Hon. John Daniel Tinder Hon. Robert L. Miller, Jr. Hon. Joan Humphrey Lefkow
Before TINDER, Circuit Judge, MILLER, District Judge, and LEFKOW, District Judge. PER CURIAM. This case involves a challenge to the congressional redistricting plan adopted by the State of Illinois after the 2010 Census. The plaintiffs are an organization called the Committee for a Fair and Balanced Map (a not-for-profit organization created by Illinois citizens concerned about the congressional redistricting process in Illinois), ten incumbent Republican members of Congress, and six registered voters (including some who identify themselves as Latino voters and others who assert that they are Republican voters), collectively referred to as "the Committee." The defendants are the Illinois State Board of Elections (the agency charged with implementing the results of the redistricting process) and its members, collectively referred to as "the Board of Elections." The United States Constitution requires Illinois lawmakers to redraw the state's congressional district boundaries after each decennial census. U.S. CONST. art. I, § 2; id. amend. XIV, §§ 1 & 2; id . amend. XV; Ryan v. State Bd. of Elections of State of Ill., 661 F.2d 1130, 1132 (7th Cir. 1981). Pursuant to this authority, the Democratic majority in the Illinois General Assembly drafted, debated,*fn1 and passed the Illinois Congressional Redistricting Act of 2011 (the "Redistricting Act") (P.A. 97-14), thereby creating what we refer to as "the Adopted Map." Based on the 2010 Census results, the State of Illinois lost one congressional seat. The Adopted Map, therefore, eliminates one seat and establishes boundaries for the state's eighteen remaining congressional districts.
The Committee contends that the Adopted Map violates Section 2 of the Voting Rights Act, 42 U.S.C. § 1973(a) (Count I), the Equal Protection Clause of the Fourteenth Amendment, and rights protected by the Fifteenth Amendment, because Congressional Districts 3, 4, and 5 as drawn intentionally dilute the Latino vote (Counts II and III). They also allege violation of the Equal Protection Clause in that Latino ethnicity was the predominant consideration in drawing Adopted District 4 and as such, is an intentional and unjustified racial gerrymander (Count IV). Taking another tack, the Committee alleges that Adopted Districts 11, 13 and 17 demonstrate a blatant partisan gerrymander against Republican voters in violation of the First and Fourteenth Amendments (Counts V and VI).
We held a two-day trial on the Committee's motion for permanent injunction and, after examining the parties' briefs and extensive documentary and testimonial evidence, including the expert reports and testimony, we find in favor of the Board of Elections. As to the partisan gerrymander claims, although we agree with the Committee that the crafting of the Adopted Map was a blatant political move to increase the number of Democratic congressional seats, ultimately we conclude that the Committee failed to present a workable standard by which to evaluate such claims, therefore they fail under Vieth v. Jubelirer, 541 U.S. 267 (2004). The Committee's vote dilution claims fail because the Committee has not proven by a preponderance of the evidence that the state legislature intentionally discriminated against Latinos in passing the Adopted Map. Again, we acknowledge that Latino ethnicity was a factor in creating District 4 in 1991, but times have changed: the weight of the evidence shows that the predominant intent of the 2011 Illinois legislature in maintaining Adopted District 4 in substantially the same shape as when it was created in 1991 was a desire to enhance Democratic seats in the state as a whole, to keep Democratic incumbents in Districts 3, 4, and 5 with their constituents, to preserve existing district boundaries, and to maintain communities of interest. Because race was not the predominant factor, the Committee failed to meet its burden of proof on its racial gerrymander claims under Section 2 of the Voting Rights Act or the Constitution.
The Committee's racial vote dilution and gerrymandering claims concern Adopted Districts 3, 4 and 5, and its political gerrymandering claims concern Adopted Districts 11, 13, and 17. We set forth the facts below to provide an overview as necessary to understand the bases of those claims.
A. Racial Claims: Adopted Districts 3, 4, and 5
This litigation focuses primarily on District 4 in the Adopted Map, so we begin with the history of District 4. Following the 1990 Census, Illinois lost a congressional seat and the Illinois General Assembly was required to draw new district boundaries for the state. When the General Assembly failed to undertake its constitutional obligation to draw a new map, the court in Hastert v. State Bd. of Elections, 777 F. Supp. 634, 637 (N.D. Ill. 1991), was called upon to devise one. Hispanic voters also sought the creation of a Latino majority congressional district under Section 2 of the Voting Rights Act. Both parties agreed that, given population and demographic changes within the City of Chicago, a Latino majority district was mandated by Section 2. See id. at 640.
