Chester J. RYBICKI, et al., Plaintiffs, v. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants. Miguel DelVALLE, et al., Plaintiffs, v. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants. Bruce CROSBY, et al., Plaintiffs, v. The STATE BOARD OF ELECTIONS OF the STATE OF ILLINOIS, et al., Defendants.
Nos. 81 C 6030, 81 C 6052 and 81 C 6093
United States District Court, N.D. Illinois, E.D.
Jan. 12, 1982
Virginia Martinez, Raymond G. Romero, Mexican American Legal Defense and Educational Fund, Chicago, Ill., Lizette A. Cantres, for plaintiffs in No. 81 C 6052.
Carol Moseley Braun, Thomas P. Sullivan, John A. Rupp, Jenner & Block, Richard H. Newhouse, Jr., Chicago, Ill., for plaintiffs in No. 81 C 6093.
Jeffrey D. Colman, Jenner & Block, Chicago, Ill., for plaintiffs in Nos. 81 C 6030, 81 C 6093.
Chicago Urban League, Frank L. Bixby and Joan Perry Protess, Sybille C. Fritzsche, Chicago, Ill., amicus curiae in No. 81 C 6030.
Lawrence T. Krulewich, Cook County Asst. State‘s Atty., Chicago, Ill., for intervenor-defendant Kusper.
Arthur C. Thorpe, Klein, Thorpe & Jenkins, Ltd., Chicago, Ill., for Village of Oak Park.
William J. Harte, Ltd., Jeffrey B. Whitt, Joseph N. Casciato, William J. Harte, Chicago, Ill., for John L. Lanigan, Michael J. Hamblet, The Legislative Redistricting Com‘n, James Philip, Michael McClain, Arthur Telcser, Martin Murphy, James Donnewald, James Skelton and Robert Casey.
Tyrone C. Fahner, Atty. Gen. of Illinois, Paul P. Biebel, Jr., Asst. Atty. Gen., Chicago, Ill., for Michael J. Hamblet, James Philip, Michael McClain, Arthur Telcser and Martin Murphy.
John R. Keith, Springfield, Ill., for John L. Lanigan, Michael J. Hamblet, Teresa M. Petrone, The Legislative Redistricting Com‘n, James Donnewald, James Philip, Arthur Telcser, Martin Murphy, Michael McClain, James Skelton, Robert Casey and Samuel Shapiro.
John L. Swartz, Springfield, Ill., for The Legislative Redistricting Com‘n, James Donnewald, Michael McClain, Martin Murphy, James Philip, Arthur Telcser, James Skelton, Robert Casey and Samuel Shapiro.
MEMORANDUM OPINION
Before CUDAHY, Circuit Judge, and GRADY and BUA, District Judges.
RYBICKI I
CUDAHY, Circuit Judge.
In these consolidated reapportionment cases, three groups of plaintiffs challenge the validity, under the federal and Illinois constitutions and related law, of Illinois’ 1981 state legislative redistricting plan (the “Commission Plan“). For the reasons set forth in this opinion, we reject the Rybicki plaintiffs’ allegations, on behalf of Republican and suburban interests, of noncompactness, partisan unfairness and impermissible fracturing of counties (and other political subdivisions) and suburban communities. We accept, in part, the Crosby plaintiffs’ claim, on behalf of black voters, that the Commission Plan unconstitutionally dilutes black voting strength. As a remedy for this unconstitutional dilution of the black vote, we adopt certain modifications to the Commission Plan, identified as Court Exhibits 1A, 2A, 7D and 7E (and related documents). We also approve as fair, adequate and reasonable a Settlement Agreement reached between the DelValle plaintiffs, on behalf of Hispanic voters, and the Commission defendants, and therefore approve certain further modifications to the Commission Plan, as stipulated in the Settlement Agreement.
Background
Three groups of plaintiffs in these consolidated cases challenge the redistricting plan adopted by the Illinois Legislative Redistricting Commission (the “Commission“) for the election of candidates to the Illinois General Assembly.1 Plaintiffs in Rybicki v. State Board of Elections, No. 81 C 6030, allege that the Commission Plan fails to accord suburban voters equal protection of the laws by disproportionately concentrating voting power, and therefore legislative representation, in the City of Chicago. They also allege that the plan is politically unfair, contains numerous non-compact districts and indiscriminately fractures political subdivisions. Plaintiffs in Crosby v. State Board of Elections, No. 81 C 6093, allege that the Commission Plan intentionally discriminates against black voters by diluting their voting strength and providing white voters a disproportionate opportunity to elect candidates of their choice. Plaintiffs in DelValle v. State Board of Elections, No. 81 C 6052, allege that the Commission‘s redistricting effort similarly dilutes the voting power of Hispanics, thereby depriving them of a reasonable opportunity to elect representatives of their choice. All three complaints charge that the Plan violates the Fourteenth and Fifteenth Amendments to the United States Constitution,
Defendants in all three cases are James Edgar, the Secretary of State of Illinois, who is charged under
On November 2, 1981, a three-judge court was convened pursuant to
I. Facts
A. Procedural Background of the 1981 Legislature Redistricting in Illinois
In view of the importance of legislative history to proof of a claim of intentional discrimination,5 we set forth in some detail the background evidence of the redistricting efforts of both the legislature and the Commission.6 During the first few months of 1981, the results of the federal census were delivered to ranking Illinois legislative and executive officials.7 Figures in hand, the leaders of both parties immediately engaged the services of consultants to aid in both the development and political analysis of the possible redistricting plans. The political data utilized by both parties included voting results and patterns at the census tract level for a variety of legislative and state-wide races run from 1978 through 1980.
In the course of their preparations, the Democratic staff, under the direction of House Minority Leader Michael Madigan, solicited the views of all Democratic legislators. A number of black legislators told Madigan that blacks were underrepresented both in the legislature as a whole and in the party caucuses. A House Select Committee on Reapportionment also conducted public hearings to solicit the views of citizens in general. The Committee was advised at these hearings in Chicago of the desire of the black community for greater representation in the legislature.
By May, 1981, Republican legislators had created a plan which they introduced in the Illinois House. The Democrats had also succeeded in developing a plan which they submitted to the state Senate.8 A major impediment to passage of both plans, however, was Madigan‘s fear that Governor Thompson, a Republican, would exercise his amendatory veto with respect to any plan presented to him. Consequently, neither plan passed and, in July, the Legislative Redistricting Commission was formed.9
Before making his appointments, Madigan circulated among House Democrats a form requesting that they submit their recommendations for potential Commission appointees. Madigan stated that he had committed himself to the appointment of one member from a racial or ethnic minority. Although most of the black legislators recommended the appointment of Rep. Emil Jones, currently an Assistant Minority Leader, Madigan followed the advice of other black legislators, two of whom are plaintiffs in this case, and appointed a former State Representative and black community leader, Corneal A. Davis. Apart from Davis, there was no black or Hispanic representation on the Commission or on its staff.
The Democratic and Republican Commission members and their staffs worked separately and developed their own proposals. On the Democratic side, Madigan10 and Martin Murphy (who is the Commissioner of Planning for the City of Chicago), worked on the Chicago and Cook County portions of their redistricting plan. Rep. Michael McClain, a Madigan appointee,
The Democratic Map11 for Chicago and Cook County, which is the prototype for the map of those areas ultimately adopted by the Commission, was drawn according to a systematic procedure. The drafters began with the districts as they appeared in the 1971 redistricting map.12 They intended to enlarge those districts that had lost population and shrink those that had gained. Throughout the process, Madigan solicited the views of all legislators, including black legislators, concerning various aspects of the map. The map was completed in rough form by the end of June. Although Madigan testified that he made no attempt to hide the Cook County map from various black legislators and community leaders and Hispanics, only Commissioner Davis had the opportunity to study the entire Chicago and Cook County portions of the map at this stage or at any time prior to its adoption as the Commission Plan on October 2, 1981.13
Notwithstanding the fact that the Democrats had completed drafting the major portions of their map, the Commission held public hearings in Chicago on July 23, 1981, to obtain public suggestions for redistricting. A number of witnesses, including representatives of the black and Hispanic communities, presented their views on redistricting at these hearings. Several black witnesses testified that in the past blacks had fared poorly in the redistricting process; that percentage-wise the black population had increased in relation to the white population in Chicago between 1970 and 1980; and that any redistricting should accord blacks greater representation. The Hispanics pointed out that they had no representation in the General Assembly and urgently requested an opportunity to secure such representation. See Plaintiffs’ Ex. 52.14
Among the other witnesses who testified at the hearings were representatives of the villages of Oak Park and Evanston, as well as the Chicago neighborhood of Hyde Park. These communities, which had been fractured by prior redistricting, all requested that each be included in only one district. Although the protestations of black witnesses produced no changes in the draft plan, the drafters did revise the plan to accommodate the desires of these three geographical communities.
Unfortunately, the work of the eight-member Commission was doomed to failure from the start since neither side was willing seriously to negotiate with the other over various aspects of their respective
Pursuant to the constitutional procedure (of drawing by lot), former Governor Samuel Shapiro, a Democrat, was then selected to become the ninth member of the Commission on September 2, 1981. Governor Shapiro unsuccessfully urged a compromise between the Republican and Democratic Commission members before he ultimately acceded to the Democratic proposal.15 On October 2 the Commission met to vote on what had then become known as the “Shapiro Plan.”16 The Republican Commissioners, now comprising an unenviable minority of four, criticized the plan as being unduly partisan and having a discriminatory impact on minorities in Chicago. Plaintiffs’ Ex. 39 at 39-42. The Shapiro Plan was adopted by a vote of five to four, and it was officially filed with the Illinois Secretary of State on October 5, 1981.
B. General Considerations
We briefly describe the more salient features of the Commission Plan, together with an overview of the demographics of the State of Illinois before turning in detail to the evidence presented by the challengers and defenders of the Plan at trial. With respect to general characteristics, the Plan divides the State into 59 Senate districts, each of which is in turn divided geographically into two House districts.17 The ideal population for each Senate district is 193,533. The total deviation of the Senate districts in the Commission Plan from this ideal is 1.59%, with an average deviation of .29%. The ideal population for each of the 118 House districts is 96,767. The total deviation from this ideal is 1.97%, with an average deviation of .42%.18
Chicago and Cook County constitute, of course, the largest urban and suburban center in Illinois. The collar counties are generally characterized as suburban and the downstate counties as rural. The tripartite (or quadrapartite) division of the state also generally correlates with political affiliation: Chicago is heavily Democratic while suburban Cook and the collar counties are predominantly Republican, as are many of the downstate counties.
Of the 5,253,190 residents of Cook County, 1,308,763 are black (24.9%). Approximately 84% of the Cook County black population resides in Chicago, where the blacks comprise nearly 40% of the city‘s total population. The black population of Chicago is concentrated in two areas. The largest concentration is found in the South and Southeastern portions of Chicago, extending roughly from the city-center “Loop” area to Chicago‘s southernmost boundary. This area is, for the most part, over 85% black and it contains 792,000, or 66.2%, of the city‘s blacks. The area in question is commonly referred to as the South Side and is so denominated in this opinion. A smaller concentration of blacks exists in the West Central portion of Chicago, centered in the Austin neighborhood. It too is over 85% black and contains approximately 300,000 blacks or 23% of Chicago‘s black population. This area has been frequently denominated the West Side in this litigation and is referred to as such in this opinion. Blacks also constitute a significant percentage of the population in and around the southern suburban municipalities of Harvey, Robbins and Markham. The concentration of blacks in this area of Cook County is not as high as on the South and West Sides, but it ranges from 35% to over 85%. The total black population in this area—46,000—is also relatively small. This southern area where blacks are concentrated has been denominated the South Suburban area.
A substantial Hispanic19 population also resides in Illinois. The majority of Hispanics live in Chicago, where they number 422,061, or approximately 14% of the city‘s population. In general, the Hispanic population is not as highly concentrated as the black population. The Hispanic population is more dispersed than the black population, with Hispanics residing in various areas throughout Chicago. Notwithstanding this general dispersal, at least two major Hispanic aggregations are easily identified in Chicago, one on the Northwest Side and the other on the Southwest Side.
C. Evidence Adduced at Trial
1. The Rybicki Plaintiffs
The Rybicki plaintiffs submitted various testimonial and documentary evidence to support their claims of suburban vote dilution, lack of compactness of certain districts, excessive fracturing of political subdivisions and political unfairness.
Suburban Vote Dilution. The Rybicki plaintiffs argued that, based on changes in
Under the 1971 redistricting plan, Chicago voters constituted part of the population in 20 Senate districts. Defendants’ Ex. 12. Plaintiffs argue that in proportion to the City‘s 1980 population, the voters of Chicago should control or constitute a majority in 31 House districts and only 15.5 Senate districts. However, under the Commission Plan, Chicago voters “control” 35 House districts and 17 Senate districts.21
Plaintiffs similarly observe that the number of districts controlled by collar county voters has not increased between 1970 and 1980, despite the population shifts from Chicago and Cook County to the collar counties evident in the 1980 census. Under the 1971 plan there were six Senate districts (then referred to as “Legislative” districts) entirely within the collar counties and five that overlapped into adjacent counties. Under the Commission plan, there are still six Senate districts wholly within the collar counties, but the number of overlap districts has increased to nine.22
Compactness. The Rybicki plaintiffs allege that 15 House districts and 2 Senate districts are not compact.23 The noncompactness of these districts is evident, according to plaintiffs, both under a visual analysis and as demonstrated by mathematical standards. In Schrage v. State Board of Elections, 88 Ill.2d 87, 58 Ill.Dec. 451, 430 N.E.2d 483 (1981), the Illinois Supreme Court invalidated former Commission House District 89, which extended 125 miles at its longest point and six miles at its narrowest, a length to width ratio of roughly 21:1. By comparison, Commission Senate District 19, the most egregious district on plaintiffs’ list, extends 36 miles at its longest point and is two miles wide at its narrowest, a ratio of 18:1.24
Defendants sought to minimize the significance of plaintiffs’ compactness complaints by introducing examples of oddly shaped districts from the court-approved 1971 redistricting effort. See Defendants’ Exs. 61 and 62. Moreover, the Commission‘s expert witness, Mr. Brace, testified that the irregular shapes appearing in the Commission Plan were necessitated in some circumstances to comply with the low (1%) population deviation standard employed as a goal by the Commission. Mr. Brace also stated that the desire to achieve some other redistricting goals, such as respect for the integrity of political subdivisions, communities of interest or natural boundaries contributed to the irregularly shaped districts. Plaintiffs attempted to
Political Fairness. The Rybicki plaintiffs also assert that the presence of noncompact districts is evidence of the Commission‘s intent to preserve a disproportionate number of Democratic incumbents. Moreover, plaintiffs allege that the extensive use of “overlap” districts designed to maintain the power of Chicago (and hence, the Democratic Party) by fracturing suburban areas, demonstrates the political unfairness of the Commission Plan. Defendants vigorously deny that the Commission Plan is politically unfair. Evidence submitted by the defendants indicated that historically, Illinois has been a “swing state” which elects Democrats and Republicans in equal numbers to legislative and executive offices. See Defendants’ Exs. 23 and 24. In this connection, defendants analyzed the political effects of their map by examining past voting patterns for each census tract in every district.28 On the basis of this analysis, defendants concluded that the Commission Plan would produce in the House 39 “firm” and 5 “soft” Democratic districts; 41 “firm” and 10 “soft” Republican districts; and 23 “swing” districts. In the Senate, it would produce 21 “firm” and no “soft” Democratic districts; 25 “firm” and 3 “soft” Republican districts; and 10 “swing” districts. Defendants observed that this alignment slightly favors the Republicans.29
Fractured Counties. The Rybicki plaintiffs also introduced evidence demonstrating that the Commission Plan indiscriminately fractures political subdivisions. Representative Lee Daniels of DuPage County testified at length that fracturing can produce undesirable political consequences, particularly when a legislator is charged with representing areas that have divergent political interests. Representative Daniels pointed out that, even though Cook County and the collar counties have seemingly antagonistic interests on issues of transportation, taxation and education, nine Senate districts overlap between these two areas.
