FILED
JUI 1 5 20IZ
OFF iCli 17~#: 71"tE CLERK
No. 11-1127
In the
Supreme Court of the United States
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 United States District
Court for the Northern District of Illinois
MOTION TO AFFIRM
LISA MADIGAN
Attorney General of Illinois
MICHAEL A. SCODRO*
Solicitor General
JANE ELINOR NOTZ
* Counsel of Record
Deputy Solicitor General
100 West Randolph Street
Chicago, Illinois 60601
(312) 814-3698
mscodro@atg.state.il.us
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TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................iii
STATEMENT ................................
1
REASONS FOR AFFIRMANCE ................. 6
I.
THIS CASE DOES NOT WARRANT PLENARY
REVIEW ..................................
7
II. THE DECISION BELOW IS CORRECT ON THE
MERITS ..................................
8
A. The District Court Properly Dismissed
Appellants’ Political Gerrymander
Claims ................................
8
B. The District Court Properly Granted
Summary Judgment On The Section 2
Claim ................................
12
1. Appellants’ Own Evidence Shows
That, In Three Of Four Elections,
The White Majority Did Not
Defeat The Latinos’ Candidate Of
Choice ............................
12
2. The "Special Circumstances"
Doctrine Cannot Transform
Latino Victories Into Victories
For The White Majority ..............15
ii
TABLE OF CONTENTS~ontinued
The "Special Circumstances"
Doctrine Does Not Apply In Any
Event .............................
Co
18
The District Court Properly Granted
Summary Judgment On The Racial
Gerrymander Claim ....................19
The District Court Did Not Hold
That A Minority-Majority District
Is A "Prerequisite" To A Racial
Gerrymander Claim .................19
°
°
Undisputed Evidence Established
That Partisanship--Rather Than
Race--Played A Key Role In
Drawing RD 96 .....................
21
The Map’s Perfect Population
Equality, RD 96’s
"Unremarkable" Shape, And The
Legislature’s Statement Of
Reasons Confirm That Racial
Considerations Did Not
Predominate .......................
CONCLUSION ..............................
23
26
111
TABLE OF AUTHORITIES
Cases:
Page(s)
Aldasoro v. Kennerson,
922 F. Supp. 339 (S.D. Cal. 1995) ............18
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986) .......................21
Arlington Heights v. Metropolitan Housing Dev.
Corp., 429 U.S. 252 (1997) ................. 19
Bush v. Vera, 517 U.S. 952 (1996) ......... 21, 24, 25
Cano v. Davis,
211 F. Supp. 2d 1208 (C.D. Cal. 2002) ........20
Connor v. Finch, 431 U.S. 407 (1977) .......... 5, 23
Cox v. Larios, 542 U.S. 947 (2004) ............... 9
Easley v. Cromartie, 532 U.S. 234 (2001) ..... passim
Gaffney v. Cummings, 412 U.S. 735 (1973) ........ 8
Hunt v. Cromartie, 526 U.S. 541 (1999) ........... 8
Jenkins v. Manning,
116 F.3d 685 (3d Cir. 1997) .................16
Jenkins v. Red Clay Consol. Sch. Dist. Bd. of
Educ., 4 F.3d 1103 (3d Cir. 1993) ...... 14, 16, 18
TABLE OF AUTHORITIES~ontinued
Lawyer v. Dep’t of Justice,
521 U.S. 567 (1997) ..................... 4, 20
League of United Latin Amer. Citizens v. Perry,
548 U.S. 399 (2006) ....................... 10
Little Rock Sch. Dist. v. Pulaski Cnty. Special
Sch. Dist., No. 1, 56 F.3d 904
(8th Cir. 1995) ...........................
16
Miller v. Johnson, 515 U.S. 900 (1995) ......... 8, 19
Neal v. Coleburn,
689 F. Supp. 1426 (E.D. Va. 1988) ........... 16
Rodriguez v. Bexar Cnty.,
385 F.3d 853 (5th Cir. 2004) ................ 15
Rollins v. Fort Bend Indep. Sch. Dist.,
89 F.3d 1205 (5th Cir. 1996) ................ 18
Scott v. Dep’t of Justice,
920 F. Supp. 1248 (M.D. Fla. 1996) .......... 20
Shaw v. Reno, 509 U.S. 630 (1993) ............... 4
Thornburg v. Gingles, 478 U.S. 30 (1986) .... passim
Valladolid v. City of Nat’l City,
976 F.2d 1293 (9th Cir. 1992) .............. 17
Vieth v. Jubelirer, 541 U.S. 267 (2004) ....... 7, 9, 11
V
TABLE OF AUTHORITIESmContinued
Statute and Rule:
42 U.S.C. § 1973(b) .........................2, 13
U.S. Sup. Ct. R. 18.6 ...........................
