Sebelius v Hobby Lobby Stores Brief Amici Curiae

    .l

a

- .t--

1398

- -.-.----+ \

,no ,ror*L REPOFTER, 2d SERIES ?

;i

Illinois, '
judgment
ward mc

./ lenging I
Appeals,
(1) findin
violated
ported b,

proved n
nority cit
tunity to

Affir
remande<

l. Munic
Find

districtin
by denyir
cess to p

evidence
of racial
trogressi,
E 2,42L
2. Munic

Dete
dermanic
teenth 1

strength
ing and I

ing war
where th
Voting F

not requi
tion, and
same for
Amendm
s2,42 1

Amends.

3. Muni<
InI

that Chic
violated
blacks ar
cal proce
ing a rer
nate ille
strength
sonable z

dates of'
1965, 5 

'

Old Securiiy contended at trial thai Teqprs
told Hausei to eontaet Richard Kleindienst,

former United Stat€s Attorney General,

and have him persuade Frank Fitzsimmons

to influence the award vote on Old Securi

ty's behalf. According to Old Security, the

trustees did not rely on Teeuws's recom-

mendation; instead, they awarded the con-

tract to Old Security as a favor to Fitzsim'

mons. Old Security contends that the trus-

tees' refusal to testify is additional evi-

dence of their complicity in an independent

scheme involving Hauser, Dorfman, and

Kleindienst.

The district court agreed that it was re-

quired to draw an inference that the testi-

mony of a witness claiming a Fifth Amend-

meni privilege would be incriminating in all

*"yr'rrgg"ited by other evidence' See'

,.g., OAii't, Inc. u. City of Neu Y-ork,7l7

tr'.Zd ZOO, ?09-10 (2d Cir'1983)' However'

the court found that Old Security's theory

of the case was unsupported by the evi-

dence, and concluded:

A trustee's assertion of the Fifth Amend-

ment will not, without more, allow a con-

clusion that he knew of the conspir-

acy-a conspiracy that was overwhelm-

ingty demonstrated by the evidence

he-re-that he became a member of that

conspiracY; and, bY his own acts, fur-

thered it.

mons testified that he,told Kleindienst that
Old Seeurity's bid was competitive, and if it
,n",'" viable comPanY, it would get' as

much consideration as any of the other

eompanies that bid.

We find no error in the district court's

conclusion that it could draw no inferences

from the refusal of the trustees to testify'

v.
For the reasons stated above, we affirm

the findings of the district court, and re
mand to the district court with instructions

to reinstate the judgment in favor of Old

Security in its litigation with Continental

Bank, and enter a $1.5 million judgment in

favor of the Fund in its aetion against Old

Security. Each party shall bear its own

costs on aPPeal.

We have comprehensively reviewed the

lengthy record in this case, and agree with

the dlstrict court that Old Security's theory

of trustee malfeasance was not supported

by the evidence. Kleindienst freely admit-

t"a tnrt he had been retained to find out if
there were problems with Old Security's

bid. He testified that he called Fitzsim-

mons, told him he was representing Old

Security, and expressed concern that there

might ie problems with the bid' Fitzsim-

*Jn. ch"c-ked, and told Kleindienst that the

bid appeared to be in order' Kleindienst

testified, and Fitzsimmons concurred, that

Fitzsimmons never told him Old Security

would get the contract, nor did he give him

"ny ".ru.rn.es 
about the award' Fitzsim-

* This is a revised opinion' The original panel

ooinion in this case was issued on Ma1 17' 1984

^ird h". been withdrawn' Judgc Harlingron

Mars KETCHUM, et al',
Plaintiffs'APPellants'

v.

Jane M. BYRNE, et al"
Defendants'APPellees'

Nos. 83-2044, 83-2065 and 83-2126'

United States Court of APPeals,

Seventh Circuit'

Argued Nov. 1, 1983'

Decided MaY 17, 1984'

As Amended MaY 23 and Aug' 14,

Rehearing and Rehearing En Banc

Denied SePt. 10, 1984'

Black and Hispanic residEnts of Chica-

go brought action ehallenging aldermanic

iard redistricting plan' The United States

District Court for the Northern District of

Wood, Jr. concurs fullv in this revised opinion

and has '*'ithdrawn his special con(rrrrcnce ln

the original Panel oPinion'

,*,, ., _-



[:

KETCHUM v. BYRNIt Cr,"- 70qei!t!9s (t9s4)

Illinois, Thomas R.- McMillen, J., entlred 4. Municipal Corporations @=80

judgment for plaintiffs and adopted new In scrutinizing redistricting plan for
ward map, and plaintiffs appealed, chal- Chicago's aldermanic wards to determine
lenging the relief granted. The Court of fairness to Ulacks and Hispanics following
Appeals, Cudahy, Circuit Judge, held that: determination that the city's plan violated
(1) finding that Chicago's redistricting plan the Voting Rights Act, reliable voting age

violated the Voting Rights Act was sup- population data should be used in evaluat-
ported by the evidence, and (2) court-ap- ing minority voting strength instead of
proved redistricting plan did not grant mi- merely using standard adjustment to total
nority citizens a reasonable and fair oppor- population. Voting Rights Act of 1965,

tunity to elect candidates of their choice. 9 2, 42 U.S.C.A. S 1973.

1399

,,fl

s
;?
.*

Affirmed in part, reversed in part, and

remanded.

l. Municipal Corporatiop5 @80

Finding that Chicago's aldermanic re-

districting p)an violated Voting Rights Act
by denying blacks and Hispanics equal ac-

cess to political process was supported by
evidence of retrogression and manipulation
of racial voting populations to achieve re-

trogression. Voting Rights Act of 1965,

E 2, 42 U.S.C.A. S 1973.

2. Municipal Corporations o=80

Determination whether Chicago's al-

dermanic redistricting plan violated Four-
teenth Amendment by diluting voting
strength of blacks and Hispanics by pack-

ing and fracturing districts and manipulat-
ing ward boundaries was unnecessary
where the plan had been found to violate
Voting Righls Act, violation of which did
not require proof of intentional discrimina-
tion, and where remedy appeared to be the

same for violation of either the Act or the

Amendment. Voting Rights Act of 1965,

S 2, 42 U.S.C.A. S 1973; U.S.C.A. Const.

Amends. 14, 15.

3. Municipal Corporations e80
In fashioning remedy upon finding

that Chicago's aldermanic redistricting plan

violated Voting Rights Act by denying
blacks and Hispanics equal access to politi-
cal process, district court erred in approv-
ing a redistricting nral, tirat did not elimi-
nate illegal dilutiori ,,1' minoritv voting

5. Municipal Corporations @P80

In scrutinizing redistricting plan for
Chicago's aldermanic wards to determine
fairness to blacks and Hispanics following
determination that city's plan violated the
Voting Rights Act, district court, after
evaluating relevant statistical and other
data, may use a supermajority of total or
voting age population to define a minority
ward and should consider in apparent His-
panic wards the number of citizens to eval-
uate Hispanie voting strength and to adjust
thereby for the numher of Hispanie nonei-

tizens. Voting Rights Act of 1965, S 2, 42

u.s.c.A. s 1973.

6. Municipal Corporation5 e80
In scrutinizing redistricting plan for

Chicago's aldermanic '*'ards to determine
fairness to blacks follou'ing determination
that city's plan violated the Voting Rights
Act, the number of wards with black major-
ity should be restored to the number which
existed under previous ward n,ap where
the violation of the Act '*'as based on city-
wide retrogression. Voting Rights Act of
1965, S 2, 42 U.S.C.A. S 1973.

7. Municipal Corporations o=80

In scrutinizing redistricting plan for
Chicago's aldermanic u'ards to determine
fairness to Hispanigs follor,"ing determina-
tion that cit;-'s plan violated the Voting
Rights Aet, district eourt should examine
whether wards can be created with suffi-
ciently large majority of Hispanics to pro-

vide Hispanics with reasonable opportunity
to elect candidates of their choice without
regard to previous ward map since the
previous map apparently fractured the His-
panic community and thus limiting Hispan-
ics to their situation under the previous

strength and did nol r I

sonable and fair ,,1,I, , '

dates of their choit.'.
1965, 5 2, 4t ['.S.( ... ,

: n-'inorities rea-
.r' to elect candi-
,,- Ii.ight.s Act of



1400'

-

740 TEDEIIAL REPORTER, 2d SERTES

map might merely perpetuate vote dilution h'erein, we affirm in part, reverse
of the past. voting Rights Act of 196b, and remand for reconsideration of
E 2, 42 U.S.C.A. 5 1973. propriate remedy.

8. Elections @12
There is no vested right of minority

group to majority of particular magnitude
unrelated to provision of reasonable oppor-
tunity to elect representative. Voting
Rights Act of 1965, 5 2, 42 U.S.C.A.
s 1973.

m part
the ap

the
and
fort
twe
ralit
appr

Ir
Mar
Dep
cag(
mer
new
198(
temi
sult,
mitt
onl
map
proll
alde
but'
the I

vider
majt
war(
thre,

Or
onR
lic r

map
time
pro\:
teen
thre,
a fig
tion
sionr
at tl
ninel
six

Af
City
adop
the
Cour
four
majo
warcl
grou
mapr
relat
t.h,,

Judson H. Miner, Davis, Miner, Barnhill
& Galland, Chicago, Ill., for plaintiffs-ap-
pellants.

William J. Harte, William J. Harte, Ltd.,
Chicago, Ill., for defendants-appellees.

Before WOOD and CUDAHY, Circuit
Judges, and KELLEHER, Senior District
Judge.*'

CUDAHY, Circuit Judge.

Pldintiffs, including individual black and
Hispanic residents of the City of Chicago,
sued several individual defendants and the
City Council of the City of Chicago alleging
that the 1981 redistricting plan for the al-
dermanic wards of Chicago violated section
2 of the Voting Rights Act of 1965, as
amended on June 29, 7982, by Pub.L. No.
97-205, 5 3, 96 Stat. 134 (1982), 42 U.S.C.
S 1973 (1982), the fourteenth and fifteenth
amendments tn the U.S. Constitution, vari-
ous federal civil rights statutes and several
Illinois constitutional and statutory provi-
sions. The district court rejected plaintiffs'
fourteenth and fifteenth amendment claims
but entered judgment for plaintiffs on their
Voting Righls Act claim and subsequentlv
adopted a new ward map. Plaintiffs now
appeal this final district court order primar-
ily because they deem the relief granted to
be insuffieient. For the reasons stated

** Honorable Robert J. Kelleher, Scnior District
Judgc for the Central Districr of California, is
sitting by designatio;r.

l. The figurc of 247,343 for thc Hispanic popula-
tion in 1970 is approximatc anrJ based on onlr a
l5o,o sampling. Srip..16. Irr tlrr lo8t) (cn.rr .:,rr
Hispanic pcrson uas askcd first to idcntri'. i;in,
self or hersclf as whrte. black ol ollr(r' lrrr- \\:,:
thcn to indicate that he or shr rr':rs li;.,.r ,

I

Background

The City of Chicago is divided into fifty
aldermanic wards, each with nearly equal
population and composed of contiguous and
compact territories. The City Council must
redistrict the city on the basis of new cen-
sus data by December 1 of the year follow-
ing the taking of a national census. II.t,,
Rrv.Sur. ch. 24, SS 21-36 and 2t-38 (1981).
The census taken in 1980 showed that the
city population was 3,005,072 so that the
ideal population per ward would be approxi-
mately 60,101 (Stipulation of Facfi; 52, Ap-
pendix B to Brief of Defendant-Appellee,
The City Council of the City of Chicago)
[the "Stip."]. Because virtually every
ward varied from this ideal figure (Stip.
60), it was necessary for the City Council to
devise a redistricting plan b1' December 1,

1981.

The demographic composition of Chicago
changed significantly between 19?0 and
1980 due to a major decrease in the size of
the white population and increases in the
size of the black and Hispanic populations.
The respective population percentages
were as follou's (Stips. 48 and 52):t

Non-Hispanic Whik,
Black
Hisparrit

11)?o _Lt!1I

6ir.51,; 4:1.2';
32.1'.;i rll).it,,
i.3', 11.0'"

In 1970, blacks had a population maiority in
fifteen wards, but, in 1980, under the 1970
,*'ard map, blacks had a majority in nine-
teen wards and a plurality of 49.3% in
another ward. In 1970, Hispanics had no
majority ward, but, in 1980i again under

As a result and because of other classifications
such as Asian, the sum of the *hite, black and
Hispanic figures docs not cqual thc total popula.
tion. Stip. 51. Thc 1980 figurcs on Hispanic-.
are also not dirccllr comparable to 1970 His
panic ccnsus datli becausc of such fact<_rrs as
ovctall itrtI.:rlr('llr(!ri. ip lhc 198() ccpsus anrl
intprovcd qllc\ii,)| (l(sl!n. BrRr.qr Or Trrr Cr:r.
st s Ll.S. Dr ,': t )r C, rnu xo Sllrlsrrcer Ar..: ,
()' 1,,' , \:t;: S r:, - lqEl, 3 (1981).



. KEIICHUM v. BYRNE
r Clt rrTaoFrd l39t (t984) '

t40r

the 19?0 map, Hispanics had four majoriQ'

and two plurality wards' In 1980, tlrere
fore, non-iTispanic whites had a majority in

twenty-two wards and, presumably, a plu-

rality in two additional wards (Stip' 62;

appellants' brief at 10-11).