Witnesses for the Commission agreed that the fracturing of political subdivisions
Focusing more closely on the Chicago metropolitan area, we note that in the 1971 plan, eleven Senate districts were entirely within Chicago while nine overlapped into Cook County.30 Two districts overlapped from Cook County into the collar counties. See Defendants’ Exs. 9, 10. Under the Commission Plan, eight Senate districts are wholly within Chicago, eleven overlap into Cook County and seven overlap from Cook County into the collar region.31
The alleged political result of overlapping districts in the metropolitan Chicago area is that a disproportionate number of seats are “controlled” by Chicago and Cook County voters. Defendant Commission members admitted at trial and in their depositions that they intended to achieve this result of widening the influence of Chicago voters.32 Defendants suggest that, in the absence of overlapping districts in the Chicago and Cook County area, a redistricting plan grossly favors the Republican Party.
2. Crosby Plaintiffs
The Crosby plaintiffs introduced several types of evidence attempting to establish that the Commission Plan was the product of purposeful discrimination to dilute black voting strength and to unconstitutionally gerrymander districts in black population areas. Their proof may be categorized as evidence of (1) retrogression; (2) “packing” and “fracturing” of the black population; (3) movements of large racial populations in certain areas to preserve the incumbencies of white legislators; (4) “admissions” of certain Commission members; and (5) prior instances of discrimination allegedly practiced by the regular Democratic Party organization in Chicago.
Retrogression. The evidence showed that while the black population increased, both absolutely and especially in relation to the white population in Chicago and Cook County between 1970 and 1980,33 the number of districts where black voters had a “meaningful” opportunity to elect a candidate of their choice did not increase appropriately. At the time of the 1971 redistricting, blacks constituted a majority in five Chicago Senate districts (21, 22, 24, 26 and 29). When the 1980 census figures are applied to the 1971 lines, blacks constitute a majority in six Senate districts (the former five districts plus district 28). Under the Commission Plan, blacks will constitute
By contrast, white representation in districts where Chicago voters constitute at least part of the population has not diminished significantly. Under the 1971 district lines as applied to the 1980 census figures for districts wholly or partially located within Chicago, whites constitute a majority in 14 of the 19 Senate districts34 even though they account for only 45.5% of the population in those districts.35 The Commission Plan, under the 1980 census figures, results in whites being in the majority in 14 of 1936 Senate districts wholly or partially located in Chicago. Although the white population of the City of Chicago has declined, the Commission Plan, which employs several more overlap districts than the 1971 plan, actually increased to 51.1% the white population in these Chicago-area districts, thus explaining, in part at least, why 14 of 19 districts are still populated by a majority of whites.
Packing and Fracturing. Packing and fracturing are the terms used by plaintiffs in this lawsuit to describe two somewhat different means of reducing the voting strength of a geographically unified minority group. Packing occurs when a minority group is concentrated into one or more districts so that it constitutes an overwhelming majority in those districts (and part of its vote is “wasted“). Fracturing occurs when a geographically unified minority group is unnecessarily split among a number of districts.
All five of the majority black Senate districts located in Chicago under the Commission Plan have black concentrations in excess of 80% of the total district population.37 The black population is also highly concentrated in the 12 Chicago House districts in which blacks constitute a majority although black percentages in these districts are generally not as high as in the majority black Senate districts.38
Plaintiffs also contend that the packing on the West and, in particular, on the South Side of Chicago was greatly furthered by drawing district lines which correspond to the racially segregated housing patterns evident in these areas. This South Side “wall,” as plaintiffs refer to it, runs, for example, along the westernmost boundary of Commission House Districts 23 (94.33%
Both fracturing and packing are allegedly evident in the voting districts on the West Side. Of the 300,000 blacks who reside on the West Side, approximately 160,000 reside in Commission House Districts 17 and 18, both of which are over 80% black. The rest of the black population is distributed among Commission House Districts 11, 19 and 20, which have black populations of 48%, 72% and 18%, respectively.39 Defendants, of course, presented various reasons not related to packing and fracturing for the existence of district lines tracing racial boundaries on the South and West Sides, which will be discussed infra.
During the course of this litigation, the Crosby plaintiffs presented several alternative plans that they claim would more fairly and equitably promote the interests of black voters in Chicago. The Coalition Plan, which was offered as a completely packaged alternative to the Commission Plan, contains districts which incorporate more white areas into black-controlled districts, thereby enhancing black voting strength. By creating districts which overlap from black areas into neighboring white areas the Coalition Plan produces five Senate districts on the South Side with black populations ranging from 70% to 85%. (There are four majority black Senate districts on the South Side under the Commission Plan.) The Coalition Plan would also avoid alleged packing and fracturing of the black population on Chicago‘s West Side, by creating two black Senate districts (with black populations of 66% and 84%) and four black House districts (with black populations of 65%, 67%, 72% and 96%). (There is one black Senate district and three black House districts in this area under the Commission Plan.)
After trial was completed, another plan, denominated the “Crosby Plan,” was presented to the court as an offer of proof. This plan reconfigures most of the Commission Senate and House districts located within Chicago and Cook County by allegedly reducing the coincidence of racial and electoral boundaries and increasing the number of districts in which blacks constitute a majority of the population.
Movements of Racial Populations To Preserve White Incumbencies. Plaintiffs presented evidence of racial population shifts in several districts, allegedly motivated by the desire to preserve the incumbencies of various white legislators or potential white candidates on both the South and West Sides. These districts included Commission Senate District 14, where incumbent Senator Jeremiah Joyce resides, Commission Senate District 18, where incumbent Senator Glenn Dawson resides, and various West Side districts, particularly Commission Senate District 8, home of Senator Philip Rock and Commission House District 15, which is part of Senate District 8. A detailed analysis of these population movements, which we regard as very significant, is included in Section III infra.
Alleged Admissions of Defendants. The drafters of the Commission Plan acknowledged that, at the time they drew the Map, they were aware of the relationship between legislative districts and racial demographics in the City of Chicago. Throughout the line drawing process, the drafters possessed color coded maps reflecting the location and the degree of concentration of blacks and Hispanics in metropolitan Chicago. Extensive population statistics reflecting the percentages of minority groups as well as statistics showing their population growth between 1970 and
Representative Madigan who, together with Commissioner Murphy, drew the Chicago portion of the plan, stated that he studied the maps and that he was aware of the percentages of blacks placed in each district.40 Representative Madigan and Commissioner Murphy also testified that racial factors, including the existence of racial feeling antagonistic to blacks in some South and Southwest Side white communities, were taken into account in drawing the district boundaries. See Tr. at 1432 (remarks of Rep. Madigan); 1838-39 (remarks of Comm‘r Murphy). Neither Madigan nor Murphy indicated, however, that any district lines were drawn for the purpose of diluting black voting strength.
History of Civil Rights Violations in Chicago. To strengthen the inference of intentional discrimination against blacks, the Crosby plaintiffs introduced evidence of past racial discrimination by the City of Chicago and, allegedly, by the City‘s regular Democratic organization. In particular, plaintiffs pointed to several lawsuits involving the Chicago Police41 and Fire Departments,42 the Chicago Housing Authority,43 and the Board of Education44 in which the city defendants were either found to have discriminated against blacks or entered into consent decrees which recognized the existence of racial bias within the agency. Plaintiffs noted that the heads of all three city agencies are appointed by the Mayor (inevitably a Democrat). Plaintiffs also introduced evidence of the new Chicago ward map, which they asserted to be biased, and which furnished a guide in some instances for the challenged legislative redistricting.
Interests of Blacks and Hispanics. Defendants introduced evidence indicating that the Democratic Party has strongly espoused the cause of blacks in Illinois. They noted that the Democratic Party has sponsored and passed civil rights legislation, social welfare legislation and legislation providing for bilingual education—all matters of special concern to blacks and Hispanics. Blacks in Illinois are overwhelmingly Democratic.
3. DelValle Plaintiffs
The DelValle plaintiffs alleged that the Commission Plan intentionally dilutes Hispanic voting strength by fracturing the two largest Hispanic concentrations in Chicago among several House and Senate districts. The evidence presented at trial revealed that Representative Madigan and Commissioner Murphy were aware of the dilutive impact of the relevant districts on the Hispanic community. The Commission witnesses justified their choice of district lines by arguing that the Commission Plan accommodated projected migration patterns of Chicago Hispanics and, thus, that the challenged districts will eventually maximize Hispanic voting strength. As a result of directions from the court to the Commission and negotiations between the Hispanic plaintiffs and the Commission defendants, a Settlement was reached between these parties on January 7, 1982. The Hispanic plaintiffs believe that this Settlement Agreement provides Hispanics residing in both the Pilsen—Little Village (Mexican-American) area and the Humboldt Park—West Town (Puerto Rican) area a fair and reasonable (and, in fact, the best achieva
II. Complaint of the Rybicki Plaintiffs: Compactness, City-Suburban Overlap, and Political Fairness
The Rybicki plaintiffs allege that the Commission Plan unconstitutionally discriminates against suburban voters in the Chicago area, that the Plan contains noncompact districts, that political subdivisions are unnecessarily fractured and that the Plan is not politically fair.46 We first consider the claims of noncompactness under Illinois law before considering the claims of discrimination against suburban voters and political fairness under the appropriate federal constitutional standards. We also consider fracturing of political subdivisions under the appropriate law.
A. Compactness
It is possible to establish a mathematically precise standard of compactness.... However, we find it unnecessary to adopt such a procedure in this case. Rather, we can rely on a visual examination of the questioned district as other courts have done....
A visual examination of Representative District 89 reveals a tortured, extremely elongated form which is not compact in any sense.... Nor were the plaintiffs able to advance any reason which might possibly justify such a radical departure from the constitutional requirement of compactness in this case.
Schrage, 88 Ill.2d at 98, 58 Ill.Dec. 451, 430 N.E.2d 483.
Plaintiffs have directed our attention to numerous districts which allegedly lack
We have examined the districts described by plaintiffs as noncompact and conclude that under the principles articulated in Schrage, none of the districts in the Commission Plan reveal “a tortured, extremely elongated [or other] form which is not compact in any sense.” Schrage, 88 Ill.2d at 98, 58 Ill.Dec. 451, 430 N.E.2d 483. In reaching this conclusion, we are, of course, mindful that the compactness standard is recognized by Illinois as a means to “improv[e] legislative representation through seeking to insure that districts are not gerrymandered,” 6 Record of Proceedings, Sixth Illinois Constitutional Convention 1353 (1972) (Report of the Legislative Comm.). Consistent with this goal, the Illinois Supreme Court reemphasized in Schrage that the constitutional compactness standard cannot be ignored. Schrage, at 96, 58 Ill.Dec. 451, 430 N.E.2d 483. We clearly recognize the importance of the compactness standard not only because Illinois law and its interpretation by Illinois courts is controlling on this issue but also because we agree with the underlying policies and ideals on which Schrage is based. Nevertheless, we are aware of the various difficulties involved in drawing legislative districts and the constraints imposed by the one-person, one-vote standard, the imperatives of census tract data, the desire to follow natural, ecological and political boundaries, and the competing demands of incumbents, voters and the courts.
Bearing in mind these considerations, we note that no other districts in the Commission Plan are as relatively noncompact as Commission House Districts 89 and 90 (before their modification by the Illinois Supreme Court in Schrage).51 Indeed, although plaintiffs identified many districts in the Commission Plan as noncompact, a quick perusal of the plaintiffs’ alternative Coalition Plan reveals that it contains districts also comparatively lacking in strict compactness. This comparison with the Coalition Plan is significant because it reveals the problems with compactness which pervade many approaches to similar redistricting problems. Thus, we decline to invalidate the Commission Plan, or any of its individual districts, as lacking in compactness in the sense required by the Illinois Constitution.
B. Fracturing Political Subdivision Boundaries, Overlap Between Urban and Suburban Districts and Suburban Vote Dilution
Plaintiffs contend that the Commission Plan unduly fractures or splits political
Although they do not deny that their plan in fact fractures many political subdivisions, several Commission members testified that two of their guiding criteria in designing districts were to minimize the number of fractures and to maintain communities of interest. Defendants argue that the Commission Plan does not unduly violate these redistricting criteria. Defendants also concede that they intentionally created districts that overlap between Chicago and surrounding areas in Cook County and between Cook County and the collar counties. The bulk of the overlap districts between Chicago and its suburbs were created, according to the Commission members, by generally following the district lines from the 1971 districting plan, with adjustments where necessary to add or subtract population to meet the population equality standard. Moreover, defendants concede that a major motivating factor for creating overlap districts was to enhance and maximize the influence of Chicago, its voters and the Democratic party in the General Assembly. We address first the question of alleged indiscriminate fracturing of political subdivision boundaries before considering the claim of suburban vote dilution under the Fourteenth Amendment.
Plaintiffs argue that the “overlap” district lines, as well as other district lines which indiscriminately fracture municipal, township and county boundaries, impermissibly split recognized communities of interest by indiscriminately fracturing political subdivision boundaries. As evidence of this, plaintiffs point to various examples of alleged divergence of interest between the residents of Chicago and suburbanites, or between residents of one county (particularly Cook County) or of a group of counties and residents of neighboring counties.55 Although this argument has some
The Rybicki plaintiffs also allege that the Commission Plan‘s overlapping Chicago/suburban districts impermissibly dilute the votes of suburban residents. These overlap districts were carefully designed, plaintiffs contend, so that most of them contain a majority of Chicago residents.60 The voting strength of the suburban residents of these districts is allegedly diluted because the districts are controlled by the majority Chicago voters and their political organizations.61
Although this argument has appeal, we reject it for two reasons—one grounded in policy, the other in the Constitution. The Rybicki plaintiffs’ argument can be reduced to the simple proposition that the Commission intentionally failed to increase the number of “suburban” districts62 even though Chicago lost population and the suburbs gained population during the 1970‘s. The Coalition Plan espoused by the Rybicki plaintiffs would cure this alleged infirmity by reducing the number of overlap districts, thereby increasing the number of districts located wholly outside Chicago. This shift would reduce the number of districts “controlled” by Chicago voters. Of course, at the heart of the Rybicki plaintiffs’ claim seems to be the concept that Chicago voters are the highly disciplined “agents” of that city‘s political interests (including the interests of its dominant political organizations)—and that these interests are in major part inimical to the interests of suburban voters. We think there may be some reality to this concept although the record is quite uninformative on the subject in general. We also believe that the concept may exaggerate the submissiveness of Chicago voters and the gross antagonism of City and suburban interests. It is not disputed that, on some questions, some residents of Chicago may support positions strongly in conflict with those supported by their suburban counterparts. But to extrapolate from this modest assumption to a rule that Chicago residents must be excluded from any district including suburban residents is unsupported either by logic or by the record before us. The extreme parochialism in legislative districting seemingly espoused by the Rybicki plaintiffs is not required by law and has some tendency to derogate the intelligence and independence of the average modern voter. We think this approach may be somewhat more reflective of traditionally hallowed concepts than of current reality.
Our conclusion is not at odds with the Constitution. The Rybicki plaintiffs argue that any dilution of the votes of suburban residents by their inclusion in a Chicago majority district violates the Equal Protection Clause of the Fourteenth Amendment. Although acknowledging that no clearly apposite Supreme Court (or even lower court) precedent directly supports this assertion, the plaintiffs argue that the Court has recognized that, in addition to racial or ethnic minorities, political groups of any nature may also assert a claim of unconstitu
The District Court‘s holding, although on the facts of this case limited to guaranteeing one racial group representation, is not easily contained. It is expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single-member district. This approach would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a one-sided multi-member district vote. There are also union oriented workers, the university community, religious or ethnic groups occupying identifiable areas of our heterogeneous cities and urban areas.
