City Council of Chicago v. Ketchum Brief for the United States Amicus Curiae

    No 84427

nntb$uprruu 6.nurtrf lhs lilnitril Stutrs
Octonpn Trnu, 1984

Crrry CouNcIL oF tus CrrY or CsrcA'Go, PEflTIoNm

u.

MABs Kgrcnuu, ET AL.

ON PETITION FOR A WBIT OF CERTIORARI TO TEE, UNITED STATESCOARTOF APPEALS
FORIEE SEVEN?E CIRCAIT

BRIEF FOR TIIE TINITED STATES
AS AIVIICUS CURIAE

Rnx E. t,nn
. Solicitor Gmeral

W'u. BapronoRsYNoLDs
As si,sta.nt Attorneg Genaml

CHenr,ss Furo
D eptta S ol;i,ci.tw Genpral

Cnlnr,ns J. Cooron
Deputg Assistant Attorneg General

MrcnAsr,W. MoCoNNSLL
Assistant to the Solicitor Genpral

Department of Justice
Washington, D.C.2O53O
(%2) 633-2217



QUESTION PRESENTED

Whether the district court abused its remedial discre-
tion in declining to create certain super-majority black
and Hispanic wards as a remecly for a violation of Sec-
tion 2 of the Voting Rights Act.

(r)



Argument

TABLE OF CONTENTS

Statement

Page

I
6

20Conclusion

TABLE OF AUTHORITIES

Cases:

Beer v. Uni,ted States,425 U.S. 130....--.-..-" 10, 18

Brooks v. Allain, No. 83-1865 (Nov. 13, 1984),
aff'g No. GC82-80-WK-O (N.D. Miss. Apr. 16,

1984) 11,15
Burns v. Richordson, SS4 U.S. 78 8

Ci,ta of Locklrurt v. United States,460 U.S. L25.._.

Ci,tA of Rome v. Uttited States,446 U.S. 156

Connor v. Finch,431 U.S. 407 ......-...- 17

General Building Contractors Ass'n v. Pennsyl-
aania,468 U.S. 976 .--------.-.- 15-16

Hills v. Gautreaun,4z5 U.S. 284 --.--.-.-.- 16

Maior v. Treen, 475 F. Supp. 326 -...--...-- l7
Marshall \. Edwarils,682 F.Zd 92?, cerb. denied,

442 U.S. 909 ..___-. .- t7
Mississippi v. United States, 490 F. Supp. 569,

aft'd, 444 U.S. 1050 10

Seomon v. Upham, No. P-81-49-CA (E.D. Tex.
Jan. 30, 1984), aff'd sub nom. Strake Y. Seamon,
No. 83-1823 (Oct. l, 1984) .--.....-....11, L2,16

Shatter v. Kirkpatrick,64l F. Supp. 922, aff'd, 456
u.s. 966 t7

Uni,ted Jewish Organizations, Inc. v. Carey, 430
u.s. 144 12

Urthamy. Sea.tnon,456 U.S.37.--...---."--. 15
Whitcomb v. Clnois,403 U.S. L24..---...----. 13
Wgche v. Madison Parish Police Jury, 635 F.Zd

1161 ...._..._ 8

18
8

(rr)



Amend. XIV
Amend. XV

Ill. Const. Art. 1, $ 2...--------- " 2

Voting Rights Act, 42 U.S.C. l97l et seq':

g2,42U.S.C. L9?3 -.---.----- -'-"""""'-"'possim
(s, azu.s.c. L973c ---' --- 10, 18

42 U.S.C. 1983.---..-...- 2

42 U.S.C. 1985 -:.------- 2

Ill. Rev. Stat. ch. 24 (194L):

$ 21Ao
$ 21-36

Miscellaneous:

128 Cong. Rec. (dailY ed.) :

p. H3841 (June 23,L982)
p. H3844 (June 23, 1982)
p. 56647 (June 10, 1982)

XntW Suprum v $.nurtrf fir lfinitrit $tulrr
OcrospR Tonu, L984

No.84-627

CIrv CouNCIL oF rnn Cltv or Crucaco' PETITIoNEx

a.

Mans Knrcuult, ET AL.

ON PETITION FOR AWRIT OF CERTIORARI TO THD
T]NITED STATDS COURT OF APPDALS

FOR THE SEVENTH CIRCUIT

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE

ry

Constitutions and statutes :

U.S. Const.:

p. 56655 (June 10, 1982)
p. 56717 (June 14, 1982)
pp. 56717-56718 (June 14, 1982)
p. 56??9 (June 15, 1982)
p. 56961 (June 17, 1982)
p. 56962 (June 17,1982)
p. 56964 (June 17, 1982)
p. 57110 (June 18, 1982)

Vol.1
Yol.2

The Solicitor General submits this brief in response to

the Court's order inviting a brief expressing the views of

the United States regarding this case.

STATEMENT

1. Chicago is divided into fifty wards, eaeh of which
eleets one alderman to the City Council. See Ill' Rev'

Stat. eh. 24, EZI-36 (1941). The 1980 Census reported

that the overall population of Chicago was 3,005,072,

with 1,299,55? (43%) whites, 1,197,000 (357') blacks,

and, 422,063 (L4%) Hispanies. Since 1970, the white
population had fallen by ?00,000, and the black and His-
panic populations had increased by 95,000 and 175,000,

respeciively (Stip. Facts 10-11). The ward districting
plan, which was adopted in 1970, required revisions.