The goal of the litigants was to create a new Latino majority district while maintaining the three African-American majority districts, Districts 1, 2, and 7. The result was a bizarre configuration of District 4. Id. at 648 n. 24. The court explained that "the Chicago Hispanic community resides principally in two dense enclaves, one on Chicago's near northwest side and one on the near southwest side." Id. District 7, one of the African-American majority-minority districts, runs "roughly in an east-west direction along Chicago's central latitudes from Lake Michigan to the western suburbs," and separates the two Hispanic enclaves. Id. The parties' proposed plans in that case both connected the "northwest and southwest side Hispanic enclaves by running a narrow corridor around the western end of [District 7], creating a C-shaped configuration." Id. The western portion of the proposed plans, specifically, the part west of Central Avenue connecting the northwest and southwest enclaves is referred to as the "connector arm." Both proposed maps shot out rays from the northwest and southwest enclaves to capture additional Latino population. Id. The court commented that "[f]ew districts have quite so an extraordinary appearance." Id.
The court found that "the Chicago/Cook County Hispanic community [was] 'sufficiently large and geographically compact' to constitute a single district majority." Id. at 649 (citation omitted). It noted that the two Latino enclaves are less than one mile apart at their closest point and that this separation resulted from exogenous physical and institutional barriers, and thus did not indicate the existence of two distinct communities. Id. & n.25. The court further found that the Latino community was politically cohesive and that voting in the area was racially polarized. Id. at 650. The racially polarized voting, the court found, "thwarted the political interests of the Hispanic community." Id. The court reasoned that "[t]he location of the Chicago Hispanic community in two highly concentrated enclaves on either side of [District 7] on Chicago's near northwest and near southwest sides necessarily requires an odd configuration to accommodate the creation of an Hispanic district and the three super-majority African-American districts dictated under the Voting Rights Act." Id. at 650. After considering the totality of circumstances, the court concluded that Section 2 of the Voting Rights Act mandated a majority-minority Latino district and ultimately adopted the Hastert plan, thereby creating the C-shaped District 4, a district that had 59.18 percent of the Latino voting age population.*fn2 Id. at 648-50.
In 1996, the court was asked to re-examine whether District 4 violated the constitution, inter alia, in light of Shaw v. Reno, 509 U.S. 630 (1993) (Shaw I) and Miller v. Johnson, 515 U.S. 900 (1995), see King v. State Bd. of Elections, 979 F. Supp. 582, 586 (N.D. Ill. 1996) (King I), which recognize an equal protection claim based on segregating voters in separate districts based on race. King I addressed "whether in attempting to remedy a Section 2 Voting Rights Act violation, the Hastert court adopted a redistricting plan that apportioned the electorate on the basis of race and ethnicity in violation of the Fourteenth Amendment's Equal Protection Clause." Id. at 599.
The King I court found that racial considerations predominated in the creation of District 4. Id. at 605. Indeed, the parties had agreed (in Hastert) that a Hispanic majority district was mandated and had agreed to the proposed configuration of District 4; thus, the "district's bizarre shape was effectively determined by the litigants and not the court." Id. at 606 (emphasis in original). The court added that District 4's "extremely irregular configuration create[d] a strong inference . . . that its shape rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race." Id. The court further noted that district lines "follow the concentrations of the Hispanic population with 'exquisite' detail." Id. at 608-09. The only logical conclusion to be drawn from the shape and demographics of District 4, the court concluded, was "that racial considerations predominated over all other factors in the configuration." Id. at 607. Nonetheless, the King I court upheld District's 4 odd shape under strict scrutiny upon finding that its configuration was necessary to remedy a violation of Section 2 of the Voting Rights Act. Id. at 614-15.
On appeal, the Supreme Court vacated the King I judgment and remanded the case for reconsideration in light of two then-recent Supreme Court cases, Shaw v. Hunt, 517 U.S. 899 (1996) (Shaw II) and Bush v. Vera, 517 U.S. 952 (1996). See King v. Ill. Bd. of Elections, 519 U.S. 978 (1996). On remand, the King court reaffirmed its holding, concluding that District 4 was narrowly tailored to further a compelling state interest of remedying a potential violation or achieving compliance with Section 2. King v. State Bd. of Elections, 979 F. Supp. 619, 620, 627 (N.D. Ill. 1997) (King II), summarily aff'd, 522 U.S. 1087 (1998).