403 U.S. at 156, 91 S.Ct. at 1875-76 (footnotes omitted). Accord, City of Mobile v. Bolden, 446 U.S. 55, 78 n. 26, 100 S.Ct. 1490, 1506 n. 26, 64 L.Ed.2d 47 (1980). See also Cousins v. City Council of Chicago, 466 F.2d 830, 844-45 (7th Cir.), cert. denied, 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 181 (1972); Graves v. Barnes, 343 F.Supp. 704, 733-34 (W.D.Tex.1972), aff‘d in part and rev‘d in part sub nom. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).
C. Political Fairness
A great deal of testimony was introduced at trial about the “political fairness” of the Commission Plan (and the Coalition Plan as well). The Rybicki plaintiffs argue that “[u]nder the guise of political fairness, the Democratic Commission members have drawn a map which sacrifices compactness and the integrity of political subdivisions for the preservation of incumbency.” Rybicki Post Trial Brief at 26. We have already concluded that the Commission Plan neither lacks compactness nor impermissibly ignores the integrity of political subdivisions. We now conclude that what the Rybicki plaintiffs call the Commission‘s “overt political gerrymandering,” Rybicki Post Trial Brief at 27, similarly does not require us to invalidate the Commission Plan.
Plaintiffs’ political fairness argument is premised upon the assertion that the Commission members, although claiming to have created a districting plan that fairly represents the balance between Republican and Democratic political strength in Illinois, purposefully designed districts that maximized Democratic voting strength while minimizing and fracturing Republican voting power. Plaintiffs also assert that the Commission purposefully “gerrymandered” districts “to enhance the ability of Democratic incumbents . . . to get re-elected.” Rybicki Post Trial Brief at 27.
Aside from the questions of detailed techniques, such as the alleged creation of noncompact districts and the dilution of the suburban vote (which we have discussed, supra), plaintiffs apparently assert the broader proposition that the end-result of these efforts—an overall bias toward a Democratic legislature—is constitutionally impermissible. We note, however, that the Rybicki plaintiffs never presented evidence of what result in detail they expected from the Commission Map. The Commission, on the other hand, did adduce such evidence.
We believe that plaintiffs’ argument with respect to the fairness of political result misconstrues the Supreme Court‘s decision in Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). In Gaffney, a state redistricting plan was consciously designed, in “the spirit of ‘political fairness,‘” to “achieve a rough approximation of the statewide political strengths of the Democratic and Republican Parties.” 412 U.S. at 752, 93 S.Ct. at 2331. The challengers in Gaffney contended, however, that the plan was “nothing less than a gigantic political gerrymander, invidiously discriminatory under the Fourteenth Amendment.” 412 U.S. at 752, 93 S.Ct. at 2331 (footnote omitted).
The Court, in rejecting the challengers’ claim, intimated that a plan, in order to pass muster, did not necessarily have to be wholly “politically fair” in end-result or designed with total even-handedness to reflect the respective strengths of political parties in a state. Even a plan that reflected some partisan leanings on the part of its drafters should not be invalidated solely because the drafters of the plan indulged some partisan political biases. Based in part on Gaffney, we do not think it the function of the courts to attempt to totally depoliticize a process so inherently political as districting. As Justice White, speaking for the majority in Gaffney, explained:
We are quite unconvinced that the reapportionment plan offered by the three-member Board violated the Fourteenth Amendment because it attempted to reflect the relative strength of the parties in locating and defining election districts. It would be idle, we think, to contend that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it. Our cases indicate quite the contrary . . . . The very essence of districting is to produce a different—a more “politically fair“—result than would be
reached with elections at large, in which the winning party would take 100% of the legislative seats. Politics and political considerations are inseparable from districting and apportionment . . . . The reality is that districting inevitably has and is intended to have substantial political consequences.
412 U.S. at 752-53, 93 S.Ct. at 2331-32 (emphasis supplied).
We believe that the Gaffney decision in no sense mandates the invalidation of the Commission Plan solely on the grounds that Commission members considered partisan political advantage when drafting the Plan.64 In any event the Commission presented extensive evidence to demonstrate that its Plan, like the plan approved in Gaffney, would achieve a fair representation of the two major parties in Illinois based upon past election results. Indeed, under the Commission Plan, the Republican party may control more relatively secure seats in the General Assembly than the Democratic party.65 Cf. In re Congressional Districts Reapportionment Cases, No. 81 C 3915, slip op. at 21-22 (N.D.Ill. Nov. 23, 1981), aff‘d sub nom. McClory v. Otto, 454 U.S. 1130, 102 S.Ct. 985, 71 L.Ed.2d 284 (1982) (Otto plan preferable because it approximates statewide political strength of two major parties). The Court‘s admonition in Gaffney is, we believe, equally applicable here: “[J]udicial interest should be at its lowest ebb when a State purports fairly to allocate political power to the parties in accordance with their voting strength and, within quite tolerable limits, succeeds in doing so.” 412 U.S. at 754, 93 S.Ct. at 2332.
Notwithstanding the asserted and apparent statewide balance between the two major parties achieved by the Plan, plaintiffs still contend that the Commission Plan must fail because it was intentionally designed to produce in end-result a maximum Democratic party representation. This argument, however, does not, as we have suggested, rise to the level of a Constitutional contention. Although the Court in Gaffney refused to abstain entirely from judicial scrutiny of a state redistricting plan motivated in part by political factors, the Court expressly limited the permissible scope of the challenge to such a plan:
What is done in so arranging for election, or to achieve political ends or allocate political power, is not wholly exempt from judicial scrutiny under the Fourteenth Amendment. As we have indicated, for example, multimember districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized. Beyond this, we have not ventured far or attempted the impossible task of extirpating politics from what are the essentially political processes of the sovereign States.
412 U.S. at 754, 93 S.Ct. at 2332 (emphasis supplied) (citations omitted). It would be equally absurd for us to attempt to take the politics out of legislative redistricting. Plaintiffs do not assert, nor can they assert, that the Democratic-controlled Commission attempted to fence out or invidiously minimize Republican voting strength in Illinois. Similarly, we do not, in general, find fault with the efforts of Democratic
In sum, we do not believe that the role of courts in addressing alleged unfairness to political parties is equivalent to their role in evaluating unfairness to racial and ethnic minorities. The major political parties (absent “fencing out” or invidious minimization) are presumed to have the capacity to protect their own interests in the political process. The federal courts are not in business to compensate for political errors, misfortunes or strokes of fate, which may leave political parties at some temporary disadvantage. The case for judicial action on behalf of blacks and Hispanics is significantly different.
We conclude that the Commission Plan is not invalid because the Commission members considered (within limits) partisan advantage when drawing district lines.67
III. Complaint of the Crosby Plaintiffs: Dilution of Black Voting Strength
The Crosby plaintiffs have alleged that the Commission unconstitutionally discriminated against black voters in this redistricting by intentionally diluting their voting strength and thereby denying them a fair electoral opportunity. These plaintiffs contend that the Commission Plan is a product of racial gerrymandering designed to limit the participation of blacks and Hispanics in the Illinois electoral process and to protect various white incumbents whose districts have become, in the 1970-1980 period, heavily populated by blacks and Hispanics.68 According to the Crosby plaintiffs, the white leaders of the Chicago Democratic organization purposefully set out to undermine the vote of the black electorate and were successful in their efforts under the Commission Plan.69
A. Fifteenth Amendment and the Voting Rights Act
First, we address the question whether, if proven, plaintiffs’ claims of vote dilution are properly cognizable under the Fifteenth as well as the Fourteenth Amendment. Although an answer to this question may not emerge with blinding clarity from the Supreme Court‘s recent decision in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), we think that decision furnishes the most authoritative guide to the matter. In Bolden, the four plurality justices (Justices Stewart, Burger, Powell and Rehnquist), in considering the constitutionality of the at-large system of elections required by the commission form of government in Mobile, Alabama, held that the Fifteenth Amendment “prohibits only purposefully discriminatory denial or abridgment by government of the freedom to vote ‘on account of race, color, or previous condition of servitude,‘” and that this constitutional prohibition “does not entail the right to have Negro candidates elected.” 446 U.S. at 65, 100 S.Ct. at 1498. Relying on the district court‘s explicit finding “that Negroes in Mobile ‘register and vote without hindrance,‘” the four-justice plurality held that both “the District Court and the Court of Appeals were in error in believing that the appellants invaded the protection of [the Fifteenth] Amendment in the present case.” 446 U.S. at 65, 100 S.Ct. at 1498.70 We believe that under Bolden, plaintiffs’ allegations of racial gerrymandering in the instant case, which do not implicate the rights of minority group members to register and vote without hindrance, but can only entail the asserted right to have candidates favored by the protected groups elected, similarly fail to invade the province of the Fifteenth Amendment.
Accordingly, the black plaintiffs in this case cannot recover under either the Fifteenth Amendment or under Section 2 of the
B. Fourteenth Amendment
The primary issue in this case is thus whether the Crosby plaintiffs’ vote dilution claim entitles them to any relief under the Equal Protection Clause of the Fourteenth Amendment. Bolden, of course, held that voting strength dilution challenges to legislative apportionments “could violate the Fourteenth Amendment if their purpose were invidiously to minimize or cancel out the voting potential of racial or ethnic minorities.” 446 U.S. at 66, 100 S.Ct. at 1499.71 The Bolden Court went on to hold that, to sustain a voting strength dilution claim, a “plaintiff must prove that the disputed plan was ‘conceived or operated as [a] purposeful devic[e] to further racial . . . discrimination.‘” 446 U.S. at 66, 1499 (quoting Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363 (1971)). Thus, we must determine whether
1. Nature of Evidence and Burdens of Proof
In Bolden “[t]here were five clear votes (Stewart, Burger, Powell, Rehnquist and Stevens, JJ.) against the proposition that discriminatory impact alone is sufficient in vote dilution cases.” McMillan, 638 F.2d at 1243 (emphasis supplied). In reaching this conclusion, the Bolden Court relied upon Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979) as illustrative of the requirement that a plaintiff must demonstrate purposeful discrimination in order to prevail under the Equal Protection Clause of the Fourteenth Amendment. The Bolden plurality also relied on previous electoral discrimination cases such as White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), to support their discriminatory purpose rationale. We agree that a discriminatory purpose must be shown in this case for plaintiffs to sustain a claim of racial vote dilution violative of the Fourteenth Amendment.
In Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977), the Court noted that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” The Fifth Circuit recently summarized the evidentiary sources alluded to in Arlington Heights which are useful for assessing the existence of purposeful discrimination as follows:
- the historical background of the action, particularly if a series of actions have been taken for invidious purposes;
- the specific sequence of events leading up to the challenged action;
- any procedural departures from the normal procedural sequence;
- any substantive departure from normal procedure, i.e., whether factors normally considered important by the decision-maker strongly favor a decision contrary to the one reached; and
- the legislative history, especially where contemporary statements by members of the decisionmaking body exist.
The Supreme Court‘s opinion in Arlington Heights also demonstrates that in order to establish a Fourteenth Amendment violation, a plaintiff need not prove that the challenged action was motivated solely by a purpose to discriminate:
Rarely can it be said that a legislature or administrative body operating under a broad mandate made a decision motivated solely by a single concern, or even that a particular purpose was the “dominant” or “primary” one. In fact, it is because legislators and administrators are properly concerned with balancing numerous competing considerations that courts refrain from reviewing the merits of their decisions, absent a showing of arbitrariness or irrationality. But racial discrimination is not just another competing consideration. When there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. at 265-66, 97 S.Ct. at 563-64 (emphasis supplied) (footnotes omitted).
Similarly, it seems clear that Bolden does not require that the purpose to discriminate be the only underlying purpose
The more challenging question is whether the analysis of Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), is appropriately applied to mixed motive redistricting cases such as the one at bar. Under the principles of Mt. Healthy (decided the same day as Arlington Heights), if plaintiffs are able to show that a discriminatory purpose was one of the factors in the redistricting, the burden shifts to the defendant Commissioners to demonstrate that the same redistricting would have occurred even if a discriminatory purpose had not motivated the Commissioners. In the case at bar, the Crosby plaintiffs argue vigorously that the Mt. Healthy analysis is inappropriate while defendants, relying on Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979); Wren v. Jones, 635 F.2d 1277 (7th Cir. 1980); and Nekolny v. Painter, 653 F.2d 1164 (7th Cir. 1981), as well as Mt. Healthy itself, argue with equal vigor that the Mt. Healthy analysis applies.
Defendants further contend that the applicable burden of proof in voting dilution cases has been modified by the Supreme Court‘s recent decision in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). They argue that under Burdine, once defendant Commissioners have articulated a legitimate, non-discriminatory reason for the challenged redistricting plan, the burden shifts back to plaintiffs to demonstrate that defendants’ purported explanation is merely a pretext for intentional discrimination.
We agree that the principles of Mt. Healthy are applicable to the instant case. The Supreme Court in Arlington Heights explicitly noted and approved the application of the Mt. Healthy burden of proof standard to race discrimination claims:
Proof that the decision by the Village was motivated in part by a racially discriminatory purpose would not necessarily have required invalidation of the challenged decision. Such proof would, however, have shifted to the Village the burden of establishing that the same decision would have resulted even had the impermissible purpose not been considered. If this were established, the complaining party in a case of this kind no longer fairly could attribute the injury complained of to improper consideration of a discriminatory purpose. In such circumstances, there would be no justification for judicial interference with the challenged decision. But in this case respondents failed to make the required threshold showing. See Mt. Healthy City Board of Education v. Doyle, post, [429 U.S.] p. 274 [97 S.Ct. 568, 50 L.Ed.2d 471].
429 U.S. at 270-71 n. 21, 97 S.Ct. at 566 n. 21. And although Arlington Heights is not itself a vote dilution case, it furnishes a controlling precedent for intentional discrimination as a necessary element of racial vote dilution. See City of Mobile v. Bolden, 446 U.S. at 66-68, 100 S.Ct. at 1499-1500.
Applying the Mt. Healthy analysis to the instant case involves the following analytical steps. First, plaintiffs must establish a prima facie case of purposeful vote dilution under the principles established in White v. Regester, Arlington Heights and
We acknowledge that once plaintiffs have established a prima facie case, the Mt. Healthy analysis places upon defendants the heavy burden of demonstrating that the same redistricting process would have occurred, even in the absence of any prohibited motive. We also recognize that in the context of very complex reapportionment decisions the discharge of such a burden may be exceedingly difficult. But we also believe that under Bolden, establishment by plaintiffs of their prima facie case is quite difficult. Therefore, we feel strongly that once plaintiffs have sustained a prima facie claim, it is not unreasonable to shift to defendants the burden of showing that the same decision would have been reached even absent the influence of any discriminatory purpose.
We do not agree with the defendants’ further contention that the three-part burden of proof test set forth in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981), is applicable to the instant case. Burdine involved not a constitutional mixed-motive question, but a claim of disparate treatment under Title VII of the
2. Evidence of Purposeful Vote Dilution on Chicago‘s South and West Sides
With respect to the Crosby plaintiffs’ claims, we believe that purposeful dilution of black voting strength, in several significant instances, has been demonstrated in the instant case. First, under the 1980 census as applied to the 1971 Chicago area legislative redistricting lines, blacks constitute a majority in six Senate districts (former districts 21, 22, 24, 26, 28 and 29). Under the 1980 census as applied to the Commission Plan, blacks will constitute a majority in only five Chicago area Senate districts (Commission Senate Districts 9, 12, 13, 16 and 17). This simple statistic is evidence of retrogression74 from which a strong inference of a purpose to dilute may
More precise and identifiable indications of a purpose to dilute may be found in the actions of the redistricting Commissioners with respect to Senate Districts 14 and 18 of the Commission Plan. Under the Commission Plan, black voting strength in former Senate District 28 under the 1971 district boundaries has been fractured by the creation of Commission Senate District 14, the district in which white incumbent Senator Jeremiah Joyce resides. Under 1970 census figures, District 28 was 73.8% white and 21.6% black. Under 1980 census figures, the black population of District 28 is now 106,830, making the district approximately 57.7% black and 39% white. To reach the ideal population for a Senate district, after the 1980 census, present District 28 had to be increased by approximately 8,000 persons.
