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BONILLA v. CITY COUNCIL OF CHICAGO

December 21, 1992

MARY BONILLA; RAFAEL BORIA; NEOMI HERNANDEZ; IGNACIO ALVAREZ; ANTONIO MIRANDA; PETER MENDOZA; FRANCISCO DUPREY, Plaintiffs,
v.
THE CITY COUNCIL OF THE CITY OF CHICAGO; CITY OF CHICAGO BOARD OF ELECTIONS COMMISSIONERS, and MICHAEL J. HAMBLET, CHAIRMAN; RICHARD M. DALEY, MAYOR, CITY OF CHICAGO; WALTER KOZUBOWSKI; CITY CLERK, CITY OF CHICAGO, Defendants, and CAROLE BIALCZAK, THOMAS MURPHY, PATRICK M. HUELS, JAMES LASKI, ANTHONY C. LAURINO, GINGER RUGAI, PATRICK J. LEVAR, JOHN S. MADRZYK, THEODORE MAZOLA, LEMUEL AUSTIN, JR., EDWIN EISENDRATH, EDWARD BURKE, WILLIAM J.P. BANKS, BERNARD L. STONE, EUGENE C. SCHULTER, JOHN BUCHANAN, MARY ANN SMITH, BRIAN DOHERTY, AMBROSIO MEDRANO, LORRAINE L. DIXON, THERIS M. GABINSKI, RAY SUAREZ, BURTON F. NATARUS, BERNARD J. HANSEN, RICHARD F. MELL, THOMAS W. CULLERTON, MARK FARY, PATRICK J. O'CONNOR, and MICHAEL J. WOJCIK, Defendant Intervenors.



The opinion of the court was delivered by: BRIAN BARNETT DUFF

 Unlike the other currently pending aldermanic remap cases (Barnett v. Daley and Smith v. Daley), the case at bar was brought by a group of Hispanic, registered voters in the City of Chicago. Although Bonilla was reassigned to this court on relatedness grounds, it has never been formally consolidated with either Barnett or Smith. Accordingly, the pending motion to dismiss Bonilla is addressed in this opinion, while the pending motions to dismiss Barnett and Smith are addressed in a separate opinion.

 BACKGROUND

 In 1980, the City of Chicago had a total population of 3,005,075, of which 1,299,557 (43.2%) were Caucasian, 1,197,000 (39.8%) were African-American, and 422,063 (14%) were Hispanic. P.2d.A.Comp., P 21. During the 1980's, Chicago's total population fell to 2,783,726, but Chicago's Hispanic community grew substantially. P.2d.A.Comp., P 23. As a result, according to the 1990 Census, Hispanics presently constitute 19.6% of Chicago's total population, while Caucasians and African-Americans each constitute approximately 38% of the total population. P.2d.A.Comp., P 23.

 By law, the Chicago City Council was required to redistrict Chicago's 50 wards pursuant to the 1990 Census by December 1, 1991. Ill.Rev.Stat. ch. 24, § 21-38. Since the City Council failed to do so, Illinois law provided that any ten Chicago aldermen could propose a redistricting ordinance and have it put before the voters at a popular referendum. Ill.Rev.Stat. ch. 24, § 2140.

 Pursuant to the redistricting "default" procedure, on October 28, 1991, all four Hispanic aldermen proposed a redistricting ordinance which provided for nine majority Hispanic wards. Although this ordinance was not ultimately placed on the ballot, two alternative redistricting ordinances were ultimately proposed and placed on the ballot. One of the ordinances was sponsored by certain African-American aldermen, while the other was offered by twenty eight aldermen supporting Mayor Richard Daley on this issue.

 On March 17, 1992, the map proposed by the latter group (hereinafter, the "March 1992 Map") was selected by the voters, and it provides for seven majority Hispanic wards (14% of the total number of wards in Chicago).

 The Bonilla Plaintiffs challenge both the March 1992 Map and the process through which it was selected. First, the Bonilla Plaintiffs allege that the March 1992 Map "fractures" Hispanic communities (i.e., splits them into more than one district with the result that Hispanic voters constitute an ineffective grouping in each) in violation of the 14th Amendment, the 15th Amendment, 42 U.S.C. § 1983, and § 2 of the Voting Rights Act. Second, the Bonilla Plaintiffs allege that the redistricting process itself violates § 2 of the Voting Rights Act, since there are not enough Hispanic aldermen to propose a redistricting ordinance, even though Hispanics constitute approximately 20% of Chicago's population. Finally, the Bonilla Plaintiffs allege that because the March 1992 Map went into effect immediately upon its selection by the voters, there are presently two wards without a resident alderman. The Bonilla Plaintiffs therefore allege that vacancies exist in these wards, and that these vacancies must be filled through special elections which the Defendants refuse to hold. According to the Bonilla Plaintiffs, this refusal violates both Illinois law and the Voting Rights Act.