1
Miscellaneous:
Eugene Gressman, et al., SUPREME COURT
PRACTICE (gth ed. 2007) ....................8
Blank Page
1
MOTION TO AFFIRM
Appellees file this motion to summarily affirm the
judgment of the three-judge district court pursuant to
Supreme Court Rule 18.6. Appellants raise no
substantial question warranting this Court’s plenary
review, nor do they identify any conflict in lower court
authority, and the district court’s judgment was correct
on the merits.
STATEMENT
1. Appellants challenge Illinois’ redistricting plan,
enacted in May 2011, for the State’s 118 representative
(House) districts and 59 legislative (Senate) districts
(the "2011 Illinois Map"). They are appealing from the
district court’s order, entered on November 22, 2011,
dismissing their political gerrymander claims, and that
court’s subsequent order, entered on December 7, 2011,
awarding summary judgment for appellees on
appellants’ Voting Rights Act and racial gerrymander
claims.
2. Appellants’ first amended complaint alleged,
inter alia, that the 2011 Illinois Map constitutes an
unconstitutional political gerrymander in violation of
the First and Fourteenth Amendments. Doc. 21
(Amend. Compl., ¶ 1). The district court dismissed the
political gerrymander counts but afforded appellants an
opportunity to amend their complaint to plead a
workable test or reliable standard to measure the
alleged constitutional violation. App. 33a. Appellants
then filed a second amended complaint, alleging that a
political gerrymander is established when, "[b]ased on
a totality of the circumstances," partisan advantage was
"the predominant factor in creating the Redistricting
Plan." Doc. 65 (Second Amend. Compl., ¶ 167). In
judging this totality, appellants urged the district court
to consider factors including relative compactness,
traditional political boundaries, state law redistricting
standards, core district retention, and incumbent
pairing. App. 40a.
The district court dismissed the second amended
complaint’s political gerrymander claims with prejudice,
holding that appellants’ proffered standard was
"essentially and fatally arbitrary." App. 41a (emphasis
in original). The court further explained that "it’s hard
to see how" appellants’ test is "implied by the
requirements of the Equal Protection Clause," because
that Clause "tolerates some degree of partisanship in
redistricting." App. 42a.
3. Appellants’ second amended complaint also
alleged that Illinois Representative District 23 ("RD
23") violates Section 2 of the Voting Rights Act by
denying Latinos an equal opportunity to participate in
the political process and elect candidates of their choice.
See 42 U.S.C. § 1973(b). To establish a Section 2
violation, appellants were required, at the threshold, to
satisfy three factors derived from this Court’s decision
in Thornburg v. Gingles, 478 U.S. 30 (1986). Appellants
had to show that: (1) Latinos are sufficiently large and
geographically compact to constitute a majority in RD
23; (2) Latinos within the boundaries of RD 23 are
politically cohesive; and (3) whites vote sufficiently as a
bloc to usually defeat Latinos’ preferred candidate
within the boundaries of RD 23. App. 24a (citing
Gingles, 478 U.S. at 49-51).
Appellees filed a motion for summary judgment on
the Section 2 claim, arguing that appellants could not
3
establish the third Gingles precondition. App. 24a, 26a.
As appellees explained, appellants’ expert had proffered
results from four historical elections within RD 23 as
evidence of supposed white-bloc voting; even accepting
these elections as an appropriate and complete set of
elections for the prong-three analysis, however, the
races did not show that white-bloc voting usually
defeated the Latino-preferred candidate because the
Latino candidate won three of those four elections. App.
26a. Because one victory out of four does not constitute
the "usual" defeat of the Latino-preferred candidate,
appellants could not satisfy Gingles prong three as a
matter of law. Ibid.
For their part, appellants did not dispute that the
Latino-preferred candidate had won three out of the
four races. Rather, appellants argued that two of the
three Latino-bloc victories should be counted as
victories for a bloc of white voters, because in those two
elections the white vote was split among multiple white
candidates. According to appellants, the actual election
results (Latino-voter victories) should be re-classified as
white-bloc victories because the white candidates, as a
group, would have won each of those two elections "if
’you aggregate all votes for a particular
ethnicity.’" App. 27a-28a.