The Commission, in the course of adding the necessary 8,000 persons to District 28, removed 34,000 blacks from that District and added 42,000 whites, thereby reducing the black population percentage in the newly created Commission district to 38%.76 The result of this shift in racial populations, apparently to preserve Senator Joyce‘s incumbency, was to dilute the voting strength of the nearly 73,000 blacks who remained in Commission Senate District 14 after the shift in populations. It may, of course, be argued that this manipulation of racial populations in the district was accomplished for the purpose of maintaining the incumbency of a white Senator and was not necessarily indicative of an intent to discriminate against blacks qua blacks. We believe, however, that under the peculiar circumstances of this case, the requirements of incumbency are so closely intertwined with the need for racial dilution that an intent to maintain a safe, primarily white, district for Senator Joyce is virtually coterminous with a purpose to practice racial discrimination. Cf. McMillan v. Escambia County, 638 F.2d 1239, 1245 (5th Cir.), cert. dismissed, 453 U.S. 946, 102 S.Ct. 17, 69 L.Ed.2d 1033 (1981), (“[T]he desire to retain one‘s incumbency unaccompanied by other evidence ought not to be equated with an intent to discriminate against blacks qua blacks.“) (emphasis supplied).77
Similarly, black voting strength in former Senate District 30 under the 1971 district boundaries has been diluted in the course of creating Commission Senate District 18, the district in which white incumbent Senator Glenn Dawson resides. Under 1970 census figures, District 30 was 73.2% white and 26.1% black. Under 1980 census figures District 30 would be 46% white, 45.1% black and 8.9% Hispanic. The
In the course of adding the approximately 2,000 persons necessary to bring District 30 to ideal population, the Commission increased the white population in what is now Commission Senate District 18 by nearly 30,000 and decreased the black population by over 40,000 persons. Under the Commission Plan, Commission Senate District 18 will be approximately 60.4% white, 23.4% black and 16.2% Hispanic. The voting strength of the 45,000 blacks left in Commission Senate District 18 has thus been dissipated. As explained earlier, we believe that these shifts in racial population, even if undertaken for the immediate purpose of providing a safe Senate seat for white Senator Dawson, are so closely linked to a desire to minimize black voting strength that they constitute strong evidence of a discriminatory purpose.78
Much of the black population that was formerly in the districts of Senators Joyce and Dawson has been moved into a new district, Commission Senate District 17, which replaces former Senate District 29 under the 1971 redistricting plan. Former Senate District 29 was represented by black Senator Charles Chew; he now resides in Commission Senate District 16 together with black Senator James Taylor, and there is no incumbent Senator in District 17 under the Commission Plan. Blacks are unnecessarily concentrated in Commission Senate District 17,79 and the resultant “packing” of black votes wastes such votes. See Beer v. United States, 425 U.S. 130, 154 n. 12, 96 S.Ct. 1357, 1370 n. 12, 47 L.Ed.2d 629 (1976) (Marshall, J., dissenting) (“Is it not as common for minorities to be gerrymandered into the same district as into separate ones?“); Nevett v. Sides, 571 F.2d 209, 219 (5th Cir. 1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980) (“compartmentalizing or fencing out a group” constitutes unconstitutional gerrymandering). See also Note, Constitutional Challenges to Gerrymanders, 45 U.Chi.L.Rev. 845, 846 and n. 8 (1978) (“concentrating a voting block into one district of nearly unanimous opinion . . . wastes” the votes of the supermajority). This unnecessary packing represents intentional dilution of the black vote.80
Again we believe that the immediate purpose of these movements of racial populations was primarily to preserve the incumbencies of two white Senators. But this process was so intimately intertwined with, and dependent on, racial discrimination and dilution of minority voting strength that purposeful dilution has been clearly demonstrated in the construction of Commission Senate Districts 14, 17 and 18.81
The Commission also apparently succeeded in halting and reversing growing black voting strength in another Senate district represented by white incumbents. Former Senate District 19 under the 1970 district boundaries is represented by white Senator Edward Nedza. In 1980, the population breakdown in this district by race was 26% white, 35% black and 39% Hispanic. The corresponding Commission Senate District 6, in which white Senators Nezda and Steven Nash now live, has an increased white population of 47% with a reduced black population of 24% and an Hispanic population of 29%.
The Commission points with some pride to Commission Senate District 10, a “majority minority” district84 in which white incumbent Senator John D‘Arco resides, as evidence that the Commission did not dilute minority voting strength on the West Side. Although the Commission did not substantially alter either the population percentages or the boundaries of this district, the Commission‘s actions with respect to Dis-
Thus, 158,129 of the approximately 300,000 blacks residing in Chicago‘s West Side have been packed into Commission Senate District 9 consisting of two concentrated Commission House Districts 17 and 18. The remaining population has been fractured, primarily among Commission House Districts 11, 15 and 19. Under the Commission Plan, therefore, West Side blacks will have a decisive majority only in Senate Commission District 9 from which they will presumably be able to elect a Senator of their choice. They will have decisive majorities only in House Districts 17, 18 and 19 from which they will presumably be able to elect Representatives of their choice. The net effect of these racial population changes has been the purposeful dilution of the black voting strength on the West Side by at least one House District.86
3. Election Districts and Racially Segregated Housing Patterns
Plaintiffs also argue strenuously that the boundary lines for Commission House Districts 17 and 18 on the West Side and Commission House Districts 23, 24, 25, 31, 33 and 34 on the South Side trace in great measure the boundaries of the heavy black concentrations in Chicago. They argue, inter alia, that these lines create a racially-defined “wall” around the residentially-segregated black communities in Chicago, thereby appearing to confer an official governmental sanction on the residential racial segregation which exists in Chicago.
At the outset, we reject plaintiffs’ suggestion that any consideration of racial factors in the districting process automatically constitutes invidious discrimination under the Fourteenth Amendment. The Supreme Court in United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (“UJO“) explicitly held that consideration of race in legislative apportionment did not constitute a per se violation of either the Fourteenth or the Fifteenth Amendment. In UJO, a group of Hasidic Jews challenged a New York reapportionment plan which split the Hasidic community among several state legislative districts, on the ground that racial considerations played a major role in the plan‘s formulation and adoption. In upholding the plan, the Supreme Court stated:
Contrary to petitioners’ first argument, neither the Fourteenth nor the Fifteenth Amendment mandates any per se rule against using racial factors in districting and apportionment. Nor is petitioners’ second argument valid. The permissible use of racial criteria is not confined to eliminating the effects of past discriminatory districting or apportionment.
430 U.S. at 161, 97 S.Ct. at 1007 (emphasis supplied).
Although the Court‘s opinion in UJO relied in part on the fact that the New York plan was adopted in order to comply with the non-dilution requirements of Section 5
It is true that New York deliberately increased the nonwhite majorities in certain districts in order to enhance the opportunity for election of nonwhite representatives from those districts. Nevertheless, there was no fencing out of the white population from participation in the political processes of the county, and the plan did not minimize or unfairly cancel out white voting strength.
430 U.S. at 165, 97 S.Ct. at 1010. Justice Stewart in his concurring opinion invoked a similar rationale:
The petitioners’ contention is essentially that racial awareness in legislative reapportionment is unconstitutional per se. Acceptance of their position would mark an egregious departure from the way this Court has in the past analyzed the constitutionality of claimed discrimination in dealing with the elective franchise on the basis of race. . . . The petitioners have made no showing that a racial criterion was used as a basis for denying them their right to vote, in contravention of the Fifteenth Amendment. . . . They have made no showing that the redistricting scheme was employed as part of a “contrivance to segregate“; to minimize or cancel out the voting strength of a minority class or interest; or otherwise to impair or burden the opportunity of affected persons to participate in the political process.
430 U.S. at 179, 97 S.Ct. at 1017.
The Supreme Court‘s analysis in UJO indicates that plaintiffs here must do more than show that racial considerations have played some role in the drawing of voting lines on the South Side. In addition, they must demonstrate that the state used its redistricting authority as part of a “contrivance to segregate” or that the challenged line or lines were designed to minimize or dilute the voting strength of minority voters.
With respect to the Crosby plaintiffs’ vote dilution claims (which are the primary claims advanced in this case), the most relevant district lines are the lines drawn along the western edge of areas that are 85% or more percent black on the South Side of Chicago. The challenged South Side district lines are pertinent here insofar as they arguably contribute to the “packing” of the black population. Plaintiffs’ contention is that black voters are “packed” into South Side Senate and House districts, thus maintaining a situation where blacks comprise a very high percentage of the population in a number of these districts. According to the “packing” theory, black votes are “wasted” to the extent that black population percentages greatly exceed the percentage—suggested to be 65%—87 needed in voting districts to elect
As we have indicated, plaintiffs in this case must demonstrate purposeful vote dilution in order to prevail. City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1519, 64 L.Ed.2d 47 (1980). Moreover, we must be convinced, under the Mt. Healthy standard, that different electoral boundary lines would have been drawn in the absence of a discriminatory purpose. We find that the evidence before us fails to establish a substantial purpose on the part of the defendants to dilute the black vote on the South Side through “packing“. Cf. Canton Branch, N.A.A.C.P. v. City of Canton, 472 F.Supp. 859, 868 (S.D.Miss.1978). Even had such a purpose been established, moreover, we think that defendants have demonstrated that the South Side districts would have been drawn as they were even absent any motive to dilute black voting strength. See Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).
Defendants explain the congruence of electoral and racial boundaries on bases other than those involving purposeful vote dilution. For example, Representative Michael Madigan, who drew the districts, testified that he actively considered the interests of black Representatives in fashioning the challenged South Side boundaries.88 In addition, a number of black South Side legislators testified that the inclusion of neighboring white areas in their districts would place them in political peril and might lead to the nomination of a white in the Democratic primary. Success in the Democratic primary is tantamount to election in both the predominantly black and the predominantly white districts in this area.89 Some of these black legislators
Some of these reasons, of course, recognize the existence of racial animus or ill-feeling as a factor deterring the inclusion of white areas in highly-concentrated black districts. But such recognition by no means establishes a purpose to dilute the black vote. Cf. Johnson v. Board of Education of Chicago, 604 F.2d 504 (7th Cir. 1979), vacated for possible mootness, 449 U.S. 915, 101 S.Ct. 339, 66 L.Ed.2d 162 (1980), opinion reinstated, 664 F.2d 1069 (7th Cir. 1981). Obviously, this court cannot and does not condone racial animosity or ill-feeling between the races on the South Side of Chicago. But we think it our obligation to confine the present inquiries to the issues of voting dilution which are the basis of the complaint in this case. It is true that the “packing” of black votes on the South Side in highly concentrated black areas tends to “waste” the black vote. But it is also true that considerably greater dilution of the black vote could presumably have been achieved by “fracturing” parts of the black areas into minority fragments attached to neighboring white majority districts, so that the voters in these fragments would lose the opportunity to elect a candidate of their choice.91
There is thus little or no direct evidence in the record that the alleged South Side “wall” was drawn for the purpose of diluting black voting strength. Certainly, we find it more difficult to infer such a purpose from the existence of the line than to infer such a purpose (as we have above) from the manipulation of racial populations in Commission Senate Districts 9, 14, 17
We also note that any adverse impact of the South Side district lines from the point of view of voting dilution would necessarily be felt by the black community as a whole in the City of Chicago as a result of the “wasting” of votes which would otherwise be available to form additional black majority districts. Such a dilutive effect is thus not specific to blacks living near the alleged “wall,” who in fact have the opportunity to vote for and elect candidates of their choice. Moreover, as suggested above, a more marked dilutive effect on the black vote would have been achieved by running fingers from the white communities to the West into the concentrated black area so as to fracture the black vote and, in effect, cancel it out in majority white districts. Such a configuration would no doubt suggest purposeful dilution of the black vote much more clearly than the existence of a line which tracks, in part, the division between predominantly black and predominantly white communities.95
In addition to their vote dilution argument, we understand plaintiffs to contend that the South Side district lines represent illegal racial gerrymandering of the sort condemned in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). We recognize that allegations of racial gerrymandering present a suspect circumstance requiring close judicial scrutiny, and that such gerrymandering, to the extent it exists, carries strong connotations of invidious racial discrimination. As the Supreme Court has repeatedly indicated, however, the gravamen of a racial gerrymandering claim is the deliberate “fencing out” of a racial or ethnic minority—that is, the exclusion or “canceling out” of such group‘s political influence in the relevant governmental unit. No such exclusionary purpose or effect has been demonstrated in the instant case.
Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), presents the paradigmatic example of unconstitutional racial gerrymandering. In Gomillion, the Alabama legislature had redrawn the boundaries of the City of Tuskegee, altering its shape from a square to a “strangely irregular twenty-eight-sided figure.” 364 U.S. at 341. Plaintiffs in Gomillion alleged that the redefined municipal boundaries eliminated all but four or five of the city‘s 400 black voters without eliminating a single white voter. The Supreme Court held that plaintiffs’ allegations, if proven, clearly established invidious racial discrimination under the Fifteenth Amendment.96
The result of the Act is to deprive the Negro petitioners discriminatorily of the benefits of residence in Tuskegee, including, inter alia, the right to vote in municipal elections.
These allegations, if proven would abundantly establish that Act 140 was not an ordinary geographic redistricting measure even within familiar abuses of gerrymandering. If these allegations upon a trial remained uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislature is solely concerned with segregating white and colored voters by fencing Negro citizens out of town so as to deprive them of their pre-existing municipal vote.
364 U.S. at 341, 81 S.Ct. at 127 (emphasis supplied).
In Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), plaintiffs also alleged racial gerrymandering in the drawing of election districts. In their complaint, the Wright plaintiffs claimed that a New York state reapportionment statute, which divided Manhattan into four electoral districts, violated the Fourteenth and Fifteenth Amendments by “establish[ing] irrational, discriminatory and unequal Congressional Districts in the County of New York and [by] segregat[ing] eligible voters by race and place of origin.” 376 U.S. at 53, 84 S.Ct. at 604. Arguing before a three-judge district court, counsel for plaintiffs in Wright further contended that the challenged redistricting scheme presented “‘a case of ghettoizing the Island of Manhattan’ so as ‘to create a white Congressional district and a non-white Congressional district.‘” 376 U.S. at 54, 84 S.Ct. at 604. Despite these allegations, and despite the presentation of considerable evidence indicating that racial factors had played some role in the redistricting process, both the three-judge district court and the Supreme Court rejected plaintiffs’ constitutional attack.97 The Supreme Court, in its opinion, expressly contrasted the invidious racial gerrymandering at issue in Gomillion v. Lightfoot, and emphasized the lack of an exclusionary motive behind the New York state redistricting scheme:
We accept the District Court‘s finding that appellants have not shown that the challenged part of the New York Act was the product of a state contrivance to segregate on the basis of race or place of origin. That finding was crucial to appellants’ case as they presented it, and for that reason their challenge cannot be sustained.
376 U.S. at 58, 84 S.Ct. at 606.
The Supreme Court‘s decision in United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), also underscores the element of exclusion or “canceling out” necessary to support a claim of unconstitutional racial gerrymandering. The Court in UJO held that a redistricting body may properly take race into account so long as its redistricting plan does not “slur or stigma[tize]” any racial group, and does not “fence out” a racial or ethnic group from the political process, or “minimize or unfairly cancel out” that group‘s voting strength. 430 U.S. at 165, 97 S.Ct. at 1009-10.98 Similar-
[C]ourts have [no] constitutional warrant to invalidate a state plan, otherwise within tolerable population limits, because it undertakes, not to minimize or eliminate the political strength of any group or party, but to recognize it and, through districting, provide a rough sort of proportional representation in the legislative halls of the State.
412 U.S. at 754, 93 S.Ct. at 2332. See also United Jewish Organizations, Inc. v. Carey, 430 U.S. at 168, 97 S.Ct. at 1011.