City officials began to draw a reapportionment plan in
1980. The drafters of the plan stated that they tried to
draw cornpact and contiguous districts and tried to keep

all incumbents in separate districts. Each incumbent
alderman received a proposed districting plan for his

(1)

t4
t4
t4
L4
t4
13

10, 18

2
2

2
1

18
12
t4

t4
t4
l4

S. Rep. 97-4L7,97th Cong., 2d Sess. (1982) ""14, 15' 16, 18

Voting Rigttts Act: Heari,ngs Before the Sub'

conrnt,. on the Consti,tution of the Senate Co'mm'

on, the Jud,i'ciary,9?th Cong., 2d Sess' (1982) :

t4,15,16,18



own ward, and revisions in the proposal were made.
Under the final plan adopted on November 30, 1981, 28 .

wards had white majorities of the voting age population,
17 had black majorities, two had Hispanic majorities,
and three had no majority of any racial group.

2. In three class actions filed in the United States Dis-
trict Court for the Northern District of Illinois, black
and Hispanic plaintiffs alleged that the plan diluted mi-
nority voting strength in violation of Seetion 2 of the
Voting Rights Act, 42 U.S.C. 1973, the Fourteenth and
Fifteenth Amendments to the Constitution, 42 U.S.C.
1983, 42 U.S.C. 1985, Section 2 of Article 1 of the Illi-
nois Constitution, and III. Rev. Stat. ch. 24, S 21-30
(1941). The district court consolidated the three actions.
On September 20, 1982, the United Statcs intervened as
plaintiff in the eonsolidated action.

Plaintiffs put on evidenee to show that the final plan
divided some minority eommunities, placing significant
concentrations of minority residents in majority white
wards. One area Iargely populated by Hispanics-the
"north" or "northwest" side-was divided among five
wards, leaving only one ward (Ward 31) majority His-
panic in voting age population. Another Hispanic area
of the city-the "near southwest sids"-was divided
among three wards (1,22,25), only one of which (Ward
22) had an Hispanic voting age majority. In addition,
nearly all of the black residential areas on the south side
of Chicago that bordered white residential areas \ryere
placed in majority white wards, while no white area on
the outside border of a white residential concentration
was placed in a majority blaek ward.

Plaintiffs also put on evidence relating to the history
of racial voting patterns in Chieago. The evidence showed
significant racial bloc voting, particularly among whites
(Tr. 1722). The evidence also showed that, historically,
the black and Hispanie populations ,in Chicago had lower
registration rates than the white population and turned
out to vote in prupor[ionately fewer numbers. See DX
221; s* also Tr. 221-222,238, 1628,3713. Prior to 1982,

3

white registration rates were generally between 78/. and
85/o of voting age population, while black registration
was between 70% and 80/'. The white turnout rates
were generally near 50/, of voting age populabion; the
black rates nearer 35/o (DX 221). The Hispanic regis-
tration and turnout rates were generally one-third to
one-half of the white rates (see also DX 156).' However,
more recent evidence from the 1982 gubernatorial election
and the 1983 mayoral election, and nationwide trends at
the time of the 1984 presidential primary, "indicated a
marked increase in black registration and turn-out" (Pet.
App. 36 n.Zl). There was also evidence of a history of
discrimination against minority group members in the
City of Chicago. Witnesses testified about historical dis-
crimination in housing (Tr. 1317), employment (Tr.
1923-1324), and schools (Tr. 3332).

In an oral opinion delivered on December 21, 1982, the
district eourt rejected plaintiffs' argument that the redis-
tricting map was drawn intentionally to dilute minority
voting strength (Pet. App. 47-48), but found that the
plan'violated Section 2 of the Voting Rights Act because
it decreased the number of black majority wards from
the number that had prevailed in 1980 under the 1970
districting plan (i.d,. at 60). The court held that "blacks* * r had acquired a status as a minority group whieh
entitled them to have representation in 19 wards in the
City of Chicago" (ibid.) and that Hispanics should "be
accorded the opportunity to have an elected representa-
tive in four wards where they have a majority" and one
ward where they constitute a plurality (id. at 64).

While agreeing that the City Council's plan was in vio.
lation of Section 2, Lhe court rejected the plaintiffs' argu-

l Some witnesses attributed the lower electoral partieipation of
blacks and Hispanics to their lower socio-economic Fxlsition in
Chicago (Tr. 1617-1618, 2593). There was also testimony that
minority interest in electoral participatiou would increase when
the minority population in a ward was large enough to make it
possible for the minority vote to play a meaningful role in an
election.



4

ments that the various instanees of ward boundary
manipulation-"fraeturing" and "packing"'-violated
Section 2. "I do not consider that fragmenting of the
blark or the Hispanic minority is a violation or even

very great evidenee of a violation of the equitable prin-
ciples of Seetion 2. Pretty much the same thing is true
with respect to paeking" (Pet. App. 58-59). The court
commented that "[f]ragmenting * * * is really a step
toward integration and packing ,is a step toward segre'
gation" (id,. at 59). The court also stated that "the pack-
ing is a result of those incumbents who wish to protect
their incumbency, protect their turf" (ibid.),

The eourt ordered the defendants to revise six wards
(Pet. App. 62-66), and stated that the new minority
wards need not have any more than a majority of black
or Hispanic voting age population (PeL App. 63). How-
ever, the eourt noted that because there was a substan-
tial number of Hispanic non-citizens in Wards 22 and 26,
it was neeessary for the defendants to create districts
about 55/o Hispanic in voting age population in order to
give Hispanics a fair opportunity to eleet candidates of
their choice in those wards (Pet. App. 65).

