Fairchild, Cummings and Stevens, Circuit Judges. Stevens, Circuit Judge (dissenting).
FAIRCHILD, Circuit Judge.
On November 6, 1970 the city council, Chicago's legislative body, enacted a redistricting ordinance dividing Chicago into fifty wards. The city council is composed of aldermen, one elected from each ward for a four year term. Aldermen were elected February 23, 1971, under the redistricting ordinance, and are now serving. Plaintiffs in this case challenge the validity of the ordinance on the grounds that it embodies racial and political gerrymandering in violation of federally protected rights and that the wards are not compact, as required by an Illinois statute, S.H.A. ch. 24, § 21-36. The action was begun and decided in the district court, and an appeal taken, before the February 23, 1971 election.
I. History of the litigation.
Litigation seeking redistricting of Chicago began in 1966. Plaintiffs Sherman H. Skolnick and others challenged the districts as drawn in the 1961 ordinance for deviation from one person-one vote standards. In 1968 the district court found deviations in terms of the 1960 census to an impermissible degree, enjoined further general elections under the 1961 ordinance and required a new districting ordinance, based on 1970 census figures, to be enacted and filed by November, 1970. Except for one modification, advancing the deadline and no longer significant, this court affirmed.*fn1
On November 14, 1970, after hearing, the district court held the November 6, 1970 ordinance constitutional.*fn2
On appeal, this court affirmed, but limited our affirmance to rejection of the claim that the districts did not yet come close enough to exact equality of population. In an unreported order, entered December 14, 1970, we said:
"We conclude that, considering the ordinance from the point of view of mathematical precision alone, the district court's decision that the ordinance fulfills the required standards (Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506, and Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519), is to be affirmed.
"The appellants and the Chicago Bar Association assert that as late as the hearing date the district judge should have permitted the filing of an amended complaint and should have permitted several aldermen to realign themselves as plaintiffs and other Chicagoans to become plaintiffs. These parties claim in substance that notwithstanding the close approximation to precise equality of the wards presented by the ordinance, the ordinance is invalid by reason of alleged gerrymandering which could dilute the voting strength of racial, political and religious groupings of people. Although the district court on its own motion gave some thought to whether this might be true and concluded after examining offers of proof that there was 'no evidence' of racial and 'no substantial evidence' of political gerrymandering, it cannot be said that the claims of gerrymandering advanced by the appellants were fully litigated or decided on their merits.
"Since these claims were not fully litigated by the parties and since some parties appear to interpret the judgment as deciding them, we consider it appropriate to declare expressly in this order that consideration of the gerrymandering issue has not been foreclosed by the district court's judgment, which we now affirm, and that appellants or others are free to file a new action if they wish to pursue this issue."
On December 22, 1970 plaintiffs filed the complaint in the present case. The February 23 election was imminent, and the district court commendably expedited the case. Hearings began December 29, 1970 and continued, with necessary interruptions, through January 18, 1971. On January 22 the district court filed findings, conclusions, and judgment in favor of defendants. Cousins v. City Council of City of Chicago, 322 F. Supp. 428 (N.D.Ill.1971).
Plaintiffs appealed. We denied their motion to enjoin the election, noting among other things that "the election will not defeat or impair our appellate jurisdiction; should appellants prevail, we would have power to order prompt redistricting and a new election; . . . indeed, it is manifest that the ward boundaries established by the ordinance under attack are to be preferred to the prior boundaries which would be preserved by an injunction."
The complaint alleges that the 1970 ward boundaries operate to dilute the votes and voting strength of important elements of the voting population of Chicago, specifically black voters, voters of Latin-American origin or ancestry, and independent voters; that such dilution was accomplished by drawing unnecessarily irregular ward boundaries and creating wards not compact; that boundaries were drawn as a gerrymander with intent to discriminate against black, Latin-American, and independent voters, and candidates whom they would support; that the wards are not composed of compact territory as required by state law. The gist of the claims as developed at trial and in argument is that the boundaries were drawn so as to minimize the number of wards in which the majority would be black, or would be so-called independent voters, and to avoid having any ward in which the majority would be Puerto Rican.