The district court rejected this argument, holding
that appellants’ theory was "flawed on nearly every
front," App. 26a, "would turn the law on its head," App.
30a, and "finds no support in Gingles or its progeny,"
App. 28a. The court further held that losing three times
out of four to Latino-preferred candidates could not, as
a matter of law, be construed as "usually" defeating the
Latino candidate of choice. App. 28a-29a. Accordingly,
because appellants could not satisfy the third Gingles
4
precondition, the court granted summary judgment for
appellees on the Section 2 claim.
4. Lastly, appellants’ second amended complaint
challenged Illinois Representative District 96 ("RD 96")
as an unconstitutional gerrymander in favor of
African-Americans, violating Shaw v. Reno, 509 U.S.
630 (1993)--even though RD 96 has an
African-American voting-age population ("VAP") of
24.87% and a white VAP of more than 70%. App. 14a.
To sustain this claim, appellants had to show that, in
drawing RD 96, racial considerations predominated over
all other factors. App. 13a (citing Easley v. Cromartie,
532 U.S. 234, 241 (2001)). But appellees presented
"abundant, uncontroverted evidence that the legislature
did not elevate racial considerations above legitimate
redistricting principles when drawing RD 96"; thus, the
district court granted summary judgment for them on
the racial gerrymander claim. App. 16a.
First, relying on this Court’s decision in Lawyer v.
Department of Justice, 521 U.S. 567 (1997), the court
explained that a district with a small percentage of
African-American VAP could not qualify as an
electorally "safe" district for African-American
candidates and would not send a pernicious message to
representatives of RD 96 that they need only be
responsive to African-American voters. App. 15a-16a.
Thus, RD 96, like the challenged district in Lawyer, was
"unlikely to pose the constitutional threat identified in
Shaw." App. 15a.
Next, the court described the evidence that partisan
considerations, not race, largely accounted for the
drawing of RD 96. App. 16a. Specifically, the court
relied on (1) testimony from the principal drafter of the
2011 Illinois Map that he considered partisan data, but
not racial data, when approving the boundaries of RD
96, App. 6a-7a, 16a; (2) evidence that a large number of
African-Americans immediately adjacent to the borders
of RD 96 were excluded--but virtually every
Democratic-majority precinct was included--within the
district’s boundaries, App. 17a; and (3) expert testimony
heard by the Illinois General Assembly prior to enacting
the 2011 Illinois Map, as well as maps showing partisan
and racial data, that used actual voter data to
demonstrate a high degree of correlation between being
African-American and voting for Democratic candidates
in general elections. App. 7a, 20a-21a.
The district court also noted that each
representative district contained either 108,734 or
108,735 residents, and, therefore, the 2011 Illinois Map
complied perfectly with the one-person, one-vote
principle. App. 18a. But, the court explained, the
Illinois General Assembly could have deviated from
population equality by as much as ten percent without
constitutional risk, and in doing so could have excluded
white population from RD 96 to bolster the percentage
of African-American VAP. App. 17a-18a (citing Connor
v. Finch, 431 U.S. 407, 417-418 (1977)). That the
legislature did not was further evidence that racial
considerations were not at the forefront of the
mapmakers’ thinking. Ibid.
Finally, the district court described the "wholly
unremarkable" shape of RD 96, whose boundaries were
largely defined by township or county lines and in many
cases stretched for miles in entirely straight lines. App.
21a-22a; see also App. 8a (RD 96 is "not nearly the
longest, the widest, or the most irregularly shaped" of
Illinois’ 118 districts). Moreover, in enacting the 2011
6
Illinois Map, the General Assembly incorporated two
contemporaneously passed "Resolutions" memorializing
legislative intent, and in drawing RD 96 this intent was
to join together several "communities of interest" in one
representative district. App. 10a-lla. Specifically, the
legislature sought to join the two urban centers of
Decatur and Springfield, which are surrounded by rural
areas and have more in common with each other than
their neighbors; the many residents of Decatur and
Springfield who are government employees (Decatur
and Springfield are both county seats and Springfield is
the state capital); and the community of health-care
professionals who work in the Mid-Illinois Medical
District, which is one of only two such districts in
Illinois and consists of hospitals located in Decatur and
Springfield. Ibid.
