Opposition Brief — Gardner v. Ryan

NO. 91-1655 7 * ae |

In the | MAY IS yoy |

Supreme Court of the United St: 4 THE |

OCTOBER TERM, 1991

JOSEPH GARDNER, ROBERT L. LUCAS, LOVANA JONES, DAN BARREIRO,

WILLIAM SHEPHARD, JR., JOHN LEE JOHNSON, GWENDOLYN SCOTT,

LAURA BARTH, WARREN DORRIS, MARVIN FRENCH, JAYME CAIN,

PERCY CONWAY, JOSEPH BELMAN, LUIS ALBARASIN, CROTIS TEAGUE,

JR., HENRY LANDRAU, CAROLYN TONEY, FRED SMITH, CHARLIE

WILSON, JR., BOBBY E. THOMPSON, JIM MCPIKE, JEROME JOYCE,

THOMAS LYONS, ERTHARIN COUSIN, JOSEPH CONNELLY, RITA HEAD,

KENNETH HEAD, GARY RESIDORI, DENNIS BOSSINGER, CHARLES

GONCZY, SHERRY DENAULT, HARLEN HISER, BOB LATHAM, BOB

MARTIN, HOWARD DUCHENE, CARL ERICKSON, WILLIAM PONIKVAR,

GERALD BALTHAZOR, RICHARD CONNOR, MARY JANE WILKINSON,

PENNY VON BERGEN WESSELS, BILL ANDERSON, CHUCK ADELMAN,

JOSEPH SINKIAWIC, AND JOHN HOLUB,

Petitioners,

Vv.

GEORGE H. RYAN sued in his official capacity as ILLINOIS SECRETARY OF

STATE, ILLINOIS STATE BOARD OF ELECTIONS, ALBERT JOURDAN,

FRANK WATSON, ROBERT CHURCHILL, DALLAS INGEMUNSON, and

GENE HOFFMAN,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Illinois

BRIEF OF RESPONDENTS IN OPPOSITION

DAN K. WEBB

STEVEN F. MOLO *

TIMOTHY J. ROONEY

THOMAS V. SKINNER

WINSTON & STRAWN

35 West Wacker Drive

Chicago, Illinois 60601

(312) 558-5600

Attorneys for Respondents

* Counsel of Record

QUESTION PRESENTED FOR REVIEW

. Whether the Illinois Supreme Court properly approved the

Illinois state legislative redistricting plan over challenges to the plan

based solely on state law.

«fi -

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW .......-.-- i

TABLE OF AUTHORITIES ........--+-++22:> iii

BRIEF OF RESPONDENTS IN OPPOSITION ...... 1

e, . ©. ¢ 56. Se ee ee ee l

pt ee a a ee a ae 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........---+++:+:: 2

STATEMENT OF THE CASE .......---+-++:>

SUMMARY OF ARGUMENT .......---+-++:> 10

REASONS FOR DENYING THE WRIT ......-.---- 10

I. THE ILLINOIS SUPREME COURT'S DE-

CISION RESTS UPON ADEQUATE AND

INDEPENDENT STATE GROUNDS ........- 10

Il. IT IS NEITHER NECESSARY NOR AP-

PROPRIATE TO REVIEW PETITIONERS’

DUE PROCESS AT THIS TIME .........---. 15

e685): | aera we a are ee ee ae ee ee 17

i

y=

TABLE OF AUTHORITIES

Cases Page

Asarco, Inc. v. Kadish, 490 U.S. 605 (1989) ........ 12

California v. Freeman, 488 U.S. 1311 (1989) ..... 10, 11, 12

Chisom v. Roemer, __ U.S. __, 111 S.Ct. 2354

CPP) ci ssa ddedes eee Pee 15

Illinois v. Rodriguez, __ U.S. ___, 110 S.Ct. 2793

(TOP 0 ek kd ch 4 eee eee 10, 12

Illinois Legislative Redistricting Comm'n v. La-

Paille, 782 F. Supp. 1272 (N.D. fll. 1992) ...... 16

Illinois Legislative Redistricting Comm'n y. La-

Paille, 1992 WL 45737 (N.D. Ill. March 11,

WOR 5 eee ba eee eee 14

Michigan v. Long, 463 U.S. 1032 (1982) .......... 10

People ex rel. Burris v. Ryan, 147 Ill. 2d 270, 588

NEG 1063 (IGPU) on 5-6 a ee 11

People ex rel. Burris v. Ryan, 147 Ill. 2d 270, 588

PLEAS NIG3 (iG ead hc os 6 ie le ae ee 1]

Thornburg v. Gingles, 478 U.S. 30 (1985) ......... 15

Uhler v. AFL-CIO, 468 U.S. 1310 (1984) ......... 12

NO. 91-1655

In the ;

Supreme Court of the United States

OCTOBER TERM, 1991

JOSEPH GARDNER, et al.,

Petitioners,

VS.

GEORGE H. RYAN, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BRIEF OF RESPONDENTS IN OPPOSITION

Respondents George H. Ryan, in his official capacity as Ilinois

Secretary of State, Albert Jourdan, Frank Watson, Robert Churchill,

Dalias Ingemunson, and Gene Hoffman (collectively, “Respon-

dents ”’), respectfully request that this Court deny the Petition for Writ

of Certiorari, seeking review of the January 10, 1992 Order and

January 14, 1992 Opinion of the Illinois Supreme Court in this cause.

OPINIONS BELOW

The Illinois Supreme Court’s December 13, 1991 Opinion is

reported at 147 Ill. 2d 270, 588 N.E.2d 1023 (1991), while its January

14, 1992 Opinion is reported at 147 Ill. 2d, 588 N.E.2d 1033 (1992).

1 The Illinois State Board of Elections, listed as one of the Defendant-

Respondents in the caption of this proceeding, is not a party to this

brief. However, the Board of Elections has acted as a nominal party,

and did not engage in any substantive argument at any time, during the

proceedings below.

io

JURISDICTION

Respondents agree with the Jurisdictional Statement set forth

in the Petition for Writ of Certiorari.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Article III, section 3 of the Illinois Constitution of 1970 pro-

vides:

All elections shall be free and equal.

Article IV, section 3 of the Illinois Constitution of 1970 pro-

vides:

(a) Legislative Districts shall be compact, contigu-

ous and substantially equal in population. Rep-

resentative Districts shall be compact,

contiguous, and substantially equal in popula-

tion.

(b) In the year following each Federal decennial cen-

sus year, the General Assembly by law shall

redistrict the Legislative Districts and the Repre-

sentative Districts.

If no redistricting plan becomes effective by

June 30 of that year, a Legislative Redistricting Com-

mission shall be constituted not later than July 10. The

Commission shall consist of eight members, no more

than four of whom shall be members of the same

political party.

The Speaker and Minority Leader of the House

of Representatives shall each appoint to the Commis-

sion one Representative and one person who is not a

member of the General Assembly. The President and

Minority Leader of the Senate shall each appoint to the

Commission one Senator and one person who is not a

member of the General Assembly.

The members shali be certified to the Secretary

of State by the appointing authorities. A vacancy on

. e

the Commission shall be filled within five days by the

authority that made the original appointment. A

Chairman and Vice Chairman shall be chosen by a

majority of all members of the Commission.

Not later than August 10, the Commission shall

file with the Secretary of State a redistricting plan

approved by at least five members.

If the Commission fails to file an approved

redistricting plan, the Supreme Court shall submit the

names of two persons, not of the same political party,

to the Secretary of State not later than September 1.

Not later than September 5, the Secretary of

State publicly shall draw by random selection the name

of one of the two persons to serve as the ninth member

of the Commission.

Not later than October 5, the Commission shall

file with the Secretary of State a redistricting plan

approved by at least five members.

An approved redistricting plan filed with the

Secretary of State shall be presumed valid, shall have

the force and effect of law and shall be published

promptly by the Secretary of State.

The Supreme Court shall have original and ex-

clusive jurisdiction over actions conceming redistrict-

ing the House and Senate, which shall be initiated in

the name of the People of the State by the Attomey

General.

7

STATEMENT OF THE CASE2

Nature of the Case

Petitioners seek to overtum the decision of the Supreme Court

of Illinois approving a plan of redistricting for the Illinois General

Assembly. The approved plan of redistricting was the result of

numerous hearings and debate in the General Assembly; additional

hearings, debate, and public comments before the Illinois Legislative

Redistricting Commission (“the Commission”), a special bi-partisan

redistricting body convened pursuant to the Illinois Constitution; and

extensive briefing and argument before the Supreme Court of Illinois.

The procedures followed by the Illinois Supreme Court and the

Commission were based upon established Illinois Supreme Court

Rules or determinations by the Commission after negotiation between

the parties and hearings on procedures.

The redistricting was required by article IV of the IMlinois

Constitution based upon the 1990 Federal Decennial Census. The

Illinois Supreme Court found that the plan ultimately met the state

constitutional requirements for compactness, contiguity, and substan-

tial equality of population. The court also found specifically that the

plan did not dilute the votes of minorities in violation of the free and

equal clause of the Illinois Constitution.

Petitioners admit they carefully crafted their pleadings in the

Illinois Supreme Court to avoid federal jurisdiction; however, the

parties and the court looked to federal, as well as Illinois, case law in

arguing and deciding the issues. While the Illinois Supreme Court

noted that the plan met federal requirements, it specifically addressed

in detail the state issues which Petitioners argued so vigorously was

the exclusive basis for the relief they sought in the Illinois Supreme

Court. Immediately upon receiving an adverse decision from the

Illinois Supreme Court, Petitioners ran to federal court — where they

had been contesting jurisdiction — and asserted Voting Rights Act

claims which ultimately were litigated adverse to them as well.

2 Pursuant to Supreme Court Rule 24.2, the Respondents hereby submit

this statement of the case to correct inaccuracies and omissions in the

Statement of the Case set forth in the Petition for Writ of Certiorari.

~~ e

Petitioners now ask this Court to review the Ilinois Supreme

Court's determinations of Illinois law. Further, they challenge the

[llinois Supreme Court's procedures, which they urged and followed

without objection, as violations of due process.

Procedural Background

The Illinois Constitution of 1970 provides a method by which

the Illinois legislative districts for the election of members of the

Illinois General Assembly are to be reapportioned. Article IV, section

3 of the Illinois Constitution of 1970 requires that no later than June

30 in the year following each federal decennial census, the [linois

General Assembly by law shall redistrict the districts from which

members of the Illinois General Assembly are elected. If the General

Assembly fails to do so, then the Illinois Constitution provides that a

Legislative Redistricting Commission shall be constituted no later

than July 10 of that year.

The Commission consists of eight (8) members, of whom two

(2) each are appointed by the President of the Senate, the Minority

Leader of the Senate, the Speaker of the House of Representatives

and the Minority Leader of the House of Representatives. The

Commission must file with the Illinois Secretary of State no later than

August 10 a redistricting plan approved by at least five (5) members.

If the Commission fails to file an approved plan by that date,

the Illinois Supreme Court must submit the names of two persons not

of the same political party to the Secretary of State no later than

September 1. The Secretary of State then publicly must draw by

random selection one of the two names submitted to serve as the ninth

member of the Commission. Not later than October 5, the Commis-

sion must file with the Secretary of State a redistricting plan approved

by at least five members.

The Illinois General Assembly failed to enact a valid redistrict-

ing plan by June 30, 1991. Thus, pursuant to article IV, section 3 of

the Illinois Constitution, the first eight members of the Commission

were appointed. Those members included Petitioners Jerome Joyce,

Jim McPike, Tom Lyons, and Ertharin Cousin, appointed by the

Democratic leadership in the Illinois General Assembly, and Respon-

dents Frank Watson, Robert Churchill, Dallas Ingemunson, and Gene

a>.

Hoffman, appointed by the Republican leadership in the Llinois

General Assembly. The eight-member Commission failed to adopt a

redistricting plan before the August 10, 1991 deadline.

In accordance with article IV, section 3 of the Illinois Consti-

tution, the Illinois Supreme Court submitted the names of two per-

sons, Al Jourdan, a Republican, and Daniel Ward, a Democrat, to the

Illinois Secretary of State. On September 5, 1991, the Illinois Secre-

tary of State puolicly drew by random selection the name of Al

Jourdan to serve as the ninth member of the Commission. Al Jourdan

subsequently was elected to serve as Chairman of the Commission.

On October 4, 1991, the Commission, by a majority vote, adopted and

filed with the Ilinois Secretary of State a new legislative and repre-

sentative redistricting plan pursuant to article IV, section 3 of the

Illinois Constitution.

On October 4, 1991, after the Commission had approved the

redistricting plan, the Commission and five of its members filed suit

in the United States District Court for the Northern District of Illinois,

Illinois Legislative Redistricting Commission, et al. v. LaPaille, et

al., No. 91 C 6318 (“the Federal Action”), seeking a declaratory

judgment that the Commission’s redistricting plan complied with ali

federal and state laws. The complaint noted that there had been a

history of litigation surrounding Illinois legislative redistricting as

well as threats of litigation surrounding the Commission’s plan, and

the federal declaratory judgment action was a means of resolving the

issues swiftly. Petitioners did not seek to intervene in the Federal

Action in October 1991; instead, those Petitioners who were named

as defendants in the declaratory judgment action sought to dismiss

the federal suit. Also, they, along with other parties, sought and

obtained leave of the Illinois Supreme Court to file an original

action before that court to challenge on state law grounds alone the

Commission’s redistricting plan (“the State Court Action”). See

Petition for Writ of Certiorari (“Petition”) at 16 (“no party chal-

lenging the redistricting plan in the Illinois Supreme Court had

predicated a challenge on federal law’’). In a January 29, 1992 brief

filed in the Federal Action, the Petitioners explained their modus

operandi as follows:

-

[Petitioners] applied in these redistricting cases the

same proceedings and procedures employed in the

1971 round of redistricting, pursuant to which the

Illinois Supreme Court was presented with and de-

cided issues of state constitutional law, while the fed-

eral court retained jurisdiction over and ultimately

decided issues of federal law arising out of the redis-

tricting plan.