 DISCUSSION

 The standard governing this court's decision on a Rule 12(b)(6) motion is well established. Only if the allegations in the complaint, and all reasonable inferences drawn therefrom, could not support any cause of action may this court grant the motion. See generally Charles Wright & Arthur Miller, 5A Federal Practice and Procedure: Civil 2d § 1357 (West Publishing, 2d ed. 1990). The court, however, need not strain to find inferences favorable to a plaintiff which are not apparent on the face of the complaint. Coates v. Illinois State Board of Education, 559 F.2d 445, 447 (7th Cir. 1977). The court must nevertheless interpret ambiguities in the complaint in favor of a plaintiff, and a plaintiff is free, in defending against a motion to dismiss, "to allege without evidentiary support any facts he pleases that are consistent with the complaint, in order to show that there is a state of facts within the scope of the complaint that if proved . . . would entitle him to judgment." Early v. Bankers Life and Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992). *fn1"

 A. The Bonilla Plaintiffs' Claim that the March 1992 Map Violates the Voting Rights Act (Count 1).

 Section 2(a) of the Voting Rights Act makes it illegal to deny or abridge, on account of race, any person's right to vote. 42 U.S.C. § 1973(a). Section 2(b), as amended in 1982, adds that a violation of § 2(a) occurs

 if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election . . . 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.

 42 U.S.C. § 1973(b) (emphasis in original). Congress amended § 2 in 1982 so as to define Voting Rights Act violations in terms of discriminatory outcome, not intent. Thornburg v. Gingles, 478 U.S. 30, 35, 92 L. Ed. 2d 25, 106 S. Ct. 2752 (1986). As a result, § 2 violations can be proven "by showing discriminatory effect alone", rather than having to show a discriminatory purpose. Id. at 35.

 At the same time, however, § 2(b) says 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." 42 U.S.C. § 1973(b). This proviso unequivocally disclaims a right to proportional representation. Gingles, 478 U.S. at 84 (O'Connor, J., concurring in judgment); Baird v. Cons. City of Indianapolis, 976 F.2d 357, 359 (7th Cir. 1992).

 To establish a § 2(b) violation, a minority group must prove, at a minimum, that it satisfies the following threshold requirements: 1) that it is sufficiently large and geographically compact to make up a majority in a properly drawn district; 2) that it is politically cohesive; and 3) that racial bloc voting typically frustrates the election of the minority group's preferred candidate. Gingles, 478 U.S. at 50-51; Baird, 976 F.2d at 359. "Proof along these lines is not enough, however, if other considerations show that the minority has an undiminished right to participate in the political process." Baird, 976 F.2d at 359.

 In the case at bar, the Defendants allege that the Bonilla Plaintiffs' Voting Rights Act claim against the March 1992 Map fails to state a claim. Specifically, the Defendants allege that the Bonilla Plaintiffs fail to adequately plead the Gingles criteria and that their claim is nothing more than an inappropriate vote maximization request.

 With regard to the adequacy of the Gingles allegations, the court notes as a preliminary matter, that it must liberally construe the Bonilla Plaintiffs' allegations since this is a motion to dismiss. Accordingly, dismissal will only be appropriate if the allegations in the complaint, and all reasonable inferences drawn therefrom, could not satisfy the Gingles criteria. Under this liberal standard, the court finds that the Bonilla Plaintiffs' Gingles allegations are sufficient to withstand a motion to dismiss.

 The first Gingles criterion is sufficient size and geographic compactness to constitute a majority in a properly drawn district. In satisfaction of this requirement, the Bonilla Plaintiffs allege that while the March 1992 Map establishes seven majority Hispanic wards, the Hispanic population is sufficiently large and geographically compact to constitute the majority in one or two additional wards. Moreover, the Bonilla Plaintiffs also allege that Hispanics presently constitute approximately 19.6% of the total population in Chicago, and that under the March 1992 Map, the Hispanic population is fractured on the near south side (where another Hispanic majority ward allegedly could be created), and is diluted and fractured on the near north side.

 The second Gingles criterion is political cohesiveness. In satisfaction of this requirement, the Bonilla Plaintiffs allege that "Hispanic electoral candidates" and "the political aspirations of the Latino community" have been damaged by racially polarized voting in the past. The Bonilla Plaintiffs also allege that the March 1992 Map denies "Hispanic voters the ability to influence the outcome of City Council aldermanic elections." Both of these assertions imply Hispanic political cohesiveness, and therefore satisfy the second Gingles criterion.

 The final Gingles criterion is an allegation of racial bloc voting which typically frustrates the minority group's preferred candidate. In satisfaction of this requirement, the Bonilla Plaintiffs allege that racially polarized voting has historically penalized Hispanic electoral candidates. They also allege that while Hispanics presently constitute approximately 20% of the total population in Chicago, only four of the fifty aldermanic seats (8%) are currently held by Hispanics. Additionally, the Bonilla Plaintiffs point out that Hispanic Chicagoans were found to have been discriminated against after the 1980 Census. Based upon the foregoing, and all reasonable inferences drawn therefrom, the court finds that the ...


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