League of Women Voters of Chi v. City of Chicago

In the

United States Court of Appeals

For the Seventh Circuit

No. 13-2977

LEAGUE OF WOMEN VOTERS OF

CHICAGO, et al.,

Plaintiffs-Appellants,

v.

CITY OF CHICAGO,

Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 1:13-cv-02455 — Sharon Johnson Coleman, Judge.

ARGUED APRIL 7, 2014 — DECIDED JULY 9, 2014

Before WOOD, Chief Judge, and KANNE and SYKES, Circuit

Judges.

KANNE, Circuit Judge. In 2012, Chicago’s City Council voted

on and adopted a new ward map to take effect in 2015. The

League of Women Voters of Chicago and fourteen Chicago

citizens (collectively ”the League”) filed this action challenging

the redistricting. The League alleged that the 2015 map failed

to adhere to equal-population principles established under the

Equal Protection Clause of the Fourteenth Amendment. The

2 No. 13-2977

League also asserted that the City prematurely implemented

the 2015 boundaries, which infringed upon their right to vote

under the Fourteenth Amendment. The district court granted

the City’s 12(b)(6) motion for failure of the League to state a

claim. For the following reasons, we affirm.

I. BACKGROUND

Following the 2010 census, and pursuant to state law, the

City of Chicago sought to reapportion its fifty aldermanic

wards. 65 ILCS 20/21-36. Beginning in 2011, the City Council

conducted hearings to solicit the views of citizens regarding

the redrawing of ward boundaries. Under state law, the

Council was required to garner the approval of forty-one

aldermen in order to prevent a referendum on the redistricting

plan. 65 ILCS 20/21-39; 65 ILCS 20/21-40. On January 19, 2012,

the Council approved the redistricting plan by a vote of forty-

one to eight.

According to the 2010 census, the City’s population was

2,695,598, which, if divided equally, would result in 53,912

people in each ward. The wards created by the 2015 map

deviate from the average population per ward by a maximum

of 8.7 percent.

The League filed this action challenging the redistricting

ordinance. Only Counts I and III are at issue in this appeal.1 In

1

The League also asserted that the plan unlawfully created classifications

of citizens without any rational basis in violation of the Equal Protection

Clause of the Fourteenth Amendment. Additionally, the League made state

statutory claims, which the district court dismissed without prejudice

(continued...)

No. 13-2977 3

Count I, they alleged that the new ordinance was implemented

prematurely and deprived constituents of their right to equal

protection under the Fourteenth Amendment.

In Count III, the League claimed that the maximum

deviations of 8.7 percent between the wards violated the Equal

Protection Clause of the Fourteenth Amendment. They alleged

that the 2015 map was arbitrary, that it politically discrimi-

nated against “independent” aldermen, and that it departed

from traditional redistricting criteria. The League also alleged

that the Second and Thirty-Sixth Wards were redrawn to a

greater degree than others in an attempt to oust the aldermen

of these wards who demonstrated political independence from

the City Council majority.

Following the City’s 12(b)(6) motion, the district court

dismissed both Counts I and III for failure to state a claim. As

for Count I, the court held that the League had not alleged

permanent disenfranchisement nor a change to election law; at

most, the League had claimed temporary disenfranchisement,

which does not give rise to equal protection concerns. More-

over, the court noted that reacting to the concerns of future

constituents is simply part of the political process.

The court also dismissed the equal-population claim,

finding that the League failed to meet its burden to show a

prima facie case of unconstitutionality. The court, citing Brown

v. Thomson, 462 U.S. 835, 842 (1983) noted that a maximum

1

(...continued)

because it declined to exercise supplemental jurisdiction. The League does

not pursue these claims on appeal.

4 No. 13-2977

population deviation below 10 percent is considered minor and

insufficient to establish a prima facie case that requires justifica-

tion by the state. The court further found that the League’s

complaint did not allege that the map targeted an objectively

defined group and preserved the voting rights of minorities.

Finally, the court found that disfavoring certain aldermen over

others is an inherent part of the political process and an

inevitable result of redistricting.

II. ANALYSIS

A. Standard of Review

We review a 12(b)(6) dismissal de novo and construe all

allegations and any reasonable inferences in the light most

favorable to the plaintiff. Killingsworth v. HSBC Bank Nevada,

N.A., 507 F.3d 614, 618 (7th Cir. 2007). And while a complaint

does not need “detailed factual allegations” to survive a

12(b)(6) motion to dismiss, it must allege sufficient facts to

“state a claim to relief that is plausible on its face.” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007).

B. One Person, One Vote

The Equal Protection Clause principle of “one person, one

vote” requires that officials be elected from voting districts

with substantially equal populations. Reynolds v. Sims, 377 U.S.

533, 577 (1964). Thus, “one man’s vote in a[n] ... election is to be

worth as much as another’s.” Wesberry v. Sanders, 376 U.S. 1, 8

(1964). To achieve this result, the government must “make an

honest and good-faith effort to construct its districts as nearly

of equal population as is practicable,“ but mathematical

No. 13-2977 5

precision is not required. Gaffney v. Cummings, 412 U.S. 735, 743

(1973) (internal quotation marks omitted).

