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SKOLNICK v. ILLINOIS STATE ELECTORAL BOARD

December 1, 1969

SHERMAN H. SKOLNICK AND HARRIET SHERMAN, PLAINTIFFS,
v.
ILLINOIS STATE ELECTORAL BOARD, DEFENDANT.



Before Fairchild, Circuit Judge, and Campbell and Austin, District Judges.

The opinion of the court was delivered by: Per Curiam.

Plaintiffs acting pro se have brought this action on their own behalf and on behalf of, "all other voters, residents, citizens, taxpayers and persons similarly situated", and seek to set aside the present apportionment plans of the Illinois Senate and House of Representatives, both of which were adopted in 1965, alleging that these plans do not comply with the most recent constitutional standards for apportionment as set forth in the United States Supreme Court decisions of Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969) and Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969). In what is captioned a "Correction or Amendment of Complaint" plaintiffs also argue that the cumulative voting provisions of the Constitution of the State of Illinois (Art. IV Sec. 7) also "disenfranchises plaintiffs and others similarly situated."

Upon filing of the complaint it was properly determined by Judge Richard B. Austin, to whom the case was assigned, that this was a matter which must be heard by a three judge court pursuant to 28 U.S.C. § 2284. Subsequently and pursuant to Sec. 2284 the Chief Judge of the United States Court of Appeals for the Seventh Circuit designated the members of this panel to hear and determine this action.

In response to the complaint the defendant, Illinois State Electoral Board, filed a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. Defendant subsequently filed an extensive brief in support of its motion to dismiss. Noting that plaintiffs are not attorneys nor represented by attorneys, we appointed the Chicago Bar Association, Amicus Curiae, with the direction that they were to represent and protect the interests of all members of the class. Pursuant to that appointment the President and Board of Managers of the Association designated immediate Past President John J. Sullivan, Esq. and James P. Chapman, Esq., both able and experienced trial attorneys to serve as Amicus and to represent the class. Mr. Chapman and the Association previously served this Court as Amicus Curiae in a similar case challenging the constitutionality of the ward lines of the City of Chicago. His able assistance in that case and that of the Association was noted both by Judge Campbell and by the Court of Appeals.

Upon appointment, the Amicus Curiae filed a brief in opposition to the defendant's motion to dismiss and the matter was immediately set for argument. All parties, plaintiffs pro se, defendant and Amicus Curiae were fully heard.

The Senate districts here challenged were judicially formulated by this court and by the Supreme Court of Illinois in unprecedented mutual and cooperative decisions. Germano v. Kerner, 247 F. Supp. 141 (N.D.Ill. 1965) and People ex rel. Engle v. Kerner, 33 Ill.2d 11, 210 N.E.2d 165 (1965). Immediately after the present Senate map was promulgated, districting of the House of Representatives was adopted by a Special Reapportionment Commission appointed pursuant to the Constitution of the State of Illinois (Art. IV Sec. 8). The Representative districts for Cook County, as adopted by the Special Commission, are coterminous with the judicially formulated Senate districts adopted by this court and the Illinois Supreme Court. The Representative districts in the remainder of the state vary at least slightly from the judicially adopted Senate districts. Some variations were necessary because there are 59 Representative districts and only 58 Senate districts in the State of Illinois. Both the Senate and the House maps were based on 1960 federal census figures. The Senate districts were determined at that time to be in complete compliance with the federal constitutional principle of "one man-one vote" as expressed in the then most recent Supreme Court decisions, particularly Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) and Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). See Germano v. Kerner, 247 F. Supp. 141, 143. The variations or deviations from the average population in those Senate districts are as high as 7.7 per-cent above and 7.0 per-cent below the average. The House districts contain variations as high as 8.6 per-cent above and 8.3 per-cent below the average population.

