# Opposition Brief — City Council of Chicago v. Ketchum

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1985
- **Citation:** 471 U.S. 1135

## Text

Office - Supreme Court, U.S.
\ FILED

No. 84-627 NOV 5: 1964

ALEXANDER L. STEVAS.
CLERK

In Tue

Supreme Court of the United States

Octoser Term, 1984

CITY COUNCIL OF THE CITY OF CHICAGO, ILLINOIS,

Petitioner,
Vv.
MARS KETCHUM, et al,
Respondents,
and
CHARMAINE VELASCO, et al,
Respondents,

and

POLITICAL ACTION CONFERENCE OF ILLINOIS, et al,
Respondents.

On Petition For A Writ Of Certiorari Ts The United
States Court Of Appeals For The Seveath Circuit

BRIEF OF THE CORPORATION COUNSEL OF
THE CITY OF CHICAGO ON BEEALF OF
THE CITY COUNCIL OF CHICAGO IN OPPOSITION

JAMES D. MONTGOMERY
Corporation Couns! of the

City of Chicago
610 City Hall, Chiago, IL 60602
(312) 744-7787

Midwest Law Printing Co. — Chicago 60611 — (312) 321-0220

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TABLE OF CONTENTS

PAGE
TABLE OF AUTHORITIES ................. ii
STATEMENT OF THE CASE ............... 1
A. How the 1981 City Council Remap Diluted
the Voting Power of Black and Hispanic
SD canned) tap cha reeds vanes «00 1
B. Trial Ccurt’s Opinion and Remedial
GNIS: coh wad aamalbedate ta deus’ 0000 5
C. The Seventh Circuit Opinion ......... 8
REASONS FOR DENYING THE WRIT ..... 12
I,

PETITIONER LACKS CAPACITY UNDER
ILLINOIS LAW TO FILE ITS PETITION . 12

Il.

IN LIGHT OF THE TRIAL COURT'S PER-
VASIVE ERRORS, THE COURT OF AP-
PEALS HAD NO CHOICE BUT TO RE-
RR EMI Bb dc cb cb ccedeccdececs 15

A. The Trial Court’s Erroneous Interpreta-
tion of Section 2 Required Remand by the
GE OE, I ib st.ccetcivecscoendede. 15
B. The Instruction That the District Court
Consider the Appropriateness of Black
and Hispanic Majorities of Over 50%
Voting Age Population Is Sound ..... 19

NEE Keb cose cdopacecescsenesceccesce 25

‘i
TABLE OF AUTHORITIES
CASES: PAGE

Busbee v. Smith, 549 F.Supp. 494 (D.D.C. 1982) ... 17
Buskey v. Oliver, 565 F.Supp. 1473 (M.D. Ala.

SD. ooo vscnccnccudnunb dase) onescueen 17, 18
Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C.

1984), cert. den., 104 S.Ct. 1433 (1984) ..... 17
Hadley v. Bd. of Trustees of Firemen’s Pension,

447 N.E.2d 958 (Ill.App. 1983) ............. 14
Hotchkiss v. City of Calumet City, 377 Ill. 615, 37

f+ © 8: errr re re ee 14
Inwood Laboratories v. Ives Laboratories, ..... U.S.

a mt Se 8 RR rrr rr re 22

Kelly v. Southern Pacific Co., 419 U.S. 318 (1974) .. 16
Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984) ... passim

Kirksey v. Bd. of Supervisors of Hinds County,
Mississippi, 554 F.2d 139 (5th Cir. 1977), cert.
denied, 434 U.S. 968 (1977) ..............- 18

Major v. Treen, 574 F.Supp. 325 (E.D.La. 1983) .. 17, 18
McIntosh Cty. NAACP v. City of Darien, 605 F.2d

a. 2 Ft ee Peeper ee. rere 16
Pullman-Standard v. Swint, ..... US. ....., 102 §.Ct.
SEE SBOE « seek wenieines WERen Redan 19
Rybicki v. State Board of Elections, 574 F.Supp.

pg i te | ee ere ee 17
United Jewish Organizations v. Carey, 430 U.S. 144

EUR wcscncteuns¥¥wesiaescausceseeusebiee 18

iii

United States v. General Motors, 384 U.S. 127

eRe a eco ists cbwenccbass 16
United States Postal Service v. Aikens, ..... US. sas
on ec cencccceseces 16

Wheeling Trust and Savings Bank v. City of
Highland Park, 97 Tll.App.3d 519, 423 N.E.2d

TD cueG skin ci vbasscees bess 14
STATUTES:
Section 2 of the bine Rights Act, 42 U.S.C.

