Order

    ,1

a

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHESTER J. RYBICKf , et Ell.r

Plaint.iffsr

v. No. 81 C 6030

THE STATE BOARD OF ELECTIONS
OF THE STATE OF ILLINOIST €t il.1

Defendants.

I.{IGUEt DeIVALLET €t dI. r

v.

THE STATE BOARD OF ELECTIONS
OE THE STATE OF ILLINOIST €t 81.1

DefendanE s.

No. 81 C 6052

BRUCE CROSBYT €t at1.1

Pla int i ffsr
v. No. 8I C 5093

THE STATE BOARD OF ELECTIONS
OF THE STATE OF fLLINOIST €t dI.1

Defendant s.

Before CUDAHYT Circuit Judqe, GRADYT District Judgel and
BUA, District Judge.

CUDAHY, Circuit $]ge. fn our initial opinion of January

12, I982 followl'ng Ehe t.rial of these consolidated

reapportionment cds€s7 Rvbicki v. State Board of Elections, No.

81 C 5030 (N.D. 111. Jan. L2r 1982) [hereinafter cited as

'Fvbicki I'1, vre ruled on the merits of challenges to Illinoisr



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198I state legislative redistricting brought on behalf of black

voters (the Crosby plaintiffs) and Republican and suburban

voters (the Rybicki Plaintiffs).L/ Our decision with respect

Eo Ehe Crosby claims at the time of Rvbicki I trtssr we believe,

correctly based on the SuPreme Court's mosE recent analysis of

voEing dilution claims as set, forth in Citv of Mobile v.

Boldenr 446 U.S. 55 (1980). After our January 12 oPinion vras

issuedr however, and while we vrere reviewing the Crosby

plaintiffs' motion for reconsideration of the Crosbv decisionr

Congress extended and amended the Voting Rights act-U

Consequent.ly, in response to the Crosby Plaintiff sr requestr vr€

have decided Eo reevaluate those of the Crosby plainEiffst

claims t,hat we f ound wanting under the Bolden criEeria t'o

deterrnine whether the evidence may be sufficient to show a

possible violat,ion of the amended Voting Rights Act. As a

result of this reevaluat.ionr w€ are tentatively of the view

y We also approved a Settlement, Agreement reached between
defendant,s and plaintiffs suing on behalf of Hispanio voters
(ttre DelVa1le plaintiffs). See Rvbicki I, sliP. oP. at, 100-02.

Z/ on June 29, L9821 the President signed the extension of
the Voting Rights Actr 61s amended. The legisla|ive history
states Ehat. one of the objectives in arnending Section 2 was'Eo
clearly establish the sEandards intended by Congress for
proving a violation of that section.' S. Rep. No. 4L7t 97Eh
Con9. r 2d Sess. 2 (1982).

The amended Section 2 reads as follows:
Sec. 2. (a) No voting qualificaEion or

prerequisite to voting or sEandard,
Practfce t ot Procedure shall be imposed or
applied by any State or Political
subaivisionn 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 colorr or in

(footnote continued on next Page)



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that in certain sPecific areas on Chicagor s South Side the

Iocation of t,he district linesr in connection wit,h highly

concentrated black districts, and in lignt of all the relevant

fact,orsr rnoy be suspect under Lhe 'results' test of Ehe amended

Act. Therefof,€r we request, Ehe Commission to redraw certain

district lines in the specific areas h,e identify below so as t,o

correct these aPParent districting deficiences.

I.

The legislat,ive history of the amended Voting Right,s Act

clearly indicates that clains of vote dilution do come wiEhin

t,he scope of the Actr S. Rep. No. 4L7, 97th Cong.r 2d Sess. 30

n.!20 (1982). Further, in order to prove vote dilutionr
plaintiffs need not demonstrate t,hat 'the disputed

Cont i nued

conEravenEion of the guarantees set forth in
section 4(fl (2) , as Provided in subsection
(b).

(b) A violaEion of subsection (a) is
established if, based on the totality of
circumstancesT it, is shown that the
polit,ical Processes leading t,o nonination or
election in the State or Political
subdivision are not equally open to
participaEion by rnembers of a class of
cit,izens protect,ed by subsection (a) in that
its nembers have Iess opportunity t.han other
members of Ehe electorate to participate in
the poliEica1 process and Eo elect
representat,ives of their choice. The extent
to which members of a protected class have
been elected to office in the State or
poliEical subdivision is one circumstance
which may be considered: Provided, That
nothing in this section estabtishes a right
(footnote continued on next Page)

z/



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plan was 'conceived or operated as Ia] purPoseful devicIe] to

further racial . . . discrimination.t' Boldenr 446 U.S. aE

65. Insteadr plaintiffs can prove a violation of the Act

merely by showing 'that t,he challenged system or pracEicer in

the context of all Ehe circumstances in the iurisdicEion in
questionr E€sults in minorit,ies being denied equal access to

the political process.' S. Rep. No. 417, 97th Con9.r 2d Sess.

27 (enphasis suppliea) .l/ Under this 'results' tesEr w€ must

'assess the impact of the challenged structure or practice on

Ehe basis of object.ive factorsT rather than makIe] a

Z/ Continued

to have members of a protected class elected
in numbers equal to their ProPort.ion in the
population.

Vot,ing Rights Act Amendment,s of L982, Pub. L. No. 95-205t S 3,
Lg82 U.S. CODE CONG. & AD. NEWS (96 SEat. ) 131r I34 (t,o be
codif ied at 42 lJ.S.C. S I973).
y The House Judiciary ComrniEtee Report on the Voting Rights
Act extension and amendment specifically identifies districting
plans as within the scoPe of Section 2. H.R.'Rep. No. 227,
97th Cong.7 1st Sess. 30-31 (1981). This Report was based uPon
H.R. 3112, 97Eh Con9.r 1st, Sess. (1981), a bill whose wording
was slightly different from the language ultimately enacted
into lahr. The Senate Judiciary Comrnittee RePort, however,
characterized the House and Senate bil1s as 'virtually
identical.' S. Rep. No. 4L7, 97th Cong.1 2d Sess. 3 (1982).
Defendants do not dispute 'at t,his juncturer the aPPlicability
of the amended Section 2 to this case. Def

presents issues of reEroactive application because our analysis
in Response to Auqust 51 1982 Court order at 3: We do not

e Present districting PIan

focuses on the future effects of this Plan in t,he 1984, 1986,
1988, and 1990 elections. See Hereford IndependenL
District v. Bellr 454 F. SuFFI
@cation of section 5 to election Procedures

(footnote continued on next Page)



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deternination about Ehe motivations which lay behind its
adoption or maintenance.' Id. Congress has provided us with a

nonexclusive list of objective factors to guide us in
deternining whet.her in a particular case the challenged

Practice or structure violates Section 2. See S. Rep. No. 4L7,

97th Cong.r 2d Sess. 28-29 e nn. 114-18 (1982). These factors

are applied to this case in the following Section.

rI.
The focus of continuing concern in this case is on the

South Side districts. The South Side majority black house

dist,ricts contain high concentrations of blacks, much greaEer

t,han 65t of t.he districE population -- the percentage generally

Presurned necessary for a minority population to elect a

representative of their choice.A/ Furtherr the Crosby

Y Cont, inued

adopted Prior to, but administered in elections subsequent to,
the effective date of the Voting Rights Act).