Thirteen plaintiffs are individuals, residents and voters within the city. Five were aldermen who voted against the 1970 districting ordinance. Seven are black and one Puerto Rican. At least ten are so-called independent voters. Party designations do not appear on the ballot, but party organizations often endorse candidates. Plaintiffs refer to independent voters as those who "have frequently voted for and actively supported independent candidates for public office, meaning candidates who are not the candidates of any political party."
Two plaintiffs are unincorporated associations: Independent Voters of Illinois, a statewide organization committed to the advancement of independent politics, including the support of independent candidates in Chicago, and Committee for an Effective City Council, committed to the advancement of independent politics in relation to the city council of Chicago.
III. The districting created by the ordinance.
Printed as part of the opinion is an outline map of Chicago, showing ward boundaries according to the 1970 ordinance
The total population of Chicago, shown by the 1970 census at the time the ordinance was enacted (later revised) was 3,329,090. Thus the goal was to draw wards each containing 1/50 of that number, or 66,582. The result very closely approached that goal.
The map shows that the shapes of wards are far from perfect geometric symmetry. Wards are required, by an Illinois statute, to "be composed of contiguous and compact territory."*fn3 In our view there are a number of reasons why perfect symmetry in outline can not be achieved or closely approached.
The eastern boundary of the city is, for the most part, the curving shore of Lake Michigan. The other boundaries have substantial irregularities. One north-south dimension is over 26 miles, and one east-west dimension in the central portion less than 7. Within the external boundaries are various natural and man-made barriers and substantial areas without resident population, such as Lake Calumet, rivers, expressways, parks, railroads, and concentrations of industry, all of which could have a bearing on whether a particular ward structure reasonably met the compact territory requirement. Census tracts, which were largely relied upon in the process of districting, vary considerably in area, shape, and number of residents.
In considering the plaintiffs' claim, founded on state law, that the wards are not compact, we look for guidance to the Supreme Court of Illinois. In dealing with a requirement that senatorial districts be formed of compact territory, it has said: "There is a vast difference between determining whether the principle of compactness of territory has been applied at all or not, and whether or not the nearest practical approximation to perfect compactness has been attained. The first is a question which the courts may finally determine; the latter is for the legislature."*fn4 Notwithstanding the irregularities in outline of wards, we could not determine from the present record, if it were our place to do so, that the principle of compactness was not applied at all.
Nonetheless, it is our view that when other facts point to a probability that there has been invidious discrimination in drawing ward lines, deviations from maximum compactness may be considered along with these other facts in determining whether such discrimination (violating federal rights) has occurred.
At the time of trial, 1970 census figures on racial composition of census tracts were not available, and the evidence at trial tending to show where black people and people of Puerto Rican origin live and the percentage they constituted in various wards was testimony of witnesses, based on various studies. On appeal, we have permitted the parties to file copies of "Racial Composition of Census Tracts, 1970 Census Data" and computations therefrom showing the percentage of the population of each ward which is negro. Using these figures (which to a considerable degree substantiate the estimates made at trial) the following propositions appear:
There are 15 wards in which a majority of the residents are negro.
There are 13 of those wards in each of which more than 75% of the residents are negro. These wards are in two areas of the city. The 2d ward (91.9% negro) is just south of the downtown business "Loop" area and the 3d (99.0%), 4th (91.1%), 16th (95.3%), 20th (97.4%), 17th (97.6%), 6th (97.3%), 8th (77.8%), and 21st (86.4%) string out toward the south. The 27th ward (89.8%) is just northwest of the "Loop" and the 28th (83.5%), 29th (88.6%), and 24th (98.6%) are west and southwest of the 27th.
The eleven wards bordering the south side group have the following percentages of negroes: 1st, which also borders the west side group (35.8%); 5th (57.5%); 7th (26.9%); 10th (9.2%); 9th (28.3%); 34th (66.3%); 19th (2.2%); 18th (28.2%); 15th (8.3%); 14th (6.2%); and 11th (11.3%).
The six wards (other than the 1st) bordering the west side group have the following percentages of negroes: 42d (39.2%); 26th (4.7%); 31st (1.4%); 37th (12.5%); 22d (23.4%); and 25th (36.3%).
