Legal Defense Fund to Honor Mississippi Rights Lawyers

    5?4 I'EDERAL SUPPLEMENTt0E2

Since both sides were using suraaJned,

one world expect that the rule would be

that plaintiff would need to *dstablish a

secondary meaning at a time before the

defendant established such a meaning; but

the opinion clearly does not say that'

This eourt is inevitably bound by the law

laid down by the Court of Appeals in this

circuit, and by the Supreme Court of the

United States, no matter what its own

views and analysis of the law may be' In
this case, since the plaintiff has never mar-

keted wire or cable of any kind under the

name "Lapp" (and this puts to the side the

short lengths of insulated eonduetors of

entrance bushings), there obviously cannot

be any evidence of secondary meaning in

the market for wires and cables, no matter

how rational it may seem to sophisticated

customers that the manufacturer of Lapp

ceramic insulators and pole hardware and

electrical capacitors should expand into

wire and cable. Since defendant has rued

the name "Lapp" for wire and cable, the

rule of law laid down in the Scolf Paper

case precludes the award of any injunctive

relief.

Despite the court's view that, aside from

the rule of Scott Paper, the circumstances

would call for some form of declaratory

relief, a limited injunetion, and perhaps a

reservation of jurisdiction to be invoked for
further relief at the foot of the decree as

the future unfolds, it is of the view that the

rule of law just referred to bars that result'

Submit order dismissing the complaint,

without allowance of costs.

Chester J. RYBICKI, et al., Plaintiffs,

Y.

ThE STATE BOARD OF EilECTIONS

OF the STATE OF ILLINOIS' et

al., Defendants.

Mig:uel DeIVALLE, et al., Plaintiffs,

v.

The STATE BOARD OF ELECTIONS
OF the STATE OF ILLINOIS' et

al., Defendants.

Bruce CROSBY, et al., Plaintiffs,

v,

The STATE BOARD OF ELECTIONS
OF the STATE OF ILLINOIS' et

al" Defendants.

Nos. 8l C 6030, 8f C 6052 and 81

c 6093.

United States District Court,
N.D. Illinois, E.D.

Jan. 12, 1982'

In consolidated reapportionment cases,

three groups of plaintiffs challenged validi-

ty of Illinois' 1981 state legislative redis-

tricting plan. The District Court, Cudahy,

Circuit Judge, held that: (i) Illinois Legis-

lative Redistricting Commission's plan for
redistricting the Illinois General Assembly

v/as not invalid because Commission mem-

bers considered, within limils, partisan ad-

vantage when drawing district lines; (21

plan unconstitutionally diluted black v-otin g

strength in eerbain districts on the Chica-

go's south and west sides; and (3) Hispanic

settlement agreement entered into by Illi-
nois Legislative Redistricting Commission

and plaintiffs who challenged state legisla-

tive histricting plan on behalf of Hispanic

voters would be accepbd and approved and

incorporated into the plan and map for the

State of Illinois'

Order in accordance with oPinion'

Bua, J., filed eoncurring oPinion'

shir
psn

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mis
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--'
RYBICKI y. STATIE BD. OF ELECTIONS OF SfAm Of ILL'

Ctr. .. 57, F"guPP' tlf,2 (l!lt2)
1083

Grady, J., filed separate ' opinion in T.'States €=27(3)

which he concuned in paf and dissented in Plaintiffs were required to show a dis-

psrt.rcriminatorypurposeinoldertosustaina
opinion supplemented, 574 F.Supp. claim that the state legislative redistricting

lra? and 5?a F.supp. 1161. plan unconstitutionally diluted black voting

strength; plaintiffs were first to be re-

quired to establish a prima facie case of
1. States F27(3) _ purposeful vote dilution and thereafter bur-

Illinois Legislative Redistricting Com- den- would then shift to defendants to es-

mission's plan for redistricting the Illinois tablish that the redistricting in question

General Assembly did not violate constitu- would have occurred even absent the pur-

tional compactness standard. Ill.S.H.A. pose to dilute minority voting strength.

Const. Art. 4, 5 3(a). U.S.C.A. Const.Amend. 14.

2. States e27(3) 
^ 8. States @ZIG)

Illinois Legislative Redistricting Com-

mission's plan for redistrieting Illinois Gen- Illinois Legislative Redistricting com-

eralAssemblywouldnotbeinvalidatedmission,splanforredistrictingthelllinois
merely because it fractured a number of General Assembly unconstitutionally dilut-

politicalsubdivisionlinesorcreateddis.edblackvotingstrengthincertaindistricts
tricts which overlapped between Chicago on the Chicago's south and west sides'

and its surrounding suburbs. U'S'C'A' Const'Arnend' 14'

3. Constitutional Law c=225.3(8) 9. States @27(3)

Illinois tegislative Redistricting Com- Hispanic settlement agreement entered

mission,s overlapping of Chicago and sub. into by Illinois I,egislative Redistricting

urban districts did not impermissibly dilute Commission and plaintiffs who challenged

vobes of suburban residents in violation of shte legislative districting plan on behalf

equal protection clause of Fourteenth of Hispanic voters was fair' adequate and

Amendment. U.S'C'A' Const'Amend' 14' reasonable to Hispanic voters' and other

4. Elections @12 minorities whose voting power was alleged-

partisan poriticauy based ch auen ge s to yJYl"JLl"l*:ff":T, ff 3#'1fi ;:f"::
redistricting and reapportionment may be al constitutional standards and therefore
nonjusticiable' would be accepted and approved and incor-

5. states @27$) porated into the plan and map for the state

Illinois lregislative Redistricting Com- of Illinois'

mission's plan for redistricting the Illinois

General Assembly was not invalid because l0' States @27G)

commission members considered, within Adjustments would be made to Illinois

limits, partisan advantage when drawing Legislative Redistrieting commission's plan

district lines. - for redistricting the Illinois General Assem-

6. states e2?(s) . llil:":'ffi?,,1[1""h""11il::,:}",fil.
Plaintiffs' claims, on behalf of black out upsetting the broader contours of the

voters, that Illinois Legislative Redistrjc-t- plan which 
"pasred 

court's close scrutiny.
ing Commission's plan for redistricting Illi- 

U.S.C.A. Const.Amend. 14.
nois General Assembly unconstitutionally '
diluted black voting strength were not eog-

nizable under Fifteenth Amendment and

voting Rights Act. u.s.c.A. const. Kenneth J. Jurek, Douglas A' Poe, Roger

Amend.15;VotingRightsActoflg65,W.Barrett,Mayer,Brown&Platt,Chica.
52.asamended,42U.S'C.A.s19?S.go,IlI.,Jerrisl,eonard,Jerrisl.eonardand

.,&



1084

Assoc., Ifashingtop, D.C., for plaintiffs in
No.81 C 6030. n'

Virginia Martinez, Raymond G. Romero,
Mexican Americsn Legal Defense and Edu-
cational Fund, Chicago, Ill., Lizette A. Can-
tres, for plaintiffs in No. 81 C 6052.

Carol Moseley Braun, Thomas P. Sulli-
van, John A. Rupp, Jenner & Block, Rich-
ard H. Newhouse, Jr., Chicago, Ill., for
plaintiffs in No. 8l C 6093.

Jeffrey D. Colman, Jenner & Block, Chi-
cago, Ill., for plaintiffs in Nos. 81 C 6030,
8r c 6093.

Chicago Urban League, Frank L. Bixby
and Joan Perry Protess, Sybille C.
Fritzsche, Chicago, Ill., amicus curiae in
No. 81 C 6030.

Lawrence T. Krulewich, Cook County
Asst. State's Atty., Chicago, IIl., for inter-
venor-defendant Kusper.

Arthur C. Thorpe, Klein, Thorpe & Jen-
kins, Ltd., Chicago, Ill., for Village of Oak
Park.

William J. Harte, Ltd., Jeffrey B. Whitt,
Joseph N. Casciato, William J. Harte, Chi-
cago, IIl., for John L. Lanigan, Michael J.
Hamblet, The Legislative Redistricting
Com'n, James Philip, Michael McCIain, Ar-
thur Telcser, Martin Murphy, James Don-
newald, James Skelton and Robert Casey.

Tlrone C. Fahner, Atty. Gen. of Illinois,
Paul P. Biebel, Jr., Asst. Atty. Gen., Chica-
go, Ill., for Michael J. Hamblet, James Phil-
ip, Michael McClain, Arthur Telcser and
Martin Murphy.

John R. Keith, Springfield, I11., for John
L. Lanigan, Michael J. Hamblet, Teresa M.
Petrone, The Legislative Redistricting
Com'n, James Donnewald, James Philip,
Arthur Telcser, Martin Murphy, Michael
McCIain, James Skelton, Robert Casey and
Samuel Shapiro.

John L. Swartz, Springfield, IIl., for The
Legislative Redistricting Com'n, James
Donnewald, Michael McClain, Martin Mur-
phy, James Philip, Arthur Telcser, James
Skelton, Robert Casey and Samuel Shapiro.

l. All three cases were originally filed as class
actions. The class action allegations u,ere u,ith-

67{ FEDERAL. ST'PPLEMEIYT

MEMORANDUM OPINION
Before CUDAHY, Circuit' Judge, and

GRADY and BUA, District Judges.

RYBICKI I

CUDAHY, Circuit Judge.

In these consolidated reapportionment
cases, three gtoups of plaintiffs challenge
the validity, under the federal and Illinois
constitutions and related law, of Illinois,
1981 state legislative redistricting plan (the
"Commission Plan"). For the reasons set
forth in this opinion, we reject the Rybicki
plaintiffs' allegations, on behalf of Republi-
can and suburban interests, of noncompact-
ness, partisan unfairness and impermissible
fracturing of counties (and other political
subdivisions) and suburban communities.
We accept, in part, the Crosby plaintiffs,
claim, on behalf of black voters, that the
Commission Plan unconstitutionally dilutes
black voting strength. As a remedy for
this unconstitutional dilution of the black
vote, we adopt certain modifications to the
Commission Plan, identified as Court Ex-
hibits 1A, 2A,7D and ?E (and related do'cu-
ments). We also approve as fair, adequate
and reasonable a Settlement Agreement
reached between the DelValle plaintiffs, on
behalf of Hispanic voters, and the Commis-
sion defendants, and therefore approve cer-
tain further modifications to the C,ommis-
sion Plan, as stipulated in the Settlement
Agreement.

Background

Three groups of plaintiffs in these con-
solidated cases challenge the redistrieting
plan adopted by the Illinois Legislative Re
districting Commission (the "Commission")
for the election of candidates to the Illinois
General Assembly.r Plaintiffs in Rybicki
a. State Board of Elections,.No. 81 C 6030,
allege that the Commission Plan fails to
accord suburban voters equal protection of
the laws by disproportionately concentrat-
ing voting power, and therefore legislative

drawn prior to trial. &e Minurc Order (Na
vember 23, l98l).

-.*-4-r-



+

:. {n

RYBICKI V. STATb NiT OT ELECNIONS OF STATE OF
Cttc re 37't FSuPP.'llB2 (l9tl)

rLL. 1085

fails to adopt

lment
llenge
llinois
linois'
n (the
u set
rbicki
publi-
rpact-
ssible
litical
dties.
ttiffs'
t the
ilutes
y for
black
o the
t F*-
docu-

Iuate
rment
h, on
trmis-
I Cer-

nmis-
ment

,con-
lbng
e Re-

lon")
linois
Dicki
Eo3o,

bto
on of
ftrat-
Itive

(No-

representation, in ."the City of Chicago.

They also allege that the plan is politically

unfair, Jontains numerous non-compact dis-

tricts and indiscriminately fractures politi-

cal subdivisions. Plaintiffs in Crosby a.

State Board of Electioru' No. 81 C 6093,

allege that the Commission Plan intention-

ally discriminates against black voters by

diluting their voting strength and providing

white voters a disproportionate opportunity

to elect candidates of their choice. Plain-

tiffs in DelValle tt. State Board of Elec'

tiozs, No. 81 C 6052, allege that the Com-

mission's redistricting effort similarly di-

lutes the voting power of Hispanics, there-

by depriving them of a reasonable opportu-

nity to elect representatives of their choice.

All three complaints charge that the Plan

violates the Fourteenth and Fifteenth
Amendments to the United States Constitu-

tion, 42 U.S.C. S 19?3 (19?6), 42 U.S'C'

S 1983 (19?6), and Ariicle I, 5 2 and Article
IV, S 3 of the 19?0 Illinois Constitution.2

Jurisdiction in each case is alleged under 28

U.S.C. S 1343 (19?6) and the principles of
pendent jurisdiction.

Defendants in all three cases are James

Edgar, the Secretary of State of Illinois,
who is charged under Article IV, S 3 of the

19?0 Illinois Constitution, with publication

of the legislative redistricting map; the

Illinois State Board of Elections and its
members who, pursuant to Ill.Rev.Stats.

ch. 46, S 1A-8 (19?9), are primarily respon-

sible for the administration and supervision

of elections in Illinois; and the Illinois Leg-

islative Redistricting Commission (and its

Democratic members individually), which is

charged pursuant to Article IV, 5 3 of the

1970 Illinois Constitution with the task of
promulgating a redistricting plan in the

2. Article I, 5 2 of the 1970 Illinois Constitution
provides that "[n]o person shall be deprived of
iif., lib.tty or propeny without due process of
law nor be denied equal protection of the lau's'"
Article IV, $ 3 provides in relevanl part thal
"legislative Districts shall be compact, contigu-
ous and substantially equal in population'"

3. Defendanls Board of Elections and the Secre-

tary of State did not adduce evidence at trial in
"difense" of the Commission Plan. That task
was undertaken by the five Democratic mem-

event that the legislature
such a plan.3 :

On November 2, 1981, a three-judg9
court was convened pursuant to 28 U.S.C.

5 228a@'l (f9?6) to hear these cases and, on

November 23, all three cases vrere consoli- '
dated for expedited consideration. Trial
was concluded on December ?, 1981, after
the eourt had heard testimony from 25

witnesses and received into evidence more

than 200 exhibits.

I. Facts

A. Procedural Background ofthe 1981

Legislature Redistricting in Illi'
nois

Article IV, 5 3 of the 19?0 Illinois Consti-

tution requires a redistricting of the Illinois
General Assembly in the year following
each federal decennial census. The Illinois
Constitution provides the legislature with
the first opportunity to adopt a plan that
redistricts all legislative seats in the Illinois
House and Senate in a manner such that an

equal share of the population, under the

most recent census, resides in each dis-

trict.{ If the legislature does not adopt a
plan by June 30 of the first year following
the census, an eight-member Legislative
Redistricting Commission must be formed.

The Speaker and Minority l,eader of the
Illinois House and the President and Minor-

ity Leader of the Illinois Senate each ap
point two members to the Commission.

The Commission may not include more than

four members from one political party nor

more than four members who hold seats in

the General Assembly. The eonstitution

further requires that the Commission com-

plete a plan by August 10 of the year it is
convened. If the Commission fails to agree

bers of the Commission. No appearance was

filed on behalf of the four Republican members

of the Conimissioh.

4. Throughout this opinion, the terms "legislative

district" or "legislative seal" are used in their
generic sense to refer generally to Senate or
House districts. Whenever there is a need to
differentiate, specific districts are denominated
"Senate" or "House'' districts, as appropriate'

---,.dtEra-.



lr.

1086

on a plan, the Illinots Supremg C,ourt pro
vides the Secretary of Stat€ wlth the names
of two persons from different political par-
ties, one of whom is chosen by lot to be-

come the ninth member of the Commission.
The Commission then has until October 5 to
file a redistricting plan approved by a ma-
jority of its members.

In view of the importance of legislative
history to proof of a claim of intentional
discrimination,s we set forth in some detail
the background evidence of the redistrict-
ing efforts of both the legislature and the
Commission.6 During the first few months
of 1981, the results of the federal census
were delivered to ranking Illinois legisla-
tive and exeeutive officials.T Figures in
hand, the leaders of both parties immedi-
ately engaged the services of consultants
to aid in both the development and political
analysis of the possible redistricting plans.

The political data utilized by both parties
included voting results and patterns at the
census tract level for a variety of legisla-
tive and statewide races run from 1978

through 1980.

In the course of their preparations, the
Democratic staff, under the direction of
House Minority Leader Michael Madigan,
solicited the views of all Democratic legis-
lators. A number of black legislators told
Madigan that blacks were underrepresent-
ed both in the legislature as a whole and in
the party caucuses. A House Select Com-

mittee on Reapportionment also conducted
public hearings to solicit the views of citi-
zens in general. The Committee was ad-

vised at these hearings in Chicago of the
desire of the black community for greater
representation in the legislature.

5. See llillage ol Arlington Heights v. Metropoli-
tan Housing Development Corp., 429 U.S. 252,
268, 97 S.Cr. 555, 565, 50 L.Ed.2d 45O (1977).

6. Our discussion of this background evidence is
also necessary to convey the intensely political
nature of the redisrricting process in Illinois.

7. The various parties to the suil stipulated to the
accuracv of the census dara (although there was
considerable testimony in the record about the
"undercounting" of blacks and Hispanics).

6?4 FEDERAL SUPPLqMENT

By May, 1981, Republican legislators had
created a plan which they intrqduced in the
Illinois House. The Democra'ts had also
succeeded in developing a plan which they
submitted to the state Senate.t A major
impediment to passage of both plans, how-
ever, was Madigan's fear that Governor
Thompson, a Republican, would exercise
his amendatory veto with respect to any
plan presented to him. Consequently, nei-
ther plan passed and, in July, the Legisla-
tive Redistricting Commission was formed.e

Before making his appointments, Madi-
gan circulated among House Demoerats a
form requesting that they submit their rec-
ommendations for potential C,ommission ap
pointees. Madigan stated that he had com-

mitted himself to the appointment of one
member from a racial or ethnie minority.
Although most of the black legislators rec-

ommended the appointment of Rep. Emil
Jones, currently an Assistant Minority
l,eader, Madigan followed the advice of
other black legislators, two of whom are
plaintiffs in this case, and appointed a for-
mer State Representative and black com-

munity leader, Corneal A. Davis. Apart
from Davis, there was no black or Hispanic
representation on the Commission or on ils
staff.

The Democratic and Republican Commis-
sion members and their staffs worked sepa-

rately and developed their own proposals.

On the Democratic side, Madigan r0 and

Martin Murphy (who is the Commissioner
of Planning for the City of Chicago),
worked on the Chicago and Cook C,ounty
portions of their redistricting plan. Rep.

Michael McClain, a Madigan appointee,

E. House Bill 1903 and Senale Bill 278, which
contain these respective plans, appear in Def.
Exs. 52-54.

9. The Republican members appointed to the
Commission were Sen. .hmes Phillip, Rep. Ar-
thur Telcser, James M. Skelton and Robert Ca-
sey. Their Democratic counterparts were Sen.

James H. Donnewald, Rep. Michael F. McClain,
Corneal A. Davis and Martin Murphy.

10. Although he was r,ot a member of the Com-
mission, Madigan took the leading role in devel-
opment of the Democratic Plan.

-" 5Lg



)f1,-

BYBICKIv.STATE.BD..oFEI.ECTIo.!!.oFSTATEoFILL.1087
' CliGr''5:"F.tuPP'r(f,2 (tlt2)

bd
lte
aso

by
tior
Ir-

drew the mAp for the socalled "collar coun-

ties" (which are thosE counties adjacent to

Cgok), while Senator James Donnewald

busied htmself with the downstate region'

Commissioner Davis drew no district lines'

The Democratic Map It for Chicago and

C,ook County, which is the prototype for
t}e map of those areas ultimately adopted

by the Commission, was drawn according

to a systematic procedure. The drafters

began with the districts as they appeared

in the 19?1 redistricting map.r2 They in-

tended to enlarge those districts that had

lost population and shrink those that had

gained. Throughout the process, Madigan

solicited the views of all legislators, includ-

ing black legislators, eoncerning various

aspects of the map' The map was complet-

ed in rough form bY the end of June'

Although Madigan testified that he made

no attempt to hide the Cook County map

from various black legislators and commu-

nity leaders and Hispanics, only Commis-

sioner Davis had the opportunity to study

the entire Chicago and Cook County por-

tions of the map at this stage or at any

time prior to its adoption as the Commis-

sion Plan on October 2, 1981.13

Notwithstanding the fact that the Deme

crats had completed drafting the major por-

tions of their map, the Commission held

public hearings in Chicago on July 23, 1981,

L obtain public suggestions for redistrict-

ll. "Map" or "Plan" are used interchangeably to

refer to a redistricting plan with its accompany'

ing maps of legislative districts'

12. The l97l plan was adopted pursuant to a

partisan compromise within the I-egislative Re-

iistricting Commission. Cecil Partee, former
President of the Illinois S€nate, testified in de-

tail about the drafting prooess in l97l' See Tr'

at l23Hl. Because it was the product of a

compromise, certain features of the l97l map

weri assertedly understood by the Democratic

drafters to represent a politically fair solution to

Dartisan differences. The compromise r'r'as

iherefore accorded, at least by the Democrats' a

great deal of precedential value' The outstand'
ins feature of the compromise was that a num-

fe? of the districts located in predominantly

Democratic Chicago overlapped into largely Re-

publican, suburban Cook County' Although the

p.ocedures used for selecting the Commission

memb"rs *'ho drerv the 1971 plan were later

ing. A numhr of witnesses, including rep
reeentatives of the blaCk and Hispanic com-

munities, presented &reir views on redis-

tricting 8t these hearings. Several black ,
witnesses testified that in the past blacks

had fared poorly in the redistricting proc'

ess; that percentagewise the black popula-

tion had increased in relation to the white

population in Chicago between 1970 and

igbO; ana that any redistricting should ac-

cord blacks greater representation' The

Hispanics pointed out that they had no

representation in the General Assembly

and urgently requested an opportunity to

secure such representation. See Plaintiffs'
Ex. 52.t1

Among the other witnesses who testified

at the hearings were representatives of the

villages of Oak Park and Evanston, as well

.r tl," Chi"rgo neighborhood of Hyde Park'

These communities, which had been frac-

tured by prior redistricting, all requested

that each be included in only one district'
Although the protestations of black wit-

nesses produced no changes in the draft
plan, the drafters did revise the plan to
aecommodate the desires of these three

geographical communities

Unfortunately, the work of the eight-

member Commission was doomed to failure
from the start since neither side was will-

ing seriously to negotiate with the other

over various aspects of their respective

ruled invalid, both the Illinois Supreme Court

and a three-judge panel of this court upheld that

plan againsi r"tio.rt federal and state constitu-

iional ihailenges. See Givetti v' Illinois State

Electoral Bd., 335 F.Supp' 779 (N'D'Ill'1971)'
aff'd, ao6 U.S. 913, 92 S.Ct. t772,32 L'Ed'2d l13

Obzz); people et rel. *ott v' Griveni,s0 III'2d
iso, nt N-.E.2d 881 (r97r), cert. denien' lJ
u.s. 921, 92 S.Ct. 2460, 32 L.EA.2d 806 (1972)'

13. *e Def. Ex. 107'

14, At the time of the hearings in Chicago, Madi-

san and lvtrrphy held private meetings with
I,layor Jane B5rrne of Chicago, Senate President

Phiiip nock, and George Dunne, Chairman. ol

the iook County Regular Democratic Organiza'

tion, for the purpose of displaying the drafi
plan. No blaik or Hispanic political^ leaders

were similarly consulted at this time Commis'

sioner Davis was apparently unatvvare that such

meetings were held.

ior
i.e
lDy
rei-
rlr-
d.t
di-
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lc-
rP
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rof
lnc
br-
lm-
rrt
Fic
rfu

lis

Pa
lls
b{l
ler
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h
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lbe
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lin,

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Iel'

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- -!4ldafa&-



1088

plans.' Whether this wss due to the lack of
mutual trust that permeated ttri legislative
attempts at redistricting, the intransigence
of both sides w[th respect to particular
redistricting issues, the unwillingness of
anyone to assume responsibility for a com-
promise or the Republicans' willingness to
gamble on winning the draw for the ninth
member is difficult to say. In any event,
both sides stuck to their guns and, on Au-
gust 9, the Democratic and Republican
members of the Commission presented
their respective plans for approval. With
each side perceiving adverse political ef-
fects from the plan of the other side, the
eight Commission members split along par-
ty lines on both proposals.

Pursuant to the constitutional procedure
(of drawing by lot), former Governor Samu-
el Shapiro, a Democrat, was then selected
to become the ninth member of the Com-
mission on September 2, 1981. Governor
Shapiro unsuccessfully urged a compro-
mise between the Republican and Demo-
cratic Commission members before he ulti-
mately acceded to the Democratic propos-
al.rs On October 2 the Commission met to
vote on what had then become known as
the "Shapiro Plan." 16 The Republican

15. Governor Shapiro insisted on one change in
the plan developed by the Democratic Commis-
sion members, namely that "independent" Dem-
ocratic incumbent Senators Dawn Clark Netsch
and William Marovitz be placed in separate
districts. The original proposal of the Demo-
cratic Commissioners had placed borh Netsch
and Marovitz in Senate District 3. Governor
Shapiro also asked that the population deviation
of the plan be reduced.

16. During trial, issue was taken with the proce-
dures employed by the Democratic Commission
members in adopting their plan. The law re-
quired that a plan be completed and adopred by
Octob€r 5 and the rules adopted by the Commis-
sion required that any plan considered for
adoption must be presented at least 24 hours
before a final vote was taken. Accordingly, a -
meeting of the Commission was called by the
Democrats for October 2 at 8:30 p.m. Although
a map reflecting the plan was given to the
Republican members on October l, a complete
set of census materials supponing the plan were
not distributed until the evening of October 2.
Commissioner Case5', a Republican appointee,
did not state hou, the Republican Commission
members were prejudiced by this alleged failure
by the Democrats to produce on time the more

,___..-.--

674 FEDERAL SUPPLEMENT

Commissioners, now comprising an unenvi-
able minority of four, criticized'the plan as
being unduly partisan and hbving a dis-
criminatory impact on minorities in Chica-
go. Plaintiffs' Ex. 39 at 3$-42. The Shapi-
ro Plan was adopted by a vote of five to
four, and it was officially filed with the
Illinois Secretary of State on October S,
1981.

B. General Considerations

We briefly describe the more salient fea-
tures of the Commission Plan, together
with an overview of the demographics of
the State of Illinois before turning in detail
to the evidence presented by the challeng-
ers and defenders of the Plan at trial.
With respect to general characteristics, the
Plan divides the State into 59 Senate dis-
tricts, each of which is in turn divided
geographically into two House districts.rT
The ideal population for each Senate dis-
trict is 193,533. The total deviation of the
Senate districts in the Commission Plan
from this ideal is L.59%, with an average
deviation of .29%. The ideal population for
each of the 118 House districts is 96,76?.
The total deviation from this ideal is 1.97%,
with an average deviation of .42%.tF

complex details of their plan, such as metes and
bounds descriptions.

17. Under the 1971 reapportionment, the state
was divided into 59 districts, each of which
elected one senator and three representatives.
The representatives u'ere elected al large from
each district with the use of cumulative voting
procedures. In November of 1980, this system
of apportionment for the House was abolished
by the so-called "Cutback Amendment." Under
the Cutback Amendment, the size of the House
was decreased from 177 seats to ll8 seats; mul-
ti-member districts and cumulative voting were
also eliminated. Under the new system, which
is being implemented in Illinois for the first
time in this redistricting process, the state is
divided into 59 Senate districts each of which in
turn is divided geographically into two single-
member House districts.of equal population.

18. None of the plaintiffs in this case challenge
the population deviations of the Commission
Plan's legislative districts under the "one person,
one vote" standard of Reynolds r'. Sirns, 377 U.S.
533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). In-
deed, refinements were made in the plan devel-
oped by the Democratic Commission members,



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BYBTCKT v. ST{ni BD. OF ELE(nIONS OF STATE OF ILL. 1089
. CttcuSTtFSuPP. lllt2 (19t2)

A better understanhing of the details of smaller concentration of blacks exists in

tlre Commission Plan and its impact on the the West Central poltion of Chicago, cen-

plaintiffs in this case is facilitated by re- tered in the Austin neighborhood. It too is,
viewing the demography of Illinois and, in over 85% black and contains approximately
particular, of metropolitan Chicago. Evi- 300,000 blacks or 23% of Chicago's black

dence presented at trial indicated that Illi- population. This area has been frequently "
nois may, for reapportionment purposes, be denominated the West Side in this litigation
divided into three or four areas: (1) Chica- and is referred to as such in this opinion.
go, (2) Cook County outside Chicago, (3) the Bhcks also constitute a significant percent-
five counties adjacent to Cook (the "collar age of the population in and around the
counties": DuPage, Kane, Will, McHenry southern suburban municipalities of Har-
and Lake), and (4) the remaining eounties vey, Robbins and Markham. The concen-
(i.e., the "downstate counties"). Of the tration of blacks in this area of Cook Coun-
11,418,000 residents of Illinois, the 1980 ty is not as high as on the South and West
census reveals that Chicago accounts for Sides, but it ranges fuom BS% tn over 8S%.
3,005,000 (28%), Cook County (including The total black population in this area--46,-
Chicago) for 5,253,000 (46%), the collar 00G-is also relatively small. This south-
counties for 1,849,000 (16%) and the down- ern area where blacks are concentrated has
state counties for 4,316,000 (38%). See De- been denominated the South Suburban
fendants'Ex. 121.

Chicago and Cook County constitute, of
course, the largest urban and suburban
center in Illinois. The collar counties are
generally characterized as suburban and

the downstate counties as rural. The tri-
partite (or quadrapartite) division of the
state also generally correlates with political

affiliation: Chicago is heavily Democratic
while suburban Cook and the collar coun-

ties are predominantly Republican, as are

many of the downstate counties.

Of the 5,253,190 residents of Cook Coun-

ty, 1,308,763 are black (21.5%'). Approxi-
mately 84% of the Cook County black popu-

lation resides in Chicago, where the blacks
comprise nearly 40% of the city's total pop
ulation. The black population of Chicago is

concentrated in two areas. The largest
concentration is found in the South and

Southeastern portions of Chicago, extend'
ing roughly from the city-center "Loop"
area to Chicago's southernmost boundary.
This area is, for the most parl, ovet 85%

black and it contains 792,000, sv $$.flc, of
the city's blacks. The area in question is

commonly referred to as the South Side

and is so denominated in this opinion. A

at the request of Gov. Shapiro, to makc the
population deviation percentages as lou as pos-

sible.

A substantial Hispanic re population also

resides in Illinois. The majority of Hispan-
ics live in Chicago, where they number
422,061, or approximatnly 14% of the eity's
population. In general, the Hispanic popu-

lation is not as highly concentrated as the
black population. The Hispanic population
is more dispersed than the black popula-

tion, with Hispanics residing in various ar-
eas throughout Chicago. Notwithstanding
this general dispersal, at least two major
Hispanic aggregations are easily identified
in Chicago, one on the Northwest Side and

the other on the Southwest Side.

C. Evidence Adduced at, Trial
1. The Rybicki Plaintiffs

The Rybicki plaintiffs submitted various
testimonial and documentary evidence to
support their claims of suburban vote dilu-
tion, lack of compactness of certain dis-

tricts, excessive fracturing of political sub-

divisions anf pohtical unfairness.

Suburban Vote Dilution. The Rybicki
plaintiffs argued that, based on changes in

19. Hispanics are persons of Mexican, Puerto
Rican, Cuban, Central American, South Ameri-
can, or other origins related to Spanish cultures
regardless of race.

J.-;.Jt_i -!--



*lfr)
population between l9?0 and l98g,ro'*"
colla,r counties are "entitled" to more and
Chicago i8 "entitl6d,' to ferryer legislative
districts than were accorded'to theie areas
under the Commission Plan.

Under the 19?i redistricting plan, Chica-
go voters constituted part of the population
in 20 Senate districts. Defendantst Ex. 12.
Plaintiffs argue that in proportion to the
City's 1980 population, the voters of Chica-
go should control or constitute a majority
in 31 House districts and only 1S.5 Senate
districts. However, under the C,ommission
Plan, Chicago voters ,,control', 85 House
districts and l7 Senate districts.2t

Plaintiffs similarly observe that the num-
ber of districts controlled by collar county
voters has not increased between 1gT0 and
1980, despite the population shifts from
Chicago and Cook County to the collar
counties evident in the lg80 census. Under
tlre 1971 plan there were six Senate dis-
tricts (then refered to as ,,Legislative,,

districts) entirely within the collar counties
and five that overlapped into adjacent coun-
ties. Under the Commission plan, there

- are still six Senate districts wholly within
the collar counties, but the number of over-
Iap districts has increased to nine.z2

Compactness. The Rybicki plaintiffs al-
Iege that 15 House districts and 2 Senate
districts are not compact.23 The noncom-
pactness of tlese districts is evident, ac-

20. Th9 changes in the Chicago metropolitan
area for the relevant ten year period ire set
forrh below:
Arca tgZO tgSO % Change
Cbicrgo 3,369,357 3,OOS,0?2 _ tO.8

Cook Couoty t,493,266 Sri3,r90 _ 1.1
Colll' CouDti.s l,,t{B,tis t,B49,t3S +21.6

Sez Def. Ex. l2l.
21. The Rybicki plaintiffs credir Chicago with

control of 38 House seats and 19 Senaie scats.
They include in their count, however, two Sen_
ate districts and three Housc districts which
oyell-ap 

- 
from Chicago into Cook County in

which the population of the district is evenly
balanced between Chicago and the suburbs or
in which the majority of voters reside outside
lhicago. Sec Rybicki pls. Findings of Fact at
\t72.