L/ The 65t figure is a general guideline which has been used
by the DepartnenE of Justicer reapportiorunent experts and the
courts as a neasure of the minoriEy PoPulation in a district
needed for mlnority voters to have a meaningful opportunit.y to
elect a candidate of their choice. & Mississippi v. UniEed
Statesr 490 F. Supp.559 (D.D.C. 1979), g!!!!r 444 U.S. 1050
(I980T. The 55t guideliner which the SuPreme Court
characterized as 'reasonable' in United Jewish OrganizaEionsr
Inc. v. Carev, 430 U. S. 144, 164 (L977) , takes int.o account the
younger-mEEIan population age and the lower voEer registration
and Eurnout of .minority cit.izens.

(footnote continued on next Page)



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plaintiffs contended at trial that 'It]he boundary lines for

Commission house districts 17r 18, 23, 24, 25, 31, 33 and 34

Erace in great part t,he boundaries of the heavy black

concentration in Chicago.' Crosbv Plaintiffsr Proposed

Findinqs of Fact No. 97. They contend now t,haE 'the map

adopEed by the Court imposes the same racial wall as t_he

Comnission's original map, onli now involving senate districts
L2, 16 and L7 (as revised) and house districts 23r 24r 31r 33

(as revised) and 36 (as revised).' Memorandum in Support of

Crosby Plaintiffst Post-Trial Motion 4. The 'resulE' in terms

of concenEration of black populations in voting districts is

clearr in connection with this concentration the alleged

correspondence between district lines and racial divisions
(characterized for rhetorical purposes as a 'wal1') must be

examined furt,her. For we must decide whether these 'resuIEs'

!/ . Cont inued

Testimony in the inst,ant case established that
RepresentaEive Madigan and his staff were made aware of the 65t
guideline by Mr. Bracer their consultant, during the sumner of
1981. (Tr. at 1957). At trialr witnesses for both sides
referred approvingly of the 65t figure. (Tsui, Tr. at 26-27i
Newhouse, Tr. at 623i Eofeller, Tr. at 403-04; Brace, Tr. at
1956-57). Moreov€r7 defendants' expert testified that the 65t
guideline had been used in state reapportionment and
redistricting. (Bracer Tr. at 1957). The 55t standard was
also referred to in the recent oPinion of the three-judge courE
in In re Illinois Congressional Districts Reapportionmen!

r ?f!:q
sub non. McClorv v. Ottot 

- 

U.S. 

-, 

102 S. Ct. 985 (1982).

We think it, appropriater howeverr to take judicial notice
of the fact that in the March 1982 Democratic Primary election
for the new SenaEe District 18, a district redrawn at, Ehe
behest of this court t,o include a 66t black PoPulationr black
candidat,es were unsuccessf ul in their ef forts to unseat, Ehe
white incumbent Senator.



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(high concentrat,ions and correspondence between election
district and housing segregation demarcations) r €ither singry

or in combinationr and in the context of Chicago Political
realit,ies, violat.e the Voting Rights Act.

We think ie deserves notice at the outset t,hat the

complainEs we address here have their root in the extremely

marked housing segregation on Chicagor s South Side. A large

area on the South Side is. more Ehan 85t black. & PI. Ex.

L2. Given this segregation and t,he terriEorial basis of

represenEat.ion under our system, it is inevit,abler absent Ehe

most outlandish gerrymandering, that at least t,he voting

districts in the inEerior of this area will be very heavily

black. Obviouslyr w€ deplore the extreme degree of housing

segregation in this area; but Ehere is no evidence before us

that the design of voting districts has any impact on housing.

Our ability in a redistricting case to deal wit,h the problem is
thus linited at best.

Congress has suggested that we consider certain factors in

deciding a challenge to the result of an election practice or

structure. The factors are set forth in the following excerpt,

from a Senate committee rePort:

1. the extenE of any history of
official discrimination in the state or
political subdivision that touched the right
of the nembers of the rninority group to
register, to voter or otherwise to
participate in the democratic process;

2. the extent to which voting in Ehe
elections of the state or political
subdivision is racially polarizedi

3. Ehe extent t,o which the state or
political subdivision has used unusually



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large election districtsr majority vote
requiremenEs, ant.i-single shot provisionsr
or other voEing Practices or Procedures that
may enhance the opportunity for
discrimination against the minority grouPi

4. if there is a candidate slating
Process, whether the members of the minorit,y
group have been denied access to that
Proces s i

5. the extent to which rnenbers of the
minority group in the state or political
subdivision bear the effects of
discrimination in such areas as education,
employment and healthr which hinder their
ability to participate effectively in the
political processi

6. whet,her polit,ical campaigns have
been characEerized by overt or subt,le racial
appeal s;

7. the ext,ent to which members of the
minority grouP have been elected to public
office in the jurisdiction.
Mditional facEors Ehat in some cases have

had probative value as part of Plaint,iffsr
evidence to establish a violation are:

whether there is a significanE lack of
responsiveness on the parE of elected
officials to the particularized needs of the
members of the ninoritY grouP.

whether the policy underlying the stat,e
or political subdivision's use of such
vot,ing qualificationr prerequisiEe to
voting t oE standardr Pr"ctice or procedure
is tenuous.

While these enumerat,ed fact,ors wiIl often be
the most relevant ones, in some cases ot.her
factors will be indicative of the alleged
d i lut ion.

The cases demonstrater and the Comnitt,ee
intends t,hat there is no requirement that any
particular number of factors be Provedr or that a
rnajority of them point one way or the other.

S. Rep. No. 4!7 , 97th Cong. 7 2d Sess. 28-29 ( 1982) ( f ooEnot.es

omitted).



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These factors are in turn derived from the analysis in

White v. Regester, 4L2 U.S. 755 (1973). In WhiEeT the Supreme

Court reviewed a Ehree-judge district court's invalidation of

the Texas 1970 legislative reapportionment. The significance

of the case for present purposes rests in the approach taken by

the district court and followed by the Supreme Court in

invalidating nultimember districts in Dallas and Bexar

Counties. In looking aE Da1las County, the district court

considered the history of Texas politicsr including the effect

of official racial discrimination on t,he righE of blacks to

register and vote and to participate in the democratic process;

the use of a system that enhanced the opportunity for racial

discriminat,ion;.the fact that since Reconstruction there had

been only two blacks in the Dallas County delegation to the

Texas House of Representatives; the fact that, a white-dominaEed

organization ef f ect.ively controlled Democratic Party candidat.e

slating in Dallas Count! and thus had great influence over

elections; the fact that this organization did not, need the

support of blacks Eo win elections and therefore did not

concern itself with political and other needs and asPirations

of blacks; and the fact that this organization us.ed racial
campaign tactics in whiEe precincts to defeat black-supported

candidates. The district court thus concluded that 'rthe black

conmunity has been effect.ively excluded from particiPation in

the Denocratic Primary selection proc€ss7 I . . . and was

theref ore qenerallv not permit.ted to enEer into the political
process in a re1iabl.s and ]nearl1_rt9lql-Inerlrt9r.' Whit'e v.

Reqester, 4L2 U.S. at 767 (emPhasis suPPlied).



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A similar aPProach was employed in analyzing t,he legality
of the rnult.imenber district in Bexar County, a county with a

significant Hispanic community. Here the district,court
considered the effect on political particiPation of

discrimination in education, employmentT €coDoIIlicsr health, and

other areas. The court concluded that 'Bexar Count,y

Mexican-Arnericans tare effectively removed from the PoliEical
processes of Bexar ICounty] . o . .t' whiLsl v. Reqesterr 4L2

U.S. at 769.