ES SCS ISL REO passim
Ill.Rev.Stat. 1983, ch. 24, 421-11 .............. 13
Municipal Code of Chicago, Chapter 6, §6-2(a) .... 13

Municipal Code of Chicago, Chapter 6, §6-2(d) .... 13

OTHER AUTHORITIES:

Federal Rules of Civil Procedure 17(b) ........ 12
Federal Rules of Civil Procedure 52(a) ........ 16

S.Rep. No. 97-417, 97th Cong., 2d Sess. ...... 17

No. 84-627

In THE

Supreme Court of the Anited States

Octoser Term, 1984

CITY COUNCIL OF THE CITY OF CHICAGO, ILLINOIS,

Petitioner,
v.

MARS KETCHUM, et al,
Respondents,
and

CHARMAINE VELASCO, et al,

Respondents,
and

POLITICAL ACTION CONFERENCE OF ILLINOIS, et al.,
Respondents.

On Petition For A Writ Of Certiorari To The United
States Court Of Appeals For The Seventh Circuit

onlin

BRIEF OF THE CORPORATION COUNSEL OF
THE CITY OF CHICAGO ON BEHALF OF
THE CITY COUNCIL OF CHICAGO IN OPPOSITION

This court should reject the petition for certiorari for
two reasons. First, neither Petitioner City Council of the
City of Chicago (“City Council’’) nor its counsel, the Cor-
poration Counsel of the City of Chicago has authorized
the filing of the petition. Second, the decision of the Court
of Appeals was entirely correct. Faced with a district
court decision that had adopted an indefensible interpreta-
tion of the Voting Rights Act and had made almost no
ascertainable findings on any issue of substance, the Court
of Appeals had no choice but to remand this case for con-
sideration of a full and effective remedy for the violations
that had occurred.

STATEMENT OF THE CASE

Petitioner’s Statement of the Case all but ignores the
trial record and the trial court’s oral opinion. Since the
trial record and the district court’s treatment of that
record are fundamental prerequisites to any analysis of
the Seventh Circuit’s opinion, they are briefly summarized
below.

A. How the 1981 City Council Remap Diluted the Voting
Power of Black and Hispanic Voters

The 1970’s witnessed a substantial shift in the demo-
graphic profile of the Chicago population. The white pop-

wiles

ulation dropped from 65.5% to 43.2%, while the black
and Hispanic populations grew from 32.7% to 39.8% and
from 7.3% to 14.0%, respectively. These populations show
an extreme degree of residential segregation. Over 92%
of Chicago’s 1,197,000 blacks reside in two geographically
cohesive and overwhelmingly black areas on the South and
West Sides of the City. Similarly, the Hispanic popula-
tion, over 250,000, resides in three geographically cohesive
communities.

Under the City’s 1970 ward map, blacks in 1970 were
in a majority in 15 wards, while Hispanics were not in
the majority in a single ward (PX 157). By 1980—under
the 1970 ward map—blacks had grown to hold majorities
in excess of 62.6% in 19 wards and a plurality of 49.38%
in an additional ward; and Hispanics held majorities in
four wards and pluralities in two.

In 1981, the City Council redrew the City’s 50 wards.
In a city that was 48% white, 40% black and 14% His-
panic, the City Council approved a map in November 1981
that gave whites voting age majorities in 28 wards (56%),
blacks voting age majorities in 17 wards (84%), and His-
panics voting age majorities in two wards (4%). Conse-
quently, whites, with only 3% more total population than
blacks, ended up with voting control in 28 wards, eleven
more than blacks.

