plan, nor the plan itself, contravene federal constitutional
provisions. Our reasons for this conclusion are hereinafter set
In regard to the federal constitutional questions, the
plaintiffs have clearly stated a claim upon which relief can be
granted insofar as they have placed in issue the question of
substantially equal population for the 59 legislative districts.
"The Equal Protection Clause demands no less than substantially
equal state legislative representation for all citizens, of all
places as well as of all races." Reynolds v. Sims, 377 U.S. 533,
568, 84 S.Ct. 1362, 1385, 12 L.Ed.2d 506 (1964).
While most of the plaintiffs referred in a general way to
population disparity, the Evanston plaintiffs specifically
alleged substantial disparity between Districts 2 and 3.
The Legislative Redistricting Commission filed its August 7
plan mainly in terms of counties, townships, cities and villages
in the less populous areas of the state but in Cook County and
the metropolitan Chicago area principally in terms of census
tracts and with some legal descriptions.
On November 5, 1971, the commission filed with the Secretary of
State "notice of correction of typographical errors" in the
August 7 plan, making corrections in four of the 59 districts,
namely District Nos. 2, 3, 32 and 33. This court has carefully
examined the original plan as it pertains to these districts, has
compared the original descriptions with the corrected
descriptions and concludes that the four corrections were bona
fide "typographical errors" and not post-plan attempts to cure
the disparity first disclosed by the Evanston plaintiffs. This
conclusion is buttressed by the fact that the August 7 plan
resulted in near-absolute population equality for the uncorrected
55 districts and, after correction, the remaining four districts
fit closely into the same pattern.
The plaintiffs had just complaint in criticizing the commission
for failure promptly to make the corrections or expeditiously to
produce an actual map, exact legal descriptions of the districts
and district population figures based on the August 7 plan. The
court was subsequently furnished by the commission with certified
copies of (1) legal descriptions, representing a conversion from
census tract boundaries, of all districts, making them more
readily identifiable, which descriptions were filed with the
Secretary of State on November 9, 1971; (2) population figures
for each district filed with the Secretary of State on November
17, 1971; (3) a map showing the 30 legislative districts in or
including a part of Cook County; and (4) a map showing the 29
districts in the balance of the state.
The population figures now officially filed have not been
challenged. They indicate a scrupulous regard for equality of
population as required by federal constitutional standards and
coincidentally by the Illinois constitutional provision that
legislative districts "shall be . . substantially equal in
population" (Art. IV, § 3(a)).
An average district would contain 188,372 persons. The largest
district in the August 7 plan contains 189,905 persons, a
percentage deviation of 0.81 percent. The smallest district
contains 187,310 persons, a percentage deviation of 0.56 percent.
The range deviation is 1.37 percent. Professor Dixon in his
comprehensive analysis of the Supreme Court reapportionment cases
following Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d
501 (1967), concluded (Democratic Representation, at 446): "For
that matter, if special `justification' cannot be shown there is
no reason in terms of districting mechanics for permitting
maximum deviations of one percent (or `ranges' of two percent)."
The August 7 plan conforms to those strict population-equality
On the basis of population, the August 7 plan is constitutional
standards. Since the plaintiffs were given the opportunity to
file opposing affidavits in regard to population and the
certified figures were not challenged, there is no genuine issue
as to the material population facts. Following the procedures of
Rules 12(b)(6) and 56, Fed.R.Civ.P., we find the defendants are
entitled to a partial summary judgment on that issue.
There remains for consideration whether the plaintiffs have
stated any other claim for relief which, if proved, would render
the August 7 plan federally unconstitutional.
Undoubtedly the most appealing and facially logical argument is
that, in the context of the four municipalities' complaints,
their cohesive electorates have been splintered and somehow
partially disenfranchised by the ignoring of traditional
political boundaries, and, in the context of the IVI complaint,
that independent voters have been disenfranchised. The two
concepts are distinct but their analysis depends to a certain
extent upon common history, principles and cases.
In Swann v. Adams, 385 U.S. 440, 444, 87 S.Ct. 569, 17 L.Ed.2d
501 (1967), a state (Florida) legislative reapportionment case,
the Court held that no population deviations other than de
minimis deviations are permissible unless special justification
"grounded on acceptable state policy" be shown.
Professor Dixon has commented (Democratic Representation, at
446): "De minimis deviations in district population equality
always can be brought to near-zero simply by ignoring traditional
political subdivision lines and using census tracts as the sole
building blocks for legislative districts. Further, it is
difficult to articulate community of interest factors with any
precision as possible justifications for particular deviations,
even if such factors are included within the Court's undefined
`acceptable state policy' phrase."
In Kilgarlin v. Hill, 386 U.S. 120, 122-23, 87 S.Ct. 820, 822,
17 L.Ed.2d 771 (1967), the Court overruled a district court's
upholding of a Texas legislative reapportionment plan with
significant population deviations although the state plan was
found by the district court to be "a bona fide attempt to conform
to the state policy requiring legislative apportionment plans to
respect county boundaries whenever possible."