The Supreme Court affirmed the district courtrs

invalidation of the Dallas and Bexar Counties multimember

districts. The Court accorded deference to the district
courEts careful consideration of the factual circumstancesT and

said wit,h resPect to Bexar County,

[o]n the record before usr we are not
inclined to overturn these findingsr
rePresenting as they do a blend of history
and an inEensely local aPPraisal of the
design and impact of the Bexar County
mulEimernber district in the light of past.
and present, realit,yr Political and othervrise.

WhiEe v. Reqester, 412 U.S. at, 769-70.

As we noted in our oPinion of January L2, 1982r the record

before us does not disclose a history of overt and systematic

electoral discrinination comparable to thaL identified by the

district courE in tJhite v. Regest,er. Illinois has never had a

white Primary or a pol] tax. Most irnporEantly, unlike the

organizaEion then in control of the Democratic Party in Dallas

Countyr the Democratic organization in the City of Chicago

depends upon the suPPort of the black cornrnunity to win

elections and therefore must be at least somewhat resPonsive to



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black votersr needs and asPirations. Indeed, rat,her than

ignoring causes helpful to blacksr the Democratic Party in
Illinois has been a principal exponent of civil rights
legislation and of social legislation imporEant to blacks.

Alsor unlike the situation in Whit,e v. Regester, many blacks

have been elected to local office in Chicago and to state and

national positions representing Chicago. Sixteen of the fifty
aldermen in Chicago are bIack. Thirteen of the thirty-five
state representatives and five of the nineteen state senators

from Chicago districts are black. Three of the seven U.S.

Representatives from Chicago are black. In surllr t,here has been

no systematic exclusion of blacks fromr or denial of meaningful

participation in, Chicagors and Illinois' Politica1 Processes

comParable to t,he history outlined in White v. Regest,er.

On t,he other side of the balaoc€l we must give weighE t,o

our findings of purposeful dilution of black voting strength in

the Cornmission's actions with resPect, to senate dist,ricts L4,

L7 and 18 of the Comnission Plan. We found that the immediate

purpose of the Commission in drawing t,hese districLs was

primarily to preserve the incumbencies of two white state

Senators. We also found that 'this Process was so intimately

int,ertwined with, and dependent onr racial discrimination and

dilution of minority vot,ing strength that PurPoseful dilution
has been clearly demonstrated in the construction of Conmission

senate districts 14r 17 and 18.' Rvbicki r, slip op. at 58.

We also note our finding that on Chicagors West Side there

was fracturing and Packing of blacksr the net effect of which

was 'the purposeful dilution of black voting sErength on the



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West, Side by ac least one House District.' Id. at 72.

Furtherr w€ should take into account, to the extent

relevant, in deciding whether the challenged Practices deny

blacks an equal opportunity to particiPate in the poliEical

process and t.o elecE rePresentaEives of Eheir choice, the Poor

socio-economic conditionsr unemployrnentr ond traditionally low

voEer registration afflicting black communities in Chicago.

Alsor we recognize as part of this case's 'totality of

circumstEnc€srr that employment, or other discriminaEion has

been alleged and/or proven in such City units as the Chicago

Police Department.r the Chicago Housing Authorityl the Chicago

Board of Educationr the Chicago Public Libraryr dlrd the Chicago

Park District. &g id. at 94.

Although it is unclear that the Crosby plaintiffs are

arguing the issue of 'packing' t,hrough excessive.concent,ration

of minority populations in voEing districts except insofar as

these concenErated districts may have boundaries EhaE follow

racial divisionsr we think we should first consider whether the

present concentration of blacks in election districts aPProved

by this courtr in the t,otality of circumst,ances and in and of

iEseIf, denies blacks equal access to E,he PoIitical Process.

The Eouse Districts wiEh particularly high black concentrations

are District 23 (94.339 black)r District 24 (98-43t black)r

Dist,rict 25 (84.33t black)r District 31 (98.44t black)r

District 32 (98.94t black)r and District 35 (97-8lt black).

Three other South Side house districts have majoriEy black

populations. These are District 33 (66.378 black) r Dist'rict 34

(73.351 black)r and District 26 (78.21t black). The four black



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majority West Side house districts are Dist.rict I5 (66.32t

black)r District 17 (7I.93t black)r District 18 (77.05t black)r

and District 19 (75.31t black).
At the outset, we are inclined to remove from consideration

those districts whose black PoPulation constitutes less than

80* of the district population. Given that 65t is a generally

accepted threshold for Providing an oPPortunity for minorities

to elect a representative of their choice, it seems to us

unnecessary in light, of all the circumstances of this case to

be concerned with districts whose black population is less than

I5t above this threshold. In additionr there is evidence that

in some circumstances minority representation may be in
jeopardy even when the Portion of minorities in a district
exceeds 80t.

This leaves us with Districts 23, 24, 25, 31r 32, and 36

districts the black populations of which dr€7 respectively,

94.33t, 98.43t, 84.33t, 98.44*, 98.94tr ord 97.81t of the

district tota1. The arguably illegaI 'result'. of having these

highly concentrat,ed districts is not specific to any one of the

districts; indeed blacks within each concentrated district have

an obviously st,rong opportunity to elect rePresent.atives of

their choice. InsteadT the adverse result nay be identifiable
in terms of what might otherwise have occurred elsewhere. If
keeping black majorities in districts below 80t were a primary

objective of redistricting, fewer black votes would be 'wasted'

and instead wouldr itE least in theory, be available to form



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black majority districts elsewh "r".2/
But this 'wasting' of minority votes in and of itself does

noE, we believer in the circumstances before us violate the

Voting Rights AcE. Given the present level of black

participat,ion in the political Process and the ability of

blacks to elect representatives of their choice, we cannot, say

that, these highly concentrated districts, without morer

demonst,rate a Voting Rights Act violation. This is not t.o say

that, in other circunstances in which the white v. Regester

factors might weigh more heavily in favor of Plaintiffsr high

concentrations could not be found illegal. We determine only

that in the case before usr and wiLhout more, they are not,

illegal. But we now confront the issue whether they nay be

tinged wiEh illegality when considered in connection with Ehe

correspondence of district lines to lines of racial division
(the 'tracing' issue).

We could treat the tracing issue in either of two ways.

Firstr w€ might consider whether voting district Iines

corresponding to lines of racial division segregate black

voters and whether Ehis is unconstitutional without regard t,o

dilution of voEing strength. Secondr lr€ might consider

Y Inasmuch as house district 32 is an 'interior' disErict,
roughly in t,he center of the area of heavy black concentration
on t,he South Sider it seens doubEful thatr absent the most
outlandish gerrymandering, district 32 could be
deconcenEraEed. Because of our conclusions in this cds€7
howeverr w€ need not decide whether a different analysis should
be used for'int,erior' versus'exterior' concentrated districts.