In April and MaY of 1981, defendant

Martin R. Murphy, Commissioner of the

Department of Planning of the City of Chi-

cajo, and defendant Thomas E' Keane, for-

mJr alderman of the 31st Ward, drafted a

new ward map in conformance with the

1980 census population figures' In Sep

tember and October 1981, Mr. Mu4rhy con-

sulted with various city offieials and trans-

mitted to the Cit-r- Council's Subcommittee

on Redistricting his census data and ward

map draft. Information concerning each

proposed neu' ward was submitted to the

"ta"t-rn 
curently representing that ward'

but the city-u'ide map was not submitted to

the City Council. This "October map" pro-

vided ior twentv-four non'Hispanic white

majority wards, eighteen black majoritl'

*"id., five Hispanic majority wards and

three wards with no majoritl' (Stips' ?3-Ea)'

On November 9, 1981, the Subcommittee

on Redistricting held its first and onll' pub-

lic meeting ai which the proposed u'ard

map was publicly displayed for the firs.t

time. This map, like the "October map,"

provided for twentl'-four white wards, eigh-

ieen black wards, five Hispanic wards and

three wards without an-v majoritl', based on

a figure of more than 50?2 of total popula-

tiorias constituting a majoritl" Conimis-

sioner Murphy, however, incorrectly stated

at the meeting that the map provided for

nineteen black majoritv wards and twentv-

six white majoritl' wards (Stips' 85-88)'

After accepting cerLain amendnlenls, the

City Council, on November 30, 1981'

adopted by a vote of twenty'nine to seven

the final map (the "1981 map" or "City
Council map"), *'hich provided for twenty-

four white majoritv wards, seventeen black

majority wards, four Hispanic majority

*r"ds and five wards with no majority

group (Stips. 105-106). Several a-lternative

i,"p. t"a't"en proposed but had received

relativell' little consideration' In addition'

the Citj' Council under Chicago's Home

Itule porvers passed an ordinance requiring

that seventeen, rather than tdn, aldermen

must vote against a r"edistricting ordinance

before a substitute ordinance could be sub-

mitted to a public referendum' ILt' Rsv'

Srer. ch. 24 s il-sg (1981); Stip. 100'

In the summer of 1982, three groups of
plaintiffs filed voting rights complaints, in-

"tuding 
a group of nine black voters of the

City of Chicago (the Ketchum plaintiffs)' a

group of six Hispanic voters of the City of

6ni""go (the Velasco plaintiffs) and anoth-

", 
grirp of four individuals and a black

oolilical-orsanization (the Political Action
'C,onferen.e-of Illinois). The defendants in

each case were Jane Byrne, Mayor of the

City of Chicago; Martin R' Murphy, Com-

missioner of the Department of Planning of

the City of Chicago; Thomas E' Keane'

former alderman of the 31st Ward; the

City Council of the Citv of Chicago i4 !h'
Board of Election Commissioners of Chica-

go. The three suits were consolidated for

iU potpo.". and another group of five vot-

ers'from the 42nd and 43rd Wards (the

Pillman plaintiffs-intervenors) and the

United States were granted leave to file
intervening complaints' Neither the Unit-

ed States nor the Pillman plaintiffs are

involved in this appeal. The individual de-

fendants, Byrne, Murphy and Keane, were

dismissed ai the end of plaintiffs' case (Tr'

2448-55), and that dismissal has not been

appealed.

The trial lasted from October 9 through

December ?, 1982. On December 2i, 1982'

District Judge Thomas R' McMiilen deliv-

ered an oraiopinion from t'he bench' The

court rejected plaintiffs' fourteenth and fif-
teenth amendment claims finding that the

motivation for the adoption of the 1980

redistricting map by the Cit-v Council "was

not based on the intent or purpose of dis-

criminating against anv minority group"'

but. rather, the reason "was to preserve

the incumbencies of'those memhers of the

City Council who were voting on the map"

Gr: 4083). The court did, however, find a
violation of section 2 of the Voting Rights

Act, as amended in 1982, because the "total

result" of the map was "unfair" and or-

dered the defendanlq to draw a netvl maP

revising four wards, although in fact ser't'rr

wards were changed in the court'-apprt'r'td J



1402

map. Tr. 4107, 4ll?-13. On Decembei 23,

1982, defendants presented their revised
map, which the court adopted on December
2A, L982, over objections of the black and
Hispanic plaintiffs. Plaintiffs presented a
motion for modification which was denied
on May 12, 1983.

Plaintiffs alleged, as they now argue on

appeal, that the City Council map caused

dilution in minority voting strength
through four techniques-fracturing, pack-

ing, retrogression and boundary manipula-
tion. The trial court, however, rejected
most of these claims (Tr. 410G45) and

found the City Council map unfair only in
that it caused retrogression from the nine-

teen majority black wards in 1980 under
the 19?0 map to seventeen majority black
wards under the new 1981 map.2 It there-
fore ordered that a black majority be re-

stored to the 37th and 15th Wards (Tr.

410?). The court also determined that
there should be four majority and one plu-
rality Hispanic wards (Tr. 4112-13)'

Several important principles underlying
the district court's decision should be re-

emphasized. First, the district court held

that protection of incumbencies-even
when aceomplished by purposeful manipu-
lation of the racial composition of the vot-
ing unit--does not constitute deliberate dis-

2. "Retrogression" ma1'be defined as a decrease
in the new districting plan or other voting
scheme from the previous plan or scheme in the
absolute number of representatives which a mi-
nority group has a fair chance to elect' See

Beer v. lJnited States, 425 U.S. 130, 141, 96 S.Ct.

1357, 1363, 47 L.Ed.2d 629 (1976); Rybicki v.

State Board ol Elections ol the State ol lllinob,
574 F.Supp. 1082, 1108-09 and nn. 74 & 75
(N.D.Ill. I 982) (three-judge panel) l Rybicki I'1.
Here, the term refers to a reduction in the
number of wards with an effective majority of
the relevant minority group from the number of
such wards which existed immediately before
the redistricting plan was instituted. The cir-
cumstances of retrogression suggest a shortfall
in minority representation belou' what would
have been anticipated based on changes in over-
all population proportions' To correct retro-
gression does nol necessarily (or usualll') imply
the achievemenl of proportional representati()n'
Beer v. llnireC Srares, 425 U.S al 141, 96 S Ct. al
1363 (rcapportionment plan which does nol pro-
vide proportional rcprcsentation for blacks docs
not !iolat( n();lr('1'()gr(-ssi()n rule as long as

blacks can clt.l .rq rlanl black representatil'es

?40 FEDERAL REPORTER, 2d SERIES

crimination. Second, in determining a Eec-

tion 2 violation, the district court said that
only the overall city map and, in particular,
only retrogression on a "city'wide scale"
need be examined; the situation within par-
ticular wards and "retrogression" in the
size of a majority within individual wards
need not be considered. Such phenomena

as packing, fracturing and boundary ma-

nipulation were also deemed to require no

consideration. Third, the district court said
that voting age population rather than total
population figures should be utilized in de-

termining the relative racial composition of
a ward for remedial purposes. Fourth, the
court found that a simple majority (i.e.,

more than 50%) of voting age population is
the only criterion to be used in determining
whether a particular minority has a reason-
able opportunity to elect a candidate of its
choice.

On appeal, plaintiffs-appellants have re-
quested that we order the district court to
devise a new map which remedies the al-

leged dilution of minority voting strength
through manipulation, packing, fracturing
and retrogression within individual wards
and whieh adopts a 65% minority popula-

tion guideline for remedial purposes, when-

ever possible. In addition, appellants urge
that we instruct the trial court to enter a

as was possible under the previous plan). See

al.so City o/ Lockhart v. United Srares, 460 U.S.

r25, 103 s.Cr. 998, 1003, 74 L.Ed.2d 863 (1983)
(adopting Beer analysis that section 5 preclear-
ance could be granted as long as the new plan
"did not increase the degree of discrimination
against blacks"); Howard and Howard, ?he Di'
lemma ol the Voting Rights Act-Recognizing the

Emerging Polilical Equality Norm, 83 Cot-utu.L'

Rrl I 61 5, 1622-23 n. 29 ( 1983) lThe Dilemma ol
the Voting Rights Act). Rather, the nonretro-
gression rule requires the maintenance of repre-
sentation at roughll' the same level as was for-
merly achieved. The application of the nonre-
trogression rule in the inslant case, wherc the
population of Chicago is decliningbut the num-
ber of u'ards remains constant, may be more
clearly defensible than where the city popula-
tion is falling and the number of election dis-

tricls (such as stale or congressional representa'
tive distr;cts) assigned to the city is also de-

clining. ln tite latter sittlation, a retrogression
analtsis n1i \ {bu1 docs not necessaril-"-) over'
st:rtt lhr itr clainr. See, c.g., Rybicki l,

finding
lation c

blacks
City C<

The l{
ll1

s 1973

1982.
tion 2 r

been jr
teenth
found r

tober
den, 4

1495-9
signifi<
1982 a
quirem
substit
pose"
and by
in dete
"totalil
been v

InC
100 s.
plurali
order
teenth
ry mot
62, 10

intent
of the

3' APr
the d
const
lau, t
Civil
app€:

4. Sec
(

to
sha
poi
sul
an.
aC(
of
19.
tio

(.

tio571 l-.Si,:'r :.: I 10E-09



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t

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-

' KETCHUM v. BYRI{E '
Cltc g 7{0lFJd t396 (t9&l)

1403

finding of intcntional discrimination in vio teenth amendment in racial vote dilution

lationoft}refourteenthamendmentagainstc]ases'ld,at66,100S'Ct.at1499.The
blacks and Hispanics in the drawing of tfre plurality lninignrof 

the Supreme Court also

c;tv.c",i., ,"p.' !::,:,#;11.,?: l:nlBfff,T'i,[3i:1
II to track the fifteenth amendment' section 2

rhe re82 voting Rights Act Amendment il:l. ""r1:':Tr[ii: 1"gf0 t8i:Tl"r?flt;t,
tll The Voting Rights Act, 42 U'S.C. The relevant legislative history of amended

S igi3, was amended and extended in June section 2 expressly states that it was in-

19g2. Under the previous version of sec- tended to replace Lhe Bolden intent re-

ti* Z of the Voting Rights Aet, which had quirement wiitr a "rr^sults" standard. Con-

been judicially construed to parallel t!9 flf- gress intended that, "[i]f the plaintiff pro-

teenth amendment' a violation could be feeds under the 'results test" then the

i"rra orft, if the discrimination were found court would assess the impact of the chal-

to be intentional' City of Mobile u' Bol' Ienged structure or practice on the basis of

ien, 446 u's' 55' 60-61'- 100 s'ct' 1490' objlctive factors' rather than making a de-

iagrso, 64 L.Ed.2d 4? (1980)' The most teimination about the motivations which

,igriti*r, change brought about by the Iay behind it1_a{o3!ion or maintenance'"

1982 amendments was ti eliminate the re- s'Rep' No' 41?' 9?th cong'' 2d Sess' 27

qri**""t of intentional discrimination by (198i) l"senate ^Report")' 
reprinted- in

Jru.titrti,g a "results" test for the "pur- issz u's'corrE co^'t; & An News 171 et

pose" test imposed by the Supreme Court seq', 205'

and by listing the factors to be considered The standard for determining a section 2

in determining whether on the basis of the violation was indicated in the legislative
,.totalit), of circumstances" the Act has history as follows:
been violated'r Neu' Subsection 2(b) delineates the le-

ln city of Mobile t. Bolden,446 U.S. 55, gal analysis which 
.the 

congress intends

100 S.Ct. 1490, G4 L.Ed.zd 4? (1980), a fourts to applv under the "resulLs test'"

pluralitl, of four Justices had held that, in Specificallv the. subsection codifies the

order to establish a violation of the fif- test for discriminatory result laid down

teenLh amendment, a "racialll, discriminato- by the Suprem-e, court in white r' Reocs-

ry motivation" must be established' Id' at tir "" 412 U'S' 755' at ?66' 769 [93

62,l00S.Ct.ati497.SimilarproofofS.Ct.23i]2,at2339,23-11,3?L.Ed.zd
intent was required to establish " 

uiol"tion 3i4]. The courts are to look at the t'otali-

of the equal protection clause of the four- ty or ti,e circumstances in order to deter'

circumstances, it is shou'n that thc political

Drocesscs lcading to nomlnatioll or clcctiolt in

,h" St",. or political subdivision ar( nol

couall.' opcn to participali()tr bv ntcmhel s of a

.f"* ;f .itiren.'prrtc.rcd bv suhscction (a) of

this scction in that ils membcrs havc lcss

oonortrnitv than othcr mcnrbcrs ol lhc

"i..rorr," 
io parricipatc in rhc political pro'

ccss and to !'lect 
-represcnlatives of thcir

choice. Thc cxlcnt to which merr.rbcrs cif a

nrotectcd tlass havc becn elcctcd to officc in
ih" St",, or political subdi"ision is ont ctr'

.rn,.rrn." rrhich may be considcred: Prolirl
erl, '1'hat rlotlting in this scction estahlishcs a

riL'lrl lo h;t!c mcmbcrs of a prolcct<'d class

cl.'.1,,! i', ltlttllbcrs cqual to thcir proportiotl

in :l:. p',iri:lirti()11.

