I ~ ~’-THE CLERK
IN THE
ourt of Init i
tat s
Q
CHRISTINE RADOGNO, IN HER OFFICIAL
CAPACITY AS MINORITY LEADER OF THE
ILLINOIS SENATE, et al.,
Appellants,
V.
ILLINOIS STATE BOARD OF ELECTIONS, et al.,
Appellees.
ON APPEAL FROM THE THREE-JUDGE PANEL SITTING IN OF
THE UNITED STATES DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN DIVISION
JURISDICTIONAL STATEMENT
PHILLIP A. LUETKEHANS
Counsel of Record
BRIAN J. ARMSTRONG
SCHIROT% LUETKEHANS & GARNER, B.C.
105 E. Irving Park Road
Itasca, IL 60143
(630) 773-8500
PLuetkehans@sl-atty.com
Counsel for Appellants, Christine
Radogno, Veronica Vera and
Edward Tolentino
March 12, 2012
(Additional counsel listed on signature page.)
24O837
COUNSEL PRESS
(800) 274-3321 ° (800) 359-6859
QUESTIONS PRESENTED
1. Whether the Appellants offered a judicially
manageable standard by which their political
gerrymandering claim under the Equal Protection Clause
of the Fourteenth Amendment could be judged.
2. Whether the votes for multiple white candidates
in an election may be aggregated in determining whether
majority voters vote sufficiently as a bloc usually to defeat
the minority’s candidate of choice for purposes of a claim
of a violation of Section 2 of the Voting Rights Act.
3. Whether a legislative district with a minority
voting age population under 50% can state a claim for
racial gerrymandering in violation of the Equal Protection
Clause of the Fourteenth Amendment.
ii
PARTIES TO THE PROCEEDINGS
This jurisdictional statement is filed on behalf of the
following Appellants: Christine Radogno, in her official
capacity as Minority Leader of the Illinois Senate;
Thomas Cross, in his official capacity as the Minority
Leader of the Illinois House of Representatives; Adam
Brown, in his official capacity as a State Representative
from the 101st Representative District and individually
as a registered voter; Veronica Vera, Angel Garcia and
Edward Tolentino, all of whom were Plaintiffs in the
District Court. This jurisdictional statement is also filed
on behalf of the Illinois Republican Party which was an
Intervening Plaintiff in the District Court.
The following parties were Defendants in the
District Court: Illinois State Board of Elections, Rupert
Borgsmiller, Executive Director of the Illinois State Board
of Elections; Harold D. Byers, Bryan A. Schneider, Betty
J. Coffrin, Ernest C. Gowen, William F. McGuffage, Judith
C. Rice, Charles W. Scholz and Jesse R. Smart, all of whom
were named in their official capacities as members of the
Illinois State Board of Elections.
The following parties were Intervening Defendants
in the District Court: African Americans for Legislative
Redistricting, United Neighborhood Organization,
Colombianos Unidos Para Una Labor Active, Hispanic
American Construction Industry Association, and
Federacion Jalisciense Del Medio Oeste De Los Estados
Unidos.
.................
Jff .......
II
!I
I
llil|
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED ..................
i
PARTIES TO THE PROCEEDINGS ........... ii
TABLE OF CONTENTS .....................
iii
TABLE OF APPENDICES ...................
v
TABLE OF CITED AUTHORITIES ...........vi
OPINIONS BELOW ..........................
1
JURISDICTION .............................
1
CONSTITUTIONAL AND STATUTORY
PROVISIONS ...............................
1
STATEMENT ...............................
4
I.
POLITICAL GERRYMANDERING
CLAIM ...............................
5
II. VOTING RIGHTS ACT CLAIM ......... 8
III. RACIAL GERRYMANDERING
CLAIM ...............................
10
iv
Table of Contents
Page
THE QUESTIONS PRESENTED ARE
SUBSTANTIAL .............................
11
APPELLANTS OFFERED A
JUDICIALLY MANAGEABLE
STANDARD FOR THEIR POLITICAL
GERRYMANDERING CLAIM .......... 11
II. AGGREGATION OF VOTES SHOULD
BE PERMITTED UNDER PRONG
3 OF THORNBURG V. GINGLES IN
THE SPECIAL CIRCUMSTANCE OF
MULTIPLE CANDIDATES IN AN
ELECTION ...........................
21
III. A MINORITY-MAJORITY DISTRICT IS
NOT A PREREQUISITE TO A RACIAL
GERRYMANDERING CLAIM .........28
CONCLUSION ..............................31
V
TABLE OF APPENDICES
Page
APPENDIX A -- MEMORANDUM OPINION
AND ORDER OF THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN
DISTRICT OF ILLINOIS, EASTERN
DIVISION, FILED DECEMBER 7, 2011 ..... la
APPENDIX B -- OPINION AND ORDER
OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS, EASTERN DIVISION,
FILED NOVEMBER 22, 2011 ...............32a
APPENDIX C -- NOTICE OF APPEAL
OF THE UNITED STATES DISTRICT
COURT FOR THE NORTHERN DISTRICT
OF ILLINOIS EASTERN DIVISION,
FILED JANUARY 12, 2012 .................45a
APPENDIX D -- ILLINOIS STATE BOARD
OF ELECTIONS WEBSITE CANDIDATE
LIST, - GENERAL PRIMARY- FEBRUARY
9, 2012 - REPRESENTATIVE IN THE
GENERAL ASSEMBLY TWENTY-THIRD
REPRESENTATIVE DISTRICT ............
48a
vi
TABLE OF CITED AUTHORITIES
Page
CASES
Barnett v. City of Chicago,
969 F. Supp. 1359 (N.D. Ill. 1997), reversed in
part on other grounds, 141 F.3d 699
(7th Cir. 1998) ............................. 25
Bartlett v. Strickland,
556 U.S. 1, 129 S. Ct. 1231 (2009) ............. 12
Baylor v. Cortes,
2008 WL 4224803 (M.D. Pa., Sept. 10, 2008) .. 12, 20
Chisom v. Roemer,
501 U.S. 380, 111 S. Ct. 2354 (1991) ...........
22
Committee For A Fair and Balanced Map v.
Illinois State Board of Elections,
-- F. Supp. 2d --, 2011 WL 6318960
(N.D. Ill. Dec. 15, 2011) .....................12, 20
Davis v. Bandemer,
478 U.S. 109, 106 S. Ct. 2797 (1986) ........ passim
Dunn v. Blumstein,
405 U.S. 330, 92 S. Ct. 995 (1972) ............. 12
Easley v. Cromartie,
532 U.S. 234, 121 S. Ct. 1452 (2001) ...........
29
vii
Cited Authorities
Page
Fletcher v. Lamone,
-- F. Supp. 2d --, 2011 WL 6740169
(D. Md., Dec. 23, 2011) .....................12, 20
Gorrell v. O’Malley,
2012 WL 226919 (D. Md., Jan. 19, 2012) ....... 12, 20
Hicks v. Miranda,
422 U.S. 332, 95 S. Ct. 2289 (1975) ............
11
Hunt v. Cromartie,
526 U.S. 541, 119 S. Ct. 1545 (1999) .......... 16, 29
Jenkins v. Manning,
116 F.3d 685 (3d Cir. 1997) ................... 23
Larios v. Cox,
300 F. Supp. 2d 1320 (N.D. Ga. 2004) affld,
542 U.S. 947, 124 S. Ct. 2806 (2004) .......... 16, 17
League of United Latin American Citizens
(LULAC) v. Perry,
548 U.S. 399, 126 S. Ct. 2594 (2006) .......... 14, 20
Little Rock School Dist. v.