Zl. Seven Senate districts overlap into Cook
County (19, 22, 23, 25, 29, 30 and ,10). Of these.

*r"
5??Tnonn lr, suppLEMENT

. cording to plaintiffs, both undei a visual
analysis and as demonstrated by mathe-
matieal standards. ln Schrhge o. Stata
Board of Elections, 38 Ill.2d8?, bg IIl.Dec.
451, 4i|0 N.E.2d 483 (1981), the Illinois Su-
preme Court invalidated former C,ommis_
sion House District 8g, which extended 125
miles at its longest point and six miles at
its narmwest, a length to width ratio of
roughly 21:1. By comparison, C,ommission
Senate District lg, the most egregious dis-
trict on plaintiffs' list, extends 86 miles at
its longest point and is two miles wide at
its narrowest, a ratio of 18:1.21

Defendants sought to minimize the sig-
nificance of plaintiffs, compactner. .orn-
plaints by introducing examples of oddly
shaped districts from the court-approved
1971 redistricting effort. See Defendants,
Exs. 61 and 62. Moreover, the Commis-
sion's expert witness, Mr. Brace, testified
that the irregular shapes appearing in the
Commission Plan were necessitated in
some circumstances to comply with the low
(1%) population deviation standard em-
ployed as a goal by the Commission. Mr.
Brace also stated that the desire to aehieve
some other redistricting goals, such as re
spect for the integrity of political subdivi-
sions, communities of interest or natural
boundaries contributed to the irregularly
shaped districts. Plaintiffs attempted to

Cook County voters constitute a majority in all
but two Senare districts (23, 3O). Of the two
that overlap into downstate counties (32, g5),
collar county voters constitute a majority in oni
(32). Deft. Ex. a9.

23. These are House Districts 7, 22, 35, 37, 39, 41,
42, 50, 58, 77,80,84,87,95, tO4; and Senate
Districts t9 and 46.

24. It is interesting from a forensic as well as a
mathematical standpoint that defendants, calcu-
lations of-extreme lengths and widths are quile
different from plaintiffs'. Se, Def. Ex. 4g. De-
fendants' ratios were obtained by comparing the
longest length againsr thdwidesi (and therJfore
the most extreme) width, rather than against the
narrowest width. The result is that the House
districts plaintiffs complain of (ag., 58, g7, 37,
104) have relatively innocuous ratios under de-
fendants' criteria of 2.16:1, 1.26:1,1.46:1, 1.95:l
and 1.66:1, respectively.



RYBICKT v. STATE BD. OF ELECTIONS OF STATE,OF ILL. tflgfl Ctrc.r JZa Ftrpp. l(B2 (trS2)
rebut t'hese arguments by presenting their in every district.B dn u," basis of thisown "Coqlition Plan" which., they alleged, analysis, defendants conctuded that the /contained more compact districts.2u Bui Commission plan would produce in thethis alternative map also indjcates the diffi-

f,1,dt;rjf "JTi;;1-;3ij;t,,,ilHfi fi :ffid';l'fi;rl.!i;',',:#ffi frT
Iess stringent p,iputatlon deviation stan- can districts; and 23 "8rtring" districts. In
dard; s nonethejess, as Defendant", ilhil the.Sen-atc, it would produce 2l "firm" and
it 62 demonstrates, even the Coalition plan no "soft" Democratic districts; 25 "firm"
contains a number of highly i""grl"i, 

"fon- 
and 3 "soft" Republican districts; and 10

gated distrigts.zz "swing" districts. Defendants observed
political Fairness. The Rubicki olain- that.this alignment slightly favors the Re-

tiffs also asserr that th" ;;;;;;";i;;- publicans.a

compact distriets is evidence of the Com-
mission's intent to preserve a dispropor-
tionate number of Democratic incumbents.
Moreover, plaintiffs allege that the exten_
sive use of "overlap,,districts designed to
maintain the power of Chicago land hence,
the Democratic Party) by fracturing subur_
ban areas, demonstrates the political un-
fairness of the Commission plan. Defend_
ants vigorously deny that the Commission
PIan is politically unfair. Evidence sub-
mitted by the defendants indicated that his_
torically, Illinois has been a ,,swing staie,,
which elects Democrats and Republcans in
equal numbers to legislative and executive
offices. See Defendants, Exs. ZB and 24.
In-this connection, defendants analyzed the
political effects of their map by examining
past voting patterns for each census trac-t

25-, The three pJainriff groups jointl-v developed
the Coalirion plan. It was utilizeJ ar triaf ro
demonstrate that various alleged infirmiries in
the Commission plan could L ."r.a in rh.
redistricting process. Each group 

"l"o 
.""o--

mended, a-t various phases in ih" t.i"l, th.
adoption of the Coalition plan as 

"n. *..rr. io.
remed5ring the Commission plan,s deficiencies.

26. The total population deviation percentapes
for House and Senare disrricrs ln the Coatiii.
Plan were 1.955% and 1.646oh, respectively. See
Def. Ex. ll8.

27. &e, ag., Senate District ll and House Dis-
tricts 3l and 98.

2t. The polirical fairness of the plan was ana-Iped by revier,r,ing the voting p"r,".rrs u, ,h.
census tract level for five different elections:
The Universily of Illinois Trustee elections in
1978 and 1980; the State Senate elections for
1978 or 1980 (Senare terms being staggered);
and the State Represcntative electi-ons f":, tiii

Fractured Counties. The Rybicki plain-
tiffs also introduced evidence demonstrat_
ing that the Commission plan indiserimi-
nately fractures political subdivisions.
Representative Lee Daniels of Dupage
County testified at length that fracturiig
can produce undesirable political conse_
quences, particularly when a legislator is
charged with representing areaslhat have
divergent political interests. Representa-
tive Daniels pointed out that, even though
Cook County and the collar counties haie
seemingly antagonistic interests on issues
of transportation, taxation and education,
nine Senate districts overlap between these
two areas.

Witnesses for the Commission agreed
that the fracturing of political subdivisions

and !980. political strength was gauged by the
number ol wins and los-s suslained bv each
pany throughout the six elections. If one orrt,
won all five elections, the district *,u.'.ori_
sidered a "firm" district. If rhe party *"n f"*of 

-the eleclions, the district was i"".ia.i"a"1oft," If a party won two or three of the
elections, the district was denominated 

--.

"swing" district.

29. Plaintiffs attack defendants, projections on
the ground that the projections do not consider
the residence of incumbents, the qualiry of the
candidares.and trlyp. of campaign litety to bewaged. Plaintiffs have submittei 

"" ,p..ifi.
evidence, however, contradicring tt. ,aiairf 

"idefendants' basic assumption that votine willtend to proceed roughiv .lorrg p.rry -lin.i.
Moreover, we do nol believe thai tir. .*i.t.r,..
of the variables identified by rhc ptaintiffs nec_
essarily renders defendants, projeitions invalid.
The very existence of g0 ,,firm,, U""* *. o*
of a possible I I 8 mighr suggest rhar p"rry 

"ffiiiu-tion is a-highly significant faaor in vote. p.ef.i-
ence in Illinois.



f092 674 FEbERAT

was not desirable; they disagreed, of
course, as to how much fracturing was
tolerable. the 1971 redistricting plan split
29 counties into two or more districts. D+
fendants' Ex. 75. Plaintiffs' evidence
showed that the Commission Plan splits 48
counties into two or more districts, result-
ing in L22 separate fractures. Cook Coun-
ty outside Chicago is fragmented into nine
parts, DuPage County into eight and Will
County into seven. By comparison, the
Coalition Plan splits 35 counties, resulting
in 72 separate fractures.

Focusing more closely on the Chicago
metropolitan area, we note that in the 1g?1
plan, eleven Senate districts were entirely
within Chicago while nine overlapped into
Cook County.3o TVo districts overlapped
from Cook County into the collar counties.
See Defendants' Exs. 9, 10. Under the
Commission Plan, eight Senate districts are
wholly within Chicago, eleven overlap into
Crcok County and seven overlap from Cook
County into the collar region.st

The alleged political result of overlap
ping districts in the metropolitan Chicago
area is that a disproportionate number of
seats are "controlled" by Chicago and Cook
County voters. Defendant Commission
members admitted at trial and in their dep-
ositions that they intended to achieve this
result of widening the influence of Chicago
voters.32 Defendants suggest that, in the
absence of overlapping districts in the Chi-

3f. Of the eleven Senate districts that overlap
into Cook County, Chicago voters are a majority
in nine. Sez Def. Ex. 85. There are 15 House
districts which overlap under the Commission
PIan, of which Chicago voters constitute a ma-
jority in 13. Of the seven Senate districts that
overlap from Cook County into the collar coun-
ties, Cook County voters constitute a majority in
five. Ten House districts overlap into the collar
counties, of which Cook voters are a clear ma-
jority in six. The other four districts have
roughly equal percentages of Cook and collar
countv voters. See Def. Ex. 49.

cago and C,ook County &rea, 8 redistrictinc
plan grossly favors the Republican party]

2. Crosby Ptaintiffs
The Crosby plaintiffs introduced several

types of evidence attempting to establish
that the Commission Plan was the product
of purposeful discrimination to dilute black
voting strength and to unconstitutionally
ger4rmander districts in black population
areas. Their proof may be categorized as
evidence of (1) retrogression; (2) ,,packing,,

and "fracturing" of the blaek population;
(3) movements of large racial populations
in certain areas to preserve the incumbenc-
ies of white legislators; (4) "admissions" of
certain Commission members; and (E) prior
instances of discrimination allegedly prae-
ticed by the regular Democratic Party or-
ganization in Chicago.

Retrogression. The evidence showed
that while the black population increased,
both absolutely and especially in relation to
the white population in Chicago and Cook
County between 1970 and 1980,33 the num-
ber of districts where black voters had a
"meaningful" opportunity to elect a candi
date of their choice did not increase appre
priately. At the time of the 1971 redistrict-
ing, blacks constituted a majority in five
Chicago Senate districts (2L, 22, 24, 26 and
29). When the 1980 census figures are
applied to the 19?1 lines, blacks constitute
a majority in six Senate districts (the for-
mer five districts plus district 28). Under
the Commission Plan, blacks will constitute

Cbicrgo
Rlcc 1970 % t980 %
Wtttc l,959BlO 552% tze7-tpzz .,,A*
Bhck 1,102,(x!0 32.7% t,r$,221 39.5*

Cook Coutrty (tncluding Chicago)

30. Population breakdowns for the districts over- t2. SeeTr. at ll72 (Donnewald, cross); Murphy
lappilq from chicago into cook county under Dep. at 130-13 l, li2-143i pl. Ex. 20.the l97t plan were not presented. Visual in-
spection indicates that Chicago voters probably 33, The population changes between 1970 and
:9n"t,,t"1.9.a majority of the population in the l9g0 were as follows:ntne otslrrcls.

32r7,O2t 62.3%
1,308,76i1 24.'!r%

Sae Def. Ex. l2l.
The figures for blacks may be somewhat un-

derstated due ro a possible undercount of blacks
in the census. Evidence suggested that blacks
are likell' to hc undercounted at a rate of four
times thar of r.hites.

Whlte 3,9t1,01,1 n.0%
Black l,l&i,475 2t.5%

6?4 FEbERAL SUPPLEMENT



RYBICKI v. STATD'BD. OF ELECTIONS OF STATE OF ILL.
. CltcgtTaF.tupD. l(IB2 (tr02)

li

a

,f

r093

number of Senate districts as in 1971. group is concentrated into one or more

a msjority in only five.df the Oommigsion
Senate Districts (9, 12, 13, 16 and 17).

Thus, althoggh blacks increased in popula-
tion, both absolutely and especially in rela-
tion to whites in Chicago between 1970 and
1980, they hold a majority in the same

Blacks are also a majority in one less Sen-
ate district tlan would have been the case
had the current redistricting not occurred.

By contrast, white representation in dis-
tricts where Chicago voters constitute at
least part of the population has not dimin-
ished significantly. Under the 1971 district
lines as applied to the 1980 census figures
for districts wholly or partially located
within Chicago, whites constitute a majori-
ty in 14 of the 19 Senate districts 3a even
though they account for only 45.5% of the
population in those districts.ss The Com-
mission Plan, under the 1980 census fig-
ures, results in whites being in the majority
in 14 of 19 36 Senate districts wholly or
partially located in Chieago. Although the
white population of the City of Chicago has

declined, the Commission Plan, which em-
ploys several more overlap districts than
the 19?1 plan, actually increased tn 5I.l%
the white population in these Chicago-area
districts, thus explaining, in part at least,
why 14 of 19 districts are still populated by
a majority of whites.

!i4. The number of House seats held by blacks
and whites between 1970 and 1980 cannol be
accurately compared since the Cutback Amend'
ment reduced the size of the Illinois House and
created single-member districts.

35. &a Def. Ex. 120; Pl. Ex. 30O. The number of
districts controlled by whites may actually have
been 15. As noted before, there were apparent-
11' 20 districts wholly or partially in Chicago
under the l97l lines. &e Def. Ex. 12 (overlay).
However, both plaintiffs and defendants used
the figure 19 for purposes of this comparison.

36. Defendants claim that the number should be
13 rather than 14. The difference is based on
plaintiffs' assumption that white voters control
Senate District 10. Although whites make up
only 190z6 of the voters in that district, with
blacks making up 45o/o and Hispanics 36010,

plaintiffs point out that the district contains a
white incumbenl who is backed by a powerful
political organization and is therefore likelv to
be reelected.

Paaking ond Frocturing. Packing and
fracturing are the termd used by plaintiffs
in this lawsuit to describe two somewhat
different means of reducing the voting
atrength of a geographically unified minori-
ty group. Packing oecurs when a minority

districts so that it constitutes an over-
whelming majority in those districts (and
part of its vote is "wasted"). Fracturing
occurs when a geographically unified mi-
nority group is unnecessarily split among a
number of districts.

All five of the majority black Senate
districts located in Chicago under the Com-
mission Plan have black concentrations in
excess of 80% of the total district popula-
tion.3? The black population is also highly
concentrated in the 12 Chicago House dis-
tricts in which blacks constitute a majority
although black percentages in these dis-
tricts are generally not as high as in the
majority black Senate districts.3s

Plaintiffs also contend that the packing
on the West and, in particular, on the Sonth
Side of Chicago was greatly furthered by
drawing district lines which correspond to
the racially segregated housing patterns
evident in these areas. This South Side

"wall," as plaintiffs refer to it, runs, for
example, along the westernmost boundary
of Commission House Districts 23 (94.337"

37. Senate District 9 is 81.350/o black; District 12

is 96.380/o black; District 13 is 83.930lo black;
District 16 is 98.690lo black; and District l7 is
85.2602 black.

3E. Commission House District 27 contains a
66.402 black population; three Commission
House districts (19, 26 and 34) contain black
populations ranging between 729n and 7896; two
Commission House districts (17 and l8) contain
an 8lo/o black population; two other Commis-
sion House districts (23 and 25) are betu'een
890,1 and 94% black; and four Commission
House districts (29, 3l, 3.2 and 33) contain black
populations exceeding 97ol0.

As these figures illustrate, and as plaintiffs
noted at trial, all majority black House districts
contain black concentrations of 650.zo or greater.
Horvever, the Crosby plaintiffs also argued that
it would be difficult for blacks to elecl a candi-
date of thcir choicc in an1' district that was less
than 6.i0', bla.'k. See note 87 irtlra.

L -ri.<-



i#;lrr:*

1094

black), 24 (98.43% blac\), 31 (98.44% black)
and 84 (73.37% black), and separytes these
districts from predominantly white Com-
mission House Districts 2l (4.03% black),
22 (4.18% black), 28 (9.27% black) and 29
(rr.56% black).

Both fracturing and packing are alleged-
ly evident in the voting districts on the
West Side. Of the 300,000 blacks who
reside on the West Side, approximately
160,000 reside in Commission House Dis-
tricts 17 and 18, both of which are over 80%
black. The rest of the black population is
distributed among Commission House Dis-
tricts 11, 19 and 20, which have black popu-
lations of 48%,72% and 18%, respectively.se
Defendants, of course, presented various
reasons not related to packing and fractur-
ing for the existence of district lines trac-
ing racial boundaries on the South and
West Sides, which will be discussed iny'o.

During the course of this litigation, the
Crosby plaintiffs presented several alterna-
tive plans that they claim would more fair-
ly qnd equitably promote the interests of
black voters in Chicago. The Coalition
Plan, which was offered as a eompletely
packaged alternative to the Commission
Plan, contains districts which incorporate
more white areas into black-controlled dis-
tricts, thereby enhancing black voting
strength. By creating districts which over-
lap from black areas into neighboring
white areas the Coalition Plan produces
five Senate districts on the South Side with
black populations ranging from 70% tD
85%. (There are four majority black Sen-
ate districts on the South Side under the
Commission Plan.) The C,oalition Plan
would also avoid alleged packing and frac-
turing of the black population on Chicago's
West Side, by creating two black Senate
districts (with black populations of 66% and
84%) and four black House districts (with
black populations of 65%, 67%, 72% and
96%). (There is one black Senate district

39. Plaintiffs also identify an instance of fractur-
ing in the South Suburban area of Cook County.
At the conjunction of Commission House Dis-
tricts 27, 36 and 78, a black popularion of ap-
proximatell' 46,000 is scattered among these
three districts. Blaci:s constitute l60/o of Com-

574 FEDERAL SUPPLEMEIYT

and three black House districts in this area
under the Commission Plan.)

' After trial was completed, anothe. plan,
denominated the "Crosby Plan," was
presented to the court as an offer of proof.
This plan reconfigures most of the Commis-
sion Senate and House districts located
within Chicago and Cook County by al-
legedly reducing the coincidence of racial
and electoral boundaries and increasing the
number of districts in which blacks consti-
tute a majority of the population.

Mooements of Racial Populatiorx To
Presente White Incumbencies. Plaintiffs
presented evidence of racial population
shifts in several districts, allegedly moti-
vated by the desire to preserve the incum-
bencies of various white legislators or pG
tential white candidates on both the South
and West Sides. These districts included
Commission Senate District 14, where in-
cumbent Senator Jeremiah Joyce resides,
Commission Senate District 18, where in-
cumbent Senator Glenn Dawson resides,
and various West Side districts, particular-
ly Commission Senate District 8, home of
Senator Philip Rock and Commission House
District 15, which is part of Senate District
8. A detailed analysis of these population
movements, which we regard as very sig-
nificant, is included in Section lll infra.

Alleged Admissions of Defendants.
The drafters of the Commission Plan ae-
knowledged that, at the time they drew the
Map, they were aware of the relationship
between legislative districts and racial de-
mographics in the City of Chicago.
Throughout the line drawing process, the
drafters possessed color coded maps re-
fleeting the location and the degree of con-
centration of blacks and Hispanics in met-
ropolitan Chicago. Extensive population
statistics reflecting the percentages of mi-
nority groups as well as sfiltistics showing
their population growth between 19?0 and

mission House District 36 and 29.60/o of Com-
mission House 78. In District 27, however, the
blacks from the South Suburban area arejoined
with blacks from Chicago to the north to consti-
tute a majority of 66.370/o in Commission House
District 27.

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1980
Bion.

RYBICKI v. STATE BD. OF ELECTIONS OF STATE OF ILL. 1095r c,tr. B f?a F.tupp. tln2 (t9Sz)

were also available to the 'Commis- Interests of Blacks d,nd Hispanics. De-
fendants introduced evidence indicating /
that the Democratic Party has strongly
espoused the cause of blacks in Illinois.
They noted that the Democratic Party has
sponsored and passed civil rights legisla-
tion, social welfare legislation and legisla-
tion providing for bilingual education-all
matters of special concern to blacks and
Hispanics. Blacks in Illinois are over-
whelmingly Democratic.

3. DelValle Plaintiffs.

The DelValle plaintiffs alleged that the
Commission Plan intentionally dilutes His-
panic voting strength by fracturing the two
largest Hispanic concentrations in Chicago
among several House and Senate districts.
The evidence presented at trial revealed
that Representative Madigan and Commis-
sioner Murphy were aware of the dilutive
impact of the relevant distriets on the His-
panic community. The Commission wit-
nesses justified their choice of district lines
by arguing that the Commission Plan ac-
commodated projected migration patterns
of Chicago Hispanics and, thus, that the
ehallenged districts will eventually maxim-
ize Hispanic voting strength. As a result
of directions from the court to the Commis-
sion and negotiations between the Hispanic
plaintiffs and the Commission defendants,
a Settlement was reached between these
parties on January 7, 1982. The Hispanic
plaintiffs believe that this Settlement
Agreement provides Hispanics residing in
both the Pilsen-Little Village (Mexican-
American) area and the Humboldt Park-
West Town (Puerto Rican) area a fair and
reasonable (and, in faet, the best achieva-

42. United States * City of Chicago, Nos. 73 C
661 and 80 C ?590 (N.D.Ill. March 13, 1980)
(consent decree).

43. Gautreaut y. Chicago Housing Authority, 5O3
F.2d 930 (7th Cir.), afl d sub nom. Hilk v. Gau-
treaut, 425 U.S. 284, 96 S.Cr. 1538, 47 L.Ed.2d
792 (1976).

44. United States v. Bc,ard c'i l:riucarion, 88
F.R.D. 679 (N.D.Ill.l980) (cons:r.,, decree).

Representative Madigan who, together
with Commissioner Murphy, drew the Chi
cago portion of the plan, stated that he
studied the maps and that he was aware of
the pereentages of blacks placed in each
district.'0 Representative Madigan and
C,ommissioner Murphy also testified that
racial factors, including the existenee of
racial feeling antagonistic to blacks in some
South and Southwest Side white communi-
ties, were taken into account in drawing
the district boundaries. See Tr. at 1432
(remarks of Rep. Madigan); 1838-39 (re-
marks of Comm'r Murphy). Neither Madi-
gan nor Murphy indicated, however, that
any district lines were drawn for the pur-
pose of diluting black voting strength.

History of Ciuil Rights Violatiorc in
Chicago. To strengthen the inference of
intentional discrimination against blaeks,
the Crosby plaintiffs introduced evidence
of past racial discrimination by the City of
Chicago and, allegedly, by the City's regu-
Iar Democratic organization. In particular,
plaintiffs pointed to several lawsuits involv-
ing the Chicago Police rr and Fire Depart-
ments,l2 the Chicago Housing Authority,r3
and the Board of Education a{ in which the
city defendants were either found to have
discriminated against blacks or entered into
consent decrees which recognized the exist-
ence of racial bias within the agency.
Plaintiffs noted that the heads of all three
city agencies are appointed by the Mayor
(inevitably a Democrat). Plaintiffs also in-
troduced evidence of the new Chicago ward
map, which they asserted to be biased, and
which furnished a guide in some instances
for the challenged legislative redistricting.

l{). Defendants were also alerted to the effects of
their plan on the black and Hispanic communi-
ties at the July 23 public hearing in Chicago.
Madigan received some of the same information
during meetings with black members of the
House during May and June and during a Dem-
ocratic caucus at the close of the legislative
session.

4t. United Stares v City ol Chicago,4ll F.Supp.
218 (N.D.lll.lq76). afl'd, 549 F.2d 4l-< (7th Cir.),
cert. denied. 434 ti.S. 875, 96 S.Cr. 225, 54
L.Ed.2d 155 (1o77).



1096

ble) ofportunity to elect candidqtes of their
choice to t}e Illinois GeneralAssembly.'6

II. ConrplainL of the Rybicki Ptain-
tiffs: Cornpactness, City-Suburban
Oaerlap, and Political Fointess

T:he Rybiclci plaintiffs allege that the
Commission Plan unlawfully discriminates
against suburban voters in the Chicago
area, that the Plan contains noncompact
districts, that political subdivisions are un-
necessarily fractured and that the Plan is
not politically fair.r6 We first consider the
claims of noncompactness under Illinois
law befor.e considering the claims of dis-
crimination against suburban voters and
political fairness under the appropriate fed-
eral constitutional standards. We also con-

sider fracturing of political suMivisions un-
der the appropriate law.

A. Compactness

tll Arl. IV, 5 3(a), Ill. Corxt. (1970),

provides that "fl]egislative districts shall be
'compact, contiguous and substantial)y
equal in population." {7 The substance of
this provision was first incorporated into
the Illinois Constitution of 1870, and the
drafters of the Illinois Constitution of 1970

reincorporated the provision into the cur-
rent constitution. See 6 Record of Pro-
ceedings, Si^rth lllinois Constitutional
Conoention, 1352-53 (1972). Although sel-

dom interpreted by the Illinois courts, see,

e.9., People er rel. Woodyatt a. Thompson,
155 Ill. 451, 40 N.E. 30? (1895); People er
rel. Scott o. Griaetti, 50 Ill.zd 156, 277

N.E.2d 881 (1971) cert. denied, 407 U.S.

{5. A more detailed discussion of the DelValle
plaintiffs' claims, as well as of the Hispanic
Settlement Agreement, appears in Section IV
inlra-

45. The Rybicki complaint also alleges unconsti-
tutional racial vote dilution. That issue, which
was presented at trial by the Crosby and Del-
Valle plarntiffs, is dealt with in subsequent Parts
of this opinion.

{7. We have pendent jurisdiction to consider this
state law claim. As noted previously, equality
of population in the districts is not an issue in
this case. Moreover, no evidence was intro-
duced at trial that any district is non-contigu-

-_-..
67{ FEDERAL SUPPLEMENT

YS-

921, 92 S.Ct. 2460, 32 L.Ed.zd 806 (1972),

this provision was most recentfi constnred
by the Illinois Supreme Court in Schrage o.

State Board of Electioru, 88 Ill.zd 87, 58
Ill.Dec. 451, 430 N.E.2d 483 (1981), a case
arising out of the redistricting plan pres-
ently under challenge. ln Schrqe, the
Illinois Supreme C,ourt considered a chal-
lenge under this provision to one represent-
ative district (the 89th) oeated by the Com-
mission Plan. In the course of invalidating
the C,ommission Plan with respect to this
district (and, concomitantly, to the 90th rep
resentative district), the court adopted an
"eyeball" standard to determine if a given
district met the compactness require
ment: 18

It is possible to establish a mathemati
cally precise standard of compaet-
ness. . . . However, we find it unneces-
sary to adopt such a procedure in this
case. Rather, we can rely on a visual
examination of the questioned district as
other courts have done....

A visual examination of Representa-
tive District 89 reveals a tortured, ex-
tremely elongated form which is not com-
pact in any sense. . . . Nor were the
plaintiffs able to advance any reason
which might possibly justify such a radi-
cal departure from the constitutional re
quirement of compactness in this case.

Schrage,83 Ill.zd at 98, 58 Ill.Dec. 451, 430

N.E.2d 483.

Plaintiffs have directed our attention to
numerous districts which allegedly lack

ous. Hence, we have not considered any ques.
tion of contiguity.

tlE. The courl also emphasized that adherence to
the compactness standard was important with
respect to the challenged district because Com-
mission House District 89's extremelv eloncated
shape mighr "significantly impede[ i *,it"l-.on-
stituent-represental ive communication,"
*hrage, al 100, 58 Ill.Dec. 451, 430 N.E.2d 483.
We note that plaintiffs here did not allege, nor
present any evidence to the effect, thal such
communication would be jeopardized in any of
the assertedly noncompact Commission Plan
districts challenged in the instant proceeding.

. -*- -3-



EnIr- f
,/v

RYBICKI V. STATO gti. OT ELECTIONS OF STATE OF ILL.
Glrc er J7l F3upp. tllB2 (19t2)

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compactness.r0 Se1€ral other witnesses
identified districts that, in their opinion,
represented such shapes 8s a "microscope"
or a "B-uddha" and thus lacked compact-
ness. Finally, plaintiffs have also directed
our attention to examples of legislative dis-
tricts found to be noncompact in cases oth-
er than Schrage but interpreting similar
requirements of compactness. See, e.9.,

Preisler a. Doherty, 365 Mo. 460, 284
S.W.zd a27 $955),; State er rel. Barrett o.

Hitchcock, 241 Mo.433, 146 S.W. 40 (1912);

In re Sherirl, 188 N.Y. 185, 81 N.E. 124
(1907).50

We have examined the districts described
by plaintiffs as noncompact and conclude
that under the principles articulated in
Schrage, none of the districts in the Com-

mission Plan reveal "a tortured, extremely
elongated [or other] form which is not com-
pact in any sense." Schrage, 88 Ill.2d at
98, 58 Ill.Dec. 451, 430 N.E.2d 483. In
reaching this conclusion, we are, of course,
mindful that the compaetness standard is
recognized by Illinois as a means to "im-
prov[e] legislative representation through
seeking to insure that districts are not ger-

rymandered," 6 Record of Proceedings,
Sicth lllinois Corxtitutional Conuention
1353 (1972) (Report of the Legislative
Comm.). Consistent with this goal, the Illi-
nois Supreme Court reemphasized in
Schrage that the constitutional compaet-
ness standard cannot be ignored. Schraqe,
at 96, 58 Ill.Dec. 451, 430 N.E.2d 483. We
clearly recognize the importance of the
compactness standard not only because Illi-
nois law and its interpretation by Illinois

49. See discussion ante at 1097. These dis-
tricls include Commission Senate Districts 17,
18, 19 and 46; and Commission House Districts
7, 22, 35, 37, 39, 4r, 42, 50, 58, 77, 80, 84, 87, 95
and 104.

Plaintiffs' expert witness, Dr. Hofeller, articu-
lated another test for compactness (different
from the lengthro-width comparison test) that
involved drawing a polygon around the outside
of a district and comparing the area inside the
district to the area outside the district but with-
in the line segments of the polygon. The evi-
dence did not establish, however, that Dr. Hofel-
ler anall'zed any districts using this method.

50. See generalh ln re lzgislative Districting ol
General Asscmbh,, 193 N.W.2d 784 (lou,a 1972):
Acker r. /-., i, i78 Ccilo. 175, 496 P.2d 75 (1972).

1097

courts is controlling on this issue but also
because we agree wilh the underlying poli-
cies and ideals on which Schrage is based. -
Nevertheless, we are aware of the various'
difficulties involved in drawing legislative
districts and the constraints imposed by the
one-person, one-vote standard, the impera-
tives of census tract data, the desire to
follow natural, ecological and political
boundaries, and the competing demands of
incumbents, voters and the courls.

Bearing in mind these considerations, we
not€ that no other districts in the Commis-
sion Plan are as relatively noncompact as
Commission House Districts 89 and 90 (be-

fore their modification by the Illinois Su-
preme Court in Schrage).it Indeed, al-
though plaintiffs identified many districts
in the Commission Plan as noncompact, a
quick perusal of the plaintiffs' alternative
Coalition Plan reveals that it contains dis-
tricts also comparatively lacking in strict
compactness. This comparison with the
Coalition Plan is significant because it re-
veals the problems with compactness which
pervade many approaches to similar redis-
tricting problems. Thus, we decline to in-
validate the Commission Plan, or any of its
individual districts, as lacking in compact-
ness in the sense required by the Illinois
Constitution.

B. Fracturing Political Subdioision
Boundaries, Oaerlap Between Ur-
ban and Suburban Districts and
Suburban Vote Dilution

Plaintiffs contend that the Commission
Plan unduly fractures or splits political

51. Defendants have, for the mosl pan, justified
an1' slight deviations from normal "compact-
ness" by demonstrating that the districts were
drawn as such to recognize alleged communities
of interest, to follow natural, ecological or polit-
ical boundaries or to satisfl'population equality
standards. Such justifications are appropriately
considered, given that Illinois does not require
perfect comptctness', Schrage, 88 Ill.2d at 96, 58
Ill.Dec. 451, 430 N.E.2d 483. The explanations
proffered tend to rebut the inference that the
arguable lack of normal "compactness" was re-
lated to efforts at gerrymandering.

I
I
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I

;



1098 574 FEDERAL gUPPLEMENT

suMivieions in lllinojs, especially eoun'

ties.c By drawing districts wldch "over-
lap" a county line, plaintiffs argue that the.
defendants violated their own criteria of
keeping political subdiuisions and their con'

comitant communities of interest intact
within the same legislative district'ts The

most vehemently criticized fracturing noted

in the Crcmmission Plan involves districts
that "overlap" between the City of Chicago

and Cook County. There was also strong
criticism of the number of districts which

"overlap" between Cook County and the

"collar" counties.il According to the plain-

tiffs, the net effect of districts which over-

lap from Chicago into the suburbs is the

impermissible minimization of the voting
strength of suburban residents (who are

predominantly Republican voters in con-

trast to the predominantly Democratic vot-

ers residing in Chicago). This alleged mini-

mization of suburban voting strength as-

sertedly violates the Fourteenth Amend-

ment's guarantee of equal protection.

Although they do not deny that their
plan in fact fractures many political subdi-

visions, several Commission members testi-

fied that two of their guiding criteria in

designing districts were to minimize the

number of fractures and to maintain com-

munities of interest. Defendants argue

that the Commission Plan does not unduly

violate these redistricting criteria' Defend-

ants also concede that they intentionally

52. Illinois is comprised of 102 counties' Under
the Commission Flan, +8 counties are fractured,
ia, they contain districts that cross over county
lines. 

-Some 
of these counties are fractured a

number of times thus creating a total of 122

s€parate fractures of county boundary lines in
the Commission Plan.

