Appendix — King v. Illinois Board of Elections
Supreme Court brief1998
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U.S.
FILED
‘ Q? 748 OCI 28097
IN PRISE OF THE CLERK
SUPREME COURT OF THE UNITED STATES
OcToBER TERM, 1997
James R. King,
Appellant,
VS.
State Board of Elections, ef al.
Appellees.
ON APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
APPENDIX TO JURISDICTIONAL STATEMENT
James C. Ten Broeck, Jr.
Counsel of Record
536 West Erie Street
Suite 200
Chicago, Illinois 60610
(312) 337-9639
Of Counsel:
Douglas E. Markham Joseph A. Morris
333 Clay The Lincoin Legal Foundation
Suite 4510 100 West Monroe Street
P.O. Box 130923 Suite 1600
Houston, Texas 77219 Chicago, Illinois 60603
TABLE OF CONTENTS
PORE See AI PEE RIN vesipcitveonibiiintintiosiaainbstlichskaesitacestnvamisiesainsiiniieiets l
Se Se SS citchniccsvitthcccastadsnadeiaacenstacanevineadiiborcencsewines 3
MEMORANDUM OPINION AND ORDER, DATED MARCH 7,
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MEMORANDUM OPINION AND ORDER, DATED AUGUST
iy IT ich iiccedcaideiineatilaniect chan cued seasaiog aha tnetaicirseadeniduereenabiciniaticni 60
VOTING RIGHTS ACT OF 1965, SECTIONS 2A AND 2B.......75
10 ILCS 5/11-2, COUNTY BOARD TO FIX PRECINCTS AND
PLACES OF ELECTION—LIST OF PRECINCTS—
ei Be PL SOS wesent sertseswssnscnsneitviwemesmnccnbetadvnens 76
SECRET BALLOT LAW - PART 9.1 VOTER’S PRIVILEGE .. 81
EXCERPT TEXT OF DIRECT EXAMINATION TESTIMONY
OF PLAINTIFF’S WITNESS, CHRISTOPHER J.
Se A ida dai etsieabllaeaihilciseealbnabinedinicdsetet Gilerhana tres 82
HISPANIC POPULATION IN THE TOWNSHIPS OF THE
“WESTERN CONNECTOR” (EXCERPT FROM
EURSE PUEMAAPCE ESRSLESEE BINDER) cecccssvescsevncsossesscosenssesserecenscses 83
EXCERPT AFFIDAVIT TESTIMONY OF ORESTES
AGUILLON, PLAINTIFF’S EXHIBIT 9.0000... eee eeeeeeeees 84
EXCERPT FROM THE REPORT OF CHRISTOPHER
CLEVELAND ON SPLIT POLITICAL SUBDIVISIONS ... 86
PERCENTAGE OF POPULATION IN SPLIT PRECINCTS
PRaMEPE ROPE St SETRUNIUEE: Did svmsicharisepnsnenceentindstiniawineoncnecenestenes 87
TESTIMONY OF PLAINTIFF’S WITNESS, MANUEL TORRES
EXCERPT TEXT OF CROSS EXAMINATION TESTIMONY
OF DEFENSE WITNESS JAMES LEWIS .............::0::eeee 89
EXCERPT FROM PLAINTIFF’S EXHIBIT $7 ................ eee 90
EXCERPT FROM THE REPORT OF CHRISTOPHER
CLEVELAND ON CITIZENSHIP ....---+-sssesesrserrsrrserseeeerre 91
TESTIMONY OF CHRISTOPHER CLEVELAND ON
CITIZENSHIP oasnvesceesssnsosorenneoneetmnnnnnsnrnremrennmtrr TT 93
EXCERPT FROM PLAINTIFF'S EXHIBIT 56 - LATINO
[INSTITUTE INFORMATION ON CITIZENSHIP .....----+-++ 94
EXCERPT FROM PLAINTIFF'S EXHIBIT 30, PERCENT OF
HISPANICS WHO ARE CITIZENS ..---:sseessssseerersseseerrerrne 95
EXCERPT FROM DEFENDANT INTERVENORS EXHIBIT 22,
AL FILO, PAGE 10 .oveenvererreesooresieerornersnntenrr en 96
EXCERPT FROM DEFENDANT INTERVENORS EXHIBIT 55,
PALER, 102 evens sieeonoeenonneseor ere a "7 97
EXCERPT FROM DR. D. GARTH TAYLOR’S REPORT -
DEFENDANT INTERVENOR EXHIBIT 6 PAGE 8-9 ..-..--- 98
EXCERPT FROM DR. D. GARTH TAYLOR’S REPORT -
DEFENDANT [INTERVENOR EXHIBIT 6....----:eseeesereerereee* 99
PLAINTIFF'S EXHIBIT 29, MAP OF THE POPULATION
BETWEEN THE “ISLANDS” OF HISPANIC POPULATION
eo. pains ee ROR 100
EXCERPT FROM THE REPORT OF CHRISTOPHER
CLEVELAND ON COMPACTINESS .+++-sesssssrereessereeeernne 101
ADDITIONAL TRIAL BRIEF OF PLAINTIFF ..-.---0-s-000e000000" 102
EXCERPT AF FIDAVIT TESTIMONY OF ROBERT J.
CAWICKS .sccovecircrmncecemnnenennrnnemhenrn cr 109
“MIDDLE CONNECTOR” MAP 1, ATTACHMENT TO
AFFIDAVIT OF ORESTES AGUILLON ......-e0012eresereetere 111
“MIDDLE CONNECTOR” MAP Il, ATTACHMENT TO
AFFIDAVIT OF ORESTES AGUILLON ....---e:e+esererereerere 112
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES R. KING,
Plaintiff,
)
)
)
)
v. ) 95 C 827
)
STATE BOARD OF )
ELECTIONS, )
DAVID E. MURRAY, )
LAWRENCE E. JOHNSON, +)
HANNELORE HUISMAN, _)
JUDITH JONES, LANGDON )
D. NEAL, THERESA M. )
PETRONE, and WANDA )
REDNOUR, )
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Defendants,
and
Hon. Michael S. Kanne
Hon. Charles R. Norgle, Sr.
Hon. David H. Coar
UNITED STATES OF
AMERICA, BOBBY RUSH,
TIMUEL BLACK, AL
JOHNSON, ELVIRA
CARRIZALES, NEOMI
HERNANDEZ, and THE
CHICAGO URBAN
LEAGUE,
Recetvepo Aucust 29, 1997
MicuHaet W. Dopsins
Crierk, U.S. District Court
Defendant Intervenors.
NOTICE OF APPEAL TO THE SUPREME COURT
OF THE UNITED STATES
Notice is hereby given that JAMES R. KING, the Plaintiff in the
above referenced matter, hereby appeals to the Supreme Court of the
Outline of Opinion in
King v. State Board of Elections et al.
Dated March 7, 1996
5. RRedervennt PrOGeGierel TERIROEY on. ss ccs nscccesinsesvcesvecsestseccactcceesessesens 6
A. Standards Governing the Hastert court’s Findings of Fact ... 7
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2.Conditional Judicial Notice ..............c00000000+. nsoorensseunerdconss 12
B. Standard of Review of the Hastert court’s Conclusions of .....
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A. The Court’s Constitutional Analysis .................0....cccccecc0ees 20
B. The Court’s Section 2 Voting Rights Act Analysis ............. 22
III. King’s Constitutional Challenge of the Hastert Court’s .............
OD RRB E aN RA EOF LINES MERIT AE (Cs PRG RET VE EON POTTS 24
A. Standards for Equa! Protection Clause Analysis of
PU IO soi crcivcckciccatharecnigakaatoninactananiniee 27
1. Determining the Role of Race in the Redistricting Plan ... 28
Fi COUR VOT aise aches lnthcbilelidt nn ccutiesa ons sana iiiaiea acaba 30
3. Subjecting a Court's Redistricting Order to Strict Scrutiny ..
wwisnbihdiatsoiesiabss pon dedevninitnanagtama alae cabedaee 32
B. Racial Considerations Predominated in Configuring the .........
Fourth Congressional District .................:cccccssescceseserceseceeees 37
1. The Unique Process of Selecting a Redistricting Plan ...... 38
&. Fiew Dignrvely vara INGA ois osc scsdeccidectasetevsscniiccaseon sites 39
3. The Lack of Findings of Fact by the Hastert Court ........... 39
D. STII 555 iis sisisinscevranctanbcsemaieindbodi abd: 40
SV, RPMIE SOUIUIIRY -; scion ceucsustinchacchnssnscrladelaadeabdesim bins 46
A. Whether the Hastert Court’s Section 2 Finding Was Clear .....
BOO icsitisccicssoicedtecorisasioiebhecdaipaaiatn api aid daa 47
B. Whether Remedying a Section 2 Violation is a Compelling ....
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C. The Court-Ordered Redistricting Plan is Narrowly Tailored ..
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES R. KING,
Piaintiff,
)
)
)
)
v. ) 95 C 827
)
STATE BOARD OF )
ELECTIONS, )
DAVID E. MURRAY, )
LAWRENCE E. JOHNSON, _)
HANNELORE HUISMAN, )
JUDITH JONES, LANGDON )
D. NEAL, THERESA M. )
PETRONE, and WANDA )
REDNOUR, )
)
Defendants, )
)
)
)
)
)
)
)
)
)
)
)
)
)
and
Hon. Michael S. Kanne
Hon. Charles R. Norgle, Sr.
Hon. David H. Coar
UNITED STATES OF
AMERICA, BOBBY RUSH,
TIMUEL BLACK, AL
JOHNSON, ELVIRA
CARRIZALES, NEOMI
HERNANDEZ, and THE
CHICAGO URBAN
LEAGUE,
Dated: March 7, 1996
Defendant Intervenors.
MEMORANDUM OPINION AND ORDER
Plaintiff, James R. King (“King”), claims that the configuration of
the Illinois Fourth Congressional District violates the Fourteenth
Amendment. To address this claim, this court must review the history
4
i ne
of the current district map and resolve the unusual procedural issues
that accompany King’s lawsuit.
Because the Illinois General Assembly failed to reapportion [Ilinois’
legislative districts following the issuance of the 1990 census report,
that task fell to an earlier panel of this court by default.' See Hastert
v. State Bd. of Elections, 777 F. Supp. 634, 641 (N.D. Ill. 1991)
(hereinafter “Hastert’”). On November 6, 1991, the Hastert court
issued an order reapportioning Illinois’ twenty (20) congressional
seats. Through this order, the Hastert court created a “majority-
minority” Hispanic congressional district for the first time in Illinois
history. The situs of this Hispanic majority district is Illinois’ Fourth
Congressional District, which is located in Cook County and the City
of Chicago.’ Since November 6, 1991, the United States Supreme
Court has issued two course-altering opinions concerning
congressional reapportionment and the Equal Protection Clause of
the Fourteenth Amendment. See Shaw v. Reno, __ U.S.__, 113S.
Ct. 2816 (1993); Miller v. Johnson, ___ U.S. ___, 115 S. Ct. 2475
(1995). In addition, two congressional elections have been held; in
both elections, the electorate of the Fourth Congressional District
sent a Hispanic representative to Congress.
In February 1995, King, a resident of the Fourth Congressional
District, filed the instant lawsuit challenging the constitutionality of
the Hispanic majority district adopted in Hastert.’ King contends
that the borders of the Fourth Congressional District were drawn
predominately on the basis of race and without a compelling state
interest to justify this racially-based classification. He also opposes
the district’s current configuration on moral grounds. King thus argues
that the configuration of the Fourth Congressional District approved
1 Article 4, §3(b) of the Ilinois Constitution provides in pertinent part:
In the year following each Federal decennial census year, the General Assembly
shall redistrict the Legislative Districts .. . [by] June 30 of that year
2 A map of the Fourth Congressional District is attached as Appendix Exhibit
A.
3 Wiiliam J. Kelly and PAC for Middie America originally joined King as
plaintiffs in this lawsuit. Kelly, a resident of Illinois’ First Congressional District,
challenged the Hastert court's reapportionment of the First Congressional District
-- a “super-majority” African-American congressional district -- on the same
grounds that King challenges the reapportionment of the Fourth Congressional
District. Kelly and PAC for Middle America voluntarily dismissed their claims
several months prior to tral.
in Hastert violates the Equal Protection Clause of the Fourteenth
Amendment. King’s lawsuit compels this court to again enter the
thicket of congressional redistricting. See Hastert, 777 F. Supp. at
641 (citation omitted). More specifically, this court must determine
whether the court-ordered Hispanic majority district adopted in
Hastert passes constitutional muster under the Supreme Court’s most
recent equal protection jurisprudence.
I. Relevant Procedural History
Following the filing of King’s lawsuit, this court permitted
Congressman Bobby Rush (Dem.-IL, Ist Dist.), Timuel Black, Al
Johnson, Elvira Carrizales, Neomi Hernandez, the Chicago Urban
League, and the United States Department of Justice (“DOJ”) to
intervene as defendants under Federal Rules of Civil Procedure 24(a)
and (b).* In addition, the court permitted the Democratic National
Committee to participate amicus curiae.
On August 15, 1995, King filed a motion for a preliminary ir.junction
seeking to enjoin the Illinois Congressional primary and general
elections presently scheduled for March 19, 1996, and November 5,
1996, respectively. King predicated his request for a preliminary
injunction on the alleged constitutional deprivation articulated in his
complaint; namely, that the Hastert court’s configuration of the Fourth
Congressional District on the basis of race violated his rights under
the Fourteenth Amendment to participate in a “color-blind election
process.” Pursuant to Rule 65(a)(2), this court consolidated the
hearing on King’s preliminary injunction motion with the three day
trial conducted December 13-15, 1995, on the merits of King’s
complaint. See Fed. R. Civ. P. 65(a)(2). Since many of the arguments
advanced at trial by King either directly or indirectly challenged or
implicated factual findings and legal conclusions made by the Hastert
court, this court first had to resolve several procedural issues
concerning the relationship between this litigation and the Hastert
litigation. Two issues predominated: first, whether and to what extent
the parties are bound by the Hastert court’s findings of fact; and
second, the standard by which this court would review the Hastert
4 See Pac for Middle America v. State Board of Elections, No. 95 C 827, 1995
WL 571893 (N.D. Ill. Sept. 20, 1995) (three judge panel); Minute Order dated
Nov. 8, 1995. Rush, Johnson, Hernandez, and the Chicago Urban League all
participated in the Hastert litigation.
6
court’s conclusions of law.
A.Standards Governing the Hastert court’s Findings of Fact
1.Rule 60(b)
Defendant State Board of Elections (“SBOE”) and defendant-
intervenor DOJ argued that King’s lawsuit should be considered an
attempt to modify or vacate the Hastert court’s reapportionment order
since it essentially attacked the factual findings and legal conclusions
of the Hastert opinion. Based upon this characterization, the SBOE
and DOJ maintained that King’s lawsuit should have been transferred
to the Hastert panel pursuant to Local General Rule 2.21D(8).° If
the case had been transferred, King would have had to petition the
Hastert court to reopen those proceedings and permit him to intervene.
The Hastert court, in turn, would have considered King’s challenges
to its November 1991 reapportionment order under Rule 60(b)(5) or
(b)(6).° Proceeding under Rule 60(b) would have been a daunting
task, since “relief from a judgment under Rule 60(b) is an extraordinary
5 The Honorable Michael S. Kanne, Charles R. Norgle, Sr., and Suzanne B.
Conlon presided over the Hastert litigation. Local General Rule 2.21D provides:
Direct Assignment of Cases to the Calendar of a Judge
In each of the following instances, the assignment clerk shall assign the case to
a judge in the manner specified:
xk *
g(8) Cases filed to enforce, modify, or vacate judgment
Proceedings to enforce, modify, or vacate a judgment should be brought within
the case in which the judgment was entered. If a separate case is filed for the
purpose of enforcing, modifying, or vacating a judgment entered in a case
previously filed in this District, the case shall be assigned directly to the judge
to whom the earlier case was assigned.
6 Rule 60(b) provides in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a
party's legal representative from a final judgment, order, or proceeding for the
following reasons: .. _ (5) the judgment has been satisfied, released, or
discharged, or a prior judgment upon which it is based has been reversed or
otherwise vacated, or it is no longer equitable that the judgment should have
prospective application; or (6) any other reason justifying relief from the
operation of the judgment __. .
Fed. R. Civ. P. 60(b)(5), (bM 6). Rule 60(b) also provides that a court may “entertain
an independent action to relieve a party from a judgment, order or proceeding.”
Resort to an independent action -- an action in equity to obtain relief from a
judgment -- may only be had rarely and under exceptional circumstances. //
Wright & Miller, Federal Practice and Procedure: Civil.2d §2868, at 397-98
remedy reserved for the exceptional case.”” See Camp v. Gregory, 67
F.3d 1286, 1290 (7th Cir. 1995).
This court, which includes two of the three judges who presided
(1995). An independent action in equity has the following “indispensable”
elements: ;
(1) a judgment which ought not, in equity and good conscience, to be enforced;
(2) a good defense to the alleged cause of action on which the judgment is
founded; (3) fraud, accident, or mistake which prevented the defendant in the
judgment from obtaining the benefit of his defense; (4) the absence of fault or
negligence on the part of the defendant; and (5) the absence of any adequate
remedy at law.
Id. at 397 & n.5 (citations omitted). King’s action does not contain all of these
indispensable elements and thus cannot be characterized as an independent action
in equity. See, e.g., Rader v. Cliburn, 476 F.2d 182, 184 (6th Cir. 1973) (lawsuit
which alleged that a federal judge failed to consider a relevant state statute when
he ordered the reapportionment of the Macon County, Tennessee’s Board of
Education Districts two years earlier was not a case of unusual or exceptional
circumstances meriting relief as an independent suit in equity).