To accomplish this massive dilution of minority voting
strength, the City Council manipulated ward boundaries
to reduce minority voting strength within specific wards,
and it “fractured” large and cohesive black and Hispanic
communities by placing many of their residents in neigh-

1 Citations. The trial transcript is cited “Tr. __ intiffs’ trial
exhibits, “PX ____”; . defendant's trial exit, « ten ae
petition ‘for writ of certiorari, “Cert. eee. appendix to

the petition for writ of certiorari, “App. ___..

Sm

boring wards where they would constitute a minority of
the population. Both techniques were employed in text-
book fashion.

First, specific ward boundaries were redrawn to reduce
black or Hispanic populations. For example, four wards
that had been majority-white in 1970 had turned majority-
black by 1980 (Wards 37, 15, 9 and 7), and a fifth ward
(Ward 18) had turned from majority-white to piurality-
black (PX 41; PX 187). The following chart shows how
the City Council responded to those changes:

Black Pop Black Pop. Race of
Black 1980 1980 Incumbent
Pop. Old New at Time of
37 12.5% 16.3% 36.8% White
15 8.3% 66.4% 41.7% White
18 28.3% 49.3% 46.4% White
7 26.9% 62.6% 58.4% Black
9 28.3% 90.1% 89.1% Black

(See PX 41; PX 1387; PX 142; Stip. 441.) Thus, each of
the three wards that had a white incumbent at the time
of redistricting was redrawn so that whites ended up with
a majority of the voting age population. The 7th Ward,
where the black population was approaching the pcint of
political power, was redrawn so as to substantially chip
away at the black majority. The only ward left unscathed
was the 9th Ward, which had grown so heavily black that
it would have been impossible to dissipate the 90% black
majority.

The 37th Ward provides a good example of how boun-
daries were manipulated. To achieve wards of equal pop»-
lation, the 37th Ward’s population had to be reduced by
16,886 persons (from 77,394 to 60,101). To accomplish that,
40,035 persons, of whom 38,513 (96.2%) were black, were
removed from the ward and 23,149 persons, of whom
19,676 (84.9%) were white, were added to the ward. As

ee

a consequence, a black majority ef 76.3% became a black
minority of 34.5% (PX 187, 1388) (See App. 17).

Second, “fracturing” of the black and Hispanic com-
munities was the rule rather than the exception.2 Two
examples (out of a massive number) will illustrate. Within
the South Side predominantly black community live
900,000 persons of whom approximately 820,000 are black
(PX 212; DX 70, 129A). This geographically cohesive black
community is bordered by Lake Michigan on the east and
a ring of seven wards to the south, west and north. More
than 110,000 blacks who reside in the outer perimeter of
this area were split off and placed in minority status in
the surrounding band of seven white-controlled wards.®
Similar fracturing occurred with Hispanics. Within the
Near Northwest Side Hispanic community live more than
130,000 Hispanics. This Hispanic population was splintered
among six wards which radiate outward from the heart
of the Hispanic community (PX 164-208).

There was no corresponding fracturing of the white com-
munity. The City Council’s map contained not a single
instance in which a sizable white population that could
have been included in a majority white ward was frac-
tured off and included in a majority black ward (PX 142,
199 and 205).

2 Defendants’ witnesses acknowledged this to be true. See, Ket-
—_ v. Byrne, 740 F.2d 1898, 1409, n.9 (7th Cir. 1984); App. 20,
n.9.

3 Since each ward required 60,191 residents, this number is suf-
ficient to fill two additional wards. Indeed, experts for both par-
ties testified that accepted redistricting procedures would have
Eistoad of 18, a0 the City Councils map produced (Ir. Saab
ins of 13, as ’s map . ;

qomget nh teem
ts 4 higher facior than the voting 41 and (the revised
neither “equitable” nor “fair’ ’ to the minority communities

-

remedy, did. On August 14, 1984, in an amended opinion,
the Court of Appeals affirmed in part, reversed in part,
and remanded for consideration of the appropriate rem-
edy, finding that the district court had misinterpreted
and misapplied Section 2, and that as a consequence, the
district court’s remedy “{did] not eliminate, in accordance
with well-accepted principles of redistricting, the illegal
dilution of minority voting strength accomplished by the
City Council map.” Ketchum v. Byrne, 740 F.2d 1398,
1412 (7th Cir. 1984) (App. 1).

