defendants did not appeal the district court’s reappor tionment order.

On October 1973, the Board adopted an ordinance implementing the district court’s reapportionment plan. The 1974 and 1978 Board elections were held on the basis of that ordinance. On November Chicago, Harte, Hauser, William T. Henry A. 1981, the passed an ordinance de- Dunne, al. l., George W. et creasing members, size to fifteen nine to Il * Grant, Judge Indiana, sitting by desig- Senior Northern District of Honorable Robert A. for the States District Court nation. of the United plaintiffs

be elected from and six from the prove suburbs. The Board’s 1981 failed the 4.22% total devia- County population was based on Cook is of a sufficient figures from the census. quality “size and to an to amount invidious discrimination under Fourteenth to the court to Plaintiffs returned *3 Gaffney Amendment.” 412 Cummings, obtain 1973 or- modification court’s 735, 741, 2321, 2325, U.S. 93 S.Ct. population changes. der to 1980 reflect (1973). Rather, argue, 298 the defendants reject Plaintiffs the court to requested minimis, and, therefore, deviation de increase plan Board’s 1981 order it to plan constitutionally Board’s acceptable. members, either nine be elect- to sixteen to that, argue Defendants alternative ed city from the and seven from sub- minimis, if the even total deviation is not de urbs, members, ten to seventeen plan acceptable the Board’s is still elected from from the seven the state’s of maintaining the Board’s adjusted suburbs. raw Using population membership at is a figures census,1 justifi- 1980 fifteen the district court that the 1981 cation plan calculated 4.22% deviation. created a overrepresentation 2.11% of Chi-

cago citizens concomitant 2.11% un-

derrepresentation The Court has declined suburban citizens. prescribe “any court held that the plan’s precise 4.22% total tests” deviation reviewing violated fourteenth amend- determining courts to use in ment. rejected plain- The court also a particular apportionment whether plan calling tiffs’ for a proposed sixteen passes Reynolds v. constitutional muster. member Board because that created an 1390, Sims, 533, 578, 1362, 377 84 U.S. unacceptable deviation, 3.28% total (1964). 12 L.Ed.2d 506 There is no fixed Chicago underrepresented by and the 1.64% percentage demarcating deviation the de suburbs overrepresented by a like amount. unconstitutional, Kirkpa minimis plaintiffs’ court alternate adopted Preisler, 526, 530-31, trick v. 89 plan and ordered to increase its 1225, 1228-29, (1969); 22 L.Ed.2d 519 members, size to seventeen ten be elected each deviation must examined on a case- be from Chicago seven from the suburbs. by-case marginally permis basis. “What is The court found that apportionment one may unsatisfactory sible in State plan would in a underrepresen- result .93% another, depending particular cir tation of the suburbs overrepre- and .93% Sims, Reynolds cumstances case.” city voters, sentation of the with a total 533, 578, 1362, 1390, 12 84 S.Ct. Dunne, deviation of 1.86%. Sutton v. (1964). F.Supp. (N.D.I11.1981).

II Initially, district plaintiffs claim bear the Defendants burden adopt plaintiffs’ proving them to ordering that the deviation popula- erred in justed White Nonwhite district court relied on the census City 1980 Population Chicago figures: 3,005,061 1,143,426 1,861,635 Adjustment 7.7% 1.9% following Population 2,004,980 3,170,131 1,165,151 Adjusted ad- cy Ill. Sutton v. Total Suburban City 1981). 1980 Adjusted Population of these Cook County Dunne, Neither figures. 3,170,131 2,305,905 5,476,036 party challenges F.Supp. 5,476,036 = = 42.11% 57.89% 312, 314-15 the accura (N.D. Suburban Cook Population Adjustment Population Adjusted

