Hastert v. State Board of Elections - Wisconsin …...race or color, or in contravention of the guarantees set forth in 42 U.S.C.S. S 1973b(f) (2) . A violation of 1973(a) is established

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LEXSEE

Warnin gA s of: Jun 0 2, 201 1

DENNIS ,J . HASTERT, HARRIS FAWELL, JOHN E. PORTER, PHILIP M.CRANE, HENRY J. HYDE, AND ROBERT H. MICHEL, Plaintiffs, v. STATE

BOARD OF ELECTIONS, JOHN J. LANIGAN, THERESA M. PETRONE, RICH-ARD A. COWEN, LAWRENCE E. JOHNSON, DAVID E. MURRAY, LANGDOND. NEAL, WANDA L. REDNOUR, AND HANNELORE HUISMAN, Defendants.WILFREDO NIEVES, AL JOHNSON, LINDA D. CORONADO, BOBBY RUSH,JESUS GARCIA, REV. WILLIE BARROW, RAFAEL BORIA, MIGUEL DELVALLE, ROBERT L. LUCAS, LEON D. FINNEY, JR., REV. CLAY EVANS, JO-SEPH GARDNER, LUIS V. GUTIERREZ, REGNER SUAREZ, JOSEPH BER-RIOS, MIGUEL A. SANTIAGO, NEOMI HERNANDEZ, Plainti ffs, v. ILLINOISSTATE BOARD OF ELECTION COMMISSIONERS, JOHN J . LANIGAN,

THERESA M. PETRONE, RICHARD A. COWEN, HANNELORE HUISMAN,LAWRENCE E. JOHNSON, DAVID E. MURRAY, LANGDON D. NEAL, ANDWANDA L. REDNOUR, Defendants. CARDISS COLLINS, CHARLES HAYES,

REV. WILBUR N. DANIELS, REV. CLAUDE S. WYATT, HOWARD S.BROOKINS, DONALD L. WILLIAMS, PERCY GILES, AND RICKY HENDON,

Plaintiffs, v. STATE BOARD OF ELECTIONS, JOHN J. LANIGAN, THERESA M.PETRONE, RICHARD A. COWEN, JOHN P. DAILEY, LAWRENCE E. JOHN-SON, DAVID E. MURRAY, LANGDON D. NEAL, AND WANDA REDNOUR, De-fendants. ANN ROSEBROOK, DARYL BARKLOW, AMIEL CUETO, RICHARDMARK, JEANELLE NORMAN, CAROLYN TONEY, LEE BABCOCK, RAY-MOND OLIVER, BARBARA POSHARD, WILLIAM MATHEWS, GERALD

HAWKINS, AND EVA SAVALA, P l aintiffs, v. STATE BOARD OF ELECTIONS,JOHN J. LANIGAN, THERESA M. PETRONE, RICHARD A. COWEN, LAW-RENCE E. JOHNSON, DAVID E. MURRAY, LANGDON A. NEAL, WANDA L.REDNOUR, AND HANNELORE HUISMAN, Defendants. THE CHICAGO UR-BAN LEAGUE, CRAIG R. COLLINS, MARK ALLEN, AND NIKOLAS C.

THEODORE, Plainti ffs, v. STATE BOARD OF ELECTIONS, JOHN J . LANIGAN,THERESA M. PETRONE, RICHARD A. COWEN, JOHN P. DAILEY, LAW-

RENCE E. JOHNSON, DAVID E. MURRAY, LANGDON D. NEAL, AND WANDAL. REDNOUR, Defendants

Nos. 9 1 C 4028, 91 C 4 1 54, 9 1 C 4643, 9 1 C 4656,91 C 5472, Con so l idated cases

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION

777 F. Supp. 634; 1 99 1 U.S. Dist. LEXIS 16446

November 6, 1 991

CASE SUMMARY : PROCEDURAL POSTURE : In an action to declare anexisting congressional district scheme impracticable andunconstitutional because of changes reflected in a cen-sus, plaintiffs, citizens and their congressional represen-

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tatives (c i ti zen s), s ought Co enj oin defendant, the Illinoi sS tate Board o f Elect i ons (board), from conducting con -gres s ional elections under the plan .

OVERVIEW: The ci t ize ns sought a declaration that theexisting congre ssional district scheme was impracticableand unconstitutional because of population and demo-graphic change s reflected in the 1990 decennial census.The citizens also sought to enjoin the board from con-ducting congressional elections under the 1981 plan . Thelegi s lature had failed to devise a new plan . The courtfound the 1981 congressional district plan was both un-constitutional and declared it null and void . The courtanalyzed competing congressional redistr icting proposalsand adopted the Hastert th ird amended redistricting planbecause it achieved precise mathematical equal ity ofpopulation across congressional districts , was superior tothe other plan with respect to fairness to the voting rightsof racial and language minorities , and was likely to pro-duce a fair distribution of congressional seats acrossparty lines . The court found that § 2 of the Voting RightsAct , 42 U . S . C. S. § 1973, warranted the creation of anHispanic super-majority district, as well as the preserva-tion of the three exi sting African-American distri cts .

OUTCOME : The court found the existin g congressionaldistrict scheme unconstitutional, adopted a proposedredi strictin g plan , and ordered the board to implement itsterms .

CORE TERMS: congressional district , redistricting ,voting rights, deviation , election , seat, voter's , voting,census , configuration , districting, dilution, minoritygroup , discriminatory , single -member , precondition ,statewide, electoral , multi -member, concentration , statis-tical , voting age , reappo rtionment, super-majority,threshold, map, congressional elections , safe , mathemati-cal, variance

LexisNexis(R) Headnotes

Constitutional Law > Congressional Duties & Powers >Census > General OverviewConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HNl ] ill Const. art. 4 , & 3(b) provide s i n relevant partthat in the year following each federal decennial censusoar, the General Assembly shall redistrict the LegislativeDistricts by June 30 oFthat year .

Civil Procedure > U.S. Supreme Court Revlew > Three-Judge Courts & Direct ApPeals > Three-Judge Courts

Constitutional Law > Congressional Duties & Powers >Census > Apportionment & Redistricting[HN2]28 U S C . S 2284 ( a) directs that a distr ict cou rtof three judge s shall be convened when otherwise re-quired by an Act of Congress , or when an action is filedchallenging the constitut i onality of the apportionment ofcongressional districts or the apportionment of anystatewide body .

Constitu tional Law > Congress ional Duties & Powers >Census > General OverviewConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Federal Government > U.S. Congress[HN3]Reapportionment of congressional districts withina state is primarily a matter for legislative considerationand determination. This principle stands as an acknowl-edgement that under the United States Constitution, statelegislatures are vested with the authority to redraw theirrespective congressional districts.

Constitutional Law > Elections, Terms & Voting >General OverviewGovernments > Federal Government > ElectionsGovernments > State & Territorial Governments > Leg-islatures[HN4]U.S. Const. art. I, § 4 , cl. I states in relevan t part:The times, places and manner of holding elections forsenators and representati ves , shall be prescribed in eachstate by the legislature thereof.

Constitutional Law > The Judiciary > Case or Contro-ver,sy > Political QuestionsConstitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsGovernments > State & Territorial Governments > Leg-islatures[HN5]The uniquely political character of congressio n alredistr icting counsels that judicial relief is appropriateonly when a legislature fails to reapportion according tofederal constitutional requisites in a timely fashion afterhaving had an opportunity to do so.

Constitutional Law > Congressional Duties & Fowers >Census > Composition of the U.S CongressGovernments > Federal Government > U.S. Congress[HN6]U.S. Const. art . I. § 2, cl.l provides in part : TheHouse of Representatives shall be composed of memberschosen every second year by the people of the s everalstates .

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Constitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Federal Government > Elections[FIN7]The rule of absolute population equality is per-fectly compatible with "gerrymander" of the worst sort.

Civil Rights Law > Voting Rights > Language Dis-criminationCivil Rights Law > Voting Rights > Racial Discrimina-tionConstitutional Law > Elections, Terms & Voting >Race-Based Voting Restrictions[HN8]Racial gerrymandering violates both the FifteenthAmendment, and the Equal Protection Clause of theFourteenth Amendment . Discrimination claims undereither constitutional theory require a showing of a dis-criminatory motive against a minority group in the draw-ing of district boundaries. The principal springboard forchallenging a districting plan on discrimination groundsis § 2 of the Voting Rights Act, 42 U.S.C.S. & 1973.Since amended in 1982, a claim under § 2 no longer re-quires only a showing that a districting plan has a dis-criminatory effect against a racial or language minority.

Civil Rights Law > General OverviewConstitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsGovernments > Local Governments > Elections[HN9]The Voting Rights Act, 42 U.S C.S. � 1973 , statesthat no voting qualification or prerequisite to voting orstandard , practice, or pro cedure shall be imposed or ap-plied by any state or political subdivision in a mannerwhich results in a denial or abridgement of the right ofany citizen of the United States to vote on account ofrace or color, or in con travention of the guarantees setforth in 42 U.S.C.S . S 1973b(f ) (2) . A violation of §1973(a) is established if, based on the totality of circum-stances , it is shown that the political processes leading tonomination or election in the state or political subdivi-sion are not equally open to participation by members ofa class of citizens protected by 1973 a in that itsmembers have less opportunity than other members ofthe electorate to participate in the political process and toelect representatives of their choice . The extent to whichmembers of the protected class have been elected to of-fi ce in the state or political subd i vision is one circum-stance which may be considered : provided, that nothingin this section establishe s a right to have members of aprotected class el ected in numbers equal to th e i r propor-tion in the population .

Civil Rights La w > General OverviewConstitutional Law > Elections, Terms & Voting >Race-Based Voting Restrictions[HN10]BiparCisan effort to avoid minority dilution typi-cally is sufficient to defeat a Fourteenth or FifteenthAmendment racial discrimination challenge to a district-ing plan.

Civil Rights Law > Voting Biglzas > Vote DilutionGovernments > Federal Government > ElectionsGovernments > Local Governments > Elections[HN11]Discriminato ry impact claims proceed under thetheory of minority vote dilution . Vote dilution , in thelegal sense, refers to the impermissible discriminatoryeffect of a districting plan when it operates to minimizeor cancel out the voting strength of m i nority groups . Di-lution of minority voting strength through the drawing ofdistrict lines occurs as a result of one of two strateg i es .Minority voting strength is most typically diluted byfragmenting large concentr ations of minority populationand disbursing them into separate political districts, thuspreventing a minority community from constituting amajority within a single political district . Alternatively,minority vote dilution is caused by concentrating minori-ties into districts where they constitute an excessive ma-jority. This second districting technique of packing mi-norities into a single district wastes minority votingpower and unnecess arily minimizes minority influence inother districts .

Constitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Local Governments > Elections[HNI2]Minority concentrations of 65 percent total popu -latio n and 60 percent voting age population within a s i n-gle district are regarded as necessary to provide a minor-i ty population with a reasonable opportunity to exercisepolitical control over th at district .

Civil Rights Law > Voting Rights > Language Dis-criminationConstitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsGovernments > Local Governments > Elections[HN 13]Section 2 of the Voting Rights Act, 42 U.S.C.S. S1973b, extends coverage to "language minorities" byincorporating the guarantees set forth in § 1973b(fl(2).Section 19736( f) (2) states: No voting qualification or

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prerequisite to voting, or standard , practice , or procedureshall be imposed or applied by any state or po litica l sub-divi sion to deny or abridge the right of any citize n of theUnited States to vote becau se h e i s a m em ber o f a l an-guage minority group .

Civil Rig/ets Law > General OverviewConstitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsGovernments > Local Governments > Elections[HNI4 ]A minority group is required to make a thresholdshowing that it is : (1) sufficiently large and geographi-cally compact to constitute a majority in a properlydrawn district ; (2) politicall y cohesive; and (3) that racialbloc voting typically frustrates the election of the minor-ity group's preferred candidate. A minority group meet-ing these threshold § 2 Voting Rights Act, 42 U.S . C.S. &1973 , requirements is entitled to consideration of i tsclaim on the merits under the totality of circumstancestest.

Civil Rights Law > Voting Rights > Racial Discrimina-tionCivil Rights l. aw > Voting Rigl¢ts > Vote DilutionGovernments > Federal Government > Elections[I1NI5]The totality of circumstances test relies princi-pally upon a set of objective factors. The factors relevantto a § 2 Voting Rights Act, 42 U.S.C.S. & 1973, claiminclude: a history of official discrimination relating tominority political participation; the extent of raciallypolarized voting practices; the extent to which certainvoting practices and procedures with discriminatory ef-fects have been employed in the past; the exclusion ofthe minority group from the candidate slating process;the extent to which the minority group bears the effectsof past discrimination in education, employment andhealth services which hinder their ability to effectivelyparticipate in the political process; the use of racial ap-peals in political campaigns; the extent to which minori-ties have been elected to office; and the lack of, respon-siveness by elected officials to particular minority needs.No one factor or grouping of factors is dispositive ofminority vote dilution.

Civil Riglzts Law > General OverviewGovernments > Federal Governmen t > ElectionsGovernments > Local Governments > Elections[HN17]Unle ss minority vote rs poss e ss the potential toe lect representatives in the absence of the challengedstructure or practice, they cannot claim to have been in -jured by that s tructure or practice .

Constitutional Law >Equul Protection > Scope of Pro-tectlonConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Federal Government > Elections[HN18]The Supreme Court formally recognizes politicalgerrymandering claims as justiciable under theFourteenth Amendment Equal Protection Clause.

Civil Rights Law > General OverviewConstitutional Law > Equal Protection > Scope of Pro-tectionGovernments > Federal Government > Elections[HNl9]A lack of proport ional representation across partylines alone is insufficient to establish a discriminatoryeffect of unconstitutional dimensions. In the context of astatewide claim of political gerrym andering, a fi nding ofan equal protection violation must be supported by evi-dence of continued frustration of the will of a majority ofthe voters or e ffective denial to a minority of voters of afair chance Co influence the political pro cess . A plaintiffmust establish a history (actual or projected) of dispro -port ionate results. A showing of possible transitory re-sults is not suffi cient.

Constitutional Law > Congressional Duties & Powers >Elections > General OverviewConstitutional Law > Elections, Terms & Voting >General OverviewGovernments > State & Territorial Governnients >Elections[HN20 1 In a base line race , party affil i ation is regarded asthe predominant voting determinant rather than issues orthe personalitie s of the candida tes .

Civil Rights /,aw > Voting Rdghts > General OverviewConstitutional Law > Elections, Terms & Voting >Race-Sased Voting RestrictionsGovernments > Federal Government > Elections[HN16]Racial and ethnic considerations are appropriatei n drawing districts to advance the goal s of the VotingRights Act , 42 U . S . C . S & 1973 .