After the 2000 Census, Illinois had to redraw the congressional districts. The legislature kept District 4 in substantially the same shape as the Hastert District 4. We refer to this map as the "Current Map."*fn3 There was no challenge to District 4 as drawn in the Current Map. The next map, now in litigation, what we call "the Adopted Map," was passed by the 2011 Illinois General Assembly after the 2010 Census.*fn4
To comply with the one-person, one-vote requirement after losing a congressional district, the state had to add population (approximately 112,000 people) to District 4. As stated above, when District 4 was created under Hastert, it contained 59.2 percent Latino voting-age population. Between 1990 and 2010, the Latinos share of the voting-age population in Cook County increased from 11.5 percent to 20.8. At the time of the 2010 Census, the Latino voting-age population percentage of District 4 stood at 68.1 percent. Adopted District 4 reduces that by 2.2 percent and includes 65.9 percent Latino voting-age population. Adopted District 4 continues to have the C-shaped boundaries surrounding District 7, which remains a majority-minority (African-American) district. According to the Board of Elections' figures, 82 percent of the population from Current District 4 remains in Adopted District 4.
There are certain notable changes in Adopted District 4 compared to Hastert District 4. For example, Adopted District 4 splits 40 precincts, compared to 218 in that prior district. See King I, 979 F. Supp. at 610.This is likely due in part to the realignment of precincts in 1992. Id. at 610 n.52 (stating that District 4 split only 61 of the realigned 1992 precincts). Adopted District 4 is also slightly more compact, and some of the zigzag-shaped edges are smoothed out. The transfer of certain low-percentage Latino areas west of Central Avenue from previous District 3 had the effect of substantially increasing the population in the connector arm, making the district slightly more geographically compact. The connector arm in 1991 contained 5 percent of the total population of the district. Under Adopted District 4, it contains 26 percent.
The experts who testified at trial relied on two widely acceptable tests to determine compactness scores: the Polsby-Popper measure and the Reock indicator. The Polsby-Popper score is a perimeter measure that considers how efficiently the area of a district is encompassed by its perimeter and boundary. The Reock score is a geographic dispersion measure that considers how tightly packed the area is in a district. Scores in both tests range from just above zero to one with higher scores indicating more compact districts. The Polsby-Popper score for Adopted District 4 is .05 and the Reock score is .30. The Board of Elections' expert opined that low compactness is equal to or less than .05 on the Polsby-Popper measure and equal or less than .15 on the Reock measure. In 1991, the Polsby-Popper measure for District 4 was .02 and the Reock measure was .20. Accordingly, the compactness of District 4 has increased, but it is still at the threshold level for low compactness on the Polsby-Popper score and still fails the "eyeball test" -- based on a visual inspection of the district lines -- for compactness. See King I, 979 F. Supp. 582 (finding that the Hastert District 4 was not "visually compact.").
Adopted Districts 3 and 5 border District 4; District 3 lies to the south and District 5 to the north of Adopted District 4. On the Adopted Map, Latino voting-age population in District 3 is reduced from 29.3 to 24.6 percent and in District 5 from 24.6 to 16.1 percent. Congressman Luis Gutierrez (a Latino member of the Democratic Party), is the incumbent in District 4, and has won every congressional election in that district since it was created. Congressman Dan Lipinski is the incumbent in District 3 and Congressmen Mike Quigley is the incumbent in District 5. Both are members of the Democratic Party; neither is Latino. Adopted Districts 3, 4, and 5 contain substantially the same geographic areas as under the Current Map and, as a result, protect incumbents in those districts.
