Before Fairchild, Circuit Judge, and Campbell and Austin,
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.
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
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
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.
Here we turn to the fact that since 1960 there have been
substantial changes in the distribution of population
Illinois. (See "Population Estimates and Projections", U.S.
Department of Commerce, Series p-25, No. 427, 7-31-69). Of
course if exact equality per 1960 figures had been achieved
early in the decade, such districting would still be in force
and be constitutionally valid for the 1970 election
notwithstanding these shifts in population. Reynolds v. Sims,
377 U.S. p. 583, 84 S.Ct. 1362. But to put such a districting
in force after the shifts have been known to occur, for only
the last election in the decade, and in order to achieve, at
best, only minor corrections seems to have little weight in
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 ...