The 1966 election for members of the Senate was conducted on the basis of the judicially formulated map. All 58 Senate seats were filled for a four year term at that election notwithstanding the provision of the Illinois Constitution for staggered terms of Senators. With regard to the constitutional requirement for staggered terms, the Illinois Supreme Court held, "To judicially provide for staggered terms in a temporary redistricting scheme would unduly and unnecessarily encroach upon the legislative domain". (33 Ill.2d 11 at 14, 210 N.E.2d 165 at 167). For that reason the court determined that all 58 Senators should be elected in 1966 and thereafter "for identical four-year terms until such time as 1970 census figures become available for legislative action." (Id.) Accordingly, and as stated above, all Senators were elected to four year terms in 1966 and those terms expire in 1970. Elections for the Illinois House of Representatives were conducted pursuant to the Commission drawn map in 1966 and 1968. Members of the House are elected for terms of two years under the Illinois Constitution. (Art. IV, Sec. 7). Thus all 177 Representatives must be again elected in 1970 for a two year term expiring in 1972. Under state law prospective candidates for both the Senate and the House of Representatives must file their initial petitions for the November 1970 election after December 8, 1969, but no later than December 15, 1969. Candidates with properly filed nominating petitions will be certified on January 15, 1970. Primary elections are scheduled by statute to be held on March 17, 1970.

In support of its motion to dismiss, defendant State `Electoral Board argues first that the present maps for both the Senate and the House are constitutionally valid. Defendant also argues that the relief sought here is not consonant with the best interests of the people of this State, is impracticable and inordinately costly and is disruptive of state representative government. In its argument that the present maps are constitutionally valid, defendant attempts to distinguish the Kirkpatrick and Wells cases on the basis that in both of those cases the legislatures of the states involved enacted the Congressional redistricting plans in question only after a lengthy period of reluctance and political skirmishing. Defendant also argues that in any event Kirkpatrick and Wells were wrongly decided and that subsequent personnel changes on the Supreme Court may produce a different result in future cases. We have carefully considered the two 1965 maps and the deviations found in each, and we find that measured against the most recent tests expressed in Kirkpatrick and Wells these maps, though deemed constitutional when promulgated, can no longer pass constitutional muster. In the Kirkpatrick case, deviations of only 3.13 per-cent above and 2.83 per-cent below the average were held invalid. In Wells the deviations ranged from 6.6 per-cent above to 6.8 per-cent below the average.

Both Kirkpatrick and Wells demand mathematical exactness in drawing Congressional districts. The requirement of equal voting power in selecting members of the United States House of Representatives is drawn from language in Article I, Sec. 2. Wesbury v. Sanders 376 U.S. 1, 17, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). The requirement applicable to state legislatures arises from the equal protection clause of the 14th amendment. Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362 (1964). The Supreme Court has not in express terms withdrawn its suggestion at p. 578, 84 S.Ct. at p. 1390 of Reynolds that, "Somewhat more flexibility may therefore be constitutionally permissible with respect to state legislative apportionment than in congressional districting." The Court has, however, said that the standard in both situations is "as nearly as practicable," and has defined the standard, in Kirkpatrick (394 U.S. p. 531, 89 S.Ct. p. 1229), as permitting, "only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown."

We conclude that the standard applies here and has not been met. Accordingly, considering the deviations from equality according to the 1960 census figures, both the court drawn plan for the election of members to the Illinois Senate and the Commission drawn plan for the election of members to the Illinois House of Representatives are each and both unconstitutional. We now consider the appropriate relief.

One alternative to be considered is judicial creation of districts which would have equal population using 1960 census figures. It seems certainly too close to the 1970 elections to follow the procedure of allowing a reasonable period of time for legislative action, after which the court would act if the legislature defaulted. Because the Illinois elective process will begin December 8, 1969, there is no time even for judicial districting unless the court suspends the operation of the elective process according to the time table chosen by Illinois for a period of several months. Assuming these steps to be possible, it is sound judicial policy to avoid them unless the merit of the result which can be achieved clearly outweighs the difficulties and policy considerations which make them undesirable.

This court recently considered a challenge by one of the same plaintiffs to the present apportionment of wards in the City of Chicago. Skolnick v. Mayor, 66 C 2134, 415 F.2d 1291 (1969). In that case the terms were for four years, the last election of the decade had already occurred, and the 1970 census figures would be available in time for the next election. One question presented was whether a new ward map should be created, with equal districts according to 1960 census figures, and a new election ordered for the balance of the current term. In that case Judge Campbell found that "the 1960 census figures no longer portray the present population scheme." (Quoted in Court of Appeals opinion, 415 F.2d at 1295.) In affirming Judge Campbell's decision, the Court of Appeals discussed the complete unreliability of the 1960 figures for the purpose of redistricting the city in 1968 as well as the complete impossibility of obtaining more current or reliable figures.

    "It seems clearly established the only reliable
  method to determine the City's present population
  would be by a special census, that is by a
  physical "head count." It also is established
  that no reliable studies are available at this
  time for use in achieving ...

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