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HASTERT v. STATE BD. OF ELECTIONS

November 6, 1991

DENNIS J. HASTERT, HARRIS FAWELL, JOHN E. PORTER, PHILIP M. CRANE, HENRY J. HYDE, AND ROBERT H. MICHEL, Plaintiffs,
v.
STATE BOARD OF ELECTIONS, JOHN J. LANIGAN, THERESA M. PETRONE, RICHARD A. COWEN, LAWRENCE E. JOHNSON, DAVID E. MURRAY, LANGDON D. NEAL, WANDA L. REDNOUR, AND HANNELORE HUISMAN, Defendants. WILFREDO NIEVES, AL JOHNSON, LINDA D. CORONADO, BOBBY RUSH, JESUS GARCIA, REV. WILLIE BARROW, RAFAEL BORIA, MIGUEL DEL VALLE, ROBERT L. LUCAS, LEON D. FINNEY, JR., REV. CLAY EVANS, JOSEPH GARDNER, LUIS V. GUTIERREZ, REGNER SUAREZ, JOSEPH BERRIOS, MIGUEL A. SANTIAGO, NEOMI HERNANDEZ, Plaintiffs, v. ILLINOIS STATE BOARD OF ELECTION COMMISSIONERS, JOHN J. LANIGAN, THERESA M. PETRONE, RICHARD A. COWEN, HANNELORE HUISMAN, LAWRENCE E. JOHNSON, DAVID E. MURRAY, LANGDON D. NEAL, AND WANDA L. REDNOUR, Defendants. CARDISS COLLINS, CHARLES HAYES, REV. WILBUR N. DANIELS, REV. CLAUDE S. WYATT, HOWARD S. BROOKINS, DONALD L. WILLIAMS, PERCY GILES, AND RICKY HENDON, Plaintiffs, v. STATE BOARD OF ELECTIONS, JOHN J. LANIGAN, THERESA M. PETRONE, RICHARD A. COWEN, JOHN P. DAILEY, LAWRENCE E. JOHNSON, DAVID E. MURRAY, LANGDON D. NEAL, AND WANDA REDNOUR, Defendants. ANN ROSEBROOK, DARYL BARKLOW, AMIEL CUETO, RICHARD MARK, JEANELLE NORMAN, CAROLYN TONEY, LEE BABCOCK, RAYMOND OLIVER, BARBARA POSHARD, WILLIAM MATHEWS, GERALD HAWKINS, AND EVA SAVALA, Plaintiffs, v. STATE BOARD OF ELECTIONS, JOHN J. LANIGAN, THERESA M. PETRONE, RICHARD A. COWEN, LAWRENCE E. JOHNSON, DAVID E. MURRAY, LANGDON D. NEAL, WANDA L. REDNOUR, AND HANNELORE HUISMAN, Defendants. THE CHICAGO URBAN LEAGUE, CRAIG R. COLLINS, MARK ALLEN, AND NIKOLAS C. THEODORE, Plaintiffs, v. STATE BOARD OF ELECTIONS, JOHN J. LANIGAN, THERESA M. PETRONE, RICHARD A. COWEN, JOHN P. DAILEY, LAWRENCE E. JOHNSON, DAVID E. MURRAY, LANGDON D. NEAL, AND WANDA L. REDNOUR, Defendants


Kanne, Circuit Judge, Norgle, Circuit Judge, and Conlon, District Judge.