7 Federal Rules of Civil Procedure 59(e) and 60(b) both govern post-judgment
motions attacking the merits of a district court's decisions. See Russell v. Delco
Remy Div. of Gen. Motors, 51 F.3d 746, 749 (7th Cir. 1995). Motions for
Reconsideration under Rule 59(e) permit a court to “correct manifest errors of
law or fact or to present newly discovered evidence.” Id. (citing Bank of Waunakee
v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1191 (7th Cir. 1990)); Keene
Corp. v. International Fidelity Ins. Co., 561 F. Supp. 656, 665-66 (N.D. Ill. 1982),
aff'd 736 F.2d 388 (7th Cir. 1984). In addition, a motion for reconsideration is
appropriate where a controlling or significant change in the law or facts has
occurred since the issue was submitted to the court. Waunakee, 906 F.2d at 1191
(citation omitted). The Rule permits a court to correct its own errors, thereby
avoiding the expenses and burdens of an appeal. Russell, 51 F.3d at 749. A Rule
59(e) motion must be filed within ten (10) days of the judgment. Fed. R. Civ. P.
59e); Russell, 51 F.3d at 749; Helms v. Resolution Trust Corp., 43 F.3d 1163,
1166-67 (7th Cir. 1995) (a motion to alter or amend a judgment served more than
ten days after a final judgment is treated as a Rule 60(b) motion).
Rule 60(b) “enables a court to grant relief from a judgment under the particular
circumstances listed in the text of the rule.” Russell, 51 F.3d at 749. It was
designed to “address mistakes attributable to special circumstances and not merely
to erroneous applications of law.” /d. It affords extraordinary relief and is
application is limited to extraordinary circumstances. Id., Harold Washington
Party v. Cook Co., Ill. Democratic Party, 984 F.2d 875, 879 (7th Cir.), cert.
denied __ U.S. __, 114 S. Ct. 86 (1993); Bally Export Corp. v. Balicar, Lid.,
804 F.2d 398, 400 (7th Cir. 1986). It too permits a court to correct only “manifest
errors of law or fact.” See United States ex rel. Felder v. Gramley, 893 F. Supp.
768, 773 (N.D. Ill. 1995); Jones v. Banks, 892 F. Supp. 988, 989 (N.D. Ill. 1995)
er ae i ee NR eT tis SE PRA ET nl I Ee
a ET ED PRA aii ing ABT
over the Hastert case, declined to transfer King’s case as suggested
by the SBOE and DOJ for three reasons. First, the doctrine of the
law of the case mandated this court’s rejection of the SBOE and DOJ
argument. The law of the case doctrine typically provides that “when
a court decides upon a rule of law, that decision should continue to
govern the same issues in subsequent stages in the same case.”
Donohoe v. Consolidated Operating & Prod. Corp., 30 F.3d 907,
910 (7th Cir. 1994) (quoting Arizona v. California, 460 U.S. 605,
618, 103 S. Ct. 1382, 1391 (1983)). The doctrine applies not only to
the prior decisions of the same court, but also to prior decisions of a
coordinate court in the same case. /d. (citing Christianson v. Colt
Indus. Operating Corp., 486 U.S. 800, 815-18, 108 S. Ct. 2166,
2177-79 (1988)). In this context, the doctrine of the law of the case
functions like the doctrine governing reconsideration; that is, “a court
will ordinarily not reconsider its own decision made at an earlier stage
of the trial or on a prior appeal, absent clear and convincing reasons
to reexamine the prior ruling.” See Johnson v. Burken, 930 F.2d
1202, 1207 (7th Cir. 1991) (quoting Gertz v. Robert Welch, Inc., 680
F.2d 527, 532 (7th Cir. 1982), cert. denied 459 U.S. 1226, 103 S.Ct.
1233 (1983)). Thus, when a court is asked to change a prior decision
in its own case or in the case of a coordinate court, the law of the case
doctrine permits it to avoid reexamining the prior decision “unless
powerful reasons are given for doing so.” /d.
In this case, King filed a petition for the appointment of a three
judge panel pursuant to 28 U.S.C. section 2284(a) shortly after filing
(citation omitted).
| Footnote 7 con't.]
Rules 59(e) and 60(b) thus provide some overlapping relief, albeit the overlap
is imperfect. Russell, 51 F.3d at 749. “A court should correct a manifest error of
law under Rule 59%e). . . . Rule 60(b), on the other hand, is not an appropriate
vehicle for addressing simple legal error; otherwise, a party could circumvent the
ordinary time limitation for filing a notice of appeal.” /d The correction of
mistakes under Rule 60/b) 1s left to the district court's sound discretion, but that
discretion must be exercised with a view to the differences inherent in the two
rules. /d.
his complaint.’ The SBOE agreed that a three judge panel was
appropriate but argued that the three judges who presided over the
Hastert litigation should be reappointed since King’s complaint sought
“to modify” that court’s redistricting order. (See SBOE Resp. Mem.,
at J94-5). In accordance with 28 U.S.C. section 2284(b)(1), the
petition was transferred to the Honorable Richard A. Posner, Chief
Judge of the Seventh Circuit Court of Appeals, for decision.’ Judge
Posner appointed the present panel, and thereby rejected the SBOE’s
request for assignment of the case to the Hastert court.
Second, neither the SBOE nor DOJ established that Local Rule
2.21D(8) applied to the unique circumstances of King’s complaint.
The purpose of Local Rule 2.21D(8) appears to be three-fold: to
prevent forum or judge shopping; to ensure continuity of decisions;
and to promote judicial economy. Given these purposes, it is axiomatic
that when a court enters a judgment resolving a dispute among certain
parties, the same court must preside over any secondary action brought
by one of the parties to enforce, modify or vacate that judgment.
King, however, does not fall within the parameters of this axiom. He
was neither a party to nor in privity with any party to the Hastert
proceeding, and thus lacked standing to petition the Hastert court
under Rule 60(b) for an order vacating or modifying its judgment
order. See Fed. R. Civ. P. R. 60(b); National Acceptance Co. of Am.,
Inc. v. Frigidmeats, Inc., 627 F.2d 764, 766 (7th Cir. 1980) (“i]t is
well settled that .. . ‘one who was not a party lacks standing to make
a 60(b) motion’”) (quoting Wright & Miller, Federal Practice and
8 Section 2284(a) provides that “[a} district court of three judges shall be
convened when
... an action is filed challenging the constitutionality of the apportionment of
congressional districts... ."” 28 U.S.C. §2284(a).
9 Section 2284 states in pertinent part:
(b)In any action required to be heard and determined by a district court of three
judges under subsection (a) of this section, the composition and procedure of
the court shall be as follows:
(1)Upon the filing of a request for three judges, the judge to whom the request
is presented shall, unless he determines that three judges are not required,
immediately notify the chief judge of the circuit, who shall designate two
other judges, at least one of whom shall be a circuit judge. The judges so
designated, and the judge to whom the request was presented, shall serve as
members of the court to hear and determine the action or proceeding.
28 U.S.C. §2284(b)( 1).
10
— a
Procedure §2865, at 225-26 (1973)). In addition, there is no evidence
that he engaged in any impermissible judge shopping, which would
have been a particularly fruitless endeavor since Judge Posner
appointed two of the three Hastert judges to preside over this case.
Similarly, the interests of judicial economy were not compelling as
King alleged that both the governing law and the relevant facts had
changed since the Hastert court issued its reapportionment order.
Thus, the law of the case doctrine notwithstanding, the DOJ and SBOE
failed to establish that King’s complaint was eligible for reassignment
under Local Rule 2.21D(8).
Finally, the Hastert court did not retain jurisdiction to hear and
decide future constitutional challenges to its reapportionment order.
The DOJ argued that the Hastert court implicitly retained jurisdiction
to enforce or modify its judgment in light of changed circumstances,
but the authority it cited concerned the modification of injunctive
relief. See System Fed’n No. 91, Ry. Emp. Dept., AFL-CIO, v. Wright,
364 U.S. 642, 647-48, 81 S. Ct. 368, 371 (1961) (district court abused
its discretion in refusing to modify consent decree that enjoined a
number of specific discriminatory acts); United States v. Swift & Co.,
286 U.S. 106, 114, 52 S. Ct. 460, 462 (1932) (court in equity has
power to modify an injunction to adapt to changed conditions, even
where the injunction was entered by consent decree). This authority
is inapposite as the Hastert court issued its reapportionment order
pursuant to Section 2 of the Voting Rights Act. To that end, the
Hastert court ordered that the court-ordered redistricting plan “shall
govern the nomination and election of members of the House of
Representatives from the State of Illinois, effective with respect to
the 1992 primary and continuing until Illinois congressional districts
are reapportioned in accordance with law.” Hastert, 777 F. Supp. at
662. The Hastert court thus not only declined to retain jurisdiction to
consider subsequent non-party challenges to its reapportionment order
but, equally important, it conditionally limited the duration of its
order.'® See Jackson v. DeSoto Parish Sch. Bd., 585 F.2d 726, 730
n.1 (Sth Cir. 1978) (“[w]e note . . . that in reapportionment, unlike
school desegregation and institutional reform cases, the court's
10 In this regard. the Hastert court essentially foresaw that a revised
reapportionment plan could supplant and supersede its order either through
legislative action or a subsequent court challenge, provided the revised plan was
“in accordance with [the}| law.” Thus, a subsequent court challenge to the Hastert
jurisdiction is not continuing, and the plan, once adopted and acted
upon [i.e., an election is held], does not require further judicial
supervision”).
Accordingly, this court did not transfer King’s complaint to the
Hastert court for further proceedings under Rule 60(b).
2.Conditional Judicial Notice
Although King was not a party to the Hastert litigation and thus
could not be bound by that court’s findings of fact or judgment under
the doctrines of collateral estoppel or res judicata,'' his complaint
both directly and indirectly challenged the Hastert court’s findings of
fact and judgment. In recognition of the unique nature of King’s
claim and to expedite the proceedings at trial, this court took judicial
notice of the Hastert court’s findings of fact under Federal Rule of
Evidence 201. See, e.g., Philips Medical Sys. Int'l, B.V. v. Bruetman,
982 F.2d 211, 215 n.2 (7th Cir. 1992) (federal courts may take judicial
notice of proceedings, including evidence, in other courts both within
and outside of the federal judicial system “if the proceedings have a
direct relation to matters at issue”); Green v. Warden, U.S.
Penitentiary, 699 F.2d 364, 369 (7th Cir.), cert. denied 461 US.
960, 103 S. Ct. 2436 (1983) (same). More specifically, this court
informed the parties that it would admit into evidence the Hastert
court’s finding of facts and would adopt those findings as conclusive
unless King showed by law or otherwise that the Hastert court either
court’s order would not threaten the interests of comity or the orderly administration
of justice where the challenge was based upon a change in law.
11 The doctrine of collateral estoppel provides that “once a court has decided
an issue of fact or law necessary to its judgment, that decision may preclude
relitigation of the issue in a suit on a different cause of action involving a party to
the first case.” Allen v. McCurry, 449 U.S. 90, 94, 101 S. Ct. 411, 415 (1980);
accord Havoco of Am., Lid. v. Freeman, Atkins & Coleman, Lid., 58 F.3d 303,
307 (7th Cir. 1995). Collateral estoppel precludes relitigation of issues in a
subsequent proceeding when:
(1) the party against whom the doctrine is asserted was a party to the earlier
proceeding; (2) the issue was actually litigated and decided on the merits; (3)
the resolution of the particular issue was necessary to the result; and (4) the
issues are identical.
Havoco, 58 F.3d at 307; Kraushaar v. Flanigan, 45 F.3d 1040, 1050 (7th Cir.
1995).
In contrast, under res judicata, “a judgment on the merits in a prior suit bars a
second suit involving the same parties, or their proxies, based on the same cause
of action.” Parklane Hostery Co.. Inc. v. Shore, 439 U.S. 322, 326 0.5, 99 $.Ct
12
erred in making specific findings of fact or that the circumstances
had changed since November 1991 such that specific findings of fact
were no longer valid and needed to be modified. See Tr., at 36, 652.
This court conditionally admitted the Hastert court’s findings of
fact through judicial notice for two reasons. First, had King been a
party or in privity with a party to the Hastert action, his constitutional
challenge of the Hastert court’s order and findings of fact would have
proceeded under Rule 60(b).'? Under Rule 60(b), the Hastert court’s
findings of fact made pursuant to Rule 52(a) would have been law of
the case. See Bennett v. Arrington, 806 F. Supp. 926, 927 n.2 (N.D.
Ala. 1992), aff’d in part, rev'd in part on other grounds 20 F.3d
1525 (11th Cir. 1994).'"° As such, the Hastert court would not have
645, 649 n.5 (1979); accord Brzostowski v. Laidlaw Waste Systems, Inc., 49 F.3d
337, 338 (7th Cir. 1995). Three elements must exist for res judicata to apply: (1)
a judgment on the merits in an earlier action; (2) identity of parties or privies in
the two suits; and (3) identity of the cause of action between both suits.
Brzostowski, 49 F.3d at 338.
12 Assuming standing, King at a minimum could have moved for a modification
of the Hastert court’s order under Rule 60(b)(6). A motion for relief under Rule
60(b)(6) is only appropriate if the grounds for relief do not fit uncer any of the
other subsections of Rule 60(b). Margoles v. Johns, 798 F.2d 1069, 1073 n.6
(7th Cir. 1986) (citation omitted), cert. denied 482 U.S. 905, 107 S.Ct. 2482
(1983). Relief under Rule 60(b)(6) is only warranted “upon a showing of
extraordinary circumstances that create a substantial danger that the underlying
judgment was unjust.” /d. at 1073 (citing Ackerman vy. United States, 340 US.
193, 71 S. Ct. 209 (1950)). While a post-judgment change in decisional law,
without more, is insufficient to constitute an extraordinary circumstance permitting
relief under Rule 60(b), see McKnight v. United States Steel Corp., 726 F.2d 333,
336 (7th Cir. 1984), extraordinary circumstances will be found to exist where, as
here, the change in decisional law may render the court's prior decision
unconstitutional. See, e.g., McGeshick v. Choucair, 72 F.3d 62, 63 (7th Cir.
1995) (“A supervening change in governing law that calls into serious question
the correctness of the court's judgment may justify recall of a mandate.’’).
In addition, a motion for relief from judgment under Rule 60(b)(5) or (b)(6)
must be made “within a reasonable time.” See Fed. R. Civ. P. 60(b). Because
King based his constitutional challenge in part on a change in the governing law,
any inquiry into the timeliness of King’s challenge must necessarily focus on the
passage of time between the advent of the changed law (i.¢., the issuance of the
Supreme Court's Shaw v. Reno decision in June 1993) and the filing of King’s
complaint. This twenty month time period (i.e., June 1993 to February 1995) 1s
not too excessive to be declared unreasonable. See PAC for Middle Am. v. State
Bd. of Elections, No. 95 C 827, 1995 WL 571887, *4 (N.D. Ill. Sept. 20, 1995)
(three judge panel).
reexamined its factual findings to decide a Rule 60(b) motion unless
powerful reasons existed for doing so -- such as the occurrence of
manifest error or a controlling or significant change in the factual
circumstances.'* Since King’s lawsuit is at its very core a challenge
to the Hastert court’s order, this court concluded that King’s lack of
standing under Rule 60(b) should not determine the standard of review
applicable to the Hastert court’s findings of fact. The court therefore
adopted the standards that would have applied had King sought to
modify the Hastert order under Rule 60(b).'° The court also
conditionally admitted the Hastert court’s findings of fact to promote
important interests in finality and judicial economy.'®
To demonstrate that the Hastert court erred in making a specific
finding of fact, King has to establish that the court committed clear
12 The Bennett litigation originated in 1981 as a reverse discrimination claim
arising out of a consent decree. See Bennett, 806 F. Supp. at 927. Following a
trial in 1985, the court ruled against the plaintiffs on their reverse discrimination
claim. See In re Birmingham Reverse Discrimination Employment Litigation,
No. 84-P-0903-S, 1985 WL 56690 (N.D. Ala. 1985). The Eleventh Circuit
reversed, see In re Birmingham Reverse Discrimination Employment Litigation,
833 F.2d 1492 (11th Cir. 1987), aff'd Martin v. Wilks, 490 U.S. 755, 109 S. Ct.
2180 (1989). The Supreme Court remanded the case to the district court for
further trial on the plaintiffs’ reverse discrimination claim. On remand, the district
court adopted the findings of fact of the 1985 trial court under the law of the case
doctrine, explaining:
Numerous findings of fact were made by the district court [in 1985]. . . . There
is no need to repeat these findings, which were not set aside on appeal and under
the law of the case remain as determinations for purposes of this decision. Bennett,
806 F.2d at 927 n.2 (citation omitted). Like the Bennett court, this court will
adopt the Hastert court's factual determinations for the purposes of this decision,
excluding any clearly erroneous findings and any findings that are no longer valid
due to changed circumstances.
14 As previously noted, the law of the case doctrine essentially functions as a
motion for reconsideration in this context. See Johnson v. Burken, 930 F.2d 1202,
1207 (7th Cir. 1991). The grounds for entertaining a motion for reconsideration
-- to correct manifest errors of law or fact or to consider controlling or significant
changes in the law or facts since the matter was submitted to the court -- thus
define the grounds for entertaining a subsequent challenge under Rule 60(b) to a
court's specific findings of fact. See United States v. Gramlev, 893 F. Supp. 768.