White 2,026,185 1,988,406 1.9% 279,720 259,723 Nonwhite 2,305,905 2,248,129 ining deviation created equality is substantial. plan. multiple district 735, 745, however, case, we are confronted with (1973). plaintiffs 37 L.Ed.2d 298 Once involves an discrimination, prove facie case ex- “mathematical Greater two districts. to show to defendants the burden shifts the number of citizens actness” between unavoidable, either the deviation repre- number of their each Preisler, Kirkpatrick only two easier to attain when sentatives is (1969), or mul- than when voter districts are involved attempt justified by that the deviation Therefore, districts are involved. tiple policy. Reyn a rational state to effectuate in the Board’s 4.22% total deviation Sims, 533, 579, 84 S.Ct. olds v. de- although perhaps an insubstantial plan, case, multi-district is not viation in a *4 Supreme the Court Although case.2 minimis in this two district with a total plans approved apportionment that the Defendants contend 4.22%, White v. Re greater deviation though even constitutionally acceptable is 2332, 755, 37 412 93 gester, U.S. S.Ct. deviation is substantial the 4.22% Cummings, v. (1973); Gaffney L.Ed.2d 314 maintaining its mem- policy the Board’s of 735, 2321, 298 412 93 37 L.Ed.2d U.S. S.Ct. justifica- bership at fifteen is a sufficient Howell, 315, v. 410 93 (1973); Mahan Howell, In Mahan v. tion for the deviation. 979, (1973); Abate v. 35 L.Ed.2d 320 S.Ct. 315, 979, S.Ct. 1904, Mundt, 182, 403 U.S. 91 S.Ct. Mundt, 182, (1973), and Abate v. eases, (1971), only in two of the L.Ed.2d 399 1904, (1971), 29 L.Ed.2d 399 the Su- S.Ct. 755, 93 Regester, White v. 412 U.S. total deviations of preme approved Court (1973), Gaffney v. and 11.9%, the respectively, on 16.4% and 735, 93 Cummings, 412 U.S. justified by ground that the deviations that (1973), did the Court find integrity preserving of the the state White, minimis. In the deviation was de jurisdictional subdivisions and political of the a total deviation of 9.9% Court held that that their dual argue lines. Defendants was de representatives in the state house of historical size of preserving of the policies minimis, Gaffney, in held Court $80,400 saving taxpayers the Board that a maximum deviation of 1.81% member that each additional per year in and a deviation justifica- senate 7.83% are rational cost likewise would popu- were de min from representatives state house of a substantial deviation tions for equality. imis. In was exam- lation both cases Court producing overrepresentation finding Judge without 2. in a districts chides us dissent Grant though underrepresentation percent 4.22 a in the other deviation substantial in one and higher percentage agree minimis in intolerable. To recti- was deemed de an extent that all Constitution, Gaffney fy violation of the this conceded drop But a deviation L.Ed.2d 298 wanted to one commissioner the Board only judged large can small in relation to or wanted to add one. The and the district court correcting was a the burden of it. in solution results a substantial- district court’s equal representation. case where the ly conventional smaller deviation being dis- court was asked to create election at the cost of two commissioners’ It does so political truly Because of the salary, tricts —to draw lines. minimis relative to the which is geographical must be accom- argument factors that budget is no of the Board. There redistricting, equality in of modated having will reduce that another commissioner practical as a across districts is unattainable impair collegiality the effective or otherwise matter, that would be substan- and deviations functioning In these circum- of the Board. But tial in other contexts must be tolerated. solution the district court’s stances we think redistricting There are two this is case. one, against especially proper the back- city and the suburbs of Cook districts —the history overrepresentation ground long óf of a only many County. question is coun- how composition in residents ty shall be elected from each. commissioners Board, emphasized by district a factor all, in and this There are now 16 commissioners court. the two number cannot be allocated between It fundamental that before a federal reliance Mahan and Defendants’ however, Abate, misplaced. those modify may apportionment plan court an recognized cases the Court governmental by enacted a state or local may a substantial interest in main- have entity, showing there must be a taining slightly unequal voting districts in comport fails to constitutional provide representation order to to subdivi- principle requirements. This Howell, Mahan qua sions subdivisions. only recently confirmed 986; at U.S. at 93 S.Ct. Abate Seamon, - U.S. -, Upham Court Mundt, at S.Ct. at -, Board, however, County Cook can (1982). It was achieve goal deviating without case of this population equality simply by altering its arguments against size. appellees The defendants’ panel adequately making per- such alteration are not showing origi made facie that the budget suasive. The Board has total 9-6 composition nal enacted $1,000,000,000. almost While the Board’s (“Board”) of Commissioners Cook $160,800 taxpayers’ desire to save lauda- satisfy require failed ble, justification it is not a sufficient agree. ments. To that cannot maintaining a deviation from popula- evidence this case a consti- equality. Nor is the Board’s desire to jus- remain at fifteen members tutional is the 4.22% total violation devia- *5 especially since the Con- Illinois nothing tion. There is absolutely tification — stitution recognizes that it may be neces- suggest record to that the Board’s 1981 sary to increase the size to insure apportionment plan designed to favor population equality. 5(b) of the Section city population over the suburban. The 1970 Illinois Constitution Transition Sched- here really issue comes to the ques- down ule provides that “the number of members tion as to whether the deviation is of of the Cook County Board shall be fifteen to size as fail to pass constitution- except the county that board may increase al muster. majority As the makes necessary if number to with comply clear, abundantly no single percentage fig- requirements.” The district has ure been established as a concrete stan- finding court did not err in that the Board’s applicable in all apportionment plan dard At unconstitutionally cases. 487. Vio- diluted Cook suburban citizens’ vot- lations of the Fourteenth Amendment do ing rights. hinge not purely percentages. numerical Each case must “on partic- be examined district court ordered the to increase from fifteen to seventeen members Reynolds ular circumstances case.” and thereby decrease the total deviation Sims, from 4.22% 1.86%. “We disap [will] prove a court-imposed minor from variation disagree I the majority with that a prescribed State’s figure when that deviation in case was not minimis. I change is shown to be necessary to meet interpret reasoning their to be that wherev- requirements.” constitutional Sixty-Sev er a deviation be by can reduced modifying enth Beens, Minnesota State Senate plan, a 187, 199, facie 1477, 1485, S.Ct. 1 (1972) (per curiam). showing of a judgment constitutional violation district court is requiring been made the intervention of the authority court. know no for such a