The opinion of the court was delivered by: CONLON

In these consolidated cases, the court is called upon to select a congressional redistricting plan for the State of Illinois. Following the tabulation of the 1990 decennial census, the Office of the Clerk of the United States House of Representatives informed the Governor of Illinois that Illinois is now entitled to only twenty representatives due to population changes reflected in the 1990 census. Illinois currently has twenty-two representatives. The Illinois General Assembly failed to undertake its constitutional obligation to devise a new congressional districting scheme for the state. Defendant Illinois State Board of Elections ("the Board") is presently bound to conduct the upcoming 1992 congressional elections under the terms of the 1981 congressional district plan implemented in In re Congressional Districts Reapportionment Cases, No. 81 C 3915, slip op. (N.D. Ill. Nov. 23, 1981), aff'd sub nom. Ryan v. Otto, 454 U.S. 1130, 71 L. Ed. 2d 284, 102 S. Ct. 985 (1982). Plaintiffs, various citizen-voters of the state of Illinois and certain of their congressional representatives, filed these actions seeking a declaration that the existing congressional district scheme is impracticable and, more importantly, unconstitutional because of population and demographic changes reflected in the 1990 decennial census. Plaintiffs also seek to enjoin the Board from conducting the upcoming 1992 Illinois congressional elections under the 1981 plan.

 The absence of a state-approved congressional redistricting plan has prompted certain of the plaintiffs to propose their own congressional redistricting plans in substitution of the existing plan. We conclude that the present congressional district plan is both unconstitutional and impracticable due to population and demographic changes represented in the 1990 census. We therefore proceed to analyze the competing congressional redistricting proposals submitted by the various plaintiffs under the relevant constitutional and legal goals and criteria enumerated by the Supreme Court.

 BACKGROUND

 I. General Background

 The results of the 1990 census, issued early in 1991, show that the population of the State of Illinois increased from 11,426,518 to 11,430,602 between 1980 and 1990, an increase of 4,084 or 0.0357%. The new census figures mandate a reduction in the number of congressional seats apportioned to Illinois from 22 to 20. This is so because the Illinois population increased in smaller proportion than the United States as a whole. *fn1"

 The release of the 1990 census data and the resulting reapportionment of congressional seats triggered the provisions of Article 4, § 3 of the Constitution of the State of Illinois, under which the Illinois General Assembly is charged with the obligation of implementing a constitutionally sound congressional redistricting plan by June 30, 1991. *fn2" The Illinois General Assembly failed to meet its constitutionally mandated June 30, 1991 deadline. Indeed, that legislative body did not bring any redistricting proposal to the floor for debate, much less a vote.

 II. PreTrial Proceedings

 The Republican Party members of the current Illinois congressional delegation filed the initial action on June 27, 1991. Hastert v. State Board of Elections, No. 91 C 4028. The Hastert plaintiffs seek a declaration of the unconstitutionality of the present congressional districts due to population changes reflected in the 1990 census and ask the court to enjoin the Board from conducting the 1992 congressional elections under the current congressional district plan. Additionally, the Hastert plaintiffs submit for court approval their own statewide redistricting proposal to replace the current plan. On July 3, 1991, the Chief Judge of the Seventh Circuit Court of Appeals convened this three-judge district court panel to hear the Hastert action, as required under 28 U.S.C. § 2284(a). *fn3"

 Also on July 3, 1991, a group of Hispanic and African-American resident-voters filed a similar action, styled Nieves v. Illinois State Board of Elections, No. 91 C 4154. In addition to seeking relief similar to that requested in the Hastert action, the Nieves plaintiffs seek the creation of an Hispanic majority congressional district which, they argue, is now mandated under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, because of demographic and population changes reflected in the 1990 census. To this end, the Nieves plaintiffs have submitted for court approval a proposed redistricting map for the minority districts in and around the City of Chicago. Upon subsequent motion by the Nieves plaintiffs, the Nieves action was consolidated with the Hastert action and assigned to this panel on July 17, 1991.

 On July 24, 1991, a group of resident voters from various Illinois congressional districts, ostensibly acting on behalf of certain Democratic Party members of the Illinois congressional delegation, filed their own action, styled Rosebrook v. State Board of Elections, No. 91 C 4656. The Rosebrook plaintiffs submitted a statewide redistricting proposal. On the same day, Representative Cardiss Collins of the 7th Congressional District and Representative Charles Hayes of the 1st Congressional District, as well as various resident-voters from their respective African-American majority districts, jointly filed an action similar to those filed by the Hastert and Nieves parties. Collins v. State Board of Elections, No. 91 C 4643. The Collins plaintiffs submitted a redistricting plan which, like the Nieves plaintiffs, solely concerns the configuration of the minority districts in and around the City of Chicago. The Rosebrook and Collins actions were subsequently consolidated with the Hastert and Nieves cases in August 1991.

