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KING v. STATE BD. OF ELECTIONS

August 1, 1997

JAMES R. KING, Plaintiff,
v.
STATE BOARD OF ELECTIONS, DAVID E. MURRAY, LAWRENCE E. JOHNSON, HANNELORE HUISMAN, JUDITH JONES, LANGDON D. NEAL, THERESA M. PETRONE, WANDA REDNOUR, Defendants, and BOBBY RUSH, TIMUEL BLACK, AL JOHNSON, ELVIRA CARRIZALES, NEOMI HERNANDEZ, and THE CHICAGO URBAN LEAGUE, and the UNITED STATES OF AMERICA, Defendant-Intervenors.



The opinion of the court was delivered by: KANNE; NORGLE; COAR

 This matter is before the court on remand from the Supreme Court for further consideration in light of Shaw v. Hunt, 517 U.S. 899, 116 S. Ct. 1894, 135 L. Ed. 2d 207 (1996) (hereinafter "Shaw II "), and Bush v. Vera, 135 L. Ed. 2d 248, 517 U.S. 952, 116 S. Ct. 1941 (1996) (hereinafter "Bush"). King v. Illinois Bd. of Elections, U.S. , 117 S. Ct. 429, 136 L. Ed. 2d 328 (1996). Pursuant to 28 U.S.C. § 2284(a), the undersigned three-judge panel was appointed to preside over this litigation.

 Upon remand, plaintiff filed a motion for an additional evidentiary hearing. This court denied the requested relief by order of April 4, 1997. Plaintiff has since moved this court to reconsider its ruling on that issue. Briefs have been filed both on the remand and on plaintiff's motion for an additional evidentiary hearing. Thus, this case is before the court on both issues. Having carefully examined Shaw II and Bush and the memoranda and arguments presented by the parties, this court finds both cases supportive of its analysis and accordingly affirms its previous decision in King v. State Bd. of Elections, 979 F. Supp. 582, 1996 WL 130439 (N.D. Ill. 1996) (hereinafter "King I "). Moreover, for the reasons stated in this memorandum opinion, plaintiff's motion to reconsider is denied.

 It is important to note at the outset, however, that this opinion merely supplements the subject of the remand and its purpose is to determine what impact, if any, Shaw II and Bush have on this court's prior analyses. Hopefully, this opinion will provide a roadmap of King I that illustrates that King I is in accord with Shaw II and Bush. To this end, this opinion will discuss the relevant holdings of each of those opinions.

 Discussion

 Since this court issued its ruling in King I, the Supreme Court has further developed its constitutional jurisprudence with respect to voting rights in two pivotal decisions: Shaw II and Bush. These decisions of even date have markedly changed and elucidated the landscape of voting rights litigation and legislation. As a result, this court has undertaken a full review of the underlying record as well as the briefs filed upon this remand. The court has likewise carefully considered the evidence submitted upon the plaintiff's offer of proof in support of his motion to reopen the evidence. *fn1" Nothing in this restudy of the record has revealed any error in the statement of facts set forth in King I. Rather, the court remains of the view that the facts, other than those to be inferred, are correctly set forth in its prior opinion.

 Notwithstanding the accuracy of the factual record, certain comments upon the law are in order. Indeed, the necessity for or the propriety of reopening the record can better be judged following some analysis of both the legal and factual issues involved in this remand. Moreover, such analysis affirms this court's earlier conclusion that the Fourth Congressional District (hereinafter the "Fourth District") is constitutionally sound.

 I. The Import of Shaw II and Bush to King I

 Shaw II and Bush have a direct impact on this court's strict scrutiny analysis in King I. Although both Shaw II and Bush further develop the analysis that should apply to each aspect of voting rights litigation, (e.g., the Gingles test and the "predominance of race" test--especially, with respect to § 2 violations), none of these developments alters this court's determination that strict scrutiny applies. Rather, on remand, what is implicated by the two more recent decisions is this court's strict scrutiny analysis, and more specifically, the issue of whether the Fourth Congressional District is a narrowly tailored response to prior discrimination. In King I, this court set forth a strict scrutiny analysis which supported its conclusion that the Fourth District is constitutional. A review of that analysis in light of Shaw II and Bush reveals that no additional examination is required.

 A. Compelling State Interest

 In addition to finding that there is no dispute that race was a factor in the configuration of the Fourth District, this court concluded that "racial considerations predominated." King I, 1996 WL 130439 *19, 22. Accordingly, this court applied strict scrutiny to the Fourth District to determine whether it passed constitutional muster under the Equal Protection Clause.