When the defendants submitted their redrawn plan on

December 23, the court approved Wards 15 and 37,
which, as redrawn, gave blacks voting age population
majorities of 62.6/o and 66.2% respectively (Pet. App.
?6-78, 111). The court rejected the defendants' proposal
to cr"eate only three voting age majority Hispanic wards
(Pet. App. 79-83, 1L1-113). Contrary to its.earl'ier in-
structions, however, the court decided that despite the
presenee of non-ci.tizens in some areas, a majority of
voting age population would be sufficient to give Hispanics

2 "Fracturing" occurs where a eohesive community that would
be likely to be included within a single ward under a neutral dis-
tricting plan is split among two or more wards, thus diluting the
voting strength of members of the community. "Packing" occurs
when ward boundaries are artificially drawn so as to include an
unnaturally high percentage of a disfavored group within a single
ward or wards; ttris "wastes" the votes of the super-majority and
diminishes the group'e overall influence on the eleetoral process.

6

the potential to a.ffect the election in those wards (Pet.
App. 120-127). On December 27, the court approved a
final plan, creating four wards with Hispanic voting age
majorities: Wards 22 (69% Hispanic),25 (59.5%),26
(50.09%), and 31 (50.6%).

3. The court of appeals affirmed the district eourt's
flnding of a Section 2 violation,s but suggesbed that the
scope of tho violation may have been broader than that
recognized by the district court. While the district court
found a Section 2 violation on the basis of "retrogression"
and rejected plaintiffs' elaims based on the "packing and
fracturing of minority communities," the court of ap-
peals expressly concluded that there was a violation
"based on retrogression and, on the manipulation of racial
voting populations to achieve retrogression" (Pet. App.
L4 (emphasis added) ).n The court of appeals did not,
however, enter substitute findings of fact or conelusions
of law on these points, but simply referred approvingly
{id. at, 20-21) to plaintiffs' "allegations." The court also
found it "unnecessary to make a formal finding that the
1981 City Council map constitutes intentional racial dis-
crimination" (id. at 2l) because the need for such a
finding was eliminated by amended Section 2; nonethe.
less, it noted that there \tras "strong evidence of inten-
tional discrimination here as well" (Pet. App. 16).

The court of appeals then turned to the issue of rem-
edy, stating that the "most significant aspect" of the dis-
trict eourt's remedial order was its "determination of
what constitutes an effective majority for a minority
group within a particular ward" (Pet. App. 24). The
court stated (id,. at 33) that

lal guideline of. 65/o of total population has been
adopted and maintained for years by the Depart-
ment of Justice and by reapportionment experts and

g The United Stat€s did not participate in the court of appeais.
, The court of appeals criticized, as a matter of law, the district

eourt's rationales for rejecting respondents' claims of packing,
fracturing, and boundary manipulation. Pet. App. 18-21; see note
16, infra.



has been specifieally approved by the Supreme Court
in circumstances comparable to those before us as
representing the proportion of minority population
reasonably required to ensure minorities a fair op-
portunity to elect a candidate of their choice.

The 65% figure is derived, the eourt explained, by aug-
menting a simple majority with an additional L5/" "cor-
rective": 5% to compensate for the minority group's
typically lower average age, 5/o for its low voter regrs-
tration, and 5/o for its low voter turnout (Pet. App. 33).
The court held (zd. at 29) that the district court's "fail-
ure to consider carefully all of the factors which are
present here as in comparable situations and which have
led other courts to employ such a corrective * * * was atr
abuse of discretion." While acknowledging that some
other "corr.ective" might be appropriate if supported by
reliable statistical evidence (id. at 36 & n.21, 4l), the
court of appeals stated that "when reliable, .determina-
tive statistics are not available, * * * the district court
should give careful consideration to the 65/o figure or
some variation of it" (id,. at 36). The court also held
that there should bo an additional "appropriate correc-
tive for non-citizenship" in the Hispanic wards (id,. at B3
n.19).6

ARGUMENT
At issue in this case is the remedy for a proven and

unchallenged violation of Section 2 of the Voting Rights
Act, 42 U.S.C. 19?3. The principal question is whether it
was an abuse of the district eourt/s remedial discretrion,
under the eircumstances of this casq to approve a rem&
dial districting plan creating certain wards in which the
minority voters constituted little more than a voting age
majority. The court of appeals rever"sed the d,istriet
court's order, and required, inter alia, that on remand
the district court "seriously considen,, adopting a .,eor-

rective"-either the "widely accepted 6b/o guideline,, or

6 The court of appeals rejeeted raspondents, argument that mi-
nority voters are necessarily entitled to restoration of pre-19g0
population majorities.

7

another corrective based on reliable data-to create the
"super-majorities" needed "to provide effectiae majori-
ties" for minority voters (Pet. App. Zg, 41-42 (emphasis
in original) ). This decision raises issues of great im-
portance to enforcement of newly-amended Section 2.