The Court of Appeals began by rejecting the district
court’s overall theory of the Voting Rights Act. it pointed
out that “(the legislative history and subsequent judicial
interpretation of the 1982 amendments [to the Voting
Rights Act] clearly demonstrate that claims of vote dilu-
tion come within the scope of the Act . . . [and] that the
amendments are intended to apply to redistricting plans”
(citations omitted). 740 F.2d at 1404; App. 10.

Next, the Court of Appeals rejected the trial judge’s
theory that it could not look at what was done in in-
dividual wards. It wrote: :

In a case where lines are drawn to establish discrete
electoral units and to distribute racial and ethnic pop-
ulations among districts, the ways in which these
lines are drawn may become independent indicia of
discriminatory intent or result. [Cite omitted.]

740 F.2d at 1405; App. 13.

The Court of Appeals then discussed the importance of
the largely undisputed facts and rejected the trial court’s
assessment of those facts in virtually every respect. It
recognized that the manipulation of ward boundaries was
“strong evidence of intentional discrimination.” 740 F.2d
at 1407; App. 16. It expressly found that “the manipula-
. tion of racial voting populations” in this case violated Sec-

-

tion 2. 740 F.2d at 1407; App. 16. It also held, contrary
to the district court’s reasoning, that fracturing may dilute
minority voting strength and violate Section 2, and it
found that the fracturing of the Hispanic community,
which the trial court had believed legally irrelevant, had
unlawfully diluted Hispanic voting strength. 740 F.2d at
1409; App. 21. While the district court had viewed
“preserving incumbencies” by manipulating ward racial
makeups as legitimate, the Court of Appeals rejected that
theory, stating that “discrimination based on an ultimate
objective of keeping certain whites in office” is indis-
tinguishable from “discrimination born of pure racial
animus.” 740 F.2d at 1408; App. 19. Although the Court
of Appeals commented that it was unnecessary to make
a formal finding that “these considerable indications of
minority voting strength dilution through manipulation,
packing and fracturing” constituted intentional discrim-
ination under the Fourteenth Amendment, it found them
basic to a proper assessment of Section 2 of the Voting
Rights Act.

Having rejected the district court’s legal theories, the
Court of Appeals turned to the trial court’s treatment of
the remedy. Citing the legislative history of Section 2,
it began with the observation:

. . . the remedy fashioned must be commensurate
with the right that has been violated. . . . The cvart

should exercise its traditional equitable powers to

fashion the relief so that it completely remedies the

prior dilution of minority voting strength and fully

provides equal opportunity for minority citizens to

Peeeieaie and to elect candidates of their choice.
mphasis added.)

And it concluded that the trial court had failed to meet
this exacting standard:
.. . we find that the py ig map has not pro-
vided an adequate remedy for the Voting Rights Act

iin

violation because it does not eliminate, in accordance
= well-accepted principles of redistricting, the il-

dilution of minority voting strength accomp-
ik ed by the City Council map.

740 F.2d at 1412; App. 27.

The Court of Appeals remanded the case to the district
court with instructions to remedy the fracturing of the
Hispanic community (740 F.2d at 1418 n.25; App. 41 n.25);
to examine whether the fracturing of the black community
directly affected blacks’ opportunity to elect represen-
tatives of their choice, Jd.; and to give careful considera-
tion to whether the 50% bare voting-age majority stand-
ard used by the district court was an adequate remedy.
740 F.2d at 1414-1415; App. 32-33.