53. The Village of Oak Park, Illinois, a suburban
community west of Chicago, filed a brief 

-as
amicus curiae urging the court to adopt a redis-

tricting plan that avoids any unnecessary frac'
turing oi the community among legislative dis-

trictslontaining parts of its population' Unfor-
tunately, although we recognize the merit of
Oak Park's objections (based on fracturing) to
portions of thi remedy we have adopted in this
proceeding, we feel that the black voting dilu-
iion claim, which was addressed in part by

certain changes in the border area of Chicago

and Oak Park, must be accorded high priority'
Since we have relied on the Commission to

ia;: "

crcst€d districts that overlap between Chi'
cago and aurrounding ar€as in Cgok Ooun'

ty and between C,ook County and the collar
crounties. The bulk of the overlip districts
between Chicago and its suburbs were cne.

ated, according to the Commission mem-

bers, by generally following the district
lines from the 1971 districting plan, with
adjustments where necessary to add or
subtract population to meet the population

equality standard. Moreover, defendants

concede that a major motivating factor for
creating overlap districts was to enhance

and maximize the influence of Chicago, its
voters and the Democratic party in the

General Assembly. We address first the
question of alleged indiscriminate fractur-
ing of political subdivision boundaries be
fore considering the claim of suburban vote

dilution under the Fourteenth Amendment.

I2l Plaintiffs argue that the "overlap"
district lines, as well as other district lines

which indiscriminately fracture municipal,

township and county boundaries, impermis-

sibly split recognized communities of inter-

est by indiscriminately fracturing political

subdivision boundaries. As evidence of
this, plaintiffs point to various examples of
alleged divergence of interest between the

residents of Chicago and suburbanites, or
between residents of one county (particu-

larly Cook County) or of a group of coun-

ties and residents of neighboring coun-

ties.ss Although this argument has some

address the details of the necessary census tract
shifts, we cannot without risking loss of control
of the process, accommodate all other objec-

tions.

3f. The counties surrounding Cook-I-ake,
McHenry, Kane, DuPage and Will Counties---are

commonly referred to as the collar counties'

Eleven Senate districts and fifteen House dis'
tricts include areas both within and without the

City of Chicago and are thus denominated as

o,rirlap districts. Chicago residents account for

-or. ih", 50% of the population in nine of
these Senate districts. Se'ven legislative districts
overlap between Cook, Will, l-ake and DuPage

Counties.

55. Most of the examples relied upon by the

plaintiffs compare the inlerests of voters in the

collar countiei to tlre interests of voters in Chi-

cago and in Cook County. Plaintiffs also nole

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.RYBICKI v. STATE BD. OF ELE(IIONS OF STATE OF ILL.
I Clte u J7{ FSupp. tlEA (l9t l)

1099

force, plaintiffs have not cited any legal 92 S.Ct. 2460, 82 LlEd.zd 806 (1972), and
authori$ which would require (or autho the Democratic C,ommission members re.7
rize) us to invalidate the Commission Plan lied on that decision when they drafted
on such a ground.s In fact, the 1970 llli- their plan. Cf. In re lllinois Congression-
nois C.onstitution did not reenact those pro al Districts Reapportionment Cases, No. "
visions of the 1870 Constitution that re 81 C 3915, slip op. at 24-25 (N.D.Ill. Nov.
quired districts outside Cook County to "be 23, 1981), affd sub nom. McClory o. Otto,
bounded by county lines unless the popula- 454 U.S. 1130, 102 S.Ct.985, 71L.Ed.zd2U
tion of any county entitled it to more than (1982) (approving Congressional redistrict-
one representative district." Art. IV, 5 7, ing that creates districts which overlap be.
Ill. Corxt., (1970) (repealed).5? Moreover, tween Chicago and suburbs).Et Thus, ,rre
districts that overlap between Chicago and are unwilling to condemn the Commission
suburban Cook County were approved by Plan merely because it fractures a number
the Illinois Supreme Court in People er rel. of political subdivision lines or creates dis-
Scott a. Griaetti, 50 Ill.zd 156, 277 N.E.2d tricts that overlap between Chicago and its
881, 888 (1971), cert. denied,407 U.S. 921, surrounding suburbs.se

that Cook County and Chicago are treated dif-
f.erently under state law than other areas with
respect to real estate taxes, budgeting authority,
etc., thus indicating divergent interests between
Chicago and Cook County voters and other vot-
ers.

56. In S*o/zick v. State Electoral Board, 336
F.Supp. 839 (N.D.Ill.l97l), the court purported
to reject a redistricting plan because in an at-
tempt to create compact and contiguous dis-
tricts, it failed to respect political boundaries.
The statements made in Skolnick which subordi-
nate compactness to respect for political bound-
aries did not purport to interpret Illinois law.
As we discuss elsewhere, Illinois recently deem-
phasized the significance of political boundaries
while revitalizing the compactness standard in
*hrage. Moreover, the Skolnick opinion did
not purport to hold that preservation of tradi-
tional political boundaries was mandated by the
federal Constitution. Indeed, in a similar case
involving a challenge to the population devia-
tions of a state redistricting plan, the Supreme
Court also denied any special constitutional
privilege for political boundaries by noting that
"[r]ecognition that a state may properly seek to
protect the integrity of political subdivisions or
historical boundary lines permits no more than
'minor deviations' from the basic requirement
that legislative districts must be 'as nearly of
equal population as is practicable."' Connor v.

Finch,43t U.S. 407, 419, 97 S.Ct. 1828, 1836, 52
L.Ed.2d 465 (1977) (quoting Roman v. Sincock,
377 U.S. 695, 710, 84 S.Ct. t449, 1458, t2
L.Ed.2d 620 (1964)). We believe this principle
is also appropriate in an Equal Protection chal-
lenge alleging vote dilution as in this case.

57. The intent underlying this deletion was clear-
ly expressed by one of the drafters of the 1970
Constitution as follows: 'The least we can do is
not to mandate the legislature to follow munici-
pal boundaries, county boundaries, or others,

but to apportion this state as near as possible on
a basis of equal population." 4 Record ol ho-
ceedings, Si*th lllinois Constitutional Convention
2937 (1970) (remarks of Delegate Nicholson).

5E. The Illinois Supreme Court's most recent de-
cision in Schrage v. State Board ol Elections, SE

Ill.2d 87, 58 Ill.Dec. 451, 430 N.E.2d 483 (1981),
is not to the contrary. To be sure, in Schrage,
at 104, 58 Ill.Dec. 451, 430 N.E.2d 483, the court
noted that "'[i]ndiscriminate districting, with-
out regard for polirical subdivisions or natural
or historical boundary lines, may be little more
than an open invitation to partisan gerryman-
dering"' (quoting Reynolds v. Sims, 377 U.S.
533, 57U79, 84 S.Ct. 1362, 1390-91, 12 L.Ed.2d
506 (1964)). The challenged district in that
case-House District 89-involved the indis-
criminate disregard of political subdivision
boundaries, since that district fractured at least
six counties and numerous townships. But, nol-
withstanding its discussion of political bounda-
ries, it is also clear that the *hrage court was
primarily concerned with the compactness of
the district in question. Indeed, the court's stat-
ed reason for invalidating the Commission Plan
as to District 89 was not the fracturing of coun-
ty lines per se bul rather the production of a
noncompact district by fracturing. As previous-
ly noted, we have found no other districts in the
Commission Plan which violate the compact-
ness standard. We think it would be incorrect
to interpret the khrage language on fracturing
in a context llolated from the question of com-
pactness.

59. Witnesses for the Rybicki plaintiffs sharply
criticized the Commission Plan's apparent indis-
criminate fracturing of DuPage County, among
other collar counties. At the request of rhe
court during the trial, the Commission made
several changes in its Plan to accommodate
some of the objections of all plaintiff s, including
the Rybicki plaintiffs, in an effort to rearh a

i.I



,/
. 5?4 FEDERAL SUPPLE1ItrENT

,

1100

t3l 'The Rybicki'plaintiffs also allege

Oat- ttre Commission Plan'sr.bverlapping

Cti"agoltoUurban districts impermissibly

dilud the votes-of suburban residents'

if,"r. ou"tt"p districts were carefully de

"ign"a, 
pUiniifts contend, so that most of

tt-". .*t in a majority of Chicago resi-

dents.* The voting strength of the subur-

ban ,esidents of these districts is allegedly

aifrt"a because the districts are controlled

UV tf," majority Chicago voters and their

political organizations.6r

Although this argument has appeal' we

reiect it for two reasons-{ne grounded in
-Ji.u. 

the other in the Constitution' The
'Rybiciki plaintiffs' argument *'- b" :o
driced to'the simple proposition that the

Commission intentionally failed to increase

the numbe. of "suburban" districts 52 even

itorgt Chicago lost population and the

rrUriU. gained population during the

igzO'r. Tt 
" 

C-oulition Plan espoused by the

Rybicki plaintiffs would cure this alleged

ltiitmity-Uy reducing the number of over-

lap districts, thereby increasing the number

oi di"t"i.t" located wholly outside Chicago'

ihis strift would reduce the number of dis-

tricts "controlled" by Chicago voters' Of

course, at the heart of the Rybicki plain'

tiffs' claim seems to be the concept that

Chicago voters are the highly disciplined

"agen-L" of that city's political interests

linltuaing the interests of its dominant po-

iitlcat orlanizationsFand that these inter-

ests are in major part inimical to the inter-

ests of suburban voters' We think there

settlement. &e Court Exhibits lA' 2A and 2E

G"Jt"pp""i.g documents)' We are accepfing

)i"*-"Lin...i changes as they affect DuPage

i""t,i ,tJ the otheicollar counties' The sug-

i..ii"; itln. 
-Rvbicki 

plaintiffs' offer of Proof

Efi-;. Decem6er l1' l98l (in oppositio-n ro

il;;;il i;hibits), that the majoritv of the

;;-;;;, be allowed to draw the chicago

ii."i.i. *f,if. the Rybicki plaintiff.s be permit-

;;;-; 4."* all distiicts in the collar counties

[-, to riot"te the thrust of Illinois redistrict-

ili"'it"..a"... The defendant Commission

i *'"r,rJi ll-...*olled bv its majori t v' is- c harged

under Illinois law with responsibility lor reclts'

iricting the General Assembl-v-' We are also

;;;;fi.s the changes made b-v ,th" ,]11":'.
Court Eihibits in connection with the clarm: ol

;h.';';;-;;d Detvatte plaintifls \'\'c think

anv furthir changes are unnecessar'\' an(i \\'('trld

may be some reality to this concept al-

though the record is quite uninformativ-e on

the lubject in general' We also believe

that the concept may exaggerbte t}e sub-

missivenes. oi Chiogo voters and the

cross antagonism of City and suburban

i-nterests. It is not disputed that, on some

questions, some residents of Chicago may

s'uppo"t positions strongly in conflict with

those supported by their suburban counter-

"""tt. 
fiut to extrapolate from this modest

-assumption 
to a rule that Chicago residents

*ott U" excluded from any district inc-lud-

ing .oUr,tU"n residents is unsupported ei-

th-er by logic or by the record before us'

it" "*tt"t* 
parochialism in legislative dis-

iricting seemingly espoused by the Rybicki

olaintiffs is not required by law and has

some tendency to derogate the intelligence

and independinee of the average modern

uot".. We think this approach may be

somewhat more reflective of traditionally

iallowed concepts than of current reality'

Our conclusion is not at odds with the

Constitution. The Rybicki plaintiffs argue

that any dilution of the votes of suburban

residenL by their inclusion in a Chicago

majority district violates the Equal Protec-

tion Ctause of the Fourteenth Amendment'

e,ttf,ougt acknowledging that no clearly

apposite Supreme Court (or even lower

"or*; 
pt"""aent directly supports this as-

sertion, the plaintiffs argue that the Colrt
has recognized that, in addition to racial or

ethnic minorities, political groups of any

nature may also assert a claim of unconsti-

not be congruent with the rest of the map as

modified.

60. &e nole 54 suPra'

6t. We may fairly characterize the evidence
--nresented 

u, t.i"l'.o'"ttning the partisan po.li-

iics of these geographic areas by noting that tne

-"t.iiiv "f 
v'oreis ieslding in Chicago *: D:i

ocrats while the majority of their suburban

.o,rnrerparts are Republicans' To the extent

iir'i'rl"itriffi claim 
-of suburban vote dilution

i.r"r'r.. p""i*n political concerns' r'r'e address

those concerns xPatatels-' infra'

62. ln the context of this discussion' we use the
-!".t*i. 

term "suburbs" to refer to Cook County

iutside Chicago, together with the collar coun'

ties.

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RYBTCKT v. STAIh nh. Or ELECTTONS OF STATE OF rLL. 1r0l
. CltcrrsTaFsupp. tlB2 (19t2)

tutional vote dilutiqf.B We decline to give eas of our heterogeneous cities and ur-
the dicta or separate opinio4s cited by ban areas. :

plaintifJs such an authoritative interpreta-
tion, especially in light of refusals by the
Supreme C,ourt to accord to political or
other identifiable groups the same Four-
teenth Amendment protections in the elec-

toral context as are aecorded to racial and
ethnic minorities. As Justice White, writ-
ing for the majority, explained in Whit-
comb a. Chavis, 403 U.S. 124, 91 S.Ct.
1858, 29 L.Ed.2d 363 (1971):

The District Court's holding, although
on the facts of this case limited to guar-
anteeing one racial g"oup representation,
is not easily contained. It is expressive
of the more general proposition that any
group with distinctive interests must be

represented in legislative halls if it is
numerous enough to command at least
one seat and represents a majority living
in an area sufficiently compact to consti-
tute a single-member district. This ap-
proaeh would make it difficult to reject
claims of Demoerats, Republicans, or
members of any political organization in
Marion County who live in what would
be safe districts in a single-member dis-
trict system but who in one year or an-

other, or year after year, are submerged
in a one-sided multlmember district vote.
There are also union oriented workers,
the university community, religious or
ethnic groups occupying identifiable ar-

53. Plaintiffs cite statements from Reytolds v.

Sims,377 U.S. 533, 56? n.43,84 S.Ct. 1362, 1384
n.43, 12 L.Ed.2d 506 (1964), and Dallas County
v. Reese,42l U.S. 477, 48O,95 S.Ct. 1706, 1707,
44 L.EA.2d 312 (1975) (per curiam), to indicate
that the Court has at least contemplated the
protection of suburbanites or other groups from
vote dilution. We note that the Court's state-
ments regarding "fast-moving suburban areas"
h Reytolds were expressly related to the possi-
bility of a suburban-based population equality
(i.e., one-person, one-vote) challenge. We do
not view this sort of claim as necessarily compa-
rable to a vote dilution claim such as the instant
one, which is unaccompanied by any contention
that districts do not contain equal population.
Similarly, the statement plaintiffs rely upon
from Rease was the Court's attempt to explain
that, under Dusch v. Davis, 387 U.S. 1 12, 87 S.Ct.
1554, l8 LEd.2d 656 (1967), a single-member

403 U.S. at 156, 91 S.Ct. at 18?5-76 (foot7
notes omitted). Accord, City of Mobile o.

Bolden, 446 U.S. 55, 78 n. 26, 100 S.Ct.
1490, 1506 n.26, 64 L.Ed.2d 47 (1980). ,See "
also Cotxitts a. City Council of Chicago,
466 F.2d 830, 844-45 (?th Cir.), cert. de-
nied, 409 U.S. 893, 93 S.Ct. 85, 84 L.Ed.zd
181 (1972); Graaes 7). Barlrcs, 343 F.Supp.
704,733-34 (W.D.Tex.1972), affd in part
and rea'd in part sub nom. White a. Re-
gester, 412 U.S. 755, 93 S.Ct. 2332, 37
L.Ed.2d 314 (1973).

C. Political Fairness

A great deal of testimony was introduced
at trial about the "political fairness" of the
Commission Plan (and the Coalition Plan as
well). The Rybicki piaintiffs argue that
"[u]nder the guise of political fairness, the
Democratic Commission members have
dra_wn a map which sacrifices compactness
and the integrity of political subdivisions
for the preservation of incumbency." Ry-
bicki Post Trial Brief at 26. We have
already concluded that the Commission
Plan neither lacks compactness nor imper-
missibly ignores the integrity of political
subdivisions. We now conclude that what
the Rybicki plaintiffs eall the Commission's
"overt political gerrymandering," Rybicki
Post Tlial Brief at 27, similarly does not
require us tp invalidate the Commission
Plan.

districting scheme actually operated on a coun-
ty-wide basis as an at-large districting scheme
which would "dilute" the votes of some city or
county residents by violating the population
equality principle.

The only other authorities cited by plaintiffs
for the proposition that suburbanites are pro-
tected from vote dilution are several opinions
by Justice Stevens, see City ol Mobile v. Bolden,
446 U.S.55,86, r00 S.Ct. 1490, 1509,64 L.Ed.2d
47 (t980) (Slbvens,'J., concurring in judgment);
Cousins v. City Council ol Chicago,466 F.2d 83O,

853 (7th Cir.) (Stevens, J., dissenting), cert. de-
nied, 409 u.s. 893, 93 S.Ct. 85, 34 L.Ed.2d r8l
(1972). Despite our great respect for the wis-
dom and insight of Justice Stevens, we note that
no olher Supreme Court Justice nor any other
judge of this circuil has followed Justice Stevens
and adopted his views on this subject.

a.._



//
674 FEDEBALSUPPLEMENT

[$ -:

1102

l4I' As a prerequisite to our consider&-
tion of this issue, we note tt}at partisan
politically-based challenges to redistricting
and reapportionrnent may be nonjusticiable.
See llMCA, Inc. o. Lomenzo,882 U.S. 4,
86 S.Ct. ?4, 15 L.Ed.zd 2 (per eluriam), affg
238 F.Supp. 916 (S.D.N.Y.7965); Cou"siw a.

City Council of Chicago, 466 F.zd 830,
81445 (?th Cir.), cert. dcnied, 409 U.S.
893, 93 S.Ct. 85, 34 L.Ed.2d 181 (1972).

Although plaintiffs seem ambivalent in
their approach to political end-result as a
test of fairness, they do contend that the
Democratic-controlled Commission improp
erly designed districts to maximize the
number of Democrats likely to be elected
to the lllinois General Assembly. Never-
theless, we consider the political fairness
issue here because it is inexorably linked to
the questions of compactness and the integ-
rity of political subdivision boundaries, see
Wendler a. Stone, 350 F.Supp. 838, 841
(S.D.Fla.19?2) (Roettger, J., dissenting),
and because the fairness question may re-
quire us to interpret the Court's decision in
Gaffney a. Cummings, 412 U.S. ?35, 93
s.ct. 2321, 37 L.Ed.2d 298 (1973).

t51 Plaintiffs' political fairness argu-
ment is premised upon the assertion that
the C,ommission members, although claim-
ing to have created a districting plan that
fairly represents the balance between Re-
publican and Democratic political strength
in Illinois, purposefully designed districts
that maximized Democratic voting strength
while minimizing and fracturing Republi-
can voting power. Plaintiffs also assert
that the C,ommission purposefully "gerry-
mandered" districts "to enhance the ability
of Democratic incumbents . . . to get re-
elected." Rybicki Post T?ial Brief at 27.

Aside from the questions of detailed
techniques, such as the alleged creation of
noncompact districts and the dilution of the
suburban vote (which we have discussed,
supra), plaintiffs apparently assert the
broader proposition that the end-result of
these efforts-an overall bias toward a
f)emocratic legislature-is constitutionally
impermissible. We note, however, that the
Rybicki plaintiffs never presented evidence

of what result in detail they expected fium
the C.ommission Map. The Commission, on
the other hand, did adduce sirch evidence.

We believe that plaintiffs' argument with
respect to the fairness of political result
misconstrues the Supreme Crcurt's decision
in Gaffney a. Cutnmings,4l2 U.S. ?35, 9g
S.Ct. 2321, 3? L.Ed.zd 298 (1973). \n Gaff-
ney, a state redistrieting plan was con-
sciously designed, in "the spirit of 'political
fairaess,'" to "achieve a rough approxima-
tion of the statewide political strengths of
the Democratic and Republican Parties.,'
412 U.S. at 752, 93 S.Ct. at 2331. The
challengers in Gaffney contended, how-
ever, that the plan was "nothing less than
a gigantic political gerrymander, invidious-
ly discriminatory under the Fourteenth
Amendment." 412 U.S. at 752,93 S.Ct. at
2331 (footnote omitted).

The Court, in rejecting the challengers'
claim, intimated that a plan, in order to
pass muster, did not necessarily have to be
wholly "politically fair" in end-result or
designed with total even-handedness to re-
flect the respective strengths of political
parties in a state. Even a plan that re
flected some partisan leanings on the part
of its drafters should not be invalidated
solely because the drafters of the plan
indulged some partisan political biases.
Based in part on Gaffney, we do not think
it the function of the courts to attempt to
totally depolitieize a process so inherently
political as districting. As Justice White,
speaking for the majority in Gaffney, ex-
plained:

We are quite unconvinced that the re
apportionment plan offered by the three.
member Board violated the Fourteenth
Amendment because it attempted to re
flect the relative strength of the parties
in locating and defining election districts.
It would be idle, we think, to contend
that any political €orwidbration taken
into account in fashioning a reappor-
tionment plan is sufficient to inaali-
date it. Our cases indicate quite the
contrary .... The very essence of dis-
tricting is to produce a different-a more
"politically fair"-result than would be

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RyBrcKr v. sTATd nn..or ET,ECIUONS OF STATE OF ILL. 1103
- Clt"t37'F3uPP'lllt2 (l$r)

reached with electiphs at large, in which Notwithstanding the asserted and appar-

the winning party would takB 100% of ent ststewide balance. between the two ma'

tlrelegislativeseats.Politicsandpotit-jorpartiesachieved!vtl"''"1:l]:t"s,t^tl,
ical lons;derations ore inseparable still contend that the commission rlan'

from districting and apporti-onment must fail because it was intentionally de'

The reatiiy is that d.istricting in- signed to produce in end-result a maximum ,
evitably nas aia is intend.ed to haae Democratic party representation' This ar-

substaitial politicat consequences' gument, however' does not' as we have

412 U.S. at 752-53,93 S'Ct. at 2331-32 suggested' rise to the level of a Constitu-

(emphasissupplied).tionalcontention.AlthoughtheCourtin
We believe that the Gaffney decision in Gaffiey refused to abstain entirely from

no sense mandates the invalidation of the judicial scrutiny of a state redistricting

CommissionPlansolelyonthegroundsplanmotivatedinpartbypoliticalfactors,
that Commission members considered parti- it'" Coo"t expressly limited the permissible

san political advantage when drafting the scope of the challenge to such a plan:

plan.s In any event the Commission What is done in so arranging for election'

presented extensive evidence to demon- or to achieve political ends or allocate

strate that its PIan, tit e tfre ptan approved political power' is not wholly exempt

in Gaffney, would achieve a fair represen- from judicial scrutiny under the Four-

tation of the two major parties in Illinois teenth Amendment' As we have indi-

based upon past election results. Indeed, cated, for example, multimember dis-

under the Commission Plan, the Republican tricts may be vulnerable' if racial or po-

party may control more relatively secure litical groups haae been fenced' out of

seats in the General Assembly than the the political process and their ttoting

Democratic party.6b cf. In re congres- strength inuidiously minimized' Be'

sional Districts Reapportionment Cases, yond this' we haoe not aentured far or

No.81C3915,slipop.at2l-22(N'D'In'attemptedtheimpossibletaskofertir-
Nov. 23, l98l), affd sub nom' McClory a' pating politics from what are the essen-

otto, 454 u.s. 1130, 102 s.ct. 985, ?l tialty political processes of the soaer'

L.Ed.2d 284 (1982) (6tto ptan preferable eign States'

because it approximates statewide political 412 U.S. at754,93 S'Ct' at2332 (emphasis

strength of two major partiesf. The supplied) (citations omitted)' It would be

Court's admonition in"Gffiey is, we be- 
"qu"tty 

absurd fo-r-us to attempt to take

Iieve, equally applicable 
"h"r"i "[4udi.iul the politics out of legislative redistricting'

interest should be at its lowest ebb when a Plaintiffs do not assert, nor can they as-

State purports fairly to al]ocate political sert, that the Democratic.control]ed Com.

power to the parties in accordance with mission attempted to fence out or invidious-

their voting strength and, within quite tol- ly minimize Republican voting strength in

erable limits, su"ce"d. in doing sL." 412 Iitinois' Similarly, we do not, in general'

U.S. at ?54, 93 S.Ct. at 2332. find fault with the efforts of Democratic

6l.Thisanalysisdoesnotapply,however,totheDemocratic,25,.firm',Republican,3,.soft',Re.
extent that purposeful diluiion of minority vol- publican ard l0 "swing" seats' Plaintiffs chal-

-g ;;rffif ;;ir,.r ,r,*'p""isan politiTi con- i.ng. th. defendants'use of this data' especiallv

cerns may be the issu-e 'S"t S"ttio" lll infro' the-results of trustee elections and of legislative

6s. Bascd upon an anarvsis or the re78 1nj,.re!o :F::l';,:'r,::*;\t:l'.t:::i*;l:L"."efii
election returns from the University ot llllnors Assembly. W. tot., however, that plaintiffs

I:'&.J,,:.Ji:l:.:y,#"*#,J,1l::"::,,ff"",:: ;;;;;"1 produced anv arternative svstematic

that its Plan will provide 39 "firm" Democratic' methodolngy for more accurately predicting

5 "soft" Democratic, 4l "firm" Republican, 10 election rJsults and' thus' we must accept the

"soft" Republican and 23 "swing" seats .in -the 
defendanrs' evidence as the most systematic

Illinois Housc or r."p..,"ntuii;; F"t the Illi' a\ailabi' '

nois Senalc, thc Commission estimates 21 "firm"

t
f.



1104

C,ommission members to protect incumbent
Democratic legislators. Indied, the Su-
preme C,ourt has expreasly indicated that a
redistricting planis not pcr se invalid mere-
ly because the drafters considered the ef-
fect of district lines on incumbents of ei-
ther party. See lYhite a. Weber,4f2 U.S.
?83, ?91, 93 S.Ct. 2349, 2352,3? L.Ed.zd
335 (19?3); Burns a. Richardsoa B8a U.S.
73, 89 n. 16, 86 S.Ct. l2fl6, tnb n. 16, t6
L.Ed.2d 376 (1966).66 Plaintiffs have not
persuaded us that attempts by the Demo-
cratic-controlled Commission to protect
some of its members or other Democratic
incumbents would invidiously minimize Re.
publican voting strength.

In sum, we do not believe that the role of
courts in addressing alleged unfairness to
political parties is equivalent to their role in
evaluating unfairness to racial and ethnic
minorities. The major political parties (ab-
sent "fencing out" or invidious minimiza-
tion) are presumed to have the capacity to
protect their own interests in the political
process. The federal courts are not in
business to compensate for political errors,
misfortunes or strokes of fate, which may
Ieave political parties at some temporary
disadvantage. The case for judicial action
on behalf of blacks and Hispanics is signifi-
cantly different.

We conclude that the Commission Plan is
not invalid because the Commission mem-
bers considered (within limits) partisan ad-
vantage when drawing district lines.6?

66. As will be indicated infra, hou,ever, the rela-
tionship of incumbency to race may call for
another analysis.

67. Somewhat related to their political fairness
conc€rns, the Rybicki plaintiffs also alleged that
the Democratic Commission members acted in
bad faith by failing to provide their Republican
counterparts with copies of the 'shapiro plan,,
sufficiently in advance of the October 2, 1981,
Commission meeting, at which the plan was
adopted by a 5 to 4 vote atong party lines. Even
if plaintiffs could clearly demonstrate some de.
gree of "bad faith" on the part of the Democrats,
we find that the plaintiffs have not shown that
the Republican Commission members were
prejudiced by the Democrats' conduct prior to
the adoption of the Shapiro PIan. By voting
unanimously againsl the Plan, the Republicans
merely did whal appeared to be inevitable un-

li':-
67I FEDEBAL.SUPPLEMENT

III. Complaint of the Crosby plain-
tifft: Dilution of Qlark Voting
Strength

The Croaby plaintiffs have alleged that
the Commission unconstitutionally discrimi-
nated against black voters in this redistrict-
ing by intentionally diluting their voting
strength and thereby denying them a fair
electoral opportunity. These plaintiffs con-
tend that the Commission Plan is a product
of racial gerrymandering designed to limit
the participation of blacks and Hispanics in
t}re Illinois electoral process and to protect
various white incumbents whose districts
have become, in the lg?Glg80 period,
heavily populated by blacks and Hispan-
ics.s According to the Crosbu plaintiffs,
the white leaders of the Chicago Democrat-
ic organization purposefully set out to un-
dermine the vote of the black electcrate
and were successful in their efforts under
the C,ommission Plan.ce

A. Fifi,eenth Amendment and the Vot-
ing Rights Act

16l First, we address the question
whether, if proven, plaintiffs' claims of
vote dilution are properly cognizable under
the Fifteenth as well as the Fourteenth
Amendment. Although an answer to this
question may not emerge with blinding
clarity from the Supreme Court's recent
decision in City of Mobile o. Bolden, 446
u.s. 55, 100 s.ct. 1490, 64 L.Dd.zd 47

der all the circumstances. It is not clear what
they might have done differently even if every
detail of the Democrats'plan had been delivered
to them weeks earlier.

6E. The allegations relating to the effect of the
Commission Plan on Hispanics are not con-
sidered in this section since the Hispanic plain-
tiffs reached a settlement of their claims with
the Commission after trial, as set forrh in the
Hispanic Settlement Agrreement and discussed
in Section [V of this opinion.

69. Although their complaint concerns all black
residents and voters in lllinois, the Crosby plain-
tiffs concentrated their effor1s at trial on those
portions of the Commission Plan containing
House or Senate districts located in whole or in
part within the Citl' of Chicago.



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tude,"' and that this constitutional prohibi-

tion "does not entail the right to have Ne'

gro candidates elected." 446 U'S' at 65,

ioo S.Ct. at 1498. Relying on the district

court's explicit finding "that Negroes in

Mobile 'register and vote without hin-

drance,'" the four-justice plurality held

that both "the District Court and the Court

of Appeals were in error in believing that

the appellants invaded the protection of

[the Fifteenth] Amendment in the present

iase." 446 U.S' at 65, 100 S'Ct' at 1498'70

We believe that under Bolden, plaintiffs'

allegations of racial gerrymandering in the

instant case, which do not implicate the

rights of minority group members to regis-

ter and vote without hindrance, but can

only entail the asserted right to have candi-

dates favored by the protected groups

elected, similarly fail to invade the province

of the Fifteenth Amendment.

70. Justices Stevens (446 U'S' at 8zt-85)' White
(446 U.S. at lO2) and Marshall (2t46 U'S' at

10445, 125-29) expressly stated that a vote dilu'
tion claim is cognizable under the Fifteenth

Amendment. Because Justices Brennan and

Blackmun did not articulate their view on this

queslion, the majority view is unknown' In

these circumstances, we believe it is appropriate

io 
"aopt 

the plurality view of -the 
Fifteenth

Amendmenl-i view which is also consistent

with our reading of prior appellate opinions on

this subject. See McMillan v' Escambia County'

638 F.2d 1239, 1243 n' 9 (5th Cit'\' cert' dls'

iioed s"t nom. City of Petuacola v' lenkins'

102 S.Ct. 17 (1981). Even if Justice Brennan's

opinion can be interpreted as an implicit ap-

proval of the application of the Fifteenth

imendment in vote dilution cases, this would

not alter the result we reach in the instanl case

(as lhc Croshv plaintiffs apparently argue)' It is
evident rhar onll' two Justices-Brennan and

Marshall--r,ilopt the "discriminatory impact"

E
D.

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1105 'F
RYBICKI v. STATE BD. OF ELECTTONS OF STATE OF ILL'

clrc rr 3710 FSiTPP' r@ (lg0a)

(1980), we'think that.decision furnishes tle Accordingly' the black plaintiffs in this

most suthoritative $uide to the matter. In eaae eannot Fecover under either the Fif-

Bold,eathe four pt,,,ality justies (Justices teent.h Amendment br under Section 2 of

Stcwart, Burger, powett and Rehnquist), in the Voting Rights Act' 42 U'S'C' S 19?3'

considering the constitutionality of the at- iiSZOl, wh]ch the Bolden C'ourt held to bd

large system of elections required by the equivalent in basic content and effect to

commission form of government in Mobile, the Fifteenth Amendment. City of Mobile ,

Alabama, held that the Fifteenth Amend- o' Bold'en' 446 U'S' at 60-61' 100 S'Ct' at

ment "prohibits only purposefully discrimi- 149f96; see McMillon tt' EscamAia Coun-

natory denial or abridgment by govern. ty, 638 F.2d 1239, |242 n.8 (5th Cir.), cert.

ment of the freedom to iot 'on acciunt of iismissed' 453 U'S' 946' 102 S'Ct' 1?' 69

"a"", 
color, or previous condition of servi- L'Ed'zd 1033 (1981)'

B. Fourteenth Amendment

The primary issue in this case is thus

whether the Crosby plaintiffs' vote dilution

claim entitles them to any relief under the

Equal Protection Clause of the Fourteenth

Amendment. Bolden, of course, held that
voting strength dilution challenges to legis-

lative apportionments "could violate the

Fourteenth Amendment if their purpose

were invidiously to minimize or cancel out

the voting potential of racial or ethnic mi-

norities." 446 U.S. at 66, 100 S'Ct' at

1499.?r The Bolden Court went on to hold

that, to sustain a voting strength dilution

claim, a "plaintiff must prove that the dis-

puted plan was 'conceived or operated as

[a] purposeful devic[e] to further racial " '

discrimination.'" 446 U.S. at 66, 1499

(quoting Whitcomb tt. Chattis,403 U'S' 124,

ras, gt s.ct. 1858, 1872, 29 L.Ed.zd 363

standard for a Fifteenth Amendment claim' tl46

U.S. at 94, l3G4l; Justice Stevens, although

accepting an "objective" approach, rejected any

acr<rrs-thi'boatd application of the discrimina-

tory impact standard, 446 U-S' at 8t-86, 90' But

five Justices-the plurality Justices, 446 U'S' at

63-65, and Justice White, 446 U'S' at 95, l0l-03

-expressly 
held that the Fifteenth Amendment

requires proof of discriminatory purpose or rn'

t.ni. th"t, even if we were to recognize plain-

tiffs' claims here under the Fifteenth Amend-

ment, we would apply the same standard--dis-
criminatory purposHs we do under the Four-

teenth Arqpndment, as discussed inlra

71. Sce also Cousins v. City Council of Chicago'

466 F.2d 830, 841 (7th Cir.), cert' denied, 48
U.S. 893, 93 S.Ct. 85, 34 L.Ed.2d 181 (1972)

(even though quantitative equality is preserved'

members of a racial or ethnic group are protect-

ed from invidious minimization of their voting

strengh).



