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KIRBY v. ILLINOIS STATE ELECTORAL BOARD

October 13, 1965

JOHN R. KIRBY, PLAINTIFF,
v.
ILLINOIS STATE ELECTORAL BOARD, OTTO KERNER, AS GOVERNOR OF THE STATE OF ILLINOIS AND CHAIRMAN OF THE STATE ELECTORAL BOARD, ET AL., DEFENDANTS. LAWRENCE A. KUSEK, PLAINTIFF, V. OTTO KERNER, AS GOVERNOR OF THE STATE OF ILLINOIS AND CHAIRMAN OF THE STATE ELECTORAL BOARD, ET AL., DEFENDANTS.



Before Castle Circuit Judge, Campbell, Chief Judge and Decker, District Judge.

The opinion of the court was delivered by: Campbell, Chief Judge.

On September 10, 1965 the Supreme Court of Illinois in People ex rel. Scott v. Kerner et al., 32 Ill.2d 539, 208 N.E.2d 561, by appropriate order afforded the two opposing political factions of the State Electoral Board opportunity to settle in an orderly fashion the Illinois congressional reapportionment controversy. Thereupon, with the approval of the Illinois Supreme Court and of my brethren on the panel of this Court in the above captioned cases, I requested counsel for the opposing factions to confer with me in pre-trial conference pursuant to Rule 16 of the Federal Rules of Civil Procedure. Counsel kindly complied agreeing that the public interest would best be served by an early end to the conflict. Both counsel also agreed to endeavor, with my assistance, to stipulate to a fair and equitable reapportionment of Illinois congressional districts in accordance with the Federal Constitutional principle of "one man, one vote".

Counsel have since conferred at length with each other and with the respective parties they represent and have conducted further pre-trial conferences before me, all with the knowledge and approval of the Illinois Supreme Court and the other judges on the panel of this court. Finally, on October 1, 1965, counsel appeared and advised that, although considerable agreement had been reached, they were unable fully to resolve their differences. I, therefore, undertook the task of reconciling these differences in the light of "one man, one vote" requirements.

Congressional districts were apportioned in 1961 by the Illinois Legislature purportedly on the basis of population. (Ill. Rev.Stat., Ch. 46 § 156f.1) Although, as candidly admitted herein by the pleadings, all of the districts were not and are not substantially equal in population, some of the districts do come within constitutional requirements considering the permissible deviation from population norms. Moreover, all of the districts thus established by the Legislature, including those admittedly malapportioned, do constitute a nucleus around which constitutional congressional districts can be constructed without gross change.

Had the parties drawn the 24 Congressional districts allocated to Illinois around the Legislature's 1961 basic nucleus for each district, adding or subtracting territory where needed to equalize population, they would virtually have agreed upon a congressional map. Indeed, practically all the differences between the parties arose when either one or the other, for understandable though obvious political reasons, departed from the nucleus.

Much of the unresolved controversy between the parties concerns the suggested new boundaries for the present Nineteenth District. The distinguished Attorney General of Illinois has vigorously and ably contended that the new lines he suggests for that district should be adopted for the reason that they would best protect the incumbent Congressman who resides therein. Although I appreciate the Attorney General's motivation in strenuously seeking to enhance the reelection potential of a member of his party, I must and do in the interest of uniformity and the "one man, one vote" principle reject his well presented plea. Concern for incumbent Congressmen is a legitimate consideration with which I am most sympathetic when all other factors are equal, however, the Attorney General's proposed lines for the Nineteenth District would radically depart from the nucleus and completely alter the character and composition of that district. The Attorney General's submitted map for the Nineteenth District seriously deforms and disrupts neighboring districts in order to make the necessary population adjustments. Protection of incumbents cannot constitutionally extend further than adhering to the nucleus of existing districts, increasing or diminishing that basic area as necessary to arrive at a constitutional population figure.

The changes I find necessary do no violence to the nucleus of the Nineteenth District; the incumbent retains the entire area from which he was recently elected with the addition of sufficient contiguous area to conform to the population norm requirement. This I have done in conformity with the overall district nucleus and in a manner least affecting adjacent districts.

I have furthermore with the approval of the Illinois Supreme Court, after studying the maps of the parties and considering the areas of divergence, prepared a congressional reapportionment plan utilizing the nucleus of each existing congressional district and enlarging or decreasing it to comply with the "one man, one vote" principle. A copy of the said plan is appended hereto with maps, legal descriptions and population totals for proposed congressional districts according to the 1960 census.

It is my considered opinion that this plan is a just, equitable, and constitutional reapportionment of Illinois congressional districts; I also believe that the plan constitutes a fair compromise between the divergent proposals submitted by the parties. Accordingly, I hereby file this Memorandum herein and submit a copy thereof and its attached plan to the Illinois Supreme Court.

CASTLE, Circuit Judge, and DECKER, District Judge, concur herein.

APPRNDIX

              POPULATION DATA FOR DOWN-STATE
                 CONGRESSIONAL DISTRICTS
                                          Deviation from
  District                                  Average of
  Number             Population               420,048
    12                 394,714                   -6.0%
    14                 439,182                   .6%
    15                 410,650                   -2.2%
    16                 394,481                   -6.1%
    17                 428,519                   .0%
    18                 401,503                   -4.4%
    19                 410,402                   -2.3%
    20                 401,919                   -4.3%
    21                 417,760                   -0.5%
    22                 441,332  ...

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