In giving this last instruction, the Court of Appeals
noted that the “district court rejected for most wards the
use of any majority greater than 50% of voting age pop-
ulation as a threshold for determining an effective ma-
jority of blacks or Hispanics.” 740 F.2d at 1411; App. 25.
For two reasons, the Court of Appeals directed the dis-
trict court to reconsider this question. First, the Court
of Appeals found that the trial court failed “to consider
carefully all of the factors which are present here .. .
and which have led other courts to employ such a cor-
rective (frequently 65% of the total population or 60%
voting age population or some variation of these guide-
lines). . . .” 740 F.2d at 1413; App. 29. Second, the dis-
trict court’s approach failed to recognize that in cer-
tain wards, such as the 15th and the 37th, minority groups
had achieved majorities of more than 65% of the popula-
tion prior to redistricting. Thus, in those wards, the
reconstruction of “supermajorities” should be viewed not
as an artificial supplement to a 50% majority but as a
fair antidote to the retrogression that had resulted from
the manipulation of racial voting populations. 740 F.2d at
1417; App. 37.

a.

Having identified the errors in the trial court’s analysis,
the Court of Appeals remanded the case for determina-
tion of an effective remedy for the City Council’s viola-
tions of the Voting Rights Act. In so doing, the Court
declined to state what the new ward boundaries should
be or precisely what racial percentages should be set. It
left these matters to the district court on remand. As the
Court of Appeals explained:

It is not . . . the proper role of this court to for-
mulate its own redistricting plan or to dictate to a

district court minute details of how such a plan
should be devised.

740 F.2d at 1412; App. 24. See also, 740 F.2d at 1415;
App. 33.

REASONS FOR DENYING THE WRIT

This petition should be denied because the petitioner
has no capacity under Illinois law to appeal from the
Court of Appeals’ decision. The petition should also be
denied because the Court of Appeals’ decision was right.
Faced with a district court decision that had misconstrued
the Voting Rights Act and that had reached a decision
that lacks everi the most basic findings of fact, the Court
of Appeals had no choice but to remand this case for fur-

ther proceedings.

I.

PETITIONER LACKS CAPACITY
UNDER ILLINOIS LAW TO FILE ITS PETITION

Under F.R.Civ.P. 17(b), the capacity of the petitioner
to sue is governed by Illinois law. Under Illinois law, the
present petitioner has no legal capacity to file this appeal.

- =

While the appeal of this case was pending in the Court
of Appeals, mayoral and aldermanic elections were held
in Chicago in April 1983. The previous mayor, Jane M.
Byrne, was defeated by Harold Washington, and a new
administration took office. A substantial number of new
aldermen were also elected to the City Council.

By Illinois law, the Corporation Counsel of the City of
Chicago is “the legal advisor of the City Council.”
Ill.Rev.Stat. 1983, ch. 24, §21-11. By Illinois statute, the
Corporation Counsel “shall appear for and protect the
rights and interests of the City in all actions, suits, and
proceedings brought by or against it . . .” Jd. Consistent
with the State statute, the City Council of the City of
Chicago has vested in the Corporation Counsel the ex-
clusive authority to “conduct all of the law business of
the City.” Chapter 6, §6-2(a) of the Municipal Code of
Chicago. This includes the authority to decide whether
or not an appeal should be pursued. “{WJhen the Corpora-
tion Counsel is of the opinion that an appeal is not
justified, he may certify such judgment to the City Comp-
troller at any time. . . .” Ibid., §6-2(d).

When the Court of Appeals rendered its initial decision
in May 1984, the new administration carefully reviewed
the opinion and concluded that the decision was correct,
that the redistricting litigation should end, and that it was
in the best interest of the City of Chicago that the deci-
sion he implemented as expeditiously as possible. To that
end, the present Corporation Counsel sent a letter te the
private attorney, William J. Harte, who had been approved
by the previous administration’s Corporation Counsel in
1981 to represent the City Council in the litigation. The
letter advised this attorney that his services were no

5 A oop of this ordinance is attached hereto as Exhibit A to

=i4—

longer needed. (This letter is attached to the Response
in Opposition to Petition for Stay of Mandate filed by the
Corporation Counsel in this Court.) Immediately there-
after, the Corporation Counsel entered his appearance for
the City Council.