Neverthelessi, we do not believe that the Court should
review this case on the merits in its present posture, for
three reasons. First, the issue principally raised by peti-
tioner at this interlocutory stage may be resolved srti*-
factorily on remand without need for this Court,s inter-
vention. Second, the decision of the court of appeals is
clearly eorreet in part, and a remand to the district

. court is neeessary and appropriate to remedy deficiencies
in that eourt's findings. Third, because the district court's
analysis of the precise nature of the uiolabiut, was flawed,
the question of remp,d,A here is hypothetical and prema_
ture.o

1. Petitioner has offered statistics reflecting that city_
wide voter registration and turnout among blacks was
comparable to or even exceeded that of whites in recent
elections. DX 221, Z4B. According to these figures, in'the- 

1982 gubernatorial election biack voters iegiste.ed
and turned out at rates of 8b.g% and 56.1 /, of.l,he vot_
ing age population, respectively, while the comparable
figures for white voters were 77.g/o and 56.g;/". On
remand the district court is charged with determining
whether these statistics are aceurate, reliable, and sig_
nificant (Pet. App. gZ & n.18). If .the district .orit
accepts petitioner's statistics as reliable, there will be no
need for this court to consider the principal question
presented as it is now framed. Even assuming that the
ordering of "correctives" for low minority voter registra-
tion and turnout may under some circumstances 

"bu ,,
appropriate rernedial measure, it surely could not be jus_
tified if minority voter registration anrl turnout were

6 We take no position on a fourth potential reason why certiorari
should be denied, i.e., the alleged incapacity of petilione. Cit;
council to file this petition through private counser, in the absencl
of a City Council resolution. That question is one of state law.



comparable to that of white voters. The interloeutory
posture of the case thus argues against certiorari.

2. The court of appeals correctly concluded that the
distrist court failed to take into consideration, when
evaluating the political strength of Hispanic voters, the
presence within the wards in question of persons who are
not yet citizens and are therefore ineligible to vote. Peti-
tioner claims (Pet. 25) that "such a proposition has no
Iegal justification." However, for purposes of analysis
of voting strength, non<itizens are equivalent to persons
too young to vote, and should be treated in the same
fashion. See Citg of Rorne v. United, States,446 U.S. 156,
186 n.22 (1980) ("[c]urrent voting-age population data"
are probative because they "indicate the electoral potcn-
tial of the minority community") I see also Wyche v.
Mo.d,ison Parish Police J*A, 635 F.zd 1151, 1161-L162
(5th Cir. 1981). To include persons ineligible to vote on
aeeount of non-citizenship in the statistical pool would
signiflcantly overstate the degree of Hispanic "electoral
potential." See Brnns v. Ri,ch,ardson, 384 U.S. 73, 92-93
(1966).

The district court itself r.ecognized the need to consider
the non-citizenship levels in tl're Hispanic wards (Pet.
App. 65); but in approving a remedial map it treated
as majority Hispanic two wards with Hispanic voting age
population majorities less than 51/". The court of ap-
peals remanded on this issue to permit the district court
to conform its remedial order to the standards already
enunciated by that court. See Pet. App. 32-33 & n.19.
We discern no reason for further review of this question.

3. The remedial question posed in connection with two
black wards, Wards 15 and 37, is more difficult and com-
plieated. The district court determined that these wards,
which were majority black under the 1970 map but ma-
jority white under the City Council's 1981 map, should
be restored to majority black status (Pet App. 62, ?l).
In approving a remedial redistricting plan proposed by
defendants, however, the court determined that voting
age population majorities of 52.6% and 56.2,/o, respee-

I
tively (total population majorities of 60.1/, and,61.7%),
were sufficient to constitute these wards as majority
black and to remedy any Section 2 violation. The district
court stated (Pet. App. 63) that "there is no statistical
or objective evidence in the record that a minority is en-

. titled to or should have more than a majority of the
voting age population in order to have a reasonably fair
opportunity to vote for candidates of their choice or even
to elect candidates of their choice." The court stated
that evidence presented by "one of the defendants' ex-
pert witnesses" satisfied the court "that when the oppor-
tunity arises or when the incentive is presented, it is not
necessary for a minority to have more than 50 percent
to control a ward" (ibid.).

The court of appeals reversed, finding that "the court-
approved map has not provided an adequate remedy for
the Voting Rights Act violation" (Pet. App. 27). The
court explained, in setting forth "guidelines" for the re-
mand, that the district court failed adequately to address
"the widely accepted understanding * * * that minorities
must have something more than a mere majority even of
voting age population in order to have a reasonable op-
portunity to elect a representative of their choice" (id.
at 29). The court stated that a "guideline of 65/o of
total population" has been found by the Department of
Justice, by this Court, and by reapportionment experts
to represent "the proportion of minority population rea-
sonably required to ensure minorities a fair opportunity
to elect a candidate of their choice" (fd. at 33). On re-
mand, the court of appeals required the rlistrict court to
use either this 65 /o guideline or "some other uniform
corrective" based on registration. turnout, and comparable
data (id. at 4L; see rd. at 32) .

a. Although we conclude that certiorari should be de-
nied, since the Court has sought our views in this case
we are bound to add that we have serious reservations,
as a matter of law, about the eourt of appeals' view of
the need for ereation of super-majority blaek or Hispanie
districts as a remedy under Section 2. The court of ap-



peals has apparently misu#.rrtooa the position of the
Justiee Department and this Court, on which it relied for
its 65% "guideline" ( Pet. App. 33) .

