# Harold B. Smith and Illinois Republican Party v. Kenneth R. Boyle, in Their Official Capacity as Members of the Illinois State Board of Elections

> Court of Appeals for the Seventh Circuit · May 21, 1998 · 144 F.3d 1060

URL: https://www.frixlaw.com/law-library/cases/9491193

## Case

- **Full name:** Harold B. SMITH and Illinois Republican Party, Plaintiffs-Appellants, v. Kenneth R. BOYLE Et Al., in Their Official Capacity as Members of the Illinois State Board of Elections, Defendants-Appellees
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** May 21, 1998
- **Citations:** 144 F.3d 1060; 1998 U.S. App. LEXIS 10227; 1998 WL 255377
- **Precedential status:** Published
- **Opinion:** Concurring in part by Flaum
- **Judges:** Posner, Bauer, Flaum
- **Cited by:** 25 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9491193

## How later opinions describe it (automated extraction)

- holding Illinois Republican Party and its chairman had standing to challenge Illinois Constitution’s method for selecting state supreme court justices that “denie[d] [its] members . . . a fair opportunity to elect candidates of their choice”
- recognizing that Wells precludes any one-person, one-vote claim under the Equal Protection Clause when challenging judicial elections
- noting that Supreme Court cases addressing legislative redistricting indicate that discriminatory effect might suffice to establish intent