Constitutional Law > Congressional Duties & Powers >Elections > General OverviewConstitutional Law > Elections, Terms & Voting >General OverviewGovernments > State & Territorial Governments >Elections

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[HN 2 1]Stat ewide base l i n e ra ce s provide a be tter meas-ure of statewide pa rty votin g stren gth . OPINION BY: CONLON

Constitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN22)The reality is that districting inevitably has and isintended to have substantial political consequences.

Constitutional Law > Congressional Duties & Powers >Elections > General OverviewConstitu tional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN23]Communities of interest, defined as distinctiveunits which share common concerns with respect to oneor more identifiable features such as geography, demog-raphy, ethnicity, culture, socio-economic status or trade,are a relevant non-constitutional criterion in formulatinga congressional districting plan.

Constitutional Law > The Jutliciary > Case or Contro-versy > Political QuestionsConstitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[HN24 ]The court believes that there is a place whereparticular nonconstitutional commun ities of interestshould be considered in the redistricting process. Thatplace is the halls and committee chambers of the statelegislature. The courtroom is not the proper arena forlobbying efforts regarding the districting concern s oflocal , nonconstitutional communities of interest.

Constitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > State & Territorial Governments > Leg-islatures[HN25]ln the absence of state leg islative action the courtis constrained to establish the redistricting plan that bestmeets technical constitutional and legal criteria set out bythe United States Supreme Court for evaluating congres-sional dis tr ict i ng plan s.

NDGES: [* *t] Kann e, C i rcuit Jud ge , Norgle , CircuitJudge , and Conlon , Di s tri ct Judge.

OPINION

[ * 637 1 MEMORANDUM OPINION AND ORDER

In the s e consolidated cas es, the court is call ed uponCo se lect a congressional redistricting p l an for the State ofIllinois . Following the tabul ation of the 1 990 decennialcensus, the Office of the Clerk of the United StatesHouse of Representatives inf'ormed the Governor of Illi-nois that Illinois is now entitled to only twenty represen-tatives due to population changes reflected i n the 1990census . Illinois currently has twenty-two representatives .The Illinois General Assembly failed to undertake itsconstitutional obligation to devise a new congressionaldistricting scheme for the state. Defendant Illinois StateBoard of Elections ("the Board") is presently bound toconduct the upcoming 1992 congressional elections un-der the terms of the 1981 congressional district plan im-plemented in In re Congressional Districts Reapportion-ment Cases , No . 81 C 3915, slip op . (N .D . III . Nov . 23 ,1981) , affd sub nom . Ryan v. Otto , 454 U . S. 1130, 71 L .Ed . 2d 284 , 1 02 S . Ct. 985 (1982). Plaintiffs , variouscitizen - voters of the state of I ll inois and certain of theircongressional representatives, [ * * 2 ) filed these actionsseeking a declaration that the existing congressional dis-trict scheme is impracticable and , more importantly, un-constitutional because of population and demographicchanges reflected in the 1990 decennial census . Plaintiffsalso seek to enjoin the Board from conducting the up-coming 1992 Illinois congressional elections under the1981 plan .

The absence of a state-approved congressional redis -tricting plan has prompted cert ain of the plaintiffs to pro-pose their own congressional redistricting plans in substi-tution of the existing plan . We conclude that the presentcongressional di str ict plan is both unconstitutional andi mpracticable due to population and demographicchanges represented in the 1 990 census . We thereforeproceed to analyze the competing congressional redis-tricting proposals submitted by the variou s plaintiffs un -der the relevant constitutional and legal goals and criteriaenumerated by the Supreme Court .

BACKGROUND

L General Background

The results of the 1990 census, issued early in 1991,show that the population of the State of Illinois increasedfrom 11 ,426 , 518 to 11,430,602 between 1980 and 1990 ,an increa s e o f 4 , 084 or 0 . 0 3 57%. The new [ **3] cen s usfi gures mandate a redu ction in th e number of congre s-si o nal s e at s appo rtioned to Illinois from 22 to 20 . Thi s i s

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s o b e c au se the Illinois population increased in smaller[ * 638] proportion than the United States a s a whole . '

I The population o f th e United State s as a wholeincreased from 22 6, 54 5 , 805 to 248 , 709,873 , anincrease of 22 ,1 64,068 or 9 . 7835% .

The release of the 1990 censu s data and the resultingreapportionment of con gressional seats triggered theprovisions of Article 4 , § 3 of the Constitution of theState of Illinois , under which the Illino i s General As -sembly is charged with the obligation of implementing aconstitutionally sound congressional redistricting plan byJune 30, 1991 . ' The Illino i s General Assembly failed tomeet its constitutionally mandated June 3 0, 1991 dead-line. Indeed , that legislative body did not bring any redis-tricting proposal to the floor for debate, much less a vote .

2[HN1 ]Article 4, 6 3(b) of the Illinois Constitu-tion provides in relevant part that

In the year following each Federal decennialcensus oar, the General Assembly shall redistrictthe Legislative Dis tricts ... [by] June 30 of thatyear ....

[ * *4] H. Pre Trial Proceedings

The Republic an Party members of the current Illi-nois congressional delegation filed the initial action onJune 27, 1991 . Hastert v. State Board of Elections , No .91 C 4028 . The Hastert plaintiffs seek a declaration ofthe unconstitutionality of the present congressional dis-tr icts due to population changes reflected in the 1990census and ask the cou rt to enjoin the Board from con-ducting the 1992 congressional elections under the cur-rent congressional district plan . Additionally, the Hastertplaintiffs submit for court approval their own statewideredistricting proposal to replace the current plan . On July3, 1991 , the Chief Judge of the Seventh Circuit Cou rt ofAppeals conv ened this three -judge district court panel tohear the Hastert action , as required under 28 U . S.C. &2284 a .'

3[HN2]28 U.S.C. S 2284 (a) directs that

A district court of three judges s hall be con -vened when otherwise required by an Act ofCongress , or when an action is filed chall engingthe con stitutionality of the appo rt ionment of con-gressional districts or the apportionment of anystatewide body .

[**5] Al so on July 3 , 1991 , a group of Hispanicand African -Am erican re s ident - voters filed a similaraction, styl e d Nie v es v . I l l i n ois State Board of Elections,No . 9 1 C 4 15 4. In additi on t o s eeking relief s imilar tothat requested i n th e Hastert a cti o n , th e Nieves plaintiffs

se ek the creation of an Hispanic majority congre ssionaldistrict which , they argue , is now mandated under Sec-tion 2 of the Voting Rights Act, 42 U S C . & 1973 , be-cause of demographic and population changes reflect edi n th e 1990 census, To this end, the Nieves plaintiffshave submi tted for court approval a proposed redistrict-ing map for the minority districts in and around the Cityof Chicago . Upon subsequent motion by the Nievesplainti ffs , the Nieves action was consolidated with theHastert action and assi gned to this panel on July 17 ,1991 .

On July 24, 1991 , a group of resident voters fromvarious Illinois congressional districts, ostensibly actingon behalf of cert ain Democratic Party members of theIllinois congressional delegation, filed their own action,styled Rosebrook v. State Board of Elections, No. 91 C4656 . The Rosebrook plaintiffs submitted a statewideredistricting [**6] proposal. On the same day, Represen-tative Cardiss Collins of the 7th Congressional Districtand Representative Charles Hayes of the Ist Congres-sional District, as well as various resident-voters fromtheir respective African-American majority districts ,jointly filed an action similar to those filed by the Haste rtand Nieves part ies . Collins v . State Board of Elections,No . 91 C 4643 . The Collins plaintiffs submi tted a redis-tricting plan which , l i ke the Nieves plaintiffs, solely con -cern s the confi guration of the minority districts in andaround the City of Chicago. The Rosebrook and Coll insactions were subsequently consolidated with the Hastertand Nieves cases in August 1991.

On July 31 , 1991 , this court ordered the publ icationof notice of these consolidated proceedings in dailynewspapers in Alton, Bellevi ll e , Carbondale , Chicago,Rockford, and Springfi eld , Illinois. The published notice[ * 639] invited any person or group desiring to partici-pate i n the proceedings to fi le a petition to intervene byAugust 28, 1991 . After consulting with the parties, thecourt scheduled the close of discovery for October 3 ,1991 . Trial was set on October 7, 1991 .

The [ ** 7] court granted petitions to intervene fi ledby : Alvin Winkler, a resident of the 3rd CongressionalDistrict; Rep . Frank Annunzio, of the 1 lth CongressionalDistrict; Rep. Sidney R . Yates, of the 9th CongressionalD i strict ; Rep. Augustus A. Savage , of the 2nd Congres-s ional District; Michael Zalewski , a resident of the 3rdCongres s ional District; Johnny Scott and Ben Howard,acting individua ll y and in their representative capacitiesas members of the St. Clair County and Madison County,I ll inois , chapters of the National Association for the Ad-vancement of Colored People ("NAACP") ; and the Har-old Washington Party, a political party recogni zed unde rthe Illinoi s Election Code , Itl . Rev . Stat . ch . 46 , § 10 -2 .Of the se plaintiff- intervenors , only Rep . Savage and theH arold Washington Party, actin g in tandem, submitted

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their own redi str icting propos al and map . Winkler,Zalewski, Rep . Annunzio and Rep . Yates adopted theredistricting proposal of the Rosebrook plaintiffs .

Finally , the Ch ic ago Urban League fi led its own ae -ti on and proposed minority di s trict plan on August 29 ,1991, Chicago Urban League v . State Board of Elect i ons ,No . 91 C 5472 . The Chicago Urban League purports corepresent [**8] the interests of resident voters in theexistin g African -American majority congressional dis -tricts . The Chicago Urban League action was consoli-dated with the Hastert action on September 3 , 1991 .

On September 20 , 1991, we granted the Board's un-opposed motion that it be permitted to abide by thejudgment resulting from these proceedings without pro-viding a defense or adopting an adversarial role. TheBoard remains a necessary nom inal defendant because itis obligated under the terms of the order issued in In reCongressional Dist . Reapportionment cases , No . 81 C3915, slip op . (N . D . IlL Nov . 23 , 1981), to conduct theupcoming 1992 congressional elections under the 1981congressional district plan until we i ssue a supersedingorder. The adversari al circumstances necessary to consti-tute a case or controver sy arise solely from competingredistricting plans submitted by the various plaintiffs .Accordingly, the Board ha s played no active role i n theseproceedings and agrees to abide by the judgment of thiscourt.

The part icipants were directed to submit proposedwitness lists and summaries of their proposed testimony .The resulting submissions posed the prospect of alengthy [ * *9] and complex tr ial , due in part to the largenumber of part icipants and proposed witnesses . In addi-tion, some of the proffered testimony was either directedto matt ers outside the proper scope of this court 's inqui ry,or cumulative of the statistical data that necessarily com-prises the principal evidence in this case . Accordingly ,we took measures to focus the parties on the relevantconstitutional and legal criteria and to streamline theproceedings in a manner that would still enable the par-ties to present a complete record on the serious constitu-tional matters at i s sue . By streamlining the proceedings ,our goal was to i s sue our judgment on the merits in atimely fashion so as to allow any of the participants ade -quate time for appeal to the Supreme Cou rt prior to theDecember 16 , 1991 fi ling deadline for nominating peti-tions for the March 17 , 1992 Illinois congressional pri-mary election s. We sought to obv iate any need for en-joining the Board from conducting the congressionalelection according to the statutorily dictated schedule ,s ee III . Rev . Stat . ch . 46 , para . 1 0 -6 , as was necessaryduring th e 1981 Illinois congressional redistricting pro-ceedin gs.

Consequently , we followed [* * 10 ] the precedent ofcongressional redis tr icting panels work i ng under s imilartime constraints, see , e . g ., In re Pennsylvania Conares-sional District Reapportionment Ca s es 567 F. Supp1507, 1508-09 (M.D . Pa . 1982) , affd sub nom . Simon vDavis, 463 U.S. 1219 77 L . Ed . 2d 1405, 103 S. Ct .3564 (1983), and directed the parties to submit their evi -dence in the form of affi davits and depositions , supple-mented by any maps and statistical [ * 640] data the par-ties deemed relevant . During the two-day trial on Octo-ber 7 and 8 , 1991, each part icipating party was permittedto proceed on the basis of a single proposed plan andmap. ° The parties were permitted to examine and cross-examine expert witnesses . Finally, the parties arguedtheir positions through the submission of trial and post-trial briefs .

4 Alternatively stated, no party was permitted toplace two or more redistricting plans before thecourt, as is occasionally permi tted in redis tr ictingtrials. Our goal was to s treamline the proceedingsand to limit the likely confusion arising from aparty arguing in support of two or more proposalssimultaneously .

[* *I1] The parties worked diligently duri ng dis-covery and the two-day trial to resolve numerous areas ofsignificant disagreement in their competing plans . Thepre-trial proceedings were marked by a succession ofamendments to the principal redistricting proposals, witheach of the new amended plans incrementally eliminat-ing a complex area of potential conflict. The most sig-nificant agreement reached by the part ies prior to trialconcerned an agreement about the configuration of theproposed Hispanic majority dis tr ict .

All parties agreed throughout the proceedings thatpopulation and demographic changes within the City ofChicago from 1980 to 1990 mandated the creation of anHispanic majority district. The creation of an Hispanicdistrict necessarily entails a radical reshaping of the po-litical landscape in and around Chicago. Not surpris-ingly, the significant political ramifications of the crea-tion of an Hispanic district initially spawned radicallydifferent proposals regarding the form this proposed dis-tr ict might take . By reaching an agreement on the con-figurat ion of a proposed Hispanic d i strict, the part iesgreatly simplified a perplexing issue. Indeed, an agree-ment on this issue may [ ** 12] be the crucial factor infacilitating the creation of an Hispanic district . Theagreement on the proposed Hispanic district removed theHispanic contingent among the Nieves plaintiffs as ac-tive pa rti cipants at trial .

Other compromi s es and stipulated agreements werereached on a number of disputed i s su es. A stipulati onb etween Rep . Savage and th e Harold Washin gton Party

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with the Hastert plaintiffs, which was subsequentlyjoined by the Collins plaintiffs , brought all parties intosubstantial agreement over the con fi guration of the A fri-can-American majority 2 nd Congress ional District . Thisagreement effectively removed Rep . Savage and theHarold Washington Party from any disputes at trial . Apre -trial st ipulation between plaintiff-intervenors JohnnySco tt and Ben Howard , acting individually and in theirrepres entative capacities as members of the NAACP , andthe Hastert plaintiffs to keep the minority communities inMadison and St. Clair Counti es uni fi ed in a s ingle con-gressional distr i ct , effectively removed Scott and How-ard from this litigation .

As a consequence of the admirable efforts of counselto come to agreement on many issues , the trial focusedprimarily on the [ * *13] redistricting proposals of theHastert and Rosebrook plaintiffs. We are left primarilywith the task of determining which of the two proposedplans best meets the goals and criteria, both constitu-tional and non-constitutional, enumerated by the Su-preme Court. Secondarily, we must resolve a disputebetween the Collins and the African-American Nievesplaintiffs over which of two African-American majoritydistricts , the 7th or the ist Congressional District , is themore appropriate situs for the politically significant Sec-ond Ward on Chicago's south side .