When determining whether to preclear a districting
plan under Section 5 of the Voting Rights AcL, 42 U.S.C.
1973c, the Department's responsibility is to determine
whether the proposed plan is intentionally discriminatory
or would result in "a retrogression in the position of
racial minorities with respect to their effective exercise
of the electoral franehise." Beer y. tlnited, States, 425
U.S. 130, 137 (1976). Contrary to the court of appeals,
apparent impression, in making this analysis we attach
no particular significance to a 6E% figrr.e. The Depart-
ment has frequently concluded, based on the facts pre-
sented in a particular submission, that districts contain-
ing a minority population significantly less than 65/o
(and even 50%) of the total are not retrogressive when
eompared to the pre-existing plan and are entiiled to Sec-
tion 5 preclearance. Each Section b submission must be
evaluated in light of the particular factual eireumstanees

-not on the basis of a preordained population percent_
age.' See I Voting Rights Act: Hearings Before fhe Sub-
cotntn. on the Constitution of the Senate Comm. on the
Jud;iciary,97th Cong.,2d Sess. 181, 188-184 (19g2) (let-
ter from Asst. Attorney General Reynolds) [hereinafter
cited as Senate Hearingsl. In any event, it is our view
that the legal analysis under the retrogression standard
of Section 5 cannot be transplanted to the much different
questions arising under Section 2. See pages lg-19, infra.

Nor has this Court held that minority voters require a
65/o majority in order to have "a reasonable oppoitunity
to elect a representative of their ehoiee,' (pet. App. 2gi.
To the contrarlr, the Court's recent summary affiimanee

? See Missi.ssifypt v. United, States,490 F. Supp. b69, b?E (D. D.C.
1979) (three judge court), afr'd,444 U.S. l0E0 (1990) (in pre_
clearance aetion under section 5, district court found super-majority
district required where recent discriminatory obstacles to voting,
including literacy tests, a poll tax, and a white primary system,
"continue[d] to affect black people in many portions of the state,"
Ieading to Iow levels of political participation).

11

in Brooks v. Allain, No. 83-186b (Nov. 18, 1984), indi-
cates that so-called "enhanced majorities" are not re-
quired as a remedial measure under Section 2. The plain-
tiffs in Brooks urged the three-judge district court to
create a congressional district with a black population of
at Ieast 64/o on the ground that because of low voter
registration and turnout among blacks they woukl be un-
able to elect candidates of their choice with a Iesser per-

-centage. In rejecting the super-majority plans proposed
by the Brooks plaintiffs, the district courC ,otud:
"Amended $ 2 ' * * does not guarantee or insure tlesired
results, and its goes no further than to afford black citi-
zens an equal opportunity to participate in the political
process" (No. GC82-80-WK-O (N.D. Miss. Apr. 16,
1984), slip op. 15). Accordingly, the district court con-
cluded that creation of a district with a 5Z.S% black
voting age population (58% black in total population)
would "overcome the effects of past discrimination and
racial bloc voting" and would ,,provide a fair and equal
contest to all voters who may participate in congressional
elections" (fd. at 16). In summarily affirming the dis-
trict court's decision, this Court necessarily rejected the
appellants' argument (83-186b J.S. at 16) that the court,s
plan was inadequate to remedy the State,s violation and
to provide members of the minority group an equal op-
portunity to eleet a candidate of their choice.s

Similarly, in Seamon v. Upham, No. p-g1-49-CA (E.D.
Tex. Jan. 30, 1984), slip op. ll-lL, the three-judge dis-
trict court rejected a Section 2 claim that minority voters

8 The appellants in Brooks specifically argued in this Co,urt that
because of "past discrimination, and continued disparities in in_
come, education and other socio-economic measures," which are
reflected in lower black voter registration and turnout, a b2.g\%
black voting age population majority was not sufficient to remedy
the Section 2 violation (83-18G8 J.S. at 16). That argument, re-
jected by this Court in Brooks, is remarkably similar to the position
adopted by the court below-with the exception that in Chicago,
unlike Mississippi, black voters have not been systematically denied
their right to vote in the recent past and have greafly inereased
their registration and voter turnout in recent elections.



t2
were entitled to a "'Bafe' district in which the minority
population approaches 65/o of the overall population,';
under the ehallenged plan, minority voters, while not
guaranteed the ability to elect a candidate to office, were
found to "exert a significant impact" in two high minority
impact districts (slip op. 15). This Court summarily af-
firmed. Strake y. Seamon, No. 83-1828 (Oct. l, lg84).
These decisions indicate that Section 2 does not mandate
the creation of super-majority districts, even where other
objective factors contribute to a finding of a violation of
Section 2 under the "totality of the eircumstances.,,0

Nor is the court of appeals' holding supported by the
legislative history of amended Section 2.ro The most di-
rectly pertinent discussion of the issue in Congress was
a colloquy between Representative Levitas and Chairman
Edwards, floor manager of the bill, during House eon-
sideration of the Senate compromise legislation. Repre-
sentative Levitas inquired whether the amended Voting
Rights Act contained "any numerical percentage of what
would constitute a minority district.,, Chairman Edwards
answered that "the bill contains no such provisions.,, \Zg
Cong. Rec. H3844 (daily ed. June ZB,lgSZ).

sln Uni.ted Jeuish Organizations, Inc. v. Carey,4B0 U.S. 144,
f68 (1977), trhe Court upheld as constitutional the State legisla-
ture's intentional creation of a 6b% minority distriet; but the
plurality opinion did not suggest that creation of such a district
is required or that it would be an apprropriate exercise of a court's
remedial discretion.