Near-absolute equality was demanded in the two Congressional
redistricting cases of Kirkpatrick v. Preisler, 394 U.S. 526, 89
S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller,
394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969). In Kirkpatrick,
the Court said at 533 of 394 U.S., at 1230 of 89 S.Ct.:
"Missouri contends that variances were necessary to
avoid fragmenting areas with distinct economic and
social interests and thereby diluting the effective
representation of those interests in Congress. But to
accept population variances, large or small, in order
to create districts with specific interest
orientations is antithetical to the basic premise of
the constitutional command to provide equal
representation for equal numbers of people."
The most recent reapportionment cases are Whitcomb v. Chavis,
403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) and Abate v.
Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971). Mr.
Justice Douglas in his dissent in Whitcomb characterizes the
Court's opinion as approving, in effect, racial gerrymandering
and perforce "gerrymandering of any special interest group . .
whether it be social, economic, or ideological." In any event it
is clear that the majority of the Court set aside the monumental
work of the three-judge court in drafting a court plan,
principally on the ground that the court "intruded upon state
policy" and because "[h]ere the District Court erred in so
broadly brushing aside state apportionment policy without solid
constitutional or equitable grounds for doing so."
The Supreme Court cases from Swann to the present time point to
a consistent majority principle despite the prolificacy of
concurring and dissenting opinions and the prodigious volume of
thought expressed by the Court: Near-absolute equality of
population must be observed in legislative redistricting unless
the state can justify deviations from equality for some
compelling reason of state policy; even then the justified
deviations must be relatively small. In the present cases, we are
confronted with a state plan with near-perfect equality. The
state is not seeking to justify any deviations, but citizens in
the state are seeking to nullify state policy as reflected in the
adopted plan and to substitute a court-drafted plan. Of the
myriad of court-drawn plans, seemingly without exception they
result only (1) when there is no state plan proffered by the
state legislature or some state agency or (2) when a
state-promulgated plan violates population equality. Even then
the court-drawn plan may not pass Supreme Court muster, as in
Whitcomb. In the present state of federal reapportionment law, it
is inconceivable that a state-sponsored plan with near-absolute
equality could be considered constitutionally infirm, with the
possible exception of one incorporating flagrant racial
gerrymandering (Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct.
125, 5 L.Ed.2d 110 (1960)). No racial inequality is alleged in
any of the complaints here.
Not only has the State of Illinois demonstrated its
apportionment policy by adopting the August 7 plan, but a search
of the proceedings of the recent Illinois constitutional
convention shows that the convention considered and rejected
county and municipal boundaries for redistricting when adopting
the Constitution itself.
The Abate case appears to afford some small comfort to the
municipalities by saying that "a desire to preserve the integrity
of political subdivisions may justify an apportionment plan which
departs from numerical equality." 403 U.S. at 185, 91 S.Ct. at
1907. But that case dealt with one county, the legislative body
of which was traditionally composed of the supervisors of each of
the county's five constituent towns, all of the supervisors
acting ex officio on the county board. There the county itself
sought to justify the population deviations and was successful.
The Supreme Court carefully distinguishes that case from
Congressional and state legislative cases. And finally, here the
state has presented a population-pure map and is not seeking to
justify any deviations.
The Whitcomb case also appears to dispose of the claim that
independent voters have been disenfranchised here so long as the
population numbers prove out. The real IVI complaint, however, is
that the delegation of the "legislative" power of reapportionment
to a commission is federally impermissible.
Professor Cooper has pointed out, citing many cases (1 State
Administrative Law 45 (1965)):
"The federal constitution does not require the
several states to observe in their internal
organization the limitations imposed by the
separation of powers doctrine. Neither the provision
of article IV, section 4, of the federal
constitution, providing that the United States shall
guarantee to every state a republican form of
government, nor the fourteenth amendment, has been
held to necessitate a rigid separation of powers.
"The separation of powers doctrine . . . affords an
obstacle to delegation of power to state agencies
only insofar as the constitution of a particular
state may require such separation." (footnotes
Some of the other plaintiffs contend that the appointment of
the members of the commission is federally invalid since
one-man-one-vote principles are ignored by such appointment.
The Supreme Court has held that a state may appoint officials
of a non-legislative nature without violating the equal
protection clause. Sailors v. Board of Education, 387 U.S. 105,
87 S.Ct. 1549,
18 L.Ed.2d 650 (1967). The only limitation is that the choice to
appoint may not in itself offend the constitution. Hadley v.
Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45
Some lower courts faced with this problem have relied on a
characterization of the agency. One-man-one-vote was not applied
to a state bar's board of commissioners, because the board's
powers were mainly "judicial." Sullivan v. Alabama State Bar,
295 F. Supp. 1216 (M.D.Ala. 1969). In an opinion with a narrow,
procedural holding but a broad tone, the Second Circuit intimated
that the appointive Board of Elections of New York City must be
made representative because of its legislative functions. Weiss
v. Duberstein, 445 F.2d 1297 (1971). Another court relied on both
the legislative powers and the elective nature of the "Quarterly
County Court" to apply one-man-one-vote. Hyden v. Baker,
286 F. Supp. 475 (M.D.Tenn. 1968).
Other courts have refused to apply the principle to appointive
bodies. Irish v. Democratic-Farmer-Labor Party, 399 F.2d 119 (8th
Cir. 1968); People ex rel. Younger v. El Dorado County, 5 Cal.3d 480,
96 Cal.Rptr. 553, 487 P.2d 1193 (1971). The court in the
latter case stated: "We think that any administrative-legislative
distinction in appointive offices should . . . be rejected. * * *
We think the true meaning of Sailors and Hadley is that the
legislative or administrative nature of the activities performed
by an officer is irrelevant; if the officer is elected, `one
person, one vote' applies. If he is appointed, the principle does
not apply." 96 Cal.Rptr. at 569, 487 P.2d at 1209.
Because the redistricting commission is appointive and
exercises a specialized legislative function, and does that only
when the legislature chooses to default, the challenges to the
federal validity of the Illinois Redistricting Commission must
fail. A variant of the challenges might be based on the clause in
Article IV, section 4, of the federal constitution that every
state is guaranteed a republican form of government. Whether a
republican form of government requires redistricting to be
performed by the legislature, however, is the kind of question
declared "political" in Luther v. Borden, 48 U.S. 1, 7 How. 1, 12
L.Ed. 581 (1849).
Even if it is considered that the reapportionment function is
wholly legislative, the discretion of the commission is
restricted by the standards enforced by the courts since Reynolds
v. Sims, as well as by the standards set by the Illinois
In reaching this conclusion, we are persuaded particularly by
the fact that about one-third of the states have assigned
legislative reapportionment outright to administrative agencies
or commissions. About one-half of these states have removed the
apportionment function completely from the legislature and the
remaining states provide, as does Illinois, for use of the
commission as a backstop in the event of legislative failure to
redistrict.*fn3 We have discovered no successful attempt to
invalidate any of these agencies, either on the basis of
unconstitutional delegation of power or violation of
one-man-one-vote principles. Furthermore, between 1901 and 1971,
the Illinois General Assembly has come forward with only one
legislative redistricting map under which an election has been
held.*fn4 For 70 years and
35 general elections, the legislature has reapportioned itself
only once. Nor is the judiciary commonly considered the most
expert body to fix state legislative lines.
If every minority or other identifiable group demanded
representation on the commission, it would necessarily become as
large as the legislature (Carter v. Jury Commission,
396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970)) and probably would be
as ineffective as the legislature has proved to be in
Professor Dixon's testimony of February 18, 1970 before the
Legislative Commission of the Illinois Constitutional Convention
is enlightening in this regard. He suggested that:
". . . the function of state legislative
apportionment . . . [should be transferred] to a
bipartisan Commission with tie breaker (emphasis
his). By this device you would build both political
realism and fairness into the basic districting
pattern from which legislators are elected . . . The
apportionment-districting task calls for
philosophers-kings, but they are notoriously in short
supply. We need to create some process for avoiding
one-sided partisanship at the outset of
redistricting, while preserving political realism.
The answer is the bipartisan commission. . . ."
In Reynolds v. Sims, the Supreme Court made passing mention of
compactness and contiguity but very little attention has been
given to those concepts in the ensuing years. Suffice it to say
there are no noncontiguous districts or enclaves in the August 7
plan. Obviously, as population equality approaches perfection,
the concept of compactness must suffer.
The Skokie plaintiffs have provided an example of how this
operates. They engaged the services of a private agency to
prepare a map "wherein said legislative districts would be
contiguous, compact, of substantially equal population and taking
into regard traditional political boundary lines." The result was
that every city or village within Cook County, outside of
Chicago, was wholly contained within one legislative district.
The population deviations were from minus 3.8 percent to plus 4.1
percent or a range deviation of almost 8 percent, as opposed to
less than 1.5 percent in the August 7 plan. In addition, the plan
provides less representation per person in every district outside
of Cook County and more representation per person in every
district in Cook County. It is doubtful whether the alternative
plan could pass federal constitutional muster even if it was
proffered by the state itself and purported to represent state
Finally, our analysis of gerrymandering applies to compactness
and we must conclude that in a near-absolute equality map these
other factors pale into insignificance.
We conclude that, except for the population issue, the
plaintiffs have failed to state a justiciable federal claim.
We express our appreciation to Chief Justice Underwood and the
other members of the Illinois Supreme Court for their cooperation
in accomplishing an expeditious resolution of these problems.