DISCUSSION

I. Scope ofAuthority

[HN3]Reapport ionment of congressional districtswithin a state is "primarily a matter for legislative con-sideration and determination."' White v . Weiser, 412U S 783, 794-95, 37 L. Ed. 2d 335 93 S. Ct . 2348,(1973), quoting Reynolds v. Sims 377 U S 533, 586, 12L. Ed. 2d 506. 84 S . Ct. 1362 (1964). This principlestands as an acknowledgement that under the UnitedStates Constitution , state legislatures are vested with theauthority to redraw [*641] their respective congres-sional districts . U.S. CONST. Art . 1, & 4, cl 1 . 1 Thus, theduty of reconfiguring the I ll inois congressional districtsto conform with the [ ** 14 1 1990 census falls first andforemost to the Illinois General Assembly . Ryan v. StateBd. of Elections 661 F2d 1130 , 1132 (7th Cir . 1981) .The Illinois General Assembly failed to perform thisduty . The task therefore falls to this court by default .

5 [HN4 ]Art iele I , § 4 , cl . I states in relevant part:

The Time s , Places and Manner of holdingElect i ons for Senators and Representatives , shallbe p re scribed in e ach State by the Legislaturethereo f ....

We do not tread unreservedly into the "politicalthick et" of congressional redis tr ictin g. Coleerove v .Green, 328 U S 549 556 90 L. Ed . 1432, 66 S . Ct. 1198(1946). Rath er, we proceed in the knowledge that[HNS] the uniquely political character of congressionalredistricting counsels that judicial relief is appropriate" only when a legislature fail s to reapportion according tofederal constitutional re qui s ites in a timely fashion afterhaving had an opportunity to do so . " White v. Weiser,412 U.S . at 794 -95 , quoting Reynolds v . Sims, 377 U . S.at 586. [ ** 15] We note judicial intervention is againunavoidable . 6

6 Illinois last formally enacted a congressionalredistricting plan in 1961 . See , 1961 Ill. Laws 1sCSp. Sess. , p . 50, § 1, codified at Tll . Rev. Stat . ch .46, para. 156 F. 1(19631. That apportionmentwas ruled unconstitutional in People ex rel . Scottv. Kerner , 32 Ill. 2d 539, 208 N .E2d 561 (1 965).Despite ample time to devise a constitutional re-districting plan for the 1966 congressional elec-tions, the General Assembly avoided the task ,l eaving the judiciary with the task of adoptingone among various provisional pl an s . See Peopleex rel Scott v Kerner 33 Ill . 2d 460 211 N .E .2d736 (1965 ) . In the twenty-five years since Kerner,the Illino is legislature fa i led to enact a congres-sional redistricting plan on two separate occa-sions. As a result , this issue was defaulted to thejudiciary . See Skolnick v. State Electoral Bd.,336 F. Supp 839 fN D Tll . 1971) ; In re IllinoisCongressional Districts Reapportionment Cases,No . 81-C-3915 (N.D . Ill . December 3 , 1981), af-fd sub nom. Ryan v. Otto, 454 U.S. 1130, 71 L.Ed . 2d 284 102 S. Ct 985 (1982) . See alsoColegrove v. Green 328 U.S. 549, 90 L. Ed.1432 66 S. Ct . 1198 (1946) (recognizing GeneralAssembly failure from 1901 to 1945 to redraw Il-linois congressional districts to reflect populationchanges resulted in an 8 : 1 ratio between the larg-est and smallest congressional district).

[ ** 161 11. Evaluation ofProposed Plans

All parties are in agreement that the existing con -gressional district plan is both unconstitutional and im-practicable. ' Consequently, we proceed directly to anevaluation of the constitut i onal and legal meri ts of theproposed Haste rt and Rosebrook plans. s

7 As a practical matter, the existing plan is un -workable because it appo rt ions the state into 22congres s ional districts. The exist i ng plan the re -fore cannot be applied to th e 1992 congre s sionalelect ion s in which Illinois voters wi ll be entitledto e l ect onl y 20 individu als to th e H ouse o f Rep-

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res entativ es. As a constitutional matter , the un-even growth and movement of population i n Illi-nois since the 1980 decennial census has resultedin constitutiona ll y infirm deviations from the dis-trict population ideals ba sed on both the 1980 and1990 censuses. Under the 1990 census result s, theexisting dis tricts yield total deviations of 45 . 96%from the 1980 population ideal of 519,021 and41.17% from the 1990 population ideal of571,530. Hastert Ex h. 26 and 27 ; compareKarcher v . Daggett , 462 U.S. 725 , 77 L. Ed. 2d133, 103 S. Ct . 2653 (1983) (striking as constitu-tiona ll y infirm a congressional redistricting planwith a total deviation of 0.6984%) .8 Our analysis proceeds on the basis of theHaste rt third amended redistricting plan (herein -after "Haste rt plan ") and the Rosebrook firstamended plan , referred to by the Rosebrookplaintiffs as "Rosebrook 3A" (hereinafter "Rose-brook plan").

[ ** 17 ] A . Evaluation Under Constitutional Criteria

1 . Population Equality

Evaluation of the proposed Hastert and Rosebrookredistricting plans proceeds initially on the basis of con-stitutional criteria developed by the Supreme Court sincechallenges to legislative apportionments were first foundjusticiable under the Fourteenth Amendment in Baker v .Carr , 369 U S 186, 7 L. Ed . 2d 663, 82 S Ct. 691

1. The evaluation of legislative apportionments(1262began in earnest with Reynolds v . Sims , 377 U . S. 533,12 L. Ed. 2d 506 84 S. ��. In Reynolds , theCourt held th at the overriding goal of an acceptable re-distr icting plan should be the "fair and effective repre-sentation for all [ * 642] citizens." Id . at 565 -66 . To thisend, the Cou rt enunciated a one person , one vote theoryof representation for state legislatures. The Cou rt began[* * 18 1 the "difficult process of pu tt ing flesh on thebones of Reynolds v. Sims," Fortson v. Dorsey, 379 U . S .433, 440 (1965) (Harlan, J . , concurring), and , more par-ticularly, of developing speci fi c criteria for evaluatingthe validi ty of congressional redistricting plans inWesberry v. Sanders, 376 U.S . 1(1964).

In Wesberry , citizens of Georgia chall enged thatstate's congressional redis tr icting plan because of vastdisparities in the population of the resulting districts.Although the average district size was 394,312 , plaintiffscame from a distr ict with a population of 823,680. At theother extreme, another district had a population of only272,154 . The Court deemed the gross disparities ofpopulation acro ss districts and the re s ulting dilution ofthe voting ri ghts of re sidents of the more populous dis-tricts violate th e inte ntion of the framers in enactin g Ar-ticle I , § 2 of th e United States Con stitution .'

9[HN6]A rt icle 1, § 2, cl . l provide s in part :

The House of Representatives sha ll be com-pose d of Members cho sen every second Year bythe Peopl e of th e s everal State s ....

[ ** 19] After exam inin g the debate s of the Consti -tutional Convention, the Court concluded that "when thedelegates agreed that the House should represent 'people 'they intended that in allocatin g Congressman the numberassi gned to each state should be determined solely bypopulation." Id. at 13 . The Court thus held that congres-sional districts must be drawn so that "as nearly as ispracticable one man's vote in a congressional election isto be worth as much as another's ." 376 U . S . at 7-8. Wes-berry established equality of population as the primaryconstitutional standard for evaluating the validity of acongressional redistricting plan.

The "as nearly as is practicable" standard accommo-dated the reality that perfect statistical equali ty may notalways be possible. Indeed, in Reynolds, the Cou rt con -ceded "that it is a practical impo ssibility to arrange legis -lative districts s o that each one has an identical numberof residents, or citizens, or voters . Mathematical exact-ness or precision is hardly a workable constitutional re-quirement." 377 U . S. at 577 (footnote omitted). But thisconcession to the then existing limitations of cartologists[ **20 ] was not intended to signal that the Court wouldnot enforce the population equality principle with utmostvigar . Indeed, as stated in Wesberry, "while it may notbe possible to draw congressional districts with mathe-matical precision, that is no excuse for ignoring our Con-stitution's plain objective of making equal representationfor equal numbers of people the fundamental goal for theHouse of Representatives." 376 U.S . at 18 .

The "as nearly as is practicable" framing of thepopulation equality standard in Wesberry left open theissue of where the statistical threshold dividing accept-able from constitutionally infirm population deviationslay. The Court responded to this question five years laterin Kirkpatrick v . Preisler. 394 U . S . 526 , 22 L. Ed . 2d519, 89 S. Ct. 1225 (1969). In Kirkpatrick, the State ofMissouri argued that the 5 . 97% overall deviation embod-ied i n its congressional redistricting plan should be con-sidered de minimu s so as to satisfy the "as nearly as ispracticable" standard . The Cou rt rejected the de minimusargument , because und er that standard legislators wouldno longer strive for perfect population equality, but in-stead would strive only [* *21] to meet whatever deminimus threshold the Cou rt might set. Id , at 530-31.The Cou rt furt her braced the rigor of the perfect popula-tion equality standard by holding that "the ' as nearly as ispracticable' standard requ ires ... a good- faith effo rt toachieve precise mathematical equa l i ty. Unl es s populat io n

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variance s among congres s ional di s tr i cts are shown tohave re sulted de s pite such effo rt, th e State must ju stifyeach variance , no [ " 643] matter how small." Id. Thus,the Court would p ermit only th ose populati on variances"which a re unavoidable des pite a good-faith effo rt toachieve absolute equality , or for which justification i sshown . " Id . at 531 .

The Court's refusal to quantify a de minimus statisti-cal threshold has permi tted the "as nearly as is practica-ble" standard to keep pace with advances in redistrictingtechnolo gy . "° The use of increasingly sophist icated com-puters in the congressional map drawing proce ss hasreduced population deviations to nearly infinitesimalproportions , as evidenced in the present case . " Thepopulation deviations contained in congressional redis-tricting plans following the 1980 census consistently fell[ **22] within the statistical margin of error of the cen-sus data upon which the congressional districts are based." This fact rais ed anew the issue of a de minimus thresh-old and how s tr ictly the Court intended to require perfectmathematical equality of population. [ **23]

] 0 On the other hand , the ambiguity inhering inthe "as nearly as is practicable" standard has alsobeen the subject of criticism . Commentators andlower courts have criticized the standard as creat-ing a moving target for congressional mapmak-ers. In demanding perfect mathematical equalitywhile accepting limited deviations on a case bycase basis , the population equality standard oper-ates in a state of "entrenched ambiguity."CarsYens v. Lamm 543 F. Supp . 68, 81 (D. Colo.1282).11 Not only do computers permit redistricters toachieve infinitesimal deviation levels , but , asnoted by Justice Stevens in his concurrence inKarcher v Daaeett 462 U S 725 , 77 L. Ed. 2d1 33 . 103 S. Ct. 2653 (1983) ,

Computers now make it possible to generatea large number of alternative plans, consistentwith equal population guidelines and variousother criteria, in a relatively short period of time,and to analyze the political characteristics of eachone in considerable detail . In contrast, 'in the1970's round of reapportionment , some stateswere bare ly able to generate a single reappor-tionment plan in the time allotted to the task . ' Na-tional Conference of State Legislatures : Reappor-tionment : Law and Technology 55 (June 1980) .

462 U . S . at 752 n.10 (Stevens , J ., concur-ring) (citation omi tted) _12 In Karch er v . Da�gett . 462 U.S. 725, 77 L .Ed. 2d 13 3 ]0 3 S Ct . 2653 (I983) , the SupremeCou rt obse rved that e s timate s o f the national un-

dercount in cens uses prior to 19 8 0 ranged from2 . 5% to 33%. Many congre ssiona l redistr i ctin gplans reviewed by the courts following the 1980cen s u s fe ll well within this marg in o f error . See ,e.g., In re Illinois Congre ssional Districts Reap -portionment Cases, No . 81 C 3915 (N . D . IIt . Nov .23 , 198 ])(four plans under consideration had to -tal deviations ran ging from 0 . 02581% to0.1479%); Doulin v White, 528 F . Supp . 13 2 3(E.D. Ark. 1982 ) (reject ing leg islatively approvedplan with 1.87% total deviation because altern a-tive plans had 0 . 78% and 0.75% deviations) ; In rePennsylvania Congressional Dist. Reaooprt ion_ment Cases , 567 P. Supp. 1507 (M .D . Pa . 1982)(approving plan with total deviation 0 .2354% un-der original census and .3990% under revi sedcensus figures); South Carolina State Conferenceof Branches of NAACP v . Riley. 533 F . Suoo.1178 (D.S . C . ), affd, 459 U . S. 1025 74 L. Ed . 2d594. 103 S. Ct . 433 (19821 (adopting plan with0.28% total deviation) ; Flanagan v. Gillmor, 56 1F. Supp . 36 (S.D . Ohio 1982) (involving planwith 0.62% total deviation) .

[* * 24] In Karcher v DaQgett, 462 U . S . 725, 77 L .Ed . 2d 133 , 103 S . Ct. 2653 (1983) , the Supreme Courtaffirmed the ruling of a three-judge panel rejecting asunconstitutional a New Jersey congressional redistrictingplan with a total population deviation of 0 . 6984% . Thestate legislature had enacted its plan over other proposedplans with deviations as low as 0 .4514% . The state de -fended its plan by arguing that it had achieved the func-tional equivalent of mathematical equality because thetotal deviation of its plan was les s than the margin oferror embodied in the 1980 decennial census . The cruxof the state's argument was that population deviationssmaller than the census margin of error are mean ingless .Thus , states should be free to accept any plan comingwithin the margin of e rror without having to justify thedeviation, even if an alternative plan contained a ]owerdeviation figure .

The Supreme Court rejected New Jersey' s positionand reaffirmed i ts commitment to precise mathematicalequality as the "the pre-eminent , if not sole , criterion onwhich to adjudge [the] constitutionality " of congressionaldistricting [ **25J plans. Chapman v. Meier, 420 U . S .I , 23 , 42 L. Ed . 2d 766 , 95 S . Ct . 751 (1975) . The Courtconcluded in Karcher that the deviations contained in theplan adopted by the New Jersey state legislature plainlywere not (*644] the result of a good faith effo rt toachieve population equality because several other plansbefore the legislature had smaller maximum deviations .Se e Karcher, 462 U.S. at 738-40 . " Thu s, th e st ate wasrequired Co justify the d e viati on s conta ined i n its a d o p tedpl an, " 'no matt er how small ." ' Id_at 7 3 0 , quoting

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Kirkpatr ick, 394 U . S . at 531 . In rejectin g the s tati sticalmargin of error ju sti fi cation, Karcher appears to havebroken through the final barrier to requiring absolutemathematical equali ty of population . It i s from this p er-spective that we analyze the Hastert and Ros ebrookplans .