3. Appcllants also challengc the sufficienct of

the'iistrict court's orat opinion purporting t<r

constitutc findings o[ fact and conclusions ol

tu* ,rna". Rule S2(a) of the Federal Rules of

Ouil prn."d,r.e In tight of our holding on this

appcal, it is not nccessar]' to address this issue'

4. Section 2 as amended statcs:

(a) No voting qualification or prcrequisitc

to'roting or stindurd, practic5, or procedurc

shall bc imposcd or applied by anl Statc or

nolitical subdivision in a matrncr \^hlch rc-

I;ii. i; 
" 

denial or abridgcmcnt of tltt' right of

anl citizer.r of the Unitcd Statcs t(' votc-.o11

uaiornt of race or colr'r, or in colltravcl'ltlon

of thc guarantecs scl ft>rth in sc'li()l.l

iszlbtOfii of this title ' as proviclt'il it' sir'i-'sct.

tion (b) o[ this scclion'
(b) A violation of stthir-rlirrn (a

tion is establishcd i[, hr'' 'i ot: ti

l!,a1 l'1Q81)



1404

t

740 FEDERAIT.REPOIiTER, 2d SERIES'

mine whether the result of the chal-
lenged practice is that the political pro
cesses are equally open; that is, wheth-
er, members of a protected class have
the same opportunity as others to partici_
pate in the eleetoral process and to eleet
candidates of their choice. The courts
are to eonduct this analysis on the basis
of a variety of objeetive factors concern-
ing the impaet of the challenged practice
and the social and political context in
which it oceurs.

Senate Report at 6? (footnote omitted).
Plaintiffs, therefore, need only show ,,that
the challenged system or practice, in the
context of all the circumstances in the jur_
isdiction in question, results in minorit,ies
being denied equal access to the political
process." Id. aL 27.

The legislative history and subsequent
judicial interpretation of the 19g2 amend-
ments clearly demonstrate that claims of
5.- The report of the Senate Judiciary Committee

listed "typical facrors" as including:
1. the extent of any history of official dis-

crimination in the state or political subdivi-
sion that touched the right of the members of
the minority group to register, to vote, or
otherwise to participate in the demociaric
process;

2. the extent to which voting in the elec-
tions of the state or political subdivision is
racially polarized;

3. the extent to which the state or political
subdivision has used unusually large Llection
districts, majority vote requirements, anti-sin-
gle shot provisions, or other voting practices
or procedures that may enhance thi opportu-
nity for discrimination against the minority
group;

4. if there is a candidate slating process,
r,l'hether the members of the minority g.oup
have been denied access to that processf

5. the extent to which members of the
minority group in the state or political subdi_
vision bear the effects of discrimination in
such areas as education, employmenr and
health, which hinder their abiiity to partici_
pate effectively in the political p.o"err;

- 
6. whether political campaigns have been

characterized by overt o. irb,tl. racial ap_
peals;

7. the extent to which members of the
minority group have been elected to public
office in thc jurisdiclion.

Additional factors that in some cases have
had probarive value as part of the plaintiffs'
tvidcncc to establish a violation are:

vote dilution come within the scope of the
Act. Senate Report at B0 n. lZ0; Rybicki
o-.- State Board of Elections of the State of
Illinois, 574 F.Supp. 1t47, tt48 (N.D.Ili.
1983) (three-judge panel) f,,Rybicki II,,l.
As stated in Rybicki { it is clear that the
amendments are intended to apply to redis-
tricting plans and that their application to a
current redistricting plan poses no prob-
Iems of retroactivity because such applica-
tion is in fact prospective to the elections to
be held during the next decade. Rybicki
II, 574 F.Supp. at 1148 n. B; Major o.
Treen, 574 F.Supp. B2S, B4t-42 n. 20 (E.D.
La.i983) (three-judge panel).

In order to determine whether a suspect
election structure or practiee constitutes a
violation of section 2 under the ,,results,,

test and in order to remain faithful to
Congress' express intent, we should at-
tempt to apply the factors set forth in
Congressional Committee reports.s These

whether there is a significant lack of re^
sponsiveness on the part of elected officials to
the particularized needs of the members of
the minority group.

whether the policy underlying rhe state or
o p-olitical subdivision's use of such voting qual-

ification, prerequisite to voting, or standa.d,
practice or procedure is lenuous.

While these enumerated factors will often
be the most relevant ones, in some cases other
factors will be indicative of the alleged dilu-
tion.

The cases demonstrate, and the Committee
intends that there is no requiremenl that anv
particular number of factors be proved, oi
that a majority of them point one way or the
other.

Senate Report at 28-29 (footnotes omitred).
The Subcommittee on the Constitution of the
Senate Judiciary Committee enumerared a par_
tial list of twenty "objective factors,, gleaned
from various sources, including:

(l) some history of discrimination; (2) at-
Iarge voting systems or multi-msnber dis-
tricts; (3) some history of ..dual,, school sys.
tems; (4) cancellation of registration for fiil_
ure to vote; (5) residency requirements for
voters; (6) special requirements for indepen.
dent or third-party candidates; (7) off-year
elections; (8) substantial candidate 

"ori 
..-

quirements; (9) staggered terms of office;
(10) high economic costs associated with reg,
istration; (11) disparity in voter registration
by race; (12) hisrory of lack of prJporri.,,,.
representation; (13) disparit]. in Iilerac! rar,
by race; (14) evidencc of raciaf blo. v,rr,,,1

factors
tzr, 472
314 (19i

Court e
F.2d 12
other 1

Parish
636, 96
Zimmet
tors up,
might I

White t
trict cor
member
ties, Tel
racially
of a pol
the Dem
of certa
nomic fa
cumstan
Democra
concern
and aspi
use of r

candidatr
that onll
the Texa
Dallas C
U.S. at 7
court thu
was "ger
the politir
ingful mi

The ap
ter CotrL
cireumsta
of Bexar
San Anto.
cable to
considerei
tion of dir
ment, ecc

Id. at 76E

It is im
cumstanct

( l5) hi:
tory of
tion of
toral n,
ill,.r

>'r.r l.:



.$

. KETCHUM v' BYRNE 1405
r cltc er 7a0 Frd r39t (llarl '

factors were derived 'ftom White a' \pe1'- were thought to'be useful i4 characterizing

ter, 4L'U.S. ?55, se s'Ci"ziillii r''ni'za " 
-'vtl,o "'tilizing multi-member election

314 (19?3), the leading li"''nod'nsupreme irtiit*,s' l' a 
"ai" 

where lines are drawn

Courr case, zrrd Zlmmir'rliirirUnin, AeS ," "t"Uifti' {iscrete electoral units and to

F.2al 129? (5th Cir'19?3j 1"' L"tl' o{d oT. ;it;;b"; racial and ethnic populations

other srounds sub ;;;:'";;:; Tariglt ;'""'*'"yi'"' :l:'XX';;: ;HX":':';
Parish Schoot Board ''-ii"iniu' 

424 U-'S' lines are drawn may

636, 96 S.ct. 1083, qi'{'i'iili zbo (rgzo)' i'iiti" "r discriminatory intent or result'

Zimmerarticulated tf'"""g!'"g"" :l ll" Sutt' "ai"tt" factors in the drafting pro-

tors upon which a .l;ill? "fu ailytrg l"*'"rlrairidual districts mav augment or

might be based. 4#^.F;l "t rso'an. ;;;;k" the place of the White o. Reges-

White a. Regester, *ii"i'"?ri'-ed a dis- i'" l'u"rgt?t'o-^l'1ttrs whieh indicate

trict court deeision d;i;;;;i;";lid multi- it e t istorical or sociolosical climate of an

member districts i, prjil. 
"ia 

Bexar coun- ;;l;;;;;.av or other oolitical unit' see

ties, Texas, relied on ";id";;;;"aditional 
i' lt'1"-i Treen' sza^ r'Supp' at 342-43

racially exclusionary practices (such as- use n' 22'

of a poll-tax 
"na "*troJi"on 

of Lt"tt t'o'n The political situatiorr in the city of chi-

the Demoeratic Party;'ffi pt"t"ttl "'a t"g" i= obviously so-mewhat different from

of certain other historical and socioeco- ;;;;il-t;ain wnite u' Regester' The

nomic factort or ci'comstances' These cir- ;;-;;';;crimination in politics and in

cumstances includea til"iulor" of tfrg ;;r;i;+Pl contexts which have been al-

Democratic party to Ln^ili, *"od-faith ieged (and in some cases proven in court) in

concern for the p'l;*i;;;'otf;t' n""at ciit"g" h*t been less open and notorious

and aspirationt of tt'"t"il"I'o'"o*"'itr"" ii"" ir'* was historicallv the case in Dal-

use of .acial camp"ig;;;;; to.deleal r".'u"J Bexar Counties in Texas' Elected

candidates *i*' ur"trtXupi'o'i-uni-tn" rutt Jiiti"L "'a 
the Democratic Party in chica-

rhat only two blacks ;;lru;; erecred to ;;';;;;- "".T 
tl: .vears been somewhat

the Texas House or"ffitt"nt'tives from ilo'* 
'"tponsive 

to black and Hispanic con-

Dallas countv *int" t?tonJi'i*i"* '1' ;;;;;' ;t'd in chicago numerous black pub-

U.S. at ?67,93 s'ct' 'i'iiao'- 
Tt'" ditttitt iJori;ti"ls' including aldermen' state sena-

court thus found thattl"uutL "ottnul,itv io" 'na 
representatives' u'S' representa-

was "generauy not ;"ilil;:P !'i": ll:l' ;j;;';;; no* tt'" Mavor i":" 
t:"i:]:.^t:.a;

the political process in a reliable and mean- However' adverse social and economlc

il;f"J';;;';t"' Id' ti*'*=t""tts involving dis'crimination' de-

The approach which the v'hita r'' ^Regcs- pr".."d socio-economic conditions' lower tn-

ter court utilized ''''1""""t"* 
it't r'itt"tit"r Io*"' i'outing and school segregation' and

circumstanee. oi tt't--iispaiic community' ituaiiionulty low ' 
voter registration and

of Bexar countv t""'*ii'itg the citv of ;;-;;l have existed for the black and

San Antonio) i= pt'h"p-;';;""ai'"ttrv uppri- ;;;;tt-;munities in Chicago' Rvbicki

cable to ou"u'"''o'i#;;;;;' 9l':" 
';;''-rt; 

F'Supp' at 1151-52' In addition'

considered the effecr ;;il#"I participa- "",i"r**. 
or other {orms 

of lls::T:l:
tion of discriminatio'n i;'"'d';;;t;tl emplov il;;;'; been-alleged or pr('|ven in such

ment, economics, iealth and other areas' tiiv ""i" :.t. th" Chit"go Police Depart-

Id. a116g,93 s.ct. at 2340. i]Jnt' the chica4lo Hsusing Authority' the

It is important to recognize that the cir- ii,,..,*" s",rd if nducution, the Chicago

cumstances ia"rui"a-J Tiilt, ,. Regester public Library and the chicago Park Dis-

(15) historl'of English-onll ba.llots: !1:.).,T' 
3772' 3278-80' 73 L'Ed2d lol2 (1982)' the Su-

ror* of poll ta*e.;-(17) diiparirt in dtstrihrr t""n'" co'.1t;''II:J;o;.il':,T*lJltt":i"t::l
ri,n.r scr'ice.0., )".;'l'ilin'*t'"''a "t" :::'li:ll:il::,iX'.iInij.,,*J i-nii" t"gi'lutit"
r,,r;ri p,,srs;. (-19) prohibirio"' "" 

tl,:l::..:.I],: ' .,,;.'. 
':;i 

,;endccl sccrion 2 and thosc 
-con-

,(-,r;ng; nnd (20) majorirl't"t: t::l',:',:.ll','"1,. .,rir.rt.d in $/hitc rl. Regesrer' 
-4-1.2 

u's' 755' 93

;i:ll:: Y',.",,'r.,::liii:ltilll".'.i il,''ii'!'"1' ):' 
'::r:' 

:r7 I,Ed 2d 3r4 (re73)'



1406

tncl. Rybicki a. State Board, of Elections
of the State of lllinois,5?4 F.Supp. 10g2,
LL20-27 (N.D.I11.1982) (three-judge panel)
["Rybicki /']. While blacks have been rep
resented in the City Council, the Hispanic
community has not, having elected no al-
derman between 1920 and 1g80. Stip. 1lT.
ln Puerto Rican Organization for politi-
cal Action o. Kusper, B50 F.Supp. 606, 611
(N.D.I11.1972), affd,490 F.2d S?b (?th Cir.
1973), the district court issued an injunction
requiring the preparation and distribution
of certain election materials in Spanish in
order to protect the right to vote of Span-
ish-speaking individuals. Finally, we note
that the three-judge Rybicki court found
intentional discrimination in the redistrict-
ing plan, based on the i980 census, of
certain state legislative districts in Chicago.
Rybicki /, 574 F.Supp. at 1108-12.

The district court, in the case before us,
rejeeted plaintiffs' claims of a section 2
violation based on dilution of minoritv vot-
ing strength through packing and fractur-
ing of minority communities. Instead it
found that these practices were the result
of severe housing segregation of the black
eommunity in certain areas and the incum-
bent aldermen's desire to protect their in-
cumbencies (Tr.4102). The court did, how-
ever, find a section 2 violation, not on the
basis of purposeful discrimination, but on
the basis of the retrogression in the 19g1
map in the number of wards with a black
majority'population. We approve this find-
ing of a section 2 violation based on retro-
gression and on the manipulation of racial
voting populations to achieve retrogression.