1106

' .. r-,-" i,
/
574 FEDERAL SUPPLEMENT

(fg?f). Thus, we must detcrmine wtrither
plaintiffs here have,demonstrated th;a th;
C,ommission plan was purpnsefully de
signed to foster racial discriminatior. g6.
fore we make this determination, horu"u-"i,

^.:r"of 
preliminary questions concerning

the nature of evidence acceptable to provi
purposeful discrjmination and the appiopri_
ate burdens of proof must be 

"aai".rJ.l. Nature of Evidence and Burdens
of proof

I7l ln Bolden ,.[t]here were five clear
votes^(Stewart, Burger, powell, Rehnquist

1,ni s.!eve.ns: JJ.) agaircr the'propoition
that discriminatory impact 

"ton" 
i. .uiii

cient in vote dilution eases.,, McMillan,
638 F.2d at L24B (emphasis supptied)- Ii
reaching this conclusion, the Bilien Coui
relied upon Washington a. Dauis,426 U.S.

?2_?_:96 
S.Ct. 2040, 48 L.Ed.2d 5e? (1ei6);

Village of Arlington Heights a. Ariopoi'_
l2y H-2usinO Deuetopment Corp., 429'U.S.
252; 97 S.Cr. 555, 50 L.Ed.2d 

'qio 
Q;lT:;

and Personnet Administrator of U*ri'-
ylyletts u. Feeney, 442 U.S. ZSO, gg i.Ci.
2282, 60 L.Ed.2d 820 (1929) as iliustrative
of the requirement that a plaintiff musi
demonstrate purposeful dlscrimination in
order to prevail under the Equal protection
Clause of the Fourteenth Amendment.
The Bolden plurality also relied o, p;;;;
ous electoral discrimination cases ,u.h 

",Whi_te u. Regester, 412 U.S. ?55, 93 S.CL
2332,37 L.Ed.2d 814 (19?g), and Whitcomb
a. Chayis, 408 U.S. LZ4, gt S.Ct. 18b8, ,9
L.Ed.2d 368 (19T1), to support their discrim_
inatory purpose rationale. We agree thai a
discriminatory purpose must be shown in
this case for plaintiffs to sustain a claim of
racial vote dilution violative of the Four_
teenth Amendment.

In .l/illage of Arlington Heights a. Met-
r.o3^o!i-tyn Housing Deaelopment Corp.,
12! U S 252, 266, e7 S.Ct: 555, 564, ;0
_LjP_d.2d 450 (1977), the Court ,ot"a if,ul
"[d]etermining whether invidious discrimi_
l"to.y purpose was a motivating factor
demands a sensitive inquiry into s'uch cir-
cumstantial and direct evidence of intent asma)' be available.,, The Fifth Circuitrecently summarized the evidentiary

sources alluded tn in Arlington Heights
which are useful for 

"rrerring tf,e eii"i-
ence of purposeful discrimineiion as fol-
lows:

(1) the historical background of the ac-
tion, particularly if a series of actions
have been taken for invidious pr"por"r;
12) 

ttl" specific sequence of euents tead-
mg up to the challenged action; (B) any
procedural departures from the ;;"*;
procedural sequence; (4) any substantive
departure from normal prl""au"", i.".
whether factors normally considered imlportant by the decision-maker strongly
favor a decision contrary to the Jne
reached; and (5) the legislative historyl
especially where contemporary rt t"_
ments by members of the decisionmaking
body exist.

Mc,Millan,688 F.2d at 1248.
The Supreme Court,s opinion in Arling_

ton Heights also demonstrates that in o-r_
der to establish a Fourteenth Amendment
violation, a plaintiff need not p"or" tt"i ii"
challenged action was motivated sot"ty-iy
a purpose to discriminate:

Rarely can it be said that a legislature or
administrative body operating under a
broad mandate made a decisio=n motivat_
ed solely by a single concern, or even
that a particular purpose was the .,domi-
nant" or "primarv', one. In fact, it is
because Iegislators and administ"ators
are properlv eoncerned with balancing
numerous competing considerations that
courts refrain from reviewing the merits
of- their decisions, absent a ihowing of
arbitrariness or irrationality. But ricial
discrimination is not just another eompet-
rng consrderation. When there is aproof that a discriminatory purpose
has been a motiaating forioi ln' tii
decisictn, this jud,icial - 

diference is ni
longer justi.fied.

V. illag-e of Arlington Heigt4ts u. Metropoli-
tan Hou.sing Deuelopmeni Corp.,42g U.S.at 26546, 9Z S.Ct. at 563_S4 (emphasis
supplied) (footnotes omitted).

_ 
Similarly, it seerns clear that Bolden

does not require that the purpose to ;;r:
criminate be the ozly underh ing pu"po."

-.selflEr.*---



.RYBICKI.V. STATE BD. OF ELECIIONS OF STATE OF ILL. ll0?
\ Cltcu5TlFSupp. l(tr2 (19E2)

*tB
it
fol-

ac-
)n8

88;

rd-
ny
nl
ve

D-

ly
rc

for the challenged redistrieting decisions.
The plurality opinion in Bolden relied upon
Arlingtnn Height^s and Davis for its inter-
pretation of the Fourteenth Amendment,
and as indicated above, Adington Heights
specifically rejects the "sole purpose" test.
Justice Stevens' apparent contrary view
garnered no support from other Justices.T2

The more challenging question is wheth-
er the analysis of lfl. Healthy City School
District Board of Education u. Doyle, 429
u.s. ?74, 9? S.Ct. 568, 50 L.Ed.zd 47r
(1977), is appropriately applied to mixed
motive redistricting cases such as the one
at bar. Under the principles of Mt.
Healthy (decided the same day as Arling-
ton Heights ), if plaintiffs are able to show
that a discriminatory purpose was one of
the factors in the redistricting, the burden
shifts to the defendant Commissioners to
demonstrate that the same redistricting
would have occurred even if a discriminato-
ry purpose had not motivated the Commis-
sioners. In the case at bar, the Crosby
plaintiffs argue vigorously that the Mt.
Healthy analysis is inappropriate while de-
fendants, relying on Giah.an o. llestera
Line Consolidated School District, 439
u.s. 410, 99 S.Ct. 693, 58 L.Ed.zd 619
(1979); Wren o. Jones, 635 F.zd 1277 (7th
Cir.1980); and Nekolny t:. Painte4 653
F.2d 1164 (7th Cir.r981), as well as Mt.
Healthy itself, argue with equal vigor that
the Mt. Healthy analysis applies.

Defendants further contend that the ap
plicable burden of proof in voting dilution
cases has been modified by the Supreme
C,ourt's recent decision in Teras Depo.rt-
ment of Community Affairs o. Burdine,
450 U.S.248, 101 S.Ct. 1089, 67 L.E,d.zd207
(1981). They argue that under Burdine,
once defendant Commissioners have artieu-
Iated a legitimate, nondiscriminatory rea-
son for the challenged redistricting plan,
the burden shifts back to plaintiffs to dem-

Zl. The concurring opinion of Justice Stevens in
Bolden, in which none of the other Justices
joined, apparently espoused the position that
only decisions which were "totally irrational or
entirely motivated by a desire to curtail the
political strengh of the minority" would violatc
the Fourteenth Amendment. 446 U.S. at 90, 100

onstrate that defendants' purported expla-
nation is merely a pretext for intentional,/
diserimination.

We agree that the principles of Mt.
Healthy are applicable to the instant case.
The Supreme C,ourt in Adington Heights
explicitly noted and approved the applica-
tion of the Mt. Healthy burden of proof
standard to raee discrimination claims:

Proof that the decision by the Village
was motivated in part by a racially dis-
criminatory purpose would not necessari-
ly have required invalidation of the ehal-
lenged decision. Such proof would, how-
ever, have shifted to the Village the bur-
den of establishing that the same deci-
sion would have resulted even had the
impermissible purpose not been con-
sidered. If this were established, the
complaining party in a case of this kind
no longer fairly could attribute the injury
complained of to improper consideration
of a discriminatory purpose. In such
circumstances, there would be no justifi-
cation for judicial interference with the
challenged decision. But in this ease re
spondenls failed to make the required
threshold showing. See Mt. Healthy
City Board of Education a. Doyle, post,

[429 U.S.] p.274 [97 S.Ct. 568, 50 L.Ed.zd
471).

429 U.S. at 210-71 n. 2L,97 S.Ct. at 566 n.
27, And although Arlington Heights is
not itself a vote dilution case, it furnishes a
controlling precedent for intentional dis-
crimination as a neeessary element of ra-
cial vote dilution. See City of Mobile a.

Bolden, 446 U.S. at 6G{8, 100 S.Ct. at
1499-1500.

Applying the Mt. Healthy analysis to the
instant case involves the following analyti-
cal steps. First, plaintiffs must establish a
prima facie tase of purposeful vote dilu-
tion under the principles established in
White o. Regester, Arlingt,on Heights and

S.Ct. al 1512. Concomitantly, Justice Stevens
also noled that decisions affecti;rg voting rights
could still be valid even if motivated in part by
"irrational or invidio',rs faclors." 446 U.S. at 91,
100 S.Ct. al 1512. No othr ' -lustice has, to our
knowledge, sto()d u'ith Justirt Stevens on this
interpretation of the tcual I',.()tcction Clausc.

Y,

F

s

t-

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"r

I

Ir-.



1108

Bolden. Assuming that plaintiffs are able
to make such s prima.facie showing, the
burden would then shift to the defendant
Commissioners to establish that the redis-
tricting in question _would have occurred
even absent the purpose to dilute minority
voting strength. Thus, following the
seheme of Wren a. Jones, 635 F.zd Lnl,
128f86 (?th Cir.1980), once plaintiffs have
demonstrated that racial discrimination
substantially influenced the redistricting
process, the defendant Commissioners
must persuade the court, by a preponder-
ance of the evidence, that they would have
arrived at the same decisions and adopted
the same redistricting scheme even absent
the prohibited racial motivation.

We acknowledge that once plaintiffs
have established a prima facie ease, lhe
Mt. Healthy analysis places upon defend-
ants the heavy burden of demonstrating
that the same redistricting process would
have occurred, even in the absence of any
prohibited motive. We also recognize that
in the context of very complex reapportion-
ment decisions the diseharge of such a bur-
den may be exceedingly difficult. But we
also believe that under Bolden, establish-
nrent by plaintiffs of their prima facie ease
is quite difficult. Therefore, we feel
strongly that onee plaintiffs have sustained
a prima facie claim, it is not unreasonable
to shift to defendants the burden of show-
ing that the same decision would have been
reached even absent the influence of any
discriminatory purpose.

We do not agree with the defendants'
further contention that the three-part bur-
den of proof test set forth in Teras Depart-
ment of Community Affairs a. Burdine,
450 U.S. 248,10t S.Ct. 1089, 67 L.Ed.zd 201
(198i), is applicable trr the instant case.
Burdine involved not a constitutional
mixed-motive question, but a claim of dis-
parate treatment under Title VII of the

73. Moreover, the Supreme Court in Burdine ex.
plicitly recognized that "the factual issues and
therefore the character of the evidence present-
ed, differ u'hen the plaintiff claims that a facial,
Iy neulral employment policl' has a discrimirra.
tory impacl on protected classes." ,150 L.S. at
252 n. 5, l0l S.Ct. at 1093 n. 5.

ozfinofin i. suPPLEMENT

.,r

I

Civil RighB Act bf 1964.?3 The three.part
burden of proof analysis articulated in
Burdine, although appropriate 'for as-

r eertaining the one "true reason" for a par-
ticular employment-related action, does not
deal with the problem of evaluating mixed-
motive decisions made by a multi-member
legislative or administrative body. In the
latter context, unlike in Burdine, the role
of plaintiffs' prima facie case is not to
"eliminate the most common nondiscrimina-
tory reasons for the plaintiff's rejection,"
450 U.S. at 254, 101 S.Ct. at 1094, but to
establish the influence of at least some
impermissible purpose in the decision-mak-
ing process. Once this has been estab-
lished, the judicial task becomes one of
determining whether the relevant state ac-
tors would have arrived at the same deci-
sion even absent the effect of that admit-
tedly improper purpose. We believe that
the two-part burden of proof test articulat-
ed in Mt. Healthy and Arlington Heights,
rather than the "pretext" analysis em-
ployed in Burdine, is most appropriate to
this task.

2. Eaidence of Purposeful Vote
Dilution on Chicago's South

and West Sides

t8l With respect to the Crosby plain-
tiffs' claims, we believe that purposeful
dilution of black voting strength, in several
significant instances, has been demonstrat-
ed in the instant case. First, under the
1980 census as applied to the 1971 Chicago
area legislative redistricting lines, blacks
constitute a majority in six Senate districts
(former districts 21, 22, 24, 26,28 and 29).

Under the 1980 census as applied to the
C,ommission Plan, blacks will constitute a
majority in only five Chicago area Senate
districts (Commission Senate Districts 9,
12, 13, 16 and 17). This simple statistic is
evidence of retrogression 7{ from which a
strong inference of a purpose to dilute may

74. Retrogression, in the contlxt of reapportion-
ment and redistricting, represen:s a lessening or
decrease in the voting strenglh of a cohesive
voting bloc (such as a racial group) measured
over time.



Fp.rt
din

RYBICKI v. S'TATE tsD. O{ ELECTIONS OF STATS OF ILL. f l09
' Gltc re t1l FSnpp, llB:! (19t2)

be drawn.?5 In a{dition, Dr. Amy Tsui, a Joyce's incumbency, was to dilute the vot-
sociologist and dlrnographer from the Uni- ing strength of tlre nearly ?3,fi)0 blacks
versity of Chicago, testified that in her who remained in'Commission Senate Dis-
opinien, implementation of the Commission trict 14 after the shift in populations. ,r{t
Plan would result in a lessening<r retro may, of course, be argued that this manipu-
gression<f the voting strength in Senate lation of racial populations in the district
districts presently held by Chicago area was accomplished for the purpose of mairl-
blacks under the 19?1 redistricting plan. taining the incumbency of a white Senator

More precise and identifiable indications
of a purpose to dilute may be found in the
actions of the redistricting Commissioners
with respect to Senate Districts 14 and 18

of the Commission Plan. Under the Com-
mission Plan, black voting strength in for-
mer Senate District 28 under the 1971 dis-

trict boundaries has been fractured by the
creation of Commission Senate District 14,

the district in which white incumbent Sena-
tor Jeremiah Joyce resides. Under 1970
census figures, District 28 was 73.8% white
and 21.6% black. Under 1980 census fig-
ures, the black population of District 28 is
now 106,830, making the district approxi-
mately 57.7% black and 39% white. To
reach the ideal population for a Senate
district, after the 1980 census, present Dis-
trict 28 had to be increased by approxi-
mately 8,000 persons.

The Commission, in the course of adding
the necessary 8,000 persons to District 28,

removed 34,000 blacks from that District
and added 42,000 whites, thereby redueing
the black population percentage in the new-
ly ereated Commission district ta 38%.76

The result of this shift in racial popula-
tions, apparently to preserve Senator

75. Sec City of Port Arthur v. United States, SlT
F.Supp. 987, 1022 (D.D.C.l98l) (adoption of an-
nexation plan which significantly diminishes
black voting strength evinces "invidious mo
tive"); Hale County v. United Stat*,496 F.Supp.
1206, 1218 (D.D.C.1980) (retrogressive effect of
changing to at-large voting system supports in-
ference of discriminatory purpose). Cl. Beer v.

united states, 425 u.s. 130, 141, 96 s.ct. 1357,
1363, 47 L.Ed.2d 629 (1976) (Voting tughts Act
prohibits reapportionments that "would lead to
a retrogression in the position of racial minori-
ties with respect to their effective exercise of the
elecloral franchise."); City ol Rome v. United
states, 446 U.S. 156, 185, 100 S.Cr. 1548, 1566,
64 L.E,d.2d 119 (1980) (same).

76. A comparison of racial population percent-
ages in former legislative districts (created in

lr-

and was not necessarily indicative of an
intent to discriminate against blacks gzo
blacks. We believe, however, that under
the peculiar circumstances of this case, the
requirements of incumbency are so closely
intertwined with the need for racial dilution
that an intent to maintain a safe, primarily
white, district for Senator Joyce is virtually
coterminous with a pu{pose to practice ra-
cial discrimination. Cf, McMillan a. Es-
cambia County, 638 F.zd 1239, 1245 (sth
Ci.), cert. dismi.ssed, 453 U.S. 946, 102
s.ct. 17, 69 L.Ed.zd 1033 (1981), ("[T]he
desire to retain one's incumbency zzoc-
companied bg other evidence ought not to
be equated with an intent to discriminate
against blacks quablacks.") (emphasis sup
plied).77

Similarly, black voting strength in for-
mer Senate District 30 under the 1971 dis-
trict boundaries has been diluted in the
course of creating C,ommission Senate Dis-
trict 18, the district in which white incum-
bent Senator Glenn Dawson resides. Un-
der 1970 census figures, District 30 was
73.2% white and 26.1% black. Under 1980

census figures District 30 would be 46%
white, 45.1%'black and 8.9% Hispanic. The

l97l) with percentages in the districts as re-
drawn by the Commission is pertinent parlicu-
larly because the drafters of the Commission's
Chicago area districts testified rhat they attempt-
ed to follow the l97l boundaries, readjusting
lines where necessary to add or subtract popula-
tion as mandated by the 1980 census.

7/. Other evidence of discriminatory intent is
abundant-here, thus distinguishing the instant
case fror.,:i McMiilan. As described belou', racial
population shifts, purportedly desigrred to pre-
serve white incumbencies, are evident in several
other Chicago districts. Moreover, black popu-
lation has been purposefully packed or frac-
tured in certain distrrcts, resulting in a dilution
of black voting strength.

' ts-
rPAr-
t Dot
L€d-
nber
r the
rule
tto
dn8-
oD,"
rt to
ome
nah-
t8b-
rof
| 8f-
leci-
mit-
;hat
dat-
Lrs.

tm-
tto

iin-
f,uI
ral
rt-
[re
rgo

t<s

Plc

B)

he
a

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9,

is
a

D

trl.
l)t
ve
td



l#

llt0
black population in District 80 is currently
85,997. To reach ideal popuLition for a
Senate district, after the 1980 census, Dis,
trict 30 had to for increased by approxi-
mately 2,0fi) persons.

In t}re course of adding the approximate-
ly 2,000 persons necessary to bring District
80 to ideal population, the Commission in-
creased the white population in what is
now Commission Senate District 18 by
nearly 30,000 and decreased the black pop
ulation by over 40,000 persons. Under the
Commission Plan, Commission Senate Dis-
trict 18 will be approximately 60.4% white,
23.4% black and 16.2% Hispanic. The vot-
ing strength of the 45,000 blacks left in
C,ommission Senate District 18 has thus
been dissipated. As explained earlier, we
believe that these shifts in racial popula-
tion, even if undertaken for the immediate
purpose of providing a safe Senate seat for
white Senator Dawson, are so closely
linked to a desire to minimize black voting
strength that they constitute strong evi-
dence of a discriminatory purpose.?E

Much of the black population that was
formerly in the districts of Senators Joyce
and Dawson has been moved into a new
district, Commission Senate District 1?,
which replaces former Senate District 29
under the 1971 redistricting plan. Former
Senate District 29 was represented by
black Senator Charles Chew; he now re-
sides in Commission Senate District 16 to-
gether with blaek Senator James Taylor,

7E. The Commission's efforts designed lo save
the seats of white incumbents in Chicago, such
as Senator Dawson, can only be construed as
exercises in purposeful discrimination. Unlike
most effons to save the seats of incumbent
legislators, which can be explained by partisan
political concerns, partisan politics does not ex-
plain the Commission's actions in this case. Ir
is undisputed that the vast majority, if not all, of
the legislators likely to be elected from black
areas in Chicago will be Democrats, regardless
whether the candidate is white or black. Thus,
the Commission's preference for a white incum-
bent over a potentially black challenger seems
clearly to reflect racial rather than partisan po-
litical concerns.

79. Blacks comprise approximalely 85026 of the
population in Commission Senate Districr 17.

,
674 FEDERAL SUPPLEMENT

and there is no incumbent Senator in Die-
trict l7 under the C.ommiqiion plan.
Blacks are unnecessarily coneentrated in
Commission Senate District l?,?e and the
resultant "packing" of black votes wastee
such votes. See Beer a. United Stotes, 4ZE
U.S. 130, 154 n. 12, 96 S.Ct. 1BS?, lB?0 n.
12,47 L.Ed.2d 629 (19?G) (Marshall, J., dis-
senting) ("Is it not as common for minori-
ties to be gerrymandered into the same
district as into separate ones?',); Neoett a.
Sides, 571F.2d 209, 219 (sth Ci.tg,t8), cert.
denied, 446 U.S. 951, 100 S.Ct. 2916, 64
L.Ed.zd 807 (1980) ("compartmentalizing or
fencing out a group" constitutes uneonsti-
tutional gerrymandering). See also Note,
Constitutional Challenges to Gerryman-
ders, 45 U.Chi.L.Rev. 84b, 846 and n. g
(1978) ("concentrating a voting block into
one district of nearly unanimous opiniotr
. . . wastes" the votes of the supermajori-
ty). This unnecessary packing represents
intentional dilution of the black vote.8o

Again we believe that the immediate
purpose of these movements of racial popu-
lations was primarily to preserve the in-
cumbencies of two white Senators. But
this process was so intimately intertwined
with, and dependent on, racial discrimina-
tion and dilution of minority voting
strength that purposeful dilution has been
clearly demonstrated in the construction of
Commission Senate Districts 14, l? and
19.8r

E0. An intent ro dilure is also evidenr from the
gerrymandering that was necessary to creal.e
this district. In the course of creating this un-
usually-shaped district, the Commission
dropped a "finger" from the Chicago ponions of
the district lo reach into pan of the South Sub-
urban Cook County area where a substantial
blact population resides. While a small portion
of this black suburban area was fractured off
for inclusion in Senate District 17, the remain-
ing portions of this black population center
were further fractured betyeen two other sub-
urban Senate districts.

El. We recognize, of course, that under circum-
stances other than those presented in lhis case,
the adjustment of legislative districts to accom-
modate incumbencies would nol necessarily re-
presenl purposeful racial discrirnination. See
Burns v. Richard.son,384 U.S. 73, 89 & n. 16, g6



t
I
!
I
D

;
f

I

BYBICKI.v. srArE 
33;?,1,',*1?.S1?5:,o'srArE 

or ILL' 1111

onChicago,sl{estSidethcreisalsoDistrictl8.Thiscqrnmissiondraftingex.
evidence of racial ,ot" oiotion primarily "r"ir. ".rrttetl 

in a furthet packing of -

with respect to the uf""-f.- pop,riation in ui""t t"tirg strength. in Commiseion Sen-/

commission Senate District g, and also to a "t oitt l.i9, increasing the black popula-

degree in senate oirti"t" s and 10. Black tion to 81.4% of' the district's total popula- ,

voting strength in to'-"' Senate District tion' Some of those black voters whose

18underthe19?lredistrictingplanhasvoteswerenotwastedbybeingpackedinto
been fractured by the cieation 

"of 
commis- senate District I found that they were now

sion Senate District 8, in which white-in- fractured from the rest of the black com-

;;il;a senator Phlip 
'Ro;; 

""'ia"'' 
un- fn:y J*#tir',:T:?,"il.-T'ffi:"::

$::J,I',r"iT$rf"ffi; 
jfiHrT,::f *"inJ"i 'n""" 

i"ctuaea in iommission

Under 1980 census figures, the black popu- House District 19 (72'7% black)'

]ation of District 18 is 68,?63 or approxl. The Commission also apparently succeed.

mately 36.7% of tne nis#ct,s popot"ti*. ed in halting and reversing growing black

To reach iaeal poputaiion for a Senate Dis- uotirg strength in. another Senate district

trict under tt" co*mlr.ion plan, District repre-sented !l Yli* incumbents' Former

18hadtobeincreasedbyapproximatelys"nut.Districtlgunderthelg?0district
6,000 persons. In the-couise oi ir.r"ari.,g boundaries is represented by white senator

former District 18 by the required 6'000 Edwa'a Nedza' In 1980' the population

persons, the Commision aaaed nearly 56'- Ut""ftao*n in this district by race was 26%

000 whites to wt ai it now Commission *t'it"' ssZ black and 39% Hispanic' The

Senate District S, 
"oa '"*o;ed 

over 51'000 corespo"ding Commission Senate District

blacks.8z Commission S"'"tt District 8 is 6' in which wirite Se'nators Nezda and Ste-

nowabout86%white,9%blackandS%ve'Nast'nowlive'hasanincreasedwhite
Hispanic.s3 Ti,e ut"ci-'pipot"iio'*'no'ua population ': ^4'y" 

with a reduced black

from former senate iiiliiJrs did not' of iopot'ti* of 24% and an Hispanit popula-

course, disappear into li'it' "l'' The Com- tion of 29% '

missionhadtomaa,,ewdistrictfortheseTheCommissionpointswithsomepride
blacks, and they tounJ.uct a district close to commission senate District 10, a "major-

by-already f,""rify iopofut"a UV Ufa,cfs' ity minority" district e in which white in-

Former Senate Oi.t.iii'Zf, represented by cumbent Slnator John D'Arco resides' as

black senatp, prrr""n 
-coriir., 

contained, evidence that the commission did not dilute

under the 1gg0 census, a black majority of minority voting strength on the west side'

7g%. Thecommission'redrew this district, Althoulh the commission did not substan-

now denomirat a sJnut" District 9 under tially Jter either the population percent-

theCommissionPlan,byincludingsomeof"g"totthe-boundariesofthisdistriet'the
the blacks 

"".nouuJ',iio* 
for-", Senate c-om*isrior's actions with respect to Dis-

Commission Senate District 8 by asserting thal

t-fr"* ttiftt were made to comply-with the re-

;;:;;i ih" village of oak Park that it not be

fractured among two or more districts (as in the

;;r;;. ; his dissent, Judge Gr-adv .apparentlv
....ptt drfendants' explanation lor the conllgu-

.riir'" "f 
Senate District 18' Even if this expla-

""ii"" 
it to be accepted, we do not believe it is

;di;t.* to justifv ihe serious dilution of black

"oiing 
.,."tg,h. Such selective redistricting

*o"iE upp"ui to honor municipal interests in

p*f...nt. to racial vote dilution claims in a

way which we cannot accePt'

84. Commission Senate District l0 is 20026 white'

44% black and 35% HisPanic'

I
I
:

't

3

D

n

i-

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S.ct. 1286, 1295 & n. 16, 16 L'Ed'2d 375 (1966);'iriiii" 
". 

Escambia Countv' 638 F'11 
-17'3--al

;t;; i;ih cir.\, cerr. dbmissed,4s3 u's' e46' toz

S.Ct. 17, 6s L-Ed.2d 1033 (1981)'

82. This shift of blacks out of former Senate
"ti.i.i", ia uppu..ntly amounted to the removal

;i;;.t of the btack population from the south-

.."'p* .fifr"i s""ui" iistrict' Thus' this shift

oi 6r".t population and its replacement by

whites amounted to dilution to the extenl oI

;;;;t-";; House district (since the blacks were

.plit b",*."., Contrnis'ion districls)'

83. Defendants att('i:lr' r to cxplain the popula-
--iion ,f,ittt in f r';l '' \r ilale District l8 and

i.
I
6



ttlz
trict l0 do not neceasarily 

"onbrd,", 
,h"

pattcrn of purposeful votc dilution at the '

expense of black eitizens. The Commis-
sion's own witnesses readily admitted that
it was unlikely that a black or Hispanic
would be slated by the regular Democratic
organization in this district. Henee, it is
improbable that a black or Hispanic candi-
date could win an election against the
white incumbent even though whites
account for only 20% of the district's popu-
lation. The split "majority minority" sim-
ply could not be expeeted to elect a candi-
date from within its own ranks against an
organization-backed white ineumbent.ss

Thus, 158,129 of the approximately 300,-
000 blacks residing in Chicago's West Side
have been packed into Commission Senate
Distriet 9 consisting of two concentrated
Commission House Districts 1? and 18.

The remaining population has been frac-
tured, primarily among Commission House
Districts 11, 15 and 19. Under thb Com-
mission Plan, therefore, West Side blacks
will have a decisive majority only in Senate
Commission District 9 from which they will
presumably be able to elect a Senator of
their choice. They will have deeisive ma-
jorities only in House Districts 17, 18 and
19 from which they will presumably be able
to elect Representatives of their choice.
The net effect of these racial population
changes has been the purposeful dilution of
the black voting strength on the West Side
by at least one House District.86

3. Election Districts and Racially
Segregated Housing Patterrts

Plaintiffs also argue strenuously that the
boundary lines for Commission House Dis-
tricts 1? and 18 on the West Side and
Commission House Districts 23, U,25,31,
33 and 34 on the South Side trace in great

E5. Although we have clearly not included this
Senate district among those where blacks are
accorded a meaningful opportunity to elecl a
candidate of their choice, we retain the hope
thal under changed political circumstances, it
could provide an opportunity for a minorily'
candidale.

E6. As noted previously, we find insufficient an
apparent explanation that the various popul:,
tion shifts in the South and West Side disrrii:ts

6?4 FEDERAL SUPPLEMiNT

measure the boundaries of t}re heavy black
concentrations in Chicago. They'argue, iz-
ter alia, that these lines create a racially-
defined "wall" around the residentially-aeg-
regated black communities in Chicago,
thereby appearing to confer an official gov-
ernmental sanction on the residential racial
segregation which exists in Chicago.

At the outset, we reject plaintiffs sug-
gestion that any consideration of racial fac-
tors in the districting process automatically
constitutes invidious discrimination under
the Fourteenth Amendment. The Supreme
Court in United Jewish Organizations,
Inc. o. Carey,430 U.S. 144,97 S.Ct. 996, 51

L.Ed.2d 229 (1977) ("UJO ") explicitly held
that consideration of race in legislative ap-
portionment did not constitute a per se

violation of either the Fourteenth or the
Fifteenth Amendment. In UJO, a group of
Hasidic Jews challenged a New York reap-
portiohment plan which split the Hasidic
community among several state legislative
districts, on the ground that racial consid-
erations played a major role in the plan's
formulation and adoption. In upholding
the p)an, the Supreme Court stated:

Contrary to petitioners' first argument,
neither the Fourteenth nor the Fifteenth
Amendment mandates any per se rule
against using racial factors in districting
and apportionment. Nor is petitioners'
second argument valid. The permissible
use of raeial eriteria is not confined to
elim.inating the effects of past discrimi-
n.atory districting or apportionment.

430 U.S. at 161, 97 S.Ct. at 100? (emphasis

supplied).

Although the Court's opinion in UJO re-
lied in part on the fact that the New York
plan was adopted in order to comply with
the nondilution requirements of Section 5

were effected to preserve i?rcumbents' seats in
the General Assembly. Defendants have not
indicated hou' the purpose to preserve incum-
bencies can be unraveled from simple racial
motives. Thus, we hold that the defendants
have not discharged their burden of proof under
Mt. Healthy of demonstrating that similar dis-
trict lines u'ould har,e been drawn absent the
purposc to ciilutc thc black vote.



/a

RYBICKI v.

-of the 1965 Voting kights Act, at least five

Justices agrced that the challenged redis-

trictingalan, and the explicit consideration

of race it embodied, would be valid

"[w]hether or not the plan was authorized

by or was in compliance with 5 5 of the

Voting Rights Act." 430 U.S. at 165, 97

S.Ct. at 1009 (Opinion of White, J., joined

by Stevens, J. and Rehnquist, J.). See also

430 U.S. at 1?9, 9? S.Ct. at 101&-17 (Stew-

art, J., joined by Powell, J., concurring in

the judgment). As Justice Whit€ ex-

plained:
It is true that New York deliberately

increased the nonwhite majorities in cer-

tain districts in order to enhance the op
portunity for election of nonwhite repre-

sentatives from those districts. Never-

theless, there was no fencing out of the

white population from participation in

the political processes of the county, and

the plan did not minimize or unfairly
cancel out white voting strength.

