Before Castle, Chief Circuit Judge, and Campbell and Decker,
The opinion of the court was delivered by: Per Curiam.
MEMORANDUM, FINDINGS OF FACT, CONCLUSIONS OF LAW AND DECREE
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 plan for Illinois
Congressional Districts. The present districts were formulated
and adopted in December 1965 by joint action of this court and
the Supreme Court of Illinois. Kirby v. Illinois State Electoral
Board, 251 F. Supp. 908 (1965) and People ex rel. Scott v. Kerner,
33 Ill.2d 460, 211 N.E.2d 736 (1965). The present plan was deemed
constitutional when promulgated. (251 F. Supp. at 910). Recent
decisions of the United States Supreme Court, however, establish
that population deviations regarded constitutional in the 1965
plan now would exceed constitutional standards. For example, in
Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d
519 deviations of only 3.13 per-cent above and 2.83 per-cent
below the average were held invalid. In Wells v. Rockefeller,
394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535, the Court held invalid
deviations ranging from 6.6 per-cent above to 6.8 per-cent below
the average. These decisions obviously seem to demand
mathematical exactness in drawing Congressional districts.
The present districts under our 1965 plan for Illinois contain
deviations as high as 7.5 per-cent above the average and 6.1
per-cent below. Accordingly, we now must conclude that the
present districting plan is unconstitutional. We now turn to the
The court appointed Amicus Curiae, Chicago Bar Association by
John J. Sullivan, Esq. and James P. Chapman, Esq. has suggested
that the most appropriate relief considering all of the
circumstances is to declare the present plan unconstitutional and
to require a new and constitutional plan to be adopted before the
1972 election, permitting the 1970 election to be conducted under
the present plan. Candidates for the 1970 election have already
filed all necessary petitions for the 1970 primary. We agree in
substance with the proposals of our distinguished Amicus.
In determining what relief to fashion we are presented with a
question similar to that before the court in Skolnick v. Illinois
State Electoral Board, 307 F. Supp. 691, challenging the validity
of the present apportionment plans for the Illinois State Senate
and State House of Representatives. (Decided December 1, 1969).
In that case the court concluded that the 1960 census figures,
the most recent figures available, were no longer reliable; that
more current figures can not be obtained; and that the only
alternative, namely an election-at-large, is a completely
impracticable and inequitable remedy. We agree with the
conclusions of that court and adopt its rationale as the
principles expressed there apply equally here. We further
did the court in the prior case, that under the circumstances the
present plans are, "the best that can be had within the framework
of the Constitutional provision applicable until 1970 * * *."
Jackman v. Bodine, 53 N.J. 585, 252 A.2d 209, 211 (N.J., 1969),
cert. denied, Supreme Court of the United States, October 13,
1969, 396 U.S. 822, 90 S.Ct. 63, 24 L.Ed.2d 73.
Accordingly, we conclude that the only equitable and
practicable solution is to order the election in 1970 to be
conducted under the present (1965) map and to order redistricting
based on 1970 census figures before the election of 1972. It is
therefore ordered and decreed:
I. The present court drawn map for election of
Members to the United States House of
Representatives from Illinois — though deemed
constitutionally valid when adopted and though the
deviations from the required mathematical exactness
are slight — is presently unconstitutional.
II. All Members shall therefore be elected to the
United States House of Representatives from
Illinois under the present map only for one more
term of two years at the general election scheduled
for November 1970.
III. This court assumes that the General Assembly of
Illinois will, during its legislative session in
the first half of 1971, enact a complete and
constitutionally valid plan of reapportionment for
election of Members to the United States House of
Representatives from Illinois. Defendant is hereby
ordered to present to this court on or before July
1, 1971 such duly enacted plan of reapportionment.
Upon failure so to do this court shall undertake
IV. This court retains jurisdiction of this cause to
fully carry into effect the foregoing.