III
Intentional Discrimination

12) Appellants also ask us to reverse
the trial court's determination that there
has been no fourteenth amendment viola-
tion. In order to establish such a violation,
we would be required to find that the City
Council had intentionally discriminated
against minorities under the criteria set out
in Cit.y of lilobile t Bolden, 446 U.S. b5,
100 s.ct. 1490, 64 L.Ed.2d 4? (1980). The
Supreme Court there stated in its plurality
opinion that, in order to prove a claim of
voting strength dilution, the "plaintiff must

?40 FEDERAL REPORTER, 2d SERIES,}
prove fhat the disputed plan was ,conceived

or operated as [a] purposeful devic[e] 6
further racial . . . discrimination.' ,, 145
U.S. at 66, 100 S.Ct. at 1499 (quoting lltrit-
comb a. Chavis,403 U.S. lZ4,l4g, 91 S.Ct.
1858, 1872, 29 L.Dd.zd 363 (19?1). It is
not, however, necessary for a plaintiff tp
demonstrate that discriminatory purpose is
the only underlying motivation for the chal-
lenged redistricting plan as long as it is one
of the motives. Village of Arlington
Heights u. Metropolitan Housing Deailop-
ment Corp., 429 U.S. 2b2, 26ffi6, SZ S.it.
555, 563, 50 L.Ed.2d 450 (L977); Rybicki I,
574 F.Supp. at 110&{7.

ln Rogers u. Lodge, 4b8 U.S. 618, I02
S.Ct. 3272, 73 L.Ed.zd i012 (1982), the Su-
preme Court retreated somewhat from the
pluralitv position in Bolden without actual_
ly overrulin g Bolden. ln Rogers, the
Court affirmed the district court,s finding
of intentional discrimination based on indi_
rect and circumstantial evidence and en-
dorsed its reliance on a ,,totality of the
circumstances" approach . Id. at 622-27,
102 S.Ct. at 3278-80. The factors cited in
Rogers as relevant to a determination of
diseriminatory intent include bloc voting
along racial lines; low black voter registra-
tion; exclusion from the political process;
unresponsiveness of elected officials to
needs of minorities, and depressed socio-ec-
onomic status attributable to inferior edu-
cation and employment and housing dis-
crimination. Id. See also Buchanan u.
City of Jackson, ?08 F.zd 1066 (6th Cir.
1983) (district court decision remanded for
reconsideration in light of amended section
2 of the Voting Right Act and Rogcrs a.
Lodge which recognized that discriminator).
purpose can be based on circunrstantial evi-
dence including the Zimmer factors); Bzzs-
key t:. Oliuer,565 F.Supp. l4?3, 1481 (M.D.
Ala.1983) (discriminatory result may be es-
tablished by several relevant "circumstan-
tial factors" enumerated in the pre-Bolden
cases, White u. Regester and Zimnter t.
McKeilhe'n): Note, The Constitutional
Significonce of tht Discritninotorg E_f-

fects o.f At-Lorot E!cctions. 91 )'.rlr. L,.I.
974,9?r.-r1 (]!):],

The tiistrict ,...r1,f.' ir, tht, ease i,,_ i,.,
fourrri ti,lil l)I'(,i\:. (,1 t!irul)illi:j i

.I

.r' men was
City Cour
other facl
court in ,

tional disr

islative r,

dence of
well. Fir
the conte.
percentag
from nine

under tht
black wa,

map. Srl
at 1108-{
United S,

1548, 156r

changes c

retrogresr
norities ir

rights); I
130, 141,

629 (i976,
racial min
Voting Ri
F.Supp. 1

gression r
tion under
Rights Ac
United Sr
c.1981) (t
159, 103
(reduction
cates "inr

Ward

7(
15i
lE(
Jr t

See Appe
Exhibit 1i
ant-Appel
of Chicag

This vt'
Rybici:i .'

' 
:,u'

- .."&{*5.*q _



xircHuu v. BYRNE
CltetrTr$F2dl39t (t964)

*

1407

men was the motivation underlying the claratory relief under section 5 of the vot-

City Council redistricting plan. Yet several ing Rights .Act\; Hale County' Alabama a'

other factors, similar to-those which led the United Sia-tes' 496 -F'Supp' 
1206' 1218

court in Rybicki / to conclude that inten- (D'D'C'1980) (threejudge panel) (retrogres-

tional discrimination was present in the leg- sive effect of changes in voting seheme

islative redistricting plan, are strong evi- supports inference o{ discriminatory pur-

dence of intentional discrimination here as poi" in action brought under section 5 of

well. First, there is the retrogression, in the Voting Rights Act)'5

the context of a substantial increase in the Second' discrimination may be identified

percentageofblaeksinthepopulation,inthemanipulationofcertainwardbound.
from nineteen majority black wards in 1980 aries to adjust the relative size of racial

under the 19?0 map to seventeen majority groups in the City Council map' For exam-

black wards under the 1981 City Council pl"' b"fot" the 1981 redistrieting' four

map. Supra n. 2; Rybicki I, 574 F.Supp' wards-the ?th' 15th' 18th and 37th

at 110&{9. See also City of Rome a' wards-had populations in excess of the

t1nited states,446 U.S. 156, 185, 100 s.ct. 60'101 required under the redistrieting

1b48, 1b6b,64 L.Ed.2d 11e (1e80)(erectorar *:1" ft':13:ff."'i?ff:1; *1.tr", l;
:n:?:Xffi th:lTilT,l:|':il:1'Jl;xl'*im:f m'x"f,"*f;"fl ff :
:,"-1[T';,:1",:";,';;; "i,i[]: ff'i]:3l ;l:]llx',31il\#?".1'::"; #:;,',:,]'"ll
130, 141, 96 s.ct. 135?, 1363, 47 L.Ed.zd ty. In order to accomplish the required
629 (19?6) (retrogression in the position of ,Ldirtribrtion of population, however,

racial minorities is not permitted under the blacks were moved out of these wards in

Voting Rights Aet); Buskey u. Oliuer, 565 much greater numbers than their propor-

F.Supp. 1473, 7482 (M.D.A1a.1983) (retro- tion of the population and in greater num-

gressionmayconstituteun]awfulvotedilu-bersthanrequiredtoaccomplishtheneces.
Iion under amended section 2 of the Voting sary reduction' Additional people' compris-

RightsAct,l;CitaofPortArthur,Terosl:.ingamixofblacksandnon.minorities,
Uittea }tutus,51? F.Supp.98?, 1022 (D.D. were then moved into these wards to make

C.1981) (three-judge pun"iy, affd, 459 U.S. up the deficit with a resulting sharp reduc-

159, 103 s.ct. 530, 74 L.Ed.id 334 (1982) tion in the proportion of blacks in those

(reiuction of black voting strength indi- r*'ards. This process is illustrated by the

cates "inYidious motive" in action for de- following chart:

19?0
Ward Map

7 69,521
15 72,255
18 61,409
37 77,394

See Appellants' brief at 21; Defendant's

Exhibit 1I, Appendix A to Brief of Defend-

ant-Appellee, The City Council of the City

of Chicago [Def.Ex.].
This very practice was identified in the

Rybicki 1 opinion, where it u'as found to

6. Retrogression causing erosion in the relative
voting s-trength of minorities is often an issue in
.u..ib.o.lght under section 5 of the Voting

'/ Total '1 Tot'al 
't 

Oct '/
Black Moved Out Black Moveti In Black Malt Black

62.6 14,1?6 93'? 5,002 6tj'6 60',34? 55'6

66.4 17,E47 g6 s 5;846 0'0 60',254 51 g

49.3 10,72s 98'6 9'440 8ir'6 60'120 46'2

76.4 40,035 96.2 23,149 1'4 60',508 34'5

constitute manipulation designed to dilute

minority voting strength. ln Rybicki I in

several legislative districts, large numbers

of blacks were moved out, whites moved in,

and the excluded blacks "packed" into a

district with an unnecessarilv high propor-

Rights Act. See The Dilentnn of
Rights Act, supra n.2, al 1622-23 n

tlu'
29.

n

_l
L'<tt inSl



r408 ?40 I'EDERAL RtiPORTI'lIi, 2d SERttls

tion of blacks and with a resulting "'waste"

of black votes. Rybicki d 5?4 F.Supp' at

1111-12.? Examples of "fracturing," in

which blaeks are moved out of black major-

ity wards and into white majority wards

where they would constitute a sizeable but
politically ineffective minority, were also

identified.s Rybicki I, 574 F'Supp' at

1109-11.

ln Rybicki { the three-judge court found

that these practices of manipulation, pack-

ing and fracturing were the product of an

intent to preserve the incumbencies of vari-

ous white legislators. Nevertheless, the

court said:
It may, of course, be argued that this

manipulation of racial populations in the

district was accomplished for the purpose

of maintaining the incumbency of a white

Senator and was not necessarily indica-

tive of an intent to discriminate against

blacks qzo blacks' We believe, however,

that under the peculiar circumstances of
this case, the requirements of incumben-

cy are so closely intertu'ined with the

need for raeial dilution that an intent to
maintain a safe, primarily white, district
for Senator Joyce is virtually cotermi-

nous with a purpose to practice racial

discrimination.

/d. at 1109. The court in Rybicki 'I recog-

nized that adjustments of legislative dis-

tricts merely to preserve incumbencies,

where large shifts and manipulation of ra-

cial popuLtions were not evident, would

not necessarily amount to purposeful racial

discrimination. Id. at 1110-11 n' 81' See

Burns a. Richardson, 384 U.S' 73, 89 n' 16,

86 S.Ct. 1286, 1295 n. 16, 16 L.Ed'zd 376

(1966) ("The fact that district boundaries

may have been drawn in a way that mini-

7. Districts with a black majority greater than

65o/v7 Oo/o (the percentagc considered necessary

to ensure blacks a reasonable opportunity to

elect candidates of their choice) may evidencc
"packing." In such cases, the excessive concen-

tiatio., -of black population mav be viewed as

"uasting' minoritl 
"'oting 

pou'er and unneccs'

sarilv liinimizing minoritl effcctirenes: in t'th
er districts. See The Dilemnta ol thc Vutini
Rights Act, suPra n.2, at 1662-63 n' 194'

8. Fracturing is the process b1' wbich a ntilti'r r:

gr.r,up u'hich could form a siz'eable maiorilr r'

i,,,, i,rt.ict is split into two or morc disi:': -

mizes tfie number of contests between'

present incumbents does not in and of itself
establish invidiousness."); McMillan D' Es'

cambia County, Florida, 638 F'zd 1239,

1245 (sth Cir.) ("the desire to retain one's

incumbency unaccompanied by other evi-

dence ought not to be equated with an

intent tp discriminate against blacks grzo

blacks"), cert. dismissed sub nom' Jenkins

a. City of Percacola, Florida, 453 U'S'

946, 102 S.Ct. 17, 69 L.Ed.2d 1033 (1981),

aacated in part,688 F.2d 960 (1982)' oacat-

ed. and remanded, 
- 

U'S. 

-' 
104 S'Ct'

15??, 80 L.Ed.2d 36 (1984). Nonetheless,

the court found in Rybicki 1 that the evi-

dence of dilution of minority voting

strength by manipulation, fracturing and

packing established intentional racial dis-

crimination in the redistricting plan be-

cause racial discrimination was the neces-

sary accompaniment of the action taken to
protect incumbencies. Since it is frequent-

iy impossible to preserve white incumbenc-

ies amid a high black-pe centage population

without gerrymandering l'o limit black rep-

resentation, it seems to follow that many

devices employed to preserve incumbencies

are necessarily racially discriminatory' We

think there is little point for present pur-

poses in distinguishing discriniination

tased on an ultimate objective of keeping

certain incumbent whites in office from

discrimination borne of pure racial animus'

We have discussed above several exam-

ples of the dilution of minority voting

strength through manipulation of ward

boundaries. AppellanG have alleged in-

stanees of packing (the "wasting" of black

votes through unnecessary eoncentration,

supra n. ?), in that fourteen of the seven-

where the minorities constitute an ineffective
political grouping in each district' See abo in-
'fra 

n. 9;-Gingles v. Edmbten, 590 F6upp' 345'

rss tE.b.x.cll984) (thrce-judgc panel), appeal

docketed, 52 U.S.L.W- 3908 (U'S' June 2' 1984)

(No. 83-1968) ("Vote dilution in the White v'

Regesler sensc may resull from the fracturing
inii, ,"rc.al single-membcr districts as well as

fronr thc submergence in one multi-member
dislrict of black voter concentrations sufficient'
i1 :r.l 'fractured' or'st'bnlerged,'to constitule an

clfccrivc single-nrcmber district voting majori'

i\"1.

teen majo
lations in
majoritY
comparab
There art
the black
and the S

populatio
form add

instead s

norities I
The Hi

were fra
that the
more disl
is therefr
wards w;

See gen'
Systems
Large 51

(1982). I

has, occ'

Northwe
split amr
32nd, 33

populati'
from 24

Side, tht
split intr
the 25tl
instead
have be
populati
Village
Ieft enti
Hispani
tween t

9. SuPt,
feller,

ln th
...1
nant
blac
War
and
map
blac
neig
wa!'
war
the

Tr.9?
tin R.
l4th,

Anc
Harts.