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whether, as a matter of dilutionr the conjunction of highly

concent,rat,ed black districts and the tracing of racial
divisions in drawing districE lines in some fashion resultsr in
Eerms of the Voting Riqhts Actr in blacks having unequal access

to the political Process

We think the latter approach is the only correct one in

this vote dilution case. To the extent tl,. Crosby Plaintiffs
seek to amend their complaint under Fed. R. Civ. P. 15(b) to

assert new claims apparent,ly alleging unconstitutional racial

segregation'and infringenent of certain associational rights of

black citizensr w€ regard such claims as essentially unrelated

to t,he allegations upon which this action was Premised.g/

This lawsuit was pleadedr tried and decided on a theory of

dilution ofr or gerrymandering ofr black voting strength.

Claims alleging unlawful racial segregation by voting district,
in a fashion not encompassed within a charge of

gerrymander-based vote dilutionr vrere not pleaded, proved or

decided here. Compare, ,. 37 6 U.S. 52, 59

(1964) (Douglasr J., dissenEing). Alsor nothing at trial has

suggested that defendants have given their express or imPlied

consent t.o resolution of such wholly distinct claims by this

5l we note thaE we are unaware of any decision which has
upheld a claim of segregation by voting district. Such a
claim, we presumer lrould involve some analogy between vot,ing
districts and, for exampler s€gregated schools (where race Yras
not an gJplicit at,tendance criEerion) and school dist,ricts. In
terms oE assoElational factoEsr such an analogy would seem
difficult, to draw; but we need not reach the issue here.



,
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court. And we remain persuaded that any t,heory of segregaEion

by vbting district is fundamentally at, odds with t oE is at

least inconsistent withr the idea of achieving sufficient

minority concenErations in voting districts to enable

minorities to elect rePresentatives of t,heir choice. This

conclusion is dramatically illustrated by the fact that voting

at large (and wiEhout districts) achieves the highest possible

integraEion of racial and other minoritiesr but simulEaneously

provides such rninorities with the least oPPortunity to elect

representatives of their choice. Thereforer under these

circumstanceS we cannot, allow the Crosby plaintiffs to amend

their complaint, aE this late stage to litigate these

essentially unrelated claims. E 6 C. WRIGHT & A. MILLER,

FEDERAL PRACTICE AND PROCEDURE S 1493 (1971).

However, in Part III B 3 of Rvbicki Ir Vt€ carefully

considered plaintiffs' arguments regarding election district

lines corresponding to racially segregated housing patEerns

insofar as these lines may contribute to excessive

concenEration (or 'packing') andr therefol€r 'wasting' of the

black voEe. Rvbicki I, slip oP. at 73. We found against,

plaintiffsr aPPlYing the Citv of Mobile criteriar because the

evidence did not est,ablish that the district lines lrere drawn

with the purpose to dilute black votes. We now reconsider the

evidence to deternine whetherr ds plaintiffs a11ege, elect,ion

district lines trace divisions between blacks and whiEes and

whether thisr by 'packing' and 'wasting' the black voEe,

violat,es the 'results' test of the amended Voting Rights Act as

applied t,o these circumstances.



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Our first task is to determine whether and where such

tracing takes p1ace. The Crosby plaintiffs stated broadly in

their ProPosed findings of fact that, 'It]he boundary rines for
Commission House Districts L7, 18, 23, 24, 25r 31r 33 and 34

trace in great, part the boundaries of t.he heavy black

concentrat,ion in Chicago. . . . These lines create a 'walll
around the residentially segregated black communities in

Chicagol thereby appearing to confer an official governmental

sanction on the racial segregation which exists in Chicago.'

No. 97.

Similarlyr in their memorandum suPPorEing t'heir post-trial
notionr the Crosby plaint,iffs referred to 'the wallr which

separates the races by faithfully tracking the lines of

segregation in housing on the south side of Chicago for more

than 15 milesr'and complained that 'the map adopted by the

court imposes the same racial wa11 as the Commissiont s original

hdpr only now involving senate districts 12, 15 and L7 (as

revised) and house districts 23r 24r 31r 33 (a.s revised) and 36

(as revised).' Memorandum in Support of Crosbv Plaintiffsr
Post-Trial Motion 3-4.U Finally, the Crosby Plaintiffs
asserted that, 'every classification made in the creation of

Z/ We also note that house districts L7 and 18, the West
Side districts singled out at t.rial by the Crosby Plaintiffs as
districts whose boundaries traced racial divisions, were
altered in our original order in resPonse to our finding of
purposeful voEe dilution. District L7 is now 71.93t black and
district 18 is 77.05t black. Thus, they are noE highly
concentrat.edr S supra P. 13, and further modif ication is
clearly not required by the Vot.ing Righls Actl s€€ supra PP.
I3-14.



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this 16-mile barrier was racialJ.y founded. The Iines forming

the wall were a concession to the racial animosiEy and

hostility in the' .' RePlv

Memorandum in Support of Crosby Post,-TriaI Motion I5 (emPhasis

supplied ) .

In Rvbicki I we did noE perceive a need to establish in

detail and wit,h Precision the facts involving the alleged

tracing of racial divisions because we focused on the moEives

of the Comnissionr ds required by City of Mobile v. Bolden, 446

U.S. 55 (1980), and found that, Ehey had not been shown t,o be

un1awful. Nowl howeverr w€ are instructed to look at the

'results' of redistricting and the motives of the Conmission

are not cont.rol1ing. Thus we should det,ermine if in fact the

Comrnission and court,-adopted plan trace racial divisions and,

if sor whether this in some fashion violates the Voting Rights

Act.

We not,e at the outset, that the allegations of the Crosby

plaintiffs quoted above paint with too broad a. brush. Instead,

great specificity is required to aPPraise the precise location

of district lines and the PoPulations through which t,hey run.

Moreoverr w€ must begin with at least a Preliminary idea of

what it, means in the redistricting context to trace racial

divisions. '

Our analysis will focus on the populations of census tracts

immediately adjacent to district lines that, follow heavily

concentrated (85t+) black census tracts in house dist,ricts 23,



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24r 31, and 36.9/ We have two alternate ways of looking at.

the poPulation data in Eesting the tracing allegation. First,

we might, find that tracing occurred where the district line
runs between a highly concentrated (85t+) black census tract
and a minimally concentraEed black census tract. Thus our

fOcUS woU1d be on 'black' Versus 'non-black' census tracEs.

The second way of looking at the population data is to find

that tracing occurred where the districE line runs bet,ween a

highly concentrated black census tract and a highly

concenErated white census tract (or at least a'tract containing

a significant number of whites with no substantial non-black

minority). From this vie%>oint a district line drawn between a

black census tracE and a tract containing substantial

noru"rp/ of 1ron-whites (other than bracks) would not be

characterized as significantly tracing racial divisions.

We believe that the latter aPProach is the correct one-

we looked more broadly at the black versus non-black census

tractsr w€ would not recognize t,he legitimate .interests of

9/ Census tract data are contained in Pl. Ex. 28.

Plaintiffs also objected to the lines of house dist,rict 33,
as revised. Memorindum in Support of Crosby Plaintiffrs
Post-Trial Motion 4. This dist,rictr howeverr is only
56.37t black and therefore the lines do not conEribute to
any 'packing' Problem in this district. Furtherr
pflinEiffs do not challenge the lines of house disErict 32,
an 'interior' district t oE house district 25, a disErict
bordering Lake Michigan. Instead, plainEiffs challenge the
house districts on the western side of Ehe area of heavy
black concentration. The allegation is that Ehe district
lines of these districts t,race the racial division between
whites to the west and blacks to the easE.