13 The Court left open the possibility that popu-lat i on deviations might be justi fi ed on the basis offlaws in the census data, but stated that a censusflaw justification must be supported with a preci-sion not shown by the state in Karcher. 462U . S . at 738 .

[ **26 ] The total deviation embodied in the Hastertplan is 0.00017% from the ideal. See Hastert Memoran-dum in Support of Third Amended Redis tr icting Plan(filed Oct . 15, 1991) . This fi gure, in the present context ,constitutes mathematically perfect population equality.Of the 20 proposed congressional districts in the Hastertplan, 18 contain the ideal population of 571 , 530. Id . Theremaining two districts have populations of 571,531 . Id .' " The Rosebrook plan nearly matches the Hastert figures,but not quite. The Rosebrook plan has a total deviation of0.00297% . See Rosebrook Exh . 13. This figure arisesfrom a configuration of congressional districts containingpopulations of 571 , 539 on the high side, nine above theideal 571 , 530 , and 571,522 on the low side , eight belowthe ideal. Id .; Rosebrook Exh . 53 . Each of the Rosebrookproposed districts deviate slightly from the ideal. Rose-brook Exh . 13 .

14 District population may be absolutely equi -populous only if the total population figure is per-fectly divisible by the total number of districts .The total Illinois population figure of 11,430,602is not perfectly divisible by 20 , the number ofdistricts . Thus , there is a one person variance inHastert proposed 3rd and 13th dis tr icts .

[ **27] The deviation figures att ained in both planssuggest that our discussion of the evolution of the popu-lation equality standard might properly be viewed as aeulogy to a pr inciple that soon may be regarded as anadministrative detail or historical curio. We have re-counted the history of this standard, however, to high-light the inescapable conclusion that "absolute popula-tion equali ty " remains "paramount" as the measureagainst which we must evaluate the congressional redis-tricting plans now before us . Karcher, 462 U . S . at 732(emphasis added) . Our obligation is to choose the planthat best sati s fies this constitutional crite ri on. While weview the statistical deviation s in the Rosebrook plan asde minimus in statistical terms, the deviations remainlegally si gnific an t s o l ong as Kirkp atrick and Karch erremain the law of the land .

The Rosebrook plaintiffs con sequently b ear the bur-den of demonstrating that their populat ion deviationsresult from a good faith effo rt to achiev e preci se mathe-matic a l e quality . Otherwi se each devia t ion must be justi -fied as " ne c es s ary to achieve some leg itimate goal. "Karcher, 462 U.S. at 730, [* *2 8] quoting Kirkpatrick,394 U.S. at 531 . The Rosebrook plaintiffs do not havethe first of these two option s at their disposal . AsKarcher counsels , the availability of an alternative planwith a smaller total deviation e ffectiv e ly invalidates agood faith effo rt argument . Karcher . 462 U . S. at 738.Thus , the very existence of the mathematically preciseHaste rt plan requires that the Rosebrook plaintiffs dem-onstrate legitimate goals jusYi fying each variance in theirplan .

The Rosebrook plaintiffs have not directly attemptedto justify the population deviations contained in the irplan . However , they have offered three arguments insupport of their contention that the Rosebrook plan issuperior to the Haste rt plan. First, the Rosebrook plain-tiffs assert that their plan bett er maxim izes minority vot-ing strength in central Illinois . Second, they contend thatthe Rosebrook plan better preserves [ *645 ) the historicand geographic characteristics of existing congressionaldistricts in southern Ill inois . Third, they contend thattheir plan will bring about a fairer distribution of con-gressional seats along party lines than the [**29 ] Hastertplan . We wi ll addre s s each of these arguments in greaterdetail in later sections . However, for the purpose of thepopulation equality analysis , it suffices to say that thesearguments fail to address all of the population variancescontained i n the Ro sebrook plan .

Specifically , the Rosebrook arguments do not ad-dress the population var iations in the dis tr icts coveringChicago , Cook County and the immediately adjacent" collar countie s ," all of which contain minor variancesfrom the 571 , 530 ideal, The arguments concerning themaximization of racial voting strength and preservationof historic and geographic characteristics of existingcounties relate exclusively to their 77th , 18th , 19th and20th proposed congressional districts in downstate Illi -nois . Additionally, the Rosebrook plaintiffs have notattempted to demonstrate any causal relationship be-tween the goal of political fairness and the populationvariances in the remainin g districts . Consequently, wefind that the Rosebrook plaintiffs have failed to suffi -ciently justify the population variances contained in theirplan as required under Kirkpatrick and Karcher . "

15 Notably , the Rosebrook plaintiffs moved atthe end of the first day of trial to submit amathematically perfect modified d istricting p la nthat al s o maintained the purp o rte d advantage s ofthe plan pre s ently under re vi ew . The cou rt

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granted the mot ion as a reque st to s ub s titute thenew plan for the p l an s ubmitted before trial andafforded the option of proceeding with eitherplan , but not both . Th e Rosebrook plaintiffs ulti -mately declined to proce ed with their mathemaY i -cally superior modified plan. In declining to pro-ceed with the mathematically perfect plan , theRosebrook pla intiffs undermine any argumentthat the variances contained in the present planwere nece s sary to achieve the goals of maximi z-ing racial minority voting power , preservin g his -toric districts and political fairness .

[ ** 30] Because m i nute population deviations re-main legally significant under Wesberry, Kirkpatrick,and Karcher, we find that the weight of the ev i dencefavors the adoption of the Hastert plan . But , rather thanreduce congressional redistricting to a "hair spli tt inggame," Carstens v. Lamm , 543 F . Supp . at 85 , we shallfocus greater attention on other constitutional criteria thatmay reveal a more si gnificant distinction between theHastert and Rosebrook plans . See Karcher v . Daggett,462 U.S. at 750-53 (Stevens, J ., concurring) (perfectpopulation equality standard is a useful neutral criterion,but alone is an inadequate method for adjudging consti-tutionality of a red i s tr icting plan) . "

16 The fact that [HN7]"the rule of absolute[population] equality is perfectly compatible with'gerrymander' of the worst sort. " Wells v. Rocke-fellez 394 U S 542 551 22 I, . Ed. 2d 535 89 S .Ct. 1234 (1969) (Harlan , J , dissenting) , wouldcounsel careful scrutiny of both plans under otherconstitutional and legal criteria regardless of th emarginal nature of the population deviations em-bodied in the Hastert and Rosebrook plans .

[**31] 2. Discrimination

We next evaluate the Hastert and Rosebrook plansfor their fairnes s to the voting rights of racial and lan-guage minorities, [HN8]Racial gerrymandering violatesboth the Fifteenth Amendment, Gomillion v . Lightfoot,364 U S 339 5 L. Ed . 2d 110, 81 S . Ct . 125 (1960), andthe Equal Protection Clause of the Fourteenth Amend-ment, Reynolds v . Sims 377 U S 533 12 L . Ed. 2d 506 ,84 S. Ct 1362 (1964) . Discrimination claims under ei -ther constitutional theory require a show ing of a dis -criminatory motive against a minority group in the draw -ing of district boundaries . Mobile v . Bolden, 446 U.S .55, 62 -66 64 L. Ed. 2d 47, 100 S Ct 1 490 (1980) . Theprincipal springboard for challenging a districting planon discrimination grounds i s § 2 of the Voting RightsAct, 42 U . S . C . & 1973 . ° [ * 646] Since amended in198 2, a claim und e r § 2 no l o nger requires only a show-ing that a di stri ctin g p l an ha s a discriminatory e ffectaga i n st a raci a l o r l anguage m in o rit y. 's Thornbure v .

Gin2les 478 U S 30, 92 L. Ed. 2d 2 5 106 S. Ct. 2 7521986 . No allegation of discriminatory motivation hasbeen raised against either the Hastert or Rosebrook plans,n o r i s one discern ible from the record . " We thereforeanalyze the Haste rt [ ** 32] and Rosebrook plans for anydiscriminatory effects they may have on racial or lan-guage m i norities solely under the terms of § 2 of the Vot-i ng Rights Act. [ ** 33J

17 [ I-TN9]42 U . S.C. & 1973 states :

(a) No voting qualification or prerequisite tovoting or standard , practice , or procedure shall beimposed or appl ied by any State or political sub -divi s ion in a manner which results in a denial orabridgement of the right of any citizen of theUnited States to vote on account of race or color ,or in contravention of the guarantees set forth insection 1973b(fl(2) of this title, as provided insubsection (b) of this section.

(b) A violation of subsection (a) of this sec-tion is established if, based on the totality of cir-cumstances , it is shown that th e political proc-esses leading to nomination or election in theState or political subdivision are not equally opento participation by members of a class of citizensprotected by subsection (a) of this section in thatits members have less opportunity than othermembers of the electorate to participate in the po-litical process and to elect representat i ves of theirchoice. The extent to which members of the pro-tected class have been elected to offi ce in theState or political subdivision is one circumstancewhich may be considered : Provided , That nothingin this section establishes a right to have mem-bers of a protected class elected in numbers equalto their proportion in the population.18 Prior to the 1982 amendment to § 2 of theVoting Rights Act, the Supreme Court required ashowing of discriminato ry motivation as part of a§ 2 claim . Mobile v. Bolden. 446 U.S . 55 64 L.Ed . 2d 47, 100 S. Ct . 1490 (1980). Congressamended § 2 for the express purpose of replacingthe Bolden standard with the "results" test ofWhite v. Reeester, 412 U.S . 755 , 37 L. Ed. 2d314. 93 S. Ct . 2332 (1973), that applied in all pre-Bolden cases . S.Rep . No . 417 , 97th Cong. , 2dSess . 27 (1982), reprinted in 1982 U . S . CodeCong. Admin . News 177,205.19 To the contrary , protection of the interests ofminority communities was a driving force forboth the Hastert and Rosebrook plaintiffs. Thesuccess of both parties in meet i ng the needs ofminori ty communities i s refle cted in the fact thatthere are no minor i ty group obj ecti o n s to either

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plan . Th e agreement among the parties i s remark -able for the fact that maj or demographic changesduring the 1980 's nece s sitated radical alterationsi n th e co nfi guration of th e existing minority di s -trict s. Tr. 117 -20 (Taylor testimony). The presentminority districts (I st , 2nd, 7th) have experiencedsignificant losses i n population, see Haste rt Exh.2, 3 , 4 , 5, 26 , 27 , particularly Afiican-Americ anpopulat i on , see Hastert Exh . l0A 13 , 14 , 17, 26,27 , over the past ten years . In addition, the Chi-cago area African-American population appearsto have shifted southward between 1980 and1990 . Id . ; Tr . 138 (Taylor testimony) .[FIN10]Bipart isaii effort to avoid minor ity dilu-tion, like that exhibited in the present c as e, typi-cally is sufficient to defeat a Fourteenth orFifteenth Amendment racial discrimination chal-lenge to a districting plan . See FlanaQan v. Gill -mor, 561 F.Supp . 36, 46 S . D. Ohio 1982) .

[ ** 34] [HN11 ]Discriminatory impact claims pro -ceed under the theory of minor i ty vote dilution . Votedilution, in the legal sense , refers to the impermiss iblediscriminatory effect of a di stricting plan when it oper-ates "to minimize or cancel out the voting s trength of[minority] groups . " Fortson v Dorsev , 379 U . S . at 439 .Dilution of minor ity voting strength through the drawingof district lines occurs as a result of one of two strategies.Minority voting strength is most typica ll y diluted byfr agmenting large concentrations of minority populat ionand disbursing them into separate political districts , thuspreventing a minority community from constituting amajori ty with i n a sing l e political district . Beer v. UnitedStates 425 U S 130, 141, 47 L. Ed. 2d 629, 96 S. Ct.1357 (1976). Altern atively , minority vote dilution iscaused by concentratin g minorities into districts wherethey constitute an excessive majority . See Thornbure v.Gin les , 478 U.S . at 46 n . 11 (1986), citing Engs trom &Wildgren , Pruning Thorns from the Thicket : An Empiri-cal Test of the Existence of Racial Gerrymanderin g,[ ** 35] 2 Legis . Stud . Q . 465 , 465-66 (1977) (additionalcitations omitted) . This second districting technique ofpackin g minoriti e s into a sin g le district wastes minority

voting power and unnec essarily min im i zes minority i n-fluence in other districts . Wright v. Rockefeller , 376 U . S .52. 57, 11 L. Ed. 2d 51 2 , 84 S. Ct . 603 (1964).

i . African-Am erican Super-Majority Districts

Both the Hastert and Rosebrook plans preserve, inalmost identical fashion , [ * 647] the three "super-majority" '0 African -American seats (the Ist , 2nd and 7thCongressional Districts) established in the 1981 congres-sional districting plan . Consequently , we find no "retro -gression" in minority electoral representation as a resultof the two plans . Beer. 425 U.S . at 141. Moreover, eachof the super-majority A fr ican-American districts containslittle more than the approximate 65% minority popula-tion concentration generally regarded as necessary toensure minorities a reasonable opportunity to control adistrict . 1' See Ketchum v. Byrne , 740 F.2d 1398, 1408n.7 (7th Cir. 1984), cert . denied , 471 U . S. 1135 (1985);United Jewish Oreanizations, Inc. v. Carey, 430 U.S.144, 51 L . Ed. 2d 229 , 97 S. Ct . 996 (1977) . [ ** 36]Consequently, we find no evidence of impermissibleminority "packing" under the Voting Rights Act withrespect to either plan .

20 [HN12]Minority concentrations of 65% totalpopulation and 60% voting age population withina single district are regarded as necessary to pro-vide a minority population with a reasonable op-portunity to "exercise political control over thatdistrict . " United Jewish Organizations, Inc, v .Carey, 430 U.S . 1 44 , 51 L . Ed . 2d 229 , 97 S. Ct.996 (1977 ) . These "super-majori ty districts"compensate for the higher non-voting age popula-tion percentages, lower voter registration andlower voter turnout found in minority communi-ties . See Ketchum v. Byrne, 740 F.2d 1398 ,1413-I 5 (7th Cir. 1984) , cert . denied, 471 U.S.1135 (1985); In re Congressional Districts Cases,No . 81 81 C 3915, s lip op . at 14 (N . D . [ll . Nov .23 , 1981) .21

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[ ** 37] We note that the proposed 7th district ineach of the plans is the least secure of the A frican-American super-majority di s tricts . As noted above, aconcentration of 65% total population and 60% votingage minority population is generally regarded as the[ * 648] threshold for creating g safe minority district .U nder the Has tert plan , the 7th district has a 65,15% totalAfrican-American population concentration and 59.33%votin g age popul ati o n concentration . The Rosebrook plan

contains corresponding concentrations of 65 . 01% totaland 59 .29% voting age A frican-American populations .Because both plans dip slightly below the 60% votingage population concentration level deemed to create asafe 7th congressional district , we favor the plan thatcomes closest to that leveL The Hastert plan comes clos-est by a slight margin . Therefore , as a techn ical matter,the Hastert pl an i s marginally superior to th e Rosebroo kp l an as it relates to the three African-American super-maj ority di s tr i cts.