Polaski County Special School Dist.,
56 F.3d 904 (8th Cir. 1995) ................... 23
Mattis v. State Universities Retirement System,
212 Ill. 2d 58,816 N.E.2d 303 (2004) ..........
19
viii
Cited Authorities
Page
Miller v. Johnson,
515 U.S. 900, 115 S. Ct. 2475 (1995) ..... 16-17, 28, 29
Neal v. Coleburn,
689 F. Supp. 1426 (E.D. Va. 1988) ............. 23
Perez, et al. v. Texas,
No. 11-cv-360, slip op. at 21-22
(W.D. Tex. Sept. 2, 2011) ...................12, 20
People ex tel v. Ryan,
147 Ill. 2d 270 (1992) ........................ 19
Shaw v. Reno,
509 U.S. 630, 113 S. Ct. 2816 (1993) .......... 28, 29
Thornburg v. Gingles,
478 U.S. 30, 106 S. Ct. 2752 (1986) .......... passim
Turner Broadcasting System, Inc., v. EC.C.,
520 U.S. 180, 117 S. Ct. 1174 (1997) ............
17
United States v. Charleston County,
365 F.3d 341 (4th Cir. 2004) ................. 23
Vieth v. Jubilerer,
541 U.S. 267, 124 S. Ct. 1769 (2004) .... 12, 14, 16, 20
Voinovich v. Quilter,
507 U.S. 146, 113 S. Ct. 1149 (1993) ............ 9, 26
ix
Cited Authorities
Page
CONSTITUTIONAL AND STATUTORY
AUTHORITIES
U.S. Const. amend. XIV ....................passim
28 U.S.C. § 1253 .............................. 1
42 U.S.C. § 1973 ...........................passim
IL Const. (1970), art. I, § 1; art. IV, V, VI ........ 19
OTHER AUTHORITIES
Baodong Liu and James Vanderleeuw, RACE
RULES: ELECTORAL POLITICS IN NEW
ORLEANS, 1965-2006 (2007) ................ 22
S. Rep. No. 417, reprinted in 1982 U.S.C.C.A.N 206
Bernard Grofman, Lisa Handley & Richard
Niemi, MINORITY REPRESENTATION
AND THE QUEST FOR VOTING
EQUALITY (1992) .........................25
Paul Kane and Chris Cillizza, Sen. Snowe Says
She’ll Retire, Citing Partisanship in Congress,
WASH. POST, Feb. 28, 2012 ................. 12
Public Act 97-006 ..........................passim
OPINIONS BELOW
The opinion of the District Court granting summary
judgment in favor of the Appellees and against the
Appellants on their Second Amended Complaint is not
yet reported in the Federal Supplement. The opinion is
reprinted at App. A. The opinion of the District Court
dismissing with prejudice Count 2 of Appellants’ Second
Amended Complaint is not yet reported in the Federal
Supplement. The opinion is reprinted at App. B.
JURISDICTION
The three-judge District Court dismissed, with
prejudice, Count 2 of Appellants’ Second Amended
Complaint on November 22, 2011. App. B. The three-judge
District Court granted Appellees’ Motion for Summary
Judgment and entered judgment in favor of the Appellees
and against Appellants on December 7, 2011. App. A.
Appellants timely filed their Notice of Appeal on January
12, 2012. App. C. This Court has appellate jurisdiction
under 28 U.S.C. § 1253.
CONSTITUTIONAL AND
STATUTORY PROVISIONS
42 U.S.C § 1973 provides:
(a) No voting qualification or prerequisite to
voting or standard, practice, or procedure shall
be imposed or applied by any State or political
subdivision in a manner which results in a
denial or abridgement of the right of any citizen
of the United States to vote on account of race
2
or color, or in contravention of the guarantees
set forth in section 1973b(f)(2) of this title, as
provided in subsection (b) of this section.
(b) A violation of subsection (a) of this section
is established if, based on the totality of
circumstances, it is shown that the political
processes leading to nomination or election
in the State or political subdivision are not
equally open to participation by members of
a class of citizens protected by subsection
(a) of this section in that its members have
less opportunity than other members of the
electorate to participate in the political process
and to elect representatives of their choice.
The extent to which members of a protected
class have been elected to office in the State or
political subdivision is one circumstance which
may be considered: Provided, That nothing in
this section establishes a right to have members
of a protected class elected in numbers equal
to their proportion in the population.
The Fourteenth Amendment to the United States
Constitution provides:
Section 1. All persons born or naturalized in the
United States, and subject to the jurisdiction
thereof, are citizens of the United States and
of the State wherein they reside. No State shall
make or enforce any law which shall abridge
the privileges or immunities of citizens of the
United States; nor shall any State deprive any
person of life, liberty, or property, without due
3
process of law; nor deny to any person within
its jurisdiction the equal protection of the laws.
Section 2. Representatives shall be apportioned
among the several States according to their
respective numbers, counting the whole number
of persons in each State, excluding Indians not
taxed. But when the right to vote at any election
for the choice of electors for President and Vice
President of the United States, Representatives
in Congress, the Executive and Judicial officers
of a State, or the members of the Legislature
thereof, is denied to any of the male inhabitants
of such State, being twenty-one years of age,
and citizens of the United States, or in any way
abridged, except for participation in rebellion,
or other crime, the basis of representation
therein shall be reduced in the proportion which
the number of such male citizens shall bear to
the whole number of male citizens twenty-one
years of age in such State.
Section 3. No person shall be a Senator or
Representative in Congress, or elector of
President and Vice President, or hold any office,
civil or military, under the United States, or
under any State, who, having previously taken
an oath, as a member of Congress, or as an
officer of the United States, or as a member
of any State legislature, or as an executive
or judicial officer of any State, to support the
Constitution of the United States, shall have
engaged in insurrection or rebellion against the
same, or given aid or comfort to the enemies
4
thereof. But Congress may by a vote of twothirds of each House, remove such disability.
Section 4. The validity of the public debt of the
United States, authorized by law, including debts
incurred for payment of pensions and bounties
for services in suppressing insurrection or
rebellion, shall not be questioned. But neither
the United States nor any State shall assume
or pay any debt or obligation incurred in aid
of insurrection or rebellion against the United
States, or any claim for the loss or emancipation
of any slave; but all such debts, obligations and
claims shall be held illegal and void.
Section 5. The Congress shall have power
to enforce, by appropriate legislation, the
provisions of this article.