2/ For this purpose vre have generally regarded a minority
percentage of-33t or more as 'substantial.'

If



O
e20Pag

non-blackr non*rhite groups in avoiding t,he f racturing of their
vot,ing power .LO/ For exampler the district boundary along

Ehe southeast, edge of house district, 18 on the West Sider a 771

black districtr runs between heavily concentrated black census

tracts in District 18 and tracts 3005r 3006r 3007r 3008r 3003,

3002 and 29L6, which are in house district 20. House District
20 is 71t Hispanic and its composition is prescribed by the'

Hispanic SettlemenE Agreement. Rybicki Ir Slip op. at I00-01 &

n.I04. Tract 3005 has a population of 3636 and is 75.9t

Hispanic. Tract 3006 is 69.8t Hispanic. Tract 3007 is 89t

Hispanic. Tract 3008 is 90.It Hispanic. Tract 3003 is 46.7t

Hispanic. Tract 300? is 88.5t Hispanic. Finally, tract 2916

is 71.It Hispanic. Similarlyr the northeast boundary of house

district 23, a 94t black districtT EUns between heavily

concentrated black census tracts and Eracts 3402 and 3404 in

house district 19. These two tracts are 741 and 29.3t Asian

andr we may take judicial noEice that,, together with tracts
3401 and 3403, they contain t,he area known as.'Chinatown.'

Since we are not aware of a persuasive basis in law for
fracturing one minorit.y in the interest of deconcentrat,ing

anot,herr we t,hink it aPproPriate to examine an apparent tracing

of a racial division as presenting a suspect circumstance under

the Voting Rights Act only where a line runs between heavily

concentrated black and substant.ially white census tracts

&/ We would also be looking aE something ot,her than 'whit,e
areas adjoining the wallr' the situation of which the Crosby
plaint.iffs complain and the factual predicate for contentions
abouE a racial 'Trall.' See supra pp. 17-18.



O
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(or at least tract,s containing a significant number of whites

with no substantial non-black ninoriEy), and where such a line
arguably conEributes to 'packing' and therefore 'wasting' of

black votes. We now turn to the evidence.

Ilouse district 23 is a 94t black district on Chicago's near

South Side. Dist,rict 23rs western boundary follows t.he eastern

edge of six census tracts: tracts 3402,3404r 3405, 6016, 5101,

and 5108.1L/ Tract 3402 has a total population of 5319. of

this number, 3941 (74t) persons are Asian,/Pacific Islandersr

991 (18.5t) are whiEesr 284 (5.3t) are blacksr and 103 (1.91)

are listed as other. In addition to and separate from the

racial breakdownl 136 (2.5t) persons are Iisted as persons of

spanish orig i7r.L2/ Tract 3404 has a total population of

1605r made up of 927 (57.7t) whites, 472 (29.3t) Asian,/Pacific

L/ Census tracts bordering the challenged districts can be
identified by using Ct. Ex. 1A, which is a reproduction of the
court-approved district lines superimposed on a census tract
map of Cook CountY. 

.

9/ Because persons Iisted in census data as being of
Spanish origin may be of any racer (P1. Ex. 43r Bureau of the
Censusr U.S. Dept. of Commercer 1980 Census of Population and
Housinq -- rllinois Advance Report 3 (March 1981) ) ' one cannot
Inow-Trom thiEdat,a which oE Ehe five racial categories (white,
blackr American fndian-Eskimo-Aleutr Asian/Pacific Islanderr
and Other) should be reduced for present purposes to reflect
t,he Hispanic concentration in a census t,ract. This does not
pose a problem herer howeverr because for the purpose of
identifying any tracing of racial divisionsr w€ think that the
existence of a substantial number (33t or more) of Hispanic
voters in a census tract bordering a black district negat,es a
finding of a suspect tracing of a racial division. E supra
n.9 and accompanying text.



,
22Page

rslandersr 106 (5.6t) othersr and I01 (5.2t) blacks. Tract

3404 has 273 (16.9t) persons of Spanish origin. TracE 3405 has

a population of 1785r with 1376 (77*) whiEes and 367 (20.5t)

blacks. 79 (4.4t) people are Hispanics. Tract 6016 has a

population of 515, with 446 (86.4t) whitesr 52 (10t) othersr

and 16 (3.It) blacks. 107 (20.7*) persons in tract, 6015 are

Hispanic. .E!-..,1[19] has a population of 1220, with LO77

(88.2t) whites,75 (5.lt) blacks, and 68 (5.5t) others. 178

(14.5t) persons are Hispanic. Finallyr tract 6108 has a

population of 1939 wiEh 1905 (98.2t) whites, 30 (1.5t) othersr

3 (.It) blacks, and I (.05t) American Indian. 140 (7.2t)

persons are Hispanic. In SUrnT of the six census tracts just

beyond the western boundary of house dist,rict 23, tract 5108

clearly meets our criteria for investigat,ion. Tract 5101 is at

least suspect since the largest non-white grouP is Hispanic and

this group constit,utes only 14.5t of the district population.

Sinilarlyr tract 5015 bears investigation since it, is only

20.7* Eispanic. Tract 3402 is 74* Asian and 5..3t black. TracE

3404 is 29.3t Asianr-Ll/ 16.9t Hispanicr dlrd (depending on Ehe

race of the Hispanics) up to 6.2* b1ack. Tract 3405 is 20.51

black wit,h no other substanEial ninority.

L3/ on the assunption that,
of 'Chinat.ownr' see ggPE P.for our purposes even though
Ehe 33t 'threshold' we have
and accompanying text.

t,he 29.3t Asian minoriEy is part
20, we t,hink it is 'subsEantial'
this minority is s1ightIY below

generally fo1lowed. E suPra n.9



aPag

House district 24 is a 988 black district immediately south

and west. of house district 23. The district line under

iqvestigat,ion here runs along the border of census tracts 6109,

6110and6119.@hasapopu1ationofl4727with1048
(71.It) whitesr 302 (20.5t) blacks, 119 (8t) others, and 3

(.Zt) Arnerican Indians. 184 (12.5t) persons are Hispanic.

Tract 6110 has a population of 1700r with 1054 (62t) blacks,

337 (19.8t) whiEesr 301 (17.7t) othersr and 8 (.4t) Asians and

American Indians. 395 123.2*) Persons are HisPanic. Tract

6119 has a population of 4791r with 1774 (37t) whitest 1726

(35t) blacks, L275 (26.5t) othersr and 16 (.3t) Asians and

American fndians. 1999 (41.7t) persons in tract 6119 are

Hispanics. Tract 5109 is at least, suspect under our criteria.
House district 31, the next district, whose boundary is in

questionr is a 98t black district. It is bordered by census

tracts 6119, 5118, 61L7, 6705, 6714, 6610, 7001 and part of

7005. Tract 6119, which also borders district 24, has a

population of 479Lr with 1774 (37t) whites, L7.26 (36t) blacksr

L275 (26.6t) othersr and 15 (.3t) Asians and American fndians.

1999 (41.7t) persons in this tract are Hispanics. Tract 5118

has a population of 3620, with 2261 (62.4*) whit,es, 772 (21.3t)

othersr 572 (15.8t) blacksr ilrd 15 (.4t) Asians and American

Indians. 1573 (46.2*l Persons in this tract are Hispanics.