The largest percentage of negroes for any of the other 20 wards is 5.3%.
Plaintiffs contend that if the lines had been drawn with indifference to the color of the residents, there would have been more wards with a majority of black people.
Testimony at trial tended to show that there are about 80,000 city residents of Puerto Rican origin, most of whom live in the 26th, 31st, and 33rd wards. As the wards were drawn the Puerto Ricans are a substantial minority in each (40-45% in the 26th, 30-35% in the 31st and 25-30% in the 33rd). The claim is that had the wards been drawn differently, Puerto Ricans might have had a majority in one or possibly two.
Plaintiffs produced evidence which they claim tended to show that the voters they refer to as independent live in certain areas and that the ward lines might have been drawn so as to give them a majority in more wards.
IV. The drawing of the 1970 ward map.
Alderman Thomas E. Keane was chairman of a subcommittee of the Council's Committee on Committees and Rules. The subcommittee conducted public hearings from October 13 to November 4, 1970, with Alderman Keane presiding. On November 5 the full committee adopted the ward map reported by the subcommittee, and on November 6 the council enacted the districting in the form of an ordinance.
At the public proceeding before the subcommittee, Alderman Keane worked from a city map showing census tracts. In selecting territory for a ward, he would announce the number of a census tract. Then its population would be announced. Clerks kept a running total for that ward until it reached approximately the ideal one-fiftieth of the city's population. Adjustments were made from time to time, either by shifting census tracts between wards or by dividing them and assigning constituent enumeration districts to different wards. Defendants contend that selection of areas for inclusion in any ward was motivated only by considerations of contiguity, compactness, and obtaining a total population for each ward as close as possible to the ideal.
Plaintiffs discovered during the trial, and produced proof, that an earlier and confidential version of a proposed ward map had been prepared in the latter half of September with Alderman Keane's knowledge and approval. Census figures first became available September 10, though subjected to recalculation from time to time thereafter. The earlier map was prepared in the library of Alderman Keane's law office, across the street from the city hall, by city employee Edwin Bell and three university student interns who were paid by the city for this particular project. Although the district court found that preparation of this map was "an academic exercise," we consider the finding clearly erroneous, and that such preparation was at least a trial run for the process later conducted at public hearings. It is important because certain conversations in the course of its preparation showed that race was at least thought about in connection with particular ward lines. A lack of candor concerning the existence and purpose of the Bell-student map detracts nothing from the weight of such evidence.
Mr. Bell was deputy chief administrative officer for the Council Committee on Finance, of which Alderman Keane was chairman. Bell was also a lecturer at the University of Illinois Circle Campus. During the spring of 1970, Mr. Bell and Professor Murray of the same university, with the approval of Alderman Keane, had planned a City Council Urban Intern Program, to begin in the fall term, 1970. Three students were selected. On June 29, Alderman Keane had written to the chairman of the department of political science about "the possible appointment of one or more graduate students as legislative interns attached to the Committee on Finance.
"I would be pleased to have one or more of your students perform as interns under the direction of Mr. Bell and Dr. Murray. It is understood that these students will perform those research projects and other tasks which are assigned to them by members of my staff."
In early September, 1970, the remapping subcommittee, of which Alderman Keane was chairman, was appointed. At that time the court-imposed deadline for enactment of a redistricting ordinance was October 1. Although census figures had been expected by August 1, they were not yet available, but became so (though subject to further revision) September 10. About September 8, after obtaining the approval of Alderman Keane, Bell contacted Murray, and talked again on the 11th. Bell told Murray that the city was engaged in a problem of redistricting, had to get the project finished under a certain time pressure, and that this would be a good project to introduce the students to the internship program. Murray telephoned or telegraphed the students and told them to report to Bell. They worked from about September 17 to about October 1.
The work was done in the library of the law office of Alderman Keane, Alderman Wigoda, and their associates. Alderman Keane was in and out and conversed with or in the presence of the student interns. The procedure was similar to that which Alderman Keane later followed in the public hearings, with Bell selecting census tracts for inclusion in a ward, and the student interns performing the clerical tasks of tallying and adding.