 On July 31, 1991, this court ordered the publication of notice of these consolidated proceedings in daily newspapers in Alton, Belleville, Carbondale, Chicago, Rockford, and Springfield, Illinois. The published notice invited any person or group desiring to participate in the proceedings to file a petition to intervene by August 28, 1991. After consulting with the parties, the court scheduled the close of discovery for October 3, 1991. Trial was set on October 7, 1991.

 The court granted petitions to intervene filed by: Alvin Winkler, a resident of the 3rd Congressional District; Rep. Frank Annunzio, of the 11th Congressional District; Rep. Sidney R. Yates, of the 9th Congressional District; Rep. Augustus A. Savage, of the 2nd Congressional District; Michael Zalewski, a resident of the 3rd Congressional District; Johnny Scott and Ben Howard, acting individually and in their representative capacities as members of the St. Clair County and Madison County, Illinois, chapters of the National Association for the Advancement of Colored People ("NAACP"); and the Harold Washington Party, a political party recognized under the Illinois Election Code, Ill. Rev. Stat. ch. 46, § 10-2. Of these plaintiff-intervenors, only Rep. Savage and the Harold Washington Party, acting in tandem, submitted their own redistricting proposal and map. Winkler, Zalewski, Rep. Annunzio and Rep. Yates adopted the redistricting proposal of the Rosebrook plaintiffs.

 Finally, the Chicago Urban League filed its own action and proposed minority district plan on August 29, 1991, Chicago Urban League v. State Board of Elections, No. 91 C 5472. The Chicago Urban League purports to represent the interests of resident voters in the existing African-American majority congressional districts. The Chicago Urban League action was consolidated with the Hastert action on September 3, 1991.

 On September 20, 1991, we granted the Board's unopposed motion that it be permitted to abide by the judgment resulting from these proceedings without providing a defense or adopting an adversarial role. The Board remains a necessary nominal defendant because it is obligated under the terms of the order issued in In re Congressional Dist. Reapportionment cases, No. 81 C 3915, slip op. (N.D. Ill. Nov. 23, 1981), to conduct the upcoming 1992 congressional elections under the 1981 congressional district plan until we issue a superseding order. The adversarial circumstances necessary to constitute a case or controversy arise solely from competing redistricting plans submitted by the various plaintiffs. Accordingly, the Board has played no active role in these proceedings and agrees to abide by the judgment of this court.

 The participants were directed to submit proposed witness lists and summaries of their proposed testimony. The resulting submissions posed the prospect of a lengthy and complex trial, due in part to the large number of participants and proposed witnesses. In addition, some of the proffered testimony was either directed to matters outside the proper scope of this court's inquiry, or cumulative of the statistical data that necessarily comprises the principal evidence in this case. Accordingly, we took measures to focus the parties on the relevant constitutional and legal criteria and to streamline the proceedings in a manner that would still enable the parties to present a complete record on the serious constitutional matters at issue. By streamlining the proceedings, our goal was to issue our judgment on the merits in a timely fashion so as to allow any of the participants adequate time for appeal to the Supreme Court prior to the December 16, 1991 filing deadline for nominating petitions for the March 17, 1992 Illinois congressional primary elections. We sought to obviate any need for enjoining the Board from conducting the congressional election according to the statutorily dictated schedule, see Ill. Rev. Stat. ch. 46, para. 10-6, as was necessary during the 1981 Illinois congressional redistricting proceedings.