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777 F . Supp . 634 , *; 199 1 U . S . Di s t . LEXIS 1644 6 ,

it Hispanic Super-Majority Dis trict S . CY . 2752 (1986), requ ires the creation o f an Hispanic

His-dis trict at this time . ' � The extraordina ry confi gurat i on of

Each plan also creates a new super-majority the propo sed Hispanicpanic district with a[" * 38] total Hispanic population of district agreed to by all part ies

65% and voting age population of just over 59%. " The reqa* re s u s no t to accept this conclu s i o n without scrutiny.

Hispanic Nieves plaintiffs contend , and all pa rt ies agree , [ 39]

that § 2 of the Voting Rights Act , as construed in 22Thornbur v . Gineles 478 U.S. 30 , 92 L . Ed. 2d 25 , ] 06

MINORITY DISTRICT RACIAL/ETHNIC DATA

Hispanic DisT.(Proposed)

IPomilation White Afr:Am.Black

57

VAP connotes

trict agreed to by all part ies in the present action23 [TIN13]Section 2 of the Voting Rights Act makes the "bizarre" configuration of the Karcherextends coverage to "l anguage minorities" by in- congressional dis tricts acceptable by comparison.corporating "the guarantees set forth in [ 42 The Chicago Hispanic community resides princi-U.S.C. &1 1973b(f)(2)." Chisom v . Roemer, pally in two dense enclaves, one on Chicago'sU.S. 111 S . Ct . 2354 , 2362 & n.18 (1991) . near northwest s i de and one on the near south-Section 1973b(fl[2 states: west side . The present 7th Congressional Distr ict

fication or prerequisit e to that runs roughly in an east-west direction alongNo voting qualification

or standard , practice , or pro cedure sha llChicago's central latitudes from Lake Michigan

be imposed or applied by any State or political to the western suburbs separates the two Hispanic

subdivision to deny or abridge the right of any enclaves . Both the Haste rt and Rosebrook plansHis-

citizen of the United States to vote because he is connect the northwes t and southwest side His-

a member of a language minority group.panic enclaves by running a narrow corridor

es the terms around the western end of the 7th Congressional24 The Supreme Court usually applies

and " irregular" to unusual district con - District, creating a C-shaped configuration. To

figurations . See Gomillion v. Lightfoot, 364 U . S. ensure a sufficient Hispanic concentration with in

- the proposed district , both maps shoot rays out339, 5 L. Ed. 2d ll0 81 S Ct 125 (1960) (re-

of city limits " from a square to an un - from the northwest and southwest enclaves to

" to exclude a ll capture additional Hispanic population . In sum,couth twenty-eight-sided figure" d i strictbut four or five of city's black residents states looks not unlike a Rorschach blot

claim under ISth Amendment). Justi ce Stevens , turned on its side . Few districts have quite so an

in his concurring opinion in Karcher v. DaQQetY, extraordinary appearance . See genera ll y Congres-

462 U . S. at 744-65, took aim at the "bizarre con - sional District Atlas : 100th Congress of the

fig uration" of New Jersey's 1982 congressional United States , United States Dept . of Commerce

reapportionment plan . We would be remiss if we Bureau of the Cen s us (198 .5) .

failed to observe that the proposed Hispanic di s -

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[**401 MINORITY DISTRICT RACIAL/ETHNICDATA

[*649] G i n gle s represents th e Supreme Court 's firstattempt to con s tru e the broad and amb iguous term s o f theamended § 2 of the Voting Rights Act. The case involveda claim that the creation of ce rt ain mult i -member dis-tricts in th e 198 2 North Carolina legis lature redistrictingplan impa i red the abili ty of black citizens within tho s edistricts to elect repre s entatives of their choice . A three-judge di strict court found in favor of the plainti ffs andapproved a new redistricting plan that converted most ofthe multi-member districts i nto single-member districts ,many of which were drawn with black population ma-jorities. In affirming the distr ict court in most respects,the Supreme Court reviewed the plaintiffs' claims underthe "totality of circumstance s" prescribed in § 2(b) of theAct, 42 U.S .C . � 1973(b) .

As an initial matter, Gingles requires [HN14] a mi-nority group to make a threshold showing that it is : (1)sufficiently large and geographically compact to consti -tute a majori ty in a properly drawn district ; (2) politicallycohesive; and (3) that racial bloc voting [ ** 4 1 ] typicallyfrustrates the election of the minority group's preferredcandidate . 478 U.S . at 50-51 . A minority group meetingthese threshold § 2 Voting Rights Act requirements isentitled to cons ideration of its claim on the merits underthe totality of circumstances test .

[HN15 ]The totality of circumstances test relies prin-cipally upon a set of objective factors culled from Whitev. Regester, 412 U S 755 37 L. 314 93 S. Ct.2332 (1973) , and outlined in the Senate Report accom-panying the 1982 amendments to § 2 . S.Rep . No. 417,97th Cong., 2d Sess . 27 (1982) , reprinted in 1982 U . S .Code Cong . & Admin . News 177, 205 ("S. Rep . 147").The factors relevant to a § 2 claim include: a history ofofficial discriminati on relating to minority political par-ticipation; the extent of racially polarized voting prac-tices; the extent to which ce rtain voting practices andprocedures with discriminatory effects have been em-ployed in the past ; the exclusion of the minority groupfrom the candidate slating process; the extent to whichthe minority group bears the effects of past discrimina-tion in education , employment and health service s whichhinder their ability to effectively part icipate in [* * 42 ]the political process ; the use of racial appeals in politicalcampaigns ; the extent to which minorities have beenelected to office; and the lack of, responsiveness byelected officials Co part icular minority needs . S . Rep . No147 at 28 -29 , reprinted in 1982 U . S . Code Cong. &Admin . News at 205 -06 ; Gingles, 478 U.S . at 44 -45 . Noone factor or group i ng of factors is dispositive of minor-ity vote dilution . Id . at 29; 1982 U . S . Code, Cong. &Admin . N ews at 207.

We di scuss First wheth er th e claim o f the Hi spanicNieves plaintiffs satisfies the thre s ho ld Ging l es requne-ments . According to the 1990 censu s , th e Hi spanic popu -l ation of Chicago now totals 54 5,8 52 , an i ncre a s e of29 . 33% over the 1980 count of 422, 05 2. Haste rt Exh. 7.The number for Cook County , which includes Chicago,now totals 694, 194, an increase of 39% over the 1980fi gure . Id . Most of the Chicago/Cook County Hispanicpopulation is clustered into two dense enclaves , one onChicago ' s near northwest side and another on the nearsouthwest side . Haste rt Exh . 8 , 10; Tr. 104 (Taylor testi -mony). The two separate Hispanic population clustersare less than a mile from each other at their closest[ *M 43] points . Hastert Exh. 10 . The separation of theclusters is not indicative of the existence of two distinctcommunities, but appears to have occurred as a result ofexogenous physical and institutional barriers . " Wetherefore conclude that the Chicago /Cook County His-panic community is "sufficiently large and geographi-cally compact" to constitute a sin gle distr ict majority .Ging les, 478 U.S . at 50.

25 The two Hispanic population clusters appearto be separated by Chicago's major east- westhighway , the Eisenhower Expressway , as well asby expanses of land developed by the Universityof Illinois-Chicago Circle and various majormedical institutions . Haste rt Exh. 10; Nieves E xh.2 , Aff. oEDr . Felix M. Padilla .

[ * 650] Second , the Chicago/Cook Coun ty T-Iispaniccommunity clearly is politically cohes i ve . The Nievesplaintiffs properly refer the cou rt to previous adjudica-tions that found the community politicall y cohesive andwhich are themselves evidence of a community acting asone to defend against politically [ ** 44] discriminatorypractices at both the state and local level. See Ketchumv. Byme 740 F.2d 1398 (7th Cir. 1984) (1982 Chicagoaldermanic redistricting plan violates Hispanic rightsunder Voting Rights Act) , on remand, 630 F Supp . 551(N.D. Ill . 1985) ; Rvbicki v. State Board of Elections , 574F. Supp . 1082 (N . D. III . 1982) (three-judge panel) (ap-proving Voting Rights Act settlement with Hispaniccommunity regarding 1982 state leg i s lative redistricting) .

The political cohesiveness o1' the Hispanic commu-nity is fu rther reflected in the bloc voting patterns of thecommunity . Single and bivariate regression analysis ofvoting patterns in Chicago precincts demonstrate si gnifi-cant ethnic bloc voting pattern s . See Has tert Exh . 41 ; Tr .34-36 (Engs trom testimony); Nieves Exh . 1, Aff. of Dr .Gordon G. Henderson . Previous judicial finding s demon-strating a paucity of Hispanic o ffi cials in city and state-wide elected political office s, se e Ketchum 740 P.Z d at1406 , compel the fi n din g that ethnic bloc vo t i ng pa ttern sh ave thwart ed th e po l itical int e res t s o f th e Hi s p anic

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community . Thus, we find that th e third [ * *45 ] Gingle sprecondition i s met with respect to the Hi spanic commu-nity . See Gingle s , 478 U . S . at 51 .

Havin g satis fied the Gingles threshold requirement s,the Hispan i c Nieves pl ainti ffs are entitled to an adjudica-tion of their § 2 claim under the totality of c ircumstancesfactors . The Nieves plaintiffs again direct the court to theprevious adjudicatory fi ndings in Ketchum v. Byrn e , 740F.2d 1398 (7th C ir. 1984 ) . In Ketchum, the Seventh Cir-cuit affirmed the di strict court 's findings that the wardmap drawn for the Chicago C ity Council in 1982 imper-missibly fractured the Hispanic community and thus di-luted Hispanic voting strength. Although Ketchum in-volved municipal redistricting, it bears directly on thepresent case because the proposed Hispan ic majoritycongress ional district now under consideration is essen-tially co-terminous with the Hispanic community andpopulation discussed in Ketchum .

In Ketchum, the Seventh Circuit relied in part uponthe objective factors outl ined in S. Rep . 147 and foundmany of the factors pres ent with regard to the ChicagoHispanic community . The Court made specific referenceto the history [ ** 461 of discr imination against ChicagoHispan i cs in housing , education and servi ce s , which thecourt regarded as a cause of the historically low Hispan icvoter registration and turnout . 740 F . 2d at 1405 . TheCourt also acknowledged the absence of any Hispanicrepresentatives on the Chicago City Council from 1920to 1980 . Id . at 1406. Finally, the Court noted that theHispanic population also has been adjudged the victim ofintentional discriminat i on in the drawing of certain statelegislative d istricts following the 1980 census . Id. ; seealso Rvbicki v . State Board of Elections , 574 F . Supn.1082 (N.D. Ill. 1982) . This judicially recogn ized histo ryof discrimination, both past and recent, against the Chi-cago Hispanic community and its attendant impact oneffective politi cal part icipat i on and representation, asevidenced in Ketchum, satisfies this court that a Hispanicmajority district i s warranted under Gingles.

The location of the Chicago Hispanic community i ntwo highly concentrated enclaves on either side of the7th Congressional District on Chicago's near northwestand near southwest sides neces sarily requires an odd[**47] confi guration to accommodate the creation of anHispanic dis trict and the three super-majority African -Amer i can districts dictated under the Voting Rights Act."Uncouthness , " as defined by the Supreme Court , is notan aesthetic concept . Rather, an uncouth district configu-ration typicall y serves merely as a signal to a court that itshould more closely scrutinize a districting plan for con-stitutional infirmities. In this instance , the confi gurationhas been drafted to sati s fy cons titutional and statutorygoa ls and principle s. [HN 16] Raci a l and ethnic con s idera-ti o n s are [*651] appropriate in d rawing district s to ad-

vance th e goal s of the Voting Rights Act . S e e UnitedJew is h OrQanizatioias Inc. v. Carey, 4 30 U.S. 144, 51 L .Ed. 2d 229 , 97 S . Ct . 996 (1977) . We wi ll there fore ap-prove the proposed cre at i on o f an Hispanic majority di s -tr i ct . Cf. Fl anaean v . Gillmor , 5 61 F.Supp . 36, 46 (S.D .Ohio 1982 ) (bipartisan effo rts to avoid minority dilutionwi ll defeat discrimination challen ges) .

In determining which proposed plan most effectivelyserves the goa l of politic al fairness to the Hispanic com-munity, we note that the Hastert and Rosebrook plansconfigure their proposed Hispanic majority [ * *48] dis-tricts in almost identical fashion . Hastert Exh . 43 ; Rose-brook Exb . 2 ; Tr. 106 (Taylor testimony) . The Hastertplan creates an Hispanic district of 65 .03% total and59 . 18% voting age Hispanic populations . Again , theRosebrook plan very nearly equals the Hastert Hispanicconcentr ation figures . The Hispanic Rosebrook districtcontains correspondin g concentrations of 65 . 00% totaland 59.15% voting age Hispanic populations. The differ-ence between the two plans is minimal, but again wemust conclude that th e Hastert plan is marginally supe-rior to the Rosebrook plan because ' it offers the Hispan iccommunity a s li ghtly better opportunity to exercise po-litical control over the Hispanic majority district.

iii. Downstate Illinois Districts

The Rosebrook plaintiffs contend that the Hastertplan dilute s the voting strength of the Spr ingfield andDecatur, Illinois, A frican -American communities byplacing those two cities in separate congressional dis -tricts . '` The Rosebrook plan joins both Springfield andDecatur in a single dis tr ict , " thus maintaining the 20thCongressional District in the 198 1 plan. The African-American communities of Springfield [ **49) and Deca-tur, as aggregated under 1981 plan , presently comprise5 . 9% of the total population and 4 .7% of the voting agepopulation of the 20th Congressional District . 's HastertExh . 26 , 27 . The Rosebrook plaintiffs contend that thepresence of these small, noncontiguous minority com-munities " makes the present 20th Congressional Districta minority "i nfluence district" entitled to § 2 VotingRights Act protecYion .

2 6 The Hastert plan places Springfield in theproposed 20th district and Decatur in the pro-posed 19th district .27 Th e Rosebrook I 8Ch district.28 The Rosebrook 18th district essentially pre-serves this minority concentration. The aggre-gated A fr ican-American populations of Spring-field and Decatur would comprise 5 .71% of thetotal population and 4.81% of the voting agepopul at i on of th e Rosebrook 1 8th district. Ros e -brook Exh . l3 .

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29 Approximately 35 miles and s ix town ship sseparate Sp r ing fi e ld and Decatur at th e ir closesttownship boundaries . Haste rt Exh. 2 1 .