STATEMENT
This case presents challenges to Illinois’ legislative
redistricting plan, Public Act 97-006, enacted in 2011
following the decennial census (the "Redistricting
Plan"). Appellants contended in the District Court, inter
alia, that the Redistricting Plan constitutes a political
gerrymander in violation of the Equal Protection Clause
of the Fourteenth Amendment to the United States
Constitution; that the Redistricting Plan violates Section 2
of the Voting Rights Act, 42 U.S.C. § 1973 ("VRA"), because
it dilutes the votes of Latino voters in Representative
District 23 and the surrounding area and denies them
a fair opportunity to elect candidates of their choice;
and that Representative District 96 of the Redistricting
5
Plan constitutes a racial gerrymander in violation of the
Equal Protection Clause of the Fourteenth Amendment
to the United States Constitution. The three-judge panel
of the District Court for the Northern District of Illinois
dismissed Appellants’ claim that the Redistricting Plan
constitutes a political gerrymander. App. B. The District
Court also granted summary judgment to Appellees on
Appellants’ claims that the Redistricting Plan violates
Section 2 of VRA and constitutes a racial gerrymander
in violation of the Fourteenth Amendment. App. A.
I.
POLITICAL GERRYMANDERING CLAIM
The Redistricting Plan was approved by the
legislature in May of 2011 on a party-line vote; Democrats
were (and remain) the majority party in both chambers
of Illinois’ legislature when the Redistricting Plan was
approved. The Redistricting Plan was signed into law
by the Democratic governor in June of 2011. In July of
2011, Appellants filed their Complaint and alleged, inter
alia, that the Redistricting Plan was an unconstitutional
political gerrymander in violation of their equal protection
rights.
Appellants pled a judicially manageable standard
supported by numerous facts, including facts regarding the
procedural history of the enactment of the Redistricting
Plan and the characteristics of the Redistricting Plan.
Appellants pled numerous facts to support their claim
that the Redistricting Plan had the design and effect of
diluting the effectiveness of registered Republicans voters
in elections to the state legislature. For example, the
Appellants alleged that as a whole, the Redistricting Plan
is less compact than the previous redistricting plan; the
bizarre shapes of the districts in the Redistricting Plan
and the Redistricting Plan’s lack of compactness were
a deliberate attempt to enhance Democrats’ prospects
for reelection and target Republicans to prevent their
reelection; many of the bizarrely-shaped districts were
crafted to place multiple incumbent Republicans into one
district; the Redistricting Plan splits more traditional
redistricting boundaries such as municipalities and
townships than the previous redistricting plan; the
Redistricting Plan disregards traditional municipal,
township, county boundaries and traditional communities
of interest; that in the Redistricting Plan, Democratic
incumbents retained on average almost 70% of the
core constituency of their district from the previous
redistricting plan while Republican incumbents retained
on average only 56% of the core constituency of their
district from the previous redistricting plan; the
Redistricting Plan pits 25 incumbent Republican members
of the General Assembly against one another while pitting
at most only eight incumbent Democrat members of the
General Assembly against one another, without any
neutral justification for this partisan discrepancy; the
Redistricting Plan will likely create an unfair substantial
majority for the Democrats in both houses of the General
Assembly for at least the next decade, while disregarding
all traditional redistricting principles; the Redistricting
Plan systematically and intentionally dilutes the votes
of Republicans in favor of Democrats in furtherance of a
deliberate attempt to enhance the partisan advantage of
Democratic candidates for the House of Representatives
and the Senate of the Illinois General Assembly and
targets Republicans to prevent their reelection. The
Appellants also pled that they prepared a redistricting
plan of their own which, compared to the Redistricting
7
Plan, was more compact, provided more minoritymajority districts, provided stronger minority districts,
split fewer traditional redistricting boundaries, more
fairly maintained core constituency and pitted fewer
incumbents against one another. Appellants claimed that
the foregoing facts showed that the predominant factor in
creating the Redistricting Plan was the enhancement of
the partisan advantage of Democratic candidates for the
House of Representatives and the Senate of the Illinois
General Assembly and was an unconstitutional political
gerrymander.
As for the procedural history, Appellants pled,
inter alia, that during the entire redistricting process,
Democrats held a majority of the seats in the Illinois
Senate and Illinois House of Representatives, and the
Governor was a Democrat; Democrats exercised exclusive
majority control over the entire process of enacting
the Redistricting Plan in the legislative and executive
branches of Illinois state government; during the evening
hours of May 26, 2011, an amendment to the proposed
redistricting plan was filed which purported to be a new
proposed redistricting plan; the Democratic Caucuses
gave the public and the remaining legislators less than
24 hours to analyze and comment on the new proposed
redistricting plan; the Democratic Caucuses repeatedly
suspended the procedural rules governing the Illinois
House of Representatives and the Illinois Senate in an
effort to prevent the public and the remaining legislators
from providing meaningful input regarding all proposed
redistricting plans.
The District Court acknowledged that Appellants
pleaded facts which "plausibly suggest that the
8
redistricting plan was enacted in large part to give
Democrats a partisan advantage" (App. B, p. 39a-40a) and
that Appellants offered an objective and administrable
standard for their political gerrymandering claim. App.
B, p. 41a. Nevertheless, the District Court dismissed
Appellants’ political gerrymandering claim because it
concluded that Appellants’ standard was arbitrary. App.
B, pp. 41a-42a.
II. VOTING RIGHTS ACT CLAIM
The Appellants also claimed that Representative
District 23 in the Redistricting Plan violated Section 2
of VRA which prohibits the dilution of minority voters’
votes. 42 U.S.C. § 1973; Thornburg v. Gingles, 478 U.S.
30, 43, 106 S.Ct. 2752 (1986). Representative District 23
is located in the southwest portion of Cook County, a
heavily Latino area. In fact, there are five Latino-majority
districts adjacent to the district. Representative District
23, however, is not a Latino-majority district; the Latino
voting age population composes 46.27% of the district.
Appellants showed that Representative District 23 could
have been drawn to contain 68.32 % Latino voting age
population while maintaining the Latino majority in
the five districts surrounding it. Thus, Representative
District 23 could have been made a Latino-majority
district sufficient to give Latino voters in the area a fair
opportunity to elect an additional candidate of their choice
without eliminating a Latino- majority district elsewhere.
To establish a violation of VRA, a plaintiff must first
establish: (1) the minority group in question is sufficiently
large and geographically compact to constitute a majority
in the district; (2) the minority group is politically cohesive;
9
and (3) whites vote sufficiently as a bloc to enable it -- in
the absence of special circumstances -- usually to defeat
the minority’s preferred candidate in the district. Gingles,
478 U.S. 49-51. "The Gingles factors cannot be applied
mechanically without regard to the nature of the claim."
Voinovich v. Quilter, 507 U.S. 146,158,113 S.Ct. 1149,1157
(1993). Indeed, the text of Section 2 requires examination
of the totality of circumstances which, by its very nature,
precludes absolute, bright line tests. Here, the District
Court decided the case on the third Gingles factor only.