Counter-Plaintiffs’ Response to Counter-Defendants’ Motion for

Summary Judgment as to Count I of Counterclaim filed January 29,

1992 (“January 29 Response”) at 3, Respondents Appendix (‘‘Resp.

App.’’) A at A-3, 4." The Federal Action continued to pend while the

Petitioners and Respondents conducted the State Court Action before

the Illinois Supreme Court.

On December 13, 1991, after extensive briefing and argument

by both Petitioners and Respondents, the Illinois Supreme Court

issued its December 13 Opinion, a copy of which is contained in the

Petitioners’ Appendix. That Opinion raised several questions based

on state law conceming the Commission Plan and remanded the

redistricting process to the Commission for further hearings for

consideration of those questions. The questions concemed whether

certain districts violated the Illinois Constitution’s requirement of

compactness and whether certain districts improperly diluted the

votes of racial minorities in violation of the Illinois Constitution’s

requirement that all elections be free and equal. 147 Ill. 2d at __, 588

N.E.2d at 1030.

In accordance with the December 13 Opinion, the Petitioners

and Respondents submitted amended redistricting plans to the Com-

mission and those plans were filed simultaneously with the Dlinois

Supreme Court. The parties then filed written objections to the plans

3 This strategy may have been based on the fact that the Petitioners,

representing Democratic interests against the Republican

Respondents, hoped to take advantage of the 4-3 Democratic majority

on the Illinois Supreme Court. If this was the Petitioners’ strategy, it

failed, as a majority of the Illinois Supreme Court ultimately approved

the Commission’s amended plan.

.%-

which also were filed simultaneously with the Illinois Supreme Court.

The Commission then held three days of evidentiary hearings, com-

plete with expert testimony subjeci to cross-examination. The Com-

mission then issued a 29 page opinion adopting the Respondents’

amended redistricting plan. The plan adopted by the Commission was

objectively superior to the other plans in that it achieved near perfect

equality of population among districts, provided the greatest number

of minority super-majority districts of any plan proposed, and scored

best on several mathematical tests of compactness.

The parties submitted extensive briefs to the Illinois Supreme

Court opposing or supporting the Commission decision. The entire

record of the Commission’s proceedings was also submitted to the

Court for consideration. On January 10, 1992, the Dlinois Supreme

Court issued its order approving the Commission’s adoption of the

amended plan. The Court then followed with its January 14, 1992

Opinion explaining its January 10 Order. In discussing the four

criteria by which the Court judged the competing plans, the January

14 Opinion listed three criteria clearly grounded in state law and a

fourth as:

whether the map has provided adequate representation

to minorities and other special interests to satisfy vari-

ous State and United States constitutional nghts as

well as Federal statutes, i.e., racial, ethnic and gender.

147 Ill. 2d at ___, 588 N.E.2d at 1035.

Having lost in the state court proceedings, on January 19, 1992

the Petitioners sought and obtained leave to file counterclaims in the

Federal Action against the Commission and Respondents. The coun-

terclaims which Petitioners filed alleged violations of the Federal

Voting Rights Act, the Fourteenth and Fifteenth Amendments to the

United States Constitution, and included the claim that the Illinois

Supreme Court’s ruling denied the Petitioners’ due process rights

under the Fourteenth Amendment of the United States Constitution.

On January 21, 1992, the Respondents filed a motion to dismiss

or in the altemative for summary judgment against the counterclaims

on the grounds, inter alia, that the Illinois Supreme Court's January

14 Opinion was res judicata on the federal law issues raised in the

accueil

.

counterclaims because of the reference in that opinion that the Com-

mission’s amended plan complied with federal law. In response to

the Respondents’ motion, the Petitioners argued strenuously to the

federal court that the Illinois Supreme Court’s January 10 Order and

January 14 Opinion did not decide any federal law issues at all, and

that principles of res judicata and collateral estoppel did not apply to

the federal claims raised in their federal court counterclaim.

The federal court denied the Respondents’ motion to dismiss

or in the alternative for summary judgment as it pertained to the

Federal Voting Rights Act claims, leaving open the issue of res

judicata, but granted the motion to dismiss Petitioners’ due process

claim based on the Illinois Supreme Court’s procedure because Peti-

tioners had failed to state a claim for which relief could be granted.

Illinois Legislative Redistricting Comm'n v. LaPaille, 782 F. Supp.

1272, 1276 (N.D. Il. 1992).

The federal court also granted the Petitioners’ request for the

appointment of a three-judge panel to hear the federal law claims of

the Petitioners. Commencing on February 4, 1992, the three-judge

federal panel heard testimony and argument in a five-day trial. The

parties presented expert testimony and numerous exhibits, and the

panel accepted the entire record before the Commission and the

Illinois Supreme Court during the state court proceedings.

On March 11, 1992, the three-judge federal panel issued its

decision on the merits. //linois Legislative Redistricting Comm'n v.

LaPaille, 1992 WL 45737 (N.D. fll. March 11, 1992). The Court

rejected the application of res judicata to the Petitioners’ counter-

claims. It considered the substantive merits of the counterclaims, and,

after examining the evidence and credibility of the witnesses, found

the counterclaims were without merit. The federal court therefore

rejected the counterclaims challenging the redistricting plan and

found that the plan met the requirements of the Voting Rights Act and

the Fourteenth Amendment.

The Federal Action is still pending before the three-judge panel

while the court considers certain post-trial motions, including a mo-

tion for a new trial brought by the Petitioners. The Petition for Wnt

of Certiorari now before this Court does not raise any issues concem-

ing the proceedings before the federal three-judge panel.

5 =

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari should be denied because

the Illinois Supreme Court’s decision upholding the Legislative Re-

districting Plan was, as the Petitioners have argued in the parallel

Federal Action, based on the adequate and independent state law

grounds of the Illinois constitutional provisions goveming redistrict-

ing. The due process claims raised in the Petition are being fully

litigated before the federal court and the appropriate form of review

would be on an appeal of the Federal Action.

REASONS FOR DENYING THE WRIT

I. THE ILLINOIS SUPREME COURT’S DECISION

RESTS UPON ADEQUATE AND INDEPENDENT

STATE GROUNDS

It is well established that a state court decision based on

adequate and independent state law grounds does not warrant review

by this Court. //linois v. Rodriguez __ U.S. __, 110 S.Ct. 2793, 2798

(1990); California v. Freeman, 488 U.S. 1311, 1313-14 (1989);

Michigan v. Long, 463 U.S. 1032, 1041 (1982). Supreme Court Rules

10.1(b) and (c) memorialize this principle by providing that a state

court’s decision must involve a question of federal law in order to

justify review on a writ of certiorari. When the adequate and inde-

pendent state court grounds are clear in the state court’s opinion,

review can be denied summarily; only if the decision “fairly appears

to rest primarily on federal law” does this Court require that the state

court’s opinion must contain a “plain statement” that shows the state

court relied on state law and precedent in reaching its decision.

Illinois v. Rodriguez, __ U.S. ___, 110 S.Ct. at 2798. Reference to

federal law in the state court opinion which is not “interwoven” with

the state law merely creates an independent alternative holding that

does not justify review by this Court. California v. Freeman, 488

U.S. at 1314; Michigan v. Long, 463 U.S. at 1040.

The Illinois Supreme Court's reliance on state law in approving

the Legislative Redistricting Plan is evident from the proceedings and

decisions of the Dlinois Supreme Court. As the Petitioners admit in

cate

their Statement of the Case set forth in the Petition, “no party chal-

lenging the redistricting plan in the Illinois Supreme Court had

predicated a challenge on federal law.” Petition at 16. In the Decem-

ber 13, 1991 Opinion remanding the case back to the Commission for

further proceedings, the Illinois Supreme Court analyzed the plan

under the state law requirements of compactness, contiguity, and

substantial equality of population in article IV, section 3, and the “free

and equal elections” clause in article III, section 3, of the Illinois

Constitution. People ex rel. Burris v. Ryan, 147 Ill. 2d 270, 588

N.E.2d 1023, 1028-29 (1991). The questions which the Illinois

Supreme Court raised for review by the Commission conceming

certain enumerated districts were phrased in terms of compliance with

the state constitutional requirements of compactness, contiguity, and

“free and equal” elections. /d. at __, 588 N.E.2d at 1030. In that

December 13 Opinion, the Illinois Supreme Court also made clear

that it looked to federal law only for guidance in interpreting the

Illinois Constitution:

Although this court will look for guidance and inspi-

ration from the federal court in interpreting our State

constitution, we make the final determination.

Id. at __, 588 N.E.2d at 1027. Finally, the Illinois Supreme Court's

January 14, 1992 Opinion approving the Commission's amended

redistricting plan specifically found that the plan satisfied the [linois

Constitution’s requirements conceming substantial equality of popu-

lation, adequate representation of minorities and other special inter-

ests, compactness, and political fairness. People ex rel. Burris v.

Ryan, 147 Ill. 2d 270, 588 N.E.2d 1033, 1035-36 (1992). Given the

abundance of references to state law principles in the December 13

and January 14 Opinions, it is clear that the Illinois Supreme Court's

decision to approve the Commission’s amended redistricting plan

rested on independent state law grounds.

The reference to federal law in the January 14 Opinion which

the Petitioners previously viewed as deciding no federal issues at all

merely constitutes an independent alternative holding for the Illinois

Supreme Court's decision upholding the Commission approved plan

which does not require review by this Court. California v. Freeman,

Naseaeeerereneren enenenniaesaieneialeeenn

«

488 U.S. at 1314. Nothing in the opinions suggest that the Illinois

Supreme Court treated the state law issues of compactness, contiguity,

substantial equality of population, or “free and equal elections” as

being “interwoven” with federal law. Unlike cases in which this

Court found no adequate and independent state ground for decision

because the state court never mentioned the state statutes apart from

federal law, see Asarco, Inc. v. Kadish, 490 U.S. 605, 625 (1989), or

the state statutes were not even identified in the extensive discussion

of federal law, see Illinois v. Rodriguez, ___ U.S. ___, 110 S.Ct. at

2798, the opinions of the Illinois Supreme Court in this matter contain

numerous references to state constitutional principles without discus-

sion of federal law. For example, in the December 13 Opinion the

Iinois Supreme Court remanded the State Court Action to the

Commission for further proceedings to consider the redistricting plan

in light of questions based solely on state constitutional principles of

compactness and the free and equal clause. This is consistent with

Petitioners’ admitted strategy to limit their state court challenge to

State law grounds while leaving federal law issues for the still-pending

Federal Action. The January 14 Opinion’s finding that the Commis-

sion’s amended redistricting plan also satisfied federal law provides

an additional yet independent reason for approving the adoption of

the plan. Remand to the Illinois Supreme Court because of some

inadequacy of the decision on federal law would not alter the Illinois

Supreme Court's final decision on the state law claims which Peti-

tioners chose to present in the state court proceedings. See California

v. Freeman, 488 U.S. at 1314; Uhler v. AFL-CIO, 468 U.S. 1310,

1311 (1984).

Further proof of the state law basis for the Illinois Supreme

Court’s decision can be found in the actions and admissions of the

Petitioners themselves. As they have admitted in their Petition,

Petitioners raised only state law issues in their complaints before the

Illinois Supreme Court. This was consistent with their professed

Strategy to split federal and state law issues between the federal and

state courts. Petitioners chose to leave the federal law issues for the

parallel Federal Action still pending in the Northem District of Illinois

and filed their substantive federal law claims in federal court after the

Illinois Supreme Court entered its January 10 Order and January 14

Opinion. When the Commission and Respondents argued in the

<i

Federal Action that the January 14 Opinion was res judicata on

Petitioners’ federal claims, the Petitioners specifically argued that the

January 10 Order and January 14 Opinion did not resolve issues of

federal law. In briefs filed with the three-judge panel in federal court,

the Petitioners contended:

Clearly, it was understood by all parties to the [state

court] case, as of December 16, 1991, that federal law

questions were not presented to or (at the very least,

were not decided by) the Illinois Supreme Court.

* * *

To the extent that the Supreme Court approved the

adoption of the Commission’s plan, that decision did

not purport to adjudicate federal issues. In asserting

the basis for its acceptance of the plan, the [Illinois]

Supreme Court expressly disclaimed any evaluation of

any of the ‘totality of the circumstances’ beyond ‘the

statistics provided.’ Not one federal authority was

cited in the [Illinois] Supreme Court’s January 14,

1992 Judgment, no federal claim asserted by any

intervenor was identified (nor could there have been

one given the absence of any federal claims in the

pleadings) and not one federal issue was involved.

January 29 Response at 11, 16, Resp. App. A at A-12, A-16 (emphasis

supplied).

Likewise, in their Petition for Rehearing filed with the Illinois

Supreme Court, the Petitioners specifically argued that “‘[i]t is appar-

ent to the [Petitioners] that this Court never intended to decide or

undertake to decide federal claims” because, according to Petitioners,

the standard applied was inappropriate for claims under the Voting

Rights Act and Fifteenth Amendment and because a constitutional

majority of four Justices did not join in the federal law reference in

the January 14 Opinion of the Court. Petition for Rehearing at 16, 19,

Resp. App. B at B-16, 19. The three-judge federal panel ultimately

agreed, finding that the January 14 Opinion was not res judicata on

the Petitioners’ federal claims:

,

- ha.

The only constitutional or statutory standard specified in

the opinion was that for reviewing the Commission’s

work set forth in the Illinois Constitution . . . under the

circumstances, this Court cannot find that the Ilinois

Supreme Court’s ruling precludes the federal claims at

issue. It is unclear whether that court considered or made

any findings with regard to the Voting Rights Act, the

Fourteenth or Fifteenth Amendments. The [Commis-

sion] and Reed have failed to meet their burden to show

specifically what that ruling determined. Res judicata,

therefore, cannot be applied.

Illinois Legislative Redistricting Comm'n v. LaPaille, 1992 WL

45737 at p.*3-4 (N.D. Ill. March 11, 1992).

