The opinion of the court was delivered by: Judge Joan Humphrey Lefkow United States District Court for the Northern District of Illinois
Hon. Robert L. Miller, Jr.
Hon. John Daniel Tinder
Hon. Joan Humphrey Lefkow
Illinois lost one Congressional seat pursuant to the 2010 Census. The Illinois Congressional Redistricting Act of 2011, which became law on June 24, 2011, adopted a map establishing boundaries for the eighteen remaining congressional districts. The plaintiffs in this redistricting challenge contend that the 2011 Map is a product of intentional and illegal vote dilution of Latino voters, particularly in Districts 3, 4, and 5, and an unconstitutional partisan gerrymander against Republican voters statewide, especially in the Chicagoland area and most blatantly in Districts 3 and 11. The defendants are the Illinois State Board of Elections and its members, to which this opinion refers collectively as "the Board of Elections." The plaintiffs are an organization called Committee for a Fair and Balanced Map, six registered voters, and ten incumbent Republican members of Congress, to which this opinion refers collectively as "the Committee." The Board of Elections doesn't dispute the Committee's standing to bring this redistricting challenge.*fn1
The court's jurisdiction is based on 28 U.S.C. §§ 1331, 1343, and 1357. The Board of Elections has moved to dismiss the complaint in its entirety. The court's October 12, 2011 opinion and order set forth the factual background; this opinion assumes the reader's familiarity with that opinion, and adds facts only as needed to discuss the complaint and the motion to dismiss.
The first three counts of the Committee's complaint allege that the 2011 Map violates § 2 of the Voting Rights Act, the Equal Protection Clause of the Fourteenth Amendment, and the Fifteenth Amendment. The complaint alleges that the 2011 Map dilutes the votes of Latino voters (including some of the individual plaintiffs) by wedging a "super-majority" unnecessarily into District 4 while reducing the number of Latino votes in Districts 3 and 5 -- in effect, wasting Latino votes in District 4 and diluting the Latino vote in Districts 3 and 5, where Latinos (the complaint alleges) would have no significant influence in choosing primary and general election candidates of their choice.
For purposes of § 2 of the Voting Rights Act, vote dilution is the practice of reducing the potential effectiveness of a group's voting strength by limiting the group's chances to translate that strength into voting power. See, e.g., Shaw v. Reno, 509 U.S. 630, 641 (1993) (Shaw I). Racially polarized voting creates the risk that state legislatures may dilute the voting strength of politically cohesive minority groups by manipulating district lines. See Voinovich v. Quilter, 507 U.S. 146, 153-154 (1993). Vote dilution most often is attempted either by scattering the minority voters among several districts in which a bloc-voting majority can outvote them regularly, or by centralizing them into one or two districts and leaving the other districts relatively free from their influence. See Johnson v. De Grandy, 512 U.S. 997, 1007 (1994). Intentional vote dilution through the drawing of district lines violates both § 2 of the Voting Rights Act and the Fourteenth Amendment, see Rogers v. Lodge, 458 U.S. 613, 617 (1982), and § 2 of the Voting Rights Act also forbids facially neutral districting that has the effect of diluting minority votes. 42 U.S.C. § 1973.
Section 2 provides that "[n]o voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State . . . 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 . . . as provided in subsection (b) of this section." 42 U.S.C. § 1973(a). Subsection (b) provides that a violation of subsection (a) "is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State . . . 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." 42 U.S.C. § 1973(b). The 1982 amendments to section 1973 eliminated the requirement of intentional discrimination by substituting a "results" test for the "purpose" test previously imposed by the Supreme Court. See Ketchum v. Byrne, 740 F.2d 1398, 1403 (7th Cir. 1984).
Generally, a group of plaintiffs must prove three preconditions to prove a § 2 claim: (1) that their minority group is large enough and geographically compact enough to be a majority in a single-member district, or in more single-member districts than the redistricting plan created; (2) that their minority group is "politically cohesive," meaning that its members vote in a similar fashion; and (3) the majority votes as bloc, allowing majority voters usually to defeat the minority's preferred candidates. Thornburg v. Gingles, 478 U.S. 30, 48-51 (1986). If the plaintiffs satisfy the burden of proving those conditions, the court moves on to decide, based on the totality of the circumstances, whether a § 2 violation has occurred, see De Grandy, 512 U.S. at 1011, considering (among other things) the state's history of voting-related discrimination, the degree of racial polarization in voting, and whether and how the state has used voting practices or procedures that facilitate discrimination against the plaintiffs' minority group. Gingles, 478 U.S. at 44-45.
The Board of Elections says the Committee's § 2 claim should be dismissed because it doesn't allege the first Gingles precondition, which "requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice." League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 430 (2006) (LULAC) (quoting De Grandy, 512 U.S. at 1008). The Board of Elections also argues that the Committee's complaint only parrots the language of Gingles with respect to the second and third precondition. Section 2 claims are district-specific, the Board of Elections says, so the Committee's complaint must (but doesn't) allege that the majority votes enough as a bloc to allow it usually to defeat the Latino voters' preferred candidate in each of the Districts 3 and 5. Gingles, 478 F.3d at 51. The Board of Elections also contends that the Committee hasn't alleged any facts relevant to the totality of the circumstances analysis, such as a history of discrimination against Latinos affecting voter turnout or a history of electoral discrimination, a lack of proportionality in the citizen voting-age population, or polarized voting specific to Cook County.