The Supreme Court has held that a maximum population

deviation greater than ten percent “creates a prima facie case

of discrimination and therefore must be justified by the state.”

Brown, 462 U.S. at 842–43. But when a maximum deviation is

less than ten percent, the deviation is considered minor and the

plaintiffs cannot “establish a violation of the Equal Protection

Clause from population variations alone.” White v. Regester, 412

U.S. 755, 764 (1973); see also Daly v. Hunt, 93 F.3d 1212, 1220

(4th Cir. 1996). Thus, a plan with a minor maximum population

deviation will be presumed to be constitutionally valid absent

a showing of “arbitrariness or discrimination.” Roman v.

Sincock, 377 U.S. 695, 710 (1964). To overcome the presumption,

the League makes three allegations of arbitrariness or discrimi-

nation.

1. Alderman O’Connor’s Statement

First, the League points to a statement made by Alderman

Patrick O’Connor who claimed that the map was created in

order “to have the largest number of City Council members

available so that we would not have a referendum.” The

League argues that this statement, standing alone, demon-

strates that the map was created arbitrarily. Yet this statement

suggests nothing of the sort. Alderman O’Connor was simply

stating a fact: in order to prevent a referendum from occurring,

it was necessary to obtain the proper majority of votes. 65 ILCS

20/21-39; 65 ILCS 20/21-40. One alderman’s statement can

hardly be said to establish that the whole City Council acted

arbitrarily in designing the map. At most, the statement reflects

6 No. 13-2977

that Alderman O’Connor wanted this bill to pass into law, a

proposition that required a substantial majority of votes.

2. “Independent” Aldermen

The League also claimed that the new map—designed by

Democratic aldermen—targeted two other Democratic alder-

men from the Second and Thirty-Sixth Wards who “have

shown political independence from the City Council majority.”

The League alleged that the City Council majority drew the

2015 map to “oust” these aldermen from their respective

districts. Citing Justice Stevens’ concurrence in the summary

affirmance of Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga.) (per

curiam), summarily aff’d, 542 U.S. 947 (2004), they argue that

political discrimination alone can serve to rebut the presump-

tion of constitutional validity for maps with deviations below

ten percent.2

Larios involved redistricting that was tainted by two

prohibited considerations: (1) the redistricting sought “to allow

2

We note that Larios did not fully address whether a state body’s political

motivations may serve to establish an equal-population violation. As the

Supreme Court has indicated, “Even in addressing political motivation as

a justification for an equal-population violation, ... Larios does not give clear

guidance. The panel explained it ‘need not resolve the issue of whether or

when partisan advantage alone may justify deviations in population’

because the plans were ‘plainly unlawful’” and all political motivations

were intertwined with clearly rejected objectives. League of United Latin Am.

Citizens v. Perry, 548 U.S. 399, 423 (2006), citing Larios, 300 F. Supp. 2d at

1352. Moreover, a summary affirmance means that the Supreme Court

agreed with the judgment “but not necessarily the reasoning by which it

was reached.” Mandel v. Bradley, 432 U.S. 173, 176 (1977) (quotation

omitted).

No. 13-2977 7

rural and inner-city Atlanta regions of the state to hold on to

their legislative influence” at the expense of Republican-

leaning areas; and (2) the deviations “were created to protect

incumbents in a wholly inconsistent and discriminatory way.”

Larios, 300 F. Supp. 2d at 1342. But Larios is inapplicable.

The district court’s concern in Larios was that the voters’

ability to elect their representatives was significantly dimin-

ished, not that individual Democratic or Republican represent-

atives were immune from the political process. It noted that

voters with particular ideologies were being disfavored:

“Republican-leaning districts [were] vastly more overpopu-

lated as a whole than Democratic-leaning districts.” Id. at 1331.

Such is not the case here.

The Constitution “guarantees the opportunity for equal

participation by all voters in the election of [their representa-

tives].” Reynolds, 377 U.S. at 566 (emphasis added). It is not

meant to insulate individual politicians from the threat of

political reprisal once redistricting occurs. The fact remains that

the equal-population requirement is meant to protect “an

individual’s right to vote.” Id. at 568 (emphasis added).

Redistricting is an inherently political process; indeed, the

Supreme Court has noted that “[p]olitics and political consider-

ations are inseparable from districting and apportionment....

The reality is that districting inevitably has and is intended to

have substantial political consequences.” Gaffney, 412 U.S. at

753; see also Larios, 300 F. Supp. 2d at 1354 (“a redistricting

process need not be free of politics in order to be constitu-

tional.”). As in any election or redistricting scheme, there are

bound to be winners and losers. Simply alleging that two

8 No. 13-2977

aldermen—who were of the same party as those seeking to

“oust” them—were at the short end of the proverbial stick is

not enough to overcome a presumptively constitutional map

and establish a prima facie violation of voters’ equal protection

rights.