 Consequently, we followed the precedent of congressional redistricting panels working under similar time constraints, see, e.g., In re Pennsylvania Congressional District Reapportionment Cases, 567 F. Supp. 1507, 1508-09 (M.D. Pa. 1982), aff'd sub nom. Simon v Davis, 463 U.S. 1219, 77 L. Ed. 2d 1405, 103 S. Ct. 3564 (1983), and directed the parties to submit their evidence in the form of affidavits and depositions, supplemented by any maps and statistical data the parties deemed relevant. During the two-day trial on October 7 and 8, 1991, each participating party was permitted to proceed on the basis of a single proposed plan and map. *fn4" The parties were permitted to examine and cross-examine expert witnesses. Finally, the parties argued their positions through the submission of trial and post-trial briefs.

 The parties worked diligently during discovery and the two-day trial to resolve numerous areas of significant disagreement in their competing plans. The pre-trial proceedings were marked by a succession of amendments to the principal redistricting proposals, with each of the new amended plans incrementally eliminating a complex area of potential conflict. The most significant agreement reached by the parties prior to trial concerned an agreement about the configuration of the proposed Hispanic majority district.

 All parties agreed throughout the proceedings that population and demographic changes within the City of Chicago from 1980 to 1990 mandated the creation of an Hispanic majority district. The creation of an Hispanic district necessarily entails a radical reshaping of the political landscape in and around Chicago. Not surprisingly, the significant political ramifications of the creation of an Hispanic district initially spawned radically different proposals regarding the form this proposed district might take. By reaching an agreement on the configuration of a proposed Hispanic district, the parties greatly simplified a perplexing issue. Indeed, an agreement on this issue may be the crucial factor in facilitating the creation of an Hispanic district. The agreement on the proposed Hispanic district removed the Hispanic contingent among the Nieves plaintiffs as active participants at trial.

 Other compromises and stipulated agreements were reached on a number of disputed issues. A stipulation between Rep. Savage and the Harold Washington Party with the Hastert plaintiffs, which was subsequently joined by the Collins plaintiffs, brought all parties into substantial agreement over the configuration of the African-American majority 2nd Congressional District. This agreement effectively removed Rep. Savage and the Harold Washington Party from any disputes at trial. A pre-trial stipulation between plaintiff-intervenors Johnny Scott and Ben Howard, acting individually and in their representative capacities as members of the NAACP, and the Hastert plaintiffs to keep the minority communities in Madison and St. Clair Counties unified in a single congressional district, effectively removed Scott and Howard from this litigation.

 As a consequence of the admirable efforts of counsel to come to agreement on many issues, the trial focused primarily on the redistricting proposals of the Hastert and Rosebrook plaintiffs. We are left primarily with the task of determining which of the two proposed plans best meets the goals and criteria, both constitutional and non-constitutional, enumerated by the Supreme Court. Secondarily, we must resolve a dispute between the Collins and the African-American Nieves plaintiffs over which of two African-American majority districts, the 7th or the 1st Congressional District, is the more appropriate situs for the politically significant Second Ward on Chicago's south side.

 DISCUSSION

 I. Scope of Authority

 Reapportionment of congressional districts within a state is "'primarily a matter for legislative consideration and determination.'" White v. Weiser, 412 U.S. 783, 794-95, 37 L. Ed. 2d 335, 93 S. Ct. 2348, (1973), quoting Reynolds v. Sims, 377 U.S. 533, 586, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). This principle stands as an acknowledgement that under the United States Constitution, state legislatures are vested with the authority to redraw their respective congressional districts. U.S. CONST. Art. I, § 4, cl 1. *fn5" Thus, the duty of reconfiguring the Illinois congressional districts to conform with the 1990 census falls first and foremost to the Illinois General Assembly. Ryan v. State Bd. of Elections, 661 F.2d 1130, 1132 (7th Cir. 1981). The Illinois General Assembly failed to perform this duty. The task therefore falls to this court by default.

