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BARNETT v. DALEY

October 8, 1993

RICHARD BARNETT, ED H. SMITH, ALLAN STREETER, HELEN SHILLER, JOHN O. STEELE, DOROTHY TILLMAN, LAWRENCE S. BLOOM, ROBERT SHAW, JESSE J. EVANS, BOBBY L. RUSH, PERCY GILES, WILLIAM M. BEAVERS, TONI PRECKWINKLE, RICKEY HENDON, JOE MOORE, ARENDA TROUTMAN, SHIRLEY A. COLEMAN, VIRGIL E. JONES, JESSE MILLER, SAM BURRELL, AND POLITICAL ACTION CONFERENCE OF ILLINOIS, TIMUEL BLACK, ROSEMARY OLIVER, EDDIE READ, GEORGIA TREVAN, CONRAD WORRILL, CHAUNCERY STROUD, LEONARD OWENS and EUGENE FORD, Plaintiffs,
v.
RICHARD M. DALEY, THE CITY OF CHICAGO, and BOARD OF ELECTION COMMISSIONERS 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, LORAINE L. DIXON, THERIS M. GABINSKI, BURTON F. NATARUS, BERNARD J. HANSEN, RICHARD F. MELL, MARK FARY, PATRICK J. O'CONNOR, and MICHAEL J. WOJCIK, Defendant Intervenors.



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

 This case comes before the Court on the motion of the defendants and defendant-intervenors (hereafter, jointly, the "Defendants") to dismiss the Barnett and Smith Plaintiffs' Second Amended Complaint for failure to state a claim upon which relief may be granted. The Defendants assert, among other things, that the Plaintiffs' claim fails because it does not sufficiently allege both intent to discriminate and a resulting discriminatory effect. For the reasons discussed below, the Court hereby grants the motion to dismiss with prejudice.

 BACKGROUND

 This action originally began as two separate lawsuits, each of which challenged the redistricting of Chicago's aldermanic wards following the 1990 Census. In Barnett v. Daley, a group of African-American, registered voters in the City of Chicago alleged that the March 1992 Ward Map "packs" African-American voters into super-majority wards (i.e., excessively concentrates them) without similarly packing whites. Meanwhile, in Smith v. Daley, a group of African-American and white Chicago aldermen, as well as the Political Action Conference of Illinois, alleged that the March 1992 Map maximizes the political power of whites by "fracturing" African-American communities (i.e., splitting them into more than one district with the result that African-Americans constitute an ineffective political grouping in each) and drawing majority white wards that "borrow" population from other groups. See, Barnett v. Daley, 809 F. Supp. 1323, 1325-1327 (N.D. Ill. 1992) (Duff, J.) (hereafter, "Barnett I").

 On December 21, 1992, this Court dismissed both the Barnett and Smith first amended complaints. Id. at 1333. After two unsuccessful attempts to file another complaint, on February 22, 1993, the Barnett and Smith Plaintiffs jointly filed the instant Second Amended Complaint (hereafter, the "Complaint") which alleges that the March 1992 Ward Map intentionally dilutes the voting rights of Chicago's African-American voters in violation of the Voting Rights Act (Count I) and the 14th and 15th Amendments to the United States Constitution (Count II). (PP 1, 53, 60). *fn1" The factual allegations for each count are essentially the same.

 Indeed, the vote dilution alleged in the Complaint is essentially the same as that which this Court previously rejected. *fn2" Specifically, the Plaintiffs allege that the March 1992 Ward Map has diluted their voting rights by intentionally depriving them of: 1) the number of wards that accurately reflects the African-American community's "true electoral strength," i.e., the maximum possible number of super-majority African-American wards (PP 31, 56) and 2) the same or more "African-American wards" as there are "white wards" (P 54). The only significant difference between the instant Complaint and the earlier versions dismissed in Barnett I is that the Plaintiffs have added the word "intentional" to their claims.

 DISCUSSION

 The standard governing this Court's decision on a Rule 12(b)(6) motion to dismiss 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 the Plaintiffs 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 the Plaintiffs, and the Plaintiffs are free, in defending against the motions, "to allege without evidentiary support any facts [they] please[] 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 [them] to judgment." Early v. Bankers Life and Casualty Co., 959 F.2d 75, 79 (7th Cir. 1992). Nevertheless, when deciding a motion to dismiss, this Court is "not required . . . to ignore any facts alleged in the complaint that undermine the plaintiffs' claims." Arazie v. Mullane, 2 F.3d 1456, 1993 U.S. App. LEXIS 20944, *27-28 (7th Cir. Aug. 17, 1993).

 I. The Voting Rights Act Claim.

 In Barnett I, this Court held that since both sets of plaintiffs conceded that African-Americans were statistically assured of sustained proportional representation under the March 1992 Ward Map, the Barnett and Smith plaintiffs did not, as a matter of law, have a cause of action under § 2(b) of the Voting Rights Act. Barnett I, 809 F. Supp. at 1327-1330. This Court nevertheless explained that "even though Plaintiffs do not have a claim under § 2(b), 'proof of intentional discrimination under § 2(a) [of the Voting Rights Act] remains an option.'" Id. at 1330, quoting Baird v. Indianapolis, 976 F.2d 357, 360 (7th Cir. 1992), cert. denied, 124 L. Ed. 2d 246, 113 S. Ct. 2334 (1993). In other words, even if Chicago has "[a] balanced bottom line", it could not, for example, actually bar African-Americans from voting in wards other than those where they constitute a super-majority or interfere with their right to register or their access to polling places. Baird, 976 F.2d at 359.

 This Court's conclusion about the effect of sustained proportional representation on a minority group's vote dilution claim has been strengthened by recent voting rights cases. In Voinovich, for example, the Supreme Court emphasized that § 2 of the Voting Rights Act

 
focuses exclusively on the consequences of apportionment. Only if the apportionment scheme has the effect of denying the protected class the equal opportunity to elect its candidate of choice does it violate § 2; where such effect has not been demonstrated, § 2 simply does not speak to the matter. Indeed, in Gingles, we expressly so held: "Electoral devices . . . may not be considered per se violative of § 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process."

 Voinovich, 122 L. Ed. 2d 500, 113 S. Ct. 1149 (emphasis added; citation deleted). Likewise, on August 4, 1993, the Eighth Circuit addressed arguments identical to those raised by the Plaintiffs and held that proportional representation bars claims of vote dilution, including intentional vote dilution claims under the Voting Rights Act and the 14th and 15th Amendments. ...


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