## Opinion text

FLAUM, Circuit Judge,
concurring in part and dissenting in part.
Had we been presented with this constitutional claim prior to the Supreme Court’s decision in Davis v. Bandemer, 478 U.S. 109 , 106 S.Ct. 2797 , 92 L.Ed.2d 85 (1986), I may well have heeded the well-worn admonitions of certain Justices of that Court that the federal courts have no business venturing into the political thicket, see, e.g., Reynolds v. Sims, 377 U.S. 533, 620 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 (1964) (Harlan, J., dissenting); Colegrove v. Green, 328 U.S. 549, 556 , 66 S.Ct. 1198 , 90 L.Ed. 1432 (1946) (Opinion of Frankfurter, J.), and concluded that such concerns are particularly salient in the context of adjudicating political gerrymandering claims. Cf. Bandemer, 478 U.S. at 147-48 , 106 S.Ct. 2797 (O’Connor, J., concurring in the judgment) (“[T]he eases on which the Court relies do not require that we take this next and most far-reaching step into the ‘political thicket.’ ”). Given Bandemer , however, I concur with the Majority’s conclusion that the plaintiffs’ claim presents a justiciable controversy. I part ways with the Majority with respect to its adjudication of the motion to dismiss the plaintiffs’ complaint. Unlike the Majority, I believe that the plaintiffs’ allegations could support their equal protection claim. Without expressing any views regarding the ultimate merits of the plaintiffs’ claim, I would remand the case to the district court, which is uniquely qualified to make factual findings on the essential elements of discriminatory purpose and effect. See, e.g., Rogers v. Lodge, 458 U.S. 613, 622-23 , 102 S.Ct. 3272 , 73 L.Ed.2d 1012 (1982). Therefore, I respectfully dissent.
As a starting point, I agree with the Majority’s premise that the plaintiffs must establish the element of intent in order to state an actionable equal protection claim. Washington v. Davis, 426 U.S. 229 , 96 S.Ct. 2040 , 48 L.Ed.2d 597 (1976), made this requirement clear with respect to equal protection claims generally, and City of Mobile v. Bolden, 446 U.S. 55, 67-68 , 100 S.Ct. 1490 , 64 L.Ed.2d 47 (1980), concluded that this principle was similarly applicable to minority vote dilution claims under the Fourteenth Amendment, regardless of a voting scheme’s discriminatory effect. Bandemer makes this explicit with respect to political gerrymandering claims as well: “[I]n order to succeed the Bandemer plaintiffs [are] required to prove both intentional discrimination against an identifiable political group and an actual discriminatory effect on that group.” 478 U.S. at 127 , 106 S.Ct. 2797 . The Majority, however, appears to conclude that “intent,” an elusive concept in and of itself, 1 has only one substantive formulation in the equal protection context. According to the Majority, *1067 save for the extreme circumstance, see Maj. Op. at 1063-64 (citing Gomillion v. Lightfoot, 364 U.S. 339, 341 , 81 S.Ct. 125 , 5 L.Ed.2d 110 (1960), and Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 , 97 S.Ct. 555 , 50 L.Ed.2d 450 (1977)), intent can be satisfied only by legislative history or evidence of clearly displayed motives of the amendment’s proponents—the proverbial “smoking gun.” This belief is controverted by Bandemer—the controlling political gerrymandering decision of the Supreme Court—which provides the standards for our review of the sufficiency of the plaintiffs’ complaint.
The Majority, however, gives but a slight nod to Bandemer , as is apparent in its discussion of the merits of the plaintiffs’ claim. 2 While still requiring proof of intent, the Bandemer plurality set forth a qualitatively different standard than that required by the Majority today:
[W]e think it most likely that whenever a legislature redistricts, those responsible for the legislation will know the likely political composition of the new districts and will have a prediction as to whether a particular district is a safe one for a Democratic or Republican candidate or is a competitive district that either candidate might win.
478 U.S. at 128 , 106 S.Ct. 2797 ; see also id. at 129 , 106 S.Ct. 2797 (“As long as redistricting is done by a legislature, it should not be very difficult to prove-that the likely political consequences of the reapportionment were intended.”). 3 While this construction may appear to conflict with the principle that discriminatory effect will not suffice to establish intent in the ordinary case, it comports with other articulations of the Fourteenth Amendment’s intent requirement in the voting rights context. 4 See, e.g., Rogers v. *1068 Lodge, 458 U.S. 613, 618 , 102 S.Ct. 3272 , 73 L.Ed.2d 1012 (1982) (recognizing that, in adjudicating an equal protection challenge by racial minorities to an at-large voting scheme, “discriminatory intent need not be proved by direct evidence” and, accordingly, “determining the existence of a discriminatory purpose ‘demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available’”) (quoting Arlington Heights, 429 U.S. at 266 , 97 S.Ct. 555 ); see also Shaw v. Reno, 509 U.S. 630, 646-49 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993) (recognizing that “redistrieting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors”). 5 In any event, without further guidance from the Supreme Court, we are required to adhere to the mandate set forth in Bandemer to determine whether the plaintiffs’ complaint has alleged •a prima facie case of vote dilution through political gerrymandering. See Republican Party v. Martin, 980 F.2d 943 , 955 (4th Cir.1992), cert. denied, 510 U.S. 828 , 114 S.Ct. 93 , 126 L.Ed.2d 60 (1993). 6
Against this legal backdrop, I believe that the plaintiffs’ complaint in this case satisfies Bandemer’s threshold intent requirement. The plaintiffs have described numerous attempts to divide the First Judicial District into three smaller districts, the most recent of which was an unsuccessful attempt to amend the state constitution just last month. As the Majority notes, see Maj. Op. at 1066, this attempt failed to garner the requisite super-majority in the Illinois senate because the entire Democratic delegation voted against it. The Majority downplays the significance of this fact, due to the plaintiffs’ failure to provide the Court with the “legislative history” of the unsuccessful amendment. However, given Bandemer’s recognition that a legislative body is presumed to intend the political consequences of its districting decisions, see 478 U.S. at 128-29 , 106 S.Ct. 2797 , I believe that this fact, when taken in the context of the history of exclusively Democratic (Supreme Court) victories in the First Judicial District, sufficiently alleges discriminatory intent. 7 It is true that the plaintiffs have not offered, nor do they purport to possess, the type of “smoking gun” evidence required by the Majority, but such clear, uncontrovertable evidence is not critical under Bandemer. I therefore believe that the *1069 Majority errs in concluding that the plaintiffs failed to state a claim for want of proof of discriminatory intent.