 We do not tread unreservedly into the "political thicket" of congressional redistricting. Colegrove v. Green, 328 U.S. 549, 556, 90 L. Ed. 1432, 66 S. Ct. 1198 (1946). Rather, we proceed in the knowledge that the uniquely political character of congressional redistricting counsels that judicial relief is appropriate "only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an opportunity to do so." White v. Weiser, 412 U.S. at 794-95, quoting Reynolds v. Sims, 377 U.S. at 586. We note judicial intervention is again unavoidable. *fn6"

 II. Evaluation of Proposed Plans

 All parties are in agreement that the existing congressional district plan is both unconstitutional and impracticable. *fn7" Consequently, we proceed directly to an evaluation of the constitutional and legal merits of the proposed Hastert and Rosebrook plans. *fn8"

 A. Evaluation Under Constitutional Criteria

 1. Population Equality

 Evaluation of the proposed Hastert and Rosebrook redistricting plans proceeds initially on the basis of constitutional criteria developed by the Supreme Court since challenges to legislative apportionments were first found justiciable under the Fourteenth Amendment in Baker v. Carr, 369 U.S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962). The evaluation of legislative apportionments began in earnest with Reynolds v. Sims, 377 U.S. 533, 12 L. Ed. 2d 506, 84 S. Ct. 1362 (1964). In Reynolds, the Court held that the overriding goal of an acceptable redistricting plan should be the "fair and effective representation for all citizens." Id. at 565-66. To this end, the Court enunciated a one person, one vote theory of representation for state legislatures. The Court began the "difficult process of putting flesh on the bones of Reynolds v. Sims," Fortson v. Dorsey, 379 U.S. 433, 440 (1965) (Harlan, J., concurring), and, more particularly, of developing specific criteria for evaluating the validity of congressional redistricting plans in Wesberry v. Sanders, 376 U.S. 1 (1964).

 In Wesberry, citizens of Georgia challenged that state's congressional redistricting plan because of vast disparities in the population of the resulting districts. Although the average district size was 394,312, plaintiffs came from a district with a population of 823,680. At the other extreme, another district had a population of only 272,154. The Court deemed the gross disparities of population across districts and the resulting dilution of the voting rights of residents of the more populous districts violate the intention of the framers in enacting Article I, § 2 of the United States Constitution. *fn9"

 After examining the debates of the Constitutional Convention, the Court concluded that "when the delegates agreed that the House should represent 'people' they intended that in allocating Congressman the number assigned to each state should be determined solely by population." Id. at 13. The Court thus held that congressional districts must be drawn so that "as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." 376 U.S. at 7-8. Wesberry established equality of population as the primary constitutional standard for evaluating the validity of a congressional redistricting plan.

 The "as nearly as is practicable" standard accommodated the reality that perfect statistical equality may not always be possible. Indeed, in Reynolds, the Court conceded "that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement." 377 U.S. at 577 (footnote omitted). But this concession to the then existing limitations of cartologists was not intended to signal that the Court would not enforce the population equality principle with utmost vigor. Indeed, as stated in Wesberry, "while it may not be possible to draw congressional districts with mathematical precision, that is no excuse for ignoring our Constitution's plain objective of making equal representation for equal numbers of people the fundamental goal for the House of Representatives." 376 U.S. at 18.

 The "as nearly as is practicable" framing of the population equality standard in Wesberry left open the issue of where the statistical threshold dividing acceptable from constitutionally infirm population deviations lay. The Court responded to this question five years later in Kirkpatrick v. Preisler, 394 U.S. 526, 22 L. Ed. 2d 519, 89 S. Ct. 1225 (1969). In Kirkpatrick, the State of Missouri argued that the 5.97% overall deviation embodied in its congressional redistricting plan should be considered de minimus so as to satisfy the "as nearly as is practicable" standard. The Court rejected the de minimus argument, because under that standard legislators would no longer strive for perfect population equality, but instead would strive only to meet whatever de minimus threshold the Court might set. Id. at 530-31. The Court further braced the rigor of the perfect population equality standard by holding that "the 'as nearly as is practicable' standard requires . . . a good-faith effort to achieve precise mathematical equality. Unless population variances among congressional districts are shown to have ...


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