Thus, the Petitioners have successfully argued in the pending

Federal Action that the Illinois Supreme Court did not decide issues

of federal law in the January 10 Order and January 14 Opinion.

Because of their success, Petitioners obtained a full trial on their

federal claims in the Federal Action.

Now, however, the Petitioners seek to invoke the discretionary

review power of this Court by reversing their field at the eleventh-

hour. Petitioners’ tactics in this regard are all the more transparent in

light of Petitioners’ success in the Federal Action in convincing the

federal court that no federal law issues were decided so that a full trial

on the merits could be held in federal court. If the Petitioners really

believed that federal law issues were decided in the January 14

Opinion, they should have admitted res judicata and appealed the

Illinois Supreme Court’s decision alone. Having denied that very

premise and obtained a trial elsewhere, the Petitioners should be

required to accept the consequences of their strategic decision and

seek this Court’s review of the Federal Action when it becomes

appropriate.

It should be noted that denying review of the Illinois Supreme

Court decision will not prejudice the Petitioners because they have a

forum for their federal law claims. Petitioners have asserted claims

under the Voting Rights Act and the United States Constitution in the

pending Federal Action. They have participated in a five-day trial in

federal court, presenting evidence and argument (including evidence

_ 2

and argument raised in the state court proceedings) in support of their

federal claims. They have raised the same arguments based on

Chisom v. Roemer, __ U.S. ___, 111 S.Ct. 2354 (1991) and Thorn-

burg v. Gingles, 478 U.S. 30 (1985) which they assert in their Petition

to this Court. The disposition of these federal claims by the federal

court is not the subject of the pending Petition for Writ of Certioran.

Petitioners can seek review of the federal law claims by a proper

appeal of the Federal Action.

Indeed, given the Petitioners assertion of federal law claims

and arguments in the Federal Action, it is unclear what relief this Court

can award Petitioners that they have not already received — save a

repetition of the already completed federal trial before the [linois

Supreme Court as opposed to a three-judge federal panel. The enor-

mous waste of judicial resources which Petitioners’ request would

occasion in both this Court’s review of the appeal and the Illinois

Supreme Court’s repetition of the federal trial are strong reasons to

deny the Petition.

In sum, the reference to federal law in the Illinois Supreme

Court’s January 14 Opinion is merely an independent alternative

holding that does not justify discretionary review by this Court. The

Petitioners consciously chose to limit their claims in state court to

those based on state law. They should not be allowed to obtain review

of a state court proceeding decided on state law grounds merely on

the basis of a reference in the Illinois Supreme Court’s opinion to

federal law, a reference which the Petitioners consistently have main-

tained was not a decision of federal law issues. The adequate and

independent state law grounds for the decision of the [linois Supreme

Court justifies denial of the Petition.

II. ITIS NEITHER NECESSARY NOR APPROPRIATE TO

REVIEW PETITIONERS’ DUE PROCESS ARGUMENT

AT THIS TIME

The second alleged basis for review asserted in the Petition is

that the Illinois Supreme Court’s decision to approve the Commission

Plan violated Petitioners’ due process rights because the Petitioners

“were afforded no meaningful judicial review of the Commission's

product.” Petition at 25. This argument fails to justify a writ of

5" =

certiorari to review the Illinois Supreme Court’s decision because it

raises a Matter inappropriate for review at this time.

The Petitioners did not raise any federal due process challenge

to the process by which the Illinois Supreme Court reviewed the

Commission’s work during the pendency of the proceedings. In fact,

the Petitioners played a substantial role in negotiating and defining

the procedures by which the Commission considered the various

redistricting proposals. Petitioners waited until after the Mlinois

Supreme Court had ruled against them to suddenly discover that the

process was flawed. The failure to challenge the process earlier

suggests a waiver of this argument.

Further, the Petitioners have had a full opportunity to present

their legal arguments for a violation of their due process rights in the

Federal Action. In fact, the Petitioners asserted the very same due

process challenge alleged in the Petition in the Federal Action as

Count III of their federal counterclaim. The federal court has found

that this very same due process allegation fails to state a claim upon

which relief can be granted. /J//linois Legislative Redistricting

Comm'n v. LaPaille, 782 F. Supp. 1272, 1276 (N.D. Tl. 1992). That

federal court process is on-going, however, and those proceedings

have not yet been completed; the decision is therefore not yet ripe for

this Court’s review. When appropriate, Petitioners can appeal this

ruling in the Federal Action.

Finally, the Petitioners have in fact been afforded “judicial

review of the Commission’s product.” Consistent with their express

intention to have the state court decide issues of state law and the

federal court decide issues of federal law, the Petitioners were able to

obtain a full evidentiary trial and judicial review of the redistricting

plan which the Petitioners wanted reviewed. In that trial, the three-

judge federal panel had an opportunity to assess the credibility of the

witnesses and weigh the evidence — precisely the type of judicial

review to which the Petitioners claim to be entitled. In short, review-

ing the Illinois Supreme Court’s decision on due process grounds

would at best result in a remand to conduct precisely the types of

hearing which the Petitioners already have received in federal court.

The Petitioners may not like the result which they achieved in their

federal trial, but that result may be appealed when appropriate. The

5»

unmistakable conclusion, however, is that the combined federal and

state court proceedings, which the Petitioners strategically viewed as

linked together in this case, have given Petitioners extraordinary due

process.

Thus, it is inappropriate for this Court to exercise its discretion-

ary review power over Petitioners’ due process claim at this time.

It is a far better use of discretionary judicial resources to review

the due process aspects of the redistricting review process if and when

the fully litigated due process claim comes before this Court on an

appeal of the Federal Action. The Court should therefore deny the

Petition’s request for review of the due process aspects of the Illinois

redistricting process.

CONCLUSION

For these reasons, the Petition for a Writ of Certiorari should

be denied.

Respectfully submitted,

Dan K. Webb

Steven F. Molo*

Timothy J. Rooney

Thomas V. Skinner

WINSTON & STRAWN

35 West Wacker Drive

Chicago, Illinois 60601

(312) 558-5600

Counsel for Respondents

* Counsel of Record

APPENDICES

Appendix A

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF

ILLINOIS EASTERN DIVISION

ILLINOIS LEGISLATIVE

REDISTRICTING COMMISSION, AL

JOURDAN, FRANK WATSON,

ROBERT CHURCHILL, GENE

HOFFMAN, and DALLAS

INGEMUNSON,

Plaintiffs,

VS.

GARY J. LAPAILLE, etc.

et al.,

Defendants.

a

No. 91 C 6318

JUDGE NORGLE

MAG. WEISBERG

JOSEPH GARDNER, LOVANA

JONES, DAN BARREIRO,

WILLIAM SHEPHARD, JR..,

JOHN LEE JOHNSON,

GWENDOLYN SCOTT, LAURA

BARTH, WARREN DORRIS,

MARVIN FRENCH, JAYME

CAIN, PERCY CONWAY,

JOSEPH BELMAN, LUIS

ALBARASIN, CROTIS TEAGUE,

JR., HENRY LANDRAU,

CAROLYN TONEY, FRED SMITH,

CHARLIE WILSON, JR., and

BOBBY E. THOMPSON, on their

Nee Nee Ne Nee eee ee le el ee GS”

A-2

own behalf and on behalf of all )

others similarly situated, )

Counter-Plaintiffs,

VS.

)

)

)

ILLINOIS LEGISLATIVE )

REDISTRICTING COMMISSION, )

AL JOURDAN, FRANK WATSON, )

ROBERT CHURCHILL, GENE )

HOFFMAN, DALLAS )

INGEMUNSON, GEORGE H. RYAN, |)

sued in his office capacity as )

ILLINOIS SECRETARY OF )

STATE, and ILLINOIS BOARD OF )

ELECTIONS, )

)

)

Counter-Defendants.

COUNTER-PLAINTIFFS* RESPONSE TO

COUNTER-DEFENDANTS’* MOTION FOR SUMMARY

JUDGMENT AS TO COUNT I OF COUNTERCLAIM

A-3

COUNTER-PLAINTIFFS’ RESPONSE TO

COUNTER-DEFENDANTS’ MOTION FOR SUMMARY

JUDGMENT AS TO COUNT I OF COUNTERCLAIM .

This response is submitted by the Gardner counter-plaintiffs

in opposition to plaintiffs/counter-defendants’ motion for summary

judgment as to Count I of the counterclaim, relating to the issue of res

judicata, claim preclusion and issue preclusion. This Court, by

Memorandum Opinion and Order entered January 24, 1992, dis-

missed Counts II and III of the counterclaim, and it denied counter-

defendants’ motion to dismiss Count I of the counterclaim pursuant

to Rule 12(b)(6), leaving unresolved the Court’s determination of

whether the January 10, 1992 Order and January 14, 1992 Judgment

of the Illinois Supreme Court operate, pursuant to principles of res

judicata, as a bar to the counterclaim.

In fact, as set forth more fully below, the Illinois Supreme

Court’s decision in this case does not operate as a bar under res

judicata or collateral estoppel: (1) there has been no “final” adjudi-

cation of the parties’ rights in the Illinois Supreme Court, due to the

fact that there remains available to the Gardner parties in that case an

opportunity to file a Petition for Rehearing before the Supreme Court,

as well as to ask the [linois Supreme Court to withdraw its mandate

both for purposes of considering the Petition for Rehearing and for

purposes of filing a Petition for Writ of Certiorari with the United

States Supreme Court; (2) the proceedings of the Illinois Legislative

Redistricting Commission were legislative, not judicial in nature, as

evidenced most clearly by Article IV, Section 3 of the Illinois Con-

stitution, Supreme Court Rule 382(b) and the fact that the members

of the Commission who exercised their legislative duties were repre-

sented by counsel for the parties advocating the specific redistricting

proposals; (3) there was no presentation of “federal” claims in the

pleadings presented to the Dlinois Supreme Court by the Gardner

parties or other parties in the Supreme Court, and the Supreme Court

expressly declined, in its December 13 Opinion, to address or predi-

cate its first decision and its remand order to the Commission on any

issues of federal law; and (4) the Gardner parties applied in these

redistricting cases the same proceedings and procedures employed in

A-4

the 1971 round of redistricting, pursuant to which the Illinois Supreme

Court was presented with and decided issues of state constitutional

law, while the federal court retained jurisdiction over and ultimately

decided issues of federal !aw arising out of the redistricting plan.

(People ex rel. Scott v. Grivetti, 50 11.2d 156, 277 N.E.2d 881, Grivetti

v. [llinois State Electoral Board, et al., 335 F.Supp. 779 (N.D. Ml.

1971). Further, as to the merits of counter-plaintiffs’ claims, the

record before the Commission and the Illinois Supreme Court does

not completely address or resolve issues of fact relating to the ability

of the Redistricting Commission, the Supreme Court and this Court

to fashion a remedy consistent with the Voting Rights Act of 1965,

as amended, with respect, specifically, to “influence” districts in

Waukegan, Avrora, the northwest side of the City of Chicago and

elsewhere, nor does it resolve issues relating to whether, under the

“totality of the circumstances,” the creation of super-majority Afri-

can-American districts in the metropolitan Chicago area dilute Afri-

can-American voting strength.

STATEMENT OF PROCEDURAL HISTORY

This action was filed in this Court October 4, 1991, by the five

Republican members of the Commission and by the Commission

itself, purporting to seek a declaration of the validity of the state-wide

redistricting plan under federal and state law. At the time the action

was filed, the state-wide redistricting plan approved by the Commis-

sion carried, pursuant to the Illinois Constitution (Article IV, Section

3) a presumption of validity.

In response, defendants argued, among other things, that the

Eleventh Amendment to the United States Constitution foreclosed

this Court from addressing, even under theories of pendent jurisdic-

tion, the plaintiffs’ request for adjudication of the validity of the

redistricting plan under state law. The Supreme Court case upon

which various defendants relied was Pennhurst State School and

Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900 (1984) in which

the United States Supreme Court held that equitable relief could not

be obtained in federal court against state officials on the basis solely

of state law claims and, on principles of pendent jurisdiction, could

not be provided even if there existed viable claims for equitable relief

on the basis of federal law.

A-5

While this case was pending, the Attomey General and the

Gardner intervenors, as well as other parties, filed actions in the

Illinois Supreme Court pursuant to Article I'V, Section 3 of the Illinois

Constitution and Supreme Court Rule 382, challenging the validity

of the state-wide redistricting plan approved by the Commission on

the basis of the Illinois Constitution. When that action was improvi-

dently removed to the District Court, the Gardner parties unequivo-

cally stated that the action filed in the Dlinois Supreme Court was

expressly limited to grounds of state law, not federal law.

While the case was pending in the Illinois Supreme Coun,

specifically in connection with the reply brief filed by the Gardner

parties November 22, 1991, the Gardner intervenors reiterated their

contention that their claims arose under the state constitution, inde-

pendent of federal statutory and constitutional grounds:

Defendants ask this Court to hold that the claims

of Illinois citizens challenging the effect of a redistrict-

ing plan, which impairs the rights of Illinois citizens to

enjoy the full measure of their voting power when they

exercise the right of suffrage to choose their Senators

and Representatives in the Illinois General Assembly,

have no place in an Illinois Court. Questions of funda-

mental fairness, full political empowerment, and nights

of equal protection and suffrage, according to defen-

dants, are questions properly reserved for the federal

courts, and the only concem for this Court is whether

the districts are “compact, contiguous and substantially

equal in population.” (Def. Br., p. 28). indeed, given

the clear language of Article IV, Section 3, defendants

suggest that it would be “improper for this Court, in

interpreting such clear language, to engraft additional

requirements onto the Constitution.” (/d.). Such con-

cepts of vote dilution, equal voting power and the like,

protections afforded in the Constitution of 1970, are

apparently of no moment before this Court, which de-

fendants seek to reduce to the sterile clerical role of

counting populations and measuring square miles.