The concept [k*5 0 ) o f a Voting Rights Act influ -ence district was recognized for the first time only re -cently in Armour v . Ohio , No . C88 - 1104Y s li p op . (N .D .Ohio Sept . 4 , 1991) (LEXIS Genfed Library, Dist . fil e) .The Armour plaintiffs were African -Amer ican re s identsof Youngstown and neighboring Campbell City, Ohio .The state adopted and implemented a legislative district-ing plan for the Ohio House of Representatives thatfragmented the greater Youngstown African-Americancommunity into two single-member di stricts where theyconstituted only 24 .96% and 11 . 11% of the respectivetotal district populations. The plaintiffs contended thatthis fragmentation constituted minori ty vote dilution un-der § 2 of the Voting Rights Act . The state contendedthat the plaintiffs were not entitled to an adjudication oftheir Voting Rights Act claim on the merits because theyfailed to satisfy the first of the three threshold require-ments set forth in Ging le s ; namely , that the plaintiff mi-nority group was not "sufficiently large ... to constitutea majority in a single-member district . " G ineles , 478U . S . at 50.

A divided three-judge district court rejected thestate's argument and held [ ** 51] that the § 2 thresholdconditions established in Gingles do not apply to § 2Voting Rights Act chall enges to single-member districts .Armour, slip op . at 1 2 . The Armour court further recog-nized the plaintiffs as part of a minority influence districtand found that the plaintiffs had been th e victims [*652]of cognizable and redressable minority vote dilution un-der § 2 oFthe Voting Rights Act. The Armour court justi-fied its narrow construction of Gingles by noting that theGingles majority had expressly limited its holding to thefacts of that case involvin g a challenge to multi-memberdistricting . Indeed, the Court in Gingles stated :

.. We have no occasion to consider whether § 2permits , and if it doe s , what standards should pertain to aclaim brought by a minority group, that is not suffi-ciently large and compact to constitute a majority in asingle -member district, alleging that the use of a multi-member district impairs its ability to influence elections.

We also note that we have no occ as ion to considerwhether the standards we apply to respondents' claimsthat multi-member distric t s operate to dilute the vote ofgeographically cohesive minority groups , [ * *52] thatare large enough to constitute majorities in single -member districts and that are contained within theboundaries of challenged multi-member districts arefully p ert inent to other s ort s o f vote - d i lution claims, suchas a cla im a l l eg ing th at the splitting of a lar ge and geo-graphica l ly cohes iv e mi n ority between two o r more

multi-member or single-member districts resulted in thed i lution of the minority vo te .

Gine le s, 478 U . S . at 46 n. 12 (emphasis in ori ginal) .

To further buttress its narrow construction ofGingles, the Armour court referred to the SupremeCourt's most re c ent § 2 case , Chisom v . Roemer , U.S ., I S . Ct . 2354 (199 D, in which the Cou rt held that § 2govern s judi cial elections. In Chisom , the Court statedthat § 2 plaintiffs must demonstrate that an electoral de-vice diminishes both their opportunity to participate inthe political pro ce ss and their opportunity to elect candi-dates of their choice . I I I S . Ct. at 2365 . Justice Scaliaargued in dissent that the majority's requirement that aminority group always show a diminished opportunity toelect candidates of their choice would bar §[** 53) 2claims to those "minorities who form such a small part ofthe electorate in a particular jurisdiction that they couldon no conceivable basis 'elect representatives of theirchoice : " Id. at 2371 (Scalia, 7 ., dissenting). The majorityresponded by stating that Justice Scalia's criticism"rested on the erroneous assumption that a small groupof voters can never in fl uence the outcome of an etec-tion . ° Id. at 2365 n.24. The Armour court ultimately em-ployed the Supreme Court's limiting statements inGingles and its dicta in both Gingles and Chi som as itspoint of departure for recognizing the Greater Youngs-town area as a m i nority influence district entitled to § 2protect ion .

We agree w ith the Armour cou rt 's conclusion thatthe Supreme Court has not foreclosed an extension ofVoting Rights Act protection to groups unable to consti-tute a majority i n a properly drawn single-member dis-trict. We are troubled , however, by the fact that the Ar-mour cou rt appears to have concluded that because theSupreme Court has not ruled out the in fluence districtconcept , the Court will likely embrace this broad inter-pretation of § 2 without [ '`* 54) limitation in the future .Moreover , the Armour court did not undert ake anyanalysis of the statute or its legislat i ve history that mightsuppo rt its holding . The Armour court also appears tohave disregarded serious objections to the breaching ofthe Gingles single-member majority precondition raisedby other court s in the context of multi-member distr ictchallenges . See e . g ., McNeil v. Sprinefield Park Dist.,851 F.2d 937 (7th Cir . 1988), cert. denied, 490 U.S. 1031,104 L. Ed. 2d 204, 109 S. Ct. 1769 (1989) .

The scope of the Voting Rights Act , as construed bythe Supreme Court , has been defined principally in thecontext of cases addressing the impact of a districtingpracti ce upon an effective votin g majority. Ginales v .Edmisten, 590 F . Supp 345, 381 (E Q.N.C. 19 84]1 (threejudge pane l) , affd in p art, rev'd in part s ub nom .,ThornburQ v Gin les, 478 U . S . 3 0 92 L . Ed . 2d 2 5 , ] 06

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S . Ct . 275 2 1986. S i milarly , Vot i ng Right s Act caselaw has developed primarily in response to challen ges toa single [* 653 ] dilutive device--the at-large or multi-member district. Terrazas v. Clements, 5 81 F . Supp .13 2 9 , 1 3 47 (N . D . Tex . 1984) (three judge panel); [ ** 55]see generally, Abrams, Raising Pol i tics Up : MinorityPolitical Participation and Section 2 of the Voting RightsAct , 63 N . Y .U . L . Rev. 449 (1988) . Because VotingRights Act case law has focused primarily on the impactof electoral practices on the ability of minorities to electrepresentatives of their own choosing , it is hardly sur-prising that the Supreme Court in Gingles required proofof a single -member dis tr ict majori ty as a precondition toa § 2 claim. Indeed , in stating its reason for imposing theprecond ition, the Court stated that [H1V17]"unless minor-ity voters possess the potential to elect representatives inthe absence of the challenged structure or practice , theycannot claim to have been injured by that structure orpractice . " Gineles , 478 U . S. at 50 n,17 (emphasis inoriginal) .

Two separate but related concerns appear to animatethe Court 's explanation for implementing the single-member district majority pre-condition. The first is oneof proof of injury . A minority voter majority demonstrat-ing an ability to elect a representative provides the courtwith an objective brightline measure for determiningwhether an injury [* * 56] has in fact occurred. The in-ability of minority voters to control their own politicaldestiny may readily be viewed as the result of a dis-criminatory electoral structure. Where the minori ty vot-ers could not constitute a single-member district major-ity, injury become s a more elus ive and subjective con-cept . It is only through the electoral majority precondi-tion that cou rt s are possessed of a "clear measure of []voting strength , hence a fair and workable standard bywhich to measure dilution of the strength . " Gingles v.Edmisten, 590 F . Supp . at 381 .

The second concern is one of fashioning an effectiveremedy for § 2 violations. In the absence of an objectivemeasure of vote dilution provided by the electoral major-ity precondition , a court lacks a similarly objectivemeasure for formulating a remedy against a di s crimina-tory structure or practice . In a case where the electoralmajority precondit ion i s satis fi ed , a court need only ordera reconfiguration of the challenged distr i cts Co ensurethat a minority community effectively controls its ownpoliYical destiny . Absent this brightline test, relief be -comes a truly perplexing issue necessarily requiring acou rt to resort [ ** 5 7] to vague , subj e ctive criteria .

The circumstantial focus of Voting Rights Act caseson the ability of racial and language minorit ies to winelections has left the courts with ] i ttle need Co grapplewith the pro vi s i on o f § 2 prot e ctin g the "oppo rtunity ...to participate i n the political pro c ess. " 42 U . S . C . & 1973

b(�.'° It is this ambiguous and open -ended provi s ion thatpresumably must serve as the basis for recognizing dilu -t i on of minority " influence" claims under § 2 . There islittle doubt that the "pa rt icip ation" provi s ion, as worded ,may accommodate a con struction that would permit § 2claims by minority groups lacking a single - district elec-toral majority. Moreover , such a construction would notcover new conceptual ground for the Supreme Court, asdemonstrated by the limiting l anguage in Gingles refer-ring to the ability of minority voters to "to influence elee-tions . " Gingles, 478 U.S. at 46-47 n . 12 (emphasis inoriginai). " [**58]

30 This participation provision was not part ofthe original § 2 , but was added as part of the 1982amendments to the Voting Rights Act .31 The Court also has framed much of itsFourteenth Amendment Equal Protecti on juris-prudence regarding claims of discriminationagainst minority voters in terms of voter "influ-ence . " For example , on the same day the Courtissued its ruling in Gingles , a plurality of theCourt in Davis v. Bandemer, 478 U.S. 109 92 L .Ed. 2d 85, 106 S . Ct. 2797 (1986), stated in thecontext of a political gerrymanderin g cla im that"unconstitutional discrimination occurs onlywhen the electoral system is arranged in a mannerthat will consistently degrade a voter's or a groupof voters' influence on the political process as awhole," Id. at 132 .

Existing precedent offers little meaningful guidancefor approaching the question of whether § 2 does in factembrace the [ *654] concept of minority influence dis-tricts . A review of the legislative history accompanyingthe 1982 amendments to the Vot ing Rights Act fails toshed light on the issue . The legislative history regardingthe § 2 amendments is devoted almost exclusively to themerits of replacing the Mobile v . Bolden intent standardfor proving § 2 claims [** 59] with the White v .Regesterresults/totality of circumstan ce s test . See gener-ally S . Rep . No. 417, 97th Cong., 2d Sess . I 5-43 (1982) .The total absence of direct legislative or judicial guid-ance on this matter leaves us reluctant to recognize aconcept that would so radically expand the scope of theVoting Rights Act .

Additionally, we are unable to perceive , as a matterof simple logic, a principled justification for waiving theminority voter majority requirement in single-memberdistrict cases while preserving it in multi -member or at-large district cases . The concerns animating the Gingleselectoral majori ty precondition for multi-member cases - -concerns of proof an d relief--reside equally in the s in g l e-member context . " Thus , we believe the Ging l es e l e c -toral majority p re -condit i on may limit the Cou rt's op tio n s

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when it doe s cons i der s in gle-member district ca s es underthe amended § 2 .

3 2 We regard the Cou rt's disclaimer in Ging le slimiting the scope of that holding s imply as anindication that the Court did not consider the im-pact of its holding as it rel ated to other conceiv -able types of claims under § 2 . We do not read itas an indication that the Court anticipated theadoption of a different s et of preconditions forsingle-member district cases as the Armour courtapparently concluded.

[ ** 60] Moreover, we agree with the analysis ofother cowts concluding that the recognition of minorityinfluence districts may raise at least as many issues as itwould resolve . For example , in cases involving chal-lenges to multi-member districts , courts have recognizedthat an unrestricted breach of the Gingles single-distr ictmajority precondition will likely open a Pandora's box ofmarginal Votin g Rights Act claims by minority groups ofall sizes . See McNeil v. Sprinefield Park Dist. 851 F . 2d937 7th Cir . 1988); Skorepa v . Chula Vista, 723 F .Suoo 1384 (S.D. Cal. 1989); Armour v . Ohio , No. C88-1] 04Y slip op . (Batchelder, J . , d i ssenting) at 30-32. TheGingles precondition does prevent s izable minoritygroups from attempting to rectify electoral practices thatdilute their votes and impair their ability to participate inthe political process . Id . at 942. However, the electoralmajority precondition ensures that larger m inori ty groupswith equally meritorious but broader scale claims willnot have to compete with myriad marginal Voting RightsAct claimants likely Co jam the cou rthouse door in theabsence of an electoral majori ty [ ** 61] precondition . Id.at 943. This administrati ve consideration applies equallyin the context of single-member district c as es.

One way to contain this potential problem would beto limit "influence districts" to a certain statistical ran ge.This response , however , highlights a second problemwith breaching the Gingles minority voter majority pre-condition . We perceive the Gingles electoral district ma-jori ty precondition as the only rational measure for limit-ing voter group size under the Voting Rights Act .Gingles v . Edmisten , 590 F . Supp. at 3; Skorepa v. ChulaVista, 723 F . Supp . at 1384 . Once this threshold isbreached, there appears to be no logical or objectivemeasure for establishing a threshold minority group sizenecessary for brin ging an influence claim under § 2 .

In the present context , the Rosebrook plainti ffs askthat we recognize a district with a 4 .9% Afr ican-American voting age population concentration as a mi-nority influence district . The Rosebrook plainti ffs advo-cate adopt i on of a d e finition of m i nority i nfluence dis-trict th at ha s no s tati s ti cal bounds as to voter group size .11 [ *6 55 ] Even i Ewe were incli n ed recognize [ ** 62 1 th e

concept of minority voter influence distr icts , we simp l ycould not embrace the concept in th e open -ended manne rproposed by the Rosebrook plaintiffs . In this respect , weare i n fut1 agreement with the O i ngle s distr ict cou rt'sstatement that it was "doubtful that e ither th e SupremeCou rt in developing the [vote] dilution concept in consti-tutional voting rights litigation , or the Congress in em -bodying it in amended Section 2 of the Voting RightsAct intended an application open-ended as to voter groups ize ." Gingles v. bdmisten 590 F Supp. at 381 .

33 The Rosebrook plaintiffs state that "it is es-sential under the Voters (sic) Rights Act to createdistricts which , to the extent possible, maximizethe political voting strength of the minorities ,even when the m inorities are not yet sufficientlylarge to control electora l results . " RosebrookTrial Brief at 14. In addition to admitting of nolimits as to voter group size , this position runscounter to the principle that "no racial group hasa constitutional or statutory right to an appor-tionment structure designed to max imize its po-litical strength . " Mississippi v. United States, 490F. Supp . 569 , 582 (D D C . 1979) (stated in con-text of § 5 Voting Rights Act claim), affd mem. ,444 U.S. 1050 (1980); see Latino Political ActionComm., Inc. v . Boston , 784 F.2d 409 , 412 (IstCir. 1986); c£ 42 U.S . C & 1973 (b), (" . . . nothingin this section establishes a right Co have mem-bers of a protected class elected in numbers equalto their propo rt ion in the population").