In short, the district court explained, there was
"copious evidence"mundisputed by appellants--"that
legitimate, non-racial considerations played a significant
role in the General Assembly’s adoption of RD
96." App. 23a. On this basis, the court granted
summary judgment for appellees on the racial
gerrymander claim as well.
REASONS FOR AFFIRMANCE
The judgment of the three-judge district court
dismissing appellants’ complaint should be summarily
affn’med. None of the three issues appellants raise is
worthy of this Court’s plenary review, for none
implicates any split in authority or conflicts with this
Court’s precedent. Indeed, this appeal does not even
present appellants’ third question presented. Moreover,
each of appellants’ claims fails on its merits. Their
political gerrymander theory suffers from the same
defects that have prevented this Court from recognizing
such a claim historically. Their challenge under Section
2 of the Voting Rights Act invites the Court to draw the
illogical conclusion that white voters usually block
Latino voters from electing the candidate of their choice
in a district where, in the very elections that appellants
cite, the Latino-preferred candidate prevailed three out
of four times. Finally, appellants ask the Court to
decide whether a district must be minority-majority to
sustain a racial gerrymander claim under the Equal
Protection Clause, but this question proceeds from a
misreading of the opinion below, which does not purport
to announce any such per se limit on such claims. And
the record shows that race was not a predominant factor
in drawing the challenged district in any event.
I.
THIS CASE DOES NOT WARRANT PLENARY
REVIEW.
Appellants admit that after Vieth v. Jubelirer, 541
U.S. 267 (2004), in which four Justices would have held
that political gerrymander claims are nonjusticiable,
lower courts have "uniformly dismiss[ed]" such claims.
Juris. Stmt. 12 (collecting cases). Nor has any lower
court adopted appellants’ Section 2 argument: the
district court here declined their "invitation to be the
first court ever to count actual [minority] victories as
putative [majority] victories, and to conclude, on that
basis, that Gingles’s third prong has been met." App.
29a. Thus, there is no conflict among the lower courts
on the first two questions presented; rather, as shown
below, the only conflict is between appellants’ novel
theories and this Court’s redistricting decisions.
Furthermore, appellants’ third question is not even
presented here. Their contention that the district court
held that "a minority-majority district" is "a
8
prerequisite to a racial gerrymandering claim," Juris.
Stmt. 28, misstates the underlying decision, which
rejected appellants’ claim based on "copious" evidence
that legitimate redistricting considerations guided the
adoption of RD 96, App. 23a, not on the lone fact that it
is not a minority-majority district.
Because there is no conflict in the lower courts on
the questions presented, nor any conflict between the
decision below and any decision of this Court, this
appeal presents no substantial federal question
warranting full briefing and oral argument. See
generally Eugene Gressman, et al., SUPREME COURT
PRACTICE 303-304, 541 (9th ed. 2007).
II. THE DECISION BELOW IS CORRECT ON THE
M~ERITS.
A. The District Court Properly Dismissed
Appellants’ Political Gerrymander Claims.
"The reality is that districting inevitably has and is
intended to have substantial political consequences."
Gaffney v. Cummings, 412 U.S. 735,753 (1973); see also
Miller v. Johnson, 515 U.S. 900, 914 (1995)
("redistricting in most cases will implicate a political
calculus"). Thus, this Court long ago held (and has
consistently reaffirmed) that partisanship is a
constitutionally legitimate consideration in
redistricting. A redistricting plan therefore may
"determine what district will be predominantly
Democratic or predominantly Republican, or make a
close race likely," without offending the Constitution.
Gaffney, 412 U.S. at 753; see also Hunt v. Cromartie,
526 U.S. 541,551 (1999) (Court’s "decisions have made
clear that a jurisdiction may engage in constitutional
political gerrymandering").
9
More recently, in Vieth, the four-Justice plurality
would have held that political gerrymander claims are
nonjusticiable. See 541 U.S. at 281, 286 (op. of Scalia,
J., joined by Rehnquist, C.J., and O’Connor and
Thomas, JJ.). Four additional Justices confirmed that
legislatures may lawfully consider politics when
redistricting. See id. at 307 (Kennedy, J., concurring in
the judgment); id. at 344 (Souter, J., dissenting, joined
by Ginsburg, J.); id. at 355 (Breyer, J., dissenting).