, I' 'KETCHIIM Y. IIYBNE ,, 1409

ilteuTlx)F2d 
tseE (19E4)

teen majority black wards have blatk popu- and M-3% of the total'population' respec-

il;; in "*.".. 
or a97, *Lite onty iix tively. Appellants' brief at 25-26.

majority white wards have majorities at Despite these considerable indications of

"ornp"oUt" 
t"rut.. Appellants brief at 31. minoriiy'voting strength dilution through

it "i" "r" 
also allegations of fracturin_g of manipuiation, paeking and fraeturing,

the black communities on both the West which in Rybicki 1 were (we think correct-

and the South Sides, so that certain black ly) held to-constitute intentional racial dis-

population, which could have been used to crimination, we think it is unnecessary to

iorm additional black majority wards, was make a formal finding that the 1981 City
instead split off to form sizeable black mi- Council map constitutes intentional racial

norities within white majority wards'e Jiscrim;nation. At the time of the Rybicki

The Hispanic communities also allegedlY 1 decision, the finding of remediable vote

were fracfured' We, of course' recognize dilution depended on a determination of

that the Hispanic population is generally intentional discrimination. As noted previ-

more dispers"d ttan is the black and that it ously, the 1982 amendments to the Voting

is therefore usually more diffieult to create Rigt * Act have eliminated the require-

wards with a significant Hispanic majority' ."*nt of intentional discrimination and re-

See generally Note, Altentatipe Voting lief can be afforded on the basis of a find-

Systims as Remedies for tlnlawful A-t- ing of resultant discrimination. This

iarge System.s,92 Yelr LJ'144,146 n' 16 .h'ange in the law appears to refiect con-

(1982). 
-Still, 

Jracturing can, and ostensibly gi"..ion"t impatience with the inherently

lftLrT::l'".1r" if,:;l:*'J**"tfit il: 3p".,r,ti* pio'"". or ascribing purposes

split among six wards (the 26th, 30th, 31st, to government actions involving the com-

B2nd, 33rd and 35th wards) with Hispanic plex interaction of numerous individuals

populations in these various wards ranginu a"d conflieting interests' we think it un-

from 24.1% tD 57.3%. on the Southwest desirable to undertake this difficult analy-

Side, the Hispanic community of Pilsen was sis when Congress has rendered it super-

split into two wards ttir"lrl*itr' 30'7% and fluous by amending the Voting Rights Act'

the 25th wiLh 52.6% Hispanic population) Congress' in amending the Voting Rights

instead of being left intact, as it might Act' wisell'eliminated the elusive and per-

have been, as one ward with an Hispanic haps meaningless- issue of governmental

population of 72.97''. in addition, the Littte "p"pot"" from the calculus of vote dilu-

Villagecommunity,whichcouldhavebeentionclaims'Seco/soMajora'Treen'574
left entirely within the 22nd ward with an F.Supp. at 346' There appears to be no

Hispanie population oi ls.g,l, was split be- difference in the practical result or in the

tween the 12th and 22nd Wards wtih SZ7' available remedy regardless of how the

demonstrate the disproportionate cffect of frac-

i,.,ring o., the u'hite, as opposed to.black and

fti.oini.. Dopulation. Atcording to his calcula-

tions, thc'odds of a black being placed in a

majority-u'hite r,r'ard were 4'47 times as great as

the oddls of a white being placed in a majority-

black ward. If only those wards located along

the "borders" between the r'r'hite and black com-

munities are considered, then blacks in thosc

wards rvere 33.67 times as likell' to be placed in

majoriry-u'hite wards. In both situations (bc-

cat,.e uirtually all Hispanics live in border ar-

eas), the oddi are 88.68 times as great that an

Hispanic would be placed in a majoritr'-uhitt
,.ri,l u, that a whitc rvould bc placcd in a

mlr.i,):it\'Ilispanic u'ard. Appcllants' brit I '

2;-31; Plaintiffs' exhibits 171, li2 19-1 t'
20i Tr.712,779.

9. Suora n. 8. Plaintiffs' expert witness' Dr' Ho-

fellei, testified at trial as follows:

In the construction of the 1981 wards overlay'

. . . there are instances in which the predomi-

nantly white wards come in and fracture the

biu.k "o--rrrities. 
You see this in Ward l8'

Ward f 5, Ward 14, Ward I l, Ward l' Ward 37

unJ i" to-. extent Ward 42' Nowhere on the

map do you see a comPcnsating .reach 
of, a

Ulack oard oul across thc boundary ol the

,r"igtUothooa into the white areas' In this

*"r: 11r." could not help. but bc less black

waids created than uould be warranted b1'

tir" loprlurinn of thc black neighborhood'
fr. SZi-iz, see also Tr' 23'5 (tcstimonl'of Mar-

tin n. ftlr.pt,t idcntifling fi acitit itrg in thc I lth'
l4th, l8th, lirlr, 37th anri l:ir'' \\ards)'- 

A.rott"t plainriffs c)l): \\'rIr(s:-' Dr' Philrr

Hauser, conrlu. tr'.:i \xl lr '' : '' :"1: Jnirlvsrt i

"!&.'r* _



1410 ? O }.EDT]RAL REPORTT)I', 2d SERIES .

I

resulting discrimination is characterized'r0

We therefore shall not explicitly decide the

issue of a fourteenth amendment violation

despite the apparent close analogy between

certain of the facts here and certain of

those in Rybicki l.tl

IV

RemedY

t3l Having found that the City Council

map resulted in racial discrimination and

therefore violated section 2 of the Voting

Rights Act, the distriet court ordered the

drafting of a new map' The sole basis for

the district court's finding of a violation

was the city-wide retrogression based on a

comparison of the number of black and

Hispanic majority and plurality wards in

1980 under the 19?0 map with the number

of such wards under the 1981 map' Supra
r. 2. The guidelines established by the

district eourt for the redrawing of the map

therefore consisted primarily of restoring

10. Plaintiffs assert that if intentional discrimi'
nation is found, they will be able to seek addi-

tional relief under section 3(c) of the Voting

Rights Acl. Seciion 3(c) provides that, jf a four-

teJnth ot fifteenth amendment violation is

found,
the court, in addition to such relief as it ma;-

grant, shall retain jurisdiction for such period

is it may deem appropriate and " no voting

qualification or prerequisite to voting or stan-

dard, practice, or procedure with respect t<r

voting different from that in force or effect at

the ti-me the proceeding was commenced 
-shall

be enforced unless and until the court finds

that [it] does not have the purpose and- will
not h"r. the effect of denying or abridging

the right to vole on account of race or color'
or in contravention of the voting guarantees

set forth in s€ction 1973b(O(2) of this title" ' '
42 U.S.C. S 1973a(c) (1982)' Because we be-

lieve that iontinuing court jurisdiction of the

redistricting requirements for the aldermanic

wards would be neither necessary nor approprl-

ate under these circumstances, the relief actual-

lv available to plaintiffs in this case is the same

.ieu.dl"tt of whether we reach the issue of

inientional discrimination' Obviously' a consti-

iutional anall'sis u'ould be required if relief un-

:l ' secr.ion i(.) o'"." in question' We note' in

: .i(';iion, rhal the Suprcme Coun has recen-tl)'

... -lrned to considcr ihe constitutional basis for

. li;;)icntrl. lo all elec(oral system when an

,.' :,. t:, a n.c 
:_1 _,1:,"t-,::::'; :::tTl^"ifl:11:

blacks to a simple majority of the voting

age population in nineteen (instead of sev-

"nt"eri 
wards, the two affected.wards be-

ing the 3?th and 15th (Tr. 4107)' The dis-

trict court also determined that the Hispan-

ics should have four majority wards and

one plurality ward (Tr. 4111).r2 The respec-

tive tompositions of the 22nd,25th and 31st

Wards were considered satisfactory, but
the district court ordered adjustments in

the 26th and 32nd Wards (Tr' 4112-13)'

Perhaps the most significant aspect of
the district court's remedy formulation was

its determination of what constitutes an

effective majority for a minority group

within a particular ward' The test of an

effective majority is that share of the popu-

lation required to provide minorities with

"a realistic opportunity to elect offieials of
their choice . . . ." Kirksey u. Board of
Supertisors of Hinds County,402 F'Supp'

65d, 6?6 (S.D.Miss.19?5), affd, 528 F-2d

536 (5th Cir.19?6), ret'd, 554 F'2d 139 (5th

Cir.) (en banc\, cert- denied, 434 U'S' 968,

98 S.Ct. 512, 54 L.Ed.zd 454 (1977).'3 In

cambia County v. Mcl{illan, 
- 

U'S' 

-' 
104

S.Cr. 1577, 80 L.Ed.2d 36 (1984)'

ll. Becausc we do not decide the question of
intentional discrimination, i1 is also nol neces-

sarl' for us to consider the complcx burden of
proof qucstions presented by the alternative
modes of analysis available in Proving inten-

iional discrimination in cases involving mixed

motivc discussed at some lenglh in Rybicki I'
574 F.Supp. at l106-o8. See, e'g', Mt' Healthy

City Schoil Dbticr Board ol Education t' Do1]1,

429 U.S. 274,97 s.Ct.568,50 L'Ed'2d 47t (1977)

(use of a two-step analysis in which, once plain-

tiff shou's a discriminatory purpose was one-

factor in the challenged action, the burden ol

proof shifts to defendant to show the same

resuh u'ould have occurred absent the discrimi-

natory purpose); Texas Department ol 9:-^!:
nitt ilioiri v. Burdine, 450 U'S' 248' l0l S'Cl'

ross, iz L.Ed.2d 207 (1981) (use of a three-step

analysis in which the burden of proof.shifts
baci to the plaintiff lo demonstrate that the

defendant's purported explanation is. merely a
pretext for intentional discrimination)'

12. We note that a retrogression analysis applied

to a minority which had no prior elecled.repre'

sentation seims less clearly appropriate than as

applied to a minority having a previous historl'

oi'repre.entarion. We think, however' that the

district court's determination of liabilit-l u'ith

respect to the Hispanic u'ards is correct'

/re case be
adopted the t

statistics as t
criterion for t
evaluation of
tion 2 (Tr. 41

ed for most r
greater than
as a threshol,
majority of t
of the Hispa
higher figurt
high number
the general
majority of v,

stated:
there is n
dence in t
entitled to
majority o:

order t0 Lu

nity to vot,
or even 1

choice.

Tr.4109. Tl
testimony oI

Ward

15
J/

Appellants'
and 2611. 1

Ward

22
25
26
31

32

Appellants'
and 261I.

enougl.r to .

In the case
must const
poptrlation
tora) majo:
I('rrri a.s R.
Ir Ii.\. 92 \'^
::, l'oli':.i

. :: i

, i/iJ rl

/-i:t,trtet t13. In more practical terms, an effective -majut'l'l . -.*r.*.*-.



the case before us, the district court
adopted the us"e of voting age population
statistics as the fairest and most equitable
criterion for minority group strength in the
evaluation of a redistricting plan under sec-
tion 2 (Tr. 4106). The district court reject-
ed for most wards the use of any majority
greater than 50%, of voting age population
as a threshold for determining an effective
majority of blacks or Hispanics. In some
of the Hispanic wards the court did set a
higher figure to correct for the relatively
high number of non-citizens. In rejecting
the general use of a greater than 50%
majority of voting age population, the court
stated:

there is no statistical or objeetive evi-
dence in the record that a minority is
entitled to or should have more than a
majority of the voting age population in
order to have a reasonably fair opportu-
nity to vote for candidates of their choice
or even to elect candidates of their
choice.

Tr. 4109. The district judge also relied on
testimony of defendants' expert witnesses

Ward

15

37

1970 Map

66.36 (59.99)rr
76.39 (72.42\

,
KETCHUM v. BYRNE

Clte u 7t$ F2d l39t O9E4)

City Council Map

41.69 (34.59)

36.84 (31.21)

City Council Nlap

64.88 (59.88)

52.56 (4ri.19)

52.34 (4{J.68)

57.26 (52.41)
4?.23 (39.59)

i'. :. i, lgTl

that minority groups *ill register and vote
in sufficiently large numbers when the
proper incentives are present and that
"[i]ntelligence or economic standings in the
community" are variables which are statis-
tically unsupported in the record and
should not be considered. The district
judge therefore chose to

disregard and discard the rule of thumb
that has been talked [sic] by various wit-
nesses that 65 percent of a minority is
necessary in order to control a ward or,
to put it another way, to give the voters
in that ward a fair opportunity to vote
for a candidate of their choice.

Tr. 411G-11.

Following the district court's finding of
liability, the defendants were thus ordered
to draft a new map in accordance with the
criticisms and guidelines as articulated by
the court, and the district court subse-
quently approved this map. The only sig-
nificant changes in this new map for the
black communitv were the restoration of
black majorities in two wards, as follows:

C,ourt-approved Marr

60.09 (52.6)

61.65 (56.2)

{
l4t I

Appellants' brief at 47; Def. Exs. 1I, ?I the follovving changes for the Hispanic
and 261I. The court-approved map shows wards:

w9.q 1970 Map

62.8 (56.?)