We believe that the instant case presents a situation much more akin to that in Wright and UJO than to the situation in Gomillion v. Lightfoot. Unlike the boundary adjustment in Gomillion, the South Side redistricting at issue here was not designed to “fence out” blacks or to impede their participation in Chicago politics. Nor do the challenged district lines “slur or stigmatize” a racial minority. Moreover, as was the case in Wright v. Rockefeller, black politicians representing the affected districts have testified in support of the challenged district lines and have expressed their discomfort with plaintiffs’ proposed alternatives. See note 90 supra. Under these circumstances, we do not believe that the South Side redistricting represents either an unconstitutional racial gerrymander or an impermissible attempt to minimize or cancel out black voting strength.
Moreover, we believe there is a fundamental tension between plaintiffs’ apparent desire for color-blind redistricting on Chicago‘s South Side, and the voting dilution theory which lies at the heart of plaintiffs’ constitutional challenge in the instant case. Cf. Whitcomb v. Chavis, 403 U.S. 124, 156 n. 34, 91 S.Ct. 1858, 1875 n. 34, 29 L.Ed.2d 363 (1971). Voting dilution claims, including this one, are premised at least in part on the frankly race conscious theory of racial bloc voting—the idea that black voters will vote overwhelmingly for black candidates while white voters will support non-minority candidates. Indeed, the main focus of the Crosby plaintiffs’ claims here is that there have been intentional efforts to minimize the impact of black bloc voting.
We thus find it difficult to accept plaintiffs’ argument that the drawing of district lines which track, in some measure, the boundaries of racially identified communities is tantamount to government sponsored segregation. The immediate effect of the alleged districting “wall” in the instant case is that black voters residing in the vicinity of the wall will have the opportunity to vote for and elect candidates of their choice—precisely the opportunity sought in this case. Absent a showing of racial vote dilution or the fencing out of minority voters, we do not believe black voters are being denied equal protection merely because their districts contain few white residents who may share the opportunity to vote for the same legislative candidates. As we emphasized earlier, under the Commission Plan, a vote cast on the black South Side has precisely the same weight as a vote cast in Bridgeport. We do not foreclose the possibility that under some circumstances, the drawing of election district lines which track racially segregated housing patterns could amount to
4. Other Evidence of Racial Discrimination
The Crosby plaintiffs presented other, more general, evidence which they allege demonstrates a discriminatory purpose on the part of the Commission. We have considered this evidence, as summarized below, but we do not find it dispositive in resolving the issues presented in this case. We think, however, that it is at least consistent with our findings and with the remedies we have provided.
First, the plaintiffs directed the court‘s attention to their alternative Coalition Plan. They suggest that the assertedly simple, compact districts of the Coalition Plan provide a more meaningful opportunity for black and Hispanic voters to elect candidates of their choice than the “strange configurations” characteristic of districts in the Commission Plan. Although the existence of alternative patterns of redistricting does not, standing alone, support an inference of discriminatory purpose, the Coalition Plan does demonstrate the feasibility of avoiding retrogression of black voting strength through the creation of additional voting districts in which blacks will have a meaningful opportunity to elect a candidate of their choice. The Coalition Plan is thus of some, albeit limited, probative value in establishing purposeful dilution of black voting strength in at least some of the Commission‘s districts. Cf. Cousins v. City Council of Chicago, 466 F.2d 830, 843-44 (7th Cir.), cert. denied, 409 U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 181 (1972).
Plaintiffs also contend that the drafters’ use of anticipated ward boundaries in the City of Chicago, which are alleged to be discriminatory, tend to establish intentional racial discrimination. Since ward boundaries have not been adjudicated to be discriminatory, we cannot conclude that the relation of legislative lines to ward lines is any more than marginally relevant to racial dilution by the legislative redistricting at this time. Moreover, alleged retrogression in the wards (which we understand to be a plausible basis of challenge to them) does not necessarily infect legislative districts, since legislative district lines only partially correspond to ward lines.
Plaintiffs have also cited as evidence of purposeful dilution “[t]he pattern of the racial discrimination in which the Democratic organization has long engaged in Cook County, through the Chicago Police Department, the Chicago Housing Authority, the Chicago Board of Education, the Chicago Public Library, and the Chicago Park District.” Crosby Post Trial Brief at 3. Plaintiffs allege that the heads of each of these governmental bodies is appointed
In City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Supreme Court explicitly disapproved the district court‘s reliance on racial discrimination in municipal employment and in the dispensing of public services to support a finding that the City‘s at-large electoral system violated the Fourteenth Amendment. Acknowledging that the Equal Protection Clause proscribes purposeful racial discrimination by any unit of state government, the Supreme Court plurality nonetheless held that “evidence of discrimination by white officials . . . is relevant only as the most tenuous and circumstantial evidence of the constitutional validity of the electoral system under which they attained their offices.” 446 U.S. at 74, 100 S.Ct. at 1503 (footnote omitted). The Supreme Court in Bolden also rejected the lower court‘s reliance on past official discrimination as evidence of present discriminatory intent:
[T]he District Court and the Court of Appeals supported their conclusion by drawing upon the substantial history of official racial discrimination in Alabama. But past discrimination cannot, in the manner of original sin, condemn governmental action that is not in itself unlawful. The ultimate question remains whether a discriminatory intent has been proved in a given case. More distant instances of official discrimination in other cases are of limited help in resolving that question.
446 U.S. at 74, 100 S.Ct. at 1503.
The Supreme Court in Bolden was careful to distinguish its earlier decision in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), in which the Court had held that multi-member legislative districts in Texas unconstitutionally diluted the voting strength of black and Hispanic voters.100 The Bolden Court characterized the system attacked in White v. Regester as one in which “the political processes leading to nomination and election were not equally open to participation by the group[s] in question.” 446 U.S. at 68-69, 100 S.Ct. at 1500 (quoting 412 U.S. at 766, 93 S.Ct. at 2339).
In analyzing the problems before it in White v. Regester, the Supreme Court underscored the district court‘s reference to the history of official racial discrimination in Texas, which had at times touched the rights of Negroes to register, vote, and otherwise participate in democratic processes. The district court had also found that
412 U.S. at 766, 93 S.Ct. at 2339. Moreover, the district court had noted that the DCRG “did not need the support of the Negro community to win elections in the county, and it did not therefore exhibit good-faith concern for the political and other needs and aspirations of the Negro community.” 412 U.S. at 766-67, 93 S.Ct. at 2339-40 (footnote omitted). Finally, the district court had pointed out “that as recently as 1970 the [DCRG] was relying upon ‘racial campaign tactics in white precincts to defeat candidates that had the overwhelming support of the black community.‘” 412 U.S. at 767, 93 S.Ct. at 2340 (quoting 343 F.Supp. at 727). Based upon this and other evidence the district court had concluded that “the black community has been effectively excluded from participation in the Democratic primary selection process,’ and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner.” 412 U.S. at 767, 93 S.Ct. at 2340 (quoting 343 F.Supp. at 726).
The district court in White v. Regester reached similar conclusions with respect to the Mexican-American community in Bexar County. Indeed, the district court found that the typical Mexican-American suffered a cultural and language barrier that severely impeded his participation in political life, and that this “‘cultural incompatibility . . . conjoined with the poll tax and the most restrictive voter registration procedures in the nation have operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formerly denied access to the white primary.‘” 412 U.S. at 768, 93 S.Ct. at 2340 (quoting 343 F.Supp. at 731).
Although racism certainly exists in the City of Chicago and in that City‘s Democratic organization, the record before us does not disclose a history of overt and systematic electoral discrimination comparable to that identified by the district court in White v. Regester. For example, Illinois has never had a white primary or a poll tax. Moreover, unlike the organization previously in control of the Democratic Party in Dallas County, the Democratic organization in the City of Chicago depends upon the support of the black community to win elections and must, therefore, be at least somewhat responsive to the needs and aspirations of black voters. The record in the instant case does not suggest that causes helpful to blacks have been ignored by the Democratic organization; in fact, just the opposite seems to be the case. The Democratic Party in Illinois has been a principal exponent of civil rights legislation and of social legislation important to blacks. It has also supported bilingual education, an issue of particular importance to Hispanics. In sum, there has been no systematic exclusion of either blacks or Hispanics from the Illinois political process comparable to the history referred to in White v. Regester.
On the other hand poor socio-economic conditions, unemployment, low voter registration and the like afflict both the black and the Hispanic communities in Chicago to an extent which may be comparable to that presented in White v. Regester. We conclude, therefore, that while plaintiffs’ general evidence of racial discrimination in the City of Chicago supports our present findings of purposeful vote dilution, we place greater reliance on such specific factors as retrogression in black legislative representation and the manipulation of racial populations in the interest of white incumbents to demonstrate purposeful racial vote dilution than we do on the general acts and attitudes of city and state officials.
IV. Complaint of the DelValle Plaintiffs: Dilution of Hispanic Voting Strength
At trial, the DelValle plaintiffs presented evidence in an effort to prove
The Hispanics challenged this explanation by noting that no other racial, ethnic or political group was fitted to “snowsuit” districts and that the Commission‘s actions served to exacerbate existing underrepresentation of Hispanic interests in the General Assembly.102 The DelValle plaintiffs adduced considerable additional evidence concerning further unsuccessful efforts to alert the Commission to their needs, changes in proposed districts to their detriment based on incumbent and other influences, the depressed socio-economic condition of their constituency and various other factors tending to show vote dilution.
During and after the trial and at the urging of the court, representatives of the Commission and the DelValle plaintiffs developed several alternative configurations for the districts in the two Chicago Hispanic communities. Negotiations between the parties (fortified by instructions from the court as to modifications of the Commission Plan) eventually resulted in a settlement proposal, embodied in Court Exhibits 7D and 7E, which was accepted by both the Commission and the DelValle plaintiffs.103 Under the resulting Hispanic Settlement Agreement, Hispanics will constitute approximately 71% of the population in Commission House District 20, encompassing the Pilsen and Little Village neighborhoods.104 The DelValle plaintiffs believe
Under all the circumstances, we find that the Hispanic Settlement Agreement is fair, adequate and reasonable to Hispanics and affords them a fair opportunity to elect candidates of their choice to the General Assembly. Under the Settlement Agreement there is no purposeful dilution of the Hispanic vote. We further find that the Hispanic Settlement is fair to other minorities whose voting power is allegedly subject to dilution. In addition, we find that the Settlement Agreement is fair to the Commission and to all the voters of the State of Illinois, and is in accordance with state and federal constitutional standards. We therefore accept and approve those portions of Court Exhibit Plans 1A, 7D and 7E (together with other supporting documents that relate to redistricting of the House Districts 9, 10 and 20 and related districts) as a reasonable settlement of the DelValle claims. The changes produced by the Hispanic Settlement Agreement have been incorporated into the Plan and Map for the State of Illinois approved by this opinion.
V. Remedy
We have held that the Commission Plan unconstitutionally dilutes the voting strength of blacks in two areas: first, in Commission Senate Districts 8 and 9 (Commission House Districts 15, 17 and 18) on Chicago‘s West Side; and second, in Commission Senate Districts 14, 17 and 18 (Commission House Districts 27, 28, 33, 34, 35 and 36) on Chicago‘s South Side. Our work is not finished, however, with this finding of liability. In redistricting and reapportionment cases, the Supreme Court has instructed us to provide for a remedy that cures the unconstitutional aspects of a redistricting plan.105 See, e.g., Connor v. Finch, 431 U.S. 407, 414-15, 97 S.Ct. 1828, 1833-34, 52 L.Ed.2d 465 (1977); Mahan v. Howell, 410 U.S. 315, 330-33, 93 S.Ct. 979, 987-89, 35 L.Ed.2d 320 (1973); Reynolds v. Sims, 377 U.S. 533, 584-87, 84 S.Ct. 1362, 1393-94, 12 L.Ed.2d 506 (1964); Roman v. Sincock, 377 U.S. 695, 710-11, 84 S.Ct. 1449, 1458-59, 12 L.Ed.2d 620 (1964). See also Robinson v. Commissioners Court, 505 F.2d 674 (5th Cir.1974); Graves v. Barnes, 408 F.Supp. 1050 (W.D.Tex.1976). Because our finding of liability is limited to two relatively small groups of districts, we believe that the remedy should be designed to ameliorate the effects of unconstitutional vote dilution in those two areas. Cf. White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) (approving dis-
During the course of trial, the Commission, pursuant to direction of the court, prepared several plans (denominated as the Court Exhibit Plans) to incorporate adjustments to the original Commission Plan. Those adjustments were specifically directed at the districts we have now identified as the products of unconstitutional dilution of black voting strength.107 We believe that the adjustments to the Commission Plan embodied in Court Exhibits 1A (South Side black objections), 2A (suburban objections) and 7B (West Side black objections and Hispanic settlement), together with their supporting documents, computer printouts and metes and bounds descriptions, adequately purge the Commission Plan of unconstitutional vote dilution and other errors without upsetting the broader contours of the Plan which have passed our close scrutiny.108
To recapitulate, the remedy we have adopted eradicates the unconstitutional dilution of black voting strength by increasing by one Senate and one House district the number of voting districts in which blacks will have a meaningful opportunity to elect a candidate of their choice to the Illinois General Assembly. We have also approved as fair a Settlement Agreement that provides Hispanic voters residing on both the Northwest and Southwest Sides of Chicago a meaningful opportunity to participate in state electoral politics. Finally, we have accepted certain modifications in the Map proffered by the Commission for the Chicago suburbs.
The court therefore enters the following ORDER:
BUA, District Judge (concurring):
I fully concur in Judge Cudahy‘s well-reasoned and exhaustive opinion. I write specially merely to more fully respond to Judge Grady‘s discussion of the settlement agreement executed between the defendants and the DelValle plaintiffs. As has been repeatedly emphasized, “[f]ederal courts look with great favor upon the voluntary resolution of litigation through settlement.” Airline Steward and Stewardesses Ass‘n v. Trans World Airlines, 630 F.2d 1164, 1166 (7th Cir.1980), cert. granted, 450 U.S. 979 (1981); Metropolitan Housing Development Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1013 (7th Cir.1980); Airline Stewards and Stewardesses Ass‘n v. American Airlines, 573 F.2d 960, 963 (7th Cir.1978), cert. denied, 439 U.S. 876 (1978). “Settlements are entered into because of ‘the uncertainties of outcome in litigation, as well as the avoidance of wasteful litigation and expense . . .‘” Airline Stewards, 573 F.2d at 963 (quoting Florida Trailer and Equipment Co. v. Deal, 284 F.2d 567, 571 (5th Cir.1960)). Thus, in reviewing a settlement agreement, a court “should not attempt to decide the merits of the controversy . . . [because] [a]ny virtue which may reside in a compromise is based upon doing away with the effect of such a decision.” Patterson v. Stovall, 528 F.2d 108, 114 (7th Cir.1976). It is with these considerations in mind that this court has accepted the DelValle settlement agreement.
GRADY, District Judge (concurring in part and dissenting in part).
I join in the decision of the court which finds against the Republican and suburban (Rybicki) plaintiffs. I concur in part and dissent in part as to the finding of liability to the black (Crosby) plaintiffs and dissent from the remedy. I also dissent from the approval of the Hispanic (DelValle) settlement.
The Crosby Plaintiffs
I agree with the majority that the Democrat members of the Commission intentionally diluted black voting strength in drawing the boundaries for Senate Districts 14, 17 and 18. While the lines were drawn in this manner to protect the incumbencies of white Senators Joyce and Dawson, this protection was accomplished by racial gerrymandering. The thinking of the Democrat Commission members obviously was that Senators Joyce and Dawson would have better chances for reelection if they ran in districts in which whites rather than blacks were the majority; the lines were drawn according to this racial hypothesis, giving Dawson and Joyce each a gerrymandered
I am not persuaded that the same intentional racial dilution has taken place on the west side in regard to Senate Districts 8, 9 and 10. The boundaries of Senate District 8, for instance, have been shown to be the result of a request by the Village of Oak Park that it be located entirely within one district, without fracturing. The boundaries of District 8 do indeed follow the municipal boundary of Oak Park.