10 For a more er<tended discussion of the dements in the Section
2 compromise, see our amieus curiae brief in support of the juris_
dictional statement in Thornburg v. Gi,ngles, prob. juris. noted, No.
83-1968 (Apr. 29, 1985), at 8-11. We pinted out there, and reiter-
ate here, that the compromise charaeter of Section 2 as it was
enacted by congress makee it necessary to oxercise eaution in the
use of legislative history materials.that:E_ay reflect the view of only
one faction that eventuallv suJpofied the co\romise. I.or example,
the majority views sec0i Repolt, while illunrinating
on many questions, mu read against other/elevant pieces of the
legislative history. I statements in tlfi Report do not neces-
sarily reflect the
Gingles has been

consensus..rA copy of our brief in
-Q:E_padf*" in this case.

13

This case illustrates why a presumptive numerical "cor-
rective" is out of place in Voting Rights Act cases.
Plaintiffs presented evidence that voter registration and
turnout were historically much lower among blacks and
Hispanics than among whites. However, in recent elec-
tions there has been "a marked increase in black registra-
tion and turn-out," as the court of appeals noted (Pet.
App. 36 n.21).1' Petitioner has presented evidence that
minority voter registration and turnout rates now ap-
proach or even exceed the rates among white voters ( Pet.
3-4). If this evidence is reliable, a decree ordering crea-
tion of super-majority wards would plainly not be an
appropriate remedy.l2

More fundamentally, the court of appeals' presumptive
requirement of super-majoritv black and Hispanic wards
fails to distinguish between the need to remedy present-
day obstacles to political participation by minority group
members and an unalloyed desire to protect them from
defeat at the polls. The focus of amended Section 2 is
not on guaranteeing election results, but rather on secur-
ing to every citizen the right to equal "opportunity * * *

to participate in the political process" (42 U.S.C. lgZB).
As Senator Dole, principal sponsor of the eompromise
Section 2 that passed the Congress, stated in explanation
of his proposal, Section 2 would "[a]bsolutely not" pro-
vide any redress "if the process is open, if there is equal
aeeess, if there are no barriers, direct or indirect, thrown
up to keep someone from voting or having their vote
eounted, or registering, whatever the proeess may in-
elude" (128 Cong. Rec. 56962 (daily ed. June 12, 1982) ).
Cf . Whitcomb v. Chauis, 403 U.S. 124, tlg ( 19?1) . Sup-
porters of amended Section 2 in the Senate repeatedly
emphasized that the provision guaranteed "equal access,'

1l The district court noted a similar increase in voter registra-
tion and turnout among Hispanics (Pet. App. 127-lZ$. See DX
220; Tr.3712.

12 A super-majority might also be inappropriate where other
voters in the ward are divided among two or more races. See pet,
App. 112, 119-120.



t4 15

The court of appeals thus erued in its assumption that
as a matter of law "minorities must have something more
than a mere majority even of voting age population in
order to have a reasonable opportunity to elect a repre-
sentative of their choice" (Pet. App. 29), or that "65/o
of total population * * * represent[s] the proportion of
minority population reasonably required to ensure minor-
ities a fair opportunity to elect a candidate of their
choice" (id. at 33). The focus of a court's remedial ef-
forts must be not on creating "effective majorities" but
on eliminating barriers to equal opportunity to partici-
pate in the political process. If the court of appeals were
eorrect-if a 65% majority were "reasonably required to
ensure minorities a fair opportunity to eleet a candidate
of their choice"-then black and Hispanic voters would
be entitled tn 65% super-majority districts wherever they
could be drawn; anything less would deny them the "op-
portunity" they are entitled to by law. That view ( com-
monly denominated "proportional representation") was
expressly repucliated by Congress,ra and has been rejected
ty this Court. Brooks v. Al,lain, suprd,; Strake v. Seamon,
gupra.

b. That the court of appeals was incorrect in holding
that super-majority districts are required as a matter of
law does not, however, resolve the question whether the
district eourt's remedial order was an abuse of discre-
tion under the circumstances of this case. We submit
that in the eurrent posture of the case, it is difficult to

. determine whether the court of appeals was correet that
the district court's remedy was inadequate.

The remedy for a Section 2 violation, like that for most
Iegal infractions, depends on the violation. See UTtham, v.
Sea,mon,456 U.S. 37, 42 (1982) ; General Buildino Con-

1{ The statutory disavowal of proportional representation applies
no less to questions of remedy than to findings of violation. Senate
Report 3l; id. at 199 (Supplemental Views of Sen. Grassley) ; see
2 Senate He.arings 81 (statement of Sen. Dole) ("Fears that the
court would consider the disclaimer in determining whether there
is a violation but ignore it in fashioning the remedy are unwar-
ranted.").

(e.9., 128 Cong. Rec. 56655 (daily 10, 1982)
(Sen. Boren); id. at 5696)-1dfr[y ed. June 17, 1982)
(Sen. Dole) ) ba*<{-aia not apply where minorit
voters or "failed to participate given an equal
opportunitl ; id. at S6779 (daily ed. June 15,

1982) (Sen. Specter)). Accord, id. at 56647 (daily ed.

June 10, 1982) (Sen. Grassley) ; iil. at 56717 (daily ed.

June 14, 1982) (Sen. Tower); id. at 56717-56718 (Sen.