_

A-6

Plaintiffs absolutely reject such a notion, and they

call upon this court to do the same. It is the right, the

role and indeed, the duty of this Court to protect the

nights of Illinois citizens from all invidious discrimina-

tion, and this Court should not hesitate to so interpret

and apply the provisions of the Illinois Constitution.

As set forth more fully below, the defendants’

interpretation of federal law is itself incorrect, but fed-

eral law, in any event, is only instructive, not binding

upon this Court. The federal statutory and constitutional

guarantees are minimum requirements, prohibiting

States from affording their citizens less rights than man-

dated by federal law. States, however, remain free to

recognize additional nights of their citizens, particularly

when those rights are those defined by the People them-

selves, such as those in the 1970 Constitution, which,

although drafted in a Convention, was considered and

passed by the State electorate.

Further, in reviewing defendants’ arguments, this

Court is invited to hold defendants’ predecessors—the

Republican members of the Illinois House Reapportion-

ment Committee—to the standards which they willingly

and unequivocally recognized just five months ago.

Finally, despite the denials throughout this section of

their brief, defendants ultimately and inexorably must

retum to the issue of maximizing minority political

strength. Although defendants rely on Hastert v. State

Board of Elections, 1991 WL 28-185, p. 9, of the United

States District Court for the Northern District of Illinois,

decided November 6, 1991, involving the Illinois Con-

gressional Districts and now suggests the absence of any

constitutional or statutory night to an apportionment

structure designed to maximize political strength of

minonties, the question ultimately reduces itself, as

defendants themselves appear to acknowledge, to that

very principle. Indeed, defendants’ final words on the

question of minonity vote dilution offer a paraphrasing

ee

A-7

of defendants’ retained expert, who concludes that the

Jourdan II or Commission Plan “maximizes minority

voting strength.” (Def. Br., p. 52).

One can only wonder why, given the recognition

of the House Reapportionment Committee in June 1991,

and the final concession that the issue is maximization

of minority voting strength, defendants would devote

more than a quarter of their brief to an effort to deny

what is plainly before them. No amount of rhetoric, no

amount of federal law citation, (however inaccurate or

inapposite), and no amount of denial of the ability of a

significant and cohesive minority to influence the results

of an election and compel political allegiance to minor-

ity causes on the part of elected officials can shield this

Plan from the light of this Court’s required secunty.

The Gardner plaintiffs do not advocate a strained

or novel view of Ilinois law. All citizens in this State

are constitutionally guaranteed the night of suffrage. All

citizens are entitled to equal protection, and all citizens

are entitled to free and equal elections. Finally, all

citizens are entitled to be served by Legislative and

Representative Districts which are compact, contiguous

and of substantially equal population.

* * *

The Gardner plaintiffs agree that they have as-

serted no claims for relief under the federal Voting

Rights Act, 42 U.S.C. § 1973. They agree further that

the cases construing the Voting Rights Act might pro-

vide assistance to this Court when it construes the Illi-

nois Constitution.

November 22, 1991 Bnef of Gardner intervenors before the Illinois

Supreme Court, pp. 20-22; 30.

The Illinois Supreme Court, in its December 13, 1991 Opinion,

agreed. The Court expressly denied to apply this Court's recent

decision in Hastert v. State Board of Elections, (N.D. Ill. Nov. 6,

|

A-8

1991), Nos. 91I—C—4028, 91—C—4154, 91—C—4656, 91—-C—

5474 cons.), Choosing, instead, consistent with Illinois precedent, to

construe its constitutional provisions independently: “Although this

Court will look for guidance and inspiration from the Federal court

in interpreting our State constitution, we make the final determination.

[Citing Rollins v. Ellwood, 141 Tl.2d 244, 275 (1990)}. In line with

that holding, we do not adopt the recent opinion of the Federal court

in Hastert v. State Board of Elections (N.D. Ill. Nov. 6, 1991) Nos.

91—C—4028, 91—C—4154, 91—C—4643, 91—C—4656, 91—

C—5472 cons.).” (Burris v. Ryan, December 13, 1991, Slip Op., pp.

7; emphasis added).

Further the Illinois Supreme Court, in its December 13, 1991

Opinion, expressly withdrew the constitutionally stated presumption

of validity which attaches to redistricting plans approved by a majority

of the Commission, holding that the process by which the Jourdan II

Plan had been adopted was “so completely at variance with the

constitutional mandate” as to preclude the Court from “recognizing

as valid a product formulated” by virtue of that process. (Burris y.

Ryan, December 13, 1991 Slip Op., pp. 10-11 (quoting People ex rel.

Scott v. Grivetti (SO Il.2d 156, 165 (1971)).

Addressing the Illinois Constitutional requirements, the Su-

preme Court declined to reach the issue “regarding the constitutional

validity of the plan as a whole, [but] we do find certain districts do

not appear to meet the constitutionally mandated requirements.”

(Burris Slip Op., pp. 11-12). In remanding the cause to the Commis-

sion for development of an appropriate map meeting “the constitu-

tionally mandated requirements,” the Court directed the Commission

to address three questions at the Court-ordered hearing, as they related

to specifically enumerated Senate and House Districts:

‘1. | Compactness:

Do the following districts violate article IV of the

Illinois Constitution for 1970, which provides that all

districts be drawn in a compact and contiguous manner?

Is there a justifiable, neutral reason for any of the below

configurations?

A-9

Senatorial District House Districts

7 14

10 19

11 21

18

24 47

34

37 73

38 75

53

54

2. Compactness and Racial Dilution:

Do the following districts violate article IV, sec-

tion 3, of the Illinois Constitution of 1970, which pro-

vides that all districts be drawn in a compact and

contiguous manner? Do the following districts violate

article Ill, section 3, of the Illinois Constitution of 1970,

which provides that all elections be free and equal? Is

there a justifiable, neutral reason for any of the below

configurations?

Senatorial District

A- 10

3. Racial Dilution:

Do the following districts violate article III, sec-

tion 3 of the Illinois Constitution, which provides that

all elections be free and equal?

Senatorial District House District

21 5 and 6

29 8

33 10

39 25 and 26

42 27 and 28

43 32

50 59

61 and 62.

The Commission is not precluded or limited to consid-

ering other Senatorial or House districts in addition to

those listed above.

Burris, Slip Op., pp. 12-13; emphasis added. Finally, the Court

retained jurisdiction of the case pending completion of the Commis-

sion’s process and the development of a state-wide redistricting plan:

This Court retains jurisdiction over all motions

still pending until this court has reached a final decision

in this matter. This court shall retain jurisdiction of this

cause until the Commission submits an approved map

in line with this opinion and guidelines offered in Has-

tert. See Schrage, 88 Il.2d at 105.

Id., p. 1S. The reference by the Court to Hastert referred to the

procedures employed by this Court in that case, not to the substance

of the Court's Opinion, which the Supreme Court expressly declined

to follow.

Significantly, in response to the Supreme Court’s Opinion, the

Commission came to this Court and asserted that the Supreme Court's

Opinion gave rise to issues of federal law: “Serious federal rights are

at issue and plaintiffs as well as all Illinois voters stand to be irrepa-

A- 11

rably harmed by their deprivation if this court does not act and

adjudicate this matter.” (December 16, 1991 Emergency Motion for

Leave to file Third Amended Complaint and for Immediate Hearing

on Third Amended Complaint, pp. 4, 5({ 7).)

In the proposed Third Amended Complaint, the Commission

alleged (¢45(g)) that “the Supreme Court order fails to provide any

substantive legal analysis of the issues of law submitted to tk 2 Illinois

Supreme Court regarding the applicability of federal Voting Rights

Act requirements or the compactness standard under Illinois law, or

regarding whether Illinois law differs at all from federal law on the

issue of racial vote dilution or minority fracturing.” In paragraph

51(e), the Commission and plaintiff David Reed alleged “‘the failure

to approve the Commission Plan because of the elevation of the state

compactness standard over the federal Voting Rights Act has violated

plaintiff Reed’s nght to vote under the fourteenth and fifteenth

amendments and the Voting Rights Act.”

In its Memorandum in support of its Motion for Temporary

Restraining Order and Preliminary Injunction on the Third Amended

Complaint, also filed December 16, 1991, the Commission stated as

follows:

The Supreme Court Order elevated the state con-

stitutional standard of compactness above federal statu-

iory and constitutional standards. In effect, the Supreme

Court Order forces the Commission to apply an incon-

sistent state law rule in lieu of applicable federal stand-

ards in violation of the Supermacy Clause of the United

States Constitution.

Federal law in the area of voting rights is substan-

tial. It includes decisions involving the fourteenth and

fifteenth amendments to the United States Constitution.

Federal law has become even more predominant be-

cause of the strict requirements imposed by the 1982

amendment to the federal Voting Rights Act. Because

of the Supermacy Clause of the United States Constitu-

tion, these federal requirements all have a direct and

A- 12

controlling impact on how the compactness requirement

of the Illinois Constitution is applied.

.. . Here, the Illinois Supreme Court failed to

consider the defendants’ arguments that the compact-

ness requirement of the Illinois Constitution is subser-

vient to the federal Voting Rights Act. The Illinois

Supreme Court completely ignored any discussion of

federal law principles, holding instead that “(t]he initial

concer is drawing a district map which is compact.”

Order at 8. This requirement that compactness controls

over federal voting law violates the Supermacy Clause.

Clearly, it was understood by all parties to the case, as of December

16, 1991, that federal law questions were not presented to or (at the

very least, were not decided by) the Illinois Supreme Court.

On January 4, January 5 and January 6, 1992, competing plans

were presented to the Commission. Advocates of the remedial plans

were the Republican members of the Commission, represented by the

same counsel who represent the Commission and its Republican

members in this Court, and the Gardner intervenors, whose counsel

also represented the Democratic Party members of the Commission.

Indeed, the plan advocated to the Commission by the Republicans and

subsequently adopted by the Commission bore the name of the

Chairman of the Commission, Al Jourdan.

It would, obviously, have been entirely inappropriate, had it

been a judicial proceeding, for the attomeys for the adjudicators to

serve as the advocates before the adjudicative body, and it is clear that

the proceedings of the Commission were legislative in nature. Al-

though evidence was presented and cross-examination was available,

the role of the Commission was to develop a state-wide redistricting

plan, and to approve such a plan by January 6, 1992. The Supreme

Court’s January 14, 1992 Judgment concedes as much, when it states,

at page 4 thereof, that “the adoption by this court of one of the plans

submitted by either party would actually be a reflection on legislative

policy choices.”

Nevertheless, the Supreme Court formally approved and de-

clared valid the Jourdan III Plan, stating, as tollows: “However, the

oe |

A- 13

Commission map meets all four requirements. In finding thus, we did

not judge the credibility of each expert, rather relied on the statistics

provided.” (Burris v. Ryan, January 14, 1992 Slip Op., p. 4). The

Court decided that the mandate of the Court issue “forthwith.” (/d.).

The Gardner intervenors, as they have advised this Court,

intend to petition the Supreme Court for rehearing and, in connection

therewith, intend to present a motion to the Supreme Court pursuant

to Supreme Court Rules 367 and 368 to recall the Court’s mandate.

The impact of Supreme Court Rules 367 and 368 will be discussed in

more detail below.

STATEMENT OF FACTS RELATING

TO MINORITY INFLUENCE

DISTRICTS AND “CONTROL” DISTRICTS

Attached to this response as Exhibit A is the affidavit of

Timothy D. Mapes, an employee of the staff of the Speaker of the

Illinois House of Representatives, and one of the primary participants

in the development of redistricting plans on behalf of the Democratic

members of the Commission. In his affidavit, Mr. Mapes presents

this Court, at the very minimum, with minority “influence” districts

in Waukegan, Aurora and on the northwest side of the City of Chicago

which, even under Professor Engstrom’s analysis, constitute “influ-

ence” districts protectable under the Voting Rights Act. In addition,

Mr. Mapes’ affidavit establishes for this Court that those identified

“influence” districts, and we submit there are more, can be accommo-

dated within the Jourdan III Plan, as amended, with minimal impact

upon additional districts. The Court, in providing a remedy, can order

the redrawing of district lines in those areas, individually or collec-

tively, without requiring revisitation of the entire state-wide redistrict

plan.

In addition, the 16 super-majority African-American districts

- in which African-Americans will, in our view, be given a fair

opportunity to control elections and elect candidates of the commu-

nities’ choice notwithstanding substantial white opposition bloc vot-

ing - can be drawn and can be synthesized into the remainder of the

Jourdan III Plan, as amended.

At trial, the Gardner counter-plaintiffs will also present the

expert testimony of Mr. Kimball W. Brace, who has testified before

,

A- 14

this Court previously both with respect to the City of Chicago ward

redistricting and the Illinois Congressional redistricting case of 1991.

Mr. Brace’s testimony is expected to support the testimony of Mr.

Mapes as it relates to these districts, and it is expected to support the

testimony of Professor Oden before the Commission.

For the convenience of this Court, the affidavit of Professor

Oden before the Illinois Legislative Redistricting Commission is also

enclosed as Exhibit B. That affidavit establishes that there is, at

minimum, a genuine issue of material fact with respect to whether the

Jourdan III Plan properly protects the statutory rights of African-

Americans in the City of Chicago or whether, as we contend, the plan

illegally dilutes African-American voting rights.

In that regard, the Court’s Opinion of today’s date recognizes

that, under Armour v. Ohio, 775 F.Supp. 1044 (N.D. Ohio 1991)

(three-judge panel), and the Supreme Court’s decisions in Thornburg

v. Gingles, 478 U.S. 30, 47 (1986), and Chisom v. Roemer,__ U.S.

nus a ie , 111 S.Ct. 2354 (1991), a dilution claim

can be asserted with respect to both “influence” and “control” dis-

tricts. The federal cases construing the Voting Rights Act are dis-

cussed more fully below.