To address the Committee's belief that the Adopted Map unlawfully "packs" Latinos into Adopted District 4, thereby diluting the Latino vote in Adopted Districts 3 and 5, the Committee proposes an alternative districting plan it calls "the Fair Plan," which we refer to as the "Committee's Map."*fn5 In general terms, under the Committee's Map, District 4 contains the southern Latino enclave and the northern portion of Adopted District 3, for a total Latino voting-age population of 59.4 percent. The Committee's District 3 includes the northern Latino enclave and portions of Adopted District 5, among other districts, for a total Latino voting-age population of 46.5 percent. District 7 remains a majority-minority African-American district under the Committee's Map. The Latino voting-age population in the Committee's District 5 is reduced from 24.6 percent to 12.4 percent. The Committee's Map also reduces Latino voting-age population in Districts 6, 7, and 9, but such reductions are less than 2 percent. This plan moves Latinos from Adopted District 4 and gives them another plurality district in the Committee's District 3. The Committee's expert, Dr. Peter Morrison, however, testified that the Committee's District 3 will not become a majority-minority Latino district until after the next census. The Committee's District 4 fares better under both the Polsby-Popper (.32) and Reock (.47) measures and passes muster under the "eyeball" test for compactness.
B. Political Gerrymandering Claims: Adopted Districts 11, 13, and 17
The racial make-up of the Adopted Map tells only part of the story; political motivations were largely at play in the crafting of the plan. A brief history of the recent political atmosphere in Illinois is helpful to understanding the climate in which the Adopted Map arose. From 1997 to 2003, the Illinois General Assembly was divided, with a Democratic majority in the Illinois House of Representatives and a Republican majority in the Illinois Senate. Since 2003, the Democratic Party has held a majority of seats in the Illinois General Assembly. Today there are 64 Democratic and 54 Republican state representatives and 35 Democratic and 24 Republican state senators. Republicans held the office of Governor from 1977 to 2003, but Democrats have held it from 2003 to the present.
Although Illinois in modern times is considered a "blue state" (that is, the Democratic Party often fares well in statewide and other elections), congressional representation in recent years has been divided. From 1999 to 2005, and again from 2011 to the present, Illinois has been represented in the United States Senate by one Republican and one Democratic senator (approximately 7 years). From 1985 to 1999 and from 2005 to 2010, Illinois has had two Democratic senators (approximately 19 years).
In 2000, Illinois had 20 congressional districts (10 Republican, 10 Democratic) and lost one seat after the 2000 Census. At the time, Republicans controlled the Illinois Senate and the Governor's office and Democrats controlled the Illinois House. A compromise map supported by leaders from both parties dismantled the 19th congressional district held by then Congressman David Phelps (Democrat). In the 2002 congressional elections, Republicans came out ahead, winning10 seats to Democrats' 9.*fn6 Republicans lost seats in two subsequent elections once in 2004 (9 Republicans, 10 Democrats) and again in 2008 (7 Republicans, 12 Democrats), but made a comeback in the 2010 elections, gaining 11 seats to the Democrats' 8. Illinois again lost a congressional seat after the 2010 Census, and this time the Democratic Governor and Democratic-controlled General Assembly choose to eliminate the 13th congressional district, held by Congresswoman Judy Biggert (Republican). Evidence indicates that, based on the results of presidential elections, the Adopted Map will give the Democrats an advantage in 12 districts and the Republicans an advantage in only 6. Republicans, for obvious reasons, are unhappy with this design.
The Redistricting Committees in the 2011 Illinois General Assembly contained members of both major political parties. The House Redistricting Committee had 6 Democratic and 5 Republican members and the Senate Redistricting Committee had 11 Democratic and 6 Republican members. These committees held a series of public hearings at locations around the state where members of the public were allowed to comment on the redistricting process. See 10 Ill. Comp. Stat. 125/10-5. In the morning of May 27, 2011, the Friday of Memorial Day weekend, the Democratic leadership of the Illinois House and Senate Redistricting Committees released the Adopted Map to the public for the first time; it was posted on their website. On the following Monday (Memorial Day), the Illinois House of Representatives passed the Redistricting Act, and the Illinois Senate followed suit the next day. (It passed along party lines). None of the Republican plaintiffs in this case attended the public hearings nor did they present any plans or suggestions to those committee members because they considered it futile. In fact, it appears that the Committee's Map was not disclosed or released until this litigation was underway.
People outside the Redistricting Committees had significant influence in drawing the Adopted Map. Republicans' attempts to negotiate with these individuals were ineffective because they were not provided with information needed to properly evaluate the proposed maps. Plaintiff Congressman John Shimkus (Republican) testified that he initially was negotiating with Congressman Jerry Costello (Democrat) to craft a bipartisan map but was unable to negotiate any further when he wasn't provided shape files (the east-west longitude, block by block, house delineation of the lines) of the proposed maps. Congressman Peter Roskam (Republican) testified that Illinois Senate President John Cullerton (Democrat) offered to negotiate, but because Congressman Roskam was only provided a glimpse of his proposed district, he declined Illinois Senator Cullerton's offer.
