Appendix — King v. Illinois Board of Elections

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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

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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

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1. Determining the Role of Race in the Redistricting Plan ... 28

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3. Subjecting a Court's Redistricting Order to Strict Scrutiny ..

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B. Racial Considerations Predominated in Configuring the .........

Fourth Congressional District .................:cccccssescceseserceseceeees 37

1. The Unique Process of Selecting a Redistricting Plan ...... 38

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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 .....

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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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Appendix — King v. Illinois Board of Elections · 522 U.S. 1087 | Frix