Tract 6112 has a population of 3585, with 2465 (58.7t) whites,

942 (26.2*) othersr l5E (4.4t) blacks and 20 (.5t) Asians and

American Indians. 1750 (48.89) Persons in this tract are

Hispanic. Tract 5705 has a population of 2254, with 2150

(95.3t) blacks, 7l (3.lt) whitesr 31 (1.3t) othersr and 2



,
e24Pag

(.08t) Asians and American Indidns. 57 (2.5t) Persons in this

tractareHispanic.@hasapopu}at,ionof3006,wiEh
2950 (98.lt) blacks, 51 (1.6t) whitesr and 5 (.It) Asians and

others. 20 (.5t) persons in this tract are Hispanic. Trac.1!

5510 has a populat,ion of 5505r wiEh 3241 (57.8t) whitest 2029

(36.lt) blacks, 248 (4.4t) othersr and 88 (1.5t) Asians and

American Indians. 367 (5.5t) Persons are Hispanic. Tract 700I

has a population of 3283, wiEh 3148 (95.8t) whites, 105 (3.It)

othersr and 30 (.9t) Asians and American Indians. 150 (4.5t)

persons are Hispanic .L4/ Eract 7005 borders both district 31

and district 36, the next, district, to the south. TracE 7005

has a population of Llr162t with 9875 (88.4t) whites, 1083

(9.7t) blacks, 140 (1.2t) othersr and 63 (.5t) Asians and

American fndians. 285 (2.5t) Persons are Hispanic.

To summarize district 31r tracts 6119, 6118, and 5117 are

each 40+t Hispanic. Tracts 6705 and 67L4 are each 90+t black.

Tract 6610 is'57.8t white and 36.lt black. Tracts 7001 and

7005 clearly bear investigation. Tract 6510 i.s at least

su sPect .

House district 36r d 97.8t black districtr is the next'

district to south. IE is bordered by the southern half of

tract 7005 and tracts 72O} and 7202. Tract 7005r detailed

L!./ Although the data we have for tract 7001 are for the
entire tract, t.he tracE itself is divided between house
districts 29 and 30. Thus only aPProximately two-Ehirds of the
area of 70Ol is in the district immediately adjacent to house
district 31. The heavily white composiEion of tract 7001,
however, negates a need Lo rnore precisely determine the racial
percentages in the area that is adjacent Eo disErict 31.



O
Page 25

abover ltas less than a I5t minority population. Tract 7201r

has a populat,ion of 4104, wiEh 3541 (86.21) whiEesr 523 (12.7t)

blacks, 2l (.5t) Asians and American Indidllsr and 19 (.4t)

others. 35 (.8t) persons are HisPanic. Tract 7202 has a

population of 4885r with 3389 (59.3t) whitesr l4L2 (28.8$)

blacks, 43 ( .8t ) othersr and 42 (.8t ) Asians and American

Indians. 80 ( 1.6t ) Persons are Hispanic. Io surlndtYr tract

7201 has less than 15t minority population and bears

investigation. Tract 7202 is at least suspecf-

Summary

As we review the evidencer w€ thus find several places in

which district lines of highly concenErated black districts
correspond to pronounced divisions between black and white

poPulations. First, !-Eg!-f2.9.].r EIl 85.2t white tract in

district 28, is adjacent to and separated by the district line

from tracts 7II3 and 73037 which are 95.3t and 97.4* black

Eracts in district 35. Second, !-E-ac.1!-f.9.9.!.r dr1 88.4t white

tract in district 29, is set off from tracts 7105 and 7112r

98.4t and 97.lt black tracts in districts 31 and 35. Thirdr

tract 7001, a 95.8t white tract which is primarily in district
29t borders Eract 7104t d 98.4t black tract in district 31.

Fourth,@,a98.2twhitetractindistrict2ltborders
tract 3702 t a 97.5t black tract in district 23-E/

L5/ Tract 3405, which is adjacent to house district 23, is
77t white. It is not included within the tracts we have
singled out, however, because the tract within district 23 to
which it is adjacentr tract, 3505, is 55t white. Thus, drawing
the district line between tracts 3405 and 3505 did not trace a
significant racial division.



O
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We also find several places in which the district lines,

though not corresponding to such marked racial divisionsr

nevertheless correspond to significant divisions between blacks

and whites and therefore are at least suspect, in this case.

First, EtacE 7202., a 69.3t white Eract in district 28, adjoins

tracts 7304 and 7305r 95.7t and 97.6t black tracts in district
35. Secondr tract 6510r a 57.8t white tract in district 29t

adjoins tract 5720, a 98t black Eract in district 31. Third,

tract 5109r a 71.It white tract in district 22, adjoins tracts

6L22 and 3703r 97.2* and 99.8t black tracts in district 24.

Fourthr tract 5101r dlt 88.29 white tract in district 2l.t with

I4.5tHispanics,adjoins@,a98.3tb1acktractin
dist,rict 23. Fifthr Eract 5015, an 85.4t white tract in

district 21, wiEh 20.7* Hispanics, adjoins tract 3406, a 99.5t

black tract in district 23. A few of these identified t,racts

are in districts included in the Hispanic Settlement, Agreement,

(i.e., tracts 6I08, 5109, 5101 and 5015). See Bvbicki Ir sliP

op. at 101 n.104 (quoting from Hispanic Settlement Agreement).

Any changes involving these tracts would presumably require the

consent of the DeIValle plaintiffs.
Under t,he 'results' test of Ehe amended Voting Rights Act,

we are tenEatively of the view that over the long termr Er[Y

rigid adherence in a significant number of P1aces to

well-defined lines of racial division between blacks and

whites, in these unusual circumstances where concentrations of

blacks exceeding 80t or 90t in voting district,s are constrained

by.take Michigan on the east and Ehe lines in question on the

wesEr rnay have Ehe gsg!! of contributing to some degree to



'r""*ing' and vote dilution. Adherence to these

timer w€ believer rniy restrict the opportunity of
participate in the political Procesd'and to elect

O
Page 27

lines over

blacks'to

represenEatives of their choice.' There are so nany variables

and factors of significance Ehat we reach no final conclusion

on the facts before us.. Butr based upon our tenLative

analysisr we request that the Commission resubmit to us

alEernate district boundary lines that deviat,e from the

pronounced division between blacks and whites in the tracts we

have idenE if ied r where highly concentrat,ed black dist.ricEs are

involved. If the new lines include some blacks within 'whiEe'

districts while, at the sane time, including whites within

'black' districtsr we think this is not per se objectionable.

The primary purpose, of courser should be to move away fron

using black-white boundaries as district Iines in conjunction

wiitr districts that, have very high black concentrations.

We recognize that if Ehe addition of whites to districts
would make then less than 80t b1ack, this might resulE in the

election of representatives f rom t,he white minority. There is
evidence in the case making such a possibility quite credible.