Thus, one Member of the Court observed that "all but
one of the justices agreed" in Vieth that "’politics as
usual’ * * * is a traditional criterion, and a
constitutional one, so long as it does not go too far." Cox
v. Larios, 542 U.S. 947, 952 (2004) (mem.) (Scalia, J.,
dissenting) (emphasis in original).
For the Vieth plurality, political gerrymander claims
are nonjusticiable because there are "no judicially
discernible and manageable standards for adjudicating
[them]." 541 U.S. at 281. The plurality explained that
every standard that had been proposed was
"unmanageable and arbitrary" or "indeterminate," or
had "evolve[d] toward some loose form of
proportionality" (which the Constitution does not
require). Id. at 282, 284, 288. And the plurality
rejected, specifically, "a totality-of-the-circumstances
analysis, where all conceivable factors, none of which is
dispositive, are weighed with an eye to ascertaining
whether the particular gerrymander has gone too far."
Id. at 291. The plurality also rejected a standard
requiring the challenger to show that "the mapmakers
acted with a predominant intent to achieve partisan
advantage." Id. at 284 (internal alterations omitted).
Writing separately, Justice Kennedy agreed with
the plurality’s rejection of all standards proffered to
10
date--although he declined to close the door entirely on
political gerrymander claims. See id. at 308.
Specifically, Justice Kennedy recognized the "weighty
arguments for holding cases like these to be
nonjusticiable" and acknowledged that these arguments
"may prevail in the long run." Id. at 309. But he also
anticipated the possibility that "workable standards" for
assessing political gerrymander claims may someday
"emerge." Id. at 317. These standards would need to
be "clear, manageable, and politically neutral," in order
"to limit and confine judicial intervention." Id. at 307,
308-309. Such standards did not exist, however,
because there was no "agreed upon model of fair and
effective representation" on which to base them. Id. at
307. Justice Kennedy also rejected any standard "that
turns on whether the partisan interests in the
redistricting process were excessive." 541 U.S. at 316.
And, subsequently, he rejected a standard "that
invalidates a map based on unfair results that would
occur in a hypothetical state of affairs." League of
United Latin Amer. Citizens v. Perry, 548 U.S. 399, 420
(2006) (op. of Kennedy, J.).
Thus, as the district court recognized, appellants
faced the "task of articulating a standard by which
judges may reliably and objectively" distinguish between
constitutional and unconstitutional uses of partisanship
in redistricting. App. 37a. Such a standard, the district
court recognized, must be an "objective, measurable"
one "that admits of rational judicial resolution and is a
direct and nonarbitrary implication of accepted
constitutional norms." App. 42a (emphasis in original).
As the court correctly held, appellants failed in this
task, for they "have not identified a workable standard."
App. 41a-42a. Rather, their proposed standard is
11
"essentially and fatally arbitrary." App. 41a (emphasis
in original).
At the threshold, critical aspects of appellants’
proposed test conflict with this Court’s precedents.
Appellants suggest that a political gerrymander may be
established when, based on the court’s consideration of
six factors, partisan advantage was "the predominant
factor in creating the Redistricting Plan." Doc. 65
(Second Amend. Compl., ¶ 167); see also Juris. Stmt. 15.
As explained, however, five Justices in Vieth rejected
both a "totality-of-the-circumstances" analysis and the
"predominant intent" test as "indeterminate" and not
"judicially manageable," respectively. 541 U.S. at 284,
291 (plurality op.); id. at 308 (Kennedy, J., concurring
in the judgment). Indeed, as the district court inquired,
"[W]hat accepted principles of equal-protection
jurisprudence point to the conclusion that these six
factors make out the appropriate standard for
adjudicating partisan gerrymandering claims as a
general matter?" and "What if five of the factors are
met and even exceeded, but the sixth one barely falls
short?" App. 41a-42a (emphasis in original).
Even considered separately, appellants’ six factors
are inconsistent with this Court’s precedent. The first
three (whether the challenged map is less compact or
splits more traditional political boundaries than the
map it replaces, or than an available alternative map,
Juris. Stmt. 15) are at odds with the above-cited cases
holding that partisanship is a constitutionally
permissible consideration in redistricting. Partisan
redistricting predictably affects compactness and
political boundaries, and appellants thus would
transform any consideration of party affiliation into a
constitutional violation.