Because of the differences I have with the majority concerning another aspect of the liability question and the whole matter of remedy, it is not necessary to extend this opinion by further discussion of the west side districts. Whether or not intentional dilution has been shown there, the west side districts drawn by the Commission would have to be set aside in my view simply because I believe virtually the entire map as it affects concentrations of black residents in Chicago has to be redrawn.
I agree with the majority that, except in the case of Senate Districts 14, 17, and 18, discussed supra, plaintiffs have failed to show the boundary lines were drawn for the purpose of diluting the black vote. Plaintiffs claim that the “wall” on the South Side was drawn with the intention of compacting the black population into the least possible number of districts in which their votes would elect candidates of their choice. The Commission map, according to plaintiffs, affords only five such districts. Plaintiffs argue that this “dilution” of the black vote was done for the purpose of denying black people a voice in the legislature and in the councils of the Democratic Party. The major premise of the argument is that if blacks had two more senatorial districts, the interests of black people—which plaintiffs say are in conflict with the interests of the Democratic leadership—would be given priority by the candidates elected. Plaintiffs’ own evidence, if true, indicates that this is at best a doubtful proposition. Electoral districts which are almost solidly black have traditionally sent organization Democrats to the legislature. Plaintiffs Newhouse and Braun, a black Democratic senator and a black Democratic representative respectively, both testified that most of their black colleagues in the legislature are under the thumb of the Democratic leadership and do not adequately represent their black constituents. These black legislators are said to be loyal, hand-picked candidates the Democratic organization is able to slate and elect in the solid black districts. If this is true, it is difficult to see what the Democratic organization would have to lose from the creation of two more black senatorial districts.
Plaintiffs have another objection to the “wall,” however, and unlike the majority, I believe it is a valid one. Plaintiffs complain that the black residents of the walled-in districts are stigmatized by being separated from the white population on the basis of race.1
By the defendants’ own admissions, the boundaries of various districts in the City of Chicago have been drawn along white and black racial lines.2 White and black
The reasons assigned by the Commission for the drawing of these racial lines do not pass constitutional muster. With narrow exceptions, the Constitution does not permit state action based upon race. This case is not within one of the narrow exceptions. I believe the lines drawn by the
Q Because of the racist attitude of the white people living in those communities?
A Because of the strong racial feelings, it would have been very difficult for a black person to represent the communities.
Q What community is this down here in 17?
A Cicero.
Q Aren‘t there hard feelings between the Lawndale and the Cicero areas?
A There are some, and I specifically raised that question with Representative Henry. He told me that—
Q Excuse me. I don‘t want to get into all this hearsay on my cross-examination. In any event, you accommodated those racial feelings of these communities, didn‘t you?
A I don‘t know if your form of questioning is correct.
Q You took them into consideration in drawing your lines?
A Yes, I did.
Tr. 1431-1432.
Commissioner Murphy who, along with Madigan, drew the lines in Chicago testified on cross-examination as follows:
BY MR. COLEMAN:
Commission which purposefully separate white from black voters on the south side of Chicago are constitutionally impermissible and must be voided. I reach this conclusion without regard to whether the lines have the effect of “diluting” the black vote.
The majority concludes that, since the evidence fails to show the wall is intentionally designed to dilute the black vote, it is constitutionally permissible.4 As I read the majority opinion, my colleagues find no fault with the idea of racial separation per se and, indeed, express the view that it can be a good thing under the circumstances of this case. The majority sees an antagonism between the desire of blacks for racial integration on the one hand and for bloc voting strength on the other. The majority reasons that if the blacks are put into voting districts with whites they will lose their opportunity to elect candidates of their choice; therefore, it is in the interest of black voters that they be segregated into districts of their own. In this connection, the majority cites the testimony of the various black legislators that they would not fare well in districts that were not predominantly black.
Q Shall we call it a line around the major black concentrations of population in the City of Chicago? Would you accept that?
A Yes.
Q That there is a line that the Commission draws around the black community and on the South and West Sides? You agree with that?
A Yes.
Q And one of the reasons why that line was drawn was because to the west of the line on the South Side there are primarily white communities that you believe have a community of interest that is separate from the black communities to the east of the line, isn‘t that correct?
A Partly.
Q And it was a concern of yours that if the black populations to the east and the white populations to the west were put into the same districts, that there might be friction.
A Yes.
Tr. 1837-1838.
I would have trouble with the majority theory even if I did believe that the electoral fortunes of blacks depend upon their having House districts in which they comprise majorities of 94.83, 98.43, 98.44, 97.01 and 89.62 per cent (the percentages in House Districts 23, 24, 31, 33 and 35). This is because I believe state-enforced racial separation cannot be tolerated under any circumstances, regardless of motive, even if the motive is apparently benign. The matter was well stated by Justice Douglas in his dissenting opinion in Wright v. Rockefeller, 376 U.S. 52, 59-67, 84 S.Ct. 603, 606-11, 11 L.Ed.2d 512 (1963), a case in which certain intervenors sought to justify the creation of a racially segregated congressional district in the City of New York. One of the intervenors was Adam Clayton Powell, the black incumbent Congressman. Justice Douglas described the argument of the intervenors in this way:
The intervenors are persons who apparently have a vested interest in control of the segregated Eighteenth District. They and the State seem to support this segregation not on the “separate but equal” theory of Plessy v. Ferguson, [163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed.
256] supra, but on another theory. Their theory might be called the theory of “separate but better off“—a theory that has been used before. A like argument was made in Buchanan v. Warley, 245 U.S. 60, 81, [38 S.Ct. 16, 20, 62 L.Ed. 149] in support of municipal segregation of residential areas; in District of Columbia v. Thompson, 346 U.S. 100, [73 S.Ct. 1007, 97 L.Ed. 1480] in support of segregation in restaurants; in Watson v. Memphis, 373 U.S. 526, [83 S.Ct. 1314, 10 L.Ed.2d 529] in support of delayed integration of municipal parks. Indeed, the final argument of John W. Davis for South Carolina in Brown v. Board of Education, supra, ended with the words, “The good is sometimes better than the best.”
The fact that Negro political leaders find advantage in this nearly solid Negro and Puerto Rican district is irrelevant to our problem. Rotten boroughs were long a curse of democratic processes. Racial boroughs are also at war with democratic standards.
376 U.S. at 62, 84 S.Ct. at 608. Unlike the majority in the instant case, the majority in Wright v. Rockefeller did not adopt the “separate but better off” theory. The basis of the majority opinion in Wright, which upheld the challenged apportionment, was that the lower court finding that the boundaries had not deliberately been drawn along racial lines was not clearly erroneous.
Commenting on the general question of racial bloc voting and governmental action designed to facilitate that practice, Justice Douglas concluded:
Racial electoral registers, like religious ones, have no place in a society that honors the Lincoln tradition—“of the people, by the people, for the people.” Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion
In Anderson v. Martin, 375 U.S. 399, [84 S.Ct. 454, 11 L.Ed.2d 430] we barred Louisiana from putting on a ballot opposite a Negro candidate‘s name the word, “Negro,” as it was a device encouraging racial discrimination. When we said in that case that a State may not encourage its citizens “to vote for a candidate solely on account of race,” id., at 404, [84 S.Ct. at 456] I had assumed that we would hold a fortiori that no State could make an electoral district out of any racial bloc unless the electoral unit represented an actual neighborhood. Yet we violate that principle here.
When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.
“Separate but equal” and “separate but better off” have no more place in voting districts than they have in schools, parks, railroad terminals, or any other facility serving the public.
376 U.S. at 66-67, 84 S.Ct. at 610-11.
Although Justice Douglas’ views were expressed in a dissenting opinion (concurred in by Justice Goldberg), there is no reason to believe that those views would not have been agreeable to the majority had they found the district lines to have been racially motivated, as is the case here, and then reached the “separate but better off” argument of the intervenors. It seems to me that the above-quoted language of Justice Douglas, considered in light of the authorities he cites, would represent the position of the Supreme Court today.
If the case for racial segregation to enhance minority voting strength is weak, the case for what I regard as the more prominent motivation for the wall is even weaker. I am not persuaded that the Democrat Commission members were motivated by a desire to enhance black voting power. I found equally unconvincing the rote responses given by the regular Democrat organization black legislators to leading question about whether they feared difficulties in the primary if they were to run in districts with less than 90 or 95 per cent black population. In short, my view of the evidence is that a desire to accommodate black voters had little if anything to do with the creation of the wall. The real reason for the wall—and it was not concealed, it was just denied the top billing it deserved—was the desire of the Democrat Commission members to ensure that the white populations west of the wall would continue to be represented by white legislators. This concern was based upon the candidly expressed belief that the antagonisms between whites and blacks make it impracticable for any legislator, white or
My colleagues also find the “wall” constitutionally permissible since it does not stigmatize blacks. I believe the wall stigmatizes blacks and restricts their freedom of political association. It is no answer to say, as the majority does, that “. . . the record in this case is barren of any indication that black voters on the South Side are, or feel themselves to be, stigmatized by the challenge to the electoral boundaries, or that such voters would prefer to be associated, for voting purposes, with predominantly white neighborhoods such as Bridgeport and Canaryville.” (p. 1116). First of all, as the majority points out, one of the plaintiffs, Carol Mosely-Braun, did testify that she regarded the segregation as a stigma. Secondly, the attorneys for the Crosby plaintiffs vehemently argued that blacks were harmed by the segregation. Most importantly, it is too late in the day to require evidence in support of the proposition that racial segregation is stigmatizing. To say that it is not, or to require proof each time that it is, is to ignore the last quarter century of precedents starting with Brown v. Board of Education, 347 U.S. 483, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). In the decade following Brown, the Supreme Court ordered in a series of per curiam decisions an immediate end to segregation in all public places. Muir v. Louisville Park Theatrical Association, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112 (1954), vacating 202 F.2d 275 (6th Cir.1953) (parks); Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141, 100 L.Ed. 776 (1955), rev‘g 223 F.2d 93 (5th Cir.1955) (golf courses); Mayor of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1955), aff‘g 220 F.2d 386 (4th Cir.1955) (public beaches); New Orleans Park Improvement Association v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958), aff‘g 252 F.2d 122 (5th Cir.1958) (parks); State Athletic Commission v. Dorsey, 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028 (1959), aff‘g 168 F.Supp. 149 (E.D.La.1958) (athletic events); Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962), vacating 199 F.Supp. 585 (W.D.Tenn.1961) (restaurants); Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963) (courtroom seating); Schiro v. Bynum, 375 U.S. 395, 84 S.Ct. 452, 11 L.Ed.2d 412 (1964), aff‘g 219 F.Supp. 204 (E.D.La.1963) (auditoriums). In not one of these cases did the Supreme Court or those lower courts that were affirmed find it necessary to explore the question whether blacks were stigmatized by the segregation. As Judge Wisdom stated in Dorsey, segregation based on race is “inherently discriminatory and a violation of the Equal Protection Clause of the Fourteenth Amendment.” 168 F.Supp. at 151. Beyond statements such as these, the courts struck down all forms of segregation on the basis of nothing more than a citation to Brown or cases relying on Brown. Thus, in segregation cases, stigma may be presumed.6 In the instant case, the defendants adduced no evidence to rebut the presumption.7
The courts have long recognized that the freedom to associate with others to effect political change, be it through joining a group that advocates a particular doctrine or campaigning to elect a representative, is among the highest values protected by the First Amendment. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (J. Brandeis, dissenting); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The harm occasioned by the virtually total segregation of the races by voting districts, and the consequent limitation it places on the ability of blacks and whites to join together in the campaign process, cuts to the heart of our principle of self-government.
The Remedy
I disagree with several aspects of the remedy the majority accords the Crosby plaintiffs. First, the majority remedy adopts the wall which was part of the Commission plan. To my knowledge, this is the first time a federal court has ordered a state to segregate the races. There is some attenuation by reason of the fact that the wall was first devised by the Commission, but the fact remains that these segregated districts are part of an overall plan which the majority is ordering the state to put into effect. The departures the majority has ordered from the original Commission plan are necessarily based upon the remainder of the map being configured the way it is. The districts are pieces of a jigsaw puzzle and each piece must fit.
The plan ordered by my colleagues does give the blacks six senatorial districts in which they are likely to elect a candidate, rather than the five they would have under the Commission plan. The court plan also gives the blacks 13 rather than the 12 House districts provided by the Commission plan. The manner in which this result has been obtained is the basis for my second objection to the majority remedy. The district boundaries have been drawn along racial lines for the purpose of yielding black majorities of 65 per cent or more in selected districts. Just as the line forming the boundaries of the “wall” districts has been precisely drawn along the western edge of the heaviest black concentration, so also the boundaries of the court-ordered districts outside the walled area have
The rationale for this method has not been explicitly stated by my colleagues, but it is apparent from what has been done. The majority has obviously adopted the proposition that racial minorities are entitled to proportional representation. Secondly, they have accepted the argument of the plaintiffs that blacks and Hispanics are entitled to be placed in districts in which they will form at least 65 per cent of the population. I disagree with both of these propositions.
It is important to know how the court arrived at its remedy, for the process reveals the principles of reapportionment my colleagues have embraced. The majority did not have to structure its own plan from the ground up. Instead, the majority was able to produce a court plan by splicing several already available maps onto the Commission plan. These additional maps were drawn by the parties in the course of settlement negotiations. The parties discussed settlement throughout the trial of the case, with the encouragement of the court. Everyone realized the case presented difficult problems and that a settlement would probably be preferable to a solution imposed by the court. To make these settlement discussions as concrete as possible, the court requested counsel for the Commission defendants to prepare various alternative district configurations that would represent a compromise between the Commission plan and the demands of the three groups of plaintiffs.8 It was stipulated that counsel‘s efforts in this regard would not be taken as any concession or admission. Thereafter, counsel for the Commission spent long hours preparing various alternative maps which were then received as “court exhibits” for purposes of discussion. The principal exhibit was marked Court Exhibit 1A.
One of the criteria counsel used in preparing the court exhibits was the 65 per cent formula urged by plaintiffs, since it was clear that any district which did not have at least a 65 per cent black or Hispanic population would not be regarded by either the Crosby or DelValle plaintiffs as a district in which blacks or Hispanics would have, using plaintiffs’ terminology, “a meaningful opportunity to elect representatives of their choice.” Witnesses for both sides acknowledged that “an informal guideline” of 65 per cent has been used in reapportionments to obtain effective minority representation. The figure is arrived at by starting with 50 per cent and adding to it a 5 per cent allowance for the fact that minority populations are generally younger than white populations (and therefore have fewer members of voting age), a 5 per cent allowance on the basis that fewer minority members than whites register to vote, and another 5 per cent on the basis that the turnout of registered minority voters at the polls is less than the turnout of registered white voters. No witness testified to the accuracy of these estimates even in general, let alone as they might apply to Chicago. The 5 per cent allowance for each of the three factors appears to be arbitrary, and whether it has any relation to fact is, on the basis of this record, anyone‘s guess. At no time did the defendants agree that the “65 per cent formula” was factually legitimate or that its use could legally be required by this court.
The DelValle plaintiffs were not satisfied with the court exhibits insofar as they pertained to the Hispanic communities. Therefore, the DelValle plaintiffs prepared their own “settlement” map and this became known as DelValle Exhibit 208.
The Crosby plaintiffs and the defendants, despite considerable effort, were unable to settle. While the court was not privy to their discussions, in subsequent briefs the plaintiffs indicated that the ma-
After the trial was concluded, my colleagues desired to examine a map which would incorporate DelValle Exhibit 208 into Court‘s Exhibit 1A. Accordingly, counsel for the Commission was directed to prepare such a map, which he promptly did and furnished to the court. Shortly thereafter, we were informed by counsel for the Commission and the DelValle plaintiffs that those parties had settled the case between themselves by agreeing to the combination of DelValle Exhibit 208 and Court Exhibit 1A.
It should be emphasized that the Commission defendants have at no time agreed that Court‘s Exhibit 1A is an appropriate map insofar as the Crosby plaintiffs are concerned. They have not acceded to the proposition that racial minorities are entitled to proportional representation nor have they conceded the propriety of the 65 per cent formula. During final argument, counsel for the Commission reiterated his position that the court‘s exhibits were not offered by the Commission and that the Commission was standing by its original plan.