Moynihan) ; iil at S6964 (daily ed. June 17,1982) (Sen.

Kennedy) ; id. at S?110 (daily ed. June 18, 1982) (Sen.

Metzenbaum\ ; id. at 57118 (Sen. Sasser).
Accordingly, the question under Section 2 is whether

the challenged electoral practice "resultls] in the denial
of equal access to any phase of the electoral process for
minority group members" (S. Rep. 97-4\7, 97th Cong.,
2d Sess. 30 (1982) (emphasis added) [hereinafter eited
as Senate Reportl ). Where minority voters "merely
fail[] to participate given an equal opportunity" (128

Cong. Rec. 56779 (daily ed. June 15, 1982) (statement
of Sen. Specter) ), it would be contrary to the funda-
mental rationale of amended Section 2 to compensate by
creating super-majority seats. As Senator Leahy ex-
plained (2 Senate Hearings 46), "[i]t is the opportunity
to participate, not the actual use of that right, which is
crueial." ls

13 The court of appeals noted (Pet. App. 30) that while "good
motivation and organization" would contribute to improved voter
participation by blacks and Hispanics in Chicago, this would not
"fully rectif[y]" the problem; "[s]ome of the problems, at least,
spring from circumstances of low income, low economic status, high
unemployment, poor education and high mobility." Cf. Senata
Report 29 n.114. Facially neutral registration and voting practicee
sueh as restrictive times and locations for registration or residency
requirements (the court of appeals' example (Pet. App. 30) ) can
have a disproportionate impact on r)€rsons of low socio-economic
status, and thus effectively deny such p€rsons an equal opportunity
to participate in the plitical rlrrcess. A remedy under Section 2

might well require the jurisdiction to take steps to reduce these
obstacles to politicel participation (for example, by expanding the
times or locations for reg:istration). The district court made no
specific findings on this issue.



16

tractors Ass'nv. Pennsylttania,4S8 U.S. 375, 399 (1982) ;

Hitts v. Gautreaux, 425 U.S. 284,293-294 (1976). The

Senate Report explicitly endorses in this context "[t]he
basic principle of equity that the remedy fashioned must
be commensurate with the right that has been violated"
(Senate Report 31).'u To evaluate the remedy we must
therefore look first to the violation.

Plaintiffs (supported by the United States) presented

extensive evidence that the City Council had systemati-
cally fractured black and Hispanic eommunities and ma-

nipulated ward boundary lines in such a way as to dilute
minority voting strength. The crux of their case was that
the City Council consistently adjusted ward boundaries
so that black voters on the edges of predominantly black
parts of the city would be split off and placed in white
majority wards where they would constitute a large, but
ineffectual, minority. White voters, in contrast, were

virtually never placed in black wards where their votes

would not eontribute to a controlling white majority.
See Corp. Counsel's Br. in Opp. 2-4. The evidence pre-

sented to support plaintiffs' case is summarized in the

court of appeals' opinion (Pet. App. 20-21 & n.9). We

believe that the district court erred, as a matter of law,
in determining that these instanees of fracturing, pack-

ing, and boundary manipulation did not violate Section

2.10

16 Senators lepresenting view.q snmeti odds with those ex-

pressed in the majority views section'rrf Report, but

t7

The appropriate remedy for the violation alleged by the
plaintiffs would have been, as the Corporation Counsel

states, to attempt to replicate as nearly as possible "what
the likely ward configuration would have been but for the
illegal packing, fracturing and manipulation that actually
took place" (Br. in Opp.20). The remedy is to cure the

violation: where cohesive minority communities that
would logically fit within a single ward have been il-
legally fraetured, to restore them; where boundaries have

been artificially manipulated, to correct them. In other
words, if the City Council has used various districting
devices (packing, fracturing, boundary manipulation) in
a manner that results in dilution of the strength of mi-
nority voters, the remedy is to draw a map using ap-
propriate neutral criteria. Connor v. Finch, 431 U.S.
407, 421-426 (1977\; Marsh,all Y. Ddtuards, 582 F.zd
927, 937 (5th Cir. 1978), cert. denied, 442 U.S. 909
(19?9) ; Shayer v. Kirlcpatrick, 541 F. Supp. 922, 930
(W.D. Mo.) (three-judge court), aff'd, 456 U.S. 966
(1982). The point of amended Section 2 is not to maxi-
mize or protect the voting power of any given racial
group or to authorize judicial allocation of political power
on racial lines; it is to ensure that all citizens have an

equal "opportunity * * * to participate in the political

population shifts (Pet. App. 58) and as "a step toward integration"
(id. at 59), and stating that the packing was "a result of those
incumbents who wish to protect their incumbency" (ibiil,.) - We
agree with the eourt of appeals (id. at 19) that where incumbent
protection takes the form of carving out racially congenial wards
for white aldermen, the results may support a finding of a Sec-

tion 2 violation. Accord, fuIa,ior Y. Treen, 674 F. Supp. 325' 355

(8.D. La. 1983) (three-judge court)' The district court also ap-
peared to misunderstand the statutory concept of the "totality of
the circumstances," insisting that a Section 2 violation can be

found only on the basis of "the plan as a whole" and not on any

"specific ar@s" or "s1tecific wards" (Pet. App. 71 ; see id. at 64' 56) -

In our view, the opposite is true. Only by analyzing specific voting
practices or procedures can a court determine whether minority
voters have been denied equal access to the political system; to

focus solely on a districting plan "as a whole" reduces the inquiry
to a search forproportional representation.

supported the compromise adopted by
cited this statement concerning rem

Congress, approv-
under Section 2.