773 (N.D. Hil. 1995) (Rule 60(b) permits a court to correct “manifest errors of
law or fact’); Jones v. Banks, 892 F. Supp. 988, 989 (N_D. Ill. 1995) (same); see
also Bank of Waunakee v. Rochester Cheese Sa'es, Inc., 906 F.2d 1185, 1191 (7th
Cir. 1990) (recognizing grounds for reconsideration due to changes in controlling
law or facts)
1S This court has slightly modified the standards to comport to the procedural
14
error.'’ See Fed. R. Civ. P. 52(a). A finding of fact is “‘clearly
erroneous’ when although there is evidence to support it, the reviewing
court on the entire evidence is left with the definite and firm conviction
that a mistake has been committed.” Anderson v. City of Bessemer
City, N.C., 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985) (citation
omitted); United States v. United States Gypsum Co., 333 U.S. 364,
395, 68 S. Ct. 525, 542 (1948); United State — Price, 54 F.3d 342,
348 (7th Cir. 1995). Under this standard, the court must strongly
defer to the tner of fact’s findings. /n re Love, 957 F.2d 1350, 1354
(7th Cir. 1992). As such, “if the trial court’s account of the evidence
is plausible in light of the record viewed in its entirety, a reviewing
court may not reverse even if convinced that it would have weighted
the evidence differently as a trier of fact.” /d. “Where there are two
posture of this case (i.e., King has filed an independent lawsuit rather than a
Rule 60(b) motion to vacate of modify the Hastert judgment). Accordingly, this
court will consider the Hastert court's findings of fact conclusive unless King
establishes that the Hastert court committed clear error in making specific findings
of fact or proves by a preponderance of the evidence that the factual circumstances
have changed since the issuance of the Hastert decision.
16 The concepts of finality and judicial economy provide a very pragmatic
foundation for the standard of review adopted by this court. Since King has
brought this lawsuit in his individual capacity rather than on behalf of a certified
class, this court's findings of fact would not bind other potential private litigants
who are not in privity with King. It 1s therefore conceivable that these other
potential litigants, displeased by this court's ruling, might separately file a senes
of lawsuits challenging the constitutionality of the Fourth Congressional District.
If the court failed to take judicial notice of and conditionally admit the Hastert
court's factual findings, its ability to render a final judgment on the district's
constitutionality would prove elusive. Each successive challenge would require
the development of new, potentially inconsistent factual records. By taking judicial
notice of and conditionally admitting its prior fact findings, the court has
established a common core of facts that may only be modified by proof of changed
circumstances or demonstration of clear error. If the party challenging the district's
constitutionality fails to allege or establish the existence of changed factual
circumstances or clear error of significant magnitude to affect the consututional
analysis, a court should be able to dispose of the lawsuit under Rules 12, 56 or
50(a). In this manner, this court's decision to take judicial notice of the Hastert
court’s findings of fact furthers the interests of finality and judicial economy
while avoiding the potential hazards associated with successive, cumulative
constitutional challenges brought by independent litigants.
17 Rule 52, entitled “Findings by the Court; Judgment on Partial Findings”
provides in pertinent part:
(a) Effect. In all actions tried upon the facts without a jury or with an advisory
jury, the court shall find the facts specially and state separately its conclusion
1S
permissible views of the evidence, the fact-finder’s choice between
them cannot be clearly erroneous.” Anderson, 470 U.S. at 574, 105
S. Ct. at 1511. Accordingly, unless clear error is established, this
court will defer to the Hastert court’s findings of fact. See Johnson
v. Mortham, ___ F. Supp. ___, 1995 WL 707856 (N.D. Fla. Nov.
20, 1995)."8
Alternatively, King must establish by a preponderance of evidence
that specific factual circumstances have changed. See Jackson v.
DeSoto Parish Sch. Bd., 585 F.2d 726, 730 (Sth Cir. 1978). Once
such evidence has been proffered, this court will analyze the particular
finding of fact de novo.
In addition to taking judicial notice of the Hastert court’s findings
of fact, this court took judicial notice of the evidence presented to the
Hastert court. (Tr. at 638). The court admitted this evidence for the
limited purpose of establishing the evidentiary record upon which the
Hastert court relied to make its decision. (/d.). The Hastert court’s
evidentiary record was not admitted for any other purpose, except
where one of the parties individually or jointly moved for the admission
of a particular portion of that record.
B.Standard of Review of the Hastert court’s Conclusions of Law
An appellate court traditionally reviews a district court’s conclusions
of law de novo. See Apostol v. Landau, 957 F.2d 339, 341 (7th Cir.
1992). Under this standard, the appellate court is not bound by the
of law thereon, .... Findings of fact, whether based on oral or documentary
evidence, shall not be set aside unless clearly erroneous, and due regard shall
be given to the opportunity of the trial court to judge of the credibility of the
witnesses.
18 A brief review of the on-going Johnson litigation is required. After the
Florida legislature failed to adopt a congressional reapportionment plan to comply
with the 1990 census results, the task fell to the federal court. The district court
initially held the existing plan unconstitutional, and appointed a Master to
recommend a replacement plan. See DeGrandy v. Wetherell, 794 F. Supp. 1076
(N.D. Fla. 1992). The DeGrandy court subsequently adopted the Master’s Report
and Recommendation, which created two African-American majority-minority
districts and one African-American influence district. Following the Supreme
Court's decision in Shaw, plaintiffs filed a lawsuit in 1994 alleging that District
3 (one of the majority-minority districts created in the 1992 court order) violated
the Equal Protection Clause. The court found that District 3 was oddly configured.
See Johnson, ___ F. Supp. at ___, 1995 WL 707856, at *2. The plaintiff
subsequently moved for summary judgment. The Johnson court granted the motion
in part, concluding as a matter of law, that the plaintiffs proved that racial
considerations predominated in the drawing of District 3. The Johnson court
16
hee er ee ee
district court’s legal conclusions but instead examines the law “anew.”
Lulich v. Sherwin-Williams Co., 992 F.2d 719, 721 (7th Cir. 1993);
Black's Law Dict. 392 (Sth ed. 1979). Although this court is not an
appellate court, the nature of King’s complaint requires it to review
the Hastert court’s legal conclusions. Under these circumstances,
this court adopted the law of the case doctrine as the standard of
review for the Hastert court’s legal conclusions. As with a motion to
vacate or modify a judgment under Rule 60(b), this court will not
disturb the Hastert court’s conclusions of law but for manifest or
plain error. See Russell v. Delco Remy Div. of Gen. Motors, 5\ F.3d
746, 749 (7th Cir. 1995) (discussed supra in footnote 8). At the
same time, however, this court will review de novo the Hastert court’s
conclusions of law where the decisional law has arguably changed.
King proffers three “powerful reasons” warranting reexamination
of the Hastert court’s findings of fact and conclusions of law: first,
the governing law has changed as a result of the Supreme Court’s
decisions in Shaw and Miller; second, certain factual findings made
by the Hastert court were clearly erroneous; and third, the facts have
changed since November 1991.
Il. The Hastert Court’s Decision
The 1990 decennial census report revealed that Illinois’ population
had grown by 4,084 people, or 0.0357%, between 1980 and 1990.
Hastert, 777 F. Supp. at 637. Because the rate of Illinois’ population
growth was proportionally smaller than that of the United States as a
whole, Illinois was only entitled to twenty seats in the United States
House of Representatives rather than its previous twenty-two. The
Illinois constitution required the General Assembly to reapportion
the state’s congressional districts to comport with the 1990 census
results; however, it failed to do so. As a result of the General
Assembly’s abdication of its constitutional responsibility, five separate
lawsuits were filed seeking a common declaration; namely, Illinois’
then existing congressional districting plan was unconstitutional due
to the population and demographic changes represented in the 1990
census report. /d.
relied upon specific findings made by the DeGrandy court as the basis tor tts
ruling. /d. at___, 1995 WL 707856, at *20. The Johnson court denied, however.
plamtiffs’ motion for summary judgment with respect to whether District 3 survives
Strict scrutiny.
The Republican Party members of the 1990 Illinois congressional
delegation (the “Hastert” plaintiffs) filed the first lawsuit on June 27,
1991. Shortly thereafter, a group of Hispanic and African-American
resident-voters (the “Nieves” plaintiffs) filed the second lawsuit
seeking, inter alia, the creation of a majority-minority Hispanic
congressional district under Section 2 of the Voting Rights Act, 42
U.S.C. §1973. Next, a group of resident voters from various Illinois
congressional districts, ostensibly acting on behalf of the Democratic
Party members of the 1990 Illinois congressional delegation (the
“Rosebrook” plaintiffs), filed the third lawsuit. Representative
Cardiss Collins (D-IL; 7th Dist.) and Representative Charles Hayes
(D-IL; Ist Dist.) jointly filed the fourth lawsuit (the “Collins”
plaintiffs). Finally, the Chicago Urban League filed the fifth lawsuit
on behalf of the resident voters in the then existing majority-minority
African-American congressional districts. Each group of plaintiffs
submitted a proposed redistricting plan to the court for consideration.”
All five lawsuits were consolidated into a single proceeding for trial.
The Hastert court conducted a two day trial beginning on October
7, 1991. Due to time constraints imposed by the 1992 election filing
deadlines, the court streamlined the proceedings “in a manner that
would still enable the parties to present a complete record on the
serious constitutional matters at issue.”* Hastert, 777 F. Supp. at
639. To that end, the court “directed the parties to submit their evidence
in the form of affidavits and depositions, supplemented by any maps
and statistical data... .” /d. at 639-40. The court limited the parties
to a single proposed plan and map at trial, and entertained argument
mainly through post-trial briefs. /d. at 640.
As a result of these streamlined proceedings, the parties resolved
numerous issues through negotiation, concession, and stipulation. In
so doing, the parties not only effectively supplanted the Hastert court's
19 The Hastert court also permitted several individuals and organizations to
intervene. Of these plaintiffs-intervenors, only then Representative Augustus
Savage (D-IL; 2d Dist.) and the Harold Washington Party, acting in tandem,
submitted a proposed redistncting map to the court. Hastert, 777 F. Supp. at
639. Thus, at the onset of the case, six different redistricting plans had been
submitted to the court. —
20 The court's goal was to 1ssue its judgment “in a timely fashion to allow any
of the participants adequate time for appeal to the Supreme Court prior to the
December 16, 1991 filing deadline for the March 17, 1992 congressional primary
elections.” Hastert, 777 F. Supp. at 639.
18
fact finding role in many instances but also narrowed the number of
substantive legal issues the court needed to decide. The court
explained:
The parties worked diligently during discovery and the two-day
trial to resolve numerous areas of significant disagreement in their
competing plans. The pre-irial proceedings were marked by a
succession of amendments to the principal redistricting proposals,
with each of the new amended plans incrementally eliminating a
complex area of potential conflict. /d. at 640. The magnitude of
complex issues resolved by stipulation among the parties was
unprecedented.*' According to the Hastert court, not only did all of
the parties agree throughout the proceedings that “the population and
demographic changes within the City of Chicago from 1980 to 1990
mandated the creation of an Hispanic majority district,” but they also
reached an agreement prior to trial as to “the configuration of the
proposed Hispanic majority district.” /d. These pre-trial agreements
between the parties had significant consequences on the conduct and
outcome of the trial.
By reaching an agreement on the configuration of a proposed
Hispanic district, the parties greatly simplified a perplexing issue.
Indeed, an agreement on this issue may be the crucial factor in
facilitating the creation of an Hispanic district. The agreement on
the proposed Hispanic district removed the Hispanic contingent among
the Nieves plaintiffs as active participants at trial.’ /d. (emphasis
added).
The Hastert court summarized the effect of the streamlined
proceedings as follows:
As aconsequence of the admirable efforts of counsel to come to an
21 The pre-tnal negotiations and agreements between the diverse parties were
highly reminiscent of the compromising which characterizes the legislative process.
In fact, if the parties were aligned on partisan political grounds, the alignment
would resemble the composition of the state legislature (1.e., the Hastert
Republicans versus the Rosebrook et al. Democrats). Because of this partisan
alignment, agreements reached by the parties had an important value beyond
merely advancing the liigation’s timetable. More specifically, the partisan
alignment supported the reasonable inference that the bi-partisan agreements
and stipulations reflected the beliets of the General Assembly.
19
agreement on many issues, the trial focused primarily on the
redistricting proposals of the Hastert and Rosebrook plaintiffs. We
are left primarily with the task of determining which of the two
proposed plans best meets the goals and criteria, both constitutional
and non-constitutional, enumerated by the Supreme Court. /d. In
short, the parties’ pre-trial negotiations and agreements significantly
narrowed the court’s role. Essentially two tasks (relevant to this
lawsuit) remained for the Hastert court: first, to analyze the revised
Hastert and Rosebrook redistricting plans to determine which plan
better satisfied constitutional standards;* and second, to determine
whether Section 2 of the Voting Rights Act required the creation of an
Hispanic majority-minority district.
A. The Court’s Constitutional Analysis
The proposed Hastert and Rosebrook redistricting plans were
substantially similar in purpose, design and configuration but differed
in the final allocation of the electorate within the twenty congressional
districts.“ The Hastert court therefore set forth to determine which
proposed plan better satisfied the governing constitutional requirements
of population equality, fairness to minority voting rights (i.e., vote
dilution), and political fairness.
The court first assessed the two proposed plans under the one person,
one vote theory of representation articulated in Wesberry v. Sanders,
376 U.S. 1, 84 S. Ct. 526 (1964). The court ultimately concluded
22 In addition to the parties’ agreement about the creation and configuration of
an Hispanic majority-minority district, the parties also resolved via stipulation
the configuration of the Second Congressional District (a super-majority African-
American Congressional District) and the location of certain downstate minority
communities. /d.
23 It was a foregone conclusion that the 1980 redistricting plan was
unconsututional.
All parties are in agreement that the existing congressional district plan is both
unconstitutional and impracticable. Consequently, we proceed directly to an
evaluation of the constitutional and legal merits of the proposed Hastert and
Rosebrook plans.
Hastert, 777 F. Supp. at 641. The court analyzed the Hastert third amended
redistricting plan and the Rosebrook first amended redistricting plan. /d. at 641
n.8.
24 According to the court, “protection of the interests of minority communities
was a driving force for both the Hastert and Rosebrook plaintiffs.” Hastert, 777
F. Supp. at 646 n.19. As a result of the bipartisan pre-trial negotiations, no
minority group objected to the proposed revised Hastert or Rosebrook redistricting
plans. /d.
20
that the proposed Hastert plan, with a total deviation of 0.00017%
from the ideal congressional district population of 571,530, better
advanced the one person, one vote principle than the proposed
Rosebrook plan, which had a total deviation of 0.00297%. Hastert,
777 F. Supp. at 644.
The court next evaluated the proposed plans for their fairness to
the voting rights of racial and language minorities. Hastert, 777 F.
Supp. at 645. This inquiry required the court to assess whether either
of the proposed redistricting plans had the discriminatory effect of
diluting the power of minority votes.” The court found that neither
proposal diluted minority voting power and ultimately concluded that
the proposed Hastert plan better satisfied this constitutional criterion.”
Finally, the court assessed the proposed plans for political fairness,
meaning whether one or both of the proposed plans had the effect of
discriminating against an identifiable political group. Hastert, 777
F. Supp. at 655, 656. Both plans sought to address the then existing
discrepancy between Democratic and Republican congressional
representation.”’ The Rosebrook plaintiffs argued, however, that the
Hastert plan would result in a politically unfair redistribution of
25 Vote dilution occurs either by fragmenting large concentrations of minority
populations and dispersing them into separate political districts, or by concentrating
minorities into districts where they constitute an excessive majority. Hastert,
777 F. Supp. at 646 (citing Thornburg v. Gingles, 478 U.S. 30, 46 n.11, 106 S.
Ct. 2752, 2764 n.11 (1986)).
26 The 1981 court order which reapportioned Illinois’ congressional districts
in accordance with the 1980 decennial census results created three “super-
majority” African-American congressional districts; namely, the First, Second
and Seventh Congressional districts. See Hastert, 777 F. Supp. at 646-47 (citing
In re Congressional Dists. Cases, No 81 C 3915, slip op. (N.D. Ill. Nov. 23,
1981)). These districts contained the sixty-five percent (65%) minority population
and sixty percent (60%) voting age population generally regarded as the necessary
threshold for creating a “safe” minority district. /d. at 647-48 & n.22
The proposed Hastert and Rosebrook plans each retained these three majority
African-American congressional districts, despite the “major demographic changes
during the 1980's” that necessitated “radical alterations in the configuration of
the existing minority districts.” Hastert, 777 F. Supp. at 646.19. The three
super-majority African-American districts were retained as a result of bipartisan
agreement. See id.
The Hastert court ultimately concluded that the proposed Hastert plan better
addressed fairness concerns for minority voting power because its allocation of
the African-American population within the three super-majority congressional
districts more closely comported with the 65%-60% threshold than the Rosebrook
plan’s allocation. Hastert. 777 F. Supp. at 648, 655. The court likewise concluded
21
congressional seats. /d. at 656, 658. After an extensive analysis, the
court rejected this contention, concluding that “[t]he data suggests
that the Hastert plan is likely to yield a distribution of seats across
party lines that mirrors the statewide partisan makeup of the voting
citizenry ....” /d. at 659. It further concluded that the Hastert plan
was politically more fair. /d.