51.1 (44.9)

50.7 (41.9)

53.6 (48.4)

47.9 (40.2)

22
25
26
3t
a9

Court-approved Map

75.55 (69.0)

65.37 (5e.5)

58.83 (50.0)

5?.38 (50.6)

46.3 (38.8)

Appellanls' brief at 48; Def. Exs. 1I, 7I
and 261I. In the court-approved map, the

enough to allow group choicc to bc effective."
In the case of minority groups, thc "minority
must constitute more than half of a district's
population in ordcr to obtain an cffcctivc clec-
toral majority." Notc, Alternati* Voting Sys-
lems as Remedies For Ltnlay'lttl .4t.Iargc S1,s-

tems,92 yrr.r, L.J. 1.14, 116 n jj- |a\r\ lAlrentc.
tive Votittg S1'srcrr.r ]. Sr:r: c;; r, ,j;r r. x('A:C-t-

ir'-:' ll)titt'tnnb
R('8c.t

Hispanies have, as the above table indi-
cates, only 507ilof voting-age population in

("where the petitioner can demonstrate that 'its
membcrs had less opportunity than did other
residenls in the district to participatc in the
political processes and to elect legislators of
their choice,' . .. such districting schemes are
constitutionally infirm") (quoting White v. Re-
gester, 112 U.S. at 766, 93 S.Cr. at 2339).

14. Thc figures in parenthesis are percentages of
voting agc population ('\/AP), as opposed to
percentages of total population ('TP").

ter, 412 U.S. al 766, 93 S.Cl
v. Chavb,403 U.S. at l.lc-
Zimmer v. McKcithert. 1S'



l4l2 ' 740 FtlDERAl, REPORTIIR. 2d SIiRII.]S

lhe 26th Ward, although in that ward the
'iourt had ordered defendants to provide a

population "in the vicinity of a 55 percent

aajority ... to aecommodate the fact that
many of them [Mexicans] are not citizens

lnd haven't had a chance to become citi-

zens" (Tr. 4112-13). The court had also

euggested a 54"1, majority for Hispanics in

the 32nd Ward (Tr. 4113), but the court-ap-

proved map provides for only 38'8%. Final-
ly, the 31st Ward, which was to have no

change according to the trial judge (Tr.

4113), has a reduction f.rom 52.41"1 tD 50.6%

in the court-apProved maP'

In undertaking our review of the remedy

ordered by the district court, we take note

of the comments in the Senate Report con-

cerning the 1982 amendments to the Voting
Rights Act which adoPt

[t]he basic principle of equity that the

remedy fashioned must be eommensu-

rate with the right that has been violated
The couit should exercise its tradi-

tional equitable powers to fashion the

relief so that it completely remedies the

prior dilution of minority voting strength
and fully provides equal opportunity for
minority citizens to participate and to

elect candidates of their choice.

Senate Report at 31 (footnote omitted).
The Supreme Court has stated, in review-
ing a district court decree in a voting rights
discrimination context, that "the court has

not merely the power but the duty to ren-

der a decree which will so far as possible

eliminate the discriminatory effects of the
past as well as bar like discrimination in

the future." Louisiqna u. United States,

380 U.S. t45, 154, 85 S.Ct. 817, 822, 13

L.Ed.2d 709 (1965). ln Connor a. Finch,
431 U.S. 407,97 S.Ct. 1828, 52 L.Ed.zd 465

(L977), the Supreme Court articulated the

standard of review as

whether the District Court properly exer-

cised its equitable discretion in reconeil-
ing the requirements of the Constitution
with the goals of state political poli-

ey.... In such circumstances, the

court's task is inevitably an exposed and

sensitive one that must be accomplished
circumspectly, and in a manner "free

from any hint of arbitrariness or dis-

crimination."
Id. at 414-15, 97 S.Ct. at 1833-34 (quoting

Roman u. Sincoek, 377 U.S. 695, 710, 84

s.ct. 1449, 1458, 12 L.Ed.2d 620 (1964)).

Under this exacting standard, we find
that the court-approved rnap has not pro-

vided an adequate remedy for the Voting
Rights Act violation because it does not
eliminate, in accordance with well-accepted
principles of redistricting, the illegal dilu-
tion of minority voting strength aecom-

plished b1, the City Council map. The

court-approved nrap does not grant to mi-

nority citizens a reasonable and fair oppor-

tunity to elect candidates of their choice as

that concept has been understood in redis-

tricting jurisprudence. We must, there-
fore, remand to the district court for recon-

sideration of an adequate and appropriate
remedl'.

It is not, however, the proper role of this
court to formulate its own redistricting
plan or to dictate to a district court minute
details of ho',r' such a plan should be de-

vised. Nonetheless, we feel we must ad-

dress certain issues and establish certain
guidelines to assist the district court in

determining a suitable remedy. These
guidelines incorporate principles which the

district court should carefully consider and

attempt to implement. We are fully aware,

however, that some deviation from recom-

mended norms ma)- be justified by the ex-

istence of special circumstances. Upon re-

mand, the district court in its discretion
may find it necessary to take additional
evidence with respect to recent political and

sociological changes which may affect our
present analysis of these guidelines.

141 1. Use of Voting Age PoPulation
Statistics: The district court adopted vot-
ing age population statistics as the best
measure of minority voting strength. This
is perfectly understandable since being of
age is a legal prerequisite to voting. Be-

cause minoritl' groups generalll'' have a

younger population and, consequently, a
larger 1,rc,1rortion of individurrls uho are

ineligibit i(, \'ot('. st't irl i ) rr t, l (i. crrurts

formulirt;t g rr'districting lr)l'r:' usulrll't' add

ii 5" iil'.r'r- . ' i,'. t() ii lllaja)rri ' i'1"' rl t'tr tt'1"

population figr
lation data ar
dfurt accepts
reasonable fo
evaluating mir
of merely usri
total populati
United States
s.ct. 1548, 15r
(voting age p'

bative becaus
potential of
City of Port
States, 517 F
1981) (three-ju
population str
us, a cursory (

population fig
demonstrates
total populati<
for minority I
often greater
ployed to cor
As more relia
is not unreas,
data instead c

corrective.

t5l 2. Us

fine a Major
expressly rejt
ties" or of ar,

usually lower
out patterns <

groups. Wr
court's failur
the factors v

comparable s

other courls
(frequently 6r

of voting age
of these guidr
tion under th,

15. For examp
proved map,
total populat
age populati,
Ward 37, unc
constitute 6l
56.2% of the
tial of -5.45%.
tlit 59/o figurc
d'f1.rcnt in (

r. . :alrlr to u
. ;:: c. tvl-,

. **dlz.<*.-



a

KETCHUM v. BYRNE
Clte .s 710 F2d t39E (ttE4)

$

l4l3
population figures. When voting ate popu-
lation data are available and the district
eourt accepts them as reliable, it seems
reasonable for such data to be used in
evaluating minority voting strength instead
of merely using a standard adjustment to
total population. See City of Rome u.

United States, 446 U.S. 156, 186 n. 22, 100
S.Ct. 1548, 1566 n. 22,64L.8d.2d 119 (1980)
(voting age population statistics are "pro
bative because they indicate the electoral
potential of the minority community");
City of Port Arthur, Teras, a. United
States, 517 F.Supp. 987, 1015-18 (D.D.C.
1981) (three-judge panel) (using voting age
population statistics). In the case before
us, a cursory examination of the voting age
population figures available in the record
demonstrates that the discrepancy between
total population and voting age population
for minority groups in the Chicago area is
often greater than the 5%.commonly em-
ployed to compensate for the disparity.ri
As more reliable data become available, it
is not unreasonable for courts to use this
data instead of employing 5% as a uniform
corrective.

t51 2. Use of a Super-Majority to De-

fine a Majoity lllard: The district court
expressly rejected the use of "super-majori-
ties" or of any corrective to adjust for the
usually lower voter registration and turn-
out patterns of eertain minority population
groups. We believe that the district
court's failure 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
(frequently 651i of total population or 607.

of voting age population or some variation
of these guidelines) was an abuse of discre-
tion under the particular circumstances be-

15. For example, in Ward 15, under the court-ap-
proved map, blacks constitute 60.090lo of the
total population but only 52.60/o of the voting
age population, a differential of 7.49o/o. In
Ward 37, under the court-approved map, blacks
constitute 61.650/o of the total population and
56.20/o of the voting age population, a diffcren-
tial of 5.45010. Def.Ex. 261L Thc varialion from
the 502 figure is not great and the results may be
different in other u'ards, but it is certainly ac-
ceptable to use actual statistics in those circum-
stances whcre they are available and reliable.

fore us. We see nothin! in the findings of
the district court or in the record on appeal
which adequately addresses the widely ac-
eepted understanding, which will be dis-
eussed in greater detail below, that minori-
ties must have something more than a
mere majority even of voting age popula-
tion in order to have a reasonable opportu-
nity to elect a representative of their
choice. There is simply no point in provid-
ing minorities with a "remedy" for the
illegal deprivation of their representational
rights in a form which will not in fact
provide them with a realistic opportunity to
elect a representative of their choice.

The experience of many redistricting
plans has lent weight to the understanding
that some form of corrective, even beyond
the use of voting age population statistics,
should be employed as a guideline in defin-
ing a minority' district. The record here
does not demonstrate that the district court
adequately considered voter registration
and turn-out patterns in the Hispanic and
black communities in rejecting the use of
anl' majority greater than 50')tr of voting
age population, and we think the district
court's remedy must therefore be reconsid-
ered. In addition and very importantly,
since, before redistricting was undertaken,
minority groups had achieved majorities ex-
ceeding 6'o')/, in certain key wards, the pro-
vision of super-majorities in those wards
would not be inequitable.

Just as minorit.v groups have a younger-
than-average population, they also general-
ly have lower voter registration and turn-
out charaeteristics.r6 This is not something
whieh can be fully rectified by good motiva-
tion and organization, although the exist-
ence of these certainly helps. Some of the
problems, at least, spring from circum-

16. According to the 1980 census statisiics,69.Tott
of whites, 6070 of blacki and 57.096 of Hispanics
are of voting age. The percentages of individu-
als reporting they were registcred to vote in
1980 arc: whites-68.40lo; blacks-60.0olo; Hispan-
ics-36.3%. The percentages of individuals re-
porting thcy had actualll voted in 1980 are:
u,hites-60.9oli,; blacks-50.5%; Il ispa n ics-29.90,0.
Blnt:lt Ot Txr Clrst:;. U-S. Drrr Oi C!'\1\1i R(r

Srerrstrc,rr Austnlcr Ot '] rl Llrn, l, S

2s-26, 499 (198r ).

_t



I4I4 , 740I.'EDERAI, RI]PORTER, 2d SI]RIT]S
l

Stances of low income, low economic status,
high unemployment, poor education and
high mobility. It is only common Bense
that highly mobile populations are less like-
ly to vote because, inter alia, of failure to
meet residency requirements. In addition,
as the district court actually noted in this
case (Tr. 4112-13), the Chicago Hispanic
population on the Near Southwest Side is
composed of a significant proportion of
Mexicans who have not yet had an opportu-
nity to become citizens.rT In recognition of
this fact, the district court directed defend-
ants to provide a majority of Hispanics in
the vicinity of 55%'of voting age population
for the 26th and 32nd Wards, although the
court-approved map in fact provides for an
Hispanic population of only b0.0?l and
88.8% in the 26th and 32nd Wards, respec-
tively.

Appellants here ask that, in addressing
the illegal retrogression identified by the
district court, we apply to the redistricting
plan an analysis -based not merelv on city-
wide retrogression but on retrogression
within wards. According to this approach,
&ny retrogression in the size of a black
majority or plurality within a ward should
be eliminated and the size of the minoritv
population restored to what it was in l98b
under the 19?0 map. The appellants point
out that this approach has been adopted in
Aoore a. Le/lore County Board of Elec-
Sion Commissioners, 502 F.2d 62l, 624
:6th Cir.1974) (three-judge panel) (reduction
lf black majorities from the 6g-78,i; range
n the 55-60% range found impermissible
)ecause extent of each majoritv was less
Iran in pre-redistricting plan) and Bu,skey
t. Oliuer,565 F.Supp. t473, t48Z-84 (M.D.
tIa.1983) (reduction of black majoritl.' with-
u one ward from 84.2V tb 68,;i held to
:onstitute retrogression and a section 2

7. The Hispanic popularion of the Near Norrh-
west Side wards is apparently predominentlv
Puerto Rican rather than ll,lexican; puerto Ri-
cans are, of course, citizens.

t. Examples of the sort of statistics u.hich a
district judgc mighr u,ish to evaluarc for their
reliabilitr anC significance \\'erc pror.idcd br.
both tfrc dei,,ricl:r::l-appcllce in its rchcaring pt:,
tition, alri,ough nor in its original bricfs ;rnrj
argunrcrrl, an.i b', the plaintiffs-appellants in

violation). *r ttre gZtfr Ward, a full rectifi
catiolt of retrogression would mean the res-
toration of the pre-redistricting 76.4/,, black
majority and, in the lSth Ward, of the
66.4% black majority. Appellants' brief at
80.

There is a certain equity in appellants'
argument, but we think it is too inflexible
an approach to the practical needs of redis-
tricting. We do believe, however, that
those engaged in the redistricting process
must keep clearly in mind that, if the origi-
nal majority is not restored, then the most
relevant change is one d,ownward from the
pre-redistricting percentage previously
achieved by the minority group rather than
one upward from the map formulated by
the City Couneil aetion, which was found to
be in violation of the Voting Rights Act.
From this perspective, the provision of a
majority exeeeding 50/o of voting-age popu-
Iation would certainly not seem inequitable.

