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October 11, 1973


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


Plaintiffs have brought this action under 42 U.S.C. § 1983 seeking reapportionment of the membership of the Board of Commissioners of Cook County (the County Board). As presently constituted, the membership of the County Board overrepresents citizens residing in the City of Chicago, and underrepresents citizens residing in that portion of Cook County lying outside the city limits. The resulting dilution of suburban votes is alleged to constitute a violation of those citizens' rights to equal protection of the laws guaranteed by the Fourteenth Amendment. Both parties agree that there is no disputed issue of material fact, have submitted a stipulation of adjusted population figures, and have moved for the entry of summary judgment. For the reasons set out below, summary judgment will be entered in favor of the plaintiffs.


The facts of this case are easily stated. Historically, the County Board has consisted of fifteen members, ten of whom are elected from the City of Chicago (the City), and five of whom are elected from suburban Cook County (the Suburbs). This distribution gives the City electorate 66.67% of the voting power on the Board, and the Suburban electorate 33.33%. In contrast, the population distribution between the two districts, based on the adjusted 1970 Census Bureau figures for Illinois,*fn1 reveals that the City's population of 3,514,868 is only 61.80% of the total while that of the Suburbs, 2,172,168, is 38.20%. The total disparity, computed by adding the City's over-apportionment to the Suburb's under-apportionment, is 9.74%. As discussed more fully below, these figures take into account and reflect the Census Bureau's own estimates of what per cent of white and black persons were undercounted in the 1970 census.*fn2

Looked at another way, each member of the Board elected by the City voters represents 351,487 persons, while each member elected by Suburban voters represents 434,434. This difference of 83,047 results in a dilution of the weight of a vote cast by suburban voters of 20% as compared with City voters.

The recently approved Illinois Constitution of 1970, S.H.A., contains a provision for, and mechanism whereby, the Board has the power to increase the number of its members beyond fifteen "if necessary to comply with apportionment requirements."*fn3 The Board, by a divided vote of 8-6 and one abstention, defeated a proposed ordinance to adjust the representation on the Board to 9 elected by the City voters and 6 elected by Suburban voters in light of the new census figures. Plaintiffs now seek a court order compelling the Board to reapportion itself either by reallocating the present membership on a 9 to 6 basis, or by increasing the membership to 16, 10 of whom would be elected by the City and 6 of whom would be elected by the Suburbs. This would result in giving the City voters 62.5% of the representation on the Board, and the Suburban voters 37.5%. Total variance would then be only 1.4% and would constitute the smallest feasible deviation.

Defendants respond by arguing that since no discrimination based on race or other judicially recognized discriminatory factor has been alleged, that the raw numerical disparities present here are not large enough to constitute a prima facie case of invidious discrimination so as to deprive plaintiffs of their right to equal protection of the law. They read the recent Supreme Court decisions in Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) and White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973) as precluding judicial intervention into state and local reapportionment questions unless the alleged numerical disparities are greater than 10%, absent an additional claim of racial or political discrimination.

We think defendants misinterpret the Supreme Court's rulings. Admittedly, the Court expressed concern over the amount of judicial time and effort being expended, perhaps fruitlessly, in the area of reapportionment, and stated:

  It is now time to recognize, . . . that minor
  deviations from mathematical equality among state
  legislative districts are insufficient to make a
  prima facie case of invidious discrimination
  under the Fourteenth Amendment so as to require
  justification by the State. 93 S.Ct. at 2327.

But this language cannot be taken out of the context of both previous Supreme Court decisions and the facts of the Gaffney and White cases themselves.

In the first place, the Supreme Court has consistently rejected the approach of setting a fixed, numerical or percentage deviance either small enough to be considered de minimis or large enough to guarantee a finding of invidiousness. See Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519, (1969). Nor did the Court retreat from this sound policy and embrace any such magical numbers in Gaffney or White. The discussions in those opinions of the various types of situations and factors to be considered and standards to be applied makes clear that the Court is once again reiterating a flexible approach depending on the particular set of circumstances of each case. All that Gaffney specifically holds is that federal courts are no longer required to entertain suits as a matter of course, challenging a state's apportionment whenever the raw population figures show any deviation from numerically ideal districts.

Gaffney involved the redistricting of the entire state of Connecticut for which several plans had been presented to the Court. Some provided closer numerical equality than others, but required greater destruction of historical political and governmental boundaries. Those which preserved the integrity of existing boundaries maintained or increased the numerical disparities, or affected traditional and recognized political balances. The Court's legitimate exasperation over getting "bogged down in a vast, intractable, apportionment slough," (93 S.Ct. at 2330), when the median deviations among the districts were only .47% for the state senate and 1.9% for the state house, was justified by its realistic appraisal that no plan would achieve perfection. In such a comprehensive restructuring, there are simply too many legitimate factors to be considered, many of which work at cross purposes. Given the uncertainty and importance of many other factors beyond the raw population figures alone, such as population trends and differences in age group and voter registration patterns, it would be naive to assume that "equality" of voting power among all districts was attainable. And, whichever plan was finally approved would have to be subject to continuing attack because it would still deviate from numerical equality.

Confronted with such an insoluble and unending problem, the Court held that when the redistricting of an entire state was involved, and only slight numerical deviations were present, a district court could, in essence, make a presumption at the outset that the numerical differences were the result of the numerous legitimate competing state interests, rather than arrive at this conclusion only after the long and tedious process of submission and analysis of various plans. Only when invidiousness based on factors other than numerical deviation, such as race, is alleged, or, when the numerical deviations are so great as to justify an inference that factors other than legitimate state interests are at work, should a court embark on the long road of inquiry into particular plans. The Court found a basis for making this kind of presumption in its earlier rulings that state legislative and local governmental reapportionments were held subject to a less stringent standard than that applied to Congressional redistricting. See e. g., Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973) and Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971).

This hardly forecloses, as defendants here argue, inquiry into anything other than numerical variances for the purposes of determining whether or not a claim has been stated in every case. The situation presented here is entirely different from those in Gaffney and White. First, this case involves only one county with only two divisions, not an entire State. The proposed plan requires no alteration whatsoever to any existing geographic, political or historic boundaries between them. Second, to the extent they are comparable, the numerical deviation involved here is much greater than that found in those cases.*fn4 Third, there are no other competing legitimate state interests to consider. Fourth, the fashioning of fair and effective relief, could ...

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