B.The Court’s Section 2 Voting Rights Act Analysis
As previously established, all of the parties initially agreed that
Section 2 of the Voting Rights Act “mandated” the creation of an
Hispanic majority district and further agreed to the general
configuration of such a district. As a result, the proposed
configurations of the Hispanic district in the Hastert and Rosebrook
plans were virtually identical: the district would link the two densely
populated Hispanic communities on Chicago’s near northwest and
near southwest sides though a narrowly drawn, C-shaped connector
that wound around the western edge of the Seventh Congressional
District.“ The Hastert court concluded that the proposed Hispanic
district had an “extraordinary appearance” that was “not unlike a
Rorschach blot turned on its side.””? Hastert, 777 F. Supp. at 648
n.24. Even though all of the parties agreed to this extraordinary
configuration, the court declined to “accept this conclusion without
scrutiny.” /d. at 648. It therefore undertook to determine whether
Section 2 of the Voting Rights Act required the creation of an Hispanic
majority district.
A minority group seeking the creation of a majority-minority district
under Section 2 must “make a threshold showing that it is: (1)
that the Hastert plan, which created an Hispanic majority district with a 65.03%
total and 59.18% voting age Hispanic population, was “marginally superior” to
the Rosebrook plan, which contain an Hispanic majority district with corresponding
concentrations of 65.00% and 59.15%. Id. at 651, 655.
27 After the 1990 election, the Democrat members of the Illinois congressional
delegation outnumbered their Republican counterparts fifteen (15) to seven (7).
28 The two Hispanic enclaves were separated by the Seventh Congressional
District, which runs in a roughly east-west direction along Chicago’s central
latitudes from Lake Michigan to the western suburbs. Hastert, 777 F. Supp. at
648 n.24.
29 It further observed that the proposed configuration of the Hispanic Fourth
Congressional District made the “bizarre” configuration of New Jersey’s 1982
congressional reapportionment plan in Karcher v. Daggett, 462 U.S. 725, 744-
65, 103 S. Ct. 2653, 2667-78 (1983) (Stevens, J., concurring), appear “acceptable
by comparison.” /d.
22
sufficiently large and geographicaily compact to constitute a majority
in a properly drawn district; (2) politically cohesive; and (3) that
racial bloc voting typically frustrates the election of the minority
group’s preferred candidate.” Hastert, 777 F. Supp. at 649 (citing
Gingles, 478 U.S. at 50-51, 106 S. Ct. at 2766). The court determined
that the Chicago/Cook County Hispanic community satisfied each of
these threshold requirements.
The court made the following findings of fact to support its
conclusion that the Chicago/Cook County Hispanic community was
“sufficiently large and geographically compact to constitute a single
district majority.” Hastert, 777 F. Supp. at 649. First, the 1990
census reported the Hispanic population in Chicago at 545,852, a
29.33% increase over the 1980 total. Jd. Second, “[mJost of the
Chicago/Cook County Hispanic population is clustered in two dense
enclaves, one on Chicago’s near northwest side and one on the near
southwest side.” /d. Third, the two enclaves are less than one mile
apart at their closest point. /d. Fourth, this separation resulted from
exogenous physical and institutional barriers -- specifically, the east-
west Eisenhower Expressway, the University of Illinois-Chicago Circle
campus, and various major medical institutions -- and thus did not
indicate the existence of two distinct communities. /d. & n.25.
To support its conclusion that the Chicago/Cook County Hispanic
community was politically cohesive, the court adopted the findings of
cohesiveness made by two federal courts in the early 1980s in cases
where the Hispanic community challenged discriminatory redistricting
practices at the state and local levels. Hastert, 777 F. Supp. at 650
(citing Ketchum v. Byrne, 740 F.2d 1398 (7th Cir. 1984), cert. denied
471 U.S. 1135, 105 S.Ct. 2673 (1985) (Chicago aldermanic
redistricting plan); Rybicki v. State Bd. of Elections, 574 F. Supp.
1082 (N.D. Ill. 1982) (three judge panel) (state legislative redistricting
plan), supplemented 574 F.Supp. 1147 (N.D.IIL.), supplemented 574
F. Supp. 1161 (N.D. Ill. 1983)). The court further found that the
voting bloc patterns of the Hispanic community also demonstrated its
political cohesiveness. /d. More specifically, the court found that
“{s]ingle and bivariate regression analysis of voting patterns in Chicago
precincts demonstrate significant ethnic bloc voting patterns.” /d.
Finally, the court found that the third threshold factor was fulfilled
because the paucity of Hispanic officials in city and state-wide elected
political offices compelled “the finding that ethnic bloc voting patterns
23
———————
\
have thwarted the political interests of the Hispanic community.” /d.
Having found the three threshold requirements satisfied, the court
then considered the merits of the claimed need for an Hispanic majority-
minority district under “the totality of the circumstances test.” Hastert,
777 F. Supp. at 649. The relevant factors generally considered under
the totality of the circumstances test include
a history of official discrimination relating to minority
political participation; the extent of racially polarized voting
practices; the extent to which certain voting practices and
procedures with discriminatory effects have been employed
in the past; the exclusion of the minority group from the
candidate slating process; the extent to which the minority
group bears the effects of past discrimination in education,
employment and health services which hinder their ability
to effectively participate in the political process; the use of
racial appeals in political campaigns; the extent to which
minorities have been elected to office; and the lack of
responsiveness by elected officials to particular minority
needs.
Id. (citations omitted). However, rather than making its own findings
of fact with respect to these factors, the court adopted the Seventh
Circuit’s findings concerning the Chicago Hispanic community set
forth in Ketchum v. Byrne, the Section 2 Voting Rights Act challenge
of the 1982 Chicago aldermanic redistricting plan. /d. Based ona
“judicially recognized history of discrimination, both past and present,
against the Chicago Hispanic community and its attendant impact on
effective political participation and representation,” the Hastert court
concluded that an Hispanic majority district was warranted under
Gingles. Id. The court further concluded that the “odd configuration”
of the majority-minority Hispanic Fourth Congressional District was
necessary to accommodate the creation of the Hispanic and the three
African-American majority-minority districts “dictated under the
Voting Rights Act.” /d. The court therefore concluded that “the
configuration has been drafted to satisfy constitutional and statutory
goals and principles.” /d. (emphasis in original).
Ill. King’s Constitutional Challenge of the Hastert Court’s
Decision
As previously established, King contends that the boundaries of the
24
majority Hispanic Fourth Congressional District were drawn on the
basis of race in violation of the Equal Protection Clause of the
Fourteenth Amendment. The idea that a legislative redistricting plan
that segregated the electorate on the basis of race might violate the
Equal Protection Clause first surfaced in the 1960s. See Gomillion
v. Lightfoot, 364 U.S. 339, 349, 81 S. Ct. 125, 131 (1960) (Whittaker,
J., concurring) (plan to redefine city’s borders to place Negro voters
outside of city limits was an unlawful segregation of citizens on basis
of race in violation of the Equal Protection Clause); Wright v.
Rockefeller, 376 U.S. 52, 56, 84S. Ct. 603, 605 (1964) (congressional
redistricting plan that allegedly segregated eligible voters by race and
place of origin was challenged as a violation of the Equal Protection
Clause). The Supreme Court, however, did not formally recognize
an Equal Protection Clause challenge to redistricting plans until its
1993 decision in Shaw v. Reno,___ U.S.__, 113 S. Ct. 2816 (1993),
where it recognized a claim challenging the constitutionality of a
bizarrely drawn but facially race-neutral redistricting plan. Two years
later in Miller v. Johnson, __ U.S. ____, 115 S. Ct. 2475 (1995), the
Supreme Court further defined the contours of this Equal Protection
Clause claim. Since Shaw and Miller were both decided after Hastert,
the Hastert court did not have occasion to consider whether the
extraordinary configuration of the Fourth Congressional District may
have violated the Equal Protection Clause. Accordingly, the Hastert
court’s conclusion that the district’s extraordinary configuration was
necessary to “‘satisfy constitutional principles” is rendered circumspect
by the change in governing law and is therefore subject to de novo
review.
The Equal Protection Clause of the Fourteenth Amendment provides
that “[n]o state shall... deny to any person within its jurisdiction the
equal protection of the laws.” U.S. Const., Amdt. 14, §/. The clause’s
“central mandate is race neutrality in governmental decisionmaking.”
Miller, _ _§. U.S. at___, 115 S. Ct. at 2482. The prohibitions of the
Equal Protection Clause extend not only to laws that explicitly
distinguish between individuals on the basis of race but also to laws
that appear racially neutral but are “unexplainable on grounds other
than race.” Shaw, __ U.S. at__, 113 S. Ct. at 2824, 2825 (quoting
Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S.
252, 266, 97 S. Ct. 555, 564 (1977)); accord Miller, 115 S. Ct. at
2483. Although application of the Equal Protection Clause’s mandate
i)
SA
is often difficult, “the basic principle is straightforward: ‘Racial and
ethnic distinctions of any sort are inherently suspect and thus call for
the most exacting judicial examination.’”” Miller, __ U.S. at_,
115 S. Ct. at 2482 (quoting Regents of Univ. of Cal. v. Bakke, 438
U.S. 265, 291, 98 S. Ct. 2733, 2748 (1987)). Laws that classify
citizens on the basis of race cannot be upheld unless they are narrowly
tailored to achieve a compelling state interest. /d. (citations omitted);
Shaw, __ U.S. at__, 113 S. Ct. at 2825.
In Shaw, the Supreme Court held that “a plaintiff challenging a
reapportionment statute under the Equal Protection Clause may state
a claim by alleging that the legislation, though race-neutral on its
face, rationally cannot be understood as anything other than an effort
to separate voters into different districts on the basis of race, and that
the separation lacks sufficient justification.” ___ U.S. at___, 113S.
Ct. at 2828. The appearance of the reapportioned district is therefore
an important factor in ascertaining whether the electorate was
impermissibly segregated on the basis of race. /d. at__, 113 S. Ct.
at 2827 (“appearances do matter” in redistricting).
The Hastert court readily observed that the majority Hispanic Fourth
Congressional District was bizarrely configured and “resembled a
Rorschach blot tured on its side.” 777 F. Supp. at 648 n.24. Although
the Hastert court is presumed to have acted constitutionally in issuing
its reapportionment order, see United States v. Paradise, 480 US.
149, 183, 107 S. Ct. 1053, 1073 (1987);*' see also Miller, __ US.
at___, 11S S. Ct. at 2488 (until a claimant makes a showing sufficient
to support an allegation of race-based districting, the court must
presume that the legislature acted in good faith), the presumption is
30 The Supreme Court has never held that “race-conscious state
decisionmaking” is impermissible in all circumstances. Shaw, ____ U.S. at __,
113 S. Ct. at 2824, 2826. The Miller Court further explained:
A Suate is free to recognize communities that have a particular racial makeup,
provided its action is directed toward some common thread of relevant interests.
‘{W]hen members of a racial group live together in a ommunity, a
reapportionment plan that concentrates members of the group in one district
and exc:udes them from others may reflect wholly legitimate purposes.’ Shaw,
supra,at___, 113 S. Ct. at 2836. But where the State assumes. from a group of
voters’ race that they ‘think alike, share the same political interests, and will
preter the same candidates at the polls,’ it engages in racial stereotyping at
Miller, _ __ U.S. at__, 115. S. Ct. at 2490.
26
necessarily limited by the scope of the court’s constitutional analysis.
Since the Hastert court did not analyze whether the oddly drawn Fourth
Congressional District met the requirements of the Equal Protection
Clause, a presumption of constitutionality does not arise and no
deference is accorded to the Hastert court on this issue.
There is no dispute that the Hastert court considered race and
ethnicity in its attempt to further the goals of the Voting Rights Act.”
Hastert, 777 F. Supp. at 650-51. The question is whether in attempting
to remedy a Section 2 Voting Rights Act violation, the Hastert court
adopted a redistricting plan that apportioned the electorate on the
basis of race and ethnicity in violation of the Fourteenth Amendment’s
Equal Protection Clause. Accordingly, the extraordinarily configured
Fourth Congressional District must be subjected to an Equal Protection
Clause analysis to determine its constitutionality.
A. Standards for Equal Protection Clause Analysis of
Redistricting Plan
“The essence of [the] Equal Protection Clause claim recognized in
Shaw is that the State has used race as a basis for separating voters
into districts.” Miller, _._' U.S. at__, 115 S. Ct. at 2485. When
the State uses race in this manner, it has engaged in racial
gerrymandering (i.e., “the deliberate and arbitrary distortion of district
boundaries . .. for racial purposes”). See Shaw,__ U.S. at__, 113
S. Ct. at 2823 (citing Davis v. Bandemer, 478 U.S. 109, 164, 106 S.
Ct. 2797, 2826 (1986) (Powell, J., concurring in part and dissenting
in part)). To determine whether a redistricting plan has been racially
gerrymandered, the court must focus on the role that race played in
the drawing of the district’s borders. The court, however, does not
31 In Paradise, the Court stated:
We must acknowledge the respect owned a district judge's judgment that
specified relief is essential to cure a violation of the Fourteenth Amendment.
A district court has ‘not merely the power but the duty to render a decree
which will so far as possible eliminate the discriminatory effects of the past as
well as bar like discrimination in the future.
480 U.S. at 183, 107 S. Ct. at 1073 (quoting Louisiana v. United States, 380 U.S
145, 154, 85 S. Ct. 817, 822 (1965)).
32 The court specifically acknowledyed that “[rJacial and ethnic considerations
are appropriate to drawing districts to advance the goals of the Voting Rights
Act.” Hastert, 777 ¥ Supp. at 650-51 (citing United Jewish Org. of Williamsburgh,
Inc. v. Carey, 430 US. 144.97 S. Ct. 996 (1977)).
27
make this assessment in a vacuum.
1. Determining the Role of Race in the Redistricting Plan
The court’s analysis begins by recognizing two fundamental
principles of redistricting. First, race is one of many demographic
factors inherently considered in the redistricting process. As the
Supreme Court observed in Shaw,
redistricting 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.
_.. US. £499 3 ee eee a ee a. Bie.
Ct. at 2487. Second, legislatures also generally consider “traditional
districting principles” -- compactness, contiguity, and respect for both
political subdivisions and communities of shared interests -- in deciding
how to reapportion district boundaries. The court’s task is to isolate
the role that race played in redistricting vis-a-vis the traditional race-
neutral districting principles and other non-racial demographic factors.
The court’s undertaking is difficult in and of itself;** it is only made
harder by the complex interplay of forces that enter a legislature’s
redistricting calculus. Miller, __ U.S. at ____, 115 S. Ct. at 2488.
.i the end, however, only two conclusions are possible: first, race
was the predominate consideration that guided the creation of the
district; or second, race was but one of many factors of equal or
greater weight that guided the creation of the district.”
If the court determines that race played the predominate role in
drawing the district’s boundaries, then the redistricting plan was
racially gerrymandered. See Miller, ___ U.S. at__, 115 S. Ct. at
2488-90; Shaw, __ U.S. at__, 113. S. Ct. at 2824-28. Race plays
the predominate role when the legisiature has subordinated all other
considerations, including the race-neutral traditional districting
principles (i.e., compactness, contiguity, and respect for both political
subdivisions and communities of shared interests), to racial
considerations in determining the district’s configuration. /d. On the
other hand, if the court determines that race was merely one factor
among many other race-neutral factors accorded equal or greater
33 “The distinction between being aware of racial considerations and being
“motivated by them may be difficult to make.” Mi/ler, 115 S. Ct. at 2487.
28
significance by the legislature in drawing the district’s boundaries,
then race was not the predominate factor and the redistricting plan is
not subject to strict scrutiny. See Miller, _§. U.S. at___, 115 S. Ct.
at 2488 (“‘where these [traditional districting principles] or other race-
neutral considerations are the basis for redistricting legislation, and
are not subordinated to race, a state can ‘defeat a claim that a district
has been gerrymandered on racial lines’”) (quoting Shaw, __ US.
at__, 113 S. Ct. at 2827); DeWitt v. Wilson, 856 F. Supp. 1409,
1415 (E.D. Cal. 1994) (“we conclude that in the context or
redistricting, where race is considered only in applying traditional
redistricting principles along with the requirements of the Voting Rights
Act, that strict scrutiny is not required”), aff’d in part and appeal
dismissed in part ___ U.S. ___, 115 S. Ct. 2637 (1995). In this
manner, the traditional race-neutral districting principles function as
“objective factors that may serve to defeat a claim that a district has
been gerrymandered on racial lines.” Shaw, ___— U.S. at__, 113 S.
Ct. at 2827.
A district does not need to be bizarrely shaped to warrant
constitutional review. See Miiler, __ U.S. at ___, 115 S. Ct. at
2486. According to the Supreme Court,
Shape is relevant not because bizarreness is a necessary
element of the constitutional wrong or a threshold
requirement of proof, but because it may be persuasivé
circumstantial evidence that race for its own sake, and not
other districting principles, was the legislature’s dominant
and controlling rationale in drawing its district lines.*°
Id. Rather, parties may rely on evidence other than bizarreness to
establish race-based districting. /d. (citations omitted).
The party challenging the district’s constitutionality has the burden
of persuasion to prove “that race was the predominant factor
motivating the legislature’s decision to place a significant number of
voters within or without a particular district.” Miller, ___~ US. at
___, 115 S. Ct. at 2488. The predominance of race in redistricting
may be shown “either through circumstantial evidence of a district’s
shape and demographics or more direct evidence going to the legislative
purpose.” /d. In sum,
34 One could argue that the presence of racially polanzed voting represents a
prior determination by the electorate that race overrides other issues 1n the political
algebra of the community
i)
\o
a plaintiff must prove that the legislature subordinated
traditional race-neutral districting principles, including but
not limited to compactness, contiguity, respect for political
subdivisions or communities defined by actual shared
interests, to racial considerations.