What the majority has now done is to adopt as the court‘s remedy Court Exhibit 1A combined with DelValle Exhibit 208. Because it has ready-made maps it can adopt by simple reference, the majority believes it need not explain how these particular lines came to be drawn and what their legal basis is. The entire exposition is contained in footnote 107 of the majority opinion, which refers to the court exhibits and describes the percentages of minority population which will be contained in each of the revised districts. The absence of a detailed explanation of the plan seems to be addressed by this statement in footnote 107 of the majority opinion:
We think it would be foolish to “draw our own map” or have a third party draw a map for us when we are able, by instructing the Commission, to eliminate the unconstitutional (and therefore unacceptable) features of the Commission plan.
In evaluating the court‘s remedy, it is important to distinguish this case from one arising under the
In a number of cases, the Supreme Court has made it clear that the district court‘s remedy in a reapportionment case may be an abuse of its equitable discretion if it is not founded on solid constitutional grounds. It is, of course, true that “[o]nce a right and a violation have been shown, the scope of a district court‘s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). However, as the Court cautioned in Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 1878, 29 L.Ed.2d 363 (1971), “The remedial powers of an equity court must be adequate to the task, but they are not unlimited. Here the District Court erred in so broadly brushing aside state apportionment policy without solid constitutional or equitable grounds for doing so.”
The Court has also made it clear that a court-ordered reapportionment plan will be held to stricter standards of constitutionality than those governing plans adopted by a legislature. Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977); Chapman v. Meier, 420 U.S. 1, 18-19, 95 S.Ct. 751, 761-62, 42 L.Ed.2d 766 (1975); East Carroll Parish School Board v. Marshall, 424 U.S. 636, 639, 96 S.Ct. 1083, 1085, 47 L.Ed.2d 296 (1976). The rationale is set forth in Connor:
These high standards reflect the unusual position of federal courts as draftsmen of reapportionment plans. We have repeatedly emphasized that “legislative reapportionment is primarily a matter for legislative consideration and determination, Reynolds v. Sims, 377 U.S. at 586 [84 S.Ct. at 1394] for a state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality. The federal courts by contrast possess no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people‘s name. In the wake of a legislature‘s failure constitutionally to reconcile these conflicting state and federal goals, a federal court is left with the unwelcome obligation of performing in the legislature‘s stead, while lacking the political authoritativeness that the legislature can bring to the task. In such circumstances, that must be accomplished circumspectly, and in a manner “free from any taint of arbitrariness or discrimination.” Roman v. Sincock, 377 U.S. 695, 710 [84 S.Ct. 1449, 1458, 12 L.Ed.2d 620].
Connor v. Finch, 431 U.S. at 414-415, 97 S.Ct. at 1833-34.
For the reasons stated in Connor, the Supreme Court has held that a federal court abuses its equitable discretion when it creates a plan containing districts with population deviations that are unnecessarily large, Chapman v. Meier (5.95 per cent deviation), and when it mandates the use of a multi-member district plan, Connor v. Finch, East Carroll Parish School Board v. Marshall. On the other hand, the Court has approved plans submitted by a legislature in which the population deviation is significantly higher than that in Chapman. See, e.g., Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973) (16.4 per cent deviation), and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) (9.9 per cent deviation). It has also approved, in certain circumstances, the use of multi-member districts in legislative plans. See, e.g., Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971).
At this time, we read the decisions of the Supreme Court as admonishing lower federal courts to act cautiously in reapportionments and to leave racially proportional representation to legislative bodies, at least in the absence of some impelling reason to take it into account, for example, where the correction of historic racial discrimination and not merely proper representation is involved.
582 F.2d at 936. The Court of Appeals concluded with some advice to the district court on fashioning an acceptable remedy:
The judge must analyze the plan and determine that the probable results are such that minority strength is not diluted. But this legitimate concern with the outcome cannot justify a strict proportionality brought about by manipulation of district lines . . . . The boundaries should be drawn with an eye to compactness, contiguousness, and the preservation of natural, political and traditional boundaries; not racially balanced representation. We are not legislatures.
582 F.2d at 937 (emphasis supplied).
Thus, in Marshall, it was held an abuse of discretion to remedy a long history of vote dilution with a plan premised on proportional representation. The remedy adopted by the majority in the instant case presents one further turn of the screw. Here, the issue is whether a federal court may require a state that is not subject to the
I begin with the Supreme Court‘s latest expression, Mobile v. Bolden, 446 U.S. 55, 78-79, 100 S.Ct. 1490, 1506, 64 L.Ed.2d 47 (1980) (plurality opinion) since that case both confirmed and extended the holding of Marshall v. Edwards. There the Court stated:
It is, of course, true that the right of a person to vote on an equal basis with other voters draws much of its significance from the political associations that its exercise reflects, but it is an altogether different matter to conclude that political groups themselves have an independent constitutional claim to representation. And the Court‘s decisions hold squarely that they do not [citations omitted].
The fact is that the Court has sternly set its face against the claim, however phrased, that the Constitution somehow guarantees proportional representation. According to the plurality in Mobile, it is not only strict proportional representation that is beyond the equitable power of a court to require. Rather, it is any kind of plan that requires a racial, ethnic or other identifiable group to be given representation as such a group. In the quotation from Mobile, supra, the plurality opinion rebuffs the idea “that political groups themselves have an independent constitutional claim to representation” by noting that the Court has consistently rejected the claim “however phrased, that the Constitution somehow guarantees proportional representation” (emphasis added). The majority in the instant case claims that its plan is not proportional representation because the blacks will have six rather than the seven Senate districts they would have under strict proportional representation. In my view, the question is not whether it is six or seven, but whether the districts have been drawn on the invalid premise that blacks have a constitutional right to district lines that will enable them to vote as a group.
Even apart from the holding of Mobile v. Bolden, the majority‘s remedy suffers from a further defect. As indicated in Connor v. Finch, a court abuses its equitable discretion when it adopts a remedy that usurps the prerogative of the state legislature to make critical policy choices in connection with reapportionment. Justice Stewart succinctly stated the job of federal courts in these cases: “In the reapportionment context, it is the duty of a court seeking to remedy an unconstitutional apportionment to right the constitutional wrong while minimizing disturbance of legitimate state policies.” Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 202, 92 S.Ct. 1477, 1486, 32 L.Ed.2d 1 (1972).
The majority‘s remedy does not merely conflict with legitimate state policies regarding reapportionment, it preempts the state from forming the policies. As Mobile v. Bolden makes clear, the object of the remedy in any vote dilution case is to give the minority group equal access to the political processes leading to nomination and election. This is all the cases have ever held. United Jewish Organizations, 430 U.S. at 165, 97 S.Ct. at 1009-10; White v. Regester, 412 U.S. 755, 765-767, 93 S.Ct. 2332, 2339-40, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. at 1872. Equality of access may be effected in several ways. The legislature may choose to draw “safe” minority districts or it may choose to spread, but not intentionally to fracture, the minority population over a few districts. It is clear, however, that neither choice is constitutionally mandated. Mobile v. Bolden, supra; Whitcomb v. Chavis, 403 U.S. at 156-157, 91 S.Ct. at 1875-76. How equality of access is achieved in a given state is thus a policy choice that has been left, in the first instance, to the legislatures.
The majority plan is not only a substitution of the court‘s policy for that of the legislature, it is the imposition of a policy that has no constitutional basis. It is a political compromise. It lies half way between the Commission plan and the Coalition plan proposed by the plaintiffs. This is apparent from simply looking at the majority plan: it gives the blacks six senate districts in which they have a 65 per cent majority rather than the five contained in the Commission plan or the seven provided in the Coalition plan and still demanded by the plaintiffs. It gives the blacks 13 House districts in which they are at least a 65 per cent majority rather than the 12 found in the Commission plan or the 14 in the Coalition plan. Thus, on its face, the majority plan appears to be a compromise arrived at by the time-honored method of splitting the difference. But this conclusion need not be based merely upon looking at the various plans. That would be a matter of inference—a good one, but still subject to the usual reservations about circumstantial evidence. It is not necessary to rely on inference here. To the extent that anyone can know anything, we know that the majority plan is the result of political compromise because we know it is based entirely upon Court‘s Exhibit 1A and DelValle Exhibit 208, nothing more. The remedy Court Exhibit 1A provides for the blacks is simply the settlement offer made by counsel for the Commission. It does not purport to be based upon any constitutional principle at all; it was merely a way of trying to dispose of the case. DelValle Exhibit 208 is different in one respect, in that it does not represent a compromise. It represents total victory for the Hispanic plaintiffs, who drew this particular exhibit in such a way as to afford the Hispanic communities the maximum possible representation consistent with requirements that legislative districts be compact and contiguous. But I do not see that the Hispanic component of the majority plan is any more constitutionally based than the black component.
The majority remedy does not stop with ordering proportional representation for minorities. It actually goes beyond that and orders that blacks and Hispanics be given special treatment by way of the 65 per cent formula. The majority‘s discussion of the guideline is, like its discussion of the majority plan itself, contained in footnote 87. The footnote recites that during the testimony “both sides referred approvingly to the 65 per cent figure.” I recall no such “approving” reference by any defense witness. Defendants acknowledged that such a formula has been used in reapportionment cases but did not concede its propriety. The only witness for defendants referred to in the footnote was Kimball Brace, a professional reapportioner, and while he said he has used the guideline himself in other cases, he did not say he believes it is valid.
This is the first court to order the implementation of such a guideline. I believe the order is without evidentiary basis and without legal precedent. Furthermore, I believe it is bad public policy.
In United Jewish Organizations v. Carey, 430 U.S. 144, 164, 97 S.Ct. 996, 1009, 51 L.Ed.2d 229 (1977), a voting rights case where affirmative action was required to remedy past discrimination, the Court stated
This language furnishes no authority for requiring a state to use a 65 per cent formula, nor does it even support the proposition that a state‘s voluntary use of a 65 per cent formula would be reasonable in every case.
Justice Brennan, concurring in United Jewish Organizations, explored the implications of preferential treatment such as the 65 per cent formula:
Furthermore, even preferential treatment may act to stigmatize its recipient groups, for although intended to correct systematic or institutional inequities, such a policy may imply to some the recipient‘s inferiority and especial need for protection.
430 U.S. at 173-174, 97 S.Ct. at 1014. See also University of California Regents v. Bakke, 438 U.S. 265, 298, 360, 98 S.Ct. 2733, 2752, 2783-84, 57 L.Ed.2d 750 (1978) (opinions of J. Powell and Justices Brennan, White, Marshall and Blackmun); Califano v. Goldfarb, 430 U.S. 199, 223, 97 S.Ct. 1021, 1035, 51 L.Ed.2d 270 (1977) (J. Stevens, concurring); Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1378, 43 L.Ed.2d 688 (1975); DeFunis v. Odegaard, 416 U.S. 312, 343, 94 S.Ct. 1704, 1719, 40 L.Ed.2d 164 (1974) (J. Douglas, dissenting). It seems to me that the 65 per cent formula, applied routinely in favor of minorities without reference to whether they have been fenced out of the electoral process, is indeed a suggestion of their inferiority. The evidence is undisputed in this case that there has never been any racial or ethnic bar to voting in the State of Illinois. There has never been a poll tax here, nor a literacy test, nor any history of racial intimidation in electoral matters. There is no question that blacks in this country have had enormous obstacles to overcome and that the effects of slavery and discrimination are difficult to extirpate. On the other hand, registering to vote and turning up at the polling place to cast that vote is something millions of blacks are able to do. This is because, in a state like Illinois, whatever racial barriers there are in matters such as housing and employment, there are none barring access to the voter‘s registration office or to the polling place.
Various groups of immigrants to this country have faced and are still facing difficult problems of adjustment that interfere with their participation in the electoral process. Many of these people do not speak English when they arrive in this country but take the trouble to learn it. Millions of immigrants have encountered discrimination in employment. All immigrants, regardless of their national origin, have had to do something to gain the franchise that no black in modern times has had to do: they have had to go through the lengthy and not altogether undemanding process of becoming citizens of the United States.
Despite the deficiencies of the record before us, I do not doubt that a factual basis for each of the predicates of the 65 per cent formula—younger age, lower registration, lower turnout—could be demonstrated. (I do doubt that there is any factual basis for the 5 per cent allowance for each of these factors; I suspect this is entirely arbitrary). I am willing to assume that the Illinois legislature could validly make an allowance for these factors in drawing the boundaries of legislative districts.11 But I do not think it is proper for this court to order the State of Illinois to make such an allowance. Granting that the black and Hispanic populations have a higher birth rate than whites and thus have a lower average age, how does this translate into a constitutional principle that the states must therefore allow the blacks and Hispanics of
One wonders just how far this matter of electoral subsidies goes, and where it will end. What if it could be shown that naturalized citizens of Lithuanian extraction in Chicago are registered to vote in lesser percentages than native-born citizens of Irish and Polish extraction? Is this an Equal Protection question? What if Hispanics have a lower average age than blacks; are the Hispanics entitled to more than the 5 per cent allowance for age, or does the black allowance become reduced? The questions are unending, and it does not seem to me that the majority opinion provides any answers. It certainly is not an answer to say that the blacks and Hispanics in this case are being given the advantage of the 65 per cent guideline because of a prior history of state discrimination
against them in electoral matters. There is no such history. The black and Hispanic plaintiffs are being given the benefit of this 65 per cent guideline solely because of the testimony that blacks and Hispanics are younger, register less and vote less. It follows, it seems to me, that any group which can make a similar claim vis-a-vis the white population, or any identifiable white ethnic group that can make the claim vis-a-vis the white population at large, can request the same relief.
A further problem with the 65 per cent formula is that it seems to be inconsistent with the cases in this Circuit which hold that a defendant in a criminal case cannot complain that grand and petit jurors were selected from a voting list which contains disproportionately few young persons and blacks. See United States v. Dellinger, 472 F.2d 340, 364-366 (7th Cir.1972); United States v. Gast, 457 F.2d 141 (7th Cir.1972). As Justice Douglas asked in his dissent in Wright v. Rockefeller, supra, “If race is not a proper criterion for drawing a jury list, how can it be in designing an electoral district?” 376 U.S. at 67, 84 S.Ct. at 611.
This completes my criticism of the remedy ordered by the majority. I will describe briefly the remedy I think appropriate for the Crosby plaintiffs. The relief I would grant would be a map drawn according to the traditional neutral criteria, without regard to what I believe is the constitutionally impermissible consideration of race or ethnic character. Such a map would consist of compact and contiguous districts, drawn with due regard to the one-person-one-vote requirement as well as natural
My instructions to a court reapportioner would be to draw contiguous, compact, one-person-one-vote districts in the City of Chicago, starting at some point on the edge of the lake (selected either arbitrarily or with some neutral logic the reapportioner might have) and work out from there. I would forbid any initial reference to demographic maps showing racial and ethnic distribution. If the end result turned out to be clearly unfair to some racial or ethnic minority, this would be cause for some redrawing. I do not suggest that a completely random map would necessarily be adequate on the first try. What I do suggest is that it is the only appropriate starting point for a court-ordered plan in a case where there is no prior history of official discrimination, and thus, no basis for affirmative action.
The majority opinion, in footnote 95, addresses itself to the idea of a colorblind map and concludes that it would have to be drawn by a computer because “any human redistricter is well aware of the racial concentrations in the city . . . .” The majority also expresses “grave doubts as to whether such a ‘colorblind’ map would be accepted as neutral by any of the parties to this lawsuit.”