Furtherr w€ put house district 35 in a special category because

this district has already been restructured (Ct. Ex. 1A) in

order to provide a 66t black najority in senate district 18.

ft is obviously inappropriate to Jeopardize the opportunity to

elect a black Senator in Ehis district by shifting the western

boundary to include subst,antially more non-blacks. Thereforer

we ask the Commission to report to us regarding what might be

done about the western boundary of district 36 without undoing



O
e28Pag

what t,his court has already done and without fracturing other

substantial non-black minorities.
When the Commission makes such a submissionr the court will

,hold a further hearing to evaluaEe its effecE and t,o hear oEher

relevant evidence. Thereafter we will make our final
determinat,ions in this case. Of cours€7 in making adjustmentsl

the Commission may make oEher boundary adjustments which nay be

required or desirable to satisfy aII other relevant criteria.
We emphasize that we are addressing under Sect,ion 2 of the

VoLing Rights Act the lonq-term results in t,erns of vot,e

dilution of drawing a significant number of district, lines

along arguably rigid divisions between blacks and whites. We

believe elimination of this Practice may be importanE in

lending better long-run flexibiliEy to the aPPortionment of

election districts. We perceive no basisr however, to respond

to this problen by adopting the 'Coalition' or 'Crosby'

Redistricting MaPs as long as the Commission is willing to

correct the defects we identify. As we pointed out in our

original opinion, 'in view of the sPecific and relatively
localized defects we have found, adoPting such an rout,sider

plan in its ent,irety would inaPProPriately Preempt' the

redistrict,ing procedure authorized by the PeoPle of IlIinois
and the agencies empowered by Illinois law.' Rvbicki I, sliP

op. at. 104-05 n.108.

wit,h resPect to Judge Gradyrs separate opinionr we think he

sinply misconceives the nature of this Proceeding. This case

was brought on the admittedly race-conscious theory that, the

opportunity to achieve minority rePresentaEion in the



,
Page 29

legislature should be enhanced by redrawing district,
boundaries. under such a t,heory line-drawing is necessarity a

race-conscious process. It is impossible andr we t,hinkr

un1awful, to respond to a race-conscious claim with a

color-bIind remedy .U'/ Thus Judge Gradyrs 'color-bIind'
remedy proposed in his separate oPinion of January L2, 1982,

had been sought by none of the litigant,s and, to our knowledger

would be vigorously (and properly) rejected by all of

g5gm. l7 we believe that lines tracing divisions beEween

racial and ethnic groups are ProPerly viewed as one facet, of a

very complicaEed problern primarily involving the fairness of

rePresentation. With resPect to t,he use of 65 percent as a

population proportion providing a reasonable oPPortunity to

elect a representat,ive of choicer w€ are simPly relying on a

substantial body of law and of policy of the Department of

Justice developed over a number of years. ggg supra n.4.

&/ Judge Grady's proposed approach is 'a map drawn
according to the Eraditional neuEral criteriar without regard
to what, I believe is the const,itutionally impermissible
consideration of race or ethnic character. . . . What,ever the
bloc voting effect. of a colorblind nap might be, it would be
unintended.' Rvbicki Ir sliP oP. at 133-34 (Grady, il.t
dissenting). SuEI an approach simply ignores the theory of
plaintiffsr vote dilutlon claimsr which are grounded in a
presumption of 'bIoc voting.' If Judge Grady is correct, the
Crosby and De1Val1e complaints should have been dismissed at
the outset,.

lJJ rhe supreme Court continues to analyze the legality of
electoral systems in a race-conscious manner. E&-, Citv of
port Arthur v. Unite r 5l U.S.L.W.4033 (U.S. Dec. 137



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30Page

rII.
Finallyr with respect to the other post-trial motions of

the parties, we decide the following.
The Commissionrs motion under Fed. R. Civ. P. 52 fot

amendment of this courtrs findings and conclusions contained in

Rvbicki I is denied. For the reasons expressed in that,

opinion2 we believe that plaintiffs adduced sufficienL evidence

of purposeful discrimination at triali new arguments presented

by t,he defendantsr inEerpret,ing the statistics and testimony

relied on for these findings of discrimination, do not persuade

us to the contrary. Moreov€rr Ehe Conmissionrs argument that,

this court improperly refused t,o apply the burdens of proof

formulated in Texas Department of Community Affairs v. Burdiner

450 U.s. 248 (1981), was fully addressed and the Cornmission's

posiEion was rejected in !IE!g!i-!.
With respect to the various motions of Ehe Crosby

plaintiffs other than the matters we have addressed abover w€

first note that these plaintiffs to a considerable degree

reargue maEters previously argued and briefed before us and

addressed at length in Rvbicki I. FurEher oral argument will
not be helpful to us and, thusr we deny the Crosby Plaintiffsr
request for oral argument before deciding the other outstanding

mot.ions.

In addition to our analysis of t.he facts under the

'results' test of the amended Vot,ing Right,s Actr $re have

carefully reconsidered our opinion and findings regarding the

absence of purposeful vote dilution or racial gerrymandering



o-
page 31

related to the alleged district,ing 'r"11r' including the briefs

filed by plaintiffsr defendant,s and the amicus curiae. Insofar

as purposeful discrinination is concernedr w€ find no basis to

amend our findings pursuant, to Fed. R. Civ. P. 52(b) or to hold

a new trial under Fed. R. Civ. P. 59(a)(2) and we accordingly

deny those motions.Lg/ The Crosby plainEiffs also request

that we exercise continuing jurisdiction until after the nexf

reapportionnent to grant fut.ure relief in this case under

&/ To clarify our interpreLation of Citv of Mobile v.
!en., 446 U.s. 55 (1980), and the f if teenth amendmenE issue,

we modify footnote 70 of our opinion of January L2, 1982 at,
page 54 to read as follows:

1-9J Justices St,evens (445 U.s. at, 84-85), White
(446 U.S. aE I02) and Marshall (446 U.S. at 104-05,
L25-29) expressly stat,ed that a vote dilution ctraim is
cognizable under the Fifteenth Amendment. Because
Justices Brennan and Blackmun did not articulate Eheir
view on this questionr the majority view is unknown.
In these circumstancesr we believe it is appropriate
to adopt the plurality view of the Fifteenth Amendment
-- a view which is also consistent wit,h our reading of
prior apPeIlate oPinions on this subject- See
Mc!{i11a11v. escambls--qguntyL 638 F.2d L239.t 1243 n.9

DOIII. Citv of Pensacola
v. Je1!<:i49, I02 s.Ct.. 17 ( 198I ) . Even if Justice
E'rer'rna opinion can be interpreted as an implicit
approval of the aPPlication of the FifEeenth Amendment
in vote dilution cases, t'his would not alter the
result we reach in the instant case (as Ehe Crosby
plaintiffs apparently argue). It is evident that only
two Justices -- Brennan and Marshall -- adopt Ehe
'discrininatory inPact' standard for a Fifteenth
Amendment claim, 446 U.S. at, 94, 130-41; Justice
Stevensr alt,hough accePting an 'objective' approachr
rejected any across-the-board aPPlication of the
diicriminatory irnpact standard, 445 u.s. at 85-86,
90. But five JusEices -- the Pluralitiy Justices | 446
U.S. at 63-65, and Justice Whiter 446 U.S. at 95,
101-03 -- exPressly held Ehat the Fifteenth Amendment
requires Proof of discrininatory PurPose or intent.
Thusr even if we trere to recognize Plaintif fsr claims
here under the Fifteenth Anendmentl we would aPPly t.he
same standard -- discriminatory PurPose -- as we do
under the Fourteenth Amendmentr as discussed infra.



I

P"s"?
section 3(c) of the Voting Rights Actr 42 V.S.C.