Id.
2. Strict Scrutiny
Once a plaintiff has proven that racial considerations predominated,
the court must subject the redistricting plan to strict scrutiny -- the
“most rigorous and exacting standard of constitutional review.” Miller,
__ U.S. at__, 115 S. Ct. at 2490. There are two prongs to this
examination: first, the racial classification must be justified by a
compelling governmental interest; and second, the means chosen by
the State must be narrowly tailored to achieve that goal. Wygant v.
Jackson Bd. of Educ., 476 U.S. 267, 274, 106 S. Ct. 1842, 1847
(1986) (plurality opinion) (citations omitted). Thus, to satisfy strict
scrutiny, “the State must demonstrate that its districting legislation is
narrowly tailored to achieve a compelling interest.” Miller, ___ U.S.
at__, 115 S. Ct. at 2490 (citing Shaw, __ U.S. at ____, 113 S. Ct.
at 2829-2832; City of Richmond v. J.A. Croson & Co., 488 U.S. 469,
494, 109 S. Ct. 706, 722 (1989) (plurality opinion); Wygant, 476
U.S. at 274, 280 & n.6, 106 S. Ct. at 1847, 1850 & n.6 (plurality
opinion); cf. Adarand Constructors, Inc. v. Pena,___ U.S. ___, 115
S. Ct. 2097, 2114 (1995)). Accordingly, once strict scrutiny is
required, the burden shifts to the State defendants to prove that the
racially drawn district is justified. See Miller, _. U.S. at__, 115
S. Ct. at 2490 (citing Shaw, __ U.S. at__, 113. S. Ct. at 2839-32);
Vera v. Richards, 861 F. Supp. 1304, 1336 (S.D. Tex. 1994), cert.
granted __U S.___, 115 S. Ct. 2639 (1995): but see Shaw v. Hunt,
861 F. Supp. 408, 435-36 (E.D.N.C. 1994), cert. granted ___ US.
__, 115 S. Ct. 2639 (1995).*
3. Subjecting a Court's Redistricting Orde? to Strict Scrutiny
The above standards notwithstanding, the defendant-intervenors
35 The Miller Court later reiterated this point:
In sum, we make clear that parties alleging that a State has assigned voters on
the basis of race are neither confined in their proof of evidence regarding the
distnict’s geometry and makeup nor required to make a threshold showing of
bizarreness.
__ US. at__. 115 S. Ct. at 2488.
30
argue that a court-ordered redistricting plan should not be subjected
to strict scrutiny where, as in Hastert, the plan is imposed to remedy
a constitutional or statutory violation. The defendant-intervenors
contend in this regard that the Supreme Court’s decisions in Shaw
and Miller do not apply to this case because those decisions involved
constitutional challenges to legislatively created congressional
redistricting plans rather than a court-ordered redistricting plan. This
distinction is without merit for three reasons.
First, the Supreme Court has historically recognized that in some
respects, court-ordered remedial redistricting plans must be subject
to stricter review than plans drawn by state legislatures. See Upham
v. Seamon, 456 U.S. 37, 42, 102 S. Ct. 1518, 1521-22 (1982) (per
36 In Shaw v. Hunt, the district court on remand (from Shaw v. Reno) recognized
a distinction between the burdens of production and of proof in a strict scrutiny
analysis. The court reasoned that once a plaintiff proved that race was the
predominate consideration and thereby triggered a strict scrutiny analysis, the
burden of production shifted to the State to demonstrate that its use of race was
justified by a compelling governmental interest. See Shaw, 861 F. Supp. at 435-
36. However, the court concluded that the plaintiff at all times retained the
ultimate burden of persuasion to establish the constitutional violation; as such,
the plaintiff had the burden to prove that the State's use of race was not narrowly
tailored to accomplish the asserted compelling interest. /d. This ruling has been
appealed to the Supreme Court.
Although not explicitly stated, the defendant-intervenors agree with the district
court’s conclusion in Shaw on remand. (See DOJ Post-Trial Mem., at 3). The
defendant-intervenors, like the Shaw court on remand, rely on Justice O’ Connor's
concurrence in Wygant to support their position. In Wyganz, a plurality of Justices
held that racially based lay-off preferences contained in a collective bargaining
agreement violated the Equal Protection Clause. In her concurrence, Justice
O'Connor wrote in pertinent part:
{I]t is incumbent upon the [plaintiffs] to prove their case: they continue to bear
the ultimate burden of persuading the court that the [defendants] evidence did
not support an inference of prior discrimination and thus a remedial purpose,
or that the plan was not sufficiently ‘narrowly tailored.’ Only by meeting this
burden [can] the plaintiffs establish a violation of their constitutional nights.
476 US. at 293, 106 S. Ct. at 1857 (O'Connor, J., concurring). The other Justices
forming the Court's plurality, Chief Justice Burger and Justices Powell and
Rehnquist, did not adopt this burden-shifting regimen but instead concluded only
that “(t]he ultimate burden remains with the employees to demonstrate the
unconstitutionality of an affirmative action program.” /d. at 277-78, 106 S. Ct. at
1849.
This court declines to follow the burden-shifting approach (reminiscent of Tithe |
VII cases) advocated by Justice O'Connor in Wegant and adopted by the Shaw
3]
curiam); Wise v. Lipscomb, 437 U.S. 535, 540, 98 S. Ct. 2493, 2497
(1978); Connor v. Finch, 431 U.S. 407, 414-15, 97 S. Ct. 1828,
1833-34 (1977). These courts have employed a more stringent
standard to review court-ordered redistricting plans because
reapportionment is a uniquely legislative task for which the court is
not ideally suited. See Connor, 431 U.S. at 414-15, 97 S. Ct. at
1833-34. There, the Supreme Court explained:
Legislative reapportionment is primarily a matter for
legislative consideration and determination, . . . 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. Where a legislature has failed 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
court on remand. First, the Shaw court on remand allocated the burden of proof
without the benefit of the Supreme Court's decision in Miller. As previously
noted, the Miller Court concluded that the “State must demonstrate that its
distncting legislation is narrowly tailored to achieve a compelling interest.” The
Miller Court thus imposed upon the State the dual burdens of demonstrating that
a compelling state interest existed and that the challenged redistricting plan was
“narrowly tailored” to accomplish that interest. This court will follow Miller, the
controlling law at this time. See also Bernal v. Fainier, 467 U.S. 216, 227, 104
S. Ct. 2312, 2319 (1973) (“{t]o satisfy strict scrutiny, the State must show that
[the challenged statute] furthers a compelling state interest by the least restrictive
means practically available”); /n re Griffiths, 413 U.S. 717, 721-22, 93 S. Ct.
2851, 2855 (1973) ("In order to justify the use of a suspect classification, a State
must show that its purpose or interest is both constitutionally permissible and
substantial, and that its use of the classification is ‘necessary . . . to the
accomplishment’ of its purpose or the safeguarding of its interest.”). Second,
Jusuce O'Connor, writing for the Court in Adarand, acknowledged “‘[t}he Court's
failure to produce a majority opinion in Bakke, Fullilove and Wygant left unresolved
the proper analysis for remedial race-based government action.” Adarand, ___
U.S. at___, 115 S. Ct. at 2109. Finally, as a matter of policy, the State should
bear the burden of proof once strict scrutiny is required since it is the State, and
not the private litigant, that is promoting racially based action with ail of its
attendant harms. See, ¢.g.. Miller, —§ U.S. at___, 115 S. Ct. at 2486 (outlining
potential harms of racially gerrymandered redistricting plans), Shaw, ___ U.S. at
___, 113 S. Ct. at 2827-28 (same), Wyganr, 476 U.S at 273, 106 S. Ct. at 1846
(“This court has ‘consistently repudiated distinctions between citizens solely
because of their ancestry’ as being ‘odious to a iree people whose institutions are
founded upon the doctrine of equality."”) (quoting Loving v. Virginia, 388 U.S. 1,
11,87 S. Cr. 1817, 1823 (1967)).
32
authoritativeness that the legislature can bring to the task.
In such circumstances, the court’s task is inevitably an
exposed and sensitive one that must be accomplished
circumspectly and in a manner ‘free from any taint of
arbitrariness or discrimination.’
Id. at 415, 97 S. Ct. at 1834 (citation omitted) (emphasis added);
accord Wise, 437 U.S. at 540, 98 S. Ct. at 2497.’ However, the
stricter standard for court-ordered reapportionment plans applies “only
to remedies required by the nature and scope of the violation. ‘The
remedial powers of an equity court must be adequate to the task, but
they are not unlimited.’” Upham, 456 U.S. at 42, 102 S. Ct. at 1522
(quoting Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S. Ct. 1858
(1971)). Thus, the legislative versus judicial distinction advocated
by the defendant-intervenors is of no consequence where, as in Hastert,
a court adopted a redistricting plan to remedy a constitutional or
statutory violation. Such a court-ordered plan must be strictly
scrutinized to ensure that the remedy itself is appropriate and
constitutional.”
Second, where a State legislature has abdicated its redistricting duty
to the court system, the courts are forced to act in a pseudo-legislative
capacity. If a lesser standard is applied to court-ordered redistricting
plans under these circumstances, the checks and balances inherent in
our constitutional framework will be gravely injured in this discrete
area. Subjecting a court-ordered plan to strict scrutiny is thus
necessary to restore constitutional equipoise. In addition, applying
the same standards to both court-ordered and legislatively created
redistricting plans is further warranted by the disturbing and growing
trend of gross dereliction of duty by State legis\.utures that are all too
ready to leave the political thicket of redistricting to the federal courts.”
Applying a lesser standard to a court-ordered redistricting plan would
37 “Legislative bodies should not leave their reapportionment tasks to the federal
courts; but when those with legislative responsibilities do not respond, or the
imminence of a state election makes it impractical for them to do so, 1 becomes
the ‘unwelcome obligation’ of the federal court to devise and impose a
reapportionment plan pending tater legislative action. In discharging this duty,
the district courts ‘will be held to stricter standards than will a state legislature.”
Wise, 437 U.S. at 540, 98 S. Ct. at 2497 (quoting Connor, 431 U S. at 424,97 S
Ct. at 1833)
33
only reward such cowardice and encourage more state legislatures to
forsake their duties and seek political refuge behind the court’s robes.
Protecting the integrity of the court requires application of an equal
standard of review where, as here, the court is forced by legislative
nonfeasance to perform what 1s a uniquely legislative task.
Third, the Supreme Court in Adarand most recently held that all
racial classifications imposed by any governmental actor -- whether
federal, state or local -- must be analyzed by a reviewing court under
strict scrutiny. __ U.S. at___, 115 S. Ct. at 2117. Justice O’Connor,
writing for the Court, observed that the Court’s prior decisions through
Croson had established three general propositions with respect to
governmental racial classifications:
First, skepticism: ‘[a}]ny preference based on racial or ethnic
criteria must necessarily receive a most searching
examination.’ Second, consistency: ‘the standard of review
under the Equal Protection Clause is not dependent on the
race of those burdened or benefited by a particular
classification . . . i.e., all racial classifications reviewable
under the Equal Protection Clause must be strictly
scrutinized. And third, congruence: ‘[e]qual protection
analysis in the Fifth Amendment is the same as that under
the Fourteenth Amendment.’
Adarand, ___ U.S. at ___, 115 S. Ct. at 2111 (citations omitted).
38 The Democratic National Committee argues in its amicus brief that the
Supreme Court has historically distinguished between court-ordered and legislative
plans, citing two examples: first, unlike redistricting plans drawn by state or
local governments subject to §5 of the Voting Rights Act, 42 U.S.C. §1973c,
remedial redistricting plans adopted by a federal court do not need to receive
preclearance from the Attorney General or a special three-judge federal court in
the District of Columbia; and second, “when a federal court must devise its own
remedial plan, it is necessary to determine whether the proposed remedial plan is
‘court ordered’ or ‘legislative’, to determine whether at-large districts may be
included.” (DNC Mem., at 10-11). Notwithstanding the facts that the theory
underpinning the first example is falsifiable since §5's preclearance requirements
do not apply to all State legislatures and that the second example implicitly
recognizes that a court can act in a legislative capacity in fashioning a redistricting
plan, the DNC’s position is positively unavailing in light of the Supreme Court's
pronouncements in Upham, Wise, and Connor (none ot which was properly cited
in the DNC ¢ brief).
39 State legislatures in California, Florida, Illinois (repeatedly), and most
recently Georgia, among others, have inexcusably abandoned their constitutional
redistricting duties to the courts
34
Justice O'Connor concluded:
Taken together, these three propositions lead to the
conclusion that any person, of whatever race, has the right
to demand that any governmental actor subject to the
Constitution justify any racial classification subjecting that
person to unequal treatment under the strictest judicial
scrutiny.
Id. (emphasis added). Although Adarand did not involve a challenge
to a court-ordered racial classification, the scope of the Court’s
conclusion must be extended to include the judicial branch. See, e.g.,
Shaw, ___ U.S. at ___, 113 S. Ct. at 2832 (“Racial classifications
with respect to voting carry particular dangers. Racial
gerrymandering, even for remedial purposes, may balkanize us into
competing racial factions; .. . . Itis for these reasons that race-based
districting by our state legislatures demands close judicial scrutiny.”’).
Accordingly, strict scrutiny may be applied to court-ordered
reapportionment plans drawn predominately on the basis of race.”
The defendant-intervenors and Democratic National Committee,
as amicus curiae, nonetheless argue that a lesser standard of review
should be applied to court-ordered remedial redistricting plans, citing
DeWitt v. Wilson, 856 F. Supp. 1409 (E.D. Cal. 1994).*' This case is
both factually and legally distinguishable. In 1991, the California
Supreme Court appointed a panel of Masters to develop and
recommend a redistricting plan after the governor vetoed the
legislature's reapportionment plan and legislative malaise set in. 856
F. Supp. at 1410. The Masters conducted public hearings and
submitted a report and recommendation to the California Supreme
Court, which the Supreme Court adopted. /d. (citing Wilson v. Eu, |
Cal. 4th 707, 4 Cal. Rptr. 2d 379, 823 P.2d 545 (1992)). A California
registered voter subsequently challenged the court-ordered redistricting
plan, claiming that it “relied on race-conscious reapportionment and
diluted white voter strength in violation of the Equal Protection Clause
40 In Croson, the Supreme Court observed that “[t]he purpose of strict scrutiny
is to ‘smoke out illegitimate uses of race by assuring that the legislative body 1s
pursuing a goal important enough to warrant use of a highly suspect tool.” 488
U.S. at 493, 109 S. Ct. at 721. Citing this language, the defendant-intervenors
argue that strict scrutiny 1s more suited for legislative action than federal court
action. While this observation may be generally true, it 1s not without exception.
In Miller. the Court concluded that a plainuff could establish that racial
35
of the Fourteenth and Fifteenth Amendments.” /d. The district court
granted summary judgment for the State, concluding that the
redistricting plan did not fall within the parameters of Shaw v. Reno.
The DeWitt court, citing with approval the California Supreme
Court’s findings in Wilson v. Eu, concluded that “(n]Jo bizarre
boundaries were created” and that “the Master’s Report sought to
balance the many traditional redistricting principles, including the
requirements of the Voting Rights Act.” 856 F. Supp. at 1413. The
court framed the issue as follows:
This case . . . involves the constitutionality of a redistricting
plan that created majority-minority districts in a manner
that was consistent with traditional redistricting principles,
not based solely on race, and not involving extremely
irregular boundaries. It involves the question left open by
the Court in Shaw.
Id. The DeWitt court concluded that the plaintiff failed to state a
claim for racial gerrymandering because
[t]he Masters did not draw district lines based deliberately
and solely on race, with arbitrary distortions of district
boundaries. The Masters . . . properly looked at race, not
as the sole criteria in drawing lines but as one of the many
factors to be considered. We agree with the California
Supreme Court that the Masters’ Report evidences a
judicious and proper balancing of the many factors
appropriate to redistricting .. ..
Id. \t further held that “in the context of redistricting, where race is
considered only in applying traditional redistricting principles along
considerations predominated either through circumstantial evidence of shape and
demographic factors or through direct evidence of the legislature’s purpose. ___
U.S. at ___, 115 S. Ct. at 2488. Given these differing methods of proof, strict
scrutiny would not “entail the in-depth examination of the federal court that ordered
the plan” envisioned by the defendant-intervenors where a plaintiff relies on
circumstantial evidence to challenge the court-ordered redistricting plan. In fact,
it has already been determined in Johnson v. Mortham, that a court-ordered
remedial congressional redistricting plan adopted in 1992 will be subjected to
strict scrutiny under the standards articulated in Miller. See Johnson. __ F.
Supp. ___, 1995 WL 707856 (N.D. Fla. Nov. 20, 1995) (discussed in footnote 18
supra).
41 The United States Supreme Court summarily affirmed the decision in DeWitt
on the same day that it issued its decision in Miller v. Johnson. See___ U.S. __.,
11S S. Ct. 2637 (1995) (affirming DeWitt in part and dismissing the appeal in
part).
36
Yee ee eS ” a ee eee oe Te
eT eee ee
with the requirements of the Voting Rights Act, . . . strict scrutiny is
not required.” /d. at 1415.