The court did not address the first or second factors.
Appellants’ expert, Dr. Liu, analyzed elections which
encompassed what is the new Representative District 23.
Dr. Liu found that while minority candidates won three out
of the four analyzed elections, two of the three elections
won by Latinos contained multiple white candidates which
resulted in the white voters’ votes being split among
the various white candidates. Dr. Liu opined that the
existence of multiple white candidates and the resultant
split of white voters’ support of those candidates was a
special circumstance under Gingles which could explain
minority victories notwithstanding white bloc voting. Dr.
Liu opined that the special circumstance can be accounted
for by aggregating the votes for all the white candidates to
compare them to the votes for minority candidates. When
this analysis is performed in this case, white candidates
would have attained more votes than the single Latino
candidate in three out of the four elections he analyzed.
Thus, Dr. Liu opined white voters vote sufficiently as a bloc
usually to defeat the minority’s candidate of choice when
the special circumstance of multiple white candidates is
absent.
10
The District Court "decline[d]...to be the first court
ever" to accept Appellants’ method of determining Gingles
Prong 3. App. A, p, 29a. The District Court rejected
Appellants’ argument that to determine whether whites
vote sufficiently as a bloc usually to defeat the minority’s
preferred candidate, the total number of all votes cast
for multiple white candidates may be aggregated and
compared to the number of votes cast for minority
candidates to account for the special circumstance of
multiple white candidates when reviewing whether whites
vote sufficiently as a bloc to defeat the minority’s preferred
candidate. App. A, pp. 28a-30a. Accordingly, the District
Court ruled that Appellants could not establish the third
prong of the Gingles test and granted summary judgment
to Appellants. App. A, p. 30a. Neither Appellees nor the
District Court cited any case which rejects Appellants’
method of analyzing the third prong and, in fact, a trial
would have disclosed that Appellees’ expert himself, Dr.
Lichtman, engaged in the identical method of analysis
on multiple occasions to determine whether whites voted
sufficiently as a bloc to usually defeat the minority’s
preferred candidate.
III. RACIAL GERRYMANDERING CLAIM
The Appellants also alleged that Representative
District 96, which coupled the distant African-American
communities of Springfield and Decatur into one district,
violated the Equal Protection Clause of the Fourteenth
Amendment because race was the predominant factor
in drawing the district. Appellants cited the bizarre
shape of the district, the legislature’s having ignored
traditional districting principles, demographic and social
data regarding the district, communities of interest in
11
the district and the division thereof by the district, the
testimony of residents in the district and the testimony of
the drafter of the district himself in support of this claim.
The District Court granted summary judgment to
Appellees. The court held that districts which were not
minority-majority districts could not be subject to a racial
gerrymandering claim. App. A, p. 14a. The District Court
also noted evidence that partisan considerations influenced
the drawing of the district. App. A, p. 16a. The District
Court rejected Appellants’ arguments that the inherently
factual nature of determining the legislature’s intent
in drawing the district precluded summary judgment,
especially given inferences that properly arise from facts
such as the bizarre shape of the district, the testimony
regarding the racially-based genesis of the district and
the lack of compactness of the district.
THE QUESTIONS PRESENTED ARE
SUBSTANTIAL
This Court grants plenary review on direct appeal
if the questions presented are "substantial." Hicks v.
Miranda, 422 U.S. 332, 344, 95 S.Ct. 2289 (1975). This
standard is met here for each of Appellants’ claims.
APPELLANTS OFFERED A JUDICIALLY
MANAGEABLE STANDARD FOR THEIR
POLITICAL GERRYMANDERING CLAIM
The search for an acceptable standard to judge political
gerrymandering claims has been long and difficult;
numerous opinions from this Court and countless opinions
from the lower courts document the difficulty. Davis v.
12
Bandemer, 478 U.S. 109, 125, 106 S.Ct. 2797, 2806 (1986);
Vieth v. Jubilerer, 541 U.S. 267, 124 S.Ct. 1769 (2004). This
has resulted in lower courts uniformly dismissing political
gerrymandering claims. See, e.g., Committee For A Fair
and Balanced Map v. Illinois State Board of Elections,
--F.Supp.2d--, 2011 WL 6318960 (N.D.Ill. Dec. 15, 2011)
(dismissing political gerrymandering claims for lack of
adequate standard); Fletcher v. Lamone, --F.Supp.2do-,
2011 WL 6740169 (D.Md., Dec. 23, 2011) (same); Perez, et al
v. Texas, No. 11-cv-360, slip op. at 21-22 (W.D.Tex. Sept. 2,
2011) (same); Baylorv. Cortes, 2008 WL 4224803 (M.D.Pa.,
Sept. 10, 2008) (same); Gorrell v. O’Malley, 2012 WL
226919 (D.Md., Jan. 19, 2012) (political gerrymandering
claims nonjusticiable). Yet the importance of the issue
is unquestioned. Courts and Congress repeatedly extol
the importance of the right to vote and, in particular,
the importance of a fair opportunity to participate in
the electoral process free from discrimination. See, e.g.,
Bartlett v. Strickland, 556 U.S. 1, 10, 129 S.Ct. 1231, 1240
(2009); Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995,
1000 (1972); 42 U.S.C. § 1973. The importance of finding
a standard for unconstitutional political gerrymandering
claims is evident in the decades of consideration the Court
has given the issue. Unfettered partisanship throughout
Congress and the state legislatures is becoming more
and more rampant because the only thing that matters
in most districts is how the districts are drawn. Paul
Kane and Chris Cillizza, Sen. Snowe Says She’ll Retire,
Citing Partisanship in Congress, WASH. POST, Feb.
28, 2012. Therefore, it is critical to find a standard to
stem the growing tide of map-drawers drafting heavily
partisan redistricting plans in hopes of cementing
majority status with no fear of judicial review. Appellants
proposed a neutral, objective and manageable standard
13
by which political gerrymandering claims may be judged.
Accordingly, this Court should hear this case, reverse the
District Court and permit Appellants a trial on the merits
of their political gerrymandering claim.
This Court recognized the justiciability of political
gerrymandering claims in Davis v. Bandemer, 478
U.S. 109, 125, 106 S.Ct. 2797, 2806 (1986). The Court
determined that to state a political gerrymandering claim,
a plaintiff must prove "both intentional discrimination and
an actual discriminatory effect on that group." Id. at 127.
The Court acknowledged the legislature’s knowledge of
the political composition of the new districts and ability to
predict which party would win an election in a district. Id.
at 128. Nevertheless, the Court rejected the notion that
merely making it more difficult for one party to prevail
in a particular district violated the Constitution. Id. at
131. "Rather, unconstitutional discrimination occurs only
when the electoral system is arranged in a manner that
will consistently degrade a voter’s or group of voters’
influence on the political process as a whole." Id. The
Court explained "the question is whether a particular
group has been unconstitutionally denied its chance to
effectively influence the political process...the inquiry
centers on the voters’ direct or indirect influence on the
elections of the state legislature as a whole." Id. at 133.
