# Opposition Brief — Gardner v. Ryan

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 504 U.S. 973

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386011_0499%3A2. Public record. Not legal advice.