We next turn to a consideration of other
principles or guidelines u'hich a distriet
court might observe in fashioning an appro-
priate remedy. The most important princi-
ple is that, upon remand, the district court
must carefully consider and evaluate the
data eoncerning voter registration and
turn-out in the black and Hispanic commu-
nities to determine the practical need for a
super-majority of the respective minority
groups in order to give the minorities a
reasonal,le and fair opportunity to elect
candidates of their choice.

The district court must first gather and
evaluate whatever statistical and other
types of evidence are available in an effort
to determine their accuracy, reliability and
significance in establishing historical and
recent trends in the electoral patterns of
the black and Hispanic communities.ts The
district court must then determine the

their answer. In its rehearing pctirion, the i.-
fendanl includcd a chart with data on black
voter registration and turnclut for the elections
from 1979 to 1982. Rehearing Petirion at 12.
\,\'hilc ir rvould be within the districr court,s
discrcijon to accept, reject or utilize such statis-
ticr ir: :, ntodif icd form, the district court would
b(' : r ' i, ('d ll c\plain and justify irs reliance on
srtil s: ..;,51jg5 and on the numbers on which
tlr,' ' -rscC.

need, under 1

rthe City of C

so, the exter
required to t

reasonable a
candidate oi
court, follow
ing in this c:
those Hispa:
Side with lar
should have t
ties calculatr
individuals w
vote.ls

It, of cour
the discretion
mine what ar
be based upo
such data car
suasive resul
enough relia
support it, m
tion of what ;

populations u

elect candidat
however. thal
vide a reliable
cal data is an
and that a gu
tion (or its eqr
acceptance in

A guideline
has been adop
by the Deparl
portionment e

cally approve
circumstances
us as represer
ty population
sure minoritie
candidate of
derived by au
with an additit
5% for low vr
low voter turn
75"/,. This lea
65% of total p

ing age popul

19. We approv(
McMillan thar
corrective for
discrelion r r t
specific fo :, i

_ .---"{lBA\ ,



|,
KETCHUM V' BYRNI' r415

need, under the particura":;"*';:#:i-;::#.il; 9Yt 
o{ 'the 

romura' reaving

the city of chicago, torl .ori""tive and, if *."tt ing'in the vicinity of 60% of voting

so, the extent of the ";;;;'i'", 
which is F" P:p11utl:i..it ,:h"^ 

tarset percentage'

required to afford blacks and Hispanics " 
e*ppat"nts alqu-e' in'addition' that a fur-

reasonableandfairopportunitytoelect.ather5%shouldbeallowedinatleastcer.
candidate of their ctr'oice. ,ih" di.tri.t t ln ii.puni.-wards on the southwest Side

court, following Judge McMillen's reason' oi f"tg"fy Mexican-American composition

ing in this case, could also determine that to adjist" for the numbers of noncitizens;

those Hispanic wards on the Southwest ir,r t".ro, was accepted in principle b-y the

Side with large admixtri", of non-citizens ;i;;.;;t;""t although apparentlv not fol-

Ir,lrrJ r,"t" tf,eir effeclive Hispanic majori- lowed in praetice'

IL.-""rt'r"*d on the u"tit or only those During the trial' witnesses for both sides

ira"i"iJr"r. *ho are etlgiute, as citizens' to t"titi"itl"t 65%' of total population is 
'a

vote.re 
'o-- ' 

;ia"iy 
"".ognized 

and. accepted criterion in

It, of course, remains ultimately within redisiricting formulations. Kimball Brace'

the discretion of the district court io deter- one of defendanls' expert witnesses' stat-

;il;;a ;" appropriate corrective should ed:

be based upon analvsi.-ri"i".tl* data, if One of the factors that is involved in any

such data can yield "^.."rirgrrl 
and per- sort of redistricting activity and in the

suasive resutr. Thir ;;;;;;;, if tf,..L it general knowledge of an experienced re-

enough reliable irfoi^itio, available to iirtri.t t is that there are some over-all

support it, may vi"ra ii,. best determina- criterias [sic] that ]rave been laid down in

tion of what is ,"qu,."J,o afford minoritl' the redislricting field and what is neces-

populations,,"u.on"bl"opportunitytosarytoinsureaminoritydistrict.Those
elect candidates of their choice. we note, weie outlined at the outset in the wil-

however, that judicial experience can pro- liamsburg case in the earll' 
'?19:*,:::

vide a reliable guide t" u"t'io, where empiri- erally it ta.lks about a 65 percent mrnorl-

cal data is ambiguous oi not dete.minalive iy population. That is derived from the

and that a guideline oi1Sll, of total popula- i"O p"t.""t total population' adding five

tion (or its equiva)entl'rr* ".rri"r"J 
g"n"rut percent.for each of the three,factors tltt

acceptance in ,"aist.rciing iu.i.prid.n.". are voting age population, because mt-

A guideline of 65% of total population norities ttna to have a lower voting age

has been adopted and maintain"d fo' y"utt population' lower registration patterns

by the Department of Justice and by reap- and a lower turnout pattern'

portionment experls ;; ;;a been speciii Tr. 3665. This same witness also testified

cally approved Uy t# irp*;. Court in ihat consideration of voter turn-out and

circumstance. "o*pur"ui"'to 
those before registration p"t-t"ll. is useful in the redis-

uSaSrepresentingtheproportionofminori-trictingprocessinordertoensurethat
ty population ,.".o"Lly required T un- minorities are represented' Tr' 3664-65'

sure minorities a fair opportunity to elect a one of plaintiffs,witnesses, then Congress.

candidate of their .i,oiJ.-. iti. rigr." i. rn"n ri"rora washington, testified that' al-

derived by augmenting a simple majority ltougi, a 657 majority does not alu'ays

with an additional 5% foryoung population, "r.oi" 
the election of a minority candidate'

5% for tow vorer ,;;;;;u'# sz ro. ir,".u i. an historical pattern, illustrated by

low voter turn-out, fo-r a total increment of ir,. o,t, Sth, gthrlGth and l?th wards' of

15%. This leads to ""';-i;.g;f 
figu-re ot the election of a minoritv candidate once

65% of.total populati*. 
- 

ouulor.ly- if vot- ir," *inotlty population approaches the

ing age population t[li"itt are used' 5% esli'-ior' range within a ward' Tr' 2204'20

lg.Weapprovetheprincipleadopteclbr.Judgc20.Anotherofplaintiffs'witnesses,Dr.Hauser,
McMillan that therc shoiJ U" u" appit,priarc testified that rhe 659'o suideline does not Efuaralr'

corrective for non-citrzcnship. \\'c lc:r\r l() th(- i". trlrt a parricular minoritv group rvill bc abl'

discretion of tn" ai#itt t;;;' ''' 
rcniand tirc t() cl('" a candidate of its choice in an1 parltctt

specific form and In'*Ii"'J(, C,l t]:' :r':tcctire' lr': i:l-:,rlrstance (Tr' 808)' and the district jucigt

L^ i



l4l6 7.10 l'Et)I.)RAL R*]PORTT]R. 2d SDRIDS

Numerous courts have either specifically
iggpfd or tacifly approved the use of tf,ts
65/, figure. It was referrea to approuingf
in.th.e recent Chicago state legislatir" ."ji.-
lli:Irr^a"",.ion, Rsbicki f sza r.Srpp. 

"tlllS n. 8?, and the congressional redisirict-
ing decision, In re lllinois Co"grir;;"rt
ltstlcts Reapportionment Cases, No. g1

9 -1395, 
stip op. ar 19 (N.D.Iff. Nou. dL98L), affd sub nom. McClory r. Otto, iiiu.s. 1130, 102 S.Ct. 985, ?l L.Ed.kd' ;;;

g,rtr) -\\: Gs% figure was adopred in
Stale of Mississippi t,. IJnited Stajes, 490
.r'.supp. 569 (D.D.C.t9Z9) (threetudge pan_
el), affd, 444 U.S. 1050, 100 S.Ct. 6ga, oi
L.Ed.2d ?Sg (1980), where the court stated
that

eonctuhe in this case that a substantiial
loryryF population majority_in th; ;;#:ty of 657*yyould be requirld t" a"t,i"u" ,,llyliT_t"tority of erigible ,o;.;.;, ';;
at 164, 9Z S.Ct. at 1009 Gmphasis i" .;J-nal). See also Gingtes 'r. giiir'tr"",
ljl r.sunn. B4s, 858_se and ,.-"-il(E.D.N.C.1984) (three-judge panell,-' #peal doeketed, 52 U.S.L.W. 

'8908 
(U.6

June 2,1984) (No. 88_1968); The Dik;;a
?{-t!, Vgtins Rishts Act, supri 

". ;,;1615 n. B; Alteraatiae Votiio S;ri:;'
supra n. 18, at 146 n. 18.

In light of these expert opinions, judicial
precedents and the policv and pru."ri."-Ji
the lJepartment of Justice in administering
th,e Voting Rights Act, we believe thalwhen reliable. determinative statistls-'ale
not available, in scrutinizing a redistrictinJ
plan for fairness to minorlty c-;;;, ;'h:d.istrict court should give carefuT .";".;";;:
:]on.to the-65?; figure or some variation ofrt. As we have indicated, of course, 

"rn""n_ing changes in sociological and 
"f".,".ilcharacteristics of minority g."rp;--;;

lrroad changes in politic"l'otiitrau. *^.]substantially alter, or eliminate, t,h; ;;;;for a ccrrrective. The 6bi/, figure,;;;;:
ular, should be reconsider"; .";rl";ly 

-;
re.flect new information and nu*it"tl.ii.r]
data.2l

discusscd belou., suggest that wc continue templo) an adequale corrcctivc (such as the fre_quenrlv cjted 65Zo).

21. For example, tve note rhat thc Rer,. JesseJackson's 1984 presidenrial candidat.r. hr;';;parenlh stimulared black registrari;; r;;;";;-out. natjonallr.. Morc spcciiic ro Cf.,i.us.,..*"
u.ndersrand thar rhc Novc,mbcr rss2 grbi;";.lrial elcction in Illinois and lhc f SAi Chi._",,
ma.vora I e.lecr ion i nd icarcd u .rrk"d l;.;;;;?;orack regrstralion and turn-oul. If thes. anJother elcctions should demonsrratc a significantand consislcnt change in voring b"hivlrr-inChicago applicable io 

"ta"r-u'nt;"'J#il::therc would have to bc a corresp<_rnding change
i n, rcd i sr ricr i ng pracr i ces 

""a 
f'"s;i'.i?"d;ri";

althorgh the resulrs of thesc cleciions _;;;bc adequate to jusrif-\. ," ,br;;;;;;;i ;;;::rrcauon ot previouslr.accepted guidclines ar thisjuncture_ Ir initiall-r1 rem.ins 
";i,r,i" ,ro Ji....,tion of the district judge, hou,cver, to delermir)ewnen such a cotlsistenl and relrablc pattcrn has..-.:rg."d and when adcquatc 
"nd iru.t*onh,

:,_rj,:lf 
* concerning m.i norirv voter regislrar i;;,ano.turn-oul arc ar.ailablc. At that lun-cturc th,application of an adequatc corrective ma. i!.consldered or reconsidered r

[i]t has been generally conceded that,
barring exceptional circumstance. .r.h
as two white candidates splitting the
vote, a district should contain a 

-black

population of at least 65 percent or a
black VAP of at least 60 percent to f"o-vide black voters with an opportunitj to
elect a candidate of their .tioi.u.

490 F.Supp. at 57i. The Supreme Court, in
Unite-d Jewish Organizotiorts of Williants-
!y:oh, Inc. t:. Qo,7sy, 430 U.S. r+e, Cz i Ci.
996, 51 L.Ed.2d 229 (1977), held'that iit
was reasonable for the Attorney General to

relied on this unccrtainty, to some extent, inrejecting the usc of the 65% fig"r". ffri, ,n."._tainr)- nra] be illusrrared Uy jrr. *.rli .i'l'lr"March 1982_primar-r. elecriorr for thc n";. Ill,nots Stale Scnatc Districl lE, uhich *u. 
-r"

drau,n. as a resuh of Rybic*i I i" ir.i"a"'l oJr"minorit-,- popularion. in rhut el".rion;];; ;;r-didates were unsucccssful in rheir ;ii;;;.'-;;,
unseat rhe u,hire incumbenr Scnator. i1,i".ii )i,574 F.Supp. ar lt49 n. 4. Tlri. 

"".rn;l"-iiir;:trates that applicarion of rhe 65% iic";; ;;.nol necessarily have the effecr cithei of 
"rt,"matically d i senfranchisi ng rh" ."mainir, -*ii

of the population or of removing from tr,? ii.z,or rne. population thc appropriale incentives toorgantze, registcr and turn,out to vofe. It is stilleas!'to lose even rvith a potential O5% of thlv.orc., The 65Vo guidcline ii inrended ,o uja."..rne,electoral lacts as the_r appcar to exist nou.ano,lo compensate primarily for cerl.ain elector-al cnaracteristics rvhich cannot be chanqed orera shorr period of rime. e, rn*" .f,"...1.ii"1.,
l.:,:lf*" or har.e changcd, h"*."";-j;ji;,;i
truloclrnes mar. have to bc modificd accoidingly.lkc also in/ra n.2l and accompanying text. Inthr i.nrcrim,. rhough, rhc combinario."J;;".;
oprrrion and judicial precedenr, *hi;h-*iilb.