Thus, the court stated:
an equal protection violation may be found
only where the electoral system substantially
disadvantages certain voters in their
opportunity to influence the political process
effectively. In this context, such a finding
of unconstitutionality must be supported by
14
evidence of continued frustration of the will of
a majority of the voters or effective denial to a
minority of voters of a fair chance to influence
the political process.
do
Eighteen years later, in Vieth v. Jubilerer, 541 U.S.
267, 124 S.Ct. 1769 (2004), four Justices of the Court
concluded that Bandemer should be overruled and that
political gerrymandering claims are nonjusticiable. Id.
at 305-06. However, no majority of the court held that
political gerrymandering claims are nonjusticiable;
instead, Justice Kennedy left the door open to the
possibility that an acceptable standard might arise. Id.
at 306 (Kennedy, J. concurring in the judgment).
Just two years after Vieth, the Court was presented
with a political gerrymandering claim in League of United
Latin American Citizens (LULAC) v. Perry, 548 U.S.
399, 126 S.Ct. 2594 (2006). The Court again declined to
find political gerrymandering claims nonjusticiable but
did not yet set forth a standard for judging such claims.
Id. at 413-14 (Justice Kennedy reiterating that partisan
gerrymandering is still justiciable after Vieth). Thus,
while political gerrymandering claims remain justiciable,
no accepted standard for such claims has yet emerged.
The District Court recognized that political
gerrymandering claims remain justiciable in principle
but stated that they are currently "unsolvable" because
no workable standard for deciding them exists. App. B,
p. 36a. Appellants proposed a workable standard. Hence,
the District Court was wrong to dismiss Appellants
15
political gerrymandering claim, and this Court should
hear argument on the merits as to why the standard
proposed by Appellants is sufficient to allow them a trial
on the merits.
Appellants’ proffered standard for stating a claim
for unconstitutional gerrymandering asks the Court
to consider whether partisan advantage was the
predominant factor where: (1) the plan is less compact
than the one it replaces; (2) the plan splits more traditional
political boundaries than the one it replaces; (3) the plan
is demonstrably less compact and splits more traditional
political boundaries than necessary; (4) 100% of the
districts that fail to meet well-established state law
standards for compactness effect the representational
interests of the minority party; (5) minority-party
incumbents are deprived of a substantially greater
proportion of their core constituencies than majority party
incumbents; and (6) more than two-thirds of incumbent
pairings pit one minority-party incumbent against
another. Each factor is neutral, grounded in law, and can
be objectively measured.
The District Court conceded that the Appellants’
proposed standard is objective, measurable and sufficiently
certain such that courts could adjudicate it. App. B, p. 41a.
Thus, the standard is "manageable" and "workable." The
District Court, however, found the standard arbitrary
because it did not see how these particular factors are
implied by the Equal Protection Clause and because
it was not clear whether each element was required or
meeting only some met the standard. App. B, p. 41a-42a.
Examination of the standard, the facts and Equal
Protection Clause jurisprudence on gerrymandering
16
claims shows that the standard does stem from the
Equal Protection Clause and strikes the necessary
balance between allowing a legislature to take political
ramifications into consideration in redistricting but not
to let unchecked political power control their efforts to
effectively eliminate political opposition.
The District Court’s primary problem with the
standard was that it considered it arbitrary because it did
not know how these particular factors are implied by the
Equal Protection Clause. App. B, pp. 41a-42a. However,
the elements of the standard find support in the Equal
Protection Clause. The gravamen of an unconstitutional
political gerrymandering claim may be described as
intentional dilution of voting strength because of political
affiliation. Davis, 478 U.S. at 119; Vieth, 541 U.S. at 271.
Thus, the nature of the claim is similar to other equal
protection claims in the voting rights arena involving a
redistricting plan’s revealing intentional discrimination
and requires proof, whether direct or circumstantial, of
discriminatory intent and discriminatory effect, among
other things. See, e.g., Hunt v. Cromartie, 526 U.S. 541,
546, 119 S.Ct. 1545, 1549 (1999); Larios v. Cox, 300 F.
Supp.2d 1320, 1347 (N.D.Ga. 2004) aff’d 542 U.S. 947,
124 S.Ct. 2806 (2004). Contrary to the District Court’s
findings, the factors proposed by Appellants are rooted
in the Equal Protection Clause as shown in the Court’s
equal protection jurisprudence.
In fact, several of the factors have been used by courts
in evaluating an Equal Protection Clause challenge to
a redistricting plan. The inquiry into the legislature’s
intent depends in part on circumstantial evidence. Hunt,
526 U.S. at 546; Miller v. Johnson, 515 U.S. 900, 916, 115
17
S.Ct. 2475, 2488 (1995). Courts accept as circumstantial
evidence of intent the factors identified by Appellants
including compactness, respect for traditional boundaries
and demographic information about the districts. Id. at
547-58. Pitting incumbents against one another has also
been recognized as probative of intent, especially where
it does so to the substantial disadvantage of only one
party. Larios, 300 F. Supp.2d at 1347 (N.D.Ga. 2004),
aff’d 542 U.S. 947, 124 S.Ct. 2806 (2004). Destruction of
core constituencies similarly may be considered evidence
of a legislature’s intent to prevent the minority party’s
electoral success. Id. at 1334. While those cases do not
involve political gerrymandering claims, this is not
surprising given the lack of judicial definition of a political
gerrymandering standard. However, in order to allow for
political considerations, Appellants’ standard elevates
these requirements beyond merely showing they exist:
a claimant must show that minority party incumbents
are "substantially" deprived of their core constituencies
and that more than two-thirds of incumbent pairings pit
minority party candidates against one another. Courts
are capable of making such determinations and, in fact,
are required to do so regularly. For instance, in any case
in which intermediate scrutiny is applied, the court must
determine whether a "substantial interest" has been
shown. See, e.g., Turner Broadcasting System, Inc., v.
F.C.C., 520 U.S. 180, 213, 117 S.Ct. 1174, 1198 (1997).
Appellants do not suggest that merely meeting each
factor means that the claimants prevail on the claim-only that a claim has been stated to allow the claim to
proceed. Map-makers may still refute the claimant’s
evidence and offer evidence of legitimate motives or
non-discriminatory effects. The proposed standard
18
when met is sufficient to allow a fact finder to determine
both discriminatory intent and discriminatory effect.
When proven, the factors are sufficient to establish, at
least circumstantially, discriminatory intent. Creating
a map which is less compact and splits more traditional
boundaries than the previous plan and an alternate plan
can circumstantially show intent to gerrymander the
district lines for partisan advantage. Similarly, taking
away incumbents’ constituencies and pitting many more
minority party incumbents against one another shows
intent to discriminate against that minority party.
The factors, when proven, can also show discriminatory
effect. Legislatures know the political effects of their
redistricting plans. Davis, 478 U.S. at 128. A redistricting
plan which violates traditional redistricting standards
in order to deprive minority party incumbents their
constituencies and to create substantially more incumbent
pairings among the minority party will result in fewer
minority party members winning election. While that in
and of itself may not be enough to show discriminatory
effect, when additional circumstances such as those
existing in Illinois are present, the discriminatory effect
is sufficiently plausible that a claimant should be allowed
proceed with his or her claim.