430 U.S. at 165, 9? S.Ct. at 1010. Justice

Stewart in his concurring opinion invoked a

similar rationale:
The petitioners' contention is essentially

that racial awareness in legislative reap-

portionment is unconstitutional per se'

Acceptance of their position would mark

an egregious departure from the way

this Court has in the past analyzed the

constitutionality of claimed discrimina-

tion in dealing u'ith the elective franchise

on the basis of race.

The petitioners have made no showing

that a racial criterion was used as a basis

for denying them their right to vote, in

contravention of the Fifteenth Amend-

ment.... TheY have made no showing

E?. The 65% figure is a general guideline *'hich
has been used by the Department of Justice'

reapportionment experts and the courts as a

..iir.. of the minority population in a district
needed for minority voters to have a meaningful
opporrunity to elect a candidate of their choice'

Si Uitstsitppi t'. United States, 49O F'Supp 569

(n.O.C.tSZSl, afl'd' a44 U.S. 1050, l0o S'Ct' 994,

62 L.Ed.zd 739 (1980). The 650lo guideline'
which the Supreme Coun characterized as "rea-

sonable" in llnited lewbh Organizations' lnc' v'

Carey,43O U.S. 144, 164, 97 S.Ct' 996, 1009, 5l
L.Ed.2d 229 (1977), takes into account the

younger median population age and the lower

srfi; BD.'oF ELEcnoNS oF srATE oF ILL. llf S
Clt r. 37a FSuPP. lllt2 (19&t)

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that the redistricting scheme sr88 em-

ployed as part of a-"contrivance to segre
gate"; to minimize or sancel out the vot-,
ing strength of a minority class or inter'
est; or otherqrise to impair or burden the

opportunity of affected persons to partic- '
ipate in the political Process.

430 U.S. at 179, 9? S.Ct. at 1017.

The Supreme Court's analYsis in UJO

indicates that plaintiffs here must do more

than show that racial considerations have

played some role in the drawing of voting
lines on the South Side. In addition, they
must demonstrate that the state used its

redistricting authority as part of a "contri-
vance to segregate" or that the challenged

line or lines were designed to minimize or

dilute the voting strength of minority vot-

ers.

With respect to the Crosby plaintiffs'
aote dilutiot claims (which are the pri-

mary claims advanced in this case), the

most relevant district lines are the lines

drawn along the western edge of areas

that are 85% or more percent black on the

South Side of Chicago. The challenged

South Side district lines are pertinent here

insofar as they arguably contribute to the

"packing" of the black population' Plain-

tiffs' contention is that black voters are

"packed" into South Side Senate and House

districts, thus maintaining a situation

where blacks eomprise a very high percent-

age of the population in a number of these

districts. According to the "packing" theo

ry, black votes are "wasted" to the extent

that blaek population percentages greatly

exceed the percentage-suggested to be

657nei needed in voting districts to elect

voter registration and turnout of minority citi-
zens.

Testimonf in the instant case established that
Representaiive Madigan and his staff were

made awar[ of the 650/6 guideline by Mr' Brace,

their consultant, during the summer of 1981'

(Tr. ar 1957). At trial, witnesses for both sides

referred approvingly to the 5596 figure' (Tsui,

Tr. at 26-27; Neu'house, Tr. at 623; Hofeller,
Tr. at 403-O4; Brace, Tr' at 195G57)' More'
over, defendants'experl testified that the 6570

guideline had been used in statc reapportion-
ment and redistricting. (Bracc Tr' al 1957)'

The 6596 standard u'as also rcfc;'l.td t() in tlte



-1114

black candidates. Thus, the argumenf is
that if the South Side district linqp did not
correspond so closely to black tesidential
patterns, substantial white populations
from such areas aB Bridgeport, Canary-
ville, Marquette Park and Marquette Man-
or could be included as minorities in the
black-controlled districts, thereby increas-
ing the power of black votes. The Coali-
tion Plan presented by the plaintiffs illus-
trates this potential by creating more
South Side districts in which there is a
substantial white minority but where the
black percentage exceeds 657*the per-
centage presumed adequate for control.
Plaintiffs therefore argue that the South
Side district lines must be redrawn in order
to alleviate "packing" and its eoncomitant
vote dilution and, in effect, to increase
black voting power by including a more
surbstantial white population base in majori-
ty black districts.

As we have indicated, plaintiffs in this
case must demonstrate purposeful vote di-
Iution in order to prevail. City of Mobile a.

Bolden, 446 U.S. 55, 100 S.Ct. 1519, 64
L.Ed.2d 47 (1980). Moreover, we must be
convinced, under the Mt. Healthy standard,
that different electoral boundary lines
would have been drawn in the absence of a
discriminatory purpose. We find that the
evidence before us fails to establish a sub-

recent opinion of the three-judge court in In re
Illinois Congr*sional Disticts Reapportionment
Casas, No. 8l C 1395, slip op. at l9 (N.D.Ill. Nov.
23, 1981), a/f'd sub nom. McClory y. Otto, 454
u.s. 1130, 102 s.ct. 985, 71 L.Ed.2d 284 0982).

EE. Representative Madigan testified:
O. [By Mr. Harte] Former District 20 was
the first district drawn[?]
A. [By Rep. Madigan] The next district
drawn*was former*District 22. 

* *
I was also concerned that the 22nd District

not move west because, if it did, it u'ould
mean that it would be a majority black dis-
trict with black legislators expected to repre-
sent the communilies of Bridgeport and Cana-
ryville.

I have lived in Chicago all of my life. I
know of my knou,ledge that there are very
strong racial attitudes in the communities of
Bridgeport and Canary.ryille and lhat ir would
not be in mv opinion a u'ise judgment lcr

/
6VI FEDERAL EUPPLEMENT

stantial purpose on the part of the defend-
ants to dilute the black vote on the South
Side through "packing". Cf.. Canton

' Branch, N.A.A.C.P. u. City of Cdnton, 412
F.Supp. 859, 868 (S.D.Miss.1978). Even
had such a purpose been established, more-
over, we think that defendants have dem-
onstrated that the South Side districts
would have been drawn as they were even
absent any motive to dilute black voting
strength. See Mt. Healthy City School
District Board of Education o. Doyle, 42g
u.s. 274, 97 S.Ct. 568, 50 L.Ed.2d 4?1
(19?7).

Defendants explain the congruence of
electoral and racial boundaries on bases
other than those involving purposeful vote
dilution. For example, Representative Mi-
chael Madigan, who drew the districts, tes-
tified that he actively considered the inter-
ests of black Representatives in fashioning
the challenged South Side boundaries.8s In
addition, a number of black South Side
legislators testified that the inclusion of
neighboring white areas in their districts
would place them in political peril and
might lead to the nomination of a white in
the Democratic primary. Success in the
Democratic primary is tantamount to elec-
tion in both the predominantly black and
the predominantly white districts in this
area.8e Some of these black legislators

cause this majority black district to include
parts of these lwo communities. Therefore-
Q. Excuse me.

Have you consulted u'ith the black legisla-
tors in that regard also?
A. Yes, I had, and, in particular, with regard
to this district; this is the district that had
been represented by former Representative
Davis, who at this time was serving as a mem-
ber of the reapportionment commission. He
and I specifically discussed the abilitS, of a
black representative to represent the people of
Bridgeport. And it was his judgment that it
would not be wise to have a majority black
district include part of Bridgeport.

Tr. at 1376-78 
.

89. On the West Side, the Commission has put
white voters from census tracts in Cicero into
the heavily black Commission House Districts
17 and 18. The Crosby plaintiffs contend this is
inconsistenl with the Commission's failure or
refusal to put somewhat similar u'hite census
tracts into the South Side districts. Although

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RYBICKI V. STAm BD. OT' ELECUONS OF STATE OF ILL.
Clrc u 57{ FSupp. lflU (I9t2)

elso t€stified to the-difficulty or impossibili- U.S. 915, 101 S.Ct., 339, 66 L.Ed.zd f62
ty of tlreir campaigiring effectively in adja- (1980), opinion reinstatcd., 664 F.2d f069
cent white neighborhoods, and some testi- (?th Cir.l981). Obviously, this court can--

fied th'at they did not believe they could not and does not condone racial animosity'
effectively represent white voters in adja- or ill-feeling between the races on the
cent areas.il The record also contains evi- South Side of Chicago. But we think it our
dence of racial animosity in white areas obligation to confine ttie present inquiries
such as Bridgeport and Canaryville, which to the issues of voting dilution which are
are adjacent to the "wall" separating black the basis of the complaint in this case. It
and white residential areas on the South is true that the "packing" of black votes on
Side.

Some of these reasons, of course, recog-

nize the existence of racial animus or ill-
feeling as a factor deterring the inclusion
of white areas in highly-concentrated black
districts. But such recognition by no
means establishes a purpose to dilute the
black vote. Cf. Johnson o. Board of Edu'
cation of Chicago, 604 F.2d 504 (?th Cir.
1979), aarated for possible mootness, 449

we do nol regard the argument as crucial, we
note that the white Cicero voters are apparently
predominantly Republican and, therefore, pre'
sumably incapable of winning control of a pre-
dominantly black district with a white candi-
date in the Democratic primary.

90. Black Representative Ethel Alexander testi'
fied:

Q. [Bv Mr. Harte] What about the areas of
Bridgeport, Canaryville, Marquette Park and
Mount Greenwood, Beverly, and here in He-
gewisch, do those give you concern as to risks
that could be entertained by black legislators
running in that area?
A. [By Rep. Alexander] There would defi-
nitely be some risk for any black candidate
that would be running in lhose areas.

Q. Is it, in your judgment, a legitimate con-
cern for persons drawing the line to remove
that risk?
A. I would hope so, yes.

Q. And you are familiar, are you not with
the ecological boundary, or the differences in
the communities, the white community, say,
in Bridgeport and the black community in the
east, Canaryville, and the rest of these, are
you no1?
A. Yes, I am.
Q. And would, in your judgment, there be an
antagonism which a white or black legislator
would have to deal with in those communi-
ties?
A. Yes, there would be.

A black legislator running in that kind of a
district, nine times out of 10, or a hundred
per cent, would not even have an opportunil;-
to campaign in that area.

He jusl wouldn't cross over and presenl
himself as a candidate in thosc kintis of areas.

ii.',t,: -

lt15

the South Side in highly concentrated black
areas tends to "waste" the black vote. But
it is also true that considerably greater
dilution of the black vote could presumably
have been achieved by "fracturing" parts
of the black areas into minority fragments
attached to neighboring white majority dis-
tricts, so that the vot€rs in these fragments
would lose the opportunity to elect a candi-
date of their choice.e'

It would be too volatile; conditions that his-
torically have been there have been shown
with regards to those areas.

Tt. at 1026-27.
Similarly, Black Representative Sylvester

Rhem testified:
O. [By Mr. Harre] Is there a concern with
you, Representative Rhem, as to winning in a
primary in thal area?
A. [By Rep. Rhem] It is my opinion that I
would not be able to win. I feel that the
districts hcre, the Bridgeport people vote as a
block. The problems are different than what
the blacks are, and I just could nol communi-
cate.
Q. There would be antagonism between the
two?t
A. In my opinion, yes.

Q. If you happened to be elected, would you
be able to s€n'e in your judgmenl the white
constituencv in that area?
A. I would do my best.

I would say that there would be some hostil-
ity toward me, but if I was fortunate enough
to u'in, I would do the best that I can.

Q. Were your views considered in the redis-
tricting process by the leadership?
A. Yes.

Tr. at 106l-62. &e also Tr. at 1621-28 (testimo-
ny of Corn&l Davis).

9t. Moreover, although not directly relevanl
here, it is arguable that the inclusion of areas
such as Bridgeport and Canaryville in highly
concentrated black voting districts might consti-
ture objectionable "fracturing" of the white vote.
See United Jewbh Organizatiotts, Inc. v. Carey,
430 ti.S 144, 97 S.Ct. 996, 51 L.E,d.2d 229
(197 t- J.

i.-.gE*.-.-



a-

674 FEDERAL SUPPLEMEI{Ttr16
At certain points in this litigation, plain-

tiffs have suggested that thqErawing of
district boundaries which track raeially segT

regated housing pgtterns tends to stigma-
tize racial minorities and to infringe upon
the associational rights of minority voters.
However, the reeord in this case is barren
of any indication that black voters on the
South Side are, or feel themselves to be,

stigmatized by the challenged electoral
boundaries, or that such voters would pre-

fer to be associated, for voting purposes,

with predominantly white neighborhoods
such as Bridgeport and Canaryville. In-
deed, the only testimony offered at trial
concerning the allegedly stigmatizing ef-
fects of South Side voting distriets was the
statement of Representative Carol Mose-

ley-Braun, a black legislator representing
portions of Hyde Park and the South Side

lakefront.e2 While we acknowledge the im-
portance of Representative Braun's con-

cerns, and have carefully considered her
testimony, we believe that in the particular

-context of redistricting, the desirability of
perfectly integrated voting districts must
be balanced against the ability of blacks

9!. Representative Braun testified in part as fol-
lows:

Q. [By Mr. Sullivan] Do you have any com-
ments that distinguish between the west and
the south sides of Chicago on the original
map?
A. [By Representative Braun] On the south
side the most stunning aspect, in my opinion,
of that map is the wall that it draws around
the black community. It segregales the black
community from the rest of Chicago.

Q. Mrs. Braun, in the testimony ihut hu,
been given in the coun there has been justifi
cation by several witnesses for reliance on the
Commission map on the grounds that there is
racial tension in some of these areas.

Have you heard that testimony?
A. I have.
Q. Do you wish to comment on that point to
the Court?
A. The history of this country has been
marked by racial tension. It is something
that people who are fair-minded, who believe
in democracy, who believe in integration,
have to get around. There was racial tension
in the South when the desegregation of the
buses occurred, desegregation of the lunch
counters and of the schools. There is still

and otler minority grcups to elect candi-
dates of their choice to the relevant politi-
cal bodies. In this regard, rryE note that
at-large voting systems, which theoretieally
offer the maximum degree of integration,
or "color-blindness," are generally regard-
ed as disadvantageous to minorities and
have been repeatedly attacked on the
ground that they unconstitutionally dilute
black voting strength.es Our point here is
not that racial polarization and stigma are
unimportant concerns, but merely that in
the particular context of legislative reap
portionment, a purely color-blind (or inte-
grationist) approach is likely to impede

rather than enhance minority participation
and effectiveness in the political process.

There is thus little or no direct evidence
in the reeord that the alleged South Side

"wall" was drawn for the purpose of dilut-
ing black voting strength. Certainly, we
find it more difficult ta infer such a pur-
pose from the existence of the line than to
infer such a purpose (as we have above)

from the manipulation of racial populations
in Commission Senate Districts 9, 14, 77

racial tension. There is still racial tension in
Chicago. But it seems to me that is a very
poor reason to segregate people and to have
an official imprimatur on the creation of a
legislative ghetto in Chicago, and that is what
this map, in my opinion, does.

Tr. at 2O58, 2062. Plaintiffs' other witnesses,
including Senator Richard Newhouse, testified
in general about the separation of black and
whire communities, indicating their preference
for a redistricting plan that would include more
white areas in majority black districts. Se€ Tr.
at 64647, 650-52, 666-75 (remarks of Sen.
Newhouse).

93. See, e.9., Cily o/ Mobile v. Bolden,446 U.S. 55,
100 S.Ct. 1519, 64 L.Ed.2d a7 (1980); Wite v.

Regester,4l2 U.S. 755, 93 S.Ct. 2332,37 L.Ed.2d
314 (1973); Whitcomb v. Chavis,4O3 U.S' 124,

91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Iadse v.

Button,639 F.2d 1358 (sth Cir.l98l), prob. iuris.
noted, 454 U.S. 811, 102 $.Ct. 86, 70 L.Ed.2d 80
(1981); McMillan v. Escambia County,638 F.2d
1239 (sth Cir.), cert. dbmbsed,453 U.S. 946, lO2
S.Ct. 17, 69 L.Ed.2d 1033 (1981); Aranda v. Van
Sickle, &O F.2d 1267 (9th Cir.1979), cert. denied,
446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 808
(1980). &e generally Bonaphel, Minoity Chal-
lenges to At-Large Electiotts: The Dilution hob'
lem, l0 Ga.L.Rev.353 (1976).

--rlga-,;4:* *.



/
RYBICKI v. STATE

lit' 'r '
;

,i
PD. OF ELECTIONS OF STATE OF ILL.
Crrc r. 5?a FSuPD. l(f,2 tl9E2)

lllT
end 18.9r Moreover, it seems clear to us In addition to their vote dilution argu-

that the challenged ti'stricts would have ment, we understand plaintiffs to contend

been drawn as they were withou; any ref- that the South Side diqtrict lines represent

erence to a purpose to dilute the black vote illegal racial gerrymandering of the sort

even if such a purpose were presumed or con-demned in-Gomillion o. Light1oot, ZOa /

proven. Nothing is before us to suggest U.S.339,81 S.Ct. l25,5L.Ed.zd 1f0 (1960)'

it "t tt 
" 

challenged electoral boundaries We recognize that allegations of racial ger-

&re, in and of themselves, invidiously dis- rymandering present a suspect circum-

criminatory. Apart from questions of dilu- stance requiring close judicial scrutiny, and

tion and to frt "* this record discloses, o that such gerrymandering, to the extent it
uote cast on the predominantty black exists, carries strong connotations of invidi-

South Side is precisety equal in weight to ous racial discrimination. As the Supreme

one cast in Bridgeport. Court has repeatedly indicated, however,

We also note that any adverse impaet of the gravamen of a racial gerrymandering

the South Side district lines from the point claim is the deliberate "fencing out" of a

of view of voting dilution would necessarily racial or ethnic minority-that is' the exclu-

be felt by the black community as a whole sion or "canceling out" of such group's

in the City of Chicago as a result of the political influence in the relevant govern-

"wasting" of votes which would otherwise mental unit' No such exclusionary pur-

be available to form additional black major- pose or effect has been demonstrated in

ity districts. Such a dilutive effect is thus the instant case'

not specific to blacks living near the al- Gomillion a. Lightfuot, 364 U.S. 339, 81

leged "wall," who in fact have the opportu- S.Ct. 125, 5 L.Ed.2d 110 (1960) presents the

nily to vote for and elect candidates of paradigmatic example of unconstitutional

their choice. Moreover, as suggested racial gerrymandering. ln Gomillion, Lhe

above, a more marked dilutive effect on the Alabama legislature had redrawn the

black vote would have been achieved by boundaries of the City of Tuskegee, alter-

running fingers from the whiLe communi- ing its shape from a square to a "strangely

ties to ihe West into the concentrated black irregular twenty-eight-sided figure'" 364

area so as to fracture the black vote and, in U.S. at 341. Plaintiffs in Gomillion al'

effect, cancel it out in majority white dis- leged that the redefined municipal bounda-

tricts. Such a configuration would no ries eliminated all but four or five of the

doubt suggest purposeful dilution of the city's 400 black voters without eliminating

black vote much more clearly than the ex- a single white voter. The Supreme Court

istence of a line which tracks, in part, the held that plaintiffs' allegations, if proven,

diyision between predominantly black and clearly established invidious racial discrimi-

predominantly white communities.es nation under the Fifteenth Amendment'$

9f. Comparable lines, conforming at least in part
to the boundaries of heary black concentra-
tions, have existed for many years antedating
the present redistricting'

95. Judge Grady, in finding the South Side dis-
tricl lines unconstitutional per se' prescribes as

a "remedy" the drawing of a whole new Chicago
map along "color-blind" lines. Since any hu'
ma-n redislricter is well aware of the racial
concentrations in the City, we can only suppose

that a racially "neutral" map would have to be

constructed bl' a computer. We have grave
doubts as to whether such a "color-blind" map
would be accepted as neutral bl anv of the
parties to this lawsuit.

Moreover, it seems to us thal anl i'orm of
"neutral" construction of compact dl:;r r;ts *'ill,

as a matter of mathematical probability, leave

the black South Side in just as "packed" a condi-
tion as exists under the Commission Plan. For
the electoral boundaries on the South Side did
not "create" the heavy black voting concentra-
tions; these lines merely stand in the way of
affirmative compensation for highly concentrat-
ed black populations through the inclusion of
neighboring white areas in the black-controlled
districts. !

96. Justice Whittaker, in a concurring opinion,
indicated that he would rest the Court's decision
not on the Fifteenth Amendment but on the
Equal Protection CIause of the Fourteenth
Amendment. Citing Brown v. Board ol Educa'
tion, 347 U.S. 483, 74 S.Ct 686, 98 L.Ed. 873
(195a), and Cooper v. Aaron, 358 U.S. l, 78 S'Ct.



,
6?4 FEDEBALSUPPLEMENT

@*
t
i

lllS
The Supreme Court s holding relied heavily
gn tL-" exclusionary aspeclpT Alabama,s
boundary rredrawing scheme:- -t-

The result of the Act is to deprive the
_N"g, petition6rs diseriminatorily of tf,"
benefits of residence in Tuskegee, inctua-
ing, inter alia, the right to *t i, ,"-
nicipal elections.

- 
These allegations, if proven would

abundantly establish that Act 140 was
not an ordinary geographic redistricting
measure even within familiar abuses of
gerrymandering. If these allegations
upon a trial remained uncontradicted or
unqualified, the conclusion would be irre-
sistible, tantamount for all practical pur-
poses to a mathematical demonstration,
that the legislature is solely concerneil
urith segregating white and colored. aot_
e.rs by feneing Negro citizens out of
town so as to depriae them of theii
pre-eristing munieipal aote.

casg of ghettoizing the Island of lflanhat_
tan'Bo as 'to create a white qiingressionat
district and a non-white CongiesJion"f iir-triict.'" 376 U.S. at 54, g4 S.Ct. at eOa.
Despite these allegations, and despite the
prcsentation of considerable evidence indi_
cating that racial factons trad played soml
rnole in the redistrieting process, both the
threejudge district court and the SupremJ
C,ourt_ rejected plaintiffs' constitutional alltack.r The Supreme Court, in its opinion.
expressly contrasted the invidious-raciai
gerrymandering at issue in Gomillion a.Ligltfoot, and emphasized the lack of an
exclusionary motive behind the New yoit<
state redistricting scheme:

- 
We accept the District Court's finding

that appellants have not shown that thE
challenged part of the New york Aci
was the product of a state contrivance to
segregate on the basis of race or place of
origin. That finding was cruciai to ap
pellants' case ,rs they presented it, and
for that reason their challenge cannot be
sustained.

364 U.S. at B4t, 81 S.Ct. at t}l (emphasis
supplied).

^ \t \riOht o. Rockefeilea 8?6 U.S. 52, 84
S.Ct. 603, t1 L.Ed.zd 512 (1964), plaintiffs
also alleged racial gerrymandering in the
drawing of election districts. In th*eir com_
plaint, the Wright plaintiffs claimed that a
N."y. I:r.\ state reapportionment statute,
which divided Manhattan into four eleetorai
districts, violated the Fourteenth and Fif_

P"rlh Amendments by ,.establish[ing] ina-
tional, discriminatory and unequal Colr-g"e._
sional Districts in the County of Ne* ?o.t
and ftyl segregat{ingl eligible voters by
:1""^ 1nd 

place of origin.,, 8Z6 U.S. at 5i,
84 S.Ct. at 604. Arguing before a three-
jud_ge district eourt, counsel for plaintiffs
in Wright further contended that ihe chal-
lenged redistricting scheme presented ,, ,a

376 U.S. at 58, 84 S.Ct. at 606.
The Supreme Court,s decision in United

!!*Xn Organizations, Inc. a. Carey, 480
u.s. 144, 9? S.Ct. ee6, 51 t.na.ii zzi
(1977), also underscores the element of ex_
clusion or "caneeling out,' naaurr"ry to
support a claim of unconstitutional racial
gerrymandering. The C,ourt in UJO held
that a redistrieting body may properly take
raee into aceount so long as its redistricting
plan does not "slur or stigma[ti ref,, an]
raeial group, and does not ,,fence out,' 

"racial or ethnic group from the political
process, or "minimize or unfairly cancel
o-ut" that group's voting strengih. 480
U.S. at t6S, 9? S.Ct. at 1009_10.et Similar_

l.+01, 3 L.Ed.2d 5 095g), Jusiice Whittaker srar- tionment scheme. &e Wright,376 U.S. at 5g, g4. ed rhat Atabama,s purpose .bJ 
.f.;;i"s N;; scr. .r eoe .il, gilrityBickerstaff, a*ppor,-crtrzens our of' Tuskegee poritics wi tan-ta. ,:::y"":.e iri"'-i$iorures: A Guide ror thefi.li !1Hi1{l,,'r"i_,r"j.segregation. 

364 u.s. te80\, 34 s*.r-j. rrri, Zaz aeso)..

e7.. rt mav have been significanr in-wrishr rhat "irrftf*#i:':x.";!r,i,'i.i.r3.3*;r11"#btack congressman Adim crayon p;;ii, ;; s.ct. 2916, u'i.ad.li"8o7 (1980) (unconstitu_represented the allegedly segregared Isrh con_ rional racial g...y;;;:, infringes right ro ef.gressional Disrricr in New.yorf- cir1, *ar pe, r".rir" J..roi"i p".ii.ii",i", ,,bv compartmen_mitted to intcrvene as a .det'endan 
-rupp"ii.g 

talizing ., r"r.*[ .ri 
"'group..or 

,,by.sricing 
upthe constitutionalitl' of tt.' ctr.tt.ng_J'upp",l a compacr minoriry,,); Robtn.sott r. Commission.

siifJftr-



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t

RYBICKI V. STATb BD. OF ELEC"IONS OF STATE OF ILL. tl19
ty, n Gaffuey ts. c4!nminss,nrrt;.';;:";T,ffiize or canoer out brack voting
93 S.Ct. 232L, 37 L.Ed.2d 298,(1973), the strength. :
supreme c'ourt recognized that redistrict- Moreover, we believe there is a finda-/ing plans may be vulnerable to constitu- *::;:;;^:::^- ;.^:-::^:_
l:^-^r 6*6^L ,,," *^,^,'].'--:^-,;^;"_:..: mental tenslon between plaintiffs' apparent;ffiffi;#"d#
have been fenced out of the political proc- _^;

held that racial bloc voting-the idea that black vot-

ess,,, 412 U.S. at ?54, 93 S.Ct. at 2332, or if go's south side' and the voting dilution '

district Iines have been used "to minimize theory which lies at the heart of plaintiffs'

or cancel out the voting strength of racial constitutional challenge in the instant case'

or political elements of th" uoting popula- cf' whitcomb tt' chattis, 403 u's' L24, 156

tion.,, 412 U.S. at 7BS,98 S.Ct. it-ZeZZ n. 34, 91 S.Ct. 1858, 1875 n. 34, 29 L.Ed.2d

(quoting Fortson p. Dorsey, B?9 U.S. 4BB, 363 (19?1). Voting dilution claims, includ-

nSS, A5 S.Ct. 4g8, b01, 18 L.Ed.2d 401 ing this one, are premised at least in part
(1965). Conversely, the Gaffney Cnurt on .tl:.frankly race consciols theory of

I
I

t
I

:

[C]ourts have [no] constitutional warrant ers will vote overwhelmingly for black can-

tolnvalidate "it"L 
plan, otherwise with- didates while white voters will support non-

in tolerable population limits, because it minority candidates' Indeed, the main fo
undertakes, not to minimize or eliminate cus of the crosby plaintiffs' claims here is

the political strength of any group or that there have been intentional efforts to

party, but to recognize it and, through minimize the impact of black bloc voting.

districting, provide a rough sort of pro- We thus find it difficult to accept plain-
portional representation in the legislative tiffs' argument that the drawing of district
halls of the State. lines which track, in some measure, the

412 U.S. at754,93 S.Ct. at2332. See also boundaries of raciallv identified communi-
United Jewish Organizatiow, Inc. u. Car- ties is tantamount to government spon-
ey, 430 U.S. at 168, 97 S.Ct. at 1011 sored segregation. The immediate effect

We believe that the instant case presents of the alleged districting "wall" in the in-

a situation much more akin to that in stant case is that black voters residing in

Wright and tlJO than to the situation in the vicinity of the wall will have the oppor-

Gomitlion u. Lightfuot. Unlike the bound- tunity to vote for and elect candidates of
ary adjustment in Gomillion, the South their choice-precisely the opportunity
Side redistricting at issue here was not sought in this case. Absent a showing of
designed to "fence out" blacks or to impede racial vote dilution or the fencing out of
their participation in Chicago politics. Nor minorit.v voters, we do not believe black
do the challenged district lines "slur or voters are being denied equal protection
stigmatize" a racial minority. Moreover, merely because their districts contain few
as was the case in Wright a. Rockefeller, white residents who may share the oppor-
black politicians representing the affected tunity to vote for the same legislative can-
districts have testified in support of the didates. As we emphasized earlier, under
challenged district lines and have ex- the Commission Plan, a vote cast on the
pressed their discomfort with plaintiffs' black South Side has precisely the same
proposed alternatives. See note 90 supra. weight as a vote cast in Bridgeport. We do
Under these circumstances, we do not be- not foreclose the possibility that under
Iieve that the South Side redistricting rep some circumitance's, the dra*'ing of elec-
resents either an unconstitutional racial tion district lines which track racially seg-
gerrymander or an impermissible attempt regated housing patterns could amount to

ers Court,505 F.2d 674,679 (5th Cir.1974) (ra-
cial gerrymander found where precinct lines
were drau,n so as to fragment an otherwise
"compact and cohesive" black voting communi-
t1'); Cotsr'ns v. City Council of Chicago, 466 F.2d

830, 841 (7th Cir.), cert. denied,409 U.S. 893, 93
S.Ct. 85, 34 L.Ed.2d 181 (1972) (members of
racial and ethnic groups constitutionally pro.
tected from purposeful maneuvers to deprive
them of political effectiveness).



\t.*;;
t

1120

state imposed segregation'and thus onsti-
tute invidious discrimination undEr the
Fourteenth Amendment. See Gomillion a.

Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5
L.Ed.zd 1r0 (1960); Wright o. Rockefeller,
376 U.S. 52,5H,2,84 S.Ct. 603, 60H8, 11

L.Ed.zd 512 (1964) (Douglas, J., dissenting).
We merely hold that such circumstances
have not been demonstrated in the instant
case.s

4. Other Euidence of Racial
Discrirnination

The Crosby plaintiffs presented other,
more general, evidence which they allege
demonstrates a discriminatory purpose on

the part of the Commission. We have con-

sidered this evidence, as summarized be-

low, but we do not find it dispositive in
resolving the issues presented in this case.

We think, however, that it is at least con-

sistent with our findings and with the rem-
edies we have provided.

First, the plaintiffs directed the court's
attention to their alternative Coalition Plan.
They suggest that the assertedly simple,
compact districts of the Coalition PIan pro-
vide a more meaningful opportunity for
black and Hispanic voters to elect candi-
dates of their choice than the "strange
configurations" charaeteristic of districts in
the Commission Plan. Although the exist-
ence of alternative patterns of redistricting
does not, standing alone, support an infer-
ence of discriminatory purpose, the Coali-
tion Plan does demonstrate the feasibility
of avoiding retrogression of black voting
strength through the creation of additional

99. Judge Grady's dissent fundamentally mis-
characterizes the thrust of our analysis. Our
opinion does not sanction state-imposed segre-
gation nor does it even remotely adopt some
"separate but better ofl'theory noted by Justice
Douglas in dissent in Wright r'. Rockefeller. The
portions of our opinion that Judge Grady quotes
prominently merely point out the obvious ten-
sion (if not contradiction) between recognizing
claims based on the dilution of racial bloc vot-
ing, on the one hand, and proposing a "color-
blind" redistricting process on the other. Like
the Supreme Court in Wright, we have specif-
ically held that the South Side voting districts
are nol "the product of a state contrivance to
segtregale." 376 U.S. at 58, 84 S.Ct. al 606.
Given this hr,lding. the post-Brort'n segregation

574 FEDERAL SUPPTEMENT

voting districts in which blacks will have a
meaningful opportunity to elect a candidate
of'their choice. The Coalition Plan is thus
of some, albeit limited, probative value in
establishing purposeful dilution of black
voting strength in at least some of the
Commission's districts. Cl Cou.sins a.

City Council of Chicago, 466 F.zd 830,

84H4 (?th Cir.), cert. denied, 409 U.S.
893, 93 S.Ct. 85, 34 L.Ed.2d 181 (19?2).

Plaintiffs also contend that the drafters'
use of anticipated ward boundaries in the
City of Chicago, which are alleged to be
diseriminatory, tend to establish intentional
racial discrimination. Since ward bounda-
ries have not been adjudicated to be dis-

criminatory, we cannot conclude that the
relation of legislative lines to ward lines is
any more than marginally relevant to racial
dilution by the legislative redistricting at
this time. Moreover, alleged retrogression
in the wards (which we understand to be a
plausible basis of challenge to them) does

not necessarily infect legislative districts,
since legislative district lines only partially
correspond to ward lines.

