The opinion of the court was delivered by: GRADY
JOHN F. GRADY, CHIEF UNITED STATES DISTRICT JUDGE
Defendants have moved for summary judgment on the ground that plaintiffs are unable to satisfy one of the "preconditions" established by the Supreme Court in Thornburg v. Gingles, 478 U.S. 30, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986), for a vote dilution claim under Section 2 et seq. of the Voting Rights Act of 1965. We grant the motion.
The plaintiffs in this case are two separate classes, one consisting of all black citizens of voting age in Cook County, Illinois, and the other consisting of all Hispanic citizens of voting age in Cook County, Illinois. Plaintiffs claim that, because of certain characteristics of the electoral process in Cook County, they usually are unable to elect candidates of their choice to positions on the Circuit Court of Cook County, the Illinois Appellate Court, and the Illinois Supreme Court. The allegations of the original complaint were understood by this court to mean that, due to white bloc voting, the candidates for whom plaintiffs vote in judicial elections usually lose. That allegation was made explicit in the third amended complaint (para. 21, p. 10). What prompts defendants' summary judgment motion is that this allegation is not true. Defendants have amply demonstrated in the materials presented in support of their motion that, instead of usually losing, the candidates for whom the class of black plaintiffs has voted in elections for the circuit and appellate courts have won more often than not. Plaintiffs have submitted no data as to the success of the candidates for whom blacks have voted in Supreme Court contests. They have submitted incomplete data concerning the success of judicial candidates for whom members of the Hispanic class have voted.
Plaintiffs have submitted a number of affidavits and other materials in support of these contentions. Defendants argue with plaintiffs' conclusions, but plaintiffs clearly have raised genuine issues of fact concerning the exclusionary effect of the slate-making and appointive processes.
The question that remains is whether those issues are material to the outcome of the case.
Section 2 of the Voting Rights Act of 1965, as amended in 1982, provides:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
A literal reading of the statutory language would lead to the conclusion that plaintiffs have a case. The slating and appointment procedures
described by plaintiffs would seem to qualify as ". . . political processes leading to nomination or election" that are "not equally open to participation" by the plaintiffs, within the meaning of subsection (b) of the statute.
Defendants argue that the Voting Rights Act does not reach slate-making, because that is a purely private activity of the Democratic Party and the Act applies only to state action. Reply Br., p. 14. The scope of the Act is not so narrow. It may be true that a political party is not subject to the Act, but that does not bar relief from the results of private discrimination to the extent they infect the electoral process. See, e.g., Velasquez v. City of Abilene, Tex., 725 F.2d 1017, 1019, 1022 (5th Cir. 1984); Citizens for a Better Gretna v. City of Gretna, La., 834 F.2d 496, 499 (5th Cir. 1987). See also White v. Regester, 412 U.S. 755, 766-67, 93 S. Ct. 2332, 37 L. Ed. 2d 314 (1973) (case brought directly under the Constitution).
In amending Section 2 of the Voting Rights Act in 1982, Congress intended to eliminate the "intent" requirement that had been imposed by the Supreme Court in City of Mobile v. Bolden, 446 U.S. 55, 64 L. Ed. 2d 47, 100 S. Ct. 1490 (1980), and return to the "results" test that had been the law before Bolden. Under the latter test, the courts considered a variety of factors in determining whether a challenged election procedure diluted the voting strength of minority groups. The Senate Report on the 1982 amendment listed a ...