Of course, in order to state a claim of discriminatory vote dilution, the plaintiffs must allege not only the discriminatory purpose of the voting scheme, but also that the scheme has wrought discriminatory effects. These effects must be substantial, as “the mere fact that a particular apportionment scheme makes it more difficult for a particular group in a particular district to elect the representatives of its choice does not render that scheme constitutionally infirm.” Bandemer, 478 U.S. at 131 , 106 S.Ct. 2797 . This is because the political process is commonly understood to represent the interests of the entire electorate, including those individuals who support losing candidates. See id. at 131-32 , 106 S.Ct. 2797 . Therefore, “an equal protection violation may be found only where the electoral system substantially disadvantages certain voters in their opportunity to influence the political process effectively. In this context, such a finding of unconstitutionality must be supported by evidence of continued frustration of the will of a majority of the voters or effective denial to a minority of voters of a fair chance to influence the political process.” Id. at 133 , 106 S.Ct. 2797 ; see also id. at 132 , 106 S.Ct. 2797 (“[Ujnconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole.”). 8
The Majority does not reach this effects inquiry, and I will not address it at length. Briefly, though, I believe that the plaintiffs have sufficiently stated a claim of discriminatory effect. They allege that, as a result of the state constitution’s multimember district scheme, it has been impossible for qualified Republicans to be elected to the Illinois Supreme Court from the First Judicial District, and that this electoral failure will continue indefinitely. 9 While these facts alone would not suffice under Bandemer , the plaintiffs have also alleged that the voting scheme discourages qualified Republicans from running for election to the Supreme Court from this judicial district, and that those candidates who do run are unable to finance their campaigns sufficiently due to the widespread perception that they have no opportunity of electoral success. Of course, I would remand so that the district judge could evaluate any evidence in this regard. On their face, however, these allegations support an inference not only that the election results are affected by the multimember scheme, but that the political process itself—manifested by the nomination of candidates—is affected. Cf. Martin, 980 F.2d at 957. Moreover, in this case the alleged discriminatory effects of the multimember scheme are exacerbated by the plaintiffs’ inability to alter the scheme through the ordinary political process. The only way that the plaintiffs could alter the judicial district voting scheme is through a constitutional amendment, which requires a super-majority within the legislature and ratification by the citizenry. In my view, requiring resort to a constitutional amendment imposes a special burden on the minority—in *1070 this case the Republican Party—in its efforts to participate in the political process in furtherance of its members’ fundamental right to vote in judicial elections. Cf. Washington v. Seattle Sch. Dish No. 1, 458 U.S. 457, 467-70 , 102 S.Ct. 3187 , 73 L.Ed.2d 896 (1982). Accordingly, the plaintiffs have made allegations that, if supported by the evidence, would indicate that the Illinois judicial election scheme deprives them of a fair chance to influence the political process in this regard. See Bandemer, 478 U.S. at 133 , 106 S.Ct. 2797 .
For these reasons, I conclude that the plaintiffs have stated a claim of political vote dilution. Bandemer merely established threshold conditions for stating a prima facie claim of political gerrymandering, see id. at 134 , 106 S.Ct. 2797 , and the plaintiffs have satisfied those conditions. I do not suggest that the sufficiency of the plaintiffs’ complaint necessarily establishes that they would prevail on the merits. In my judgment, though, the plaintiffs have-adequately alleged discriminatory purpose and effect under Bandemer , and I would remand this ease to the trial court to evaluate the merits of their claim.
. Compare, e.g., City of Mobile, 446 U.S. at 137 , 100 S.Ct. 1490 (Marshall, J., dissenting) (“One *1067 useful evidentiary tool, long recognized by the common law, is the presumption that 'every man must be taken to contemplate the probable consequences of the act he does.’ ") (quoting Townsend v. Wathen, 103 Eng. Rep. 579, 580-81 (K.B. 1808)), with Personnel Adm’r v. Feeney, 442 U.S. 256, 279 , 99 S.Ct. 2282 , 60 L.Ed.2d 870 (1979) (" 'Discriminatory purpose,’ however, implies more than intent as volition or intent as awareness of consequences.”).
. I am aware that those portions of the Bandemer decision discussing the merits of a political gerrymandering claim represented the views of only a four-Justice plurality of the Court. See 478 U.S. at 184 n. 25, 106 S.Ct. 2797 (Powell, J„ dissenting). When faced with the opinions of a fragmented Court, we are to view the holding of the Court as the position taken by those justices concurring in the judgment on the narrowest grounds. See Marks v. United States, 430 U.S. 188 , 193, 97 S.Ct. 990 , 51 L.Ed.2d 260 (1977). I believe that the Bandemer plurality opinion provided the narrowest grounds for the Court's decision, and would apply it here, as have a number of other federal courts. See, e.g., Republican Party v. Martin, 980 F.2d 943 , 955 n.22 (4th Cir. 1992), cert. denied, 510 U.S. 828 , 114 S.Ct. 93 , 126 L.Ed.2d 60 (1993); Pope v. Blue, 809 F.Supp. 392 , 395 & n. 2 (W.D.N.C.) (three-judge court), summarily aff’d, 506 U.S. 801 , 113 S.Ct. 30 , 121 L.Ed.2d 3 (1992); Badham v. Eu, 694 F.Supp. 664, 668-69 (N.D.Cal.1988) (three-judge court), summarily aff'd, 488 U.S. 1024 , 109 S.Ct. 829 , 102 L.Ed.2d 962 (1989).