[**63] Finally , we note that even if we were toembrace the Armour minority in fl uence district concept,the Rosebrook plaintiffs have failed to provide anymeaningful substantive evidence in support of the dilu-tion claim . Only offered are the conclusory affidavits ofCarol Toney of Springfield , I ll inois , Dr . Jeanelle Normanof Decatur , Illinois, and Richard J . Durbin , representativeof the present 20th Congressional District. No specificevidence has been offered that might demonstrate eitherthe political cohesiveness of the Springfield and DecaturAfrican-American communities or racial bloc votingpatterns in both communities that have frustrated theefforts of the minority communities to elect candidates oftheir choice . Thu s , the Rosebrook plaintiffs have failedto make the requisite showing of the second and thirdGingles preconditions to a valid § 2 dilutio n claim. Theyhave also failed to offer specific evidence proving thatany of the "typical objective factors" associated withminority vote dilution are at work in both the Springfieldand Decatur communities .

In sum , we conclude that the Gingle s e l ectora l ma-jority precondition canno t log ical l y b e l imited to the[ ** 64] multi-member di s trict co ntex t . W e decl i n e the

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reque st of th e Rosebrook plai nti ffs to recognize the mi-nority in fl uence distr ict concept embraced in Armour .We therefore reject the dilution claim regarding theSpringfield and Decatur African-American communities.In addition , we find that the Hastert plan is marginallysuperior to the Rosebrook plan in achieving the 65%total and 60% voting age m i nority population eoncenCra-tion levels deemed nece ssary to ensure minority voterswith a reasonable opportunity to exercise effective politi -cal control in the proposed A frican-American super-majority lst, 2nd and 7th congressional di stricts , as wellas in the proposed Hispanic district (the proposed HastertI ith congressional distr ict). Accordingly , we concludethat the Hastert plan better satis fi es the constitutionalrequirement of fairness to the racial and language minor-ity communities of Illinois .

iii. Po litical Fairness

Finally, we examine the Hastert and Rosebrookplans for political fairness. [HN18 ]The Supreme Cou rthas formally recognized political gerrymandering claimsas justiciable under the Fourteenth Amendment EqualProtection Clause since the cycle [**65] of congres -sional redistricting cases following the 1980 census .Davis v. Bandemer, 478 U S. 109 92 L. Ed. 2d 85, 106S. Ct. 2797 (1986), " In Bandemer, a group of IndianaDemocratic Party voters claimed [ * 656) that the 1981redistricting of the state legislature constituted a Repub-lican Party gerrymander intended to disadvantage De-mocrats. In the 1982 election for the Indiana House ofRepresentatives , the first election under the new district-ing plan , Democrats won 51.9% of the aggregated state-wide vote for House s eats, but won only 43% of theseats . The Democrats attributed this discrepancy to thecreation of a number of multi-member districts in whichDemocrats received 46 .6% of the vote, but won only 3 of2 1 multi -member district seats . In the races for the Indi-ana Senate , the Democrats received 53.1% of the votestatewide and were elected to 52% of the seats up for re-election. The plaintiffs based their claim of statewidedi s crimination solely upon the results of the 1982 elec-tion .

34 The Court had impliedly recognized the jus -ticiabil ity of political gerrymander claims i n nu-merous pre-Bandemer cases. The pre-Bandemercase most often cited for this propos it i on isGaffnev v. Cummings, 412 U . S . 735 , 37 L . Ed.2d 298, 93 S. Ct . 2321 f 1973), in which the Cou rtrefused Co invalidate a state redis tr icting planmerely because its design reflected a consciouseffort to be "politically fair . " In so doing, theCourt express l y acknowledged the in evitable rolepoli t i c al considerations play in redistricting andhe ld that it was permiss ible for a state legislature

to draw a plan " with the consci ous intent to createa dis tr icting plan that would achieve rough ap -proximation of the statewide political strengths ofthe Democrat and Republican partie s. " Id . at 752;accord In re Illinois Congression al Dist. Reappor-ti onment Case s, No 81 C 3915 slip . op . at 21-22(N.D. Itl. Nov . 23 , 1981) .

[ ** 66] Although a majority of the Court joined inrecognizing the justiciability of a political gerrymanderclaim, only a plurality agreed to the requisite elements ofproo£ Plaintiffs bringing political gerrymander claims ,under the plurality view , must prove both an intent of themap drawers to discriminate against an identifiable po-litical group and an actual discriminatory effect on thatgroup. Id. at 127, citing Mobile v. Bolden, 446 U.S. at67-68. The plurality, acknowledging the active role thatpolitical considerations inevitably play in the redistrict-ing process, implied that intent may be assumed wherethere is evidence of substantial discriminatory effect. Id.at 27-28 . Consequently , political gerrymander claimstyp i cally will rise or fall on the issue of discriminato ryeffect .

Under Bandemer, [HN19] a lack of proportional rep-resentation across party lines alone is insufficient to es-tablish a discr iminatory effect of unconstitutional dimen-sions. In the context of a statewide claim of political ger-rymandering, a finding of an equal protection violation"must be suppo rted by evidence of continued frustrationof the wi ll of a majority of the voters or effective [ * *67]denial to a minority of voters of a fair chance to influ-ence the political process . " Id. at 133 . In the plurality'sview, a plaintiff must establish "a history (actual or pro-jected) of dispropo rt ionate results." Id. at 139. A show-ing of " possible transitory results" is not sufficient. Id_at140 .

The Rosebrook plaintiffs contend that the HasCerCplan will result in a politically unfair redistribution ofcongressional seats between Democrats and Republicans.Both parties agree that on a statewide basis, the popula-tion of I ll inois is fairly evenly divided between Democ-rats and Republicans . Tr. 189, 279 (Brace testimony); Tr .64 (Engstrom testimony). " At the present time , how -ever, the Democratic representatives in the Illinois con -gressional delegation outnumber their Republican coun-terpart s by a margin of 15-7, or approximately 68%-32%. Both the Hastert and Rosebrook plans attempt toaddress the present discrepancy favoring the Democrats.The Rosebrook plaintiffs contend , however, that theHastert plan overcompensates for the imbalance and willlikely tip the balance in favor of th e Republican s , despitethe fact th at Democrats arguab l y continue [ * *68] toenjoy greater aggregate support i n th e gen era l popula-tion .

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3 5 Hastert expert Dr . Richard L . Engstrom re-garded the Democrats as enjoying slightly gre atersupport in th e general populati on , while Rose -brook exp ert Dr . Kimball W . Brace regarded theState as evenly split b etween Democrats and Re-publ icans .

Eller, I ss ue s in Gerrymandering: An Exploratory M ea s-ure of Part isan Gerrymandering Applied to Minnesota,62 Minn. L . Rev. 1121 (1978) ("Backstrom , Robin s &Ell er") . According to Dr . Brace, base lin e race s yield themost relevant data for determinin g the true pa rty prefer-en ce s of the electorate.

Substantial testimony at trial was devoted to thepresentation of competing stati s tic a l analy s es from theHastert and Rosebrook experts regarding the politicalimpact of the respect i ve plans . Hastert expert Dr . Rich -ard L . Engstrom evaluated both plans on the basis of rawelection data from races for the United States House ofRepresentatives from 1982-1990. Tr. 45 (Engstrom tes-timony) . Dr . Engstrom disaggregated the congressionalvote tallies and reapplied them to the congressional dis-tricts proposed in the two pl an s . The results show theHastert plan producing eleven safe Democratic seats andseven safe Republican seats. See Hastert Exh. 32 ; Tr. 47(Engstrom testimony) . Two additional [ * 657] districts[ ** 69] purported to lean Republican, the Hastert ] lthand 16th congressional districts , are presently held byDemocratic incumbents . Tr . 47 . Thus , Dr . Engstrom didnot regard these districts as safely in the Republicancamp. See id . If Republicans successfully unseat Democ-ratic incumbents in the two Republican-leaning districts,Democrats will enjoy an 11-9 advantage in the Illinoiscongressional dele gation.

Dr. Engstrom's application of the same congres-sional election data to the proposed Rosebrook districtsyielded fairly similar results . Dr. Engstrom characterizedthe party split resultin g from the Rosebrook plan as fa-voring the Democrats with 12 safe seats , while giving theRepublicans six safe seats, with two additional seatspresently held by Democratic incumbents, the Rosebrook4th and 16th districts , leaning Republican. The party splitwould be 12-8 favoring the Democrats if Republicanscould unseat Democratic incumbents in the two Republ i-can- leanin g dis tr icts .

Rosebrook expert Dr. Kimball W . Brace presented astarkly different assessment of the political impact of theHastert and Rosebrook plans . Dr. Brace disaggregatedelection data from elections [* * 70 ) for statewide offices" down to the precinct level, weighted them and reap-plied them to the new dis trict configurat ions proposed inthe each of the Hastert an d Rosebrook plans . Tr. 183-84 ;306-10 (Brace testimony) . In his analysis , Dr . Braceweighted the results from the University of Illinois Boardof Trustees election s (trustee results) most heavily . Tr .190 , 196 (Brace testimony) . Dr . Brace characterized theraces for Universi ty of Illinois Trustee as "base linerace s . " Tr. 190 (Brace testimony) . [HN20]In a bas e linerace, party affi l i ation i s regarded as the predominant vot -in g determinant rat h e r th an i ssues or the pers onalities ofthe c a ndid ate s. Id .; s ee gene ra ll y B ackstrom , Robin s &

36 The statewide office s included Governor ,Secretary of State , A ttorney General , Secretary ofState , State Treasurer , State Comptroller and theUniversity of Illinois Board of Trustees . Tr. 310(Brace testimony). Dr . Brace ' s analysis also in-cluded races for the United States Senate . Id .

[**71] Dr . Brace testified that under the Rosebrookstatistical analysis , the Hastert plan yielded seven safeRepublican seats , " with three more seats leaning Repub-lican. 'a Rosebrook Exh. 32 ; Tr . 197, 199 . Democratswould receive only five safe seats, " principally the fourminority super-majority districts, with four seats leaningDemocrat . ' ° Id.; Tr. 198-99. Dr . Brace asse ssed the re -maining seat as a toss-up, which leans Republican inpresidential elect i on years and Democrat in off-year elec-tions . Tr . 199; Rosebrook Exh. 32 . Dr . Brace viewedDemocratic Party prospects under the Haste rt plan as , atbest , a 10-10 split with Republicans . Dr . Brace testifiedthat the Rosebrook plan, on the other hand , would yieldseven safe Democratic seats , with two others leaningDemocratic, " eight safe Republican seats with one otherseat leaning Republican and two toss -up seats which leanRepublican in presidential election years and Democraticin off years . " Rosebrook Exb. 31; Tr . 279 . [ ** 72j

37 The proposed Haste rt 6th, 8th , lOth, 13th ,14th , 15th and 18th districts .38 The proposed Hastert 3rd, 1 Ith and 16th dis -tricts .39 The proposed Hastert lst, 2nd , 4th , 7th and9th di stricts.40 The proposed RasterC 12th, 1 7th , l9th and20th districts .41 The purport edly safe Democratic seats arethe proposed Rosebrook lst , 2nd , 7th , 9th , 1lth ,19th and 20th districts. The seats s aid to leanDemocrat are the proposed Rosebrook 8th and15th districts .42 The safe Republican seats are the Rosebrook3rd , 6th , lOth, 12th, 13th , 14th , 16th and 17th dis-tricts . The Republican leaning seat is the pro -posed Rosebrook 4th district . The two districtswhich swing in opposite directions in presidentialyear and off-year elections are the proposedRosebrook 5th and 18th dis tr icts.

[*658] We find th e expert testimony and ev i d enc eregarding the politic a l impa c t o f th e H as t e rt and Ros e-

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brook plans flawed on both s id es. The appl ication of rawdisaggregated congres sional election results employed bythe Hastert expert appears log ical at first glance . How -ever, we conclude that this data i s an i nappropri atemeasure of party preferenc e because it : mixe s res ults o fraces involving different candidates [**73] and issue s;fails to adjust for races in which the incumbent was un-opposed or faced only token opposition (which producesseriously skewed data) ; and fails to account for thepower of incumbency. " See Backstrom, Robins & Eller ,62 Minn. L . Rev . at 1127-28. We therefore agree withthe Rosebrook expe rt that [HN21]statewide base lineraces provide a better measure of statewide party votingstrength . Tr . 187-88 (Brace testimony); see Backstrom ,Robins & Eller , 62 Minn . L . Rev . at 11 27-34; Bandemerv. Davis, 603 F . Supp. 1479 , 1501 (S .D . Ind . 1984) (Pell,

6J . , dissenting), rev'd , 478 U.S. 109, 92 L. Ed 2d 8510S. Ct . 2797 (1986); cf. In re Illinois Congressional Dist .Cases , No 81 C 3915 , slip . op. at 22 (employing trusteeresults as a basis for political faimess analysis).

43 By our rough count, out of the 394 incum-bents in the House of Representatives running forreelection in 1990 , 384 (96.97%) won. See 1991Congressional Staff Directory.

However, we are also [* *74] unable to endorse thestatistical analysis employed by the Rosebrook expert.Dr . Brace did not conduct his analysis solely on bas e lineraces. Rather, he employed a weighted average of theresults from various statewide races to reach his politicalimpact conclusions. We have no objection, as a generalprinciple , to this type of data manipulation . But we mayrely on the resulting analysis only to the extent we findthat the part icular weights applied to the data are them-selves reasonable, Dr. Brace was unable to provide thecourt with the weights he applied to the raw data fromthe various statewide races. Indeed, Dr. Brace concededthat his application of weights to the various electionresults was "subjective" and that he could not reproducehis results .'° Tr. 312 , 319. Dr. Brace's failure to substan-tiate the underlying basis for his analysis effectively ne-gates its probative value .

44 We are at a loss to understand the unavail -abil ity of the formula employed by the Rosebrookplaintiffs in analy zing the political impact of theRosebrook and Haste rt plans. Even had theanalysis proceeded on a trial and error basis, withconstant fine-tuning of the weights to achieve thefinal results , the final weights applied to the vari-ous statewide races would necessarily be con -tained in the final computer program upon whichthe Rosebrook ana l y s i s was ultimately bas ed . In -deed , any computer pro gram employed to analyzea re di st ri cti ng plan or , more si gni fi cantly , t o gen -

erate a di s tricting plan, i s likely to b e th e sing lemost t e lling pi ece of evidence regarding the mo-tivation of a redistricting plan ' s proponent s. Thisfact s u gge sts that the implementation of manda-tory c omputer-automated redistricting might pro-vide the cou rts with a way out of the politicalthick e t . S ee generally Note , Compute r Modelsand Post-Bandemer Redistricting, 99 Yale L. J .1 379 (1990) .

[**7 5] Thus, n e ither the Haste rt nor the Rosebrookplaintiffs have supplied the court with a sufficient evi-dentiary base from which to fully credit their con fl ictingassessments re garding the political impact of the twoplan s . We therefore must draw our conclusions on analternative, ne cessarily less sophisticated basis . Becausethe Rosebrook plaintiffs have asserted a political gerry-mander claim against the Hastert plan, a plan which wefind superior under all other constitutional criteria, weshall review the political impact of the Haste rt plan usingthe raw University of Illinois Trustee figures that theRosebrook expert promoted and the Hastert expert re-jected with equal vigor .