The Democratic National Committee reasons that since the Supreme
Court summarily affirmed the decision in DeWitt on the same day
that it decided Miller v. Johnson, it must have intended not to subject
the court-ordered redistricting plan to the “predominant use of race
test” announced in Miller. The DNC therefore speculates that if the
Supreme Court had intended to subject a court-ordered plan to the
same strict scrutiny applied in Miller to a legislatively enacted
redistricting plan, the Court would have vacated the De Witt decision
and remanded it for further proceedings in light of Miller. Such a
speculative inference is patently unreasonable given the De Witt court's
express findings that traditional race-neutral districting principles were
not subordinated to racial considerations in the redistricting process.
To the contrary, a much more reasonable (and indeed more probable)
inference to be drawn from the timing and texts of the Miller and
DeWitt decisions is that the Miller Court implicitly recognized the
facts and holding of DeWitt when it wrote:
Where these [traditional districting principles] or other race-
neutral considerations are the basis for redistricting
legislation, and are not subordinated to race, a state can
‘defeat a claim that a district has been gerrymandered on
racial lines.”
Miller, _ _ U.S. at___, 115 S. Ct. at 2488 (citing Shaw, ___ US. at
___, 113 S. Ct. at 2827). DeWitt does not establish that court-ordered
redistricting plans avoid strict scrutiny; rather, it completes the rule
announced in Shaw and Miller. That is, strict scrutiny will only apply
where racial considerations predominate over traditional race-neutral
districting principles.
This court therefore concludes that since racial considerations
predominated over all other factors in the configuration of the Fourth
Congressional District adopted by the Hastert court (see infra section
[V.B), the court-ordered plan must be subject to strict scrutiny.
B. Racial Considerations Predominated in Configuring the Fourth
Congressional District
The Supreme Court in Miller identified two means of establishing
that race predominated over all other considerations in the drawing
of district boundaries; namely, circumstantial evidence of a district's
shape and demographics or direct evidence of the legislative purpose.
37
Since the Illinois General Assembly did not create the majority-
minority Hispanic Fourth Congressional District, King’s only apparent
recourse was to prove that the Hastert court adopted a racially based
redistricting plan through circumstantial evidence. Establishing that
racial considerations predominated over all of the other complex
factors involved in redistricting through indirect, inferential evidence
is an extremely difficult burden under any set of circumstances.
Establishing that race predominated in a court-ordered redistricting
plan would normally make this burden exponentially more difficult.
Three factors, however, eased rather than enhanced the difficulty of
King’s burden: first, the Hastert court employed a unique process to
select a redistricting plan; second, the Hastert court found that the
Fourth Congressional District was bizarrely configured; and third,
the Hastert court did not make any findings of fact to explain how
and why the district’s boundaries came to have such a bizarre
configuration. The interplay of these three factors enabled King to
fulfill his burden.
1. The Unique Process of Selecting a Redistricting Plan®
At the onset of the consolidated Hastert proceedings, the various
litigants presented six different reapportionment plans to the court
for consideration. Due to significant time constraints, the court did
not have the option of bifurcating the proceedings to separately decide
the legal issues (e.g., the constitutionality of the existing plan; whether
Section 2 of the Voting Rights Act required the creation of an Hispanic
majority district) and the appropriate remedy. The court thus was
unable to conduct hearings (or appoint a Master to do the same) to
consider the merits and constitutionality of each of these submitted
plans. The court instead adopted streamlined discovery and trial
procedures which facilitated and condoned the pre-trial resolution of
disputed issues by the litigants. Two of these pre-trial agreements
are particularly important to this analysis: first, the parties universally
agreed that population and demographic changes “mandated the
creation of an Hispanic majority district;” and second, the parties
agreed in principle to the configuration of the proposed Hispanic
district. As a result of other pre-trial agreements, the parties revised
42 Although this court has previously set-forth a detailed summary of the Hastert
court proceedings, see supra part Ill, the Hastert court's methodology bears
repeating to demonstrate more precisely the consequences of that methodology
on this court’s decision.
38
and eliminated competing redistricting plans until only two remained
for the court’s consideration. The court’s primary task at trial was
thus narrowed to determining which of these two revised plans better
met constitutional and statutory requirements. Since the configuration
of the Fourth Congressional District was virtually the same regardless
of which proposed plan the court adopted, the district’s bizarre shape
was effectively determined by the /itigants and not the court.** Under
these circumstances, the litigants’ intentions and purpose become an
important source of information on the role that race played in the
configuration of the boundaries’ borders.“
2.The Bizarrely Drawn District
The Fourth Congressional District is an uncouth configuration: a
Rorschach ink blot turned on its side; a wobbly eighth note; an
unusually shaped bar-bell. However it is characterized, its shape is
bizarre. The District’s extremely irregular configuration creates a
strong inference (but not a presumption) that its shape rationally cannot
be understood as anything other than an effort to separate voters into
different districts on the basis of race. See, e.g., Miller, __ US.
__., 115 S. Ct. at 2486 (shape may be persuasive circumstantial
evidence that race for its own sake was the dominant rationale in the
drawing of district lines); Shaw,__ U.S. at__, 113. S. Ct. at 2826-
2828; Johnson v. Mortham, ___ F. Supp. ___, 1995 WL 707856, at
*20 (N.D. Fla. Nov. 20, 1995) (evidence of bizarre configuration by
itself was sufficient to establish racial gerrymander).
*. The Lack of Findings of Fact by the Hastert Court
An important effect of the streamlined Hastert pre-trial and trial
procedures was the transfer of many of the court’s fact finding
43 While it is true that the Hastert court affected the shape of the Fourth
Congressional District by selecting the proposed Hastert pian over the Rosebrook
plan, the demonstrable impact of that choice on the configuration of the district's
boundaries was de minimis. The Hastert court thus did not understate the impact
of the parties’ pre-trial agreement on district’s configuration when it observed
that this agreement may have been “the crucial factor in facilitating the creation
of an Hispanic district.”
44 The defendant-intervenors caution against relying extensively on such
evidence because the court ultimately selected the plan and its motivations for
doing so may have differed substantially from the drafters’ intentions. This court
will defer to the reasons expressed in the Hastert opimon concerning why that
court adopted the proposed Hastert plan over the proposed Rosebrook plan. Where.
however, the Hastert court did not make any specific findings that contradict or
undermine the expressed intent of the litigants, this court will consider evidence
relating to their intent.
39
responsibilities to the parties. As a result of these streamlined
procedures, a significant part of the evidentiary portion of the trial
was eliminated through stipulation. The Hastert court frequently
acknowledged that the parties had resolved complex issues via
stipulation but the court failed to address or recite the factual predicate
underpinning the stipulations. While this practice may have been
appropriate under the pressing time constraints in 1991, it has had
the collateral effect of limiting the factual record upon which this
court must rely to evaluate King’s claim.
This court’s task is to determine what role racial considerations
played in the configuration of the Fourth Congressional District’s
boundaries. In doing so, this court is confined to the factual
determinations made by the Hastert court as set forth in that court’s
opinion. This court cannot retroactively supplement the Hastert
court’s factual record. As such, unless the Hastert court made a
specific finding (e.g., socio-economic factors were considered in
drawing the district’s boundaries), the default rule must be that the
Hastert court did not consider the role that the particular factor played
in the district’s bizarre configuration. This default rule is required to
ensure that the court-ordered redistricting plan is “free from any taint
of arbitrariness or discrimination.” See Connor, 431 U.S. at 415, 97
S. Ct. at 1834.
4. Application
Almost from the outset of the Hastert litigation, the litigants agreed
to create an Hispanic majority-minority district. This agreement is
not, however, sufficient to establish that racial considerations
predominated over all other factors in the creation of the district’s
actual borders. The focus here is not on the justifications supporting
the creation of an Hispanic majority district but rather on how the
specific boundaries of the Fourth Congressional District came to be
drawn. While the Hastert opinion provides a broad perspective on
the factors facilitating the adoption of the Hispanic district, the court
did not make any specific findings explaining how or why the district’s
specific boundaries came to exist. This omission notwithstanding,
the only reasonable conclusion that can be drawn from the shape and
demographics of the district is that racia! considerations predominated
over all other factors in the configuration of the Fourth Congressional
District.
First, the pragmatic requirements of creating four super-majority -
minority districts located principally within the City of Chicago
40
Perret
necessarily forced the map makers to draw district boundaries with
race as a major consideration.* As the Hastert court revealed, the
goal of the litigants was to create a new Hispanic majority district
while maintaining the three African- American super-majority districts
(i.e., the First, Second and Seventh Congressional Districts) created
by federal court order in 1981. Substantial demographic changes in
the city’s minority population during the 1980s made accomplishing
this goal a particularly difficult task. While the Hispanic population
generally grew, the three majority African-American districts created
in 1981 experienced significant losses in population, especially
African-American population. See Hastert, 777 F. Supp. at 646
n.19. In addition, the African-American population generally moved
south. /d. These demographic changes caused the litigants to
“radically alter” the configuration of the three 1981 African-American
districts to ensure that an African-American popula’ion of 65% or
more could be maintained in each of the First, Second and Seventh
Congressional Districts.” /d. Since the city’s minority population is
finite and the constitutional requirement of one person-one vote
unforgiving in its application, the radical alteration of the three African-
American super-majority districts necessarily affected the boundaries
of the Hispanic majority district. The result was inevitable: a bizarrely
drawn Hispanic district whose boundaries were created to maximize
its Hispanic population while permitting the African-American super-
majority districts with which it shared common borders to maximize
their respective African-American populations in order to achieve
the desired 65% minority population threshold in each district.*’
Second, the only factor that consistently explains the precise
configuration of the district’s boundaries is race. The Defendant-
intervenors correctly point out that traditional non-racial districting
principles were considered in the configuration of the Fourth
Congressional Districts. Affidavits submitted into evidence establish
that the litigants, at least at the outset of the Hastert litigation,
considered factors such as compactness, contiguity, respect for political
45 As previously noted, a super-majority Afmcan-American district contains
an African-American population that represents 65% ot the district’s total
population and 60% of its voting age population. A super-majority Hispanic
district contains the same ratios of Hispanic population. According to the Hastert
court, these population ratios are required to ensue a safe minority congressional
seat. 777 F. Supp.‘at 647 & n.20.
4!
subdivisions and communities of shared interests in the initial
configuration of the Fourth Congressional District. However, it is
the degree of consideration, and not the mere fact of consideration,
that is crucial.
To a certain extent, the clustering of Hispanics into two densely
populated enclaves provided map makers with the luxury of resorting
to traditional districting principles. It is not surprising to find that a
comparatively small district with two densely packed minority enclaves
is (excluding the connector) more compact and more respectful of
political subdivisions than a larger district drawn to capture a more
dispersed minority population.* District to district comparisons do
not, therefore, necessarily inform the court of the role played by
traditional districting principles in the configuration of the Fourth
Congressional District. Rather, the inquiry must necessarily focus
on the manner in which the boundaries are drawn to determine whether
a rational pattern emerges to explain the district’s configuration on
grounds other than race (e.g., do the intricately shaped boundaries
follow or cross precinct borders? ward borders? natural or man-made
barriers?, etc.). If race is considered with other factors of equal or
greater weight, the configuration of the district should have some
objectively verifiable explanations (e.g., the border in part separates
traditionally Democratic and Republican Party electoral strongholds).
If an objectively determinable pattern does not emerge based on non-
racial districting factors, the only plausible explanation of the district’s
configuration is race. Alternatively stated, the question is whether
racial considerations substantially explain the configuration of the
district's borders; if the answer is yes, racial considerations will have
predominated.
In this case, a careful analysis of the Fourth District’s boundaries
46 The litigants substantially agreed prior to tnal to the reconfiguration of the
Second Congressional District, id. at 640, and apparently reached an agreement
in principle on the reconfiguration of the First and Seventh Congressional Districts,
save for the placement of Chicago's politically influential Second Ward.
47 The Hastert court acknowledged as much, stating:
The location of the Chicago Hispanic community in two highly concentrated
enclaves on either side of the Seventh Congressional District on Chicago's
near northwest and near southwest sides necessarily requires an odd
configuration to accommodate the creation of an Hispanic district and the three
super-majority African-American districts dictated under the Voting Rights Act.
777 F. Supp. at 650.
42
On ee ee Oe
establishes that they were drawn to maximize the percentage of
Hispanics located within the district.” As King’s witness Cleveland
testified, the lines of the Fourth Congressional District follow the
concentrations of the Hispanic population with “exquisite” detail. The
district's boundaries were drawn at the census block level, which
roughly corresponds to a city block.*° While the map makers had to
use census block data to ensure population equality, the census block
data contained racial data at the city block level. This data permitted
the map makers to draw the district's boundaries on a block-by-block
basis in order to maximize the concentration of Hispanics within the
district. As a result, when a map of the Fourth Congressional District
is superimposed over a map showing the concentration of the Hispanic
population drawn at the census tract level, the district map “includes
virtually all areas of high percent Hispanic concentration on the
northern . . . part of the City of Chicago as well as virtually all of the
areas of high Hispanic concentration on the southern part of the City
of Chicago.” (Def. Int. Exh. 12, at 105). The same is true when the
exercise is repeated at the census block level based upon the percentage
48 In the context of assessing the Gingles threshold requirements of a §2 Voting
Rights Act claim, the Hastert court found that the “Chicago/Cook County Hispanic
community is sufficiently large and geographically compact to constitute a single
district majority.” This finding does not establish, however, that the Hastert
court also found that the district drawn to accommodate this community was
compact. For example, a fairly small rectangle can be drawn around the two
enclaves on the near northwest and near southwest sides of the city that would
include a substantial majority of the Hispanic population within the City of
Chicago. This rectangle serves as evidence of the Hispanic community's
geographic compactness. The Fourth Congressional District, however, would
not fit within the area of this same rectangle: neither the western connector nor
the two promontory points jutting out of the district's two core areas fall inside
this rectangle. The finding of geographic compactness to satisfy a Gingles threshold
factor thus does not correspond to a separate finding that the Fourth Congressional
District was also compact.
The Hastert court did not make any findings concerning the compactness of
the Fourth Congressional District. Under the default rule previously articulated,
this court must conclude that compactness was not considered in the configuration
of the Fourth Congressional District. in any event, this court finds that the Fourth
Congressional District is not visually compact. See Schrage v. State Bd. of
Elections, 88 Ill. 2d 87, 98, 430 N.E.2d 483, 487 (1981) (recognizing visual
inspection as appropriate means for evaluating compactness): Martin v. Soucie,
109 Ill. App. 3d 731, 734-35, 441 N_E.2d 131, 133-34 (3d Dist. 1982). In addition,
unless the court completely discounts the 4.7% of the district's population
dispersed throughout the western connector. the district 1s not functionally compact
either.
43
of Hispanic concentration, see (Def. Int. Exh. 4, Map 1), and when
Latino plurality block groups are considered.*' (/d., Map 2).
This close correlation is not surprising given the racial demographics
of the city discussed earlier. Indeed, the Hastert court expressly found
that racial consid ations dictated the configuration of the two
appendages jutting out of the district’s two core areas. The court
Stated in this regard:
To ensure a sufficient Hispanic concentration within the
proposed district, both maps shoot rays out from the
northwest and southwest enclaves to capture additional
Hispanic population.
Hastert, 777 F. Supp. at 648 n.24 (emphasis added). Portions of the
western connector are also explainable only on racial grounds. For
example, the portion of the Stickney township included in the Fourth
Congressional District is 81.6% Hispanic and only 14.5% white while
the portion of the township allocated to the Third Congressional
District is 5.5% Hispanic and 93.2% white. Similarly, in Proviso
Township, 57% of the township population included in the Fourth
Congressional District is Hispanic and 36.6% is white while the portion
49 As adopted in 1991, the Fourth Congressional District has a total population
of 571,530; of this amount, Hispanics account for sixty-five (65%) of the toial
population and fifty-nine (59%) of the voting age population. Over ninety-five
percent (95%) of the district’s population lives within the two core areas of the
district located on the near northwest and near southwest sides of the city. The
remaining 4.7% of the distnct’s population lives within the narrow, C-shaped
“western” connector that runs around the northern, western and southern borders
of the Seventh Congressional District. Central Avenue in the City of Chicago
serves as the dividing line between the western connector and the two core areas.
The western connector, which contains a significant amount of vacant land, pik
land, cemeteries and industrial areas, connects the district's northern and southern
core areas and thereby serves as a land bridge to ensure the district's contiguity.
This contiguity, however, is “hypertechnical[] and . . . cynical[],” see Hays v.
State of Louisiana, 839 F. Supp. 1188, 1200 (W.D. La. 1993), since it is preserved
through the use of non-populated parks and barren industrial areas.
50 The 1990 Bureau of Census computer tapes divide census data into different
units of aggregation. The most elementary level is the census block, which lists
the population, voting age population and racial make-up of each city block. The
next level of data aggregation is the census group block, which provides socio-
economic data for larger groups composed of multiple census blocks. The district's
boundaries do not conform to but rather split at least 150 census group blocks.
For this reason, the district cannot have been drawn at the census group block
level. :
44
of the township included in the Third Congressional District is 4.9%
Hispanic and 79.3% white.
The evidence also establishes that the boundaries of the Fourth
Congressional District split a number of political subdivisions,
including: eight (8) townships -- six (6) of which have population in
the district; eighteen (18) municipalities -- sixteen (16) of which had
population in the district; twenty (20) aldermanic wards; and two-
hundred eighteen (218) precincts.*? With the exception of precincts,
other Illinois congressional districts split a comparable or greater
number of subdivisions compared to the Fourth District: the Third,
Sixth and Eleventh Districts split a similar number of townships (9, 8
and 7, respectively); the Second, Third, Sixth, Eighth, Eleventh and
Thirteenth Districts all split more municipalities; and the First and
Seventh Districts split a comparable number of aldermanic wards
(19 and 15, respectively). This data, however, is of extremely limited
usefulness because there is no meaningful standard against which it
is to be measured. The data permits the uncertain conclusion that
compared to other Illinois congressional districts, the map of the Fourth
Congressional District did not excessively split political subdivisions.