 In order to survive strict scrutiny, the Fourth District must be proved narrowly tailored to serve a compelling state interest. The compelling state interest proffered by the Hastert court was remedying a potential violation of or achieving compliance with § 2 of the Voting Rights Act. Id. at *22. Recognizing that the Court has never expressly held that remedying a potential violation of or achieving compliance with § 2, standing alone, is a compelling state interest, this court advanced arguments based on earlier Supreme Court decisions on race-based remedies in support of its view that such an interest is compelling. Specifically, this court asserted that the Court's recognition of a distinction between "'what the [Voting Rights Act] permits and what it requires'" and its resulting conclusion that "'compliance with federal antidiscrimination laws cannot justify race-based distracting where the challenged district was not reasonably necessary under a constitutional reading and applications of those laws'" demonstrate that race-based remedies may be appropriate. King I, 1996 WL 130439, at *26 (quoting Shaw v. Reno, 509 U.S. 630, 653, 113 S. Ct. 2816, 2830, 125 L. Ed. 2d 511 (1993); Voinovich v. Quilter, 507 U.S. 146, 153, 113 S. Ct. 1149, 1156, 122 L. Ed. 2d 500 (1993)). Moreover, noting the Court's acknowledgment of justifiable race-based remedies to cure the effects of past discrimination where there is a "strong basis in evidence" of the harm being remedied, this court reasoned that "this compelling state interest extends to remedying past or present violations of federal statutes intended to eliminate discrimination in specific aspects of life." Id. (citing Quilter v. Voinovich, 912 F. Supp. 1006, 1020 (N.D. Ohio 1995) (citations omitted); Shaw v. Hunt, 861 F. Supp. 408, 437 (E.D.N.C. 1994)).

 In Bush, Justice O'Connor (in concurrence) provided additional support for these propositions. She asserted that compliance with § 2 of the Voting Rights Act and, in particular, the results test, is a compelling interest. In favor of that position she wrote:

 
We should allow States to assume the constitutionality of § 2 of the Voting Rights Act, including the 1982 amendments.
 
This conclusion is bolstered by concerns of respect for the authority of Congress under the Reconstruction Amendments. See Rome v. United States, 446 U.S. 156, 179, 100 S. Ct. 1548, 1562-1563, 64 L. Ed. 2d 119 (1980). The results test of § 2 is an important part of the apparatus chosen by Congress to effectuate this Nation's commitment "to confront its conscience and fulfill the guarantee of the Constitution" with respect to equality in voting. S. Rep. No. 97-417, p. 4 (1982), U.S. Code Cong. & Admin. News 1982, pp. 177, 181. Congress considered the test "necessary and appropriate to ensure full protection of the Fourteenth and Fifteenth Amendments rights." Id., at 27, U.S. Code Cong. & Admin. News 1982, p. 204. It believed that without the results test, nothing could be done about "overwhelming evidence of unequal access to the electoral system," id., at 26, U.S. Code Cong. & Admin. News 1982, p. 204, or about "voting practices and procedures [that] perpetuate the effects of past purposeful discrimination," id., at 40, U.S. Code Cong. & Admin. News 1982, p. 218. And it founded those beliefs on the sad reality that "there still are some communities in our Nation where racial politics do dominate the electoral process." Id., at 33, U.S. Code Cong. & Admin. News 1982, p. 211. Respect for those legislative conclusions mandates that the § 2 results test be accepted and applied unless and until current lower court precedent is reversed and it is held unconstitutional.
 
In my view, therefore, the States have a compelling interest in complying with the results test as this Court has interpreted it.

 Bush, 517 U.S. 952, 116 S. Ct. at 1970 (O'Connor, J., concurring) (emphasis added). Similarly, in a lengthy dissent in which Justices Ginsburg and Breyer join, Justice Stevens refers to the Court's assumption that compliance with § 2 of the Voting Rights Act is a compelling state interest as "perfectly obvious." Id. at , 116 S. Ct. at 1989 (Stevens, J., dissenting). These comments support this court's conclusion that remedying a potential violation of or achieving compliance with § 2 is a compelling state interest. Indeed, in King I this court wrote:

 
Because the purpose of Section 2 is "to help effectuate the Fifteenth Amendment's guarantee that no citizen's right to vote shall 'be denied or abridged . . . on account of race [or] color . . .", . . . state actors have frequently argued that a racially based ...

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