The Democratic Congressional Campaign Committee (DCCC) was also heavily involved in the creation of the Adopted Map. Several emails between the DCCC and Andy Manar, chief of staff for Illinois Senator Cullerton, reveal that the primary goal in redistricting was to gain more Democratic seats. These emails discuss ideas about how to make various districts "more Democratic" and achieve the "goal" of "maximiz[ing] Democratic performance." The partisan motive is most evident in a memo dated May 24, 2011, from the DCCC to Senator Cullerton describing ways to pick-up Democratic seats, to maximize opportunities for Democrats, to destabilize Republican incumbents, and to gain partisan advantage. This goal was seemingly accomplished in Adopted Districts 11, 13, and 17.
The Committee, through Edward Marshall, presented evidence of the partisan voting index (PVI) for the districts within the Current Map and Adopted Map. PVI is a formula comparing the vote in two presidential races within a congressional district to the same two races on a national level to determine how strongly a congressional district leans toward one political party. The index indicates which party's candidate was more successful in that district, as well as the number of percentage points by which its results differed from the national average. According to Mr. Marshall's figures, under the Current Map, 9 out of the 19 Illinois congressional districts (47.7%) have Democratic-leaning PVI scores, whereas under the Adopted Map, 12 out of the 18 Illinois congressional districts (66.7%) have Democratic-leaning PVI scores. Under the Committee's Map, on the other hand, 8 districts would be Democratic-leaning, 8 would be Republican-leaning, and two would be neutral.
More specifically, Adopted District 11 has a PVI score of D, compared to R in the Current Map; Adopted District 13 has a PVI score of D, compared to R under the Current Map; and Adopted District 17 has a PVI score of D, compared to D under the Current Map. Mr. Marshall also provides evidence of the discrepancy in incumbency protection between Democrats and Republicans in the Adopted Map. The Adopted Map preserves from 76.4 percent (Congressman Lipinksi) to 100 percent (Congressman Costello) of the Democratic incumbents' constituent populations, whereas it preserves only 20.5 percent (Congressman Adam Kinzinger)*fn7 to 67.9 percent (Congressman Aaron Schock) of the Republican incumbents' constituent populations.
Under the Adopted Map: ! Congressman Randy Hultgren (Republican), currently in District 14, and Congressman Joe Walsh (Republican), currently in District 8, are collapsed into Adopted District 14.
! Congressman Robert Dold (Republican), currently in District 10, is moved into Democratic Congresswoman Jan Schakowsky's District 9, which has a PVI score of D. ! Congresswoman Judy Biggert (Republican), who currently resides in District 13, will now reside in Democratic Congressman Mike Quigley's District 5, which has a PVI score of D. ! Congressman Kinzinger (Republican), who currently resides in District 11, will now reside in Democratic Congressman Jesse Jackson's District 2, which has a PVI score of D.
Accordingly, the Adopted Map places three Republican incumbents (Dold, Biggert, and Kinzinger) into heavily Democratic districts with a Democratic incumbent and places two other Republican incumbents (Hultgren and Walsh) into the same district.
The Adopted Map has imperfections. For example, Adopted District 17 links the Quad Cities with the Democratic-leaning parts of Peoria and Rockford, slicing away parts of Republican Congressmen Schock's and Donald Manzullo's districts and splitting the City of Rockford, which has been within a single district since 1850. Incumbent Congressman Bobby Schilling (Republican) remains in District 17 but with only 51.9 percent of his current constituents. Adopted District 11 zigzags across Chicago's southwestern suburbs to link Democratic-leaning populations in Aurora and Joliet. District 11, which was Congressman Kinzinger's district, now has no incumbent, and Kinzinger is moved into Adopted District 2 with only 20.5 percent of his constituents.*fn8 Finally, Adopted District 13 pulls together Democratic-leaning parts of Springfield, Bloomington/Normal, and Champaign/Urbana with Decatur by sending arms off toward the east, north, and northwest. It also now includes parts of Collinsville, a town with 22,000 residents that will have three congressional representatives*fn9 under the Adopted Map.*fn10
The Committee has asserted claims for racial vote dilution, racial gerrymandering, and political gerrymandering. We begin by addressing political gerrymandering because we agree that politics was ...