Plaintiffs have also cited as evidence of
purposeful dilution "[t]he pattern of the
racial discrimination in whieh the Demo-
cratic organization has long engaged in
Cook County, through the Chicago Police
Department, the Chicago Housing Authori-
ty, the Chicago Board of Education, the
Chicago Public Library, and the Chicago
Park District." Crosby Post Trial Brief at
3. Plaintiffs allege that the heads of each

of these governmental bodies is appointed

cases relied on by Judge Grady, all of which
involved the use of aa etplicit racial classifica-
rion by the government, are totally inapposite to
the instant case. We agree with Judge Grady
that explicit racial classifications are inherently
stigmatizing and need no evidentiary support.
However, we also believe, and the Supreme
Court has held, that state action which oz its
lace relies on criteria other thf,n race' (sucb as
neighborhood affiliation) requires a far more
sophisticated analysis. Compare Brown r,.

Board ol Education,349 U.S. 294,75 S.Ct. 753,
99 L.Ed. 1083 (1955), with Washington p. Davb,
426 U.S. 229, 96 S.Ct. 2040, 48 L.E,d.2d 597
(1976) and Village ol Arlington Heights v. Metro-
politan Housing Derelopmenr Corp., 429 U.S.
252, 97 S.Ct. 555, 50 L.Ed.2a 15t, (1977).

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,f,j
I

RYBICKIv.STATEBD.oFELECHoNSoFSTATEoFILL'1121
,Ctr! u 37t FSuPP' t962 (19t2)

by the Mayor. (and requim ir," *.n1or- 
'c,ourt 

ii Botdrn also rejecied the lower

rence of the Chicago CityCouncil), and that court's reliance on past official discrimina-

these offices t "r" 
tong\"", contolea uv tion as evidence of present discriminatory

if," O".o"otic organization' We' recog- intent

i.j" ffi-driov*J* or other discrimina- [T]he District Court and the Court of

tioo rr"" been alleged and/or proven in 'tipe"tt supported their conclusion by

rn"ry "r 
these City activities' we are also tlrawing upon the substantial history of

awaie that raciai prejudice continues to official racial discrimination in Alabama'

;;;ii"ta itself throughout the city of chi- But past discrimination cannot' in the

ogo 
"na 

in that City's Democratic organi- manner of original sin' condemn govern-

,"[ion, as well as throughout many other mental action that is not in itself unlaw-

r"rai"g organizations in Itlinois and the ful' The ultimate question remains

ii;ttJ stals (including the eourts)' we whether a discriminatory intent has-been

believe that these perceptions are worthy- proved in a given case' More distant

of consideration in evaluating the issue of instances of official discrimination in oth-

p"tp"."t.r dilution of voting strength' and er cases are of limited help in resolving

*" i"r. considered them fully in making that question.

our assessment. An analysis of the rele- 
446 U.S. at ?4, 100 S.Ct. at 1503.

vant Supreme Court precedents, however'

convinces us that such general evidence of The Supreme Court in Bolden was care-

discrimination, not directly related to elec- ful to distinguish it^s earlier decision in

toral participation, is, in ilelf, insufficient White a' Regester' 412 U'S' ?55' 93 S'Ct'

to establish purposeful vote dilution under 2332' 31 L'Ed'2d 314 (19?3)' in which the

the Fourteenth Amendment. court had held that multi-member legisla-

rn city or Mobite,. Botden446 u.s. 5b, iffirtt:'i:1,Tffi:ffi':;Ti::XffJ'"|]-

aisirict court's reliance on racial discrimina- which "the political

tion in municipal ".prov-"nt 
and in the r:::!:;rt#; ll .,o*ination und 

"1""-
dispensing of public services to support " il; were not equally open to participation
finiing that the City's at-large electoral 

UV ,f," group[s] in question." 446 U.S. at

ffiff; ^".?*Ti"Jfi-ii:ffi:'I:+ffiit ::+;n ';,'S.t "l;:f 
(quo'iing 412 u s

tection Clause proscribes purposeful racial

discriminationbyanyunitofstategovern.Inanalyzingtheproblemsbeforeitin
ment, the Supreme CouJpl"'tity n"onethe- White u' Regester' the Supreme Court un-

less held that ,,eviden.. of dl..iirnination derscored the district court's reference to

bywhiteofficials...isre]evantonlyasthehistoryofofficia]racialdiscrimination
themosttenuousund.i..o*.tantialeviinTexas,whichhadattimestouchedthe
dence of the constiiutional validity of the rights of Negroes. to register, vote, and

electoral system .,ri"r-*iLr, they attained oii',".*ire participate in democratic

their offices. 
,, 446 u.s. at ?4, 100 S.Ct. at processes. The district court had also

1503 (footnote omitted)' The Supreme found that

lfit.In.l4hitev'Regester,theSupremeCourttheplaintiffs,b.urdenwas..toproduceevidence
statedthatmulti.memberdistrictswererlolperto,,ppo'tfindings.thatthepoliticalprocesses
se unconstitutiorr"f, irl-r,oi.J tnat it had enie.- leading to nonination and election were not

tained claims ,h., -ri,l-nl.-ber districts were equall] open to particiPation ty the group .in

being used inriaio.,riv to."r..f .", or mini- qi.rtion-ttatitsmembersI,"d.i.=.TI"l^T,':l'
mize the 

'otlt'g 't'"n!h- "f-tutiat 
groups' The t'han did other residents in the district to partlcr-

coun stated rtrar to siriain such ciaimi,.it was f"i" in tr,. political Frocesses and to elect legis-

not enough tr'"t tt't-'"ti"i group allegedlv dis [uro" of their choice'" 412 u's' at 766' 93 s'ct'

".irninut.ia 
against had not held legislative seats at' 2339'

it--p."p"tti.. to its voting potential' Instead

I
i

L -".i,lads*



tt22 674 FEDERAI SUPPLEITTENT .
since 'Reconstruction days, tlrere had Although racism certainly exists in the
been only two Negroes in tre Dallas city of Chicago and in ttrai city s t;;
Qrnty delegation to the Texas House of , cratic organization, the record Lfo"" u"
Representatives and that these two were does not disclose a history of overt and
the only two Negroes ever slated by the systematic electoral discrimination 

"o*p"-Dallas C,ommittee for Responsible rable to that identified by the district court
Government (DCRG), a whitedominated in white a. Regester. For example, Illinois
organization that is in effective control has never had a white primary or a poll
of Democratic Party candidate slating in tax. Moreover, unlike the organization
Dallas C.ounty. previously in control of the Democratic

412 U.S. at ?66, 9B S.Ct. at 2889. More- party in Dallas County, the Democratic
over, the district court had noted that the organization in the City of Chicago depends
DCRG "did not need the support of the upon the support of the black community
Negro community to win elections in the to win elections and must, therefore, be at
county, and it dla not therefore exhibit least somewhat responsive to the needs and
good-faith concern for the political and oth- aspirations of black voters. The record in
er needs and aspirations of the Negro com- the instant case does not suggest that eaus-

munity." 412 il.S. at 76G4;7, gB S.Ct. at es helpful to blacks have.been ignored by
23Sil0 (footnote omitted). Finally, the the Democratic organization; in fact, jusl
district court had pointed out ,,that as the opposite seems to be the case' The

recently as 19?0 th; pCRGI was relying Democratic Party in Illinois has been a
upon 'racial campaign taetics in white pre- principal exponent of civil rights legislation

eincts to defeat candidates that had the and of social legislation important to
overwhelming support of the black eommu- 

blacks' It has also supported bilingual ed-

nity."' 412 u.s. at 767, g8 s.ct. at 2s40 
ucation' an issue of particular importance

(quoting 343 F.Supp. at 727). Based upon $.f,,}*il";,.",'*;:1r,n"",ii,"11,:ff1 ::this and other evidence the district eourt
had conctuded that ,,,the black community l",ilXffi,j"# :f i','.T;r:]r::LX.ffT;
has. been effectively excluded from partici- White a. Regester.pation in the Democratic primary selection
process,' and was therefore generally not On the other hand poor socioeconomic
permitted to enter into the potitiot p.L""r. conditions, unemploym-ent, low voter regis-
in a reliable and meaningfui manner.', 412 tration and the like afflict both the black
U.S. at 767, 93 S.Ct. at 2340 (quoting 348 and the Hispanic communities in Chicago to
F.Supp. at726). 

-- \r------6 v-v 
an ext€nt which may be eomparable to that

rhe district courr in white a. Resester i,ffi::A:# ,Y:':;"[ i;X1',fir,rT.: ;:l.reached similar conclusions with respect to eral evidence of racial discrimination in thethe Mexican-American community in Bexar City of Chicago supports our present find_County. Indeed, the district court found ings of purposeful vote dilution, we place
t'hat the typical Mexican-American suffered greater reliance on such specific factors asa cultural and language barrier that se- retrogression in black legislative represen_
verely impeded his participation in political tation and the manipulation of raciai popu-
life, and that this " 'cultural ineompatibility lations in the interest of white incumbents
" ' conjoined with the poll tax and the to demonstrate purposeful racial vote dilu-
most restrictive voter registration proce- tion than we do o, th" ggneral acts and
dures in the nation have operated to effec- attitudes of city and state officials.
tively deny Mexican-Americans access to
the political processes in Texas even longer Iv. Complaint of the Del.Valle plain-
than the Blacks were formerly denied ac- tiffs: Dilution of Hispanic Voting
cess to the white primary.' " 4lZ U.S. at Strength
768, 93 S.Ct. at 2340 (quoting 348 F.Supp. tgl At trial, the DelValle plaintiffs
at 731). presented evidence in an effort 

-to 
prou"

--- . ...'grt*



I\d)-.
/\_./- ".

RYBICKI V. STAIE BD. OF ELECTI T'IS OF STATE OF'ILL'
Clrc u !71 FSuPP' t{}B2 (t9t2)

that the Commission Purposefully diluted
Hispanie voting strength. There,are aP
proximately 425,000 Hispanics residing in

the City of Chicago, comprising 14% of the

City's total population. Although not near-

ly as concentrated as the blacks, the major-

ity of Chicago's Hispanic population reside

in two large aggregations, referred to at

trial as the Northwest Hispanic group (pri-

marily Puerlo Ricans residing in the West

Town and Humboldt Park neighborhoods)

and the Southwest Hispanic group (primari-

ly Mexican-Americans residing in the Pil-

sen and Little Village neighborhoods)'ror

The DelValle plaintiffs contended that al-

though Commissioner Murphy and Repre-

sentative Madigan were aware of these siz-

able Hispanic population cent€rs, they in-

tentionally fractured both Hispanic commu-

nities by dividing each community among

four separate legislative districts. Murphy
and Madigan justified their decision by

claiming that these districts were designed

to accommodate future growth and migra-

tion patterns which they allege are charac-

teristic of these Hispanic communities'

Commissioner Murphy analogized this jus-

tification to buying a snowsuit for a young

child-purehasing a suit several sizes larg-

er than the growing child's present dimen-

sions is warranted in order to allow the

child to grow into the suit and thus prolong

its use.

l0l. A third identifiable but much smaller His-
panic concentration exists on Chicago's far
Southeast Side.

lUl. No Hispanic has ever been elected to the

Illinois General Assembll'.

103. The parties' final Stipulation of Settlement
makes minor changes in these Court Exhibits in
order to correct an error appearing in the metes

and bounds descriptions of Representative Dis-

tricts 9 and 10. See l*tter to this coun from
William J. Harte (Jan. 7, 1982). The court ac-

cepts these changes as well as any other minor
adlustments which may be necessary to pul into
effect the terms of the Settlement Agreement'

Any further adjustments will be reported
promptly to the court, u'hich retains jurisdiction
for this purPose.

We also note that although the Hispanic Set-

tlemenl *'ill increase the tolal deviation for
Commission PIan House districts to approxi-
matell 2.4a'r, and lo appro>::n.iatell l'80lo for
Commtssion Senate districts, these deviations

The Hispanics challe4ged this explana'

tion by noting that no.other racial, ethnic

or political group was fitted to "snowsuit"
districts and that the Commission's actions /
served to exacerbate existing underrepre
sentation of Hispanic interests in the Gen-

eral Assembly.ro2 The DelValle plaintiffs
adduced considerable additional evidence

concerning further unsuccessful efforts to

alert the Commission to their needs,

changes in proposed districts to their detri-

ment based on incumbent and other influ-

ences, the depressed soeio-economic condi-

tion of their constitueney and various other
factors tending to show vote dilution.

During and after the trial and at the

urging of the court, representatives of the

Commission and the DelValle plaintiffs de-

veloped several alternative configurations
for the districts in the two Chieago Hispan-

ic communities. Negotiations between the

parties (fortified by instruetions from the

court as to modifications of the Commis-

sion Plan) eventually resulted in a settle-

ment proposal, embodied in Court Exhibits
?D and ?E, which was accepted by both the

Commission and the DelValle plaintiffs'lo3

Under the resulting Hispanic Settlement
)Agreement, Hispanics will constitute ap-

proximately 7l% of the population in Com-

mission House District 20, encompassing

the Pilsen and Little Village neighbor-

hoods.tor The DelValle plaintiffs believe

are rvell u,'ithin the guidelines approved by the

Supreme Court for both a court-developed plan,

,"i Corrro, t'. Finch,431 U.S. 407, 97 S'Ct' 1828,

52 L.Ed. 465 (1977), and a plan developed by the

state legislature or a constitutionally created

agency. See Mahan v. Hou'el!, 410 U'S' 315,

lla-2s,93 s.cl. 979, 986-87, 3s L.Ed.2d 320

( le73).

l0{. The Hispanic Settlement Agreement reads

in part as follows:
. . . the Hispanic plaintiffs believe that Senate

Districts 3,4,5,6, 10, ll and 18, and House

Districts 5,6.7,8,9, 10, ll, 12,20,21,22 and
35, as const-ituted in the [Settlement Agree-

ment], fairly and reasonably provide Hispan-

ics in those districts u'ith the right to partici-
pate and vote in electing representatives from
ihose districts to the Illinois General Assem-

bl1' without fear of dilution of their vote con-

sidering the 1980 Censu-< data and the geo
graphiC location of co:r: en:rations of Hispan-

ic population. .

t - -.--.,gaiEryt,

*.i\
lr23



ttz4 6?4 FEDdRAL .suppLnMrtrr

that Hispanic residents of*this area will
now have a meaningful opportunity to efect
a candidate of their choice to the Illinois
legislature. On- Chicago,s Northwest Side,
Hispanics will constitute approximately
63% of the population in Commission House
District g and 50% of the population in
Commission House District 10. C,ommis-
sion Senate District S, which encompasses
these two House districts, will eontain an
Hispanic population of approximatnly 56%.
The DelValle plaintiffs believe that the
Settlement Agreement similarly accords
Hispanics residing in this area the best
achievable opportunity to elect candidates
of their choice.

Under all the circumstances, we find that
the Hispanic Settlement Agreement is fair,
adequate and reasonable to Hispanics and
affords them a fair opportunity to elect
candidates of their choice to the General
Assembly. Under the Settlement Agree-
ment there is no purposeful dilution of the

- Hispanic vote. We further find that the
Hispanic Settlement is fair to other minori_
ties whose voting power is allegedly sub-
ject to dilution. In addirtion, we find that
the Settlement Agreement is fair to the
C,ommission and to all the voters of the
State of Illinois, and is in accordanee with
state and federal constitutional standards.
We therefore accept and approve those por-
tions of Court Exhibit plans 1A, ?D and ?E
(together with other supporting documents
that relate to redistricting of the House
Districts 9, 10 and 20 and related districts)
as a reasonable settlement of the DelValle
claims. The changes produced by the His-
panic Settlement Agreement have been in-

Because no class was certified in this case, the
parties needed only to secure the approval of
the named plaintiffs for this settlement. Attor_
neys for the DelValle plaintiffs diligently se_
cured such approval.

lO5. We are providing specific remedies de_
signed to cure specific unconstitutional featuresof the Commission plan. Contrary t" J;;;;
Grady's appaxent assertion, this is not ..affirm"a-
tive action," and we do not believe affirmative
action is mandated in these circumstances. &e
l,Uhitcomb y. Chavb,403 U.S. 124, 156_A, gt
S.Cr. 1858, tB75-Z7,29L.H,.2d 363 (1971). Nor

eorporated into the plan and Map for the
State of Illinois approved by this opinion.

V. Rernedy

tl0l We have held that the Commission
Plan unconstitutionally dilutes the voting
strength of blacks in two areas: first, in
Commission Senate Districts g and g (Com_
mission House Districts 15, l? and lg) on
Chieago's West Side; and second, in Com-
mission Senate Districts t4, t7 and 1g
(Commission House Distri cts 27, Zg, gB, g4,
35 and 36) on Chicago's South Side. Our
work is not finished, however, with this
finding of liability. In redistricting and
reapportionment cases, the Supreme Court
has instructed us to provide for a remedy
that cures the unconstitutional u.p".t oi"
redistrieting plan.tos See, e.g., Connor a.
Finch,431 U.S. 407, 4t4-15,9? S.Ct. lg2g,
1833-34, 52 L.Ed.Zd 465 (L977); Mahan a.
Howell, 410 U.S. B1S, Bg0-Bg, 99 S.Ct. 9?9,
987-89, 35 L.Ed.2d 820 (1928); Reynotds o.
Sims, 377 U.S. SBg, 584-87,84 S.Ct. 1862,
1393-94, 12 L.Ed.zd 806 (196a); Roman o.
Sincock, 372 U.S. 695, ?10-11, g4 S.Ct.
1449, 1458-59, 12 L.Ed.Zd 620 (1964). See
also Robir*on a. Commissioners Court,
505 F.2d 674 (sth Cir.l9?4); Graues o.
B_anteq 408 F.Supp. 1050 (W.D.Tex.19?6).
Because our finding of liability is limited to
two relatively small groups of districts, we
believe that the remedy should be designed
to ameliorate the effects of unconstitution-
al vote dilution in those two areas. Cf
White u. Regester, 412 U.S. 255, gB S.Ci.
2332, 37 L.Ed.2d 814 (19?g) (approving dis-

have we adopted- a theory of proportional repre_
sentation-, as Judge Grady initially suggests, but
is later forced to retreat from, in hii dissent.
Rather, our remedy comprts with the mandate
of the Supreme Court that once purposeful dis.
crimination has been found, a fedeial court is
authorized, under its inherent equitable powers,
to take race into account in fashioning an ap
propriate and effective remedy. See e_g., Millik-
11 u. Bradlet (Milliken.t , 433 U.S. 26i,2BO_88,
97 S.Cr. 2749, 2756-41, 53 L.Ed.2d laS ltsttS;
Swann v. Board o/ Education,402 U.S. t,2-5, Cl
S.Ct. 1267, 1280, 28 L.EA.2d s51 0971).



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BYBICKI v. STATE BD. OF ELECTIONS OF STATE OF ILL' 1125
*' Clte u 571 FSuPP' to{l:l (tg{xl)

trict court order that disestablislred multi- contours of the Plan which have passed our

member districts in two Texas counties).rffi close scrutiny.loE /
During the course of trial, the Commis- To recapitulate, the remedy we have

;'":?"fiX::",i,S:","i:T,,l,l"liiltil;ilTJf :,Till["ffi i]",H:]i'ii"i,l1li:
Court Exhibit Plans) to incorporate adjust- ing by one Senate 

"nd 
on" House district

ffi$#,,,ffi ":['ff]"!i[iff iil.''.ilt.lh*tf ;;::"*:.ff ;HiHiJl[]
ed at the districts we have now identified to elect a candidate of their choice to the
as the products of unconstitutional dilution Illinois General ,Assembly. We have also
of black voting strength.roT We believe approved as fair a Settlement Agreement
that the adjustments to the Commission that provides Hispanic voters residing on

Plan embodied in Court Exhibits 1A (South both the Northwest and Southwest Sides of
Side black objections), 2A (suburban objec- Chicago a meaningful opportunity to partic-
tions) and 7B (West Side black objections ipate in state electoral politics. Finally, we

and Hispanic settlement), together with have accepted certain modifications in the
their supporting documents, computer Map proffered by the Commission for the
printouts and metes and bounds descrip Chicago suburbs.
tions, adequately purge the Commission
plan of unconstitutional vote dilution and The court therefore enters the following

other errors without upsetting the broader ORDER:

106. We do not believe it appropriate to discard l0E. Several plaintiff and amicus parties have

theentireCommissionPlan'becausepartof itis urged us to adopt alternative plans that they

infected by an unconstitutional purpose to di- have formulated during the course of litiSation

lute. Such a broad remedy is appropriate when as remedies for various defects they or we per-

the unconstitutional element pervades the entire ceive in the Commission Plan. These parties

plan. Cl. Kirkpatrick v. Prebler,394 U.S. 526, have not cited any controlling authority that
'SS 

S.Ct.'1225,22 L.Ed.2d 519 (1969) (congres- would require us to adopt such alternative
sional districting statute for Missouri invalida- plans. We also note that, in view of the specific

ted in its entireiy since legislature relied on and relatively localized defects we have found,
inaccurate population data and creatcd largc adopting such an "outside" plan in its entirety
population deviations). would inappropriatelv preempt the redistricting

lo7. courr Exhibit lA correcred the substantia, ::f:i:'"J"'"'*:tX"*r?;:?:.'if',:,*1"['i:
vote dilution found in the Commission Plan by See White r Weber,4l2 U.S. 783,795,93 S.Ct.
reconfignring (among others) House Districts ?J48,2354, 37 L.E,d.2d 335 (1973); Whitcontb v.

33,34,35 and 36, resuhing in tu'o Senate dis- Chavb, 4O3 U.S. 124, l6(Xl, 9l S'Cl. t858,
tricts (District 17, u'ith a 700,6 black population, fi77-78, 29 L-Ed.2d 363 (1971); Reynolds t.
and District 18, with a 660lo black population) Sims, 377 U.S. 533, 584-87, 84 S.Ct. 1362, 1393-
where blacks will have a meaningful opportuni- 94, 12L.p,d.zd 506 (1964). We think it would be
ty to elect candidates of their choice, in contrast foolish to "dra*, our own map" or have a third
to orre Senale district under the original Com- party draw a map for us when we are able, b5,

mission Plan. Coun Exhibit 78 (which incorpo- addiessing instructions to the Commission, to
rates the Hispanic Settlement Agreement inte- eliminate the unconstitutional (and therefore
grated wrh Court Exhibit 58) reconfigures nu- unacceptable) fearures of the Commission Plan.

I::::, 3jl1?i J::JhllrE3.[:i1,Y.,.1 lffi:: x.fffi #ii1ff],ij,'H;]?tl
(District 9, with a 74o/o black population) and whicir was flled wtih rhe courl several weeks
four Housr- districts_(District 15 (660lo black), after trial as an offer of proof and the ,,plan"

District 17 (72oh black), District l8 (7701, black)
and District 19 (76o/oblack) where blacks have u submitted by the amicus Village of oak Park

meaningful opportunily to elect representatives shortl-v- before this opinion was issued' would

of their choice in contrasl ro onl' ore senate undoubtedly raise numerous problems if they

district and threeHousedistricrs under the orig- were to be explored in depth' we do not be-

inal commission Plan. Corrrr F-xhibir 2A, u'hich lieve such broadening of the issues is tolerable

has alreadv been integrattil r',lh these adiust' given the time constraints of this litigation and

menrs to the commissron I'la' rs also adopted the lack of findings by the court requiring a

in order, inter alia, to allcr..,' :irr ripple effect srveeping restructuring of the Commisslon Plan

of adjustments in thc Con:: . :. Piai. or its effective replacement'



lt26

t

674 FEDDR{L SUPPLEMEM

- TI" foregoing memorandurc opinion is
hereby adopted as findings "of iact and
conclusions of law in this proceeding. It is
therefore orderedthat the State Board of
Elections put into effect the Commission
Plan, as amended by Court Exhibits lA,
24,7B,7D and ?E.t0{ It is further orderej
that said plan of reapportionment govern
the election of Representatives 

"nd-S"nu_tors to the Illinois General Assembly, be-
ginning with the 1g82 primary and general
elections and continuing thereaftei until
these districts are again reapportioned in
aecordance with law.lto

BUA, District Judge (eoncurring):
I fully concur in Judge Cudahy,s well_

reasoned and exhaustive opinion. I write
specially merely to more fully respond to
Judge Grady's discussion of the setilement
agreement executed between the defend_
ants and the DelValle plaintiffs. As has
been repeatedly emphasized,,,[flederal
courts look with great favor upon the vol-
untary resolution of litigation through set_
tlement." Airline Steward, and. Stiu,ard,_
esses Assn. o. Trans World Airlines, 680
F.2d 1164, tl66 (?th Cir.l980), cert. grant-
ed, 450 U.S. 979, 101 S.Ct. 1511, 6Z L.Oa.Za
813 (1981); Metropolitan Housing Deuel-
opment Corp. a. Village of Arlington
Heights,6rG F.2d 1006, 1019 (?th Cir.lb80);
Airline Stewards and Steward,esses Assn'.
o. American Airlines,, S?g F.2d 960, 968
(?th Cir.19?8), cert. denied, 489 U.S. g?6, 99
S.Ct. 214, 58 L.Ed.zd 190 (19?9). ,,Settle-
ments are entered into because of ,the un-
certainties of outcome in litigation, as well
as the avoidanee of wasteful litigation and
expense . . .' " Airline Stewards, b?B F.2d

1t 963 (quoting Florida Trailer and
Equipment Co. u. Deal, Zg4 \.Zd 567, 57i
(5th Cir.1960)). Thus, in reviewing a settle_
ment agreement, a court .,should not at-
tempt to decide the merits of the controver_
sy .. . ftecause] [a]ny virtue which mav
reside in a compromise is based upon doin!
away with the effect of such a decision.i
P_gtterson a. Stoaall, 5ZB F.Zd t0g, il4 (?th
Cir.1976). It is with these considerations in
mind that this eourt has accepted the Del-
Valle settlement agreement.

GRADY, District Judge (eoncurring in
part and dissenting in part).

I join in the decision of the court which
finds against the Republican and suburban
(Rybicki) plaintiffs. I concur in part and
dissent in part as to the finding oi ti"lititj
to the black (Crosby) plaintiffs and disseni
from the remedy. I also dissent from the
approval of the Hispanic (DelValle) settle-
ment.

The Crosby Plaintffi
I agree with the majority that the Demo

crat members of the Commission intention_
ally diluted black voting strength in draw_
ing the boundaries for Senate bi.t"i.ts ta,
17 and 18. While the lines were drawn in
this manner to protect the ineumbencies of
white Senators Joyce and Dawson, this pro
tection 

.was accomplished by racial gerry-
mandering. The thinking of the Democrat
Commission members obviously was that
Senators Joyce and Dawson would have
better chanees for reelection if they ran in
districts in which whites rather than blacks
were the majority; the lines were drawn
according to this raeial hypothesis, giving
Dawson and Joyce each a gu"ry*"n-d"""i

lo!l' Metes and bounds descriptions for all final corrections or modifications not deemed appro.district boundaries are contained i" u a""um.ni priate.filed by the Commission on January l, f Sgi,;.
*ff:t#i"l#::*Tili::'J.:1,:1,*Xfj: ,0. Because or the derav sttributabre to this
errors). The-Commission is directed to contin- proceeding, an order was isiued on Januar5r 12,
ue to endeavor to work wrrh the ;;;;#;; 1982,- enjoining various statutory deadlinei im-
State Board of Elections to corrict any further posed by Illinois law on the eleciion procedures
minor errors in the Plan whi.h ;.tt;;;;;: preceding the scheduled primary election in
ere!, in order to render the Plan fuliv 

""*iri-t 
March. That order sets out a new timetable

with.this.opinion. Any furthe. coi.ecti;":-;; developed bl the State Board of Elections. We
moditications of an5'aspect of the Plan shall be approve the neu, timetable and order that it bepromptly reported to this court. This courr applied to the forthcoming primary election.shall retain juridiction ro aiopp."u" urr. ,r.t,



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white district andlacking the black popula- black vote *"r dpn" for the purpose of
tion into the grotesquely cohfigured Dis- denying black people a voice in the legisla-
trict 17. A clearer example of an intention- ture and in the councils of the Demoeratfc
al dilution of racial voting strength would Party. The major premise of the argument

RYBICKI

not be easy to find.

I am not persuaded that the same inten-
tional racial dilution has taken place on the
west side in regard to Senate Districts 8, I
and 10. The boundaries of Senate District
8, for instance, have been shown to be the
result of a request by the Village of Oak
Park that it be located entirely within one
district, without fracturing. The bounda-
ries of District 8 do indeed follow the mu-
nicipal boundary of Oak Park.

Because of the differences I have with
the majority concerning another aspect of
the liability question and the whole matter
of remedy, it is not necessary to extend
this opinion by further discussion of the
west side districts. Whether or not inten-
tional dilution has been shown there, the
west side districts drawn by the Commis-
sion would have to be set aside in my view
simply because I believe virtually the entire
map as it affects concentrations of black
residents in Chicago has tp be redrawn.

I agree with the majority that, except in
the case of Senate Districts 14, 17, and 18,

discussed supra, plaintiffs have failed to
show the boundary lines were drawn for
the purpose of diluting the black vote.
Plaintiffs elaim that the "wall" on the
South Side was drawn with the intention of
compacting the black population into the
least possible number of districts in which
their votes would elect candidates of their
choice. The Commission map, according to
plaintiffs, affords only five such districts.
Plaintiffs argue that this "dilution" of the

l. The Crosby complaint does not specifically
allege this theory and could be read as being
entirely confined to the question of dilution.
However, during the course of the trial, counsel
for plaintiffs made clear in argument that they
were objecting to the Commission plan on the
basis of racial stigma as well as dilution. If
there is any problem about the pleadings in this
regard, I would simply allow the Crosby plain-
tiffs to amend at this time to conform u,ith the
proof. Rule 15(b), Fed.R.Civ.P.

2. In addition to the testimony quoted in the
majority opinion, ante al lll4, Madigan testi-
fied on cross examination as follows:

4
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v. STATE BD. Or ELECIIONS OF STATE OF ILL. ll27
Cltc rl 37'l FSupp. l0t2 (19t2)

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is that if blacks had two more senatorial
districts, the interests of black peopli
which plaintiffs say are in conflict with the
interests of the Democratic leadership-
would be given priority by the candidates
elected. Plaintiffs' own evidence, if true,
indicates that this is at best a doubtful
proposition. Electoral districts which are
almost solidly black have traditionally sent
organization Democrats to the legislature.
Plaintiffs Newhouse and Braun, a black
Democratic senator and a black Democratic
representative respectively, both testified
that most of their black colleagues in the
legislature are under the thumb of the
Democratic leadership and do not adequate-
ly represent their black constituents.
These black legislators are said to be loyal,
hand-picked candidates the Democratic or-
ganization is able to slate and elect in the
solid black districts. If this is true, it is
difficult to see what the Democratic organi-
zation would have to lose from the creation
of two more black senatorial districts.

Plaintiffs have another objection to the
"wall," however, and unlike the majority, I
believe it is a valid one. Plaintiffs com-
plain that the black residents of the walled-
in districts are stigmatized by being sepa-
rated from the white population on the
basis of race.r

By the defendants' own admissions, the
boundaries of various districts in the City
of Chicago have been drawn along white
and black racial lines.2 White and black

BY MR. SULLIVAN:
Q We have established, I believe, that

there were accommodations made in respect
of the yieu' of Evanston, Oak Park, Hyde
Park, the Marovitz,/Netsch matter, and I think
you testified that you made certain accommo-
dations to the Bridgeport community in draw-
ing your map, is that right, and the Canary-
ville community and the Marquette Park com-
munity?

A It was my judgment that it would not be
wise to have majority black districts repre-
senting those communities.

i
,3I



1128

populations have been separated in air ef-
fort to'avoid raeial ttnsions and to facili-
tate the conduet of political lcampaigns.

Various witnesses testified, for instance,'
that if the neighborhoods of Bridgeport
and Cana4rville were combined in electoral
districts with the black neighborhoods to
the east of them, creating predominantly
black districts, it would be difficult for the
black candidates to carry on their cam-
paigns in the white neighborhoods. Sever-
al black incumbents testified they would
not attempt to campaign in such solid white
neighborhoods as Bridgeport and Canary-
ville. These were the main reasons given
for drawing the lines of the South Side
eleetoral districts almost precisely along
the boundaries of t}le areas shown on de-
mographic maps as containing the highest
concentrations of blaek population. The
metaphorie reference to a "wall,,is entirely
apt.3

The reasons assigned by the Commission
for the drawing of these racial lines do not
pass constitutional muster. With narrow
exceptions, the Constitution does not per-
mit state aetion based upon race. This
case is not within one of the narrow excep-
tions. I believe the lines drawn by the

Q Because of the racist attitude of the
white people living in those communities?

A Because of the strong racial feelings, it
would have been very difficuh for a black
p€rson to repres€nt the communities.

Q What community is this down here intn
A Cicero.
Q Aren't there hard feelings between the

I-awndale and the Cicero areas?
A There are some, and I specifically raised

that question with Representative Henry. He
told me thar-

Q Excuse me. I don't want to get into all
this hearsay on my cross-examination.

In any event, you accommodated those ra-
cial feelings of these communities, didn,t you?

A I don't knor,r' if your form of questioning
is correct.

Q You took them into consideration in
drawing your lines?

A Yes, I did.
Tr. l43l-1432.
Commissioner Murphy who, along with Madi-
gan, drew the lines in Chicago testified on cross.
examination as follows:

BY MR. COLEMAN:

/l
#l reonnll, suppLEMENT

iil ,."