Mr. Taylor, one of the student interns, testified that Alderman Keane as well as Mr. Bell told them about the importance of redrawing the map, the opportunity they would have to learn something, and that they should not say anything to anybody else; that Bell said that Alderman Wigoda wanted to get rid of certain areas in his ward, but after the lines were drawn the alderman pointed out that they had also cut out one of his favorite precincts, and they restored it; that a committeeman in another ward had sent in notes as to how he wanted his ward drawn; that they worked on the wards around the rim and then inwardly but there were two which were drawn ahead of their turn, Alderman Keane's 31st, and Mayor Daley's 11th.
Another student intern, Mr. Kazemek, testified that Bell told them they would be involved in drawing a new ward map for the city; that on one occasion Alderman Keane remarked that "if Alderman Despres were left out of his ward with the redrawing he would scream and holler;" that at the same time Alderman Keane said that regardless of what the map looks like everyone would accuse him of gerrymandering; that at one time Alderman Keane pointed to his own 31st ward and said "That's the key;" that another alderman came in, looked at his ward, and talked to Mr. Bell about it; that Bell told the student interns, "we're trying to have it finished by October 1."
Mrs. Eme, the third student intern testified that they were instructed to make the wards as compact as possible and to try to keep all aldermen and committeemen in their wards; that they had lists of addresses of both (which were produced in court); that one day they noticed they had left Alderman Despres out of his ward and Bell redrew the line; that later when Alderman Keane came in he was told of this and laughed and made the remark about a lot of hollering; that Alderman Keane had looked at his own ward; that Alderman Wigoda commented about their leaving out one of his good precincts.
The student interns received regular stipends from the university during the academic year and worked on other internship projects after October 1st. The city also paid them for the time they worked on the map, but not for their other work.
The census office changed the figures on several occasions while Bell and the student interns were working, and the breakdown into enumeration districts (census units smaller than tracts) never became available to them.
On September 25, 1970, the city applied to the district court in the Skolnick case for an extension of the deadline to November 10, pointing out that there were still discrepancies in tract figures requiring recalculation and that enumeration district figures would be required in order to divide tracts. On October 2, the extension was granted. Alderman Despres petitioned this court for a writ of mandamus, which was denied. In the petition filed October 6, it was presciently suggested that the city must already have prepared a reapportionment plan. The city's response was that the suggestion was made of "evanescent stuff."
It is true that the Bell-student map did not reach the mathematical precision later reached by the ordinance, but Bell and the student interns worked with such figures as were available at the time, and while the October 1 deadline was still in force.
Alderman Keane never testified concerning the Bell-student map. Plaintiffs took his deposition for discovery purposes before they knew about it. Although he was emphatic that the map he used at the public hearings was the only map he used, he did not volunteer the facts about the Bell-student map in answers where such disclosure would have been appropriate. His deposition, though taken for discovery, was offered by defendants and received over plaintiffs' objection. He was not called to testify at trial.
Defendants called Mr. Bell, who corroborated much of the student interns' testimony. He testified, however, that the project was an academic project and that Alderman Keane's comments when he saw the work were "Grandfatherly." He testified "The value to be gained [by the students] from the ward map that they drew would come out in terms of the changes in population, in terms of numbers, in terms of the shift in populations. They would see what the configuration of the city looked like."
He also testified that the student interns performed a clerical function, and therefore the project was a failure as an academic program. He explained, "When I devised the project, the project, of course, was to be a total involvement project on the part of the interns and myself, and I was to serve as a gatekeeper, more or less, in the performance of the redistribution of the wards. What it ended up with was very close to something that I think most fathers are familiar with when they buy their children a railroad train. They set it up in the livingroom, and they never give the transformer, but they let the kids stand by and watch while the train runs around the track."
Professor Murray testified that he had seen Mr. Bell on January 6 shortly after defendants learned that plaintiffs were in touch with or had subpoenaed the students. Mr. Bell "appeared to be quite shaken." With respect to the character of the map as an academic project, "Mr. Bell, to the best of my recollection, stated that that would be a difficult position to take. I am not sure whether he used ...