AFFIRMED. proposition. broad equality, Mathematical GRANT, Judge, Senior District dissent- while certainly desirable ultimate ing. objective, required. is not absolutely See 735, 745, I am unable with agree opinion for the following reasons. 2321, 2327, (1973) (“We S.Ct. - U.S. - -, 1518-21, re- Amendment doubt that the Fourteenth Gaffney, And in Court L.Ed.2d 725. repeated displacement otherwise quires stated: decision-making in the appropriate as a federal compelled, Was the Master minor deviations essentially

name of matter, with a up to come equality that no perfect census-population with smaller variations than confidence, one, say deprive can will plans? And what appellees’ contained representa- any person of fair and effective plan if a happen is to to the Master’s 749, 93 legislature.” tion in his state Id. at resourceful mind hits a better 2329). by ease which a at The relative per- a fraction of a Master’s deviation can reduced must be balanced be point? like this centage Involvements federal of re- against important point, point must end at some but specting the Board’s reasonable constantly litigate recedes if those who effective size and proper as to the and most margin- only produce need The district court make-up body. of its against when ally “better” measured simply allowed to substitute cannot be unyielding population-equality rigid for those of apportionment preferences own standard. Upham, the Board. Court is, point that such involvements emphasized this consideration recently begin. repeatedly never We have should White following passage quoting recognized that state Weiser, legislatures local or of those the task of (1973): government selected to organs recognized “From the we have beginning, perform it. Their work should not mat- primarily ‘reapportionment Equal Protection invalidated under and de- legislative ter for consideration varia- Clause when minor termination, judicial and that relief be- among proved. are tions districts appropriate only legisla- comes when 750-51, (empha- at 93 S.Ct. at reapportion according ture fails to to fed- added). sis *6 timely in a requisites eral constitutional has failed to majority my In op- having adequate fashion after had critical factor. In- adequately weigh this have adhered to portunity to do so.’ We stead, ability to reduce the devia- only the ‘pri- legislatures the view that state view that is not my In tion is examined. reap- mary jurisdiction’ legislative over give ade- This decision fails enough. portionment . . . Just as a federal district good and to the reasoned quate deference court, legislative reap- in the context of represents of the Board and faith portionment, policies should follow the unnecessary meddling by unjustified and State, preferences as ex- gov- affairs of a local federal court in the pressed and constitutional body. While the district ernmental change provisions or consider minor, I it as view plans legislature, composition the state Board proposed by govern- local significant upon intrusion whenever adherence does to state operations. mental requirements detract Constitution, hold that a dis- Federal we briefly noted. point One should be other similarly trict court should honor reasoning, ques- majority’s Under policies congressional in the context of stop at a 10-7 why tion must be asked fashioning reap- reapportionment. If the Board with a 1.86%deviation. choosing among portionment plan 11-8, would the deviation were increased to pre-empt majority’s court should not plans, district to zero. Under be reduced why such action ‘intrude there is no reason legislative position, task nor ” not now be taken.1 necessary.’ should policy any more support justification rejection of the 15 disagree majority’s a sufficient 1. with the as also members the Board’s desire to remain at fifteen reasons, For these I would find devia- must, therefore, minimis to be de

respectfully dissent. SUR, by

Matthew friends, his next

Robert Sur, Sur and Carol

Plaintiffs-Appellants,

GLIDDEN-DURKEE, A DIVISION OF S.

C. CORPORATION, M. and the Pruden

tial Company Insurance America, De fendants-Appellees.

No. 81-2029.

United States Court of Appeals,

Seventh Circuit.

Argued March 1982.

Decided June Banc Rehearing En

Rehearing 15, 1982. Oct.

Denied *7 any legislative provides member Board. The size of number of Schedule that “the mem- body important efficiency except. (emphasis is an element . shall bers .. be fifteen ...” operations added). change effectiveness The district court and possesses every right effectively any as a to use it cen- it to read “at number but no tral plan. change element in its Section less than fifteen.” This is a serious 5(b) of provision’s purpose. the 1970 Illinois Constitution Transition abuse