Senate-Fdpr#-104 a2A+ +ar4-4{i.dditiofia1 Views of Sen. Hatch ) ;

id,. at 199 (Supplemental Views of Sen. Grassley) ; see also 2

Senate Hmrings 81 (statement of Sen. Dole). Accordingly, this
statement may be viewed as reflecting a consenstls of the Congress.

See note lO, sttPra.

16 Because the question of violation is not before this Court, we

will not belabor the weakne.s'ses of the district court's legal analysis

in this regard. It suffices to say that the court appeared to mis-

understand the significance of manipulative boundary line drawing,
dismissing powerful evidence of fracturing as the natural result of



18

process and to elect representatives of their choice" with-
out regard to raee (42 U.S.C. 1973).r?

However, the precise contours of a remedy for this
violation remain hypothetical and abstract at this point,
for the district court's finding of a violation was not
based on the plaintiffs' showing of impermissible bound-
ary manipulation. Rather, the court based its finding of
a violation, affirmed in part by the court of appeals ( Pet.
App. 14, 24 n.l?), solely on a comparison of the number
of wards controlled by minority groups under the chal-
lenged plan with the number under the previous plan.
We believe that this "retrogression" analysis is not ap-
propriate to Section 2 cases, and that it is improper to
predicate a remedy on such a theory of a violation.

"Retrogression" is the standard applied under Section
5, 42 U.S.C. 1973c, to jurisdictions with a history of dis-
crimination touching on voting. See City ol Lockhnrt v.
United States, 460 U.S. 125, 133-136 (1983) ; Beer v.
United States, supra. The legislative history conclusively
demonstrates that the standard under amended Section 2
was not intended to be the same as that under Section 5.
Senate Report 68; id. at 104 n.24, para.8 (Supplemental
Views of Sen. Hatch) ; 128 Cong. Rec. H38,11 (daily ed.
June 23, 1982) (remarks of Rep. Sensenbrenner with

. Rep. Edwards eoncurring); 1 Senate Hearings 1254 (tes-
timony of Julius L. Chambers, President of NAACP
Legal Defense Fund); 2 Senate Hearings 80 (statement
of Sen. Dole). Indeed, the Senate majority report ex-
pressly states that "[pllaintiffs could not establish a Sec-
tion 2 violation merely by showing that a challenged re-
apportionment * * * involved a retrogressive effect on the
political strength of a minority group" ( Senate Report 68

r7 In this we agree with the district court (Pet. App. 65) that
the proportional representation disclaimer of amended Section 2
"prevent[s] any court from imposing a certain proportion of elected
repre.sentatives on a city, county, state or any political subdivision
and thereby merely by the numbers decide that a certain number
of representatives are going to come from each group,"

19

n.2241. There must be a showing of a rlenial of equal
access to the political system; a mere numeration of mi-
nority and majority controlled distriets is not suffieient.

The court of appeals correctly took exception to the
district court's legal analysis of the violation, finding spe-
cifically that fracturing can dilute minority voting
strength in violation of Section 2 and that the manipula-
tion of boundary lines in order to maintain a racially
congenial ward for incumbent white aldermen can be dis-
criminatory. Pet. App. 13-14, 18-22. But the court of
appeals did not itself define the violation with any degree
of precision. (Since respondents' suecessful argument in
the court of appeals for a broader remedy is predicated,
in part, on their contention that the district eourt's find-
ing of a violation was too restrictive, this is one of the
matters that must be addressed on remand.) Nor did the
court of appeals expressly recognize that an altered theory
of violation implies the need for a different theory of
remed-y. A "retrogression" theory of violation might sug
gest that the remedial question is how to allocate political
power among racial groups so as to preserve the position
of blacks and Hispanics, while the alternative theory of
boundary manipulation-espoused by respondents ,n,l ,p-
proved by the court of appeals-would, as discussed above,
suggest a remedy baserl on undoing the violations. On
remand, if the district court eorrects its holding on viola-
tion-as the court of appeals, the respondents, the Cor-
poration Counsel, and we agree it should-then it may
also eonclude that the question of remedy is not so simpll
as to create majority (or super-majority) black antl His-
panic districLs in a pre-ordained number of wards.

fn sum, as this ease reaches the Court, it is undisputed
that the City Council's districting plan violated Section 2,
but there is no legally sound analysis of the preeise na_
ture of the violation. Since the nature of the violation
has not adequately been established, this is not an appro-
priate case for this Court to address the difficult qires_
tions of remedy raised by petitioner. In order to dlter_



20

mine what remedy the minority voters of Chicago are

entitled to ( antl even to determine whether the district
court's remedial order was an abuse of discretion), fur-
ther proceedings on remand are required.

CONCLUSION

The petition for a writ of certiorari should be denied'

Respectf'ully submitted.

Rnx E. LoP
Solicitor General

Wu. BnnoponoRRYNoluS
Assistant AttorneY G ener al

Culmrs Fntno
D eputlJ S olici tor G eneral

Crrlnlns J. CooPnn
D epu,ty Assistnnt Attorney G eneral

Mrcsnnl W. McCoNNnll
Assistant to the Solici,tor General

Mlv 1985

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