In the 2010 elections, the most recent election
preceding the Redistricting Plan, Republicans gained
eight seats in the General Assembly, although Democrats
maintained a majority in each body. Seeing the trend, and
in order to stem the tide, the Democrat-controlled General
Assembly enacted the Redistricting Plan which pits over
three times as many Republican incumbents against one
another than Democrat incumbents, is less compact than
19
the previous plan and the alternate plan, splits more
traditional redistricting boundaries than the previous
plan and the alternate plan, and violates the traditional
principals of redistricting. In essence, the will of the voters
in Illinois was thwarted by less than 100 members of the
General Assembly simply by crafting a redistricting plan
to prevent election of Republicans.
Additionally, the lack of checks and balances in Illinois
cannot be ignored when considering the effect of the
Redistricting Plan. Illinois’ Constitution establishes a
legislative branch of government consisting of a bicameral
legislature, an executive branch and a judicial branch. IL
Const. (1970), art. I, § 1; art. IV, V, VI. The purpose of this
structure is to maintain a system of checks and balances.
Mattis v. State Universities Retirement System, 212
Ill.2d 58, 93, 816 N.E.2d 303, 322 (2004). But where one
party controls all three branches, the checks and balances
disappear in an area such as legislative redistricting. As
Appellants allege, Democrats controlled the Illinois House
of Representatives, the Illinois Senate and the Governor’s
office during the 2011 redistricting process. Furthermore,
the majority of Justices of the Illinois Supreme Court are
Democrat.1 Appellants also alleged that Democrats used
their control of the legislative and executive branches in a
manner that precluded Republicans from any meaningful
participation in drafting, analyzing and adopting the
Redistricting Plan to create a plan which violates each of
the elements of Appellants’ standard and that Democrats
1. In the past 20 plus years of redistricting jurisprudence,
only one Illinois Supreme Court Justice has not sided with his/her
own political party in a statewide legislative redistricting decision.
People ex rel v. Ryan, 147 Ill.2d 270 (1992).
2O
did so with the specific intent to systematically prevent
election of Republicans to the General Assembly.
Democrats controlled each branch of government
which could have potentially prevented a politically
gerrymandered redistricting plan. The traditional
checks and balances did not exist and Democrats took
the opportunity to maintain the absence of those checks
and balances by enacting the Redistricting Plan which
systematically prevents election of Republicans. In fact,
the District Court found that Appellants pleaded facts
which "plausibly suggest that the redistricting plan
was enacted in large part to give Democrats a partisan
advantage." App. B, pp, 39a-40a.
This Court’s and the lower courts’ attempts to define
a standard for political gerrymandering claims are well
documented. Notwithstanding that difficulty, a standard
must emerge due to the importance of protecting one’s
right to vote. Following Vieth and LULAC, district courts
routinely dismiss political gerrymandering claims for
lack of a standard. See, e.g. Committee For A Fair and
Balanced Map v. Illinois State Board of Elections, --F.
Supp.2d--, 2011 WL 6318960 (N.D.Ill. Dec. 15, 2011)
(dismissing political gerrymandering claims for lack of
adequate standard); Fletcher v. Lamone, --F.Supp.2d--,
2011 WL 6740169 (D.Md., Dec. 23, 2011) (same); Perez,
et al v. Texas, No. 11-cv-360, slip op. at 21-22 (W.D.Tex.
Sept. 2, 2011) (same); Baylor v. Cortes, 2008 WL
4224803 (M.D.Pa., Sept. 10, 2008) (same); Gorrell v.
O’Malley, 2012 WL 226919 (D.Md., Jan. 19, 2012)(political
gerrymandering claims nonjusticiable). Without even the
chance of suffering adverse consequences for intentionally
securing an opposing political party’s minority status,
legislatures will continue to draft redistricting plans
21
to entrench themselves in power, the will of the people
be damned. Only if the Court approves a standard and
legislatures fear consequences from their actions can
voters’ interests ever be protected. Appellants offered a
standard which is objective, administrable, and grounded
in equal protection jurisprudence. Hence, the Court should
hear the merits of this case and find that Appellants may
proceed with its political gerrymandering claim.
II. AGGREGATION OF VOTES SHOULD BE
PERMITTED UNDER PRONG 3 OF THORNBURG
V. GINGLES IN THE SPECIAL CIRCUMSTANCE
OF MULTIPLE CANDIDATES IN AN ELECTION
No court has previously addressed the specific
issue raised in this case: whether, to satisfy the third
factor required by Thornburg v. Gingles, 478 U.S. 30,
43, 106 S.Ct. 2752 (1986) to show a violation of Section
2 of VRA, it can be an acceptable method of election
analysis to review the aggregate votes of all white voters
for multiple white candidates to determine whether the
majority votes sufficiently as a bloc -- in the absence of
special circumstances -- usually to defeat the minority’s
candidate of choice. The District Court "decline[d]...
to be the first court ever" to consider such a method of
analysis and, accordingly, entered summary judgment
against Appellants. App. A, pp. 29a-30a. Because multiple
white candidates constitutes a "special circumstance" as
contemplated by Gingles, aggregating the votes received
by multiple white candidates is an appropriate method
of proving Gingles Prong 3. Hence, this Court should
accept argument on the merits and rule that the Section
2 plaintiffs in this case are permitted to at least present
evidence at a trial on the merits that aggregation of
22
white votes for multiple white candidates is an acceptable
component of determining whether white voters vote as a
bloc usually to defeat the minority’s candidate.
The substantial nature of this question is evident.
The myriad cases from this Court and the lower courts
regarding Section 2 of VRA and voting rights generally,
as well as the numerous acts of Congress intended
to protect voting rights, indicates the importance of
the fundamental right to vote and the importance of
preventing vote dilution. 42 U.S.C. § 1973; Thornburg v.
Gingles, 478 U.S. 30, 43, 106 S.Ct. 2752 (1986). Moreover,
the prevalence and importance of multiple candidate
elections, particularly in primaries, suggests that this
issue will continually arise and that courts must at least
permit presentation of evidence of an acceptable method
of accounting for this special circumstance. Doing so will
clarify how Gingles’ third prong may be applied to the
special circumstance where the white vote consists of a
majority but has historically been split among multiple
white candidates in exogenous elections and will promote
Congress’ intent in enacting the VRA to eliminate voter
discrimination. Chisom v. Roemer, 501 U.S. 380, 403, 111
S. Ct. 2354, 2368 (1991).
The field of candidates in an election is the most
important factor in the election. Baodong Liu and James
Vanderleeuw, RACE RULES: ELECTORAL POLITICS
IN NEW ORLEANS, 1965-2006, pp. 44-46 (2007). The
splitting of votes among various candidates of the same
race can benefit a candidate of a different race and allow
that candidate to win an election with only a plurality
vote. Indeed, the Third, Fourth and Eighth Circuits have
recognized the problem where multiple white candidates
23
split the vote and a minority candidate wins with only a
plurality and have considered it a special circumstance
under Gingles third prong. See United States v.