RES JUDICATA/ISSUE PRECLUSION

In Washington v. Groen Division/Dover Corporation, 634

F.Supp. 819 (N.D. Ill. 1986), this Court identified the “traditional

prerequisites” to the application of res judicata:

The traditional prerequisites to the application of res

judicata are “(1) a final wdgment on the merits in an

earlier action; (2) an identity of the cause of action in

both the earlier and the later suit; and (3) an identity of

parties or their privies in the two suits.” Lee v. City of

Peoria, 685 F.2d 196, 199 (C.A. 7 1982).

685 F.Supp. at 821. In this case, there has been no “final” decision

of the Illinois Supreme Court, the underlying proceedings before the

Commission were legislative, not judicial in nature, and there is not

an “identity” of causes of action in the state court and this Court.

A-15

The Absence Of A Final Decision

As to the first point, the Supreme Court issued its order January

10, 1992 and its Judgment explaining that order on January 14, 1992.

Under the Supreme Court Rules, specifically Rules 367 and 368, the

Gardner intervenors enjoy the right to petition the Supreme Court for

rehearing at least until January 31, 1992: “A petition for rehearing

may be filed within 21 days after the filing of the opinion, unless on

motion the time is shortened or enlarged by the court or a judge

thereof.” (Illinois Supreme Court Rule 367(a), [ll.Rev.Stat., ch.

110A, ¥ 367(a).)

Supreme Court Rule 368 specifically permits the recall of a

mandate by order of the Court. That ability of the Supreme Court to

recall its mandate extends not only to the mandate issued by the

Appellate Court but, as well, “in cases in which review by the

Supreme Court or the United States may be sought, the court whose

decision is sought to be reviewed or a judge thereof, and in any event

the Supreme Court of Illinois or a judge thereof, may stay or recall

the mandate, as may be appropriate.” (Illinois Supreme Court Rule

368(c), Il.Rev.Stat., ch. 110A, 9 368(c).) Finally, Supreme Court

Rule 382, which govems state constitutional challenges to the state-

wide redistricting plans provides that, upon acceptance of the case by

the Supreme Court, “the case shall proceed in the manner ordered by

the court.” Supreme Court Rule 382(b), Ill.Rev.Stat., ch. 110A, {

382(b). Nothing in Supreme Court Rule 382 forecloses the Court

from recalling its mandate to accommodate petitions for rehearing, if

necessary.

As such, there being an opportunity left for the Gardner

intervenors to petition the Supreme Court to address the issues raised

in the Opinion which were not fully litigated, the decision of the

Supreme Court is far from final, and as counsel for the Gardner

counter-plaintiffs advised this Court in open court January 24, 1992,

it is the intention of the Gardner intervenors to move the Supreme

Court to recall its mandate and to rehear the case.

Legislative, Not Judicial Action

Further, the Commission is itself a legislative body, and the

actions of the Commission were legislative, not judicial. The Su-

preme Court recognized as much and went so far as to state that any

A- 16

endorsement of either plan by the Supreme Court would involve

legislative determinations. Clearly, the role of the Commission was

not adjudicative but was, instead, legislative in nature, and principles

of res judicata apply only to prior adjudications.

To the extent that the Supreme Court approved the adoption of

the Commission’s plan, that decision did not purport to adjudicate

federal issues. In asserting the basis for its acceptance of the plan, the

Supreme Court expressly disclaimed any evaluation of any of the

“totality of the circumstances” beyond “the statistics provided.”” Not

one federal authority was cited in the Supreme Court’s January 14,

1992 Judgment, no federal claim asserted by any intervenor was

identified (nor could there have been one given the absence of any

federal claims in the pleadings) and not one federal issue was ex-

pressly resolved.

Moreover, the pendency of this action in this Court during the

time the Supreme Court exercised its jurisdiction completely compels

rejection of the res judicata doctrine as it relates to federal issues.

When this Court denied the motions to dismiss the third amended

complaint at least inasmuch as it related to plaintiff Reed, the Court

implicitly recognized that, until the Supreme Court and the Commis-

sion approved a state-wide redistricting plan, there was no electoral

scheme, device or plan in place in the State of Illinois which gave rise

to a federal issue. It would only be upon enactment of a state-wide

redistricting plan that federal claims would even ripen, since, until the

State-wide plan were adopted, there was no electoral scheme, device

or plan which would impact on the March 17, 1992 primary election

or subsequent elections.

That very point was asserted by the Democratic members of

the Commission early on in these proceedings, in connection with

their motions to dismiss the original complaint and the plaintiffs’

efforts to broaden the case prior to the Supreme Court’s decision to

include additional parties.

Identity of Actions

Finally, the causes of action asserted are not identical. First, the

cause of action originally asserted in the Supreme Court related to the

October 4, 1991 redistricting plan approved by the Commission. In

that action, the Gardner intervenors successfully challenged the con-

A-17

stitutionality of the process employed by the Commission, which

challenges resulted in a holding by the Supreme Court that the

Commission map — the Jourdan II Plan — no longer enjoyed a

constitutional presumption of validity. Thereafter, the Commission

was charged with development of a remedial redistricting plan con-

sistent with the Illinois Constitution. That charge did not involve an

adjudication of federal Voting Rights Act or federal constitutional

claims.

The Supreme Court expressly recognized as much when, in its

December 13, 1991 Opinion, it declined to follow this Court's Hastert

Opinion, reserving to itself right and duty to interpret the Illinois

Constitution, and directed the Commission, on remand, to address

specific questions relating to the Illinois Constitution without reference

to federal statutory or constitutional provisions. The issues before the

Commission related to the “compactness” and the “free and equal”

provisions of the Tlinois Constitution of 1970 and the presentation of

proof and argument relating to those constitutional provisions.

The absence of an identity of causes of action is best exempli-

fied by these plaintiffs’ persistent efforts to maintain this case before

this Court. These plaintiffs went so far as to seek to enjoin the

Supreme Court proceedings in order to preserve what were asserted

to be federal statutory and constitutional nights.

In any event, there is no question but that the entire litigation

strategy of these plaintiffs before this Court was to preserve a forum

to which these plaintiffs could come upon completion of the state

court proceedings to assert federal challenges to the final state deci-

sion. Otherwise, if the Supreme Court of Illinois were truly charged

with adjudication of federal issues and was believed by the parties to

be adjudicating federal issues such that the state court proceedings

would have res judicata effects regardless of which party prevailed,

there would have been no need to maintain this lawsuit in this forum,

nor would there have been a basis to seek an injunction of further

proceedings before the Supreme Court.

As to the identity of the causes of action, this Court has

previously held, citing precedent from the Seventh Circuit, that the

test is whether the two causes of action arise out of the same “core of

operative facts,” meaning that “if the same facts are essential to the

A- 18

maintenance of both proceedings or the same evidence is needed to

sustain both, then there is identity between the allegedly different

causes of action asserted, and res judicata bars the latter action.”

Lipsey v. Chicago Cook County Criminal Justice Commission, 638

F.Supp. 837, 838 (N.D. Il. 1986) (quoting Lee v. City of Peoria, 685

F.2d 196, 198 (7th Cir. 1982)).

Here, the same evidence is not necessary to sustain causes of

action under the Illinois Constitution and under the federal Voting

Rights Act. First, defendants maintained that the “free and equal”

clause, which the Supreme Court had previously recognized to be

“parallel” to the Fourteenth Amendment, required proof of a discrimi-

natory intent, while the Voting Rights Act requires no proof of intent.

Second, the “free and equal” clause does not depend upon the

Voting Acts Right criteria announced in Thornburg v. Gingles and

subsequent cases, and the Supreme Court expressly refused to adopt

the substantive holding of this Court in Hastert. Thus, the Illinois

Supreme Court, in its December 13, 1991 Opinion, expressly identi-

fied a divergence in the proof required under federal and state law as

well as the criteria to be employed under those doctrines.

Further, review of the Supreme Court’s Judgment makes clear

that the Supreme Court did not even purport to apply the standards of

review under federal law. It stated that its decision was predicated

solely upon the “statistics” presented to the Commission, and there

was not even a pretense of an examination of the “totality of the

circumstances” as mandated by Congress and the Supreme Court.

That express disclaimer reveals that the Illinois Supreme Court did

not view the evidence required under the Voting Rights Act as

necessary to adjudicate the sufficiency of the redistricting plan, and

the federal claims do not arise out of the same “operative facts” or

same “evidence” as the state law claims.

Collateral Estoppel

Collateral estoppel relates to the ability of litigants to contest

in a subsequent proceeding the findings of fact actually adjudicated

and resolved in a prior proceeding. In this vase, there has been no

adjudication of the facts contested. First, as set forth above, the

Commission proceedings were not adjudicative but the legislative

proceedings, albeit with the benefit of testimony, cross-examination

‘ A-19

and submissions of the proponents of the redistricting plans as to the

meaning and input of testimony presented.

That having been said, however, it does not mean that the

Commission’s work was an adjudicative function. It is not at all

unusual for legislative committees to hold fact-finding hearings, to

issue minority reports in opposition to the recommendations of the

majority members of the Committee, to issue Committee reports on

the basis of testimony presented to the legislative committees or to

examine witnesses before the Committees through questions either

from the Committee members or from counsel to the Committee.

That is, essentially, what happened on January 4, January 5 and

January 6, 1992. The Commission met as a deliberative, legislative

body and it approved a redistricting plan purportedly in accordance with

the requirements of Article IV, Section 3 of the Ilinois Constitution.

There being no litigation or evidentiary hearing, there were no

findings of “fact” giving rise to collateral estoppel. Indeed, (1) the

Supreme Court expressly disclaimed any intent or ability to hold an

evidentiary hearing, (2) the Commission ran to this Court on Decem-

ber 16, 1991, to complain of that fact, (3) the Gardner Intervenors

filed an emergency motion with the Supreme Court on December 17,

1991 to amend its order to hold an evidentiary hearing and (4) that

emergency motion was denied by the Illinois Supreme Court Decem-

ber 24, 1991. Clearly, the Supreme Court’s December 13, 1991,

Opinion contemplated no contested evidentiary hearings before the

Court or in a judicial setting.

Supreme Court Rule 382 represents a model of judicial flexi-

bility. The Rule reserves to the Supreme Court the highest degree of

flexibility imaginable to accommodate the State constitutional chal-

lenges to redistricting plans. One of the few instances in which the

Rule speaks specifically to the requirements of how proceedings shall

go forward relates to the Rule’s statement of procedure for resolving

contested issues of fact:

The Court may dispose of the case on the papers filed

or may order further briefing or may order oral argument

on the motion for leave to file or on the complaint or on

the pleadings or on the pleadings supplemented by per-

a ~ ___r” = encom

A - 20

tinent documentary evidence, or may call for additional

evidence and for briefs and argument after such evi-

dence has been received. /f the Court determines that

disputed issues of material fact must be resolved on the

basis of oral testimony, it may appoint a judge or retired

judge of any Illinois Court to take testimony and report

his findings of fact and recommendations to the Supreme

Court.

Ill. Rev. Stat., ch. 110A, ¢ 382(b). The Supreme Court’s Rule

mandates that a contested evidentiary hearing, in a judicial setting, be

conducted before an Illinois Judge, or obviously, the court as a whole.

Nothing in the Rules speaks to the ability of the Court to convene the

Commission as an adjudicative body to take testimony, receive evi-

dence and adjudicate facts.

Under the circumstances, there is absolutely no basis in the law

to suggest that issues of fact were adjudicated either by the Commis-

sion or by the Illinois Supreme Court under its Rules and procedures.

Instead, all that happened is that the Dlinois Supreme Court deter-

mined that “statistical” evidence supported the plan approved by the

Commission, expressly disclaiming any reliance or evaluation of the

credibility of the expert witnesses who testified. Collateral estoppel

does not apply.

The Rooker-Feldman Doctrine

Counter-Defendants contend that the counterclaims should be

dismissed because this Court lacks subject matter jurisdiction to

entertain those claims under the Rooker-Feldman doctrine. The

Rooker-Feldman doctrine stands for the proposition that “a United

States District Court has no authority to review final judgments of a

State court in judicial proceedings.” District Court of Columbia Court

of Appeals et al. v. Feldman, et al., 460 U.S. 462, 482 (1983). Counter-

Defendants base their entire argument upon their characterization of the

counterclaims as “an infirm attempt to appeal the Illinois Supreme

Court’s decision to this Court.” (Counter-Defendant’s Memo., p. 16)

Reliance on the Rooker-Feldman doctrine is misplaced.

As set forth above, Counter-Plaintiffs’ counterclaim does not

raise the same issues nor claims where were litigated in the state court

A- 21

proceedings. “Quite simply, there has been no state court judgment

on the issues presented in this case. Thus, adjudication of this

controversy cannot in any way be viewed an ‘appellate review’ of the

correctness of some state court judgment.” Lemon v. Tucker, 664

F.Supp. 1143, 1148 (N.D. Ill. 1987). Counter-Plaintiffs do not seek

an appeal here of the Illinois Supreme Court’s ruling, but they do note

the irony of Counter-Defendant’s assertion of the claim in view of

their December 16, 1991 emergency pleadings before this Court.

Issue preclusion or “Collateral estoppel will prevent the reliti-

gation of an issue when four requirements are met: (1) the party

against whom collateral estoppel is asserted must have been fully

represented in the prior litigation; (2) the issue sough to be precluded

must be identical to an issue involved in the prior litigation; (3) the

issue must have been actually litigated and decided on the merits in

the prior litigation; and (4) the resolution of that issue must have been

necessary to the court’s judgment. [Citations omitted].” Gray v.

Lacke, 885 F.2d 399 (7th Cir. 1989).

Counter-Defendants as the proponents of collateral estoppel

here have the burden of establishing the elements described above.

Folsom v. Continental Ill. Nat. Bank & Trust Co., 633 F.Supp. 178,

181 (N.D. Ill. 1986). In light of the foregoing, Counter-Defendants

have failed to meet their burden.

