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November 14, 1970


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

                       ORDER AND JUDGMENT

This cause is before the court on a hearing on the constitutional merits of a redistricting ordinance for the City of Chicago adopted by the City Council of the City of Chicago, November 6, 1970, and submitted to this court by the defendant Mayor and City Council of the City of Chicago, pursuant to a prior order of this court and of the Court of Appeals for the Seventh Circuit. For a full understanding of the issues presented in this cause, a summary of the background of this litigation is required.

Upon my review of the evidence in the case, I found that the population deviations, ranging from 13 percent above the mean to 15 percent below the mean, were impermissible and concluded that the existing wards were not in conformity with the mathematical "one man-one vote" standards judicially formulated since the redistricting ordinance was adopted in 1961. I then invited all parties so desiring to file any plans or proposals they might have to remedy the malapportionment of the City's wards. Upon consideration of the suggestions submitted, I concluded that the appropriate remedy was to enjoin any further elections under the 1961 ordinance and to order the defendant City Council to prepare and adopt a constitutionally valid redistricting ordinance in time for the next election of members to that body scheduled for February 23, 1971. My order at that time (September 11, 1968) directed the defendant City Council to file a "fully detailed and lawfully enacted redistricting ordinance based on the 1970 census figures and conforming with the requirements of the United States Constitution" on or before November 1, 1970. The November 1, 1970 deadline was based on the evidence, particularly that presented by an expert witness provided by the Bureau of the Census, that census tract figures would be available on or before August 1, 1970.

Upon review, the United States Court of Appeals for the Seventh Circuit affirmed. However, that Court amended my order in that it required the City Council to file its ordinance on or before October 1, 1970, in lieu of the November 1 date contained in my original order. (415 F.2d 1291.) This modification was obviously based on the evidence that the tract figures would be available on or before August 1, 1970. The opinion of the Court of Appeals further thoughtfully provided that its modification was not intended to prohibit the District Court from granting reasonable extensions of the filing date if the facts as they developed so required. (415 F.2d at 1299.)

It is now well known that census tract figures were not available as expected on August 1, 1970. Indeed, these figures were not available until September 10, 1970 and even then a number of discrepancies required recalculation. The delay in obtaining census data information was in no way caused by any of the parties to this litigation. Nor can any blame be charged to the Bureau of the Census. The delays were national in scope and of uncontrollable causes. I did feel it my responsibility, however, to do all within my power to expedite the obtaining of the 1970 census tract figures, since the mandate of the Court of Appeals and my earlier order both decreed that these were to be used in preparing a constitutional redistricting plan for the 1971 and subsequent municipal elections. Accordingly, I kept in constant touch with the regional office of the Bureau of the Census within this district and with its Director and when it became clear that tract figures would not be available on time, I contacted the National Director of the Bureau of the Census and explained to him the vital interest of this court and of the people of the City of Chicago in obtaining census tract figures as soon as possible. I felt it my judicial responsibility in this important case to enlist the good offices of the Director to extend special consideration and effort to expedite the compilation of the census tract figures for the City of Chicago. In response to this request, the Director and his Bureau did graciously and responsibly expedite the compilation of the Chicago data and I here express my thanks to them.

Because of the delay in obtaining the census tract figures, the defendants Mayor and City Council presented a motion for extension of time to file the redistricting ordinance. For the reasons above described, which I felt compelling, I granted the City's motion and extended the time to and including November 10, 1970. Plaintiff Despres opposed the City's motion for an extension and submitted a proposed reapportionment plan of his own under which he contended the aldermanic elections could be held. In his briefs in opposition to the defendants' motion for extension, plaintiff Despres stressed the fact that the first day for filing a petition of candidacy is November 16, 1970 and the last day for filing such a petition is December 21, 1970. Plaintiff Despres vehemently argued that any delay would cause "serious harm * * * to independent candidates for alderman in the February, 1971 election." The Court of Appeals affirmed my granting of the extension to November 10, 1970.

In my order granting the extension of time, I commended plaintiff Despres and his associates for their efforts in preparing a plan which they feel meets the Supreme Court's mandate of mathematical exactness in the preparation of representative wards. I also invited other interested parties to submit similar plans if they desired to do so. The ordinance presently before the court was duly enacted and timely filed by the defendant Mayor and City Council on November 10, 1970. Plaintiffs Skolnick and Eskelinen also filed a proposed plan just prior to that date (November 9, 1970). My order also set November 12, 1970 for a hearing on the constitutionality of the ordinance to be submitted again recognizing the important time limitations urged by plaintiff Despres in opposing the extension.