Commission Jt i.t p,r"posefully Beparete
white from black voters on the soutl side
of Chicago sre constitutionally impermissi-
ble and must be voided. I reach this con-
clusion without regard to whether the lines
have the effect of "diluting" the blaek vote.

The majority concludes that, since the
evidence fails to show the wall is intention-
ally designed to dilute the black vote, it is
constitutionally permissible.r As I read the
majority opinion, my colleagues find no
fault with the idea of racial separation per
se and, indeed, express the view that it can
be a good thing under the circumstances of
this case. The majority sees an antago-
nism between the desire of blacks for racial
integration on the one hand and for bloc
voting strength on the other. The majority
reasons that if the blacks are put into
voting districts with whites they will Iose
their opportunity to elect candidates of
their choice; therefore, it is in the interest
of black voters that they be segregated
into districts of their own. In this connec-
tion, the majority cites the testimony of the
various black legislators that they would
not fare well in districts that were not
predominantly black.

Q Shall we call it a line around the major
black concentrations of population in the City
of Chicago? Would you accepr thar?

A Yes.
Q That there is a line that the Commission

draws around the black communitv and on
the South and West Sides? you agree with
that?

A Yes.
Q And one of the reasons why thal line

was drawn was because to the west of the line
on the South Side there are primarily white
communities that you believe have a commu_
nity of interest thal is separate from the black
communilies to the easl of the line, isn,t thar
correct?

A Partly.
Q And it was a concern of yours that if the

black populations to the easi and the whire
populations to the west were put into the
same districts, that there, might be friction.

A Yes.
Tr.1837-1838.

3. See map in the Appendix to this opinion.

{. In fact, the ultimate decision of the majority is
that the u'all is consritutionally required" as will
be demonstrated larer in this opinion.

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RYBICKI v. SJ,tlD BD. OF.ELEpTIONS OF STATE OF ILL.' Cttcer3zaF.8upp. rrc (r9S,t)

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This Argument of the majority misses
one of plaintiffs' lhain points: in order for
a black candidate to win, it is hot necessary
tlrat the distriet be 95 per cent black.
Therc can be a significant white population
and a blaek can still win. The evidence
shows tlrat there arne two black legislators
in lllinois---one of them from Chicage
who are regularly reelected from majority
white districts.s A district which is 65 per
cent black will, as all parties agree, afford
black voters a better than even chance of
electing a candidate of their choice. Thus,
the majority rationale for the wall-that it
is necessary or at least desirable from the
standpoint of enhancing the political
strength of blacks as a bloc-{oes not com-
port with the evidence and does not with-
stand analysis.

I would have trouble with the majority
theory even if I did believe that the elector-
al fortunes of blacks depend upon their
having House districts in which they com-
prise majorities of 94.83, 98.43, 98.44, g?.01

and 89.62 per cent (the percentages in
House Districts 23,24,31, 33 and 25). This
is because I believe stateenforced racial
separation cannot be tolerated ander any
circumstances, regardless of motive, even
if the motive is apparently benign. The
matter was well stated by Justice Douglas
in his dissenting opinion in Wright a. Rock-
efeller, 376 U.S. 52, 59-{7,84 S.Ct. 609,
606-11, 11 L.Ed.Zd 512 (1963), a case in
which certain intervenors sought to justify
the creation of a racially segregated con-
gressional district in the City of New York.
One of the intervenors was Adam Clayton
Powell, the black incumbent Congressman.
Justice Douglas described t}re argument of
the intervenors in this way:

The intervenors are persons who ap
parently have a vested interest in control
of the segregated Eighteenth District.
They and the State seem to support this
segregation not on the "separate but
equal" theory of Plessy o. Ferguson,
[163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed.

5. Rep. Jesse White (former District t3), a black,
is elected by a constituency in Chicago that is 73
per cent white. Downstate, Sen. Kenneth Hall
(former District 57), also a black, is elected by a

5il F-Stpp.-26

lt29
256) rupra, bui on another theory.
Their theory might be called the theory
of "separate bui better off,-a theory
that has been used before. A like arg6-
ment was made in Buchanan o. Worlcy,
%5 U.S. 60, 81, [88 S.Ct. 16, 20, 62 L.E4,
1491 in support of municipal segregation
of residential areas; iD District of Co-
lumbia a. Thornpson, S4G U.S. 100, [?B
S.Ct. 1007, 97 L.Ed. 14801 in support of
segregation in restaurants; in Watson a.
Mernphis,373 U.S. 526, [83 S.Ct. 1814, 10
L.Ed.zd 5291 in support of delayed inte-
gration of municipal parks. Indeed, the
final argument of John W. Davis for
South Carolina rn Broum o. Board of
Education, supra, ended with the
words, "The good is sometimes better
than the best."

The fact that Negro political leaders
find advantage in this nearly solid Negro
and Puerto Rican district is irrelevant to
our problem. Rotten borrughs were
long a curse of democratic processes.
Racial boroughs are also at war with
democratic standards.

376 U.S. at 62, U S.Ct. at 608. Unlike the
majority in the instant case, the majority in
Wright a. Rockefeller did not adopt the
"separate but better off" theory. The ba-
sis of the majority opinion in Wrighl which
upheld the challenged apportionment, was
that the lower court finding that the bound-
aries had not deliberately been drawn
along racial lines was not clearly errone-
ous.

Commenting on the general question of
racial bloe voting and goveramental action
desigaed to facilitate that practice, Justiee
Douglas concluded:

Racial electoral registers, like religious
ones, have no place in a society that
honors the Lincoln tradition-"of the
people, by the .people, for the people.,,
Here the individual is important, not his
race, his creed, or his color. The princi-
ple of equality is at war with the notion

constituency that is 6O per cent white. There
was also evidence that Sen. Earlean Collins (for-
mer District 2l) receives a substantial vote from
uhires in her Chicag<, disrrict.

E
E
I
L

* --&--



r;\..
r1

6?4 FEDERAL, SUPPLEMENT1130

that District A must be represented by a
Negto, as it is with the notion'that Dis-

trict B must be represented by a Cauca' I

sian, District C by-a Jew, District D by a

Catholie, and so on. Cf. Gray a- Sand-

ers,372 U.S. 368, 3?9 [83 S.Ct. 801, 808, I
L.Ed.zd 8211. The racial electoral regis'
ter system weights votes along one racial

line more heavily than it does other

votes. That system, by whatever name

it is called, is a divisive force in a commu-

nity, emphasizing differences between

candidates and voters that are irrelevant
in the eonstitutional sense. Of course

race, like religion, plays an important
role in the choices which individual vot-

ers make from among various candi-

dates. But government has no business

designing electoral districts along racial

or religious lines. We held in Akins a'

Teras, 325 U.S. 398, 403, [65 S'Ct' 1276'

1279, 89 L.Ed. 16921 and in Brown o'

Allen,344 U.S. 443, 471, [73 S.Ct' 397'

4L4, g7 L.Ed. 4691 that courts in seleeting

juries need not-indeed should not-give
- each jury list the proportional racial com-

plexion that the community has. If race

is not a proper criterion for drawing a

jury list, how can it be in designing an

electoral district?
It And.erson a. Martin,375 U'S' 399'

[84 S.Ct. 454, 11' L.Ed.2d 430] we barred

Louisiana from putting on a ballot oppo-

site a Negro candidate's name the word,

"Negro," as it was a device encouraging

raeial discrimination' When we said in

that case that a State may not encourage

its citizens "to vote for a candidate solely

on account of race," id.., at 404, [84 S'Ct'

at 456] I had assumed that we would

hold o fortiori that no State could make

an electoral district out of any raeial bloc

unless the electoral unit represented an

actual neighborhood. Yet we violate

that princiPle here.

When racial or religious lines are

drawn by the State, the multiraeial, mul-

tireligious communities that our Consti-

tution seeks to weld together as one be-

come separatist; antagonisms that relate

to race or to religion rather than to politi-

cal issues are generated; communities

f

geek not the best representative but the

best racial or religious partisan' Since

that system is at war with the democrat'

ic ideal, it should find no footing here'

"separate but equal" and "separate

but better off" have no mone place in

voting districts than they have in schools,

parks, railroad terminals, or any other
facility serving the Public.

3?6 U.S. at 66-67, 84 S.Ct. at 61f11'
Although Justice Douglas' views were

expressed in a dissenting opinion (eon-

curred in by Justiee Goldberg), there is no

reason to believe that those views would

not have been agreeable to the majority
had they found the district lines to have

been racially motivated, as is the case here,

and then reached the "separate but better

off" argument of the intervenors. It
seems to me that the above-quoted lan-

guage of Justiee Douglas, considered in

light of the authorities he cites, would re'
present the position of the Supreme Court

today.

If the case for racial segregation to en-

hance minority voting strength is weak, the

case for what I regard as the more promi-

nent motivation for the wall is even weak-

er. I am not persuaded that the Democrat

Commission members were motivated by a
desire to enhance black voting power' I
found equally unconvincing the rote re-

sponses given by the regular Democrat or-

ganization black legislators to leading

[uestion about whether they feared diffi-
culties in the primary if they were to run in

districts with less than 90 or 95 per cent

black population' In short, my view of the

evidence is that a desire to accommodate

black voters had little if anything to do

with the creation of the wall. The real

reason for the wall-and it was not con-

cealed, it was just denied the top billing it
deserved-was the desire of the Democrat

Commission members to ensure that the

white populations west of the wall would

continue to be represented by white legisla'

tors. This concern was based upon the

candidly expressed belief that the antago
nisms between whites and blacks make it
impracticable for any legislator, white or

*--.*r*-



W,;. ---

B

!
7

L

I
I
t
r

RyBrcKr v. sT.{TE SD. Or ELECuONS OF STATE OF ILL. . 
l13lCtr... S?a FSupp. ltf2 (t9t2)

btack,- to rlpresent [heir interests simulta- aeries of per curiomdecisions an immedi-
neously. As I understand- tlrg,opinion of ate end to segregatidn in all public places.
my colleagues, they regard this appr.ehen- Muir a. t ouisuitte park Thealrial Associ- Ision aB 6 proper basis for drawing district ation, 847 u.s. g?1, ?4 s.ct. ?gs, ;i;i;
Iines. I do not, for the reasons expressed l1l2 (1984), aacating 2oz F.zd z?s (6th
by Justice Douglas in wright a. Eockefer- cir.rgsg) (parks); Holmes a. city of Atiai_
ler, supra. If it is constitutionally permis- to. Bil u.S. azs, zs s.ct. 141, ro6 uoa. zzo
sible to draw segregated voting district (rgsb), reu,g 2zB F.2d 98 (Eth cir.l955) Golfboundaries on the theory that the races are courses); Moyo, of Baltimore ,. ootioi,
antagonistic, I fail to see why it would not 850 u.s. g77: 76 s.ct. rge, 100 L.Ed. ??;
be equally valid to draw segregated school (tgsg), affg 220 F.2d gg6 (4th cir.lgss)
attendance boundaries on the same theory. @ublic Ueactres); New Orleans park Im-
Yet, no one needs to be told that the latter proaement Association a. Detiege, gsg
proposition is clearly untenable. U.S. 54, ?9 S.Ct. 99, B L.Ed.2a aO (fSSA),

My colleagues also find the "wall" con- affg 252 F.zd 122 (5th Cir.1958) (parks);
stitutionally permissible since it does not State Athletic Commission a. Dorsey, BSg
stigmatize blacks. I believe the wall stig- U.S. 533, 79 S.Ct. 113?, 3 L.Ed.2d f02g
matizes blacks and restricts their freedom (1959), affg 168 F.Supp. f49 @.D.La.lgs8)
of political association. It is no answer to (athletic events); Turner a. City of Mem-
say, as the majority does, that "... the phis,369 U.S.350,82 S.Ct. 805, ? L.Ed.2d
record in this case is barren of any indica- 762 (1962), aacating 199 F.Supp. b8b (w.D.
tion tlrat black voters on the South Side Tenn.1961) (restaurants); Johnson o. Vir_
are, or feel themselves to be, stigmatized ginia, 3?3 U.S. 61, 88 S.Ct. 10b8, l0
by the challenge to the electoral bounda- L.Ed.2d 195 (1963) (courtroom seating);
ries, or that such voters would prefer to be schiro o. Bynum, 375 u.s. gg5, g4 s.Ct.
associated, for voting purposes, with pre- 452, 11 L.Ed.zd 4lZ (1964), affg ZLg
dominantly white neighborhoods such as F.Supp. 204 (E.D.L,a.lg6B) (audito"iums).
Bridgeport and Canaryville." O. 1116). In not one of these cases did the Supreme
First of all, as the majority points out, one Court or those lower cour[s that were af-
of the plaintiffs, Carol Mosely-Braun, did firmed find it necessary to explore the
testify that she regarded the segregation question whether blacks were stigmatized
as a stigma. Secondly, the attorneys for by the segregation. As Judge wisdom
the Crosby plaintiffs vehemently argued stated in Dorsey, segregation based on
that blacks were harmed by the segrega- race is "inherently discriminatory and a
!on. Most importantly, it is too late in the violation of the Equal Protection Clause of
day to require evidence in support of the the Fourteenth Amendment.,' 16g F.supp.
proposition that racial segregation is stig- at 151. Beyond statements such as these,
matizing. To say that it is not, or to re- the courts struck down all forms of segre
quire proof each time that it is, is to ignore gation on the basis of nothing more thJn athe last quarter century of precedents citation tn Brourn or cases relying on
starting with Brown a. Board of Educa- Brown. Thus, in segregation orlr,ltig-
tion, 349 u.s. 294, 7b s.ct. ?sB, 99 L.Ed. ma may be presumed.i ln tt" instani casI,
1083 (1955). In the decade following the defendants adduced no evidence to re-
Broum, the Supreme Court ordered in a but the presumption.?

6. {Tlhe essential issue [of stigma] is ooe of lact
-whether segregation involves special harm for
Negroes and therefore violates the constitution-
al standard of equality. But the basic factual
issue cannot be relitigated in each case u,hich 7.
involves the quesrion. [T]he relevance of thc
issues on which the social scientists u,rote and
testified is inescapable [and] leads to a gener.:l
constrtutional mling which will govern subsc

quent cases until the basic factual assumptions
can be shown to be wrong ....,, Honnold,
Book Review, 33 Ind.L.J. 612, 6l,t-6l5 (1958).

Unlike the majority, I do not believe that ra-
cial discrimination m'rst be "explicitly" provided
for in a stature before a presumption'oiinvalidi_
rv arraches. Ante at il gl. ln yick luo v.
Hopkins, ll8 U.S. 356,373,6 S.Ct. lo6,t, 1073, 30



,-
I#,ts-

,-,.,*.5?. FBDEBTL Sutfi,r!ilElma,jiz
Again, it should be noted t'hat the black

malJrities in the walled-in districts far ex'

ceed any percentage necessary-to P"Il'
L tn" Ll*tion of a black candidate' fie
majority does not even attempt to suggest

f,"* tf,l, blacks in, say, Senatte District 16-

witt Uenetit from being 98'69 per cent of
tt e etectorate in that district or how the

SO.SA p"t cent majority in District.lz Tt]
U" U"tt"t off than if they were only a ?0

per cent majority in that district' The ma'

ioriw savs-thai "... the desirability of

perflctfy- integrated voting districts- must

[e balanced against the ability of blacks

and other minority grcups to elect candi-

dates of their choice to the relevant politi-

cal bodies'" Ante at p. 1116' I doubt that

;y;;;-;"gres for iPerfectlY integrated

uoi"g dislricts." Given the segregated

housilng patterns in Chicago, there must in

tf," U"Jt of pl"ttt be some districts in which

blacks """ " 
high"t percentage than they

are in the city at large' "Perfect integra-

tion" is not the goal. The goal in this case

should be the avoidance of deliberate' gov-

ernmentally mandated segregation' Elen

if one were to accept the proposition that

such segregation is permissible to augment

blaek voting strength, segregation in ey.'

ir"s of thairequired to elect a black candi-

date would have to be justified on some

oif,", g"oond. The majority has suggested

no oth'", justification for the solid black

districts.
The courts have long recognized that the

freedom to associate with others to effect

political change, be it through joining a

loup that advocates a particular doctrine

i, ornp"ig.ring to elect a representative'-is

among'the highest values protected !V t1e

First imendment. Witney a' Cal'ifornia'

2?4 u.s. 857, 41 s.ct' 641, ?1 L'Ed' 1095

(1921) (J. Brandeis, dissenting); Buck\y 
1t'-

Vateo,424 U.S' 1, 96 S'Ct' 612,46 L'Ed'2d

659 (i9?6). The harm occasioned by the

L.EA.22O (1886), it was stated that 'Though-the
"r.ili,*ri U" r"ii on its face and impartial in

;;;";;;"., vet, if it is applied and.. adminis-

tired by public authority with an evil eye ano

."-"t*rtf hand, so as practically to make

".:"tt "ita 
illegal discriminations betu'een per'

*i, itt similar-circumstances, material -to 
their

ililJ;;al of equal justice is still within

virtualty total aegrpgatiol of the races by

,"trg futt cts, i,d *," 6onsequent limita-

tion i-t places on the ability of blacks and

whites to join together in the eampaign

processl .ot t, the heart of our principle

of self'government.

The RemedY

I disagree with seversl aspects 9f the

remedy the majority accords the Crosby

plaintiifs. First, the majority remedy

aaopts the wall which was part of th" eT-
mission plan. To my knowledge, this is the

first time a federal court has ordered a

state to segregate the races' There is

some attenuation by reason of the fact that

the wall was first devised by the Commis-

sion, but the fact remains that these segre

gated districts are part of an overall plan

it i"tr tt " 
majority is ordering the state to

put into effeci. The departures the^majori'

iy t as ordered from the original C'ommis-

sion plan are necessarily based upon- t'|e

re.ainde. of the map being configured the

way it is. The districts are pieces of a

jigsaw puzzle and each piece must fit'

The plan ordered by my colleagues does

give the blacks six senatorial districts in

it i.t tt 
"y 

are likely to elect a candidate'

rather than the five they would have under

the Commission plan. The court plan also

gives the blacks 13 rather than the 12

fto.rr" districts provided by the Commis-

sion plan. The manner in which this result

has ieen obtained is the basis for my

second objection to the majority remedy'

The district boundaries have been drawn

along racial lines for the purpose of yield-

ing black majorities of 65 per cent or more

in selected diitricts. Just as the line form-

ing the boundaries of the "wall" districts

hi been precisely drawn along the west'

ern edge of the heaviest black concentra-

tion, so also the boundaries of the court-or-

dered districts outside the walled area have

the prohibition of the Constitution'" The point

it "i*"*ft" 
academic in our casg because the

ii** .f Messrs. Madigan and MurphS'. is. not

iust a matter of inference' They testitled--as
'il;l*itit; ; could t'e-that thev intentionallv

ai"it trrJ wall so as to separate whites from

blacks.

been p
and so
black
graPhir

The
been e:

itisa
the n
propos
tled
Second
of the
AFE EI

which
the pr
these 

1

It ir
ariver
veals I

colleal
did no
the gr
able t
severa
Comm
were (

settler
cusse(
the cr
court.
ed dif
would
impos
tlemer
the cr
missic
ternal
reprer
missi<
group
that c

not b
sion.
sion
alterr
as ttc,

sion.
Court

t. Ttr
was
his :



graphic maps.

The rationale for this method has not
been explicitly stated by my colleagues, but
it is apparent from what has been done.
fire majority has obviously adopted the
proposition that racial minorities are enti.
tled to proportional representation.
Secondly, they have accepted the argument
of the plaintiffs that blacks and Hispanics
are entitled to be placed in districts in
which they will form at least 65 per cent of
the population. I disagree with both of
these propositions.

It is important to know how the court
arrived at its remedy, for the process re-
veals the principles of reapportionment my
colleagues have .embraced. The majority
did not have to structure its own plan from
the ground up. Instead, the majority was
able to produce a court plan by splicing
several already available maps onto the
Commission plan. These additional maps
were drawn by the parties in the course of
settlement negotiations. The parties dis-
cussed settlement throughout the trial of
the ease, with the encouragement of the
court. Everyone realized the case present-
ed difficult problems and that a settlement
would probably be preferable to a solution
imposed by the court. To make these set-
tlement discussions as concrete as possible,
the court requested counsel for the Com-
mission defendants to prepare various al-
ternative ilistrict eonfigurations that would
represent a compromise between the Com-
mission plan and the demands of the three
groups of plaintiffs.8 It was stipulated
that counsel's efforts in this regard would
not be taken as any concession or admis-
sion. Thereafter, counsel for the Commis-
sion spent long hours preparing various
alternative maps which were then received
as "court exhibits" for purposes of discus-
sion. The principal exhibit was marked
Court Exhibit 1A.

8. The reason the attorney for the Commission
was requested to draw these maps is that he and
his associates were the only ones with adequate

u33

waa clear that any district which did not
have at least a 65 per cent black or Hispan-
ic population would not be regarded by
either the Crosby or DelValle plaintiffs as

a district in which blacks or Hispanics
would have, using plaintiffs' tcrminology,
"a meaningful opportunity to elect repre-
sentatives of their choice." Witnesses for
both sides acknowledged that "an informal
guideline" of 65 per cent has been used in
reapportionments to obtain effective minor-
ity representation. The figure is arrived at
by starting with 50 per cent and adding to
it a 5 per cent allowance for the fact that
minority populations are generally younger
than white populations (and therefore have
fewer members of voting age), a 5 per cent
allowance on the basis that fewer minority
members than whites register to vote, and
another 5 per cent on the basis that the
turnout of registered minority voters at the
polls is less than the turnout of registered
white voters. No witness testified .to the
accuracy of these estimates even in gener-

al, let alone as they might apply to Chiea-
go. The 5 per cent allowance for each of
the three factors appears to be arbitrary,
and whether it has any relation to faet is,
on the basis of this record, anyone's guess.

At no time did the defendants agree that
the "65 per cent formula" was factually
legitimate or that its use could legally be

required by this court.

The DelValle plaintiffs were not satis-
fied with the court exhibits insofar as they
pertained to the Hispanic communities.
Therefore, the DelValle plaintiffs prcpared
their own "settlement" map and this be-

came known as DelValle Exhibit 208.

The Crosbl phintiffs and the defend-
ants, despite considerable effort, were un-
able to settle. lVhile the court was not
privy to their discussions, in subsequent
briefs the plaintiffs indicated that the ma-

knowledge of the geography and demography
involved in the case.

F

RYBICKI v. STATE BD. OF ELECTIONS OF STATE OF ILL.

been precisely drawi 
"rong 

,r,"offfri;:-' 
tfiJ'}L" 

criteria, counset used in pre
and Bometimes tortuous contours of heavy paring the court exhibits was the 65 per -
black cohcentrations as shown on demo cent formula urged by plaintiffs, ginee it /



tlt{ *r .- , * nl{I$nrhu gUPPLEMENT

jor stumbling block was that Court Exhibit'
1A retained t}re "wall" intect.

After the trial was eoncludefr my col-

leagues desired to examine s map which ,

would incorporutn DelValle Exhibit 208

into C,ourt's Exhibit 1A. Aecordingly,
counsel for the Commission was directed to
prepare such a map, which he promptly did
and furnished to the court. Shortly there
after, we were informed by counsel for the
C,ommission and the DelValle plaintiffs
that those parties had settled the case be-

tween themselves by agreeing to the com-

bination of DelValle Exhibit 208 and Court
Exhibit rA.

It should be emphasized that the Com-

mission defendants have at no time agreed
that Court's Exhibit 1A is an appropriate
map insofar as the Crosby plaintiffs are
concerned. They have not acceded to the
proposition that racial minorities are enti-
tled to proportional representation nor have
they coneeded the propriety of the 65 per
cent formula. During final argument,
counsel for the Commission reiterated his
position that the court's exhibits were not
offered by the Commission and that the
Commission was standing by its original
plan.

What the majority has now done is to
adopt as the court's remedy Court Exhibit
1A combined with DelValle Exhibit 208.

Because it has ready-made maps it can

adopt by simple reference, the majority be-

lieves it need not explain how these particu-
lar lines came to be drawn and what their
legal basis is. The entire exposition is con-

tained in footnote 107 of the majority opin-
ion, which refers to the court exhibits and
describes the percentages of minority popu-
lation which will be contained in each of the
revised districts. The absence of a detailed
explanation of the plan seems to be ad-

dressed by this statement in footnote 10?

of the majority opinion:

\[Ie think it would be foolish to "draw
our own map" or have a third party draw
a map for us when we are able, by in-
structing the Commission, to eliminate

9. A plurality of the court, however, holds a
contrary view. See Part IV of the opinion of

lr..-. -
.f

Itt.,).,''
'the unconstitgtional (and therefono unac-
ceptable) features of the Commiesion
plan.

In evaluating the court's rer4edy, it is
important to distinguish this case from one

arising under the Voting Rights Act of
1965, or a case in which, due to previous
intentional discrimination, affirmative ac-
tion in favor of racial or ethnic groups may
be permitted or even required. United
Jewish Organizations a. Carey, 430 U.S.
t44, 97 S.Ct. 996, 51 L.Ed.zd 2n $977).
Swann a. Charlotte-Mecklenburg Board,
of Education 402 U.S. 1, 91 S.Ct. L267, 28
L.Ed.zd 554 (1971) (school desegregation).
The State of Illinois is not subject to Sec-

tions 4 and 5 of the Voting Rights Act, 42

U.S.C. S 1973, so there is no question of
the need for affirmative action to comply
with that Act. It is arguable that where
the Voting Rights Act does not apply a
state may not voluntarily reapportion its
electoral districts so as to strengthen the
voting power of a racial minority at the
expense of the white majority. See the
concurring opinion of Justice Brennan in
United Jewish Organizations, supra, 430

U.S. 144 at 168-179, 97 S.Ct. 996 at 1011-
17, 51 L.Ed.2d 229.e However, we are not
dealing here with what the State of Illinois
might voluntarily have done. We have re.
jected the reapportionment map the state,
through its constitutionally authorized
Commission, had decided upon. The ques-

tion before us now is what the state can be

required to do as an alternative to the
rejected plan. The majority opinion re-
quires the state to reapportion its electoral
districts so as to afford proportional rey
resentation to racial and ethnic minorities.
The exhibits which t}e majority superim-
poses upon t}e Commission map to create
the court-imposed plan are expressly drawn
along the lines of census tracts which have
known numbers of whites, blacks and His-
panics. The lines have been drawn in a
way that will give the bla'cks and Hispanics
great€r bloc voting strength than they
would have under the C,ommission map,

Justice Whire, 430 U.S. at 165-168, 97 S.Ct. at
1009-1 1.



f

RYBICKI v. STAIE BD. OF ELECTIONS OF STATE OF ILL. u35
and this is ttre soletifferenee *ffffltI"'tffi:'ffi'"" considersrion and determina-
C,ommission plan and the eou#phn. The tton, Reynolds a.'Sims, g?? U.S. at 586-
court plan does not give the blacks the [84 S.Ct. at 1394] for a st&te legislatun/
maximum possible bloc voting strength is the institution that is by far the best
they desire-and for that reason will still situated to identify and then reconcile ,
be regarded as "discriminatory" by the traditional stata policies within t.he con-
Crosby plaintiffs-but it is nonetheless an s6tutionally mandated framework of
adoption of the proposition that racial and
ethnic groups are entitled to have the 

substantial population equality' The fed-

boundaries of erectoral districts drawn in a ;ni,;:"nriJr;"ffi:#ffiT"':"1";
way that will enhance their bloc voting times conflicting state apportionmentstrength' policies in the people's name. In the

In a number of cases, the Supreme C,ourt wake of a legislature,s failure constitu-
has made it clear that the district court's tionally to reconcile these conflieting
remedy in a reapportionment case may be state and federal goals, a federal court is
an abuse of its equitable discretion if it is left with the unwelcome obligation of
not founded on solid constitutional performing in the legislature's stead,
grounds. It is, of course, true that "[o]nce while lacking the political authoritative_
a right and a violation have been shown, ness that the legislature can bring to the
the scope of a district court's equitable task. In such circumstances, that must
powers to remedy past wrongs is broad, for be accomplished circumspeetly, and in a
breadth and flexibility are inherent in equi- manner ,,free from any taint of arbitrari-
table remedies." Suann o. Board of Edu- ness or discrimination.,, Roman o. Sin-
cation, d02 U.S. 1, 15, 91 S.Ct. 1267, 1276,
28 L.Ed.2d 554 (19?1). However, as the cock' 317 U'S' 695' 710 [84 S'Ct' 1449'

C,ourt cautioned in whitcomb u. Chads, L458' 12 L'Ed'2d 6201'

40g U.S. 124, L6L,91 S.Ct. lg5g, lg?g, 29 Connor a. Finch, 431 U.S. at 414415, 97

L.Ed.2d 363 (1971), "The remedial powers S'Ct' at 1833-34'

of an equity court must be adequate to the For the reasons stated in Connor, the
task, but they are not unlimited. Here the Supreme Court has held that a federal
District Court erred in so broadly brushing court abuses its equitable discretion when
aside state apportionment policy without it creates a plan containing districts with
solid constitutional or equitable grounds population deviations that are unnecessari-
for doing so." ly large, Chapman a. Meier (5.9S per cent

The Court has also made it clear that " 
deviation), and when it mandates the use of

courtordered reapportionment plan will be a multi-member district plan, Connor o.

held to stricter standards of constitutionali- Finch, East Canoll Pa*h School Board
ty than those governing plans adopted by a tt. Marshall. On the other hand, the Court
legislature. Connor o. Finch, 431 U.S. has approved plans submitted by a legisla-
407,97 S.Ct. f828, 52 L.Ed.zd 465 (19?7); ture in which the population deviation is
Chaprnan a. Meier, 420 U.S. 1, 18-19, 95 significantly higher than that in Chapman.
S.Ct. 751, 761-52, 42 L.FA,.Zd 766 (1975); See, e.9., Mahan o. Howell, 410 U.S. 315,
East Carroll Parish School Board o. Mar- 93 S.Ct 979, 35 L.Ed.2d 320 (1972) (16.4 per
shall, 424 U.S. 636, 639, 96 S.Ct. 1083, cent deviation), and White a. Regester, 412
1085, 4? L.Ed.2d 296 (f9?6). The rationale U.S. 755, 93 S.Ct. ?332, 37 L.Ed.2d 314
is set forth in Connor: (1973) (9.9 per cent deviation). It has also

These high standards refleet t}re unusual approved, in certain circumstanees, the use
position of federal courts as draftsmen of multi-member districts in legislative
of reapportionment plans. We have re- plans. See, e.9., Wiitcomb a. Chads, 403
peatedly emphasized that "legislative re- LT.S 124, 91 S.Ct. 1E58, 29 L.Ed.zd 363
apportionment is primarily a matter for (1[i7l).



:,

r136
,./.

674 FEDERAL SUPPI{EMENT
f

Most recently, the Flfth.Circuit C,ourt of
Appeals held that a District Court ebuses
its equitable discretion when it premises a
remedial plan on propo5tional representa-
tion of minorities. Manhall a. Edwards,
582 F.2d 927 (5th Cir.lg?8), cert. denied
tub nom East Camoll Parish Police Jury
o. Marshall,442 U.S. 909, 99 S.Ct. 2820, 61

L.Ed.zd n4 0979). ln Marchall a. Ed-
utards, the court had before it a plan or-
dered by the district court to remedy a
prior history of franchise dilution. See

Zimmer o. McKeithen, 485 F.zd 1297 (5th
Cir.1973). In developing its remedy, the
Iower court sought to create districts in
East Carroll Parish exactly proportional to
t}re Parish's black population. Noting that
the question whether equitable standards
permit a court to approve such a plan was
one of first impression, the court looked to
the Srrpreme Court's then most recent pro
nouncement in United Jewish Organiza-
tiorx a. Careg for guidance. The Court of
Appeals observed that although United
Jewish Organizations established that, as

a matter of state policy, a legislature may
voluntarily adopt a plan based on propor-
tional representation, the case provided
federal courts with no such license:

At this time, we read the decisions of the
Supreme Court as admonishing lower
federal courts to act cautiously in reap
portionments and to leave racially pro
portional representation to legislative
bodies, at least in the absence of some
impelling reason to take it into account,

lO. ln Taylor v. McKeithen,407 U.S. 191, 193-
t94, 92 S.Ct. 1980, l98l-82, 32 L.EA.2d 648
(t972), the Supreme Court recognized that a

court-ordered redisrricting plan premised on the
principle of "benign discrimination" Pres€nts
difficult and, at that time, unresolved issues:

An examination of the record in this case

suggests that the Court of Appeals may have
believed that benign districting by federal
judges is its€lf unconstitutional gerrymander-
ing even where (a) it is employed to overcome
the residual cffects of past state dilution of
Negro voting strength and (b) the only alter-
native is to leave intact the traditional "safe
white districts. If that were in fact the rea-
soning of the lower court, then this petition
would presenl an important federal question
of the extenl to which the broad equitable
pou,ers of a federal courl, Swann v, Charlotte-
Mecl:brtburg Board of Education, 402 U.S. l,

for example, where the correction of his-
toric racial discrimination and not merely
proper representation is involved. I

582 F.zd at 936. the Court of Appeals
concluded with some advice to the district
court on fashioning an acceptable remedy:

The judge must analyze the plan and
determine that the probable results arc
such that minority strength is not dilut-
ed. But this legitimate concern with the
outcome cannot justify a strict propor-
tionality brought about by manipulation
of district lines .... The boundari*
should be draum uith an eye to com-
pactness, contiguou^mess, and the pres-
ertsation of natural, political and tra-
ditional boundaries; zol racially bal-
anced representation. We are not legis-
latures.