But this conclusion does not mean that respect for political subdivisions
was not subordinated to racial considerations within the context of
the Fourth Congressional District’s boundaries. The data submitted
does not inform the court one way or the other on this inquiry, and is
therefore disregarded.**
The defendant-intervenors also argue that the district’s configuration
may be explained by socio-economic factors. To that end, Dr. David
Garth Taylor testified at trial that the city’s Caucasian, Hispanic and
African-American populations have substantially different socio-
economic status when home ownership, income, labor force
51 The former measure examines the percentage of Hispanics in any given
census block (e g., 40% of the block’s population is Hispanic) while the latter
measure examines the racial composition of the entire census block. An Hispanic
plurality census block exists when the largest population group among all the
racial groups living within that block is Hispanic.
52 These numbers were based upon the wards and precincts that existed at the
time of the Hastert litigation. In 1992, the wards and precincts were realigned.
Although Mr. Cleveland did not determine the number of wards split by the Fourth
Congressional District after the realignment, he did disclose that the Fourth
Congressional District split only sixty-one (61) of the realigned 1992 precincts.
Mr. Cleveland's analysis properly focused. however, on the ward and precincts
45
participation, education and poverty levels are considered. Since the
Fourth Congressional District is sixty-five percent (65%) Hispanic,
it is not surprising that superimposing the socio-economic data onto
maps of the city’s congressional districts reveals that the electorate of
the Fourth District have more socio-economic characteristics in
common than the electorate of adjacent congressional districts. This
observation notwithstanding, the socio-economic data does not explain
the district’s configuration. First, the socio-economic data was only
available at the census group block level while the district was drawn
at the smaller census block level. The defendant-intervenors have
thus not shown that the socio-economic factors analyzed by Dr. Taylor
were available or used at the time of the district's configuration.”
Second, the Hastert court did not make any findings of fact concerning
what role, if any, socio-economic factors played in the drawing of the
district’s boundaries. Hence, at best, the socio-economic model can
only retrospectively explain the district’s configuration but cannot
demonstrate that the socio-economic data actually played a role in
the configuration of the district's boundaries. Thus, while the socio-
economic data establishes that the Hispanic community faces common
issues, it fails to demonstrate that racial considerations did not
predominate in the drawing of the district’s actual boundaries. See
also Vera v. Richards, 861 F. Supp. 1304, 1338 (S.D. Tex. 1994),
cert. granted ___ U.S. ___, 115 S. Ct. 2639 (1995) (same result);
Hays v. State of La., 839 F. Supp. 1188, 1203 (W.D. La. 1993)
(same).
Accordingly, this court concludes that racial considerations
predominated in the configuration of the Fourth Congressional District,
which was adopted but not drawn by the Hastert court.
IV. Strict Scrutiny
Having concluded that racial considerations predominated, this court
must now subject the Fourth Congressional District to strict scrutiny;
the district will only pass constitutional muster if it is narrowly tailored
that existed at the time of the Hastert proceedings, since these were the only
boundaries the map makers could have considered. In addition, it would be
improper to consider the effect of the 1992 realignment. since it would be
impossible to rsolate what effect, if any, the Fourth Congressional District's
boundaries adopted in 199] had on the map makers who redrew the wards and
precincts m 1992.
$3 The Hastert court did not make any findings on this tssue.
46
to serve a compelling state interest. Submitting a redistricting plan to
strict scrutiny does not automatically toll the bells. The Supreme
Court in Adarand Constructors, Inc. v. Pena most recently sought
“to dispel the notion that strict scrutiny is ‘strict in theory, but fatal in
fact.” — ——-U.S. __, 115 S. Ct. 2097, 2117 (1995) (citation omitted).
The defendant-intervenors contend that the Hastert court found and
articulated a compelling government interest justifying the racially
based configuration of the Fourth Congressional District; namely,
remedying a potential violation of Section 2 of the Voting Rights Act.
King raises two arguments in response: first, the Hastert Court erred
in finding that Section 2 of the Voting Rights Act required the creation
of an Hispanic majority district; and second, remedying a Section 2
violation is not a compelling government interest. Since the Supreme
Court has not yet decided the latter proposition, prudence dictates
that this court should address and resolve King’s first argument before
considering what is really the threshold argument for this strict scrutiny
analysis.
A. Whether the Hastert Court's Section 2 Finding Was Clear
Error
The passage of time since the Hastert decision was announced in
1991 has provided this court with a unique vantage point from which
to assess the validity of King’s allegations of error. More specifically,
two congressional elections have been held since 1991; in both
elections, an Hispanic candidate was elected to Congress from the
Fourth Congressional District. These electoral results minimize in
many respects the force of King’s arguments that the Hastert court
erred in finding that the three Gingles prerequisites were satisfied.
The Supreme Court in Growe v. Emison recently reiterated the reasons
for the Gingles threshold requirements:
The ‘geographically compact majority’ and ‘minority
political cohesion’ showings are needed to establish that
the minority has the potential to elect a representative of its
54 According to Cleveland. King’s expert, this data was not published by the
Census Bureau until May 15, 1992, almost six months after the Hastert court
issued tts decrsion. Whether this information was available to the Hastert litigants
is not Known
358 Vacated Louisiana. Hays, U.S. ___, U4 S. Ct. 273111994), on remand,
Hays v. State of La , 862 F Supp. 119 (W.D. La. 1994), vdeated Unued States v.
Hovs._ US. __ , 1S S. Ct. 2431 (1995), on remand Hays v. State of La.. No.
92-1241, sip op. (W.D. La Jan 5, 1996)
47
own choice in some single member district, see Gingles,
478 U.S. at 50 n.17, 106 S. Ct. at 2765 n.17. And the
‘minority political cohesion’ and ‘majority bloc voting’
showings are needed to establish that the challenged
districting thwarts a distinctive minority vote by submerging
it in a larger white voting population, see Gingles, supra,
at 51, 106 S. Ct. at 2766.
507 U.S. 25, 113 S. Ct. 1075, 1084 (1992). The Hastert court's
conclusions about the potential of the Hispanic electorate to elect a
representative of its own choice have proved prescient in light of the
1992 and 1994 congressional election results. These same electoral
successes, however, are fundamentally at odds with the purpose of
the majority bloc voting prerequisite. While non-Hispanic racial bloc
voting patterns did not thwart the election of the Hispanic’s candidate
of choice in the 1992 and 1994 congressional elections, discounting
the effect of racially polarized voting based upon these two election
results would be premature. The Hastert court found racial bloc
voting at the federal, state and local levels; the framework for assessing
the third Gingles prerequisite is thus broader than congressional
elections. As the Supreme Court has recognized, “[t}he Gingles factors
cannot be applied mechanically and without regard to the nature of
the claim.” Johnson v. DeGrandy,__ U.S. ___, 114. S. Ct. 2647,
2654 (1994) (quoting Voinovich v. Quilter, 507 U.S. 146, 113 S. Ct.
1149, 1157 (1993)). The Gingles prerequisites must nevertheless be
clearly established. To that end, the Supreme Court has admonished
that racial bloc voting and minority group political cohesion can never
be assumed but must be specifically proven in each case. Growe,
507 U.S. at __, 113 S. Ct. at 1085.
King first argues that the Hastert court erred in finding that the
Hispanic community was sufficiently numerous to constitute a majority
in a properly drawn district. The genesis of this alleged error was the
Hastert court’s failure to determine the proper eligible minority voting
population, which King defines as Hispanic citizens of voting age.
See Campos v. City of Houston, 894 F. Supp. 1062, 1065 (S.D. Tx.
1995) (data on voting age Hispanic citizens is the proper measure of
an Hispanic population’s ability to create a majority voting district);
Romero v. City of Pomona, 883 F.2d 1418, 1425 (9th Cir. 1989)
(affirming district court’s conclusion that none of the proposed districts
had a majority Hispanic population once citizenship and voting age
48
were considered); see also Vera v. Richards, 861 F. Supp. 1304, 1340
n.49 (S.D. Tx. 1994) (while noting that Section 2 vote dilution claims
“are ordinarily premised on measures of citizen voting age population,”
the court assumed for equal protection purposes that “Hispanics are
Hispanics, whether citizens or not’), cert. granted__-U.S.__, 115
S. Ct. 2639 (1995).
Other courts have agreed in principle that only eligible minority
voters should be considered in determining numerosity; however, these
courts have defined eligible minority population to mean minority
voting age population. See, e.g., McNeil v. Springfield Park Dist.,
851 F.2d 937, 944-45 (7th Cir. 1988), cert. denied 490 U.S. 1031,
109 S.Ct. 1769 (1989); Ketchum v. Byrne, 740 F.2d 1398, 1412 (7th
Cir. 1984); League of United Latin Am. Citizens yv. North East Indep.
School Dist., 903 F. Supp. 1071, 1084 (W.D. Tx. 1995) (noting that
with the exception of Campos, the district courts in the Fifth Circuit
consider voting age population in evaluating the first Gingles
prerequisite). The Seventh Circuit in McNeil explained the reason
for the voting age population limitation as follows:
Read literally, the Gingles population requirement could be
construed to require that the minority group constitute a
majority only of the total population in a proposed single-
member district. Substantial evidence and common sense,
however, dispute this construction. . . . The threshold
requirement roughly measures minority voters’ potential to
elect candidates of their choice. Because only minorities of
voting age can affect this potential, it is logical to assume
that the Court intended the majority requirement to mean a
voting age majority. Viewed another way, those ineligible
to vote have not experienced a dilution of their vote. They
are not parties to a Section 2 claim.
851 F.2d at 945. The Seventh Circuit has not yet addressed whether
citizenship should also be considered a component of voter eligibility
Pd
56 The district court must make specific findings to support each Gingles
prerequisite. See Statewide Reapportionment Advisory Comm. v. Theodore. ___
U.S. __, 113 S.Ct. 2954 (1993) (where the Court adopted the position advanced
by the Solicitor General that the three judge panel had given inadequate
consideration to and made inadequate findings concerning §2 of the Voting Rights
Act and remanded the case for further development of the record in accordance
with the points raised in the Solicitor General's amicus briet).
for the Gingles population requirement.*’ The Supreme Court has
also not decided this issue. See DeGrandy,__ U.S. at___, 114 S.
Ct. at 2655-56; Growe, 507 U.S. at__ n.4, 113 S. Ct. at 1083 n.4.
This court too declines to resolve this question since King has not
established via competent evidence that the Hispanic citizen voting
age population falls below fifty percent. Hence, regardless of which
measure this court uses -- total population, voting age population, or
citizen voting age population -- the Hastert court properly found that
the City of Chicago/Cook County community was sufficiently
numerous to constitute a majority in a properly drawn district. The
congressional election results of 1992 and 1994 serve to confirm this
conclusion.
King next contends that the Hastert court erred in finding that the
Hispanic community was politically cohesive. The premise of his
argument is that the Puerto Rican and Mexican-American
communities, which together account for the overwhelming majority
of Chicago’s Hispanic community, have different cultural, social,
political and economic concerns that serve to separate rather than
unify the Latino community. King further contends that these
differences have manifested themselves in ethnically polarized bloc
voting. Mexican-Americans predominately vote for Mexican-
American candidates while Puerto-Ricans predominately vote for
Puerto Rican candidates. The lay opinion elicited by King at trial to
demonstrate and substantiate the claimed lack of cohesion was mainly
anecdotal, often incredible, and wholly insufficient to support the
inferences and conclusions King seeks to draw. King has thus failed
to establish that the Hastert court’s finding of political cohesiveness
57 The Seventh Circuit in Ketchum flirted with the idea of considering
citizenship as a measurement of population, see 740 F.2d at 1415 (advising district
court that it could consider whether the Hispanic wards on the Southwest Side
should have their majorities calculated on the basis of “only those individuals
who are eligible, as citizens, to vote”), but it did so because “there should be an
appropriate corrective for non-citizenship.” /d. at 1415 n.19.
58 The 1990 census data reported that 194.438 of the 345,307 Hispanic residents
in the City of Chicago were United States citizens, or 56.30%. This data, however,
was not available at the time of the Hasterr decision.
The census report notwithstanding, King’s witness Cleveland, testified at trial
that only forty-five percent (45%) of the Fourth Congressional District’s Hispamic
population were citizens. There are simply too many uncertainties surrounding
the validity of the data used by King to warrant such a conclusion. First, the 1990
census data was reported at the census block group level rather than the census
50
was Clearly erroneous. He has likewise failed to establish that the
circumstances have changed in any quantifiably significant measure
since 1991.
King also argues that changed circumstances since 1991 have
lessened white racial bloc voting, such that “it is now a rare case that
an Hispanic candidate of choice is defeated as a result of racial bloc
voting.” Neither proposition advanced by King is supported by recent
city-wide election results or meaningful statistical analysis. Since
1988, only three Hispanic candidates have been elected in citywide
elections. Two Hispanic judges were elected in 1988 and 1990:
however, both candidates won with less than a majority of the vote
due to a splintering of votes among multiple white candidates. In
addition, Miriam Santos, an Hispanic, was elected as city treasurer
in 1991; however, Ms. Santos had been slated for this position by the
Chicago Democratic Party and she ran on a slate that included
incumbent mayor Richard Daley. Ms. Santos subsequently ran as an
incumbent in 1995 and was reelected. With the exception of Ms.
Santos, the Democratic Party has not slated an Hispanic candidate
for alderman, state senate, state representative, or congress in any
district with a white majority voting age population.
King’s proposition is also statistically invalid. The results of Dr.
Allan J. Lichtman’s ecological regression analysis and extreme case
performance of forty-one elections held between 1983 and 1995
establish a definite and continuing pattern of white racial-bloc voting
block level. The Fourth District's boundaries were drawn, however, at the smaller
census block level and split at least 150 census group blocks. Second, the census
reported citizenship data was based on sample data rather than on 100%
enumeration, the basis upon which total population and voting age population
are reported. Third, Cleveland admitted that the census data provided only a
snapshot view of citizenship levels in 1990, and thus did not take into account
changes in citizenship levels since 1990 due to naturalization and the amnesty
program of the Immigration and Naturalization Control Act of 1986. Indeed, Dr.
Taylor testified on behalf of the defendant-intervenors that a large number of
persons granted amnesty under that Act resided in zip code areas located within
the northern and southern areas of the Fourth District. Cleveland’s calculations
did not compensate for amnesty programs, and likewise did not account for either
an Overreporting or underreporting of citizenship data. Based on these flaws,
this court declines to tind that the Hispanic citizenship rate in the Fourth
Congresstonal District was approximately forty-tive percent (45%) either in 1990
or today
59 To the contrary, the factual record 1s replete with testimony establishing the
political and social cohesiveness of the Hispanic community State Senators Jesus
S|
against Hispanic candidates.” Dr. Lichtman’s analysis reveals that
“since 1987, Hispanics have been elected in every election district for
every type of office with a voting age majority of Hispanics, but not
in any district lacking such a majority.” Based upon these results,
Dr. Lichtman concludes that “Hispanics in the City of Chicago would
have a reasonable opportunity to elect a candidate of their choice to
Congress only in a district with a voting-age majority of Hispanics.”
While Ms. Santos’s electoral success raises hopes for a color-blind
slating and election processes in the future, the problems of racial
bloc voting and exclusion of Hispanics from the powerfully important
slating process remain. The Hastert court thus properly found that
the third Gingles factor was satisfied in 1991, and King has not
established any present day change in circumstances that would
warrant a contrary finding.
King finally argues that the Fourth Congressional District was not
sufficiently compact to create a separate Hispanic District. To
demonstrate this point, King argues that the 743-sided district is neither
visually nor mathematically compact. Once again, King has confused
the Gingles threshold requirement of geographical compactness with
the principle of compactness used to assess whether racial
gerrymandering has occurred. See supra footnote 48. The question
raised by Gingles is whether the minority population (and not the
district drawn to accommodate that population) is geographically
compact and sufficiently numerous to constitute a majority in a single
member district. This measure of geographical compactness thus
concerns whether a Section 2 violation has occurred; the second
measure of compactness (i.e., as a traditional race-neutral districting
principle) concerns whether the district drawn to remedy the Section
2 violation satisfies the requirements of the Equal Protection Clause.
To conflate the two into a single measurement confuses the liability
with the damages analysis, and represents an unwarranted extension
of Shaw. But see Reed v. Town of Babylon, ____ F. Supp. ___, 1996
WL 28966, at *26 (E.D.N.Y. 1996) (where the court applied the
60 Dr. Lichtman studied precinct-by-precinct election returns for 41 partisan
and non-partisan (i.e., City Council) elections involving Hispanic and non-Hispanic
candidates in the City of Chicago from 1983 to the present in which the losing
candidate, whether Hispanic or not, received at least fifteen percent of the vote.
In addition, Dr. Lichtman supplemented his ecological regression and extreme
case analysis by examining the squared correlation coefficients. This value is
used to assess the strength of association between two variables
52
principles established in Shaw to the first Gingles prerequisite, and
concluded that “the plaintiffs must, in order to meet their burden of
proof under the first Gingles precondition, either “proffer a districting
plan which does not subordinate racial considerations to traditional
districting principles, including compactness .. . , or justify the need
for such subordination”) (citations omitted). This court accordingly
concludes that the Hastert court’s finding of geographic compactness
was appropriate.