However, Mr. Harte has taken the position that he is
entitled to pursue further appellate proceedings in the
name of the City Council. He took this position neither
on the basis of an authorization from the Corporation
Counsel nor on the basis of a City Council resolution, but
on the basis of individual authorizations from 26 members
of the 50-member City Council. On the basis of these in-
dividual authorizations, Mr. Harte has commenced pro-
ceedings in the name of the “City Council.”

While a number of individual aldermen obviously sup-
port this effort to appeal to this Court, they lack authority
to do so without a formal resolution or ordinance, adopted
by the City Council, directing such action. Hotchkies v.
City of Calumet City, 377 Ill. 615, 619, 87 N.E.2d 332
(1941); Wheeling Trust and Savings Bank v. City of
Highland Park, 97 Ill.App.3d 519, 423 N.E.2d 245
(Ill.App. 1981); Hadley v. Bd. of Trustees of Firemen’s
Pension, 447 N.E.2d 958, 961 (Ill.App. 1983). The City
Council, as a legisiative body, has never taken steps to
authorize such action. Consequently Mr. Harte has no
power to pursue this petition on the “City Council’s”
behalf, or on behalf of any other party, since all parties
other than the City Council were dismissed before the
appeal to the Seventh Circuit.

To summarize: neither the City Council nor the Corpora-
tion Counsel has authorized the filing of the petition for
certiorari. As the only authorized legal representative of
the City Council, the Corporation Counsel respectfully re-
quests this Court to deny the petition for certiorari so
that remedial proceedings on remand can begin at once.

==

IN LIGHT OF THE TRIAL COURT’S PERVASIVE
ERRORS, THE COURT OF APPEADCS HAD NO CHOICE
BUT TO REMAND THIS CASE -

The Court of Appeals found that the district court deci-
sion on the Voting Rights Act was based on a thoroughly
mistaken set of legal principles. Because it misinterpreted
the law, the district court failed to properly analyze the
particular instances of unlawful dilution of minority voting
strength that respondents proved. And while it rightly
found the Act had been violated, its identification of the
actual violations was so totally deficient as to require
remand.

As will now be shown, the petition for certiorari scarce-
ly disputes that the district court used a mistaken set of
Voting Rights Act principles to consider this case. In-
stead, the petition focuses on one limited aspect of the
Court of Appeals’ analysis—its instruction that the district
court on remand consider whether black or Hispanic m=.
jorities in excess of 50% voting-age population may be
appropriate in several wards.

As will be seen, nothing about this non-mandatory sug-
gestion deserves this Court’s review. Whatever the details
of the remedy may turn out to be, the district court’s
decision could never have been allowed to stand. And the
Court of Appeals was right to require consideration on
remand of possible majorities in excess of the bare
minimum ordered by the district court.

A. The Trial Court’s Erroneous Interpretation of Section 2
Required Remand By the Court of Appeals

Totally aside from the issue of proper majorities, the
Court of Appeals had no choice but to remand for fur-
ther proceedings, for everything the trial court did was

—16—

based on erroneous legal standards.* United States Postal
Service v. Aikens, ..... US. ....., 108 S.Ct. 1478, 1483
(1983); Kelly v. Southern Pacific Co., 419 U.S. 318, 323
(1974); United States v. General Motors, 384 U.S. 127, 141
n.16 (1966).

Thus, the greater pa. . of the Court of Appeals’ opinion
is spent correcting the district court’s erroneous legal
theories of Section 2 of the Voting Rights Act.

disagreed and found that Section 2 applied to redis-
tricting plans and that “claims of vote dilution come
within the scope of the Act”. 740 F.2d at 1404; App. 10.
Petitioner neither defends the district court’s misinter-
pretation of the Act nor protests the Court of Appeals’
reading of it.’

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(Footnote continued on following page)

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(2) The district court had concluded that in considering
whether Section 2 has been violated, the court should not
look at what was done in individual wards (Tr. 4099-4101;
App. 57-58). The Court of Appeals reversed this un-
founded theory:

In a case where lines are drawn to establish discrete
electoral units and to distribute racial and ethnic
ee Seas Se rege Bs wee Base
ines are drawn may become independent indicia of
discriminatory intent or result.