In rem
tion of t
principles
that at le
possibly r

order to I

court-app
15th War
?th Warc
37th War
line, for e

a limitatir
tricting l

66% and
tive woul
wards as
rather tha
a 50% m,
determine
panic com
satisfy th
requiring
court inel
31st,32nd
sibly somr
Wards.23

t6l 3.

cord with r

retrogress
wards as c

we conside
a minority
restored t/

22. The sta
and 37th \
pra n. 14 L

ages of bla
follows:

1970 Map

62.6 (63.r)

Def. Exs.
evidenlly <

compositio
Council mr
580,6 of vc
met its cr
Here, hou,
prescribed
ration of
population
tual!1 ;,. hi,
pari icu l;r;
\{'ar.l, th^'
sPl' ,

;).:
aci ,. :;



In remanding this case for retonsidera-
tion of the appropriate remedy under the
principles enunciated here, we recognize
that at least two black majority wards, and
possibly a third, will need to be redrawn in
order to eliminate the retrogression of the
court-approved map. These wards are the
15th Ward, the 37th Ward and possibly the
7th Ward.22 In the case of the 15th and
37th Wards, the adoption of a 65% guide-
line, for example, might be fairly viewed as
a limitation on restoration of the pre-redis-
tricting black majorities (approximately
66% and ?6%, respectively). This perspee-
tive would view a super-majority in these
wards as a fair antidote to retrogression
rather than as an "artificial" supplement to
a 50% majority. It is more difficult to
determine precisely which wards in the His-
panic community will need adjustments to
satisfy the appropriate criteria, but those
requiring further scrutiny by the district
court include the 25th, 22nd, 26th, 30th,
31st, 32nd, 33rd, and 35th Wards with pos-
sibly some attention to the lst and 12th
Wards.23

t61 3. City-wide Retrogression: ln ac-
cord with our earlier discussion of city-wide
retrogression in the number of minority
wards as constituting a section 2 violation,
we consider that the number of wards with
a minority population majority should be
restored to the number which existed in

22. The statistics relating to blacks for the 15th
and 37th Wards rvere previousl-v presented. Sa-
pra n. 14 and accompanying text. The percent-
ages of black population for thc 7th Ward are as
follou,s:

Cily Council
1970 Map Map

62.6 (63.t) s8.4 (.58.0)

Courl-approvcd
Map

58.4 (58.0)

Def. Exs. 1I, 7I and 261I. The disrrict courr
evidentll'did not require any alteration in the
composition of the 7th Ward under the City
Council map apparently because the 58.4olo (or
58o/o of voling age population) black majoriry
met its criterion for a black majority ward.
Here, however, u,e think tentatively that the
prescribed adjustment may be ke-ved to a resto-
ration of lhe 62.60/o or 63.7oti of voting age
population which rvas the black population ac-
tually achieved under the 1970 m;rp. Under the
particular circumstances ar.r,li,:,Lit' to the 7th
Ward, there appears t<i bc ir.. ,r,.,rifrcaricrn for
specific consideration of a g,,:,. r,t 6.51i(, of lolal
population (since this fip: . .-.tl not been
achieved under thc 197t, r. - i,i\'cvr,:. u,e

,

KETCHUM v. BYRNE
Clte u 7r{) F.2d l39E (19E4)

1417

1980 under the 19?b ward map. This
means ninet€en black majority wards and
probably four majority Hispanic wards.
There is some authority that, in terms of
general prineiples, this is not necessarily
the maximum permissible remedy but in-
stead may be nearer the minimum. See
City of Port Arthur, Teras a. united
States, 517 F.Supp. 987, 1012 n. 149 (D.D.
C.198i) (three-judge panel) ("it is reason-
able to fix the minimum level of represen-
tation under the new plan at the level
achieved by the same voters under the for-
mer plan") (emphasis added). We believe,
however, that the remedy we have dis-
cussed is adequate here. In any event, the
precise remedy must necessarily be a mat-
ter for the discretion of the district court.
Of course, certain aspects, such as the pre-
cise configuration of particular wards, are
more discretionary than others.

171 The situation of the Hispanic popu-
lation is considerably more complex than
that of the blaek population. The Hispanic
population is generally not nearly as con-
centrated in segregated areas as is the
black population, although there are cohe-
sive Hispanic communities such as Pilsen
and Little Village which, if left intact,
would form significantly high concentra-
tions of Hispanic voters. Hispanics have
oecupied a much less visible role in the
political process in Chicago than have

leave the ultimatc details of this adjustment to
the discretion of the district court.

23. The slatistics for the Hispanic popularion of
the latter five of these wards u,ere previouslv
presented. Supra n. 14 and accompanying text.
Those for the olher wards are as follows:

."tllL,, 
"rto",l,',i,Ward 1970 Map Map Map

25 sl.r (44.9) 52.6 (46.2) 6s 4 (s9.5)
l 3s.6 (31.s) 30.7 (27.t) 20.6 08.t)

22 62.6 (s6.r) 64.e (s9.9) 75.6 (69.0)
t2 lr.1 (9.3) 32.0 (2s.8) 19.3 (1s.7)

Def. Exs. ll, 7I and 261I. If, as under one
arguable approach, see note 22 supra, correc-
tion of retrogression were keyed, or limited, to
percentages actually achieved under the 1970
map, there might be some question what more
can be done for the Hispanic wards on a retro-
gression basis. We believe, however, that the
Hispanic wards may be viewed in other than a
retrogression context, as will be discussed be-
low,



{.; --.._..-.

l418

' ra

740 FEDERAL REPqRTER,.2d sERrEs

blaeks and, until the 1gg0 census, -littleattempt was made even to count Hispinies
as a distinct ethnic minority.zr Therefore,
in order to remedy effectively disc"imina-
tion against Hispanics, it seems ,"."rr"ry
to go beyond the strict calculus of thl
retrogression rule by attempting to provide
four Hispanic majority wa"ds [two'on the
Southwest Side and two on the Northwest
Side) which would have a concentration of
Hispanics greater than that of any individ_
ual wards in lg80 under the l9T0 map. See
supra n.2. Sinee the l9?0 map apparently
fractured the Hispanic 

"ornronity'limitinithe remedy for Hispanics to their situatioi
under the 1920 map might merely perpetu_
ate the vote dilution of the pu.i. 

- 
Tir"r"_

fore, instead of merely applying the nonre-
trogression rule to the Hispanic population,
the district court should examine whether
four wards can be ereated, each with a
sufffuiently large majority of Hispanics to
provide the Hispanics with a reasonable
opportunity to.elect candidates of their
choice. Of course, neither Hispanics nor
blacks have a statutory or constitutional
right to proportional representation.

The appellants also allege that there are
additional errors in the court-approved map
and ask that we order these e"rors be
r.emedied on remand. First, appellants
p:in! jo -their allegations of fracturing of
the black and Hispanic communities 

"and

ask that "some or all of the wards that
touch the black-white border,, be redrawn
as well as many of the Hispanic wards.
Appellants' brief at ?$-80. Second, as pre_
viously discussed, appellants ask that retro-
gtession within individual wards be reme_
died, including the restoration, for example,
of the 49.37%, plurality in the lgth Ward, as
well as the full restoration of the pre_redis-
tricting majorities in the B?th, 15th and ?th
Wards.

!a. Stip. 48. This failure of the 1970 census lo
:consider tb Hispanics as a discrete .tt"i. -i-
, nority would also cast some doubr on the legiti-
macy-of using the 1970 ward map as an indi"a-
tor of the voting strengrh to whic'h tf,. giioo"i.
communiry is enritled in the l9g0,s. Sei atso
supra n, l.
J. Of course, in this very case, where the facts
make lt appropriate, we are proposing a remedl

t8l Wef however, believe that this at-tempt to rectify retrogression ,,within
wards," in the particular eircumstanees of
this case, is unjustified. We believe tteie
is no vested right of a minority g"oup to i
majority of a particular magnitude ,rr"t"i-
ed to the provision of a reasonable opportu_
nity to elect a representative under wei_
recognized principles. In addition, provi_
sion of majorities exceeding 6b%-70,/, mav
result in packing. The mandate of section
2 of the Voting Rights Act is that .inori_
ties must be given a reasonable and fair
chance to elect candidates of their choice.
As previously stated, expert opinion anJjudicial precedent indicate tnai tne eSi,
guideline (or a statistically supportable al-
ternative corrective) is adequate to ensure
this reasonable opportunity. The use of
this objective guideline to fulfill the pur_
poses of the Act also removes the federal
courts, to the extent compatible with main-
tenance of constitutional and statutory
rights, from detailed and subjective scruti_
ny of what is essentially a local political
process. While the ,,fracturing,, of a cohe-
sive community may be undesirable and,
under some circumstances, unlawful, we
are not authorized to correct it here unless
the reasonable opportunity of a minority to
elect representatives of it^s choice is directly
at stake. A similar limitation applies tL
our power to mandate that the size of a
minority group within a particular ward
never be decreased. These approaches
should be followed in order to achieve the
goals of the Act; broad and inflexible stric-
tures against "fracturing,' or reduction of
majorities within individual *,ards, which
have no direct electoral effect, might im_
pose an impossible burden on the drafters
of a redistricting plan in what is, in any
event, a difficult task.2s .

for the Hispanic plaintiffs which centers on the
elimination of "fracturing.,, ,,packing,, *ur; un
importanr consideration in the plan modifica-
rion soughr in Rybicki ,{ -57a F.'Supp. at ll4g,
115+56. In addition, rerrogression rvilhin a
voting district might well under ntenv circum.
stanC(.s r(quilr a rcmedr. All ll[ -. :r)tI,.;.: \\C
bclicvr sli,.,rrjil bc vjeu,cd uitlri:t lltr t,,raliir of
lh(' cir( LI',-1..,..r.:

. In summa
/district 

cour
suitable rem
teria. First,
ber of wards
able opportt
their choice
lishing an e

least nineter
should deterr
it is possible
effective ma
the district <

the factors r

definition of
black and Hir
tional eviden<
cluding other
quired, which
evaluate for
Depending or
tion of these ,

corective bas
or some othe
the widely a,
use of a corrl
for reasons u
the electoral 1

effictiae maj<
these factors
of voting rig
Where voting
available and
be reliable the
of total populi

For the for,
of the districi
reversed in pa
trict court for
dy in a manne]
Circuit Rule 1{



:
s

l4l9
a

UNITED. STATES v. HATaAWAY
r ClteuTl{)F2d l4t9 (t9Ea)'

In summarizing tle guidelines whictr the

district court should apply in fashioning a

suitable remedy, we note the following cri-
teria. First, the retrogrcssion in the num-

ber of wards in which blacks have a reason-

able opportunity to elect a candidate of
their choice should be eliminated by estab'
lishing an effective black majority in at
least nineteen wards. The district court
should determine, in its discretion, whether
it is possible to create four wards with an

effective majority of Hispanics. Second,

the district court must seriously consider

the factors underlying the formation and

definition of an effective majority in the
black and Hispanic wards. To do so, addi-

tional evidence-primarily statistical but in-

cluding other types of data-may be re-
quired, which the district court must then
evaluate for reliability and significance.
Depending on the district eourt's evalua-

tion of these data, it may decide to adopt a
corrective based directly on these statistics
or some other uniform corrective such as

the widely accepted 65% guideline. The

use of a corrective should not be rejected
for reasons which fail to take account of
the electoral facts and the need to provide

effecti.ue majorities. Failure to eonsider

these factors fully is to leave the violation
of voting rights essentially unremedied.
Where voting age population statistics are

available and found by the district court to
be reliable these may also be used in place

of total population statistics.

For the foregoing reasons, the decision

of the district court is affirmed in part,

reversed in part, and remanded to the dis-

triet court for reconsideration of the reme-

dy in a manner consistent with this opinion.

Circuit Rule 18 shall apply.

UNITED STATES of A.".i"u,
Plainttff-Appellee,
'v.

Allan Ray HATTAWAY, Thomas Stimac,
Robert George Burroughs, and MartY

Curran, Defendants-APPellants.

Nos. 83-1580, 83-1779, 83-f780
and 83-1940.

United States Court of Appeals,
Seventh Circuit.

Argued April 6, 1984.

Decided July 31, 1984.

Certiorari Denied Nov. 13, 1984.

See 105 S.Ct. 448.

In prosecution of six defendants on

charges of conspiracy, kidnapping, viola-

tion of the Mann Act, and unlawful use of
firearms, five defendants were convieted

before the United States District Court for
the Northern District of Illinois, Marvin E.

Aspen, J., of various charges, and four of
them appealed their convictions. The

Court of Appeals, Bauer, Circuit Judge,
held that (1) court did not abuse its discre-

tion in allowing Government to introduce
evidence regarding death of victim's boy-

friend; (2) court did not err in allowing
evidence of motorcycle gang's lifestyle; (3)

with regard to one defendant, evidence was

sufficient to show that he joined a conspira-

ey to kidnap or a conspiracy to violate
Mann Act; and (4) with regard to another
defendant, record supported verdict that he

knowingly joined conspiracy to transport
victim for prostitution and debauchery.

Affirmed. 
.

l. Indictment and Information @124(4\

A eonspiracy charge ordinarily is suffi-
cient to satisfy joinder requirements of rule
providing that government may charge two
or more defendants in same indictment if
indictment alleges that defendants partici-

--.,