3. Traditional Redistricting Criteria

Finally, the League asserts that the new map departs from

traditional redistricting criteria. But, as explained above, the

League fails to allege how any of these “grotesque shapes and

boundaries” harm voters. The suggestion that a map that is not

compact or genuinely contiguous violates equal protection

principles simply misstates the law, for “compactness or

attractiveness has never been held to constitute an independent

federal constitutional requirement.” Gaffney, 412 U.S. at 752 n.

18.

The use of traditional redistricting criteria is not a basis for

an equal-population violation, but rather a defense to be used in

defending a redistricting decision once the plaintiff has made

out a prima facie case. “Any number of consistently applied

legislative policies might justify some variance, including, for

instance, making districts compact, respecting municipal

boundaries, preserving the cores of prior districts, and avoid-

ing contests between incumbent Representatives.” Karcher v.

Daggett, 462 U.S. 725, 740 (1983)(emphasis added); see Larios,

300 F. Supp. 2d at 1349–50 (finding that the defendant made no

attempt “to justify the population deviations because of

compactness, contiguity, respecting the boundaries of political

subdivisions, or preserving the cores of prior districts.”

(emphasis added)). The Court continued in Karcher, “As long

No. 13-2977 9

as the criteria are nondiscriminatory, these are legitimate

objectives that on a proper showing could justify minor

population deviations.” Id.(internal citation omitted); see also

Shaw v. Reno, 509 U.S. 630, 647 (1993) (“traditional districting

principles such as compactness, contiguity, and respect for

political subdivisions” are “important not because they are

constitutionally required—they are not ... —but because they are

objective factors that may serve to defeat a claim that a district

has been gerrymandered.” (emphasis added)(internal citation

omitted)).

The “one person, one vote” principle seeks to prevent one

district from becoming so overpopulated, or underpopulated,

that it leads to significant disparities in voting strength

amongst others. See Reynolds, 377 U.S. at 562–564. Whether

certain wards appear to be “bizarre or uncouth,” as the League

alleges, is not enough to establish a prima facie case for an

equal protection violation. Rather, had the League made out a

prima facie case, the City could use traditional redistricting

criteria to show that the deviations are nonetheless constitu-

tional. The League has not done so and therefore their equal

protection claim must fail.

C. Early Implementation

The League also claims that the City has implemented the

new boundaries prematurely, which results in a denial of equal

protection under the Fourteenth Amendment. They base this

assertion on various letters and statements from individual

aldermen to show that the City has enacted a widespread

policy of early implementation. And although the complaint

admits that the Council “has not expressly approved by

10 No. 13-2977

resolution or ordinance the right of City Council members to

begin representing [constituents] on the basis of the new ward

boundaries[,]” the League nonetheless claims that the City has

already put the 2015 plan into practice.

The allegation, although framed otherwise, is essentially a

Monell claim, seeking to invoke the rule that prohibits munici-

pal agencies from implementing policies that cause constitu-

tional injuries under 42 U.S.C. § 1983.3 But the City cannot be

liable under section 1983 for respondeat superior. Rather, “it is

when execution of a government’s policy or custom, whether

made by its lawmakers or by those whose edicts or acts may

fairly be said to represent official policy, inflicts the injury that

the government as an entity is responsible under § 1983.”

Monell v. Dept. of Soc. Servs. of N.Y.C., 436 U.S. 658, 694 (1978).

There are only three ways in which a municipality can be held

liable under section 1983. There must be: (1) an express policy

that would cause a constitutional deprivation if enforced; (2) a

common practice that is so widespread and well settled that it

constitutes a custom or practice ; or (3) an allegation that the

constitutional injury was caused by a person with final policy-

making authority. Estate of Sims v. Cnty. of Bureau, 506 F.3d 509,

515 (7th Cir. 2007).

The League has conceded that the City has not imple-

mented this change by way of “a formal ordinance or resolu-

tion” and has not alleged that any one individual with policy-

making authority has caused the deprivation. Accordingly,

3

Though the district court did not address this issue, “we may affirm a

judgment on any ground the record supports and the appellee has not

waived.” Barton v. Zimmer, Inc., 662 F.3d 448, 454–55 (7th Cir. 2011).

No. 13-2977 11

they must allege a common, unwritten practice put in place by

the City that nonetheless has the force of law. They fail to do

so. The League relies on a few incidents wherein individual

aldermen have taken or refused action based on the 2015 map.

But this does not establish an impermissible custom or practice.

“Misbehaving employees are responsible for their own

conduct; units of local government are responsible only for

their policies rather than misconduct by their workers.” Waters

v. City of Chi., 580 F.3d 575, 581 (7th Cir. 2009). This minimal

correspondence by individual aldermen is a far reach from

proving a policy “so permanent and well settled as to consti-

tute a custom or usage with the force of law.” Baskin v. City of

Des Plaines, 138 F.3d 701, 704–05 (7th Cir. 1998). Accordingly,

the League has failed to allege a violation of their constitutional

rights.

III. CONCLUSION

The League failed to allege any facts that would entitle

them to relief under the Equal Protection Clause. For the

foregoing reasons, we AFFIRM the district court’s decision to

dismiss the claims.