740 F.2d at 1405; App. 13. Here again, the Court of Ap-
peals’ approach is consistent with all the decisions under
Section 2, all of which look at the impact of specific bound-
ary changes on minority voting strength. Gingles v. Ed-
misten, 590 F.Supp. 345, 372-375 (E.D.N.C. 1984) (three
judge court), cert. denied, 104 S.Ct. 1433 (1984); Major
v. Treen, 574 F.Supp. 325, 353 (E.D.La. 1988) (three judge
court); Rybicki v. State Board of Elections, 574 F.Supp.
1082, 1113-1117 (N.D.IIl. 1982) (three judge court); Busbee
v. Smith, 549 F.Supp. 494, 517 (D.D.C. 1982) ‘three judge
court); Buskey v. Oliver, 565 F.Supp. 1473, 1483 (M.D.Ala.
1983).

white areas, or the adoption of discriminatory redistricting
S.Rep. No. 97-417, 97th , 2d Sess. at 8 (hereinafter, “Senate
avoid any ambiguity, the Senate

it

2. For example, the trial court found no fault with defen-
dant’s pervasive frac‘uring of black and Hispanic cum-
munities, and indeed it opined that such fracturing was
a positive “step toward integration” (Tr. 4101-4103; App.
58-59). However, the Court of Appeals recognized, as has
every court before it, that fracturing may dilute minori-
ty voting strength and violate Section 2. 740 F.2d at
1408-1409; App. 18-19.° Petitioner does not question this
conclusion.

(4) The trial court had found that the manipulation of
ward boundaries to reduce minority voting strength was
excusable if motivated by incumbents who “wanted to
preserve the majority . . . which elected them to office”
(Tr. 4101; App. 58). The Court of Appeals denounced such
manipulation of ward boundaries and found that “the
manipulation of racial voting populations to achieve
retrogression” in this case violated Section 2. 740 F.2d
at 1406; App. 14. Petitioner does not challenge this
holding, which is consistent with the existing case law.
See, e.g.,. Major v. Treen, supra, 574 F.Supp. at 1109-
1112; Buskey v. Oliver, supra, 565 F.Supp. at 1483.

8 Courts ize ‘racturing as the classic device for diluting the
voting anmeth of a large, geographically cohesive minority
community:
eae i ryt rte ims ech ct ag da
rma nyt ech egse wt oloe participation, however,
remains the er cieediy cote tent
what could o communi-
ae dismemberment of ye lack voting ng community
gna aco debilitating the organiza-
tion and decreasing the participation of black voters. -
Kirksey v. Board of Supervisors, 564 F.2d 139, 149 (6th Cir. 1977)
(footnote omitted). It 1s not surprising, therefore, that
pend me ty Seng! voy,» rincipal evils at which the Voting ts Act was
ie UT. nited Jewish Organizations v. Carey, US. 144,

—19~—

(5) The trial court had viewed “preserving incumben-
cies” by manipulating racial groups® as a legitimate
motivation in this case. The Court of Appeals recognized
that “discrimination based on an ultimate objective of
keeping certain whites in office” is indistinguishable from
“discrimination born of pure racial animus.” 740 F.2d
at 1408; App. 19.

In short, entirely independently of the question of the
proper majorities on remand, the Court of Appeals faced
a district court opinion that had been constructed on a
thoroughly erroneous interpretation of the Act. It
therefore had no choice but to remand for further pro-
ceedings. See, Pullman-Standard v. Swint, ..... Si only estimates - produced by seo goa
suggest registration and turnout rates app ose
of whites came from the November 1982 gubernatorial election.
That election took place as this lawsuit was winding to a close,
and thus received littie, if any attention. Recognizing this fact, the
Court of Appeals stated:
We understand that the November 1982 ial elec-
tion in Illinois and the 1983 Chicago election indicated
a marked increase in black registration and turn-out. If these
and other elections should oe Chiceny significant —
sistent in voti vior in Chi i
aldermanic i State Would havo te be'a cot i

in redistri practices and
the results of these ions may not be adequate to j
an tt or modification of previously accepted guide-
lines at this juncture. It initially remains wi he dare.
tion of the district judge, however, to determine when such
a consistent and reliable pattern has and when ade-
statistics minority voter

and
se Sh ‘ad tseed ae eee At juncture the
application of an adequate corrective may be considered or