Even if the Counter-Defendants “established an issue was

raised, argued and necessarily decided in a prior proceeding, ‘[r]ede-

termination of the issues [may be] warranted if there is reason to doubt

the quality, extensiveness or faimess of procedures followed in the

prior litigation.’ [Citation omitted].” Folsom, 633 F.Supp. at 181. If

this Court concludes that Counter-Defendants have met their burden,

it is without question that a redetermination is warranted in light of

the “process” that led the Supreme Court to enter a judgment approv-

ing the Jourdan III-A Plan and the judgment itself. The process

employed here was fatally flawed in that the Commission failed to

conduct hearings when appropriate and failed to provide meaningful

public input and debate on the merits of state-wide redistricting plans.

Moreover, the effect of the Commission’s delay of litigation filed

pursuant to Article IV, Section 3 of the Illinois Constitution to test the

legitimacy of the redistricting plan was to deny Counter-Plaintiffs due

A-22

process of law, in that Counter-Plaintiffs were denied a fair and

appropriate opportunity for a judicial hearing on the merits of the

State-wide redistricting plan ultimately approved by the Commission

and the Supreme Court or a meaningful ruling by the Supreme Court

as to the merits of that redistricting plan.

Under Illinois law, res judicata does not apply. Illinois courts

in deciding whether two suits involve the same cause of action look

either to the proof required in each suit or the factual setting in which

each suit arises. LaSalle National Bank of Chicago v. County of

DuPage, 856 F.2d 925, 856 F.2d 931 (7th Cir. 1988). In terms of the

second element, LaSalle National Bank suggests that in determining

whether res judicata applies, the analysis should “focus... on a com-

parison of the factual undergirding of the two cases at issue.” LaSalle

National Bank, 856 F.2d at 933.

The LaSalle National Bank court explained that the term

“closely related matters” is extracted from two corollaries of funda-

mental importance to the res judicata doctrine. In quoting from

Hagee v. City of Evanston, 729 F.2d 510, 514 (7th Cir. 1984), the

LaSalle National Bank court stated:

First is the rule that a party may not main-

tain two suits based on the same set of facts

by simply expediency of limiting the theo-

ries of recovery advanced in the first.

The second rules is that a party may not

maintain two suits based on the same facts

simply be altering the claim for relief from

one suit to the next.

It is important to note that both these corollaries rely on

the premise that the two suits in question were based on

the same set of facts.

LaSalle National Bank, 856 F.2d at 933.

VOTING RIGHTS ACT

The Gardner counter-plaintiffs disagree with the plaintiffs’

construction of the Voting Rights Act. For example, Thornburg v.

A - 23

Gingles, 478 U.S. 30, 47 (1986), did not foreclose the possibility of

Voting Rights Act protection for “influence” districts. The Court's

statement as to the essence of a ‘“§ 2 claim” is specifically limited to

a § 2 claim “in which the plaintiffs alleged and attempted to prove

that their ability to elect representatives of their choice was impaired

by the selection of a multimember electoral structure. We have no

occasion to consider whether § 2 permits, and if it does, what stand-

. ards should pertain to, a claim brought by a minority group, that is not

sufficiently large and compact to constitute a majority in a single-

member district, alleging that the use of a multimember district

impairs its ability to influence elections.” (478 U.S. at 46-47, n. 12;

emphasis in original). The Supreme Court’s statement as to the

essence of a “‘§ 2 claim” must be read with the limitations set forth in

the footnote which preceded the text.

As read, § 2 clearly is not limited to those instances in which a

minority group can establish that it has the ability “to elect’’ the

candidate of the community’s choice. Indeed, the Supreme Court

specifically declined the opportunity to define the limits of a cause of

action brought under § 2 relating to “influence” district. Even in

Hastert, supra, the court specifically agreed that Gingles “has not

foreclosed an extension of Voting Rights Act protection to groups

unable to constitute a majority in a properly drawn single-member

district.” (Hastert, Slip Op., pp. 40-41).

The misconstruction of Gingles underlies the Commission’s

entire Voting Rights analysis. Stated simply, the Commission asserts

that, unless a majority group could elect a candidate of its choice by

virtue of its majority status within an elective district, the courts need

never concern themselves with vote dilution claims relating to those

minorities, regardless of the political realities attendant to that elective

district or the political power which those minorities could otherwise

wield given the circumstances relating to that district.

The Congress of the United States explicitly directed the courts

to review the “totality of circumstances” when determining whether

racial or language minority members have “less opportunity than

other members of the electorate to participate in the political process

and to elect representatives of their choice.” 42 U.S.C. § 1973(b).

Gingles, moreover, embraced and adopted the “totality of circum-

A - 24

stances” analysis. 478 U.S. at 43. There is no reconciliation of the

“totality of circumstances” mandate with the Commission’s putative

“bright line” test, which the Supreme Court specifically refrained

from applying to “influence” districts. The mandate from Congress

to the federal courts under federal law was to consider the “totality of

circumstances” in determining whether minority voting influence had

been diminished so as to deny minorities a fair and equal opportunity

to participate in the electoral process and elect candidates, but the

Commission has urged the courts to view the congressional mandate

more narrowly, ignore the “totality of circumstances” and focus,

instead, upon one numerical measurement.

The Supreme Court, subsequent to Gingles, made clear that §

2(b) of the Voting Rights Act was intended to apply to influence cases.

In Chisom v. Roemer, __ U.S. __, __ ss L.Ed.2d ss, 111 S.C.

2354 (1991), the Court construed § 2 of the Voting Rights Act in

connection with judicial elections. Specifically, the Court construed

the language in § 2(b) relating to minorities having “less opportunity

than other members of the electorate to participate in the electoral

process and to elect representatives of their choice.” (42 U.S.C. §

1973(b) (emphasis added)). The Court, in its majority opinion, held

that a plaintiff must prove both a denial of the opportunity to partici-

pate and an abridgment of the opportunity to elect representatives of

the minorities’ choice in order to prevail under § 2. 111 S.Ct. at 2365.

In dissent, Justice Scalia criticized that construction, suggest- |

ing that “if both conditions must be violated before there is any § 2 |

violation, then minorities who form such a small part of the electorate |

in a particular jurisdiction that they could on no conceivable basis

elect representatives of their choice’ would be entirely without section |

2 protection.” 111 S.Ct. at 2371 (Scalia, J., dissenting). The majority |

addressed Justice Scalia’s dissent, and, in so doing, put to rest any

suggestion that an “influence” case is not cognizable under § 2:

The dissent argues that our literal reading of the

word “and” leads to the conclusion that a small minority

has no protection against infringements of its right “to

participate in the political process” because they will

always lack the numbers necessary “to elect its candi-

date,”’ Post at 2371. This argument, however, rests on

ee

A - 25

the erroneous assumption that a small group of voters

can never influence the outcome of an election.

111 S.Ct. at 2365, n. 24 (emphasis added). That decision of the

Supreme Court, issued June 20, 1991, stands as an explicit recognition

that “influence” districts are subject to review under the Voting Rights

Acts and that minorities in an “influence” district are entitled to

protection under federal law. In fact, it is apparent that it was the

unanimous view of the Supreme Court that “influence”’ districts

should be read as cognizable under the Voting Rights Act. The dissent

criticized the majority’s decision because, in the dissent’s view, it

might lead to a construction excluding “influence” districts from the

scope of the Act, while the majority rejoined by pointing out that the

dissent read on a false premise and that “influence” districts were not

excluded by the majority’s opinion.

Subsequent to the Chisom decision, the United States District

Court for the Norther District of Ohio explicitly held that influence

districts are protected under the Voting Rights Act. In Armour v. State

of Ohio, No. C 88-1104 Y (N.D. Ohio, September 4, 1991), the Court

traced the history of § 2 of the Voting Rights Act from the United

States Supreme Court’s decision in City of Mobile, Alabama vy.

Bolden, 446 U.S. 55 (1980), to the 1982 amendments to § 2 and,

finally, to Chisom. In doing so, the Court discussed Gingles, Justice

Scalia’s dissent in Chisom and the Majority’s rejoinder in footnote 24

of Chisom, and it addressed racial gerrymandering claims involving

districts with less than a majority of the electorate being members of

minority groups:

While the bright-line test advocated by the defendants

would indeed be [sic] simpler than a case by case analy-

sis of the totality of the circumstances,

[t]he standard that should be applied in

litigation under section 2 is not at issue

here. Even if serious problems lie ahead

in applying the totality of the circum-

stances described in section 2(b), that task,

difficult as it may prove to be, cannot jus-

tify a judicially created limitation on the

A - 26

coverage of the broadly worded statute, as

enacted and amended by Congress.

[Quoting Chisom, 111 S.Ct. at 2368].

(Armour, Slip Op., p. 15). Armour follows and is entirely consistent

with Gingles and Chisom.

CONCLUSION

For these reasons, counter-plaintiffs pray that counter-plain-

tiffs’ motion be denied.

WILLIAM J. HARTE

STEPHEN L. GARCIA

COURTNEY C. NOTTAGE

William J. Harte, Ltd.

111 West Washington Street

Suite 110

Chicago, IL 60602

(312) 726-5015

JOSEPH E. TIGHE

111 West Washington Street

Suite 1100

Chicago, iL 60602

(312) 641-0881

One of the Attomeys for Counter-

Plaintiffs Joseph Gardner, Lovana

Jones, Dan Barreiro, William

Shephard, Jr., John Lee Johnson,

Gwendolyn Scott, Laura Barth,

Warten Dorris, Marvin French,

Jayme Cain, Percy Conway,

Joseph Belman, Luis Albarasin,

Crotis Teague, Jr., Henry Lan-

drau, Carolyn Toney, Fred Smith,

Charlie Wilson, Jr. and Bobby E.

Thompson

ROBERT L. TUCKER

Robert L. Tucker & Associates

203 North LaSalle Street

Suite 2100

Chicago, IL 60601

(312) 558-1588

Appendix B

No. 72662

IN THE

SUPREME COURT OF ILLINOIS

PEOPLE OF THE STATE OF

ILLINOIS, ex rel. ROLAND

W. BURRIS, ILLINOIS

ATTORNEY GENERAL,

Plaintiff,

JOSEPH GARDNER, et al.,

Intervenor-

Plaintiffs,

VS.

GEORGE H. RYAN, etc., et al.,

Nm eee ee”

Defendants.

Onginal Proceedings Before The [linois

Supreme Court Pursuant To Article IV,

Section 3 of the Illinois Constitution

and Illinois Supreme Court Rule 382

B-2

PETITION FOR REHEARING OF

THE GARDNER INTERVENORS

WILLIAM J. HARTE, LTD.

111 West Washington Street

. Suite 1100

Chicago, IL 60602

One of the Attomeys for the

Gardner

Intervenors

Of Counsel:

WILLIAM J. HARTE

ROBERT L. TUCKER

JOSEPH E. TIGHE

STEPHEN L. GARCIA

COURTNEY C. NOTTAGE

B-3

No. 72662

IN THE

SUPREME COURT OF ILLINOIS

PEOPLE OF THE STATE OF

ILLINOIS, ex rel. ROLAND

W. BURRIS, ILLINOIS

ATTORNEY GENERAL,

Plaintiff,

JOSEPH GARDNER, et ail.,

Intervenor-

Plaintiffs,

VS.

GEORGE H. RYAN etc., et al.,

Nee Ne Nee eee Ne eae ae es

Defendants. )

PETITION FOR REHEARING OF

THE GARDNER INTERVENORS

Now come the plaintiff-intervenors, Joseph Gardner, Lovana

Jones, Dan Barreiro, William Shephard, Jr., John Lee Johnson, Gwen-

dolyn Scott, Laura Barth, Warren Dorris, Marvin French, J ayme Cain,

Percy Conway, Joseph Belman, Luis Albarasin, Crotis Teague, Jr.,

Henry Landrau, Carolyn Toney, Fred Smith, Charlie Wilson, Jr..

Bobby E. Thompson, Jerome Joyce, Jim McPike, Ertharin Cousin and

Thomas Lyons, (“the Gardner intervenors’’), by their counsel, pursu-

ant to Rule 367 of the Rules of the Supreme Court, and respectfully

petition this Honorable Court for rehearing in view of the fact that the

B-4

majority of the Court apparently overlooked or misapprehended

certain points raised by the Gardner intervenors. In support thereof,

they state the following.

Procedural History Of The Case

The procedural history of the proceedings in this case is stated

in the Nature of the Case and the Statement of Facts outlined in the

Brief of these intervenors (hereafter “Gardner Br.”) at pp. 2-3 and

7-10. This 112 page brief was filed the same afternoon the Court

announced its decision. The Memorandum of the defendants was

filed two days prior on January 8, 1991. In view of the time con-

straints, the Court may not have had sufficient time to carefully review

all of the papers filed by all of the parties.

This seems apparent in the Court’s statements that the “‘tortu-

ous process which we have just experienced is not in the best interests

of the voters of this State...” January 14, 1992 Judgment (hereinafter

“Burris IT’, p. 2), the “interest of the voters mandates holding elec-

tions on time... .”” (/d., p. 2) and that “any order of this court issued

after January 19, 1992, would be too late to establish proper election

procedures.” (/d., p. 3).

Even accepting the Court’s statements in this regard as evi-

dencing a belief of the necessity of an accelerated decision which “in

no way” received ‘“‘an overwhelming acceptance of the plan of the

Commission. . .”, (/d., p. 2) an incomprehensible paradox occurred.

The Court inexplicably accepted the plan advanced by the persons

principally responsible for the “tortured process.”

The Court will recall that in its initial December 13, 1991

Opinion (hereinafter “Burris [’’), the Court, in response to the claim

by the Gardner intervenors and others that the conduct of the Com-

mission was such as to have created a” unconstitutional process, made

specific reference to that process (Burris /, pp. 1-6) and concluded:

“[ W]e cannot in good conscience approve or disapprove

any plan no matter how fair, compact or contiguous and

substantially equal the districts have been formed. This

court finds that to do otherwise would circumvent the

spirit and purpose of the Illinois Constitution.” (Burris

I, p. 11).

B-5

The Court set down procedural guidelines which called for an

extremely accelerated schedule for filing plans and an “expedited

hearing.”