Charleston County, 365 F.3d 341, 352 (4th Cir. 2004) (a
split among several white candidates is found to be special
circumstances under Prong 3); Jenkins v. Manning, 116
F.3d 685,694 (3d Cir. 1997) (plurality election discounted
as special circumstance under Prong 3 where minority
elected by plurality in race against five white candidates);
Little Rock School Dist. v. Polaski County Special
School Dist., 56 F.3d 904, 911 (8th Cir. 1995) (AfricanAmerican running in a plurality race against several
white candidates found to be special circumstances under
Prong 3); Neal v. Coleburn, 689 F. Supp. 1426, 1436 (E.D.
Va. 1988) (special circumstances found under Gingles
Prong 3 when black elected with 39.5% of the vote only
because the two strong white candidates had split the
white majority vote).
This circumstance is particularly important to
consider and analyze in determining whether white
voters vote sufficiently as a bloc to usually defeat the
minority’s candidate. One of the purposes of Section 2 of
the VRA is to prevent minority voters from being denied
a fair opportunity to elect its candidate of choice. S.REP.
NO. 417, reprinted in 1982 U.S.C.C.A.N. at 206. A long
accepted method of determining whether a minority
group has such an opportunity is to use reconstituted
elections in analyzing past election results to determine
voting patterns and then to predict likely outcomes in
newly drawn districts. See, e.g., Gingles, 478 U.S. at 5354 and n.20. Indeed, the very purpose of the analysis is
to determine whether minority group members have an
opportunity to elect their preferred candidate. Id. at 56.
24
However, because the districts have new boundaries and
no elections have occurred in the new districts as newly
drawn, experts can only predict what the voting patterns
will be in the newly drawn districts by disaggregating past
election data at the census bloc level and re-aggregating
the data with the new district boundaries. Experts may
then analyze that data and opine as to whom they believe
has a fair opportunity to elect a candidate in the new
district to determine compliance with Section 2 of VRA.
The past elections available for experts to analyze,
however, often have unique circumstances which
necessarily effect the outcome and, therefore, the
predictive value of the election. Thus, Gingles recognized
that special circumstances may be considered in
determining whether white voters vote sufficiently as a
bloc to usually defeat the minority’s candidate. Gingles,
478 U.S. at 51, 57. This Court in Gingles acknowledged
that minority success in a few elections "does not negate
the conclusion that the district experiences legally
significant bloc voting." Id. at 57. The Court offered a
number of possible explanations for minority success
notwithstanding legally significant bloc voting, such as the
absence of an opponent, incumbency or the utilization of
bullet voting. Id. However, these examples are illustrative
of special circumstances, not exclusive. Id. at n.26. Past
election outcomes where a minority candidate wins,
therefore, cannot be relied upon for purposes of Prong 3
without looking at the underlying circumstances of those
elections. Multiple white candidates’ splitting white voters’
votes is one circumstance which often explains minority
success in the face of white bloc voting. Analyzing the
aggregation of white voters’ votes for multiple white
candidates in such elections is one way of determining
whether multiple white candidates’ splitting the vote does
25
in fact explain minority success in those elections. It is at
least a question of fact whether multiple white candidates
splitting the support of white voters is an explanation for
minority success.
Ignoring the special circumstance of multiple white
candidates splitting white voters’ votes can result in a
misleading picture of the likely results of future elections.
See Bernard Grofman, Lisa Handley & Richard G. Niemi,
MINORITY REPRESENTATION AND THE QUEST
FOR VOTING EQUALITY (1992), p. 99; Barnett v.
City of Chicago, 969 F. Supp. 1359, 1424 (N.D. Ill. 1997),
reversed in part on other grounds, 141 F.3d 699 (7th Cir.
1998). While it is true that Barnett examined the issue in
the context of Gingles Prong 2, that does not change the
fact that an election’s having multiple white candidates
will effect the distribution of white voters’ votes among
individual candidates. Therefore, courts must consider
the ethnic composition of all candidates in the analyzed
elections for purposes of proving Gingles Prong 3, not
just the winning candidate. Examining and accounting for
the existence of multiple white candidates in an election
reveals whether white voters engaged in bloc voting in
that election. In a district where racially polarized voting
has been established, this is particularly likely to occur.
It follows, then, that examining and accounting for the
presence of multiple white voters in an election more
accurately predicts whether those voters will vote as a
bloc to defeat the minority’s preferred candidate in newly
drawn districts. This is especially true in examining
elections where minority candidates won with a plurality
vote due to white voters’ having split their votes among
multiple white candidates in a district which otherwise
has racially polarized voting in the district.
26
Such is the case here. No issue was raised as to
whether Appellants met Gingles Prong I or Prong 2. In
determining Gingles Prong 3, Dr. Liu analyzed the most
analogous elections to those for state representative in
the newly drawn Representative District 23. He evaluated
elections which encompassed all of Representative District
23 and the adjacent Latino districts. However, as Dr.
Liu noted, in the 10 years before the Redistricting Plan,
a lone Latino candidate has never run against multiple
white candidates in an election for a Representative
District in Illinois. As Dr. Liu showed, in the four elections
he analyzed, the aggregated votes of white voters for
three out of the four of the white candidates eclipsed the
number of votes for the minority candidate. But because
the white voters split the vote among multiple white
candidates in those contests, the minority candidate
prevailed in three out of the four elections Dr. Liu relied
upon. As Dr. Liu established, if the special circumstance
of multiple white candidates was not present, a white
candidate would have won three of the four elections to
defeat the minority candidate. Hence, Dr. Liu opined that
white voters do, in fact, vote sufficiently as a bloc in the
absence of the special circumstance of multiple white
candidates usually to defeat the minority’s candidate.
Just as Gingles contemplated, the special circumstance
explains the minority success notwithstanding racially
polarized voting.
The District Court failed to heed this Court’s
instruction that the Gingles factors may not be applied
mechanically without regard to the claim. Voinovich v.
Quilter, 507 U.S. 146, 158, 113 S.Ct. 1149, 1157 (1993).
Instead, the District Court rotely established a brightline test for whether Appellants met Gingles Prong 3
27
without regard to the claim or the special circumstances
that exist. This mechanical application of Prong 3 by the
District Court was in error.
Accounting for multiple white candidates produces
a more accurate picture of past election results and,
therefore, produces a more accurate prediction of whether
a minority group has a fair opportunity to elect its
candidate of choice in a newly drawn district. Dr. Liu’s
analysis predicted that Latino voters would not have a
fair opportunity to elect a candidate of their choice in
Representative District 23. Indeed, consistent with Dr.
Liu’s analysis, no Latino candidate is even running for
election in the March, 2012 primary in Representative
District 23. App. D. The white candidate in Representative
District 23, Michael Zalewski, has no Latino opponent in
the Democratic primary. App. D. It is fair to assume that
no Latino candidate believed he or she had a chance to
win in the district given that he or she would be running
against a single white incumbent with no opportunity for
a plurality victory.