At the commencement of the hearing on the constitutionality of the City's ordinance on November 12, 1970, I advised all parties as to what I deemed the nature and purpose of the hearing. I again reiterated the principle which I have so often expressed in this case in the past and which has been expressed by the Supreme Court, that redistricting is constitutionally a legislative function and judicial relief becomes appropriate only after the legislative body charged with the responsibility fails to perform that duty according to federal constitutional requisites. Reynolds v. Sims, 377 U.S. 533, 586, 84 S.Ct. 1362, 12 L.Ed.2d 506. I made clear that I have no authority under the Constitution to conduct another public hearing or a town hall meeting on the wisdom of the City Council's ordinance. The only issue before me is whether the plan as submitted is constitutional.

I therefore directed the parties to limit their inquiry to the issue: Does the ordinance before the court pursuant to the commands of the Court of Appeals and this court meet the most current standard of equal protection in terms of mathematical exactness and, if it can be demonstrated that it does not, do either of the alternative plans meet that exactness standard. See Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519; Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535.

As to this issue, I advised all parties, particularly the defendants herein, that I was fully aware of the constitutional theory, accepted by certain courts, that although mathematical exactness is required for congressional districting, a greater deviation is permissible in state and local redistricting. See e.g. Abate v. Mundt, 25 N.Y.2d 309, 305 N.Y.S.2d 465, 253 N.E.2d 189 (1969). I further advised the parties that I disagreed with this theory and the conclusions of those courts which have adopted it and I adopted as the law of this case the exactness standard expressed in Kirkpatrick and Wells. See also Skolnick v. Illinois State Election Board, 307 F. Supp. 691 (N.D.Ill. 1969).

I further advised the parties, that although mathematical equality was the only issue presented in the case thus far, on my own motion I was raising the issue as to whether the plan before the court would under any circumstances operate, "to minimize or cancel out the voting strength of a cognizable racial or political element of the voting population," Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110; Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401; Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376.

Significantly, there has been no serious challenge to the ordinance as presented for its failure to achieve mathematical exactness. Only plaintiffs Skolnick and Eskelinen attacked the ordinance on this basis; and their attack is aimed more at the use of enumeration districts rather than census tracts, charging that the enumeration districts may not prove as accurate as the census tract figures. While I understand and appreciate the point Mr. Skolnick and Mr. Eskelinen attempt to make, I believe the method used by the City Council, i.e., using census tracts and enumeration district figures, best complies with the Supreme Court's teaching to make a good faith effort to achieve mathematical certainty. In reaching this conclusion, I particularly note that of the census tract split where the split involved population, only 49 census tracts out of a total of 872 were split, requiring the use of the smaller enumeration districts. (See Appendix "A")

I have carefully analyzed the City's plan with the excellent assistance of Dr. Joseph Godwin, Amicus Curiae, who has served as my technical advisor and for whose assistance I am most thankful, and I have carefully checked its mathematical accuracy. I also compared it and the other plans submitted by the other parties with maps I received upon request from the Chicago Urban League, which maps detail areas of black residence within the City of Chicago as estimated and projected for the years 1970 and 1975.

I also consulted at length with the Regional Office of the United States Department of Commerce, Bureau of the Census, and have personally verified the consistency and accuracy of the census tract and enumeration district figures and boundaries contained in the City's proposed plan. I would like to express my appreciation and the appreciation of this court to Hon. Curtis T. Hill, Regional Director and to his most competent staff for their valuable assistance and cooperation.

My exhaustive personal survey has revealed only the following minor inaccuracies and obviously clerical errors:

    1. The ward boundary between Wards 4 and 5 is
  intended to follow the tract boundary between Tracts
  4104 and 4105, which is E. 52nd Street. There is a
  jog in the street, and a discrepancy in the city map.
  However, it appears that the ward boundary in the
  ordinance does follow the correct tract boundary and
  that the tract boundary plotted on the map is in
    2. There is another boundary error on the map
  between Wards 1 and 11. All of Tract 6003 is in Ward
  11; the map erroneously shows part in Ward 1.
    3. In the supporting population data supplied by
  the City (Exhibit F) and particularly relating to
  Ward 24, census tract number 2922 containing a
  population of 7,911 was erroneously omitted from the
  supporting data. This tract is correctly contained on
  the map and in the ordinance itself, however, and the
  error seems merely a clerical one.
    4. In numerous other instances, tract boundaries
  are not correctly placed on the City's map. (E.G. see
  tract boundary between Tracts 7605 and 1705, which is
  slightly east of the proper location.) These errors
  result only from overprinting and the written
  descriptions contained in the ordinance itself ...

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