582 F.2d at 937 (emphasis supplied).

Thus, in Marshall, it was held an abuse
of discretion to remedy a long history of
vote dilution with a plan premised on pro-
portional representation. The remedy
adopted by the majority in the instant case

presents one further turn of the screw.
Here, the issue is whether a federal court
may require a state that is not subject to
the Voting Rights Act and has not been
shown to have engaged in voting dilution in
the past to adopt a race-eonscious remedy
that deliberately creates districts in which
blacks constitute at least a 65 per cent
majority.ro In my view, the court is with-

ls, [9] s.ct. t267, 1275,28 L.En.2d 554] are
limited by the colorblind concept of Gomil-
lion v. Light'foor, 364 U.S. 339 [8] S.Ct. 125, 5

L.Ed.2d ll0l, and Wright v. Rocke/eller,376
U.S. 52, 57, 67 184 S.ct. 603, 605, 6ll, ll
L.il.zd 5l2l (Douglas, J., dissenting). In re-
apportionment cases, :ts Justice Stewart has
observed, "the federal couns are often going
to be faced with hard remedial problems" in
minimizing the friction between their reme-
dies and legitimate state policies. Sttry-Seu-
enth Minnesota State *nate v.Bezns,.106 U.S.
r87,2O4 [92 S.Ct. 1477, 1487,32 L.Ed.2d l]
(dissenting opinion).

While some courts have held that the Supreme
Court's opinion in United lewbh OrganiTations
answered this question in the affirmative, sce,
e.g., Kirksey p. Board ol Superubors ol Hinds
County,554 F.2d 139, 151 (5th Cir.l977), I be-
lieve this is a mistaken reading of the case.

C

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'RYBICKI v. STATE BD. OF ELECTTONS oF STATE OF rLL. llg?
Cltc rr 57a FSupp. rllB2 (1962)

out "solid constitutional gmufrds" for do is six or seven, bdt whether the districts
lllt 8Or

I begin with the Supreme Court's latest
expression, Mobile o. Bolden, 446 U.S. SS,

78-?9, 100 S.Ct. 1490, 1506, 64 L.Dd_zd 47
(1980) Glurality opinion) since that case
both confirmed and extended the holding of
Marshall o. Edwards. There the Court
stated:

It is, of course, true that the right of a
penson to vote on an equal basis with
other voters draws much of its signifi-
cance from the political associations that
its exercise reflects, but it is an altogeth-
er different matber to conclude that polit-
ical groups themselves have an indepen-
dent constitutional claim to representa-
tion. And the C,ourt's decisions hold
squarely that they do not [citations omit-
tedl.
The fact is that the Court has sternly set
its face against the claim, however
phrased, that the C,onstitution somehow
guarantees proportional representation.

According to the plurality in Mobile, it is
not only strict proportional representation
that is beyond the equitable power of a
court to require. Rather, it is any kind of
plan that requires a racial, ethnic or other
identifiable group to be given representa-
tion as such a group. In the quotation
from Mobile, su.pra, the plurality opinion
rebuffs the idea "that political groups
themselves have an ind.epend.ent constitu-
tional claim to representation" by noting
that the Court has consistently rejected the
claim "however phrased, that the Constitu-
tion somehow guarantees proportional
representatioz " (emphasis added). The
majority in the instant case claims that its
plan is not proportional representation be.
cause the blacks will have six rather than
the seven Senate districts they would have
under strict proportional representation.
In my view, the question is not whether it

First, as Marshall v. Edwards recognizes, IJnited
Jewish Organiztrrozs addressed only what a /eg.
islature, not a federal court, could do to in-
crease minority representation. Moreover,
even with respect to a legislature's power, I)nir-
ed Jewish Organi4.tiotts did not address thr
question whether, in the absence of a histon' ol

have been drawn on the invalid premis6
that blacks have a constitutional right to
district lines that will enable them to vote,
as a 8roup.

Even apart from the holding of. MoAib a.
Bolden, the majority's remedy suffers
from a further defect. As indicated in
Connor a. Finch, a court abuses its equita-
ble discretion when it adopts a remedy that
usurps the prerogative of the state legisla-
ture to make critical policy choices in con-
nection with reapportionment. Justice
Stewart succinctly stated the job of federal
courts in these cases: "In the reapportion-
ment context, it is the duty of a court
seeking to remedy an unconstitutional ap
portionment to right the constitutional
wrong while minimizing disturbance of le.
gitimate state policies." Sitty-Seaenth
Minnesota State Senate a. Beens,406 U.S.
t87, 202, 92 S.Ct. 1477, 7496, 32 L.Ed.zd 1

(1e?2).

The majority's remedy does not merely
conflict with legitimate state policies re-
garding reapportionment, it preempts the
state from forming the policies. As Mobile
a. Bolden makes clear, the object of the
remedy in any vote dilution case is to give
the minority group equal access to the
political processes leading to nomination
and election. This is all the cases have
ever held. United Jeuish Organizatiorx,
430 U.S. at 165, 97 S.Ct. at t009-t0; White
o. Regester,412 U.S. 755,765-767, gB S.Ct.
2332, 2339-{0, 37 L.Ed.zd }La g97g; Whit-
cornb 1). Chauis,403 U.S. at 149, 91 S.Ct. at
1872. Equality of access may be effected
in several ways. The legislature may
choose to draw "safe" minority districts or
it may ehoose to spread, but not intention-
ally to fracture, the minority population
over a few districti. It is clear, however,
that neither choice is constitutionally man-
dated. Mobile tt. Bolden, supra; Whit-

state action causing vote dilution, the legislature
could constitutionally apportion the state on the
basis of race. A fortiori, whether a federal
court, in the absence of official discrimination,
mav reapportion a state along racial lines is a
qucstion United letish Organizations tjlmply
ioes not answer.



1138 6?4 FEDERAL SI.]PPLEMENI '

cornb 1). Chottis, 403 U.S' 8t 156-15?, 91

S.Ct. at 18?f?6. How equality of access is

achieved in a given stst€ is thus a policy
choice that has been left, in the first in'
stance, to the legislatures.

IVhere there is a history of official dis'

crimination in connection with exercise of

the franchise, a court may be justified in

fashioning a remedy, such as "safe" black

districts, that remove the "structure and

residual effects of the past." Kirksey,554
F.2d at l5l; Marshall o- Edwards, 582

F.2d at 936. See also (Iniaersity of Cali-

fornia Regents a. Bakke,438 U'S' 265, 98

s.ct. zzgg, 5? L.Ed.zd ?50 (19?8). where

there is no history of discrimination, a fed-

eral court has no business imposing on a

state a policy-the creation of black dis-

tricts and white districts-that represents

an extreme departure from prior reappor-

tionments.

208, nothing more. The remedy Cqurt Ex-

,hibit 1A provides for the blacks is simply

the settlement offer made by counsel for
the Commission. It does not purport to be

based upon any constitutional principle at

all; it was merely a way of trying to dis-

pose of the case. DetValle Exhibit 208 is

iifferent in one respect, in that it does not

represent a compromise. It represents to
tai victory for the Hispanic plaintiffs, who

drew this particular exhibit in such a way

as to afford the Hispanic communities the

maximum possible representation consist-

ent with requirements that legislative dis-

tricts be compact and contiguous' But I do

not see that the Hispanic component of the

majority plan is any more constitutionally

based than the black comPonent'

The majority plan is not only a substitu-

tion of the court's policy for that of the

legislature, it is the imposition of a- policy

*rat tras no constitutional basis' It is a
political compromise. It lies half way be-

iween the Commission plan and the Coali-

tion plan proposed by the plaintiffs' This

is apparent from simply looking at the ma-

jority plan: it gives the blacks six senate

districts in which they have a 65 per cent

majority rather than the five contained in

the C,ommission plan or the seven provided

in the Coalition plan and still demanded by

the plaintiffs. It gives the blacks 13 House

districts in which they are at least a 65 per

cent majority rather than the 12 found in

the C,ommission plan or the 14 in the Coali-

tion plan. Thus, on its face, the majority
plan appears to be a compromise arrived at
Ly the iime-honored method of splitting the

dlfference. But this conclusion need not be

based merely upon looking at the various

plans. That would be a matter of infer-

"n"*, 
good one, but still subject to the

usual resenrations about circumstantial evi-

dence. It is not necessary to rely on infer'

ence here. To the extent that anyone can

know anything, we know that the majority

plan is ihe result of political compromise

L"".o." we know it is based entirely upon

Court's Exhibit's 1A and DelValle Exhibit

The majority remedy does not stop with

ordering proportional representation for
minorities. It actually goes beyond that

and orders that blacks and Hispanics be

given special treatment by way of the 65

per cent formula. The majority's discus-

sion of the guideline is, like its discussion

of the majority plan itself, contained in

footnote 8?. The footnote recites that dur-

ing the testimony "both sides referred ap
provingly to the 65 per cent figure'" I
recall no such "approving" reference by

any defense witness. Defendants acknowl-

edled that such a formula has been used in

reapportionment cases but did not concede

its propriety. The only witness for defend-

ants referred to in the footnote was Kim-

ball Brace, a professional reapportioner,

and while he said he has used the guideline

himself in other cases, he did not say he

believes it is valid.

This is the first court to order Lhe imple
mentation of such a guideline' I believe

the order is without evidentiary basis and

without legal precedent. Furthermore, I
believe it i; baa Public folicY.'

ln tlnited Jeuish Organizations tt' Car-

ey, 430 U.S. 144, 164, 9? S.Ct' 996, 1009, 51

i.fa.za 229 (1977\, a voting rights case

where affirmative action was required to

remedy past discrimination, the Court stat-

ed



(opinions of J. Powell and Justices Bren.
nan, White, Marshall and Blackmun); Cali-
fano o. Goldfarb, 430 U.S. L99, Z?5, g7

s.cr. 1021, 1035, 51 L.Ed.2d 270 (1977) (J.
Stevens, concurring); Stanton a. Stanton,
421 U.S. 7, t4-t5, 95 S.Ct. t3?3, 13?8, 43
L.Ed.zd 688 (1975); DeFunis a. Odegaard,,
416 U.S. 312, 343, 94 S.Ct. 1?04, 1?19, 40
L.Ed.2d 164 (19?4) (J. Douglas, dissenting).
It seems to me that the 65 per cent formu-
la, applied routinely in favor of minorities
without referrnce to whether they have
been fenced out of the electoral process, is
indeed a suggestion of their inferiority.
The evidence is undisputed in this case that
there has never been any racial or ethnic
bar to voting in the State of lllinois. There
has never been a poll tax here, nor a litera-
cy test, nor any history of racial intimida-
tion in electoral matters. There is no ques-

ll. If this were to be tested against the one-per-
son-one-vote principle, I am not sure what the
answer would be, It does seem, at least on the

u39

Despite the deficiencies of the record be
fore us, I do not doubt that a factual basis
for each of the predicates of the 65 per
cent formula-younger age, Iower registra-
tion, lower tumout--+ould be demonstrat-
ed. (I do doubt that there is any factual
basis for the 5 per cent allowance for eaeh
of these factors; I suspect this is entirely
arbitrary). I am willing to assume that tlre
Illinois legislature could validly make an
allowance for these factors in drawing the
boundaries of legislative districts.tt But I
do not think it is proper for this court to
order the State of lllinois to make such an
allowance. Granting that the black and
Hispanic pofuhtions have a higher birth
rate than whites and t}tus have a lower
average age, how does this translate into a
constitutional principle that the states must
tlrerefore allow the blacks and Hispanics of

face of it, that these compensatory formulas
give an added weight to each minority vote.

RYBICKI v. sTITn BD. oF.ELnItIoxs oF STAT; oF ILL.
Clrc B S7a F5upp. t0t2 (t9S2)

r-

7r
B

t
t
t
t

We think it was'tlasonable for the Attor- tion that blacks in'this count4r have had
ney General to conelude in this case that enorrnous obstaelets to overcome and that
a substantial non'white population ma- the effects of slavery and discriminati/njority-in the vicinity of 65 per cent- are difficult to extinpate. On the otlrer
would be required to achieve a non-white hand, registering to vote and turaing up at
majority of eligible voters. @mphasis in the polling place to cast that votc is s;e
original). thing millions of blacks are able to do.

This language furaishes no authority for This is because, in a state like Illinois,
requiring a state to use a 65 per cent whatever racial barriers there are in mat-
formula, nor does it even support the prop ters sueh as housing and employment,
osition t}lat a state's voluntary use of a 65 there are none barring access to the voter,s
per cent formula would be reasonable in registration office or to the polling place.
every qase. Various groups of immigrants to this

Justice Brennan, concurring in United country have faced and are still facing
Jewbh Organizatioas, explored the impli- difficult problems of adjustment that intei
cations of preferential treatment such as fere with their participation in the electoral
the 65 per cent formula: process. Many of these people do not

Furthermore, even preferential treat- speak English when they arrive in this
ment may act to stigmatize its recipient count4r but take the trouble to learn it.
groups, for although intended to correct Millions of immigrants have encountered
systematic or institutional inequities, discrirnination in employment. All immi-
such a policy may imply to some the grants, regardless of their national origin,
recipient's inferiority and especial need have had to do something to gain the fran-
for proteetion. chise that no black in modern times has had

4B0U.S. atlTB_L74,gTS.Ct.at1014. See to do: they have had to go through the
also (Jniaersity of Califomia Regents u. lengthy and not altogether undemanding
Bakke, 439 U.S. 265, 2gg, 360, gg s.ct. process of becoming citizens of the united
n33,2752,2783-84, 57 L.Ed.zd ?50 (19?8) States.

I



6?4 FEDERAL SUPPLEMENT

against them in electoral matters' There ie

no such history. The black and Hisppnic

pUir{titfs are being given the benefit of
this 65 per eent guideline solely because of
the testirnony that blacles and Hbpanics
are younger, register less and, aote les*.

It follows, it seems to me, that any group

whieh can make a similar claim vis-a-vis the

white population, or any identifiable white

ethnic group that can make the claim vis'a-

vis the white population at large, can re'
quest the same relief.

A further problem with the 65 per cent

formula is that it seems to be inconsistent

with the cases in this Circuit which hold

that a defendant in a criminal case cannot

complain that grand and petit jurors were

selected from a voting list which contains

disproportionately few young persons and

blacks. See [Jnited States a. Dellinger,
472F.2d 340, 364-366 (?th Cir'19?2); Unit-
ed, States a. Gast, 457 tr.zd 141 (?th Cir'

lg72). As Justice Douglas asked in his

dissent in Wright a. Rockefeller, supra, "If
race is not a proper criterion for drawing a

jury list, how can it be in designing an

electoral district?" 3?6 U.S. at 67, 84 S'Ct'

at 611.

This completes my criticism of the reme

dy ordered by the majority. I will describe

briefly the remedy I think appropriate for
the Crosby plaintiffs. The relief I would

grant would be a map drawn according to

the traditional neutral criteria, without re'
gard to what I believe is the constitutional-

ly impermissible consideration of race or

ethnic character. Such a map would con-

sist of compact and contiguous districts,

drawn with due regard to the one-person-

one-vote requirement as well as natural

$ates are required to include aliens, ttan'
sients, short-term or temporary residents, or
persons denied the vote for conviction of
crime in the apportionment base by which
their legislatorJ are distributJd and' against

which compliance with the Equal Protection
Clause is to be measured.

(Emphasis added).

13. The entire testimonv al the trial concerning
the 55 per cent formula '*'ould not occupy more
than three or four pages of transcript'

1140

voting age to cast supercharged bal[ots?

Granting that blacks and Hispanics of vot-

ing age have a lesser registration rate than

whites, how, in the absenc6 of any etste'im-
posed bar to registration, can a federal

court interpret the Fourteenth Amendment

to require a gerrymander on t'his

account?rz And how does the failure of a
qualified, registered voter to appear at the

polls on election day become a constitution-

al question? There maY be something

about failing to vote that is racially or

ethnically based, but it would take a great

deal more time than was spent on the mat-

ter in this trial to show what it is.r' The

Illinois legislature might see fit to draw
boundary lines in a way that will relieve

blacks and Hispanics of the consequences

of failing to cast the votes they are eligible

to cast, but it seems to me that is a decision

for the legislature to make, not one for this
court to dictate.

One wonders just how far this matter of
electoral subsidies goes, and where it will
end. What if it could be shown that natu-

ralized citizens of Lithuanian extraction in

Chicago are registered to vote in lesser

percentages than native-born citizens of
Irish and Polish extraction? Is this an

Equal Protection question? What if His-

panics have a lower average age than

blacks; are the Hispanics entitled to more

than the 5 per cent allowance for age, or

does the black allowance become reduced?

The questions are unending, and it does not

seem to me that the majority opinion pro
vides any answers. It certainly is not an

answer to say that the blacks and Hispan-

ics in this case are being given the advan-

tage of the 65 per cent guideline because of
a prior history of state discrimination

12. In the case of the Hispanics, the low registra-

tion may in part be due to the fact that many
Himaniis ari not American citizens' The ma-
joriiy decision, in adopting the 15 per cgnt- f9r;
mula for the Hispanics, accepts the doubtful
proposition that American citizens of Hispanic
extiaction are entitled to have their voting pow-

er enhanced because of the presence of Hispan'
ic aliens in the community. Sez Burns v' Rich-

ardson, 384 U.S. 73, 92, 86 S'Ct. 1286' 1296, 16

L.En.2d 376 (1966):

Neither in Reytolds r'' Sirzs nor in any other
decision has this Court suggested that the

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RYBICKi v. STATE BD. OF ELEC:IIONS Or STATE OF ILL' 1141
tclr. rt t7a F'tuPP' t@ (f9sa)

and political boundaries. See, e.g., Connor redistrict€r is well aware of the racial eon'/
a. F,inct\ 431 u.s. at 425,9? s.at. at 1889; centrations in the city ...." The majority

Monhail 1. Edwards,682 F.Zd at 93?. It also expresseB "grave doubts as to whether

would be a colorblind mop. I do not know such a 'colorblind' map would be aceepted '

what the effect on minority bloc voting as neutral by any of the parties to this

would be, but since my remedy would take lawsuit'"
down the wall and would not gerrymander

against blacks, I do not see how blacks

could have fewer majority districts than

they would have under the Commission

plan. C,onceivably, they would have more

than the court plan provides. But whatev'
er the bloc voting effect of a colorblind

map might be, it would be unintended.

That, in my view, is the onlY waY the

Crcnstitution permits. There is no way to
draw racially conscious lines that will be

"neutral." If the lines glve minority
groups anything less than strict proportion-

al representation based on their percentage

of the population as a whole, the minorities

will claim their vote was "diluted;" yet, the

law is clear that proportional representa-

tion is not a constitutional requirement.

My instructions to a eourt reapportioner

would be to draw contiguous, compact, one-

person-one-vote districts in the City of Chi-

cago, starting at some point on the edge of
the lake (selected either arbitrarily or with
some neutral logic the reapportioner might
have) and work out from there. I would

forbid any initial reference to demographic
maps showing racial and ethnic distribu-

tion. If the end result turned out to be

clearly unfair to some racial or ethnic mi'
nority, this would be cause for some re
drawing. I do not suggest that a complete-

ly random map would necessarily be ade-

quate on the first try. What I do suggest

is that it is the only appropriate starting
point for a court-ordered plan in a case

where there is no prior history of official
discrimination, and thus, no basis for af-

firmative action.

The majority opinion, in footnote 95, ad-

dresses itself to the idea of a colorblind

map and concludes that it would have to be

drawn by a computer because "any hunton

ll. I am not referring to a situation where racial-
ly conscious lines would have to be dr:'u'r' in

It seems to me a non sequitur to say that
because a redistricter would be aware of
the racial concentrations in the city he

would be unable to draw a map that ig-

nored racial concentrations. To know

something is not to be controlled by it,
unless, of course, one wants to be. Much

of our civil rights legislation is based upon

the premise that decisionmakers can and

should make decisions without regard to
race, religion, national origin, or other in-

vidious factors. Employers who obviously

know the race or sex of job applicants are

required by law to make hiring decisions

without regard to race or sex. If the ma-

jority opinion is eorrect, this would be im-

possible. Yet, it is done every day. Fair
Housing laws require sellers and landlords

to sell and rent real estate without regard

to race, religion or national orign. The

same laws also require realtors to show

available housing on a nondiscriminatory
basis. These are person-to-person' faceto-
face dealings. There is no doubt that the

seller of a home or a landlord or a realtor
knows the race of the applicant. Age dis-

crimination laws provide another example

of a situation where the decision-maker is

expected to act without regard to a particu-

lar factor even though he knows that fac-

tor exists.

A closer analogy to the drawing of elec-

toral district lines would be the drawing of
school atbendance boundary lines. Surely

our law presumes that school attendance

boundaries tan be drawn along neutral
lines, without regard to race, because this
is what federal law requires.r{ If the ma-

jority opinion is correet about the frailty of
a "human" decisionmaker, it would be im-

possible to draw school attendance bounda-

ries which are not based upon race' Again,

order to correcl for past discrimination.



674 FEDERAL.SUPPLEMEM

i**;l -

tt42
however, I hope it is safd to say tlrat ttre
vast majority of school districts \n this
country have boundary lines which have
not been drawn on the iasis of race.

The computer will be involved whether
the lines are colorblind or not, since so
much of the redistricting process is based
upon computer data. The census informa-
tion itself, which provides tle reapportioner
his most important data base, is computer-
generated. All of the maps received in
evidence, including Court Exhibit 1A and
DelValle Exhibit 208, which the majority
adopts as its plan, are drawa from data
supplied by computers. (The information
could, of course, be derived in other ways;
the computer merely speeds up the proc-
ess).

Finally, I would not worry about whether
any of the parties to this lawsuit would
consider a colorblind map to be neutral.
All of the plaintiffs in this case desire not a
neutral map but one which will maximize
their group voting potential. The DelValle
plaintiffs have achieved this under the
court-ordered plan. I assume they will be
fully satisfied with the court plan. ?he
Crosby plaintiffs, on the other hand, have
not achieved the maximum bloc voting
strength for blacks which they sought in
this lawsuit, and I suspeet they will be no
happier with the court plan than they were
wit}l the Commission plan. I believe these
cases must be decided aecording to the law,
not according to what the parties want or
think they should have. The majority's
concern n"ith whether the parties would
"accept" a colorblind map reveals again the
desire of the majority for compromise.

The drawing of a colorblind map might
have pitfalls of which I am unaware.
Should that prove true, adjustments would
have to be made. \flhatever the difficulties
might be, I think they would be less for-
midable than those which are found in the
majority plan. If we were to tell a reap
portioner to draw a colorblind map, he
would have instructions he could under-
stand. I do not know what instructions are
given b5 the majority decision. The ration-
ale for the lines being drawn as they are is

not stated. Ihe result is in reality a politi-
cal compromise, but the opinion dqgs not
sdy so. It gives no guidance to th'e next
set of reapportioners who will have the
task of drawing a map that complies with
the Constitution. Heretofore, it has been
thought sufficient to avoid purposeful dis-
crimination or dilution of minority voting
strength. Now, some unspecified degree
of affirmative action is required, even with-
out a prior finding of official discrimina-
tion. Perhaps the explanation omitted
from the majority opinion cau be spelled
out in future cases. On the basis of to-
day's decision, I suspect there will be plen-
ty of them.

The DelValle Plaintiffs
The majority opinion adopts the Hispanic

post-trial settlement with the Commission
as part of the courtordered plan and finds
that the settlement is "fair." The parties
were, of course, free to settle the case and
were encouraged by the eourt to do so. If
that was all that oecurred here, I would
have no occasion to dissent. But this set-
tlement is receiving the imprimatur of this
court, both by its incorporation into the
court's judgment order and by the specific
finding of the majority that the settlement
is "fair." Thus, the settlement will appar-
ently have precedential value. In future
reapportionments, Hispanics and other
groups, could believe, quite reasonably,
that they are entitled to the same treat-
ment the Hispanics receive in the settle
ment adopted by the court today. For this
reason, I am compelled to state that, in my
view, the settlement is not fair. It gives
the Hispanics full relief when, under the
evidence, they are entitled to none.

The Hispanic plaintiffs, in my opinion,
have not met their burden of showing that
the defendants purposefully diseriminated
against them because of thef Hispanic an-

cestry. It is true that the Commission map
is not drawn so as to maximize the voting
strength of either the Puerto Rican commu-
nity on the near north side of the City or
the Mexican-American community on the
south side. The lines could have been
drawn so as to form districts which would

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tiebreaking member of the Commission.
Shapiro told the Democrat members of the
Commission that the one condition of his
voting for their map was that they revise it
to make separate districts for Netsch and
Marovitz. If defendants had not made that
concession they would have had no map.
There is no evidence that Governor Shapi-
ro, in causing the lines to be drawn so as to
provide separate districts for Netsch and
Maroyitz, did so because he desired to dis-
criminate against Hispanics. This situation

15. The coun received into evidence the map
that the Commission had prepared for adoption
prior to the intercession of Governor Shapiro on

group of residents was not afforded the
same consideration as other groups of resi-
dents. The evidence showed that the Com-
mission was beleagered with requests and
demands of all kinds, many of which were
in conflict, so that, necessarily, not every-
one could be satisfied. There must always
be disappointed suitors in every reappor-
tionment. The fact that the suitor happens
to be white, black or Hispanic does not
show that this was the reason for the deci-
sion.

behalf of Netsch and Marovitz. Def. Ex. 81.
This n:a; ((,!ld not reasonably be regarded as
an intcnl ir,iral dilution of the Hispanic vote.

RYBTCKI v. BTATE bO. OT.ELBCTIONS OF STATE OF ILL..
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concentrate larger numbers of Hiapanic is unlike that on tbe South Side involving
vot€rs, thus making more likely the elec- Senators Joyce and Dawson. there, the
tion of a candidate of their'choice. But districts were gerrymandered precisely bf|
there'is no showing that the failure of the cause the Commission believed blac(s
Commission to draw the lines in that man- would not vot€ for Joyce and Dawson. On
ner was the result of purposeful discrimi- the North Side, Netsch and Marovita were
nation against Hispanics. Unlike the situ- not going to be in districts with heavy
ation regarding the black population of the Hispanic concentrations in any event. Th;
City, there was no testimony that anyone only question was whether they would be
wanted to put the Hispanics in districts placed in one district or in separate dis-
separate from whites or other identifiable
groop.. rhere was no testimony concern- ffI;r#J";:ffit:iffi".lilH*?,'fr#ing tension between Hispanics and whites tions of the districts to the west, where
or any perceived difficulties that a white
candidate or a Hispanic candidate might ril;:1"-"J,r":ii:'"1il!j:'""*':"ll?r*l
experience running in a district composed that, without the intervention by former
of a majority of Hispanic and a minority of Governor Shapiro, the Commisrion ."p
white voters' This is not to say that such would have given the puerto Rican commu-
tensions do not exist or that such difficul-
ties might not be encountered. rhe point ltffi'ff"1::J,":1"'3:'1,--,:fTill,,* 

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is they were not part of the evidence, and
there is no reason to eonclude that any Plaintiffs also point out that the Commis-

such ethnic-political considerations played 
" 

sion acceded to the requests of Evanston
part in the way the lines effecting the and Oak Park not to be divided, while ig-
Hispanic neighborhoods were drawn. noring the requests of Hispanic leaders

What the evidence does disclose, withgt that the Hispanic neighborhoods in Chicago

contradiction, is that the lines were drain be given the same treatment. Plaintiffs
so as to protect and enhance the reelection ar8rue that this disparate treatment of the
chances of incumbent legislators. It hap various requests is, of itself, unconstitu-
pens that those legislators are white, but tional discrimination against the Hispanic
the evidence does not show this is why they eommunity. While the argument has some

were favored. They were favored because equitable appeal, I believe it must be reject-
they are incumbents. Some of them are ed. Failure or refusal to comply with the
members of the Democratic organization, request of Hispanics, even while complying
and two of them, Senators Netseh and Ma- with similar requests by other groups, does
rovitz, were favored because of the inter- not show purposeful ethnic discrimina-
vention of former Governor Shapiro, the tion. What it shows is that a particular

r143



'tlf

,,l44 674 FEDERAL.gUPPLEMENI, , .

There are good reasons for including an supported by any credible evidence. Jt i8
entire city, such as Evanston or Oak*Park, ironic that this post-event rationalieation
within one electoral district rather than oft'ered by the defendants is now the princi-
splitting it up. It eannOt be argued that pal evidence against them.
the Commission complied with unmeritori-
ous requests by these municipalities and Even assuming that Madigan and Mur-

yet ignored legitimate demands by the His- phy did consider probable Hispanic residen'

panic communities. 
-J ---- --'- tial trends at the time they were drawing

There is no doubt that the commission 
the map' it seems to me that such a consid-

knew the effect of its lines on the Hispanic 
eration would still be in the "in spite of'

communities. It knew that the voting category rather than the "because of' cate'

strength in each of the communities would gory' The lines were not drawn as they

be divided in such a manner that there were because of the direction of anticipated

woutd be no dlstnct ln wnrcn .Erspanlcs, as Hispanic migration' They were drawn that

a bloc, would be likely to elect a candidate way because of Governor Shapiro's insis-

of their choice. Plaintiffs placed heavy tence that Senators Netsch and Marovitz

emphasis on this awareness. However, as be accommodated' The snowsuit theory'

the Supreme Court has held, the discrimi- assuming it played a role, was simply a

natory intent required for a constitutional prediction that the Netsch-Marovitz conces-

violation means more than that the deci- sion would not hurt the Hispanics in the

sionmaker was aware of the consequences; Iong run because they would "grow into"
it means that the decisionmaker selected the districts as drawn.

the particular course of action not merely Conclusion:
"in spite of" but at least in part "because
of its adverse affects upon the objecting what has happened here' in my view' is

group. Mobile a. Bold,en,446n.s.55,72 that a federal court has adopted as consti-

n. 1?, 100 s.ct. 1490, 1502 n. 77, 64 L.Ed.26 tutional requirements the racial considera-

4? (1g?g), quoting from Personnel Admin- tions which the constitution permits a state

istrator o/ lt*i ,. Feeney, 442 lJ.s. zs6, voluntarily to consider. It is undoubtedly

27g, gg i.Ct. zzzz, 2296, 60 L.Ed.2d 8?0 good government and good politics to try
(f9?9). It is clear that the Commissioners to accommodate as many competing de

acted ,,in spite of, the adverse affect upon mands as the law and reason will allow

the block voting strength of the Hispanic when a state is reapportioned. Obviously,

communities. There is no evidence, how- one of the prime demands in recent times

ever, that the Commission acted, even in has been that of racial and ethnic minori-

part, "because of" that adverse effect. ties for fair treatment. Thus, the state

plaintiffs also argued at trial, and the reapportioner works with a mass of demo-

majority appears to agree, that the C,om- graphic information which inevitably be-

mission,s ,,snowsuit theory,' about the His- comes depicted in demographic maps,

panics amounted to intentional ethnic dis- showing the concentrations of blacks and

crimination. This is as close as the plain- Hispanies' This is all made possible by the

tiffs came to the necessary showing, but it census conducted every ten years, which

falls short. First, it is clear to me that the reveals this information. Federal courts
,'snowsuit theory" was a defense devised in are therefore always going to be confront-

preparation for irial. It was not something ed with an abundance of .demographic
the-reapportioners had in mind when draw- maps, showing where blacks and Hispanics

ing the Commission map. The notion that live. At the present time, we have no maps

Michael Madigan and Martin Murphy, the showing where other ethnic groups live,

authors of the Chicago portion of the Com- but if called upon, the computer eould prob
mission map, gave careful consideration to ably deliver them. It seems to me impor-
the probable direction of future Hispanic tant for federal courts to realize that this
population movement is not one I find to be information, in all its splendor, ma1: be very

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ueefur to tlre state "."ppoition"I",ifif''*u\o*ndix To The Dissent t,does.not form the basis for a rule of feder-
al law. I believe that my colleagues, with This Appendix consists of a map of the
the best of intentions, have been diverte6 House Districts on the South side of Chiqg-
from their proper inquiry by 

" 
p""o""rp"- go as they appear in both the Commission

tion with the census a"t". tn r;;;-,f; Plan and the plan ordered by the court.
have tried to do a better job with the cen- The shaded portions of the map represent
sus data than the state legislature did. those census tracts in which Blacks make
Apart from the question of the wall, they up at least 85 percent of the population. In
may have succeeded in doing exactly thai. the unshaded portions, Blacks constitute
FYom the standpoint of social policy, the less than 20 percent of the population. The
court plan imposed by my colleagues may healy dark line drawn along tlre western-
be better than the commission plan. How- most boundary of House Districts zB, 24,
ever, it is not our proper office to substi- 31, 33, 21 and 84 represents what is re
tute our social philosophies for those of the ferred to in both opinions as the ,,wall.,,
state legislature. our very rimited func- The white neighborhoods of Bridgeport,
tion in reapportionment cases is to see to it Canaryville, Gage Park, Marquette 

tit{anor

that the requirements of the federal consti- and Marquette 
-Park 

lie immediately westtution are observed. of Districts ZB, 24, 81 and BB.

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