Since King has limited his challenges to the Hastert court’s findings
concerning the existence of the three Gingles prerequisites, this court
will not undertake to review or supplement the prior court’s findings
with respect to the totality of circumstances test.®' The Hastert court
properly held an Hispanic majority district was warranted under
Section 2 of the Voting Rights Act.
B. Whether Remedying a Section 2 Violation is a Compelling
State Interest
Section 2 of the Voting Rights Act prohibits “any practice or
procedure that, ‘interacting with social and historical conditions.’
impairs the ability of a protected class to elect its candidate of choice
on an equal basis with other voters.” Voinovich v. Quilter, 507 U.S.
146, 113 S. Ct. 1149, 1155 (1993) (quoting Gingles, 478 US. at 47.
106 S. Ct. at 2764); accord DeGrandy, __ US. at See S, CX.
at 2655. Because the purpose of Section 2 is “to help effectuate the
Fifteenth Amendment’s guarantee that no citizen’s right to vote shall
‘be denied or abridged . . . on account of race [or] color... “
Voinovich, 507 U.S. at __, 113 S. Ct. at 1154-55 (quoting U.S.
Const., Amdt. 15), state actors have frequently argued that a racially
based redistricting remedy under Section 2 serves a compelling
government interest. See, e.g., Quilter v. Voinovich, ___ F. Supp.
__. 1995 WL 783342 (N.D. Oh.), appeal dismissed ___ US. ee
116 S.Ct. 42 (1995); Shaw, 861 F. Supp. at 437; Hays v. State of La.,
839 F. Supp. 1188, 1217 (W.D. La. 1993) (Walter, J.. concurring).
The Supreme Court, however, has not yet decided whether “compliance
with the Voting Rights Act, standing alone, can provide a compelling
interest independent of any interest in remedying past discrimination
.... Miller, __ U.S. at ____, 115 S. Ct. at-2491.
61 The three Gingles factors are necessary prerequisites but are not collectively
sufficient to establish a §2 violation. DeGrandy. 2 Veh Oe OSS Ee we
2657. 2658 & n. 10 (citing Baird v. Consolidated City of indianapolis, 976 F.2d
357 (1992), cert. denied = US. __, 113 S.Ct. 2334.11993)).
53
The Supreme Court has nonetheless recognized a distinction
“between what the [Voting Rights Act] permits, and what it requires.”
Shaw, ___ U.S. at___, 113 S.Ct. at 2830. Based upon this distinction,
the Supreme Court has concluded that “compliance with federal
antidiscrimination laws cannot justify race-based districting where
the challenged district was not reasonably necessary under a
constitutional reading and application of those laws.” Miller, __
U.S. at__, 1F5 S. Ct. at 2491 (citing Shaw, ___ U.S. at__, 113.
Ct. at 2830-31). This rule is based upon the fundamental precept
that “the federal courts may not order the creation of majority-minority
districts unless necessary to remedy a violation of federal law.”
Voinovich, 507 U.S. at ___, 113 S. Ct. at 1156 (citing Growe, 507
U.S. at ___, 113 S. Ct. at 1084).
Where a violation of the Voting Rights Act has been established, a
race based remedy may be appropriate. In Shaw, the Court recognized
that a significant state interest exists in eradicating the effects of past
racial discrimination, provided the State has a “strong basis in evidence
for concluding that remedial action [is] necessary.” Shaw, __ U.S.
at __, 113 S. Ct. at 2831-32 (citations omitted); see also Miller,
___ US. at __, 115 S. Ct. at 2475 (“When a state governmental
entity seeks to justify race-based remedies to cure the effects of past
discrimination, we do not accept the government’s mere assertion that
the remedial action is required. Rather, we insist on a strong basis in
evidence of the harm being remedied.”). This compelling state interest
extends to remedying past or present violations of federal statutes
intended to eliminate discrimination in specific aspects of life. See
Quilter, ___ F. Supp. at____, 1995 WL 783342, at *9 (citing Croson,
488 U.S. at 500, 109 S. Ct. at 725; Wygant, 476 U.S. at 274-75, 106
S. Ct. at 1846-47); accord Shaw, 861 F. Supp. at 437.
In this case, the Haster: ~ourt had a strong basis both for finding a
Section 2 violation and for adopting a redistricting plan that remedied
that violation. In this regard, the Hastert court cited with approval
prior judicial determinations that found a definite pattern and practice
of electoral discrimination against the Hispanic community in the
City of Chicago and the State of Illinois.” The Hastert court further
found that this historical discrimination against the Hispanic
community was on-going, most visibly in the racial bloc voting that
effectively limited the Hispanic community to a disproportionately
small number of elected Hispanic officials at the city and state-levels
54
and more subtly in the social and economic discrimination that
adversely affected effective political participation and representation.
Under these circumstances, the creation of an Hispanic majority district
advanced the state’s compelling interest of remedying past electoral
discrimination against Hispanics. However, the redistricting plan
adopted by the Hastert court has served more than a remedial role:
hindsight reveals that it has protected the Hispanic community since
1991 from the invidious effects of racial bloc voting that, regrettably,
retains its chokehold on the Chicago electorate. Accordingly, this
court concludes that the remedy adopted by the Hastert court to redress
an established Section 2 violation served, and continues to serve,
compelling state interests.
In reaching this conclusion, the court drew an important distinction
between using a race-based remedy to redress demonstrable injuries
from specific, discriminatory electoral practices as opposed to
redressing the effects of more generalized discrimination. In Miller,
for example, the Supreme Court concluded that Georgia’s Eleventh
Congressional District was not required by the Voting Rights Act but
instead was created in response to the Department of Justice’s tactical
withholding of Section 5 preclearance approval. The DOJ’s “black-
maximization” policy that forced the Georgia legislature into creating
the majority-minority Eleventh Congressional District was not based
on any demonstrated minority vote dilution under Section 2 or
retrogression under section 5; as such, the Eleventh Congressional
District was not created in response to a particularized, proven injury.
Instead, the DOJ’s “black-maximization” policy may only be viewed
as an effort to redress the generalized effects of prior discriminatory
practices. In contrast, the Hastert court adopted the Fourth
Congressional District to remedy a proven Section 2 violation. The
injuries resulting from the dilution of the Hispanic voting power were
62 As previously observed in footnote 21 supra, aligning the Hastert parties
along partisan poliical lines resembled a partisan division highly reminiscent of
the state legislature. The parties’ bipartisan agreement that an Hispanic majority
district needed to be created under §2 was thus an important acknowledgement,
tantamount to an “official” concession, that the then existing electoral practices
and procedures, combined with historical and social conditions, caused a dilution
of Hispanic voting power in violation of §2. The parties’ bipartisan agreement as
to the nature and configuration of the Hispanic majority district was an equally
important acknowledgemenvtacit concession that remedying the discriminatory
effects of that vote dilution served a compelling interest
55
clear and present. The nature and extent of the Voting Rights Act
violation are thus important factors in the calculus of considerations
analyzed to determine whether a race-based remedy serves a
compelling state interest.
C. The Court-Ordered Redistricting Plan is Narrowly Tailored
The final prong of the strict scrutiny analysis requires this court to
determine whether the Fourth Congressional District as adopted by
the Hastert court is narrowly tailored. The focus of this inquiry is
whether the means chosen to accomplish the compelling state interest
are specifically and narrowly framed to accomplish that purpose. See
Wygant, 476 U.S. at 280, 106 S. Ct. at 1850. Alternatively stated,
the question is whether in configuring the Fourth Congressional
District, race was taken into account to a greater degree than necessary
to further a compelling state interest.” Shaw, 861 F. Supp. at 408.
The Supreme Court has not established any standards for evaluating
whether a racially based redistricting plan is narrowly tailored, except
to state that “[a] reapportionment plan would not be narrowly tailored
to the goal of avoiding retrogression if the State went beyond what
was reasonably necessary to avoid retrogression.” Shaw, ___ US. at
___, 113 S. Ct. at 2831. As a result, federal district courts have
employed differing standards to determine whether a racially based
redistricting plan is narrowly tailored. Compare Shaw, 861 F. Supp.
at 444-56; Quilter, __ F. Supp. at __, 1995 WL 783342, at *10-
12, with Vera, 861 F. Supp. at 1343 & n.44.
This court, however, does not need to take sides *n this dispute. Its
task is to determine whether a court-ordered reapportionment plan is
narrowly tailored. As such, it must defer to Hastert court’s discretion
in selecting an appropriate remedy. See United States v. Paradise,
480 U.S. 149, 183-85, 107 S. Ct. 1053, 1073-74 (1987). As the
Supreme Court explained,
In determining whether this order was ‘narrowly tailored,’
we must acknowledge the respect owed a district judge’s
judgment that specified relief is essential to cure a violation
of the Fourteenth Amendment. A district court has not
merely the power but the duty to render a decree which will
so far as possible eliminate the discriminatory effects of the
past as well as bar like discrimination in the future .. . .
Id. at 183, 107 S. Ct. at 1073 (citation omitted). The Court further
63 "Racial classifications are simply too pernicious to permit any but the most
56
acknowledged that it has not required in all situations that remedial
plans “be limited to the least restrictive means of implementation.
We have recognized that the choice of remedies to redress racial
discrimination is a ‘balancing process left, within appropriate
constitutional or statutory limits, to the sound discretion of the trial
court.’” /d. (citations omitted).
There is no evidence that the Hastert court abused its discretion.
Prior to adopting a remedial plan, the court subjected the proposed
plans to an exacting constitutional review and determined which plan
would provide a better, more complete remedy for the Section 2
violation. In addition, the remedial plan it adopted was properly
proportioned to the nature of the violation. That is, the court adopted
a single majority-minority district which was limited in size to the
minimum number of Hispanic residents generally believed necessary
to counteract the effects of racial bloc voting and ensure that the
Hispanic electorate had a reasonable opportunity to elect a candidate
of its choice. It further determined that the district’s extraordinary
configuration was required to preserve shared communities of interest
and protect the three African-American super-majority districts against
impermissible retrogression. Under these circumstances, this court
defers to the Hastert court’s balancing of these concerns and concludes
that it adopted a narrowly tailored plan. Where the drawing even of
irregular lines is required to remedy established violations of the Voting
Rights Act, the court need not flinch from its obligation to do so with
a bold and deliberate pen. Accordingly, the Fourth Congressional
District passes constitutional muster.™
WHEREFORE, for the foregoing reasons, this court concludes that
the Fourth Congressional District is constitutional.
ENTER:
\s\ Mic . Kanne
Michael S. Kanne
U.S. Circuit Judge
\s\ Charles R. Norgle, Sr.
Charles R. Norgle, Sr.
exact connection between justification and classification.” Wyganr, 476 U.S. at
280, 106 S. Ct. at 1850 (quoting Fullilove v. Klutznik, 448 U.S. 448, 537, 100 S
Ct. 2758, 2805 (1980) (Stevens, J.. dissenting))
57
U.S. District Judge
\s\ David H. Coar
David H. Coar
U.S. District Judge
Dated: March 7, 1996
ie EMAL as Dig RAS II
64 King’s Motion for a Preliminary Injuncuon ts therefore demed.
58
Outline of Opinion in
King v. State Board of Elections, et al.
Dated August 1, 1997
I. The Import of Shaw II and Bush to King [ ............ cee. 62
By COIOT RAIN TORGIG TONING iin a sass cctisss sia cphandnetonsescctaiionee 63
Bh. PURDUE SOON INN 3 sid ov ckacecinverdvaciacncinsssnntenssadcloneeemehienuaieon 65
II. The Usefulness of an Additional Evidentiary Hearing ........... 73
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAMES R. KING,
Plaintiff,
v. 95 C 827
STATE BOARD OF
ELECTIONS,
)
)
)
)
)
)
)
)
DAVID E. MURRAY, )
LAWRENCE E. JOHNSON, _)
HANNELORE HUISMAN, )
JUDITH JONES, LANGDON )
D. NEAL, THERESA M. )
PETRONE, and WANDA )
REDNOUR, )
)
Defendants, )
)
and )
) Hon. Michael S. Kanne
)
)
)
)
)
)
)
)
)
)
Hon. Charles R. Norgle, Sr.
Hon. David H. Coar
UNITED STATES OF
AMERICA, BOBBY RUSH,
TIMUEL BLACK, AL
JOHNSON, ELVIRA
CARRIZALES, NEOMI
HERNANDEZ, and THE
CHICAGO URBAN
LEAGUE,
Dated: August 1, 1997
Defendant Intervenors.
MEMORANDUM OPINION AND ORDER
This matter is before the court on remand from the Supreme Court
for further consideration in light of Shaw v. Hunt, 517 US.—. 116
S.Ct. 1894 (1996) (hereinafter “Shaw II *), and Bush v. Vera. 517
60
U.S.—, 116 S.Ct. 1941 (1996) (hereinafter “Bush *’). King v. Illinois
Bd. of Elections —U.S .—, 117 S.Ct. 429 (1996). Pursuant to 28
U.S.C. section 2284(a), the undersigned three-judge panel was
appointed to preside over this litigation.
Upon remand, plaintiff filed a motion for an additional evidentiary
hearing. This court denied the requested relief by order of April 4,
1997. Plaintiff has since moved this court to reconsider its ruling on
that issue. Briefs have been filed both on the remand and on plaintiff's
motion for an additional evidentiary hearing. Thus, this case is before
the court on both issues. Having carefully examined Shaw I/ and
Bush and the memoranda and arguments presented by the parties,
this court finds both cases supportive of its analysis and accordingly
affirms its previous decision in King v. State Bd. of Elections, No.
95-C827, 1996 WL 130439 (N.D.IIl. Mar.6, 1996) (hereinafter “King
1*’). Moreover, for the reasons stated in this memorandum opinion,
plaintiff’s motion to reconsider is denied.
It is important to note at the outset, however, that this opinion merely
supptements the subject of the remand and its purpose is to determine
what impact, if any, Shaw // and Bush have on this court’s prior
analyses. Hopefully, this opinion will provide a roadmap of King /
that illustrates that King / is in accord with Shaw I/ and Bush. To this
end, this opinion will discuss the relevant holdings of each of those
opinions.
Discussion
Since this court issued its ruling in King /, the Supreme Court has
further developed its constitutional jurisprudence with respect to voting
rights in two pivotal decisions: Shaw /I/ and Bush. These decisions of
even date have markedly changed and elucidated the landscape of
voting rights litigation and legislation. As a result, this court has
undertaken a full review of the underlying record as well as the briefs
filed upon this remand. The court has likewise carefully considered
the evidence submitted upon the plaintiff’s offer of proof in support
of his motion to reopen the evidence.{FN1] Nothing in this restudy of
|. Plaintiff proposed to present the court with the following:
(a) Names and addresses of voters who lost their ballot secrecy im specific
precincts in Chicago and Cook County, for example. two voters residing in the
400 block of Noble St. in the Ist Ward, precinct 55 in the March 19, 1996
primary were the only two of 139 Democrats in the precinct who were placed
in Congressional District 7 instead of Congressional Distnct 4: currently Plaintiff
has a total of thirty (30) such instances occurring in 1996, 1994 and 1992
General Congressional Elections and the 1992 Primary Congressional Election.
61
the record has revealed any error in the statement of facts set forth in
King I. Rather, the court remains of the view that the facts, other than
those to be inferred, are correctly set forth in its prior opinion.
Notwithstanding the accuracy of the factual record, certain
comments upon the law are in order. Indeed, the necessity for or the
propriety of reopening the record can better be judged following some
analysis of both the legal and factual issues involved in this remand.
Moreover, such analysis affirms this court’s earlier conclusion that
the Fourth Congressional District (hereinafter the “Fourth District”)
is constitutionally sound.
I. The Import of Shaw II and Bush to King I
Shaw II and Bush have a direct impact on this court’s strict scrutiny
analysis in King /. Although both Shaw II and Bush further develop
the analysis that should apply to each aspect of voting rights litigation,
(e.g., the Gingles test and the “predominance of race” test—especially,
with respect to s 2 violations), none of these developments alters this
court's determination that strict scrutiny applies. Rather, on remand,
what is implicated by the two more recent decisions is this court’s
strict scrutiny analysis, and more specifically, the issue of whether
the Fourth Congressional District is a narrowly tailored response to
prior discrimination. In King /, this court set forth a strict scrutiny
(b) Administrative confusion; for example, that occurring in Proviso precinct
132, in the western section of North Riverside, where voters on the 9000 block
of Forest View Drive have been incorrectly assigned to Congressional District
4 for the last (3) election cycles.
(c) Fractured neighborhoods, including the testimony of Dr. John Pelissaro, an
expert witness in the Barnett case, regarding the continued reliance by the City
and other governmental bodies upon maps of the community areas and
neighborhoods of the City of Chicago.
(d) Evidence of the split political subdivisions by Congressional plans in the
1980's and 1970's in contrast to the Hastert plan.
(e) While evidence was offered that Hispanic citizens do not comprise a majority
of the present 4th Congressional District, Plaintiff is now prepared to offer
further evidence of the Citizen Voting Age Population introduced to a sister
court in the Barnett proceeding. This evidence would include the testimony of
Congressman Gutierrez that he knew in 1991 that Latino voters were not a
majority of the district.
(f) Evidence that African-Americans can elect their candidate of choice in far
less racial districts than the present 7th Congressional District: this would
include data of recent victories by African-American congressmen in districts
with less than SO% VAP Atrican-Americans. Pl. Motion at 3-4.
62
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analysis which supported its conclusion that the Fourth District is
constitutional. A review of that an
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