Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. 70 C 3202. THOMAS R. McMILLEN, Judge.
Fairchild, Cummings and Stevens, Circuit Judges. Stevens, Circuit Judge, concurring.
FAIRCHILD, Circuit Judge.
This action challenging the validity of the 1970 reapportionment of Chicago's aldermanic wards on the grounds of racial and ethnic gerrymandering is here again on appeal from the judgment following the second trial. Many of the pertinent facts (including the 1970 map of Chicago's wards) are set out in our earlier opinion (reversing and remanding the case for further proceedings) and will not be repeated here. Cousins v. City Council of City of Chicago, 466 F.2d 830 (7th Cir. 1972), cert. denied 409 U.S. 893, 34 L. Ed. 2d 151, 93 S. Ct. 85.
On retrial the district court found that the evidence fails to establish that the boundaries of any of the wards except the 7th are the product of purposeful or invidious racial or ethnic discrimination. The court found that defendants intended to change what they believed was a black majority in the 1961 7th ward into an overwhelmingly white majority. To correct the 7th ward situation, the court deemed it sufficient to redraw the boundary between the 7th and 8th wards so that each had a majority of black residents of approximately 52%, and ordered a special election November 27, 1973 in the modified 7th ward. Taxable costs were awarded to plaintiffs, but all other relief sought by them was denied. The special election was held and the person elected is serving.
Plaintiffs appealed from the judgment, except for specified portions including those with respect to the 7th and 8th wards, and they appealed from a supplemental order denying them attorney's fees. Defendants cross appealed from described portions of the judgment, including those affecting the 7th and 8th wards.
At the second trial much of the evidence from the first trial was reintroduced. The most important additions were the second deposition of Alderman Keane and a sample ward map, offered by plaintiffs and referred to as the Singer map. Mr. Rubin Singer prepared this map using the figures available when the subcommittee had drawn the 1970 map, achieving equality of population within the same narrow limits as the subcommittee, maintaining contiguity, and making the wards as compact, i.e., as nearly square, as possible. He did not take into account the location of black or Spanish-language people.
In our earlier opinion, we stated that although no minority racial or ethnic group is entitled to have any particular voting strength reflected in the city council, "such strength must not be purposefully minimized on account of . . . race or ethnic origin." 466 F.2d at 843. The district court was satisfied that, except for the 7th ward, the proof did not establish purposeful minimization. In examining whether its findings were clearly erroneous (mindful of our duty of specially close scrutiny, 466 F.2d at 837), we shall first consider the overall result of 15 black majority wards in the 1970 map, and any evidence that this number instead of a greater one was the result of a purpose to minimize black voting strength. We shall then examine the evidence with respect to the choice of ward lines in particular regions pointed out by plaintiffs and considered by the district court. Finally we will focus on the ward boundaries claimed to be gerrymandered to the detriment of Puerto Ricans and the Spanish-language group.
I. The possibility of drawing the inference of purposeful minimization from the overall result.
In our earlier opinion, we indicated that plaintiffs had fallen short of producing sufficient persuasive circumstantial proof that the ward boundaries were the result of purposeful discrimination.*fn1 We suggested that a demonstration that one or more maps could be drawn, "following an objective standard, rationally related to redistricting and indifferent to race" producing greater voting strength for minority groups, would be persuasive. 466 F.2d at 843. The only map introduced pursuant to this suggestion was the Singer map. Defendants note that the mapmaker is a "partisan,"*fn2 but do not otherwise make any claim that the map is not objective or that it is defective.
In their arguments before the district court on remand and before us, the parties utilized the Singer map primarily to aid in their analysis of particular regions. At this point, we shall inquire whether the 1970 districting map, when evaluated in comparison with a racially neutral districting plan shows such difference as to be itself a basis (or perhaps one basis in conjunction with others) for inferring a purposeful minimization of the voting strength of the racial minority.
A table is set out in the margin comparing the number of wards created by the Singer map and the 1970 map with given percentages of black population.*fn3 At the outset we note as argued by plaintiffs that the Singer map created 16 black majority wards (out of a total of 50 wards) while the 1970 map*fn4 produces only 15 black majority wards. Looking further, and assuming that there is probably enough political strength in a 35% minority to be significant for our present purpose, we have compared the number of wards with 35% or more black population under the 1970 map and the Singer map. There are 19 such wards under the Singer map and 18 under the 1970 map.
The record contains considerable evidence that Alderman Keane was aware of the racial compositions of various areas of the city, and that the choices of some particular ward lines were motivated by that consideration.*fn5 It is difficult to say that the differences between the number of wards with certain percentages of black residents in the 1970 map and in the Singer map are sufficient to be highly persuasive that there was purposeful minimization of black voting strength in the 1970 map, and even in the light of the evidence of awareness of race and consideration thereof by Keane, it is our judgment that the finding of the district court is not clearly erroneous.
II. Evidence as to specific boundaries.
On remand, the parties and trial court focused on the extent to which racial considerations might have affected ward boundaries in particular regions of the city. We now review the results of this approach.*fn6
A. The 7th and 8th wards.
Defendants cross-appeal from the district court's order modifying the boundaries of the 7th and 8th wards to eliminate invidious discrimination.*fn7
At the outset the controversy on appeal concerning the 7th ward is not moot even though the election has been held in the modified 7th ward. If there were to be no redistricting in 1974, the present ward boundaries would apply in the elections in 1975 and 1979. Although the city council has adopted a resolution directing the preparation of a new redistricting ordinance to govern the 1975 election,*fn8 a new ordinance has not yet been enacted. Plaintiffs also represent that the subcommittee designated to prepare the new districting has requested a city department to prepare a new plan based upon the shape and location of wards in the 1970 ordinance.
In reviewing the district court finding of purposeful discrimination in drawing the 7th ward boundaries, it is convenient to consider two distinct stages of the formulation of the 7th ward as constituted in the 1970 ordinance: first the changes in formulation leading to the final Bell-student map, and, second, the changes which occurred during the subcommittee proceedings.
(1) Comparison of the 1961 map with the final Bell-student map.
A rectangular appendage of the L-shaped 9th ward occupied the southeastern corner of Chicago on the 1961 map. The main portion of ward 9 extended north from the southern city limit and west of ward 10; the appendage extended eastward to the Indiana state line and lay south of the 10th ward. Student intern Taylor's uncontroverted testimony is that the eastern appendage of the 9th ward was eliminated in the drafting of the Bell-student map in order to achieve compactness. The new 10th ...