Appellants’ method of analysis more accurately
evaluates whether a minority-majority district gives the
minority group a fair opportunity to elect their candidate
of choice because it more accurately predicts the likely
outcome of elections where a minority candidate is running
against only one white opponent. This is especially true
where these types of legislative elections are historically
one-on-one elections. In short, Appellants’ method permits
determination of whether the minority group has a
fair opportunity to elect its preferred candidate absent
the special circumstance of multiple white candidates
splitting the vote. At the very least, this evidence raises a
28
factual question in this case whether Appellants’ method
of analyzing the special circumstance of multiple white
candidates more accurately determines whether white
voters vote sufficiently as a bloc to usually defeat the
minority’s candidate. Accordingly, Appellants should
not have been foreclosed from presenting evidence on
this issue, and the District Court’s refusal to permit
Appellants an opportunity to present this evidence at a
trial on the merits was error.
III.A MINORITY-MAJORITY DISTRICT IS
NOT A PREREQUISITE TO A RACIAL
GERRYMANDERING CLAIM
The District Court granted summary judgment to
Appellees on Appellants’ racial gerrymandering claim
brought under the Fourteenth Amendment and Shaw
v. Reno, 509 U.S. 630, 113 S.Ct. 2816 (1993) primarily
because Representative District 96 contained a majority
white voting age population and only 24% African
American voting age population. App. A, p. 14a. This
Court has never expressly held that in order to state a
racial gerrymandering claim, the subject district must
be a minority-majority district. The Court should hear
arguments on whether a racial gerrymandering claim
may be stated where the district is not a minority-majority
district.
A state legislature may not separate voters into
districts predominantly based on their race. Miller v.
Johnson, 515 U.S. 900, 911, 115 S.Ct. 2475, 2486 (1995).
In order to prevail on a claim for racial gerrymandering,
a plaintiff must demonstrate that the legislature
subordinated all traditional redistricting principles to the
29
racial classification of certain voters. Id. at 916. Such racial
motivation may be proved through direct or circumstantial
evidence, including the bizarre or irregular shape of the
district, incongruous boundaries, disregard for political
subdivisions and communities of interest and lack of
commonality between disparate communities. Shaw, 509
U.S. at 647; see also Hunt v. Cromartie, 526 U.S. 541,
546-550, 119 S.Ct. 1545, 1549 (1999).
Courts in the past have permitted trial of claims of
racial gerrymandering even where the district is less
than a minority-majority district. In the Cromartie line
of cases, the district court invalidated a district which
was less than 50% minority voting age population. Hunt
at 544; see also Easley v. Cromartie, 532 U.S. 234, 240,
121 S.Ct. 1452, 1457 (2001). While it is true that this Court
ultimately reversed the District Court’s decision, it did so
because it found the evidence presented at trial failed to
show that the predominant motivation for the shape of the
district was race. Easley, 532 U.S. at 241. The Court did
not decide the cases on the basis that the districts were
less than 50% minority voting age population. Thus, the
issue remains open.
Although the District Court did cite to evidence
submitted by Appellees in granting summary judgment
on the racial gerrymandering claim, the Apellants
submitted evidence sufficient to raise a question of
fact as to the legislature’s predominant motivation
in drawing Representative District 96. Appellants
offered evidence including that the primary purpose
for creating Representative District 96 was to combine
the African-American populations of Springfield and
Decatur. The initial drafter deliberately ignored the
3O
boundaries of previous districts, the political history of
the entire area and the neighborhood communities of
interest. Further, the shape of the district is so bizarre
in that it stretches and bends south and east to grab the
African-American communities located some 40 miles
away, loops around the African-American communities
in Springfield and Decatur and snakes south of 1-72 to
grab sparsely populated areas of Christian, Macon and
Sangamon Counties, while mixing two large far-flung
African-American communities with farmland inhabited
by voters with politically different interests. This bizarre
shape results in a severing of the core constituencies of
five previous representative districts and lumps some of
those voters into Representative District 96, splits 14
different townships, five municipalities and three counties
Further the bizarre shape can not be justified by saying
that its purpose was to combine the cities of Springfield
and Decatur. The largest employer in Springfield is the
State of Illinois with 21,600 residents working for the
State of Illinois; whereas in Decatur, less than 1,200
people are employed by the State of Illinois. In Decatur,
the major industry is manufacturing with 35% of the
workforce; yet conversely, only about 10% of the workforce
in Springfield is employed by the manufacturing industry.
The median home price in Decatur is $76,500 compared to
Springfield at $109,300. Residents testified in opposition
to Representative District 96 because linking the
communities "made no sense" because "those communities
are so different and that "the City of Decatur is not at
all like Springfield." One Alderwoman who advocated
for Representative District 96 even conceded that the
African-American community in Springfield and the rural
areas that were linked up with the African-American
community in Decatur were "very different."
31
Appellees offered evidence that the predominant
motivation in drawing the district was enhancement
of Democrats’ chances of winning the district. App. A,
pp. 16a-22a. There is no dispute that the District Court
was faced with conflicting evidence. In the absence of
any controlling authority that a minority voting age
population over 50% is required to state a claim for racial
gerrymandering, the District Court erred in granting
summary judgment and instead should have permitted
Appellants to proceed to trial.
CONCLUSION
This Court should note probable jurisdiction and set
this case for argument.
Respectfully submitted,
PHILLIP A. LUETKEHANS
Counsel of Record
BRIAN J. ARMSTRONG
SCHIROTT, LUETKEHANS
& GARNER, P.C.
105 E. Irving Park Road
Itasca, IL 60143
(630) 773-8500
PLuetkehans@sl-atty.com
Counsel for Appellants,
Christine Radogno, Veronica Vera
and Edward Tolentino
32
ANDREW SPERRY
LAROSE & Bosco, LTD.
200 N. LaSalle St., Suite 2810
Chicago, IL 60601
(312) 642-4414
THOMAS M. LEINENWEBER
PETER G. BARONI
LEINENWEBER BARONI
& DAFFADA LLC
203 N. LaSalle St., Suite 1620
Chicago, IL 60601
(866) 786-3705
Counsel for Appellants,
Thomas Cross, Adam Brown
and Angel Garcia
JOHN G. FOGARTY, JR.
LAW OFFICE OF JOHN FOGARTY, JR.
4043 N. Ravenswood, Suite 226
Chicago, IL 60613
(773) 549-2647
KENNETH E. JOHNSON
KENNETH E. JOHNSON, LLC
303 N. 2nd Street, Suite 25
St. Charles, IL 60174
(630) 945-3814
33
BRIEN SHEAHAN
LAW OFFICE OF BRIEN SHEAHAN
5 Saint Regis Court
Elmhurst, IL 60126
(630) 728-4641
Counsel for Intervening
Plaintiff~Appellant, Illinois
Republican Party
March 12, 2012
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