S 1973a (c) (1975). Section 3(c) states that a court

'shal1 retain jurisdiction for such Period as it nay deen

appropriaEe' in order to review changes in voting

qualificationsr Prereguisitesr standardsr Practices or

procedures. 42 V.S.C. S 1973a(c) (I976). We deny

plaintiffs' request t,hat we retain jurisdiction until the

next reapportionment since we do not t,hink iE aPPropriate

or necessary in this case to retain jurisdiction for such

an extended period.

tle ask thaE the Commission make a submission in

accordance with this opinion on or before nebruar) 7 t 1983.

SO ORDERED



,"r"?
Gradyr District {gdgg. Dissenting in parE and

concurring in part. The analysis in todayrs opinion seems

to me to illustrate some of the difficulEies inherent in

any effort to draw district boundaries along racial
lines. The distinctions made between districts on t'he

'white'side of the wall which are mostly white and t,hose

which are white mixed with Hispanics and Asiatics dt€r I
believer unsupportable in Iight of the uncontradicted

t,esti'mony that the purpose of drawing Ehe line this way

vras to separat.e whites f rom blacks. ThaE other grouPst

such as HispanicsT may also be separated from blacks in

t,he process, and even mixed in with the whites who prefer

t,hem to blacksr seems to me inmaterial in terms of the

constituEional considerations I believe controlling in
this """".1/ Aside from this fundamenEal problem,

today's opinion illustrates the difficulty of deciding

which racial lines -- which 'tracings' as they are called

y I realize that the majority rejects a constitutional
analysis and views the case sErictly in terms of the
Voting Rights Act as amended. But I do not believe the
amendment to the Voting Rights Act authorizes intentional
racial segregation. while the effect of the amendment is
to eliminate the intent requirement of the Mobile cds€1
t,he amendment certainly Aoe;;ot-Fgit,imize the drawing of
lines which have as their exPress PurPose the separation
of one race f rom another. fn short, t,he Voting Rights
Actr even as amendedr has to be read in light' of the
Constitutionr which, in my viewr absolutely Prohibits the
drawing of district lines for the PurPose of racial
sepa rat ion.



,"n"?
by Ehe majority -- are tolerable and which are not. I am

unable to discern what principle runs through the analysis

of the majority which could guide one to Ehe conclusion

t,hat various 'results' either do or do not, pass muster.S/

I continue to disagree wiEh the majority's view that
this case was noE tried on a theory of unconstituEional

racial segregation. while it is true that the matter was

unclear from the pleadingsr there can be no doubt Ehat,

during the trial the question of racial segregationr and

U Whether the naLter is viewed 'as black versus
non-blackr' or 'black versus white plus non-whites ot.her
Ehan blacks' (majority opinionr p. 19)r the question
presented by viewing this case as simPly a 'packing' or
'dilution' problem isr if one wiIl excuse the expressionr
where do you draw the line? How much is enough but qot
t,oo much? fhe najority again seems to endorse t,he '65 Per
cent formula' (see fn.41 p. 5, which aPPears to be t.he
same as fn.87 of the najority opinion of Jan. L2, L9821
with the exception that, in the final ParagraPh judicial
notice is taken of the fact t.hat 66 Per cenE was not good
enough to elect a black candidate in Senate Di.strict 18 in
the March L982 DemocraEic Primary Election). This, in
terns of practical polit,icsr may seem good neers for the
Crosbv plaintiffs; the revised map the majority has in
mi.nd may provide even greater majorities of black voters
in any revised districts. I believe this would be an
unfortunaEe 'victory' for the black Plaintiffs. For a
recent expression consonant with my own viewsr see the
dissenting opinion of Justice Powell in Roqers v. Herman
&1]g,, 50 u.s.L.w. 5041, 5045 (1982):

Ihis is inherently a political area, where
the identificaEion of a seeming violat.ion
does noE necessarily suggest an enforceable
judicial remedy -- or at least, none short of
a systen of quotas or grouP rePresentation.
Any such system, of courser would be

(footnote continued on next Page)



P"g"?
Ehe stigna resulting from the wal1r $ras clearly presented. I
would allow the motion of the Crosby plaintiffs to arnend t,heir

complainE to conform with Ehe proof.

I fail to see how the amendment to the Voting Rights Act

requires any change in the map the majority aPProved in its
opinion of January 12, L982t and as long as the majority

continues to see this case as one involving no constitutional
issueT I believe that a further evident,iary hearing will be

essentially unProductive. The 'results' of the Present map

Z/ Continued

antithetical to the princiPles of our
democracY.

See also Part IV of Just,ice Stevensr dissent in the same case,
ffi-uffi.w. 505r-5052.

The idea of a 55 per cent quotal guideliner or whatever it,
might be calledr is as unacceptable to me as when I dissented
originallyr and for the same reasons. The failure of a black
to be elected in a 56 Per cent district is notr Eo mer evidence
that t.he percentage should be raisedr butr rather, evidence
t,haE Ehe idea of i Percentage is unworkable in the first
p1ace. Whether you are comParing whites versus blacks or
whites versus blacksr Hispanics and Asiaticsr the result is Ehe
same: it just will not work. And t.he effort t,o make it work
runs counler to the goal of eliminating racial divisions in
this country.

I realizer toor that these particular plaintiffs are not
soIely interested in the segregation question. Beyond that,
perhaps even as much as that, they want, ProPorEiona1
rePresentation. The najority is no more committed to
proportional rePresentation than t.hey ltere at the time t,he
original oPinions in this case lrere f iled. The anendmenE to
the Voting Rights Act makes expliciE thatr whatever the

(footnote continued on next Page)



,F

"?Pag

seern t.o me to have been fully analyzed by the najority in its
opinion of January !2, Lg82r dnd found acceptabrc.l/

I do agree with the majority that no further argument is
necessary regarding the evidence which has already been t,aken.

Finallyr I agree that we should not reEain jurisdiction in this
case until the next reaPPortionment. To t,hat extent I concur

in the majority opinion.

Z/ Cont,inued

'totality of circumstances' test may meanr it does not require
proportional representation. Thusr the further Proceedings the
majority contemplates in this case seem to me to be addressed
to a virtually de rninimis situation as far as the votinq right,s
of blacks are concerned. This is not a case like Mobiler or
Roqers v. Herman Lodq€r E-gpra.r where blacks have been lit,erally
EfosEAo!t, atf Ehe political Frocess by at-large elections in
which they failed to eIect. a single rePresent,at,ive. EereT the
difference between what the plaintiffs have in the
court-ordered map and what they want, is the difference between
represenEation which is not quite proportional and
representati.on which is strictly ProPorEional. If the majority
is not bent on granting proportional representationr then I
fail to see why there is need for a further hearing in this
case. 

.

1/ The najority f requently refers t,o 'the 'results testt of
the arnended Voting Rights Act.! I do not, read the anendment as
providing for a 'resuIt,s' t,est. The phrase used to def ine the
test for determining whether a protected group has 'less
opport,unit,y than other members of the electorat,e to participate
in the political process and to elect representatives of t.heir
choice' is 'the totalitv gf Sj-Eglng!ryg.' The totality of
circumstances woffialfrliEffiffi 'resurts' of a
redistrictingr but the result,s are not coterminous with t,he
test. The test is the totarit'v of circunstancesr dnd it' seems
to me that the majority has already exhaustively analyzed those
circunstances in its oPinion of January 12, L982. While I do
not agree with that analysis, my criticism is not that iE was
cursory.



. -,

__ !
o ,"g"?

DATED: JanuarY 20, 1983

United States Circuit Judge

iEed States District Judge

trict Judge