740 F.2d at 1416 n.21; App. 36 n.21.

Ex. 1
EXHIBIT A

CHAPTER 6
DEPARTMENT OF LAW

6-1. Department established

6-2. Corporation counsel

6-3. Delivery to successor

oe Docket Fa

. Legal opinions 3

6-6. ing of ordinances
and nts

6-7. Code revision

6-8. Settlement of suits
and claims

6-1. There is hereby established an executive depart-

ment of the municipal government of the city which shall
be known as the department of law, and which shall em-
brace the corporation counsel and such assistants and
clerks as may be provided for in the annual appropria-
tion ordinance.
- ~ 62. There is hereby created the office of corporation
counsel. He shall be appointed by the mayor, by and with
the advice and consent of the city council, and shall be
the head of the department of law of the city.

Pe: corporation counsel shall perform the following
ties:

(a) Superintend and, with his assistants and clerks,
conduct all the law business of the city;

(b) Appear for and protect the rights and interesis
of the city in all actions, suits and proceedings
brought by or against it ae ow tier Uline, tare
or t, including actions for damages when
brought against such officer in his official capacity;

Ex. 2

(c) Appear for and defend member, officer or
— of the board of health, police department
or department who is sued personally for dam-
ages claimed in consequence of any act or omission
or neglect of his official duties or in consequence of
any act under color of authority or in consequence
of any alleged negligence while engaged in the per-
formance of such duties.

(d) Certify to the city comptroller all ——
rendered against the city as of the date following the
last day on which appeal may be made, when in the
opinion of the corporation counsel no further pro-

ings are proper; provided, that when the corpora-
tion counsel is of the opinion that an appeal is not
justified, he may certify such judgment to the city
comptroller at any time, and provided further, that
when a judgment is rendered against any member

of the police nt for injury to person or prop-
erty Rona, fs m the performance of his duties as

iceman, he shall ritbry | the
eb ri for Lye eer ye & ‘ way in re

opinion, such me of the police nt has
not been guilty of wilful misconduct and the corpora-
tion counsel is of the opinion that an is not
justified. [Amend. Coun. J. 2-26-41, p. » 4-28-52,
p. 2306.]

6-3. Upon the expiration of his term of office, or his
resignation thereof, or removal therefrom, the corpora-
tion counsel shall forthwith, on demand, deliver to his suc-
cessor in office all deeds, leases, contracts, books and
papers in his hands belonging to the city, or delivered
to him by any of its officers, and all or informa-
tion in actions prosecuted or defended by him then pend-
ing and undetermined, together with his register thereof
and record of the proceedings therein.

6-4. The corporation counsel shall keep or cause to be
kept, in proper books to be provided for that pce,
a register all actions in court prosecuted or defended
by his office and all proceedings had therein. These books

Ex. 3

shall at all times be open to the inspection of the mayor,
comptroller, or any member or committee of the city
council.

6-5. The corporation counsel shall, when required so
to do, furnish written opinions upon subjects submitted
to him by the mayor, the city council, or the head of any
department.

6-6. The corporation counsel shall draft such ordinances
as may be required of him by the city council or by any
committee thereof.

He shall draw any deeds, leases, contracts, or other
papers required by the business of the city, when re-
quested so to do by the mayor, the city council, or the
head of any department.

6-7. The corporation counsel shall have general super-
vision of the revision of ordinances and the insertion of
general ordinances into this code in accordance with sec-
tions 1-4 and 1-8.

6-8. The “eo counsel shall have authority, when
directed. by city council, to make settlements of
lawsuits and controverted claims against the city.

It shall be the duty of the corporation counsel and all
other officers of the city, if any, who shall be given
dean Spulah tho city, to tepart le ootting er

, to report in , a
regen Wadlicg of tk cp comma a emth cal ore
month all cases where settlements have been made of
such lawsuits or claims.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_3177%3A4. Public record. Not legal advice.