The Court also set down substantive guidelines enumerating

districts which “do not appear to meet the constitutionally mandated

requirements. . .” and directed that specific questions be addressed at

the hearing relating to compliance with certain expressed provisions

of the Illinois Constitution of 1970.

Specifically, this Court ordered that the following districts be

addressed in light of whether they violate Article IV of Section 3 of

the Illinois Constitution of 1970, as amended, which provides that all

districts be drawn in a compact and contiguous manner: Senate

Districts 7, 10, 11, 18, 24, 34, 37, 38, 53 and 54, and House Districts

14, 19, 21,47, 73 and 75. The Court further directed the Commission

to address whether there was a justifiable, neutral reason for any of

these configurations. (Burris I, p. 12).

This Court further ordered the following districts to be ad-

dressed in light of whether they violate the compactness and racial

dilution provisions of requirement in Article IV, Section 3, as well as

Article III, Section 3, which provides that all elections be free and

equal: Senate Districts 6, 36, 44, 51, 52, 56 and 57. The Court also

directed the Commission to address whether there was a justifiable,

neutral reason for any of these configurations. (Burris I, p. 13).

Lastly, the Court ordered that the following districts be ad-

dressed as to whether they violate the provision against racial dilution

in Article III, Section 3: Senate Districts 21, 29, 33, 39, 42, 43 and

50 and House Districts 6, 8, 10, 25, 26, 27 and 28, 32, 59 and 61 and

62. Significantly, no similar direction was included as to a justifiable,

neutral reason for the configuration of these Districts, and in none of

the enumerated Senate Districts in Question 3 are there minority

populations sufficiently numerous to form more than 50% of the

population of a Senate District. (Burris /, p. 13).

In the January 14 Judgment, this Court found that the Commis-

sion “has complied with the procedural and substantive directives of

our December 13, 1991, opinion, and article IV, section 3, of the

Illinois Constitution of 1970.” (Burris I, p. 1). In fact the Commis-

sion complied with neither.

B - 6

IT WAS ENTIRELY UNNECESSARY TO

RUSH TO A DECISION ON SUCH

IMPORTANT AND FUNDAMENTAL ISSUES.

The most incomprehensible aspect of the Court’s Opinion is

why the Court felt it necessary to reach a decision in this extraordi-

narily complex case in just four or five days following the decision

of the Commission. (Late Monday aftemoon to late Friday after-

noon). The Court, in its Opinion, states that “the most important

consideration and the underlying thrust of this opinion, is the interest

of the voters of this State. . .” which “mandates holding elections on

time.” (Burris II, p. 2). Presumably the Court had in mind the March

17, 1992 Primary. The Court continues: “It is that conclusion and

the lack of sufficient budget and time which prevents this court from

competently drawing a map that would take into account the diverse

interests at stake in this litigation.” /d.

There were many options open to this Court to accommodate

all of the interests of ail the parties. The Commission adopted the

Jourdan III Plan, as amended (“Jourdan III A Plan’), on January 6,

1992, purportedly fulfilling its constitutional responsibilities. It was

not the obligation and responsibility of this Court under the Constitu-

tion to select that Plan or the Certain Intervenors II Plan, but to

determine whether the Plan adopted by the Commission, which was

responsible for the “tortuous process” in the first place, violated the

constitutional rights of those presenting “‘the diverse interests at stake

in this Litigation.”

The Court had and has now the following options available:

1. The Court can order the Primary and General Elections of

1992 to proceed under the Jourdan III Plan adopted by the Commis-

sion, yet retain jurisdiction to do precisely what the Court stated it

would desire to do, but for the time and budget constraints, i.e., order

an orderly and sensible review of every aspect of the Plan under

Supreme Court Rule 382, set the matter for argument, and deliberate

every aspect of the Plan in a calm, orderly atmosphere in time for the

1994 elections. Reapportionment litigation occurs in a significant

number of instances long after elections have been held in the con-

B-7

tested districts. (See, for example, Armour v. State of Ohio, 775

F.Supp. 1044 (N.D. Ohio 1991), where a decision was rendered in

1991 concerning a district drawn under the 1981 census). Indeed, in

its first redistricting decision under the 1970 Constitution, this Court

permitted the 1972 elections to proceed under a constitutionally

infirm plan — adopted by this Court as a “provisional” plan — with

further proceedings contemplated to develop a constitutional plan.

People ex rel. Scott v. Grivetti, 50 Il.2d 156, 277 N.E.2d 881, 888

(1970).

2. The Court can defer final consideration of any aspect of the

Jourdan III A Plan until after the Primary and General Elections of

1992 to better determine the credibility of the experts and consider

more that “the statistics provided” in this case.

3. The Court can defer final consideration of the Jourdan III

A Plan and under Supreme Court Rule 382 appoint a sitting or retired

judge to hear evidence and make proposed findings of fact and

conclusions of law which this Court could review. The budget

constraints of this Court would not be affected in any way, other than

the time of a single judge.

There are certainly other options open to the Court which

would lead to a fair proceeding and yet not impact the Court's

concems over “proper election procedures”, giving “candidates

enough time to decide whether to run” and “those involved in election

process time to prepare”, and “‘voters adequate opportunity to famil-

iarize themselves with their districts and their candidates.” (Bwris

II, p. 3). Other options would also allow this Court time to consider

the Jourdan III A Plan under the appropriate constitutional standard

which was not employed in this case.

II.

THE COMMISSION FAILED TO ACCORD THE

PLAINTIFF AND THE INTERVENORS DUE PROCESS

UNDER THIS COURT’S PROCEDURAL DIRECTIVES.

The first action of the Commission following the December 13

Opinion was an unsuccessful motion before the federal District Court

on December 16, 1991, seeking to enjoin the proceedings before this

B-8

Court. (Exhibits A-D hereto). The Gardner intervenors thereafter

presented a motion before this Court seeking relief from the schedule

stated in Burris I which was subsequently denied. This brought on

another attempt before the federal District Court on December 30,

1991, by the Commission to enjoin the proceedings before this court

which again failed. (Transcript of Proceedings, December 30, 1991,

attached as Exhibit E hereto).

On December 27, 1991, the Commission held a meeting and,

under the guise of an alleged interpretation of this Court’s decision,

adopted a Special Order (Exhibit F hereto) relative to Rules over the

objection of the Gardner intervenors, which:

(1) limited the hearing to two modified statewide

plans, one by the Commission and one by the interve-

nors, thereby foreclosing a hearing to any intervenors

who did not agree;

(2) limited the participation of counsel for the

intervenors;

(3) limited the hearing to two days of testimony;

and

(4) limited the participation of the public in the

form of testimony.

On December 30, 1991, the Gardner intervenors protested

these Rules in the form of a motion before this Court which was also

subsequently denied.

Thereafter, the hearing proceeded under the Rules on January

4 and 5, 1992, with deliberation and comment on January 6, 1992,

and not surprisingly, the adoption of the Jourdan III A Plan by the

Republican majority of the Commission in the later aftemmoon on

January 6. That Plan had been proposed by the Republican majority

of the Commission.

On January 6, the Gardner intervenors filed a motion with this

Court to reject the Jourdan III Plan, as amended, and requested leave

to file a brief in five days on Friday, January 10, 1992.

ee

B-9

On January 8, 1992, the Commission filed its Memorandum

with this Court without leave. It was simply filed.

By the late aftemoon of January 10, 1992, the Court had not

ruled on the request for leave to file a brief so the Gardner intervenors

presented a request to file their brief instanter. Certain Amici Curiae,

traditional African-American public interest groups, also presented

motions for leave to file their briefs in opposition to Jourdan III A.

That same aftemoon, this Court rendered its order adopting Jourdan

If] A, and, on January 14, the Court handed down its Opinion.

The Gardner intervenors had absolutely nothing to do with the

“tortious process” employed in these proceedings. The protested the

“tortious process” at every opportunity at every level. All they

desired was redress from the violation of their rights under the State

Constitution. In this regard, the system failed them because of the

competing concerns impacting the procedure which resulted directly

from the conduct of the Commission. That failure arises to a violation

of their constitutional rights under the Due Process Clause of the

Constitution of 1970 (Article I. Section 2) and the United States (US.

Const., 14th Amendment).

III.

THE COMMISSION FAILED TO COMPLY WITH

THE COURT’S SUBSTANTIVE DIRECTIVES

AND EMPLOYED AN ERRONEOUS STANDARD

TO REVIEW THE JOURDAN III A PLAN.

This Court stated in its January 14 Judgment,

It is well established that the map submitted by

the constitutionally mandated Commission is valid un-

less it is against the manifest weight of the evidence. (III.

Const. 1970, art. IV, §3(b)). Thus, the parties opposing

the map must establish that not only their map or maps

are superior, but that the Commission map is against the

manifest weight of the evidence.

Judgment, p. 3. It is respectfully submitted that this improperly shifts

the burden to plaintiffs and is an improper statement of the standard

B- 10

of review to be applied to the review of voting rights challenges to

statewide plans of apportionment.

Less than one year ago, this Court stated in Fumarolo vy.

Chicago Board of Education, 142 11.2d 54, 566 N.E.2d 1283 (1991),

that

When a Statute provides for an inequality in voting

power, a question arises as to whether there has been a

violation of the constitutional guarantee of equal protec-

tion of the law. When the means used by a legislature

to achieve a legislative goal impinges upon a fundamen-

tal right, such as the night to vote, a Court will examine

a claim that there was a violation of the constitutional

right to equal protection under a standard of Strict

scrutiny.

Fumarolo, 566 N.E.2d at 1291. (Emphasis added. |

Thus, this Court is required to apply a strict scrutiny analysis

to the plan adopted by the Commission where the plan is challenged

on the basis that it results in an inequality of voting power.

Totally apart from the application of an erroneous standard to

review the Commission’s product, as indicated above, this Court

directed that certain enumerated districts “do not appear to meet the

constitutionally mandated requirements” and it expressed certain

“questions. . . to be addressed at the hearing. . .” relating exclusively

to violations of the provisions of the Illinois Constitution, the only

claim made by any of the plaintiffs or intervenors in their complamts

before this Court. Virtually nothing was done as to the following

districts:

2 Waukegan.

Under Jourdan II, portions of Waukegan, Illinois were included

in House Districts 59. 61 and 62. This Court expressly included these

districts in Burris | as violative of Article III, section 3 “which

provides that all elections be free and equal. . .” This Court did nor

require a “justifiable, neutral” reason for this racial dilution. (Burris

I, p. 13). As demonstrated in our Brief, pp. 106-107, (and on the

following page), nothing was done in these districts between Jourdan

II and Jourdan III A. In as far-fetched a statement as can be imagined,

B- 11

the Defendants’ Memorandum stated that the configuration of dis-

tricts in this area is somewhat impacted by the districts to the south

which are the result of the creation of minority super-majority districts

in Cook County. (Def. Memo., p. 52). The northemmost super-ma-

jority minority district in Cook County extends, under the Jourdan III

A Plan, no further north than approximately Belmont Avenue in the

City of Chicago. Between that district (Senator del Valle’s Senate

District 2 and House Districts 3 and 4) and the lower boundary of

House District 59, there are House Districts 20, 33, 34, 15, 17, 16, 18,

58 and 60. It is impossible to even imagine how the northem con-

figuration of Senator del Valle’s district could have any impact upon

the configuration of the Waukegan districts, particularly in view of

the large geographic territory covered by House Districts 57, 58 and

60 to the south of House District 59 and by House Districts 60, 51 and

52 to the south and west of the Waukegan area.

The fact is, notwithstanding defendants’ rhetoric, that defen-

dants chose to keep House Districts 59, 61 and 62 virtually exactly

the same, despite this Court’s concerns, because it is defendants’

contention that this Court has misinterpreted Article III, Section 3 of

the constitution. (See Gardner Br.. pp. 106-08). Defendants do not

agree with this Court’s construction of the Ilinois Constitution, and

they refused to change their redistricting map. They intentionally and

arrogantly refused to accommodate these constitutional concems.

But there is more. The expert employed by the defendants,

Richard Engstrom, explained his opinion of an influence district

under the Federal Voting Rights Act. [He had none under the Free

and Equal Clause which this Court presented.] He stated essentially

that minority population should not be fractured where it can be

demonstrated that that population, less than 50%, can make the

difference as to who will be elected where the two major parties are

closely represented. (Engstrom, Tr. 715-17; 891-92; 912-13).

From the “statistics” before this Court, the Jourdan III A Plan

creates three “safe” House Districts of 60% ormore Republican voters

by splitting the minority population in Waukegan into three districts.

If the minority population is joined in one District, as in the Certain

Intervenors Plan II, there is created one “swing” District of 50% and

two “safe” Republican Districts of over 60%. A more blatant example

B- 12

of racial dilution and political gerrymandering can scarcely be imag-

ined. And the refusal to change the configuration after the directive

from this Court establishes that this racial discriminatory conduct is

intentional.

»& Aurora.

The Aurora area is encompassed in 2 Senatorial Districts,

Senate Districts 21 and 42, both identified in this Court’s initial

Opinion on the issue of racial dilution. As with Waukegan, contrary

to the directions of this Court, there is virtually no change between

Jourdan II and Jourdan III] A. (See Gardner Br., pp. 96-98, and the

map on the following page). By splitting the minority population in

Aurora between House Districts 42 and 84, in Senate Districts 21 and

42, the Commission created two “safe” Republican House Districts

of 55% or more. If the minority population were not fractured to the

extent indicated in Jourdan III A, House District 42 would be a

“swing” District between the two prominent parties where the minor-

ity population would decide the election, consistent with Dr. Eng-

strom ’s testimony.

House District 42 under Certain Intervenors Plan II contains

11,153 African-Americans as contrasted with 6,935 African-Ameri-

cans in the Jourdan III A Plan’s House ™ strict 42. In addition,

Certain Intervenors Plan combines the 11,GU0 African-Americans in

House District 42 with 24,385 Hispanics. Under the Jourdan III A

Plan, the concentration of Hispanics is made in a district other than

the more heavily concentrated African-American, and the number of

Hispanics is more than 4,000 people lower than the concentration of

Hispanicsoffered in House District 42 under Certain Intervenors Plan

II.