It seems to me a non sequitur to say that because a redistricter would be aware of the racial concentrations in the city he would be unable to draw a map that ignored racial concentrations. To know something is not to be controlled by it, unless, of course, one wants to be. Much of our civil rights legislation is based upon the premise that decisionmakers can and should make decisions without regard to race, religion, national origin, or other invidious factors. Employers who obviously know the race or sex of job applicants are required by law to make hiring decisions without regard to race or sex. If the majority opinion is correct, this would be impossible. Yet, it is done every day. Fair Housing laws require sellers and landlords to sell and rent real estate without regard to race, religion or national origin. The same laws also require realtors to show available housing on a non-discriminatory basis. These are person-to-person, face-to-face dealings. There is no doubt that the seller of a home or a landlord or a realtor knows the race of the applicant. Age discrimination laws provide another example of a situation where the decision-maker is expected to act without regard to a particular factor even though he knows that factor exists.
A closer analogy to the drawing of electoral district lines would be the drawing of school attendance boundary lines. Surely our law presumes that school attendance boundaries can be drawn along neutral lines, without regard to race, because this is what federal law requires.14 If the majority opinion is correct about the frailty of a “human” decisionmaker, it would be impossible to draw school attendance boundaries which are not based upon race. Again,
The computer will be involved whether the lines are colorblind or not, since so much of the redistricting process is based upon computer data. The census information itself, which provides the reapportioner his most important data base, is computer-generated. All of the maps received in evidence, including Court Exhibit 1A and DelValle Exhibit 208, which the majority adopts as its plan, are drawn from data supplied by computers. (The information could, of course, be derived in other ways; the computer merely speeds up the process).
Finally, I would not worry about whether any of the parties to this lawsuit would consider a colorblind map to be neutral. All of the plaintiffs in this case desire not a neutral map but one which will maximize their group voting potential. The DelValle plaintiffs have achieved this under the court-ordered plan. I assume they will be fully satisfied with the court plan. The Crosby plaintiffs, on the other hand, have not achieved the maximum bloc voting strength for blacks which they sought in this lawsuit, and I suspect they will be no happier with the court plan than they were with the Commission plan. I believe these cases must be decided according to the law, not according to what the parties want or think they should have. The majority‘s concern with whether the parties would “accept” a colorblind map reveals again the desire of the majority for compromise.
The drawing of a colorblind map might have pitfalls of which I am unaware. Should that prove true, adjustments would have to be made. Whatever the difficulties might be, I think they would be less formidable than those which are found in the majority plan. If we were to tell a reapportioner to draw a colorblind map, he would have instructions he could understand. I do not know what instructions are given by the majority decision. The rationale for the lines being drawn as they are is not stated. The result is in reality a political compromise, but the opinion does not say so. It gives no guidance to the next set of reapportioners who will have the task of drawing a map that complies with the Constitution. Heretofore, it has been thought sufficient to avoid purposeful discrimination or dilution of minority voting strength. Now, some unspecified degree of affirmative action is required, even without a prior finding of official discrimination. Perhaps the explanation omitted from the majority opinion can be spelled out in future cases. On the basis of today‘s decision, I suspect there will be plenty of them.
The DelValle Plaintiffs
The majority opinion adopts the Hispanic post-trial settlement with the Commission as part of the court-ordered plan and finds that the settlement is “fair.” The parties were, of course, free to settle the case and were encouraged by the court to do so. If that was all that occurred here, I would have no occasion to dissent. But this settlement is receiving the imprimatur of this court, both by its incorporation into the court‘s judgment order and by the specific finding of the majority that the settlement is “fair.” Thus, the settlement will apparently have precedential value. In future reapportionments, Hispanics and other groups, could believe, quite reasonably, that they are entitled to the same treatment the Hispanics receive in the settlement adopted by the court today. For this reason, I am compelled to state that, in my view, the settlement is not fair. It gives the Hispanics full relief when, under the evidence, they are entitled to none.
The Hispanic plaintiffs, in my opinion, have not met their burden of showing that the defendants purposefully discriminated against them because of their Hispanic ancestry. It is true that the Commission map is not drawn so as to maximize the voting strength of either the Puerto Rican community on the near north side of the City or the Mexican-American community on the south side. The lines could have been drawn so as to form districts which would
Plaintiffs also point out that the Commission acceded to the requests of Evanston and Oak Park not to be divided, while ignoring the requests of Hispanic leaders that the Hispanic neighborhoods in Chicago be given the same treatment. Plaintiffs argue that this disparate treatment of the various requests is, of itself, unconstitutional discrimination against the Hispanic community. While the argument has some equitable appeal, I believe it must be rejected. Failure or refusal to comply with the request of Hispanics, even while complying with similar requests by other groups, does not show purposeful ethnic discrimination. What it shows is that a particular group of residents was not afforded the same consideration as other groups of residents. The evidence showed that the Commission was beleagered with requests and demands of all kinds, many of which were in conflict, so that, necessarily, not everyone could be satisfied. There must always be disappointed suitors in every reapportionment. The fact that the suitor happens to be white, black or Hispanic does not show that this was the reason for the decision.
There is no doubt that the Commission knew the effect of its lines on the Hispanic communities. It knew that the voting strength in each of the communities would be divided in such a manner that there would be no district in which Hispanics, as a bloc, would be likely to elect a candidate of their choice. Plaintiffs placed heavy emphasis on this awareness. However, as the Supreme Court has held, the discriminatory intent required for a constitutional violation means more than that the decisionmaker was aware of the consequences; it means that the decisionmaker selected the particular course of action not merely “in spite of” but at least in part “because of” its adverse affects upon the objecting group. Mobile v. Bolden, 446 U.S. 55, 72 n. 17, 100 S.Ct. 1490, 1502 n. 17, 64 L.Ed.2d 47 (1979), quoting from Personnel Administrator of Mass v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). It is clear that the Commissioners acted “in spite of” the adverse affect upon the block voting strength of the Hispanic communities. There is no evidence, however, that the Commission acted, even in part, “because of” that adverse effect.
Plaintiffs also argued at trial, and the majority appears to agree, that the Commission‘s “snowsuit theory” about the Hispanics amounted to intentional ethnic discrimination. This is as close as the plaintiffs came to the necessary showing, but it falls short. First, it is clear to me that the “snowsuit theory” was a defense devised in preparation for trial. It was not something the reapportioners had in mind when drawing the Commission map. The notion that Michael Madigan and Martin Murphy, the authors of the Chicago portion of the Commission map, gave careful consideration to the probable direction of future Hispanic population movement is not one I find to be supported by any credible evidence. It is ironic that this post-event rationalization offered by the defendants is now the principal evidence against them.
Even assuming that Madigan and Murphy did consider probable Hispanic residential trends at the time they were drawing the map, it seems to me that such a consideration would still be in the “in spite of” category rather than the “because of” category. The lines were not drawn as they were because of the direction of anticipated Hispanic migration. They were drawn that way because of Governor Shapiro‘s insistence that Senators Netsch and Marovitz be accommodated. The snowsuit theory, assuming it played a role, was simply a prediction that the Netsch-Marovitz concession would not hurt the Hispanics in the long run because they would “grow into” the districts as drawn.
Conclusion:
What has happened here, in my view, is that a federal court has adopted as constitutional requirements the racial considerations which the Constitution permits a state voluntarily to consider. It is undoubtedly good government and good politics to try to accommodate as many competing demands as the law and reason will allow when a state is reapportioned. Obviously, one of the prime demands in recent times has been that of racial and ethnic minorities for fair treatment. Thus, the state reapportioner works with a mass of demographic information which inevitably becomes depicted in demographic maps, showing the concentrations of blacks and Hispanics. This is all made possible by the census conducted every ten years, which reveals this information. Federal courts are therefore always going to be confronted with an abundance of demographic maps, showing where blacks and Hispanics live. At the present time, we have no maps showing where other ethnic groups live, but if called upon, the computer could probably deliver them. It seems to me important for federal courts to realize that this information, in all its splendor, may be very
Appendix To The Dissent
This Appendix consists of a map of the House Districts on the South Side of Chicago as they appear in both the Commission Plan and the plan ordered by the court. The shaded portions of the map represent those census tracts in which Blacks make up at least 85 percent of the population. In the unshaded portions, Blacks constitute less than 20 percent of the population. The heavy dark line drawn along the westernmost boundary of House Districts 23, 24, 31, 33, 27 and 34 represents what is referred to in both opinions as the “wall.” The white neighborhoods of Bridgeport, Canaryville, Gage Park, Marquette Manor and Marquette Park lie immediately west of Districts 23, 24, 31 and 33.
Notes
BY MR. SULLIVAN:
Q We have established, I believe, that there were accommodations made in respect of the view of Evanston, Oak Park, Hyde Park, the Marovitz/Netsch matter, and I think you testified that you made certain accommodations to the Bridgeport community in drawing your map, is that right, and the Canaryville community and the Marquette Park community?
A It was my judgment that it would not be wise to have majority black districts representing those communities.
An examination of the record in this case suggests that the Court of Appeals may have believed that benign districting by federal judges is itself unconstitutional gerrymandering even where (a) it is employed to overcome the residual effects of past state dilution of Negro voting strength and (b) the only alternative is to leave intact the traditional “safe white districts. If that were in fact the reasoning of the lower court, then this petition would present an important federal question of the extent to which the broad equitable powers of a federal court, Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971) are limited by the colorblind concept of Gomillion v. Lightfoot, 364 U.S. 339 [81 S.Ct. 125, 5 L.Ed.2d 110], and Wright v. Rockefeller, 376 U.S. 52, 57, 67 [84 S.Ct. 603, 605, 611, 11 L.Ed.2d 512] (Douglas, J., dissenting). In reapportionment cases, as Justice Stewart has observed, “the federal courts are often going to be faced with hard remedial problems” in minimizing the friction between their remedies and legitimate state policies. Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 204 [92 S.Ct. 1477, 1487, 32 L.Ed.2d 1] (dissenting opinion).
While some courts have held that the Supreme Court‘s opinion in United Jewish Organizations answered this question in the affirmative, see, e.g., Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 139, 151 (5th Cir.1977), I believe this is a mistaken reading of the case.
Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the states are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured.
(Emphasis added).
| Area | 1970 | 1980 | % Change |
|---|---|---|---|
| Chicago | 3,369,357 | 3,005,072 | - 10.8 |
| Cook County | 5,493,766 | 5,253,190 | - 4.4 |
| Collar Counties | 1,483,845 | 1,849,138 | + 24.6 |
| Chicago | 1970 | % | 1980 | % |
|---|---|---|---|---|
| White | 1,959,910 | 58.2% | 1,287,077 | 42.8% |
| Black | 1,102,630 | 32.7% | 1,188,221 | 39.5% |
| Cook County (including Chicago) | 1970 | % | 1980 | % |
|---|---|---|---|---|
| White | 3,954,014 | 72.0% | 3,217,021 | 62.3% |
| Black | 1,133,475 | 21.5% | 1,308,763 | 24.9% |
Q. [By Mr. Harte] Former District 20 was the first district drawn[?]
A. [By Rep. Madigan] The next district drawn was former District 22.
*
I was also concerned that the 22nd District not move west because, if it did, it would mean that it would be a majority black district with black legislators expected to represent the communities of Bridgeport and Canaryville. I have lived in Chicago all of my life. I know of my knowledge that there are very strong racial attitudes in the communities of Bridgeport and Canaryville and that it would not be in my opinion a wise judgment to cause this majority black district to include parts of these two communities. Therefore—
Q. Excuse me. Have you consulted with the black legislators in that regard also?
A. Yes, I had, and, in particular, with regard to this district; this is the district that had been represented by former Representative Davis, who at this time was serving as a member of the reapportionment commission. He and I specifically discussed the ability of a black representative to represent the people of Bridgeport. And it was his judgment that it would not be wise to have a majority black district include part of Bridgeport. Tr. at 1376-78.
Q. [By Mr. Harte] What about the areas of Bridgeport, Canaryville, Marquette Park and Mount Greenwood, Beverly, and here in Hegewisch, do those give you concern as to risks that could be entertained by black legislators running in that area?
A. [By Rep. Alexander] There would definitely be some risk for any black candidate that would be running in those areas.
Q. Is it, in your judgment, a legitimate concern for persons drawing the line to remove that risk?
A. I would hope so, yes.
Q. And you are familiar, are you not with the ecological boundary, or the differences in the communities, the white community, say, in Bridgeport and the black community in the east, Canaryville, and the rest of these, are you not?
A. Yes, I am.
Q. And would, in your judgment, there be an antagonism which a white or black legislator would have to deal with in those communities?
A. Yes, there would be. A black legislator running in that kind of a district, nine times out of 10, or a hundred per cent, would not even have an opportunity to campaign in that area. He just wouldn‘t cross over and present himself as a candidate in those kinds of areas. It would be too volatile; conditions that historically have been there have been shown with regards to those areas. Tr. at 1026-27.
Similarly, Black Representative Sylvester Rhem testified:
Q. [By Mr. Harte] Is there a concern with you, Representative Rhem, as to winning in a primary in that area?
A. [By Rep. Rhem] It is my opinion that I would not be able to win. I feel that the districts here, the Bridgeport people vote as a block. The problems are different than what the blacks are, and I just could not communicate.
Q. There would be antagonism between the two?
A. In my opinion, yes.
Q. If you happened to be elected, would you be able to serve in your judgment the white constituency in that area?
A. I would do my best. I would say that there would be some hostility toward me, but if I was fortunate enough to win, I would do the best that I can.
Q. Were your views considered in the redistricting process by the leadership?
A. Yes. Tr. at 1061-62. See also Tr. at 1621-28 (testimony of Corneal Davis).
Q. [By Mr. Sullivan] Do you have any comments that distinguish between the west and the south sides of Chicago on the original map?
A. [By Representative Braun] On the south side the most stunning aspect, in my opinion, of that map is the wall that it draws around the black community. It segregates the black community from the rest of Chicago.
Q. Mrs. Braun, in the testimony that has been given in the court there has been justification by several witnesses for reliance on the Commission map on the grounds that there is racial tension in some of these areas. Have you heard that testimony?
A. I have.
Q. Do you wish to comment on that point to the Court?
A. The history of this country has been marked by racial tension. It is something that people who are fair-minded, who believe in democracy, who believe in integration, have to get around. There was racial tension in the South when the desegregation of the buses occurred, desegregation of the lunch counters and of the schools. There is still racial tension. There is still racial tension in Chicago. But it seems to me that is a very poor reason to segregate people and to have an official imprimatur on the creation of a legislative ghetto in Chicago, and that is what this map, in my opinion, does. Tr. at 2058, 2062. Plaintiffs’ other witnesses, including Senator Richard Newhouse, testified in general about the separation of black and white communities, indicating their preference for a redistricting plan that would include more white areas in majority black districts. See Tr. at 646-47, 650-52, 666-75 (remarks of Sen. Newhouse).
Moreover, it seems to us that any form of “neutral” construction of compact districts will, as a matter of mathematical probability, leave the black South Side in just as “packed” a condition as exists under the Commission Plan. For the electoral boundaries on the South Side did not “create” the heavy black voting concentrations; these lines merely stand in the way of affirmative compensation for highly concentrated black populations through the inclusion of neighboring white areas in the black-controlled districts.
We also note that although the Hispanic Settlement will increase the total deviation for Commission Plan House districts to approximately 2.4%, and to approximately 1.8% for Commission Senate districts, these deviations are well within the guidelines approved by the Supreme Court for both a court-developed plan, see Connor v. Finch, 431 U.S. 407, 414-15, 97 S.Ct. 1828, 1833-34, 52 L.Ed.2d 465 (1977), and a plan developed by the state legislature or a constitutionally created agency. See Mahan v. Howell, 410 U.S. 315, 328-29, 93 S.Ct. 979, 986-87, 35 L.Ed.2d 320 (1973).
. . . the Hispanic plaintiffs believe that Senate Districts 3, 4, 5, 6, 10, 11 and 18, and House Districts 5, 6, 7, 8, 9, 10, 11, 12, 20, 21, 22 and 35, as constituted in the [Settlement Agreement], fairly and reasonably provide Hispanics in those districts with the right to participate and vote in electing representatives from those districts to the Illinois General Assembly without fear of dilution of their vote considering the 1980 Census data and the geographic location of concentrations of Hispanic population. . . .