The Committee asserts that because it can show intentional
discrimination, it doesn't need to follow the Gingles test.*fn2
The Supreme Court has not resolved this issue, but has at
least implied that the first Gingles precondition may be relaxed where
intentional discrimination is shown. In Bartlett v. Strickland, 556
U.S. 1, 129 S.Ct. 1231, 1246 (2009), the Court held that a "party
asserting § 2 liability must show by a preponderance of the evidence
that the minority population in the potential election district is
greater than 50 percent." The Court limited its holding by noting that
the case did not involve allegations of intentional and wrongful
conduct, and therefore, the Court didn't need to resolve whether
"intentional discrimination affects the Gingles analysis." Id. The
Court expressly stated that its holding in that case "does not apply
to cases in which there is intentional discrimination against a racial
minority." Id. (Kennedy, J., plurality); see also Baird v.Consolidated City of Indianapolis, 976 F.2d 357, 359 (7th Cir. 1992)
(implying that intentional discrimination under § 2(a) doesn't require
the same analysis as an effects-based claim under § 2(b)); see also
Voinovich, 507 U.S. at 158 (stating that Gingles "cannot be applied
mechanically and without regard to the nature of the claim").
The circuit courts that have addressed this issue have taken varying approaches. The Ninth Circuit in Garza v. County of Los Angeles, 918 F.2d 763, 769 (9th Cir. 1990) held that "to the extent that Gingles does require a majority showing, it does so only in a case where there has been no proof of intentional dilution of minority voting strength."Id.; see also United States v. Brown, 561 F.3d 420, 432 (5th Cir. 2009) (indicating that discriminatory intent alone will ordinarily be sufficient to prove a § 2 violation). But "[e]ven where there has been a showing of intentional discrimination, plaintiffs must show that they have been injured as a result." Garza, 918 F.2d at 771. The court explained that "[a]lthough the showing of injury in cases involving discriminatory intent need not be as rigorous as in effects cases, some showing of injury must be made to assure that the district court can impose a meaningful remedy." Id. Plaintiffs must still show that their members had less opportunity than other residents in the district to participate in the political processes and to elect legislators of their choice. Id.; see also African Am. Voting Rights Legal Defense Fund, Inc. v. Villa, 54 F.3d 1345, 1357 n.18 (8th Cir. 1995) (approving this approach).
The Eleventh Circuit in Johnson v. DeSoto County Bd. of Commissioners, 72 F.3d 1556, 1561-63 (11th Cir. 1996), citing to Voinovich, 507 U.S. at 154-57 and the plain language of § 2, held that intent alone was insufficient to establish a violation. Although intentional discrimination wasn't shown in Voinovich, it was alleged, yet, the Court stated that "§ 2 focuses exclusively on the consequences of apportionment. Only if the apportionment scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate § 2; where such an effect has not been demonstrated, § 2 simply does not speak to the matter." 507 U.S. at 155. The Court held that plaintiffs can prevail on a claim under § 2 "only if they show that, under the totality of circumstances, the State's apportionment scheme has the effect of diminishing or abridging the voting strength of the protected class." Id. at 157 (emphasis added); see also Barnett v. Daley, 32 F.3d 1196, 1202 (7th Cir. 1994) (citing to Voinovich and stating that it is "no longer clear that intent plays any role in a suit under section 2") (emphasis in original).
The Johnson court also looked to the plain language of § 2(a) which states that "[n]o voting qualification or prerequisite to voting or standing, practice, or procedure shall be imposed or applied . . . in a manner which results in a denial or abridgement of the right . . . to vote on account of race or color . . . ." Johnson, 72 F.3d at 1563 (quoting 42 U.S.C. § 1973(a)). The court explained that the "statutory language expressly requires a showing of discriminatory results, and it admits of no exception for situations in which there is discriminatory intent but no discriminatory results." Id..
That doesn't mean, the Johnson court reasoned, that intent has no role to play in a § 2 violation. Although the court disagreed that "intent to discriminate lessens the amount of discriminatory results that must be shown[,]"it held that "[i]t is circumstantial evidence of discriminatory results that should be considered in assessing the 'totality of the circumstances.'" Id. at 1565. The court explained that "[w]here it can be inferred, as it often can be, that the enactors were in a good position to know the effect their actions would have, the fact that the enactment was motivated by a desire to produce discriminatory results will often be strong, albeit circumstantial, evidence that such results were achieved." Id.
While the Ninth and Eleventh Circuits disagree as to the extent of discriminatory results that must be shown when there is discriminatory intent, both agree that even if there is such intent, there still must be some showing of discriminatory effect. Considering these concepts in tandem is a solid form of analysis under the VRA. A showing that the drafters of the plan intended to discriminate very well may lead to the conclusion that the plan had its intended effect, but the other factors in the totality of circumstances test are still relevant in resolving the issue. Therefore, the first Gingles factor is appropriately relaxed when intentional discrimination is shown, but the Committee will nevertheless have to show that the plan lessened the Latinos' opportunity to elect a candidate of its choice. We believe for the Committee to show discriminatory effects they will have to prove that the second and third Gingles preconditions are established -- that the ...