3. Hispanic Near North Chicago Influence District.

Another example of blatant dilution in the Jourdan III A Plan

is House District 33. The Hispanic population there is 39.4%, as

opposed to a District 48.56% in the Certain Intervenors Plan.

As originally configured in Jourdan II, Senate District 6, which

was the subject of this Court’s expressed concem as to compactness

and racial dilution, was an “H” shaped district, the western half of

which was an Hispanic minority influence House District, while the

easter half was a lakefront House District. Under the Jourdan III A

| i

B- 13

Plan, the two House Districts have been placed in two separate Senate

Districts. The eastern half of the “H” shaped district is joined with a

House District immediately to the north, along Lake Michigan, while

the western half of the “H” Shaped district is also joined with the

House District to its north to create a Senate District.

Specifically, Certain Intervenors Plan II joins a minority influ-

ence House District which is 48.56% Hispanic (House District 33)

with a second House District more than 27.28% Hispanic, creating a

Senate District which is 37.9% Hispanic. The Jourdan III A Plan

creates a Senate District which is only 32.3% Hispanic. (Ex. 1 before

the Commission, Mapes, § 65).

The question then becomes, as this Court stated, whether there

exists a “justifiable, neutral” reason for the districts’ configurations.

Here, defendants employed a strange strategy, leaving the Court to

guess at the reasons for the Senate District configuration.

Senate District 6, originally, was an “H” shaped district which

paired an Hispanic influence district on the west with a lakefront

district on the east. Court’s expressed concerns over racial dilution

indicate, quite clearly, that the Court’s focus was on the treatment of

the western, or Hispanic, House District, not on the lakefront district

to the east.

When the House Districts were re-paired to make north-south

linkages, the Senate Districts were renumbered. The westemmost

Hispanic influence district became part of Senate District 17, while

the lakefront House District became part of Senate District 6.

Rather than discuss the issue of racial dilution in terms of the

Hispanic House and Senate Districts (this Court’s concer), defen-

dants’ papers discussed racial dilution only as it affects the lakefront,

non-minority district. Accordingly, defendants offered a meaning-

less discussion of the more-than-80% white Senate District which

hugs Lake Michigan, with absolutely no discussion of the substantial

Hispanic population set forth in Senate District 17.

There is no justifiable, neutral reason which gave rise to the

configuration of these House and Senate Districts under the Jourdan

III A Plan, as contrasted to House and Senate Districts which can be

drawn affording a substantially higher Hispanic population as evi-

denced under the Certain Intervenors Plan.

B- 14

4. Senate Districts 56 and 57.

This Court specifically referenced Senate Districts 56 and 57

in Jourdan II as experiencing compactness and racial dilution ques-

tions. As shown in Gardner Brief, pp. 82-88 and the maps on the

following pages, the Commission did nothing to correct these Dis-

tricts and gave no justifiable, neutral reasons for the configurations as

directed by this Court, specifically ignoring the swom concerns of the

minority incumbents in that area.

3. Racial Voting Dilution.

In the four examples indicated above, the Commission ignored

this Court’s directives in Burris /, There are more. But that inaction

pales in comparison to the egregious conduct employed against

Hispanic and African-American voters in Illinois under the Jourdan

III A Plan.

In this case, the Jourdan II] A Plan continues to splinter

unnecessarily virtually every urban area outside the Chicago metro-

politan area which contains a significant minority population. In each

instance, over the swom opposition of respected persons in virtually

every such community (Gardner Findings 206, 239), both the city and

the minority population within the city or town are fractured into two

or more districts, effectively eliminating or at least severely impairing

the ability of the minority groups within those municipalities to

influence elections, notwithstanding the uncontradicted, persistent

lingering effects of past and present discrimination which have weak-

ened the political effectiveness of minorities in those communities.

(Gardner Findings 208-239).

As to the metropolitan Chicago area, a review of the totality of

the circumstances compels the conclusion that the Certain Intervenors

Plan II more effectively enhances the interests of African-American

and Hispanics with respect to political empowerment. Under the

Jourdan III A Plan, however, although there are 17 House and 8 Senate

Districts in which African-Americans constitute a super-majority of

the population, the totality of the circumstances establishes that, in at

least 5 of those House Districts and 3 of those Senate Districts, the

African-American community can be expected to be unsuccessful in

efforts to overcome potential white opposition bloc voting. (Gardner

Findings 247-259).

OO

B- 15

Significantly, African-American Organizations such as the

Chicago Urban League and the Task Force for Black Political Em-

powerment, as well as Joseph Gardner, Executive Director of PUSH,

hardly organizations and individuals who desire anything less than

the maximization of African-American political empowerment, are

against the Jourdan III A Plan for the City of Chicago. Virtually every

African-American elected official in the General Assembly opposes

that Plan. And finally, the testimony of the defendants’ expert, Dr.

Engstrom, both in Affidavit and before the Commission, is entirely

unpersuasive and lacking in any reasonable foundation, particularly

where he confessed no knowledge or understanding of local Chicago

politics, life in the African-American communities, or relative

strengths of white and African-American political organizations in

the areas affected by the Certain Intervenors Plan II and the Jourdan

III Plan. (Gardner Findings 260-262). Finally, Dr. Engstrom offered

no opinions as to racial dilution under the Free and Equal Clause of

the Illinois Constitution. The Jourdan III A Plan achieves the mathe-

matical target of 17 districts by engaging predominately white wards

in anticipated primary battles with African-American areas, which

themselves often include portions of disparate African-American

neighborhoods and wards.

As to the Hispanic Districts, every Hispanic organization,

elected official or individual who cared to express an opinion objected

to the Jourdan III A Plan in the City of Chicago and downstate. No

one, other than Dr. Engstrom, gave testimony, either orally or in

writing, in support of the treatment of Hispanics under that Plan.

(Gardner Findings 138-142, 163).

IV.

THIS COURT COULD NOT HAVE DECIDED

THE PARTIES’ FEDERAL CLAIMS.

The Commission has asserted in the Federal District Court

Action that the federal claims of the Gardner Intervenors, indeed of

all parties before this Court, are sub ject to the doctrines of res judicata

and collateral estoppel. (Exhibit G hereto).

This is the result of this Court’s reference at page 4 of the

Opinion that “the Commission map meets all four requirements”, one

B - 16

of which (No. 2) is ‘““whether the map has provided adequate repre-

sentation to minorities and other special interests to satisfy various

State and United States constitutional rights as well as Federal stat-

utes, i.e., racial, ethnic and gender; .. .” (Burris II, p. 4).

Of all that has happened to these parties in this “tortious

process”, this assertion is the most egregious. For the Gardner

intervenors to have pleaded only state claims in these proceedings, to

have successfully fought removal of those state claims, to have broken

their backs to accommodate this Court’s first Opinion which enumer-

ated only questions relating to state claims, and to have had withdrawn

from them the right to place these claims before this Court in an

appropriate, sensible procedure, then to go to the federal court where

just possibly this appropriate, sensible procedure can be accorded and

to be visited with the assertion that the federal claims were either

decided or are now precluded raises shame to a new level.

It is apparent to the Gardner intervenors that this Court never

intended to decide or undertake to decide federal claims for the

following reasons:

1. The Standard Applied.

This Court stated in its Opinion that it “did not judge the

credibility of each expert, but rather relied on the statistics provided.”

(Burris II, p. 4). This is a totally inappropriate standard for federal

claims under the Voting Rights Act and the Fifteenth Amendment.

Under the Voting Rights Act, the Congress of the United States

explicitly directed the courts to review the “totality of circumstances”

when determining whether racial or language minority members have

“less opportunity than other members of the electorate to participate

in the political process and to elect representatives of their choice.”

42 U.S.C. § 1973(b). The United States Supreme Court in Thornburg

v. Gingles, 478 U.S. 30 (1985), embraced and adopted the “totality of

circumstances” analysis.

In Gingles, the court stated:

Subsection 2(b) establishes that §2 has been violated

where the “totality of circumstances” reveal that ‘the

political process leading to nomination or election. . .are

not equally open to participation by members of a [pro-

B-17

tected class]. . .in that its members have less opportunity

than other members of the electorate to participate in the

political process and to elect representatives of their

choice.” 478 U.S. at 43.

In determining whether minority plaintiffs have an equal op-

portunity to participate in the political process and to elect candidates

of their choice,

4 court must assess the impact of the contested structure

or practice on minority electoral Opportunities ‘‘on the

basis of objective factors.” [citing the Senate Report

which accompanied the 1982 amendments to the Voting

Rights Act.] The Senate Report specifies factors which

typically may be relevant to a §2 claim: the history of

voting-related discrimination in the State or political

subdivision; the extent to which voting in the elections

of the State or political subdivision has used voting

practices or procedures that tend to enhance the oppor-

tunity for discrimination against the minority group,

such as unusually large election districts, majority vote

requirements, and prohibitions against bullet voting; the

exclusion of members of the minority group from can-

didate slating processes; the extent to which minority

group members bear the effects of past discrimination

in areas such as education, employment, and health,

which hinder their ability to Participate effectively in the

political process; the use of overt or subtle racial appeals

in political campaigns; and the extent to which members

of the minority group have been elected to the public

Office in the jurisdiction. /d., 28-29: see also supra, at

36-37. The Report notes also that evidence demonstrat-

ing that elected officials are unresponsive to the particu-

larized needs of the members of the minority group and

that the policy underlying the State’s or the political

subdivision’s use of the contested practice or structure

is tenuous may have probative value. Id., at 29. The

Report stresses, however, that this list of typical factors

is neither comprehensive nor exclusive.

B-18

Gingles, 478 U.S. at 44-45, supra.

The Supreme Court, subsequent to Gingles, made clear that

§2(b) of the Voting Rights Act was intended to apply to influence

cases. In Chisom v. Roemer, ___ U.S. ___, ___ L.Ed.2d ___, 111

S.Ct. 2354 (1991). the Court construed §2 of the Voting Rights Act

in connection with judicial elections. Specifically, the Court con-

strued the language in § 2(b) relating to minorities having “less

opportunity than other members of the electorate to participate in the

electoral process and to elect representatives of their choice.” (42

U.S.C. §1973(b) (emphasis added)). The Court, in its majority opin-

ion, held that a plaintiff must prove both a denial of the opportunity

to participate and an abridgement of the opportunity to eiect repre-

sentatives of the minorities’ choice in order to prevail under §2. 111

S.Ct. at 2365.

In dissent, Justice Scalia criticized that construction, suggest-

ing that “if both conditions must be violated before there is an §2

violation, then minorities who form such a small part of the electorate

in a particular jurisdiction that they could on no conceivable basis

elect representatives of their choice’ would be entirely without section

2 protection.” 111 S.Ct. at 2371 (Scalia, J., dissenting). The majority

addressed Justice Scalia’s dissent, and, in so doing, put to rest any

suggestion that an “influence” case is not cognizable under §2:

The dissent argues that our literal reading of the

word “and” leads to the conclusion that a small minority

has no protection against infringements of its right “to

participate in the political process” because they will

always lack the numbers necessary “‘to elect its candi-

date,’ Post at 2371. This argument, however, rests on

the erroneous assumption that a small group of voters

can never influence the outcome of an election.

111 S.Ct. at 2365, n. 24 (emphasis added). That decision of the

Supreme Court, issued June 20, 1991, stands as an explicit recognition

that “influence” districts are subject to review under the Voting Rights

Acts and that minorities in an “influence” district are entitled to

protection under federal law. In fact, it is apparent that it was the

unanimous view of the Supreme Court that “influence” districts

a

B-19

should be read as cognizable under the Voting Rights Act. The dissent

criticized the majority’s decision because, in the dissent’s view, it

might lead to a construction ex¢luding “influence” districts from the

Scope of the Act, while the majority rejoined by pointing out that the

dissent rested on a false premise and that “influence” districts were

not excluded by the majority's opinion.

Therefore, where a court considers voting dilution claims

under the Voting Rights Act as applied to influence districts, it must

consider the totality of circumstances on the basis of objective factors,

including the non-exhaustive list of factors set forth in Gingles.

Because this Court relied only on statistics provided to it in purporting

to consider the plans before it under the Voting Rights Act, it failed

to apply the correct standard and to consider all of the evidence before

it regarding the communities in the challenged districts, as required

by Gingles.

2. Four Justices Have Not Joined As A Majority On

This Issue.

Review of the Concurring Opinion of Justice Heiple indicates

expressly Ais reason for joining the majority: “Since I believe that the

Jourdan III-A map meets the Jilinois Constitutional guidelines in a

sufficient manner, I Support the adoption of the map.” (Emphasis

added). (Burris II, p. 9). The three dissenting Justices cannot be said

to have agreed with any conclusion of the majority. Since the federal

Claims, from the face of the Opinion, failed to have a constitutional

majonity of four Justices join on this issue, the question cannot be said

to have been decided by this Court so as to foreclose its decision in

the federal system.

B - 20

CONCLUSION

For the reasons given, the Gardner intervenors respectfully

pray that this Court grant the petition for rehearing and address the

merits of the grave constitutional issues which confront this Court in

this case in a sensible, calm manner without the time constraints the

Court has expressed.

JOSEPH E. TIGHE

111 West Washington Street

Chicago, IL 60602

(312) 641-0881

Of Counsel:

WILLIAM J. HARTE

ROBERT L. TUCKER

JOSEPH E. TIGHE

STEPHEN L. GARCIA

COURTNEY C. NOTTAGE

Respectfully submitted,

One of the Attomeys for

Gardner Intervenors

WILLIAM J. HARTE, LTD.

111 West Washington Street

Chicago, IL 60602

(312) 726-5015

ROBERT L. TUCKER &

ASSOCIATES

203 North LaSalle Street

Chicago, IL 60601

(312) 558-1588