. I recognize that the multimember judicial district challenged by the plaintiffs in this case was established not by legislation but rather by a state constitutional provision ratified by a popular referendum. While the motives of "the people” responsible for ratifying a state constitutional provision may be difficult, if not impossible, to discern, I agree with the Majority’s implication that in such cases we can attribute the "motives of the proponents of the amendment,” Maj. Op. at 1065, to the constitutional provision itself. Otherwise, unless we were able to discern the motives of the ratifying populace, or the constitutional provision gave rise to "glaring” disparities that were "patently without justification,” see Maj. Op. at 1064, discrete and insular minorities suffering from the discriminatory effects of a facially neutral state constitutional provision would find no refuge in the Equal Protection Clause. This result would be particularly perverse in instances where the political process— manifested by legislation—is unable to overcome the discrimination enshrined in a state constitution. See Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 736-37 , 84 S.Ct. 1459 , 12 L.Ed.2d 632 (1964) ("A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.”). Such is the present case, as the Illinois Supreme Court has held that Cook County’s multimember judicial district is mandated by that state’s constitution. See People ex rel. Chicago Bar Ass’n v. Board of Elections, 136 Ill.2d 513 , 146 Ill.Dec. 126 , 558 N.E.2d 89 (1990).
.Bandemer’s plurality opinion, authored by Justice White, heavily relied upon many of the Court’s decisions addressing equal protection challenges to individual multimember voting districts by racial minorities. See 478 U.S. at 131 & n. 12, 106 S.Ct. 2797 (citing, inter alia, Rogers v. Lodge, 458 U.S. 613 , 102 S.Ct. 3272 , 73 L.Ed.2d *1068 1012 (1982) (While, J.), White v. Regester, 412 U.S. 755 , 93 S.Ct. 2332 , 37 L.Ed.2d 314 (1973) (White, J.), and Whitcomb v. Chavis, 403 U.S. 124 , 91 S.Ct. 1858 , 29 L.Ed.2d 363 (1971) (White, J.), and noting that "[ajlthough these cases involved racial groups, we believe that the principles- developed in these cases would apply equally to claims by political groups in individual districts”).
. This is not to suggest that the threshold for proof of a denial of equal protection is lower in a political vote dilution case than in a racial vote dilution case. Rather, the above-cited cases indicate that the intent threshold is analogous with respect to these two types of claims. Indeed, Bandemer explicitly relied upon racial vote dilution cases to derive its governing principles. See supra note 4.
. The Fourth Circuit is apparently the only other court of appeals that has had an opportunity to ' address Bandemer in a similar context. In Martin, the Fourth Circuit confronted a political gerrymandering claim that is quite similar to the instant case. The Republican Party challenged North Carolina’s practice of statewide elections for its' trial court judges, who served within local districts in which they previously had been nominated. According to the plaintiffs in that case, only one Republican had been elected to a trial court judgeship out of the hundreds of elections conducted since 1900. In the period since 1968, Republican candidates ran for election only ten times out of approximately 220 elections; according to the plaintiffs, four of those candidates would have been successful had the general election been conducted on a districtwide basis. See id. at 946-49, 957. Addressing the sufficiency of the plaintiffs’ complaint, the Fourth Circuit concluded that ”[t]he intent standard set forth in the Bandemer plurality opinion is easily met." Id. at 955. Not only did the Democratic rejection of legislative efforts to implement districtwide elections indicate an intent to discriminate, but the court believed that the history of Republican electoral failure since 1900 "is a significant allegation of purposeful exclusion.” Id.
.An election scheme that was neutral when implemented can, through continued maintenance, be "subverted to invidious purposes” such that it constitutes purposeful discrimination. See Rogers, 458 U.S. at 626 , 102 S.Ct. 3272 . Accordingly, I conclude that under Bandemer this recent legislative action can be probative of discriminatory intent.
. The Fourth Circuit held in Martin that the plaintiffs' complaint alleged a discriminatory effect as required by Bandemer . See 980 F.2d at 956-58 . Apart from the manifest disproportionate election results, the plaintiffs alleged that "few Republicans will offer to run since the chance of success is almost nonexistent.” Id. at 956-57 .Because they asserted more than “mere disproportionate election results,” as the political process itself allegedly was affected by the voting scheme, the court found Bandemer’s discriminatory effects requirement to be satisfied and held that the plaintiffs had sufficiently stated a claim of vote dilution through political gerrymandering. See id. at 957-58 .
. The plaintiffs have also alleged facts that are analogous to the elements required to establish a racial minority vote dilution challenge to a mujtimember district under § 2 of the Voting Rights Act. See Thornburg v. Gingles, 478 U.S. 30 , 106 S.Ct. 2752 , 92 L.Ed.2d 25 (1986). Allegations contained in their complaint indicate that the Republican party is "sufficiently large and geographically compact to constitute a majority in a single-member district,” that the party is "politically cohesive,” and that Cook County Democrats "vote[ ] sufficiently as a bloc to enable [them] ... to defeat the [Republican’s] preferred candidate.” Id. at 51 , 106 S.Ct. 2752 . Although these factors are certainly neither necessary nor sufficient to establish the plaintiffs' political vote dilution claim, as political parties are not covered by the Voting Rights Act, I believe that these factors can serve as additional useful guideposts in determining whether the plaintiffs have stated a claim for which relief could be granted.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491193. Public record. Not legal advice.