According to the tru stee results, the Hastert districtswould have yielded an 1 1-9 split in favor of the Democ-rats in the 1990 congressional elections . Rosebrook Exh.47 . In 1988 , a president ial election year , Republicanswould have prevailed by the same narrow 11 - 9 margin.Id . In 1986 , the two part ies would have each held 10s eats . Id . In 1984 , another presidential election year, Re-publ i cans would have taken 12 seats to the Democrats 8 .Id . But the Democrats would [** 76] have won 12 to theRepublicans 8 in the 1982 congressional elections . Id.All tolled, the parties would [*659] have each held 50of the possible ] 00 seats . This 50-50 split strikes us as aperfectly fair outcome , given Dr. Brace's testimony trialtestimony that "all of the election data shows the State ofIllinois to be a fairly even state" with regard to the distr i -bution of party strength in the general population . Tr.279 (Brac e testimony) . On the basis of the record beforeus , we di s ce rn no near term unfair political 45 advantageresulting from the 1-laste rt plan. " Moreover, we do notforesee the Hastert plan as producing a "history (actual orprojected) of dispropo rt ionate result s ," as required underBandemer, 478 U.S . at 139 .

45 We find no evidence of even a "possibletransitory [discriminatory] result[]" required byJustices Powell and Stevens in their separate con-curring opinion in Bandemer , 478 U . S . at 1140(Powell, J ., concu rr ing) .

The Ro sebrook plaintiffs [ ** 77 ] also obj ect to theHastert p l an because they contend it i s motivated by p o -l itica l con s id eration s. The s i gni ficant d isp ar ity favor ingDemocrat s under the e xi sting pl a n s h arply undercuts th is

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argument . N or have objecti on s to a re d istrictin g pl an onthe grounds o f pol i ti c a l motivation eve r bee n accordedserious weight by the Supreme Court .

It would be idle, we thi nk , t o c ontend that any politicalconsideration taken into account in fas hionin g a reappor-tionment plan is s ufficient to inva l idate it . Our cas e s in -dicate quite the contrary. See White v . Regester 4 1 2U . S. 755 , 37 L . Ed . 2 d 314 , 93 S . Ct . 2 3 32 (1973) 1 ;Bums v . Richardson, f384 U . S . 73, 16 L . Ed . 2d 376, 86S. Ct . 1286 (1966)) ; Whitcomb v. Chavis , f403 U.S . 124 ,29 L . Ed. 2d 363 , 91 S . Ct . 1858 (1971)1; Abate v .Mundt , (403 U.S. 182, 29 L. Ed. 2d 399 , 91 S. Ct. 1904(19701. The very essence of districting is to produce adifferent--a 'more politically fair ' --result .... Politics andpolitical considerations are inseparable from districtingand apport ionment . The political profile of a State , itsparty registration , and voting records are available pre-cinct by precinct , ward by ward . These subdivisions maynot be identical with censu s tracts, but, when overlaid ona census [ **78] map , it requires no special genius torecognize the political consequences ofdrawing a districtli n e along one stree t rath er than another . It is not onlyobvious, but absolutely unavoidable, that the locationand shape of the districts may well determine the politi-cal complexion of the area . District lines are rarely neu-tral phenomena . . . . Redi str icting may pit incumbentsagainst one another or make very difficult the election ofthe most experienced legislator. [HN22]The reality isthat districting inevitably has and is intended to havesubstantial political consequences .

Gaffney v . Cummings, 412 U . S . 735 , 752-53, 37 L. Ed .2d 298 , 93 S. Ct . 2321 (1973) .

Under the best of circumstances , an analysis of po-l itical impact based solely on predictions of future eventsis bound to be a speculative unde rtaking. Here, we havegiven the Rosebrook plaintiffs the bene fi t of the raw datathat they accorded the greatest wei ght in undertakingtheir analysis of the political impact of the HasCer t plan .The data suggests that the HasCert plan is likely to yield adistribution of seats across party lines that mirrors thestatewide partisan makeup of the voting citizenry recog-n i zed by the Rosebrook [**79] plaintiffs themselves. Inthe absence of a more fully developed record regardingthe political impact of the proposed plan s, we concludethat the Haste rt plan i s politically fair. Thus , the E[astertplan best meets the constitutional requirements of popu-lation equality and fa irn ess to racial and langu age mi -noritie s, while achiev ing a politica ll y fair projected dis-tribution of congressional seats across part y lines .

B . Noncons titutional Crit eria

Only one nonconstitutional is su e requiring our con -s iderat i on has been raised . The Rosebrook plaintiffs con -tend that the Hastert plan is legally in firm because theHas tert reconfi guration of the four southernmost districtsin Illinois 4 6 divid es [ * 660] unique historic , geographicand economic communities of interest . The essence ofthe claim appears to be that the particular homogeneityor diversity embodied in each of the existing southerndistr i cts renders each sui generi s, and thus deserving ofspecial dis pens ation in the redistricting process .

46 The 19th , 20th, 21st and 22d CongressionalDistricts under the existing plan are reconfiguredroughly into the proposed 12th, 19th and 20thdistricts under the Hastert plan .

[ ** 80] The Rosebrook plaintiffs have failed tosupport this novel claim with any meaningful legalprecedent. Although we know of at least one court thathas recognized a"community of interest" concept similarto the one now advanced , " we find the concept bothsubjective and elusive of principled application . For ex-ample , the Rosebrook plaintiffs contend that the charac-ter of the present 22nd Congressional District, purport -edly preserved in the proposed Rosebrook 20th district ,should be maintained because of its ethnic and socio-economic homogeneity, as well as the economic pre-dominance of mining and fores try industries in the re-gion . See generally Poshard Aff. By comparison, thepresent 19th Congressional District purportedly pre-se rved in the Rosebrook 17th district should be preservedbecause it is a "microcosm of the nation." See Bruce Aff.at 2. The Rosebrook plaintiffs ask that we preserve thepresent 22nd Congressional District so as not to disturbits homogeneity and the present 19th Congressional Dis-trict so as to maintain its distinctive diversity. The Rose-brook plaintiffs appear to advance another concept thathas no l i mits .

47 In Carstens v. Lamm , 543 F . Supp . 68 (D .Colo. 1982) , the cou rt recognized[HN23]communities of interest , which it definedas " distinctive units which share common con-cerns with respect to one or more identifiable fea-tures such as geography , demography, ethnicity,culture , socio-economic status or trade, " as arelevant non-constituYional criterion in formulat-ing a congressional districting plan. Id. at 91.

[ * *81] The community of interest concept could beemployed i n every congressional district across the coun-try in which a congressional incumbent feels threatenedby an impending redistrictin g. We need look no fu rt herthan the present case for evidenc e that suppo rts this con-clu s ion . W e have received affidavit s from most memberso f th e I l linoi s congressional dele gati o n asse rt in g, in es-

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senc e, that their distric ts p osse s s unique characteri stics orcombination s of characteristic s that deserve special con-sideration in th e re di stricting proce ss . No doubt this i st rue for e ac h dis tr ict in Illinois and across the nat i on .[HN24]We believe that there i s a pl ace where particularnonconstitutional communities of interest should be con-si dered in the redi s tricting process . That place is the hallsand committee chamb ers of the state le gislature . Thecourtroom is not the proper arena for lobbying effort sregarding the districting concerns of local, nonconstitu-tional communities of interest. Consequently , we declineto recognize the Rosebrook community of interest claim .4s

4 8 Even i f we were to recognize the communityof interest concept, the Rosebrook plaintiffs mayhave overstated their case : For example , theRosebrook plaintiffs contend that the three exist-ing congressional districts in the southernmostpart of Illinois , the 19th , 21st and 22nd Congres-s ional Districts , have a "historical tradition" dat-ing back as far as 1818 . Rosebrook Post-TrialBrief at 25 . However, a cursory review of previ-ous Illinois congressional districting maps showthe southernmost part of the state divided in halfin a manner nearly identical to the confi gurationof that area proposed in the Hastert plan . SeeColegrove v. Green , 328 U.S. 549, 562 , 90 L . Ed.1 43 2 . 66 S. Ct. 11 98 App. II(1946) (showing1901-46Itlinois congress ional dis tr ict map divid-ing southernmost tip of Illinois into two districts).

[M "82] III. Collins - Urban League/African-AmericanNiev es Dispute

Finally , we address the dispute between the Collinsplaintiffs and the African-American Nieves plaintiffsover which of two African-American super-majoritydistricts, the proposed 1st or 7th congressional district , isthe more appropriate situs for the politically significantSecond Ward on Chicago's south si de . " The Collins[ * 661] plaintiffs effectively adopt the configuration ad-vanced in the Rosebrook plan . Under this configuration ,Chicago ' s Second Ward is positioned as the southern-most region of the 7th Congressional District . The Afri-can-American Nieves plaintiffs, on the other hand , haveeffectively adopted the configuration proposed in theHastert plan . This con figurat i on maintains the histor i calplacement of the Second Ward within the lst Congres-sional District . See Chicago Urban League Exh. 3-8 . Wehave found the Hastert plan superior to the Rosebrookplan under the relevant constitutional and legal criteria.Therefore , the Collins p l aintiffs bear the burden of dem-on strating why an alterati o n of the otherwise constitu-tionally and l ega lly pre ferre d Hastert plan is warranted.[**83 l

49 The precise nature of th e Second Ward ' s po-litical significance is not a matter that concern sus . We note only that the Collins and A fr ican-American Nieves plaintiffs have made clear thatboth sides are concerned about the fact that thepositioning of the Second Ward in the congres-sional districting map will have a si gnificant im-pact on the future political prospects of the al-derman of that ward .

The Collins plainti ffs' principal contention is that theHastert lst and 7th congressional district boundary is theproduct of a political gerrymander. We regard this as acurious claim in two respects . First, both the Haste rt andthe Rosebrook plaintiffs have refused to take any posi-tion advocating one configuration over another . Theclaim of a Hastert political gerrymander in this regardrings hollow. Second, we recognize that the unique, ser-pentine configuration of the boundary between theHastert lst and 7th congressional districts suggests thatthe HasYert plan was influenced by the [**84] politicalconcerns of the African-American Nieves plaintiffs.However, the unique configuration of the correspondingboundaries in the Rosebrook plan equally compels theconclusion that the political concerns of the Collinsplaintiffs influenced the Rosebrook map drawers . Simplyput, the Collins plaintiffs' political motivation objectionto the Hastert configuration applies equally to their ownproposal . This conclusion is further compelled by thefact that the Collins plaintiffs vigorously argue for theremoval of the Second Ward from its historical mooringin the Ist congressional distr ict . Quite obviously, politi-cal concerns are the primary motivators on both sides ofthis essentially parochial political dispute. And , as notedpreviously, the exercise of political considerations in theredistr icting process is not alone sufficieiit to invalidate adistricting plan . Gaffnev v. Cummings, 412 U . S. at 752-53 ; Davis v. Bandemer , 478 U.S at 128-29 .

More importantly , the Collins plaintiffs have failedto demonstrate any relevant politically discriminatoryeffects from the Hastert configuration . The Collins[ ** 85] plaintiffs do not contend that the Hastert bound-ary configurations will "consistently degrade a voter's ora group of voters' influence on the process as a whole" or"substantially disadvantage[] certain voters in their op-portunity to influence the political process effectively."Bandemer, 478 U S at 132-33. The Collins plaintiffstherefore have not met the requisite burden of proof forpolitical gerrymandering claims under Bandemer .

Finally, we seriously question whether the factualcircumstan ce s underlying this dispute would ever sup-port a political gerrymandering claim . Under both pro-posed configurations, the citizen s of th e S econd Wardlikely will be represented by an incumbent A fr ican -

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7 77 F . Supp . 634, * ; 1 991 U . S . Dist. LEXIS I6446 , ' *

American Democratic representative . Thus , the disputedoes not cross political party, racial or ethnic lines . Theonly significant political impact at issue would occur atan intra-party factional level . Any analysis of politicalimpact of that nature that we might undertake wouldrequire subjective and extraordinarily subtle politicaljudgments of cause and effect - - judgments well beyondour capaci ty. For this reason , we also decline Co addressthe various nonconstitutional [ ** 86] arguments raisedby both the Collins and African-American Nieves plain -tiffs that raise peculiarly local legislariveissues, includ-ing the appropriate ratio of public housing residents ineach district and the proper district placement of localhistorical landmarks. Accordingly , we reject the claimsof the Collins plaintiffs regarding the configuration ofthe Hastert 1 st and 7th district boundaries.

CONCLUSION

The population and demographic changes reflectedin the 1990 census have rendered the existing Illinoiscongressional districting [ *662] plan implemented in Inre Illinois Congressional Dist. Reapportionment Cases ,No . 81 C 3915 (N . D . Ill. Nov . 23, 1981), unconstitu-tional. The existing congressional districting plan istherefore declared null and void . The Hastert and Rose-brook plaintiffs have each submitted plans that wouldhave passed constitutional and legal muster had eitherplan been the product of the state legislative process.[HN25]ln the absence of state legislative action, how-ever, we were constrained to establish the plan that bestmeets technical constitutional and legal criteria set out bythe Supreme Court for evaluating congressional district-ing [ ** 87] plans . We conclude that the Hastert thirdamended redistricting plan best satisfies the criteria.

F i rst, the HasterE plan achieve s prec ise math em aticalequality of population acro ss congress ional districts.Second , the Haste rt plan is superior to the Rosebrookplan with respect Co fa i rn ess to th e votin g ri ght s of racialand language minori tie s. We find that § 2 of the VotingRights Act warrants the creation of an Hispanic super-majority district, as well as the preservation of the threeexisting African-American distri cts . The Hastert planprovides these minority communities, particularly theminority communities in the proposed 7th and Hispaniccongressional districts, with a marginally superior oppor-tunity to exercise political control in their respectivecommunities . Third, we regard the Hastert plan as l ikelyto produce a fair distribution of congressional seatsacross party lines .

It is therefore ordered that the Hastert third amendedredistricting plan , now adopted as the court's redistrictingplan as set forth in the appendix, shall govern the nomi-nation and election of members of the House of Repre-sentatives from the State of Illino i s , effective [ ** 88]with respect Co the 1992 primary and continuing untilIllinois congressional districts are reapportioned in ac-cordance with law .

It is further ordered that the defendant Illinois StateBoard of Elections , in accordance with its duties underthe Il linois election laws , shall forthwith implement theterms of the court's redis tr icting plan, as set forth in theappendix.

The clerk is directed to enter final judgment in allcases consolidated herein in accordance with the orderset forth above .

Finally, it is ordered that all part ies to these consoli-dated cases shall bear their own costs .

[SEE APPENDIX IN ORIGINAL]

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Hastert v. State Board of Elections - Wisconsin …...race or color, or in contravention of the guarantees set forth in 42 U.S.C.S. S 1973b(f) (2) . A violation of 1973(a) is established