12
Appellants’ fourth factor (whether the challenged
map violates state redistricting laws to favor the
majority party, ibid.), would improperly
constitutionalize state law. And their fifth factor
(whether minority-party incumbents lose a
"substantially greater" proportion of their core
constituencies than majority-party incumbents, ibid.) is
fatally indeterminate, for appellants do not suggest how
courts should measure which deprivations are
"substantially greater" in this context. Finally,
appellants’ sixth factor (whether minority incumbents
are pitted against each other in more than two-thirds of
the incumbency pairings, ibid.) is impermissibly
arbitrary, as the district court recognized in asking,
"Why the two-thirds requirement for incumbent
pairings, as opposed to three-fifths or three-quarters?"
App. 42a.
In short, the district court correctly held that
appellants’ proposed, six-factor test for evaluating
political gerrymandering claims suffers from precisely
the arbitrariness and other defects that have plagued
the several proposed standards this Court has rejected
in recent years. App. 37a-39a.
B. The District Court Properly Granted
Summary Judgment On The Section 2
Claim.
1. Appellants’ Own Evidence Shows That,
In Three Of Four Elections, The White
Majority Did Not Defeat The Latinos’
Candidate Of Choice.
To prevail on their Section 2 claim, appellants were
required to prove that Latinos are denied an equal
opportunity to participate in the political process and to
13
elect candidates of their choice in RD 23. See 42 U.S.C.
§ 1973(b). At the threshold, appellants had to show that
(1) the Latino population is sufficiently large and
geographically compact to constitute a majority in RD
23; (2) Latinos are politically cohesive; and (3) whites
(or non-Latinos) vote sufficiently as a bloc to usually
defeat the Latinos’ preferred candidate within the
boundaries of RD 23. See Gingles, 478 U.S. at 49-51.
To satisfy the third prong of the Gingles analysis,
appellants submitted the results from four historical
elections that, they claimed, showed that white voters’
preferred candidate usually defeats the Latino-preferred
candidate. But these results showed that the
white-preferred candidate lost to the Latino-preferred
candidate three times out of four. App. 25a. Thus, the
district court granted summary judgment to appellees
based on the unremarkable legal conclusion that
defeating the Latinos’ preferred candidate only one time
out of four is not "usually" defeating this candidate
under Gingles prong three. App. 26a.
Recognizing this obvious weakness in their position,
appellants press a theory that, in the district court’s
view, is "flawed on nearly every front," App. 26a,
"would turn the law on its head," App. 30a, and "finds
no support in Gingles or its progeny," App. 28a.
Specifically, appellants argue that the actual election
resultsmthree Latino-bloc victories out of fourmare
immaterial. Juris. Stmt. 21-22. Instead, appellants
contend, the Court should focus on what the results of
these races might have been had the votes for the
multiple white candidates in each race been combined
against the Latino-preferred candidate. Ibid. Under
this unprecedented, counterfactual approach to the
third Gingles precondition, appellants would count two
14
races won by the Latino-preferred candidate as victories
for the white majority, because the multiple white
candidates in each of those races, in the aggregate,
received more votes than the Latino-backed candidate.
Juris. Stmt. 26.
This theory not only defies common sense, but it
runs counter to Gingles itself, whose third precondition
requires the minority group to "demonstrate[] that
submergence in a white * * * district impedes its ability
to elect its chosen representatives." 478 U.S. at
51. This requires a "practical, results oriented
approach," Jenkins v. Red Clay Consol. Sch. Dist. Bd. of
Educ., 4 F.3d 1103, 1122 (3d Cir. 1993), not speculation
as to what might have resulted under different
circumstances. And the fact that the Latino candidate
of choice prevailed in an election where multiple white
candidates split the white vote does not alter the
practical reality that the Latino-preferred candidate did,
in fact, prevail. See Gingles, 478 U.S. at 56 ("The
amount of white bloc voting that can generally
’minimize or cancel’ [minority] voters’ ability to elect
representatives of their choice * * * will vary from
district to district according to a number of factors,
including * * * the presence or absence of* * * majority
vote requirements."); Red Clay, 4 F.3d at 1122 ("If
minority-preferred candidates are consistently able to
prevail in representative numbers because of the
existence of a plurality rule, then it cannot be said that
white voters vote sufficiently as a bloc usually to
prevent the election of the minority preferred
candidates.").
In the end, if proof that Latino voters have been
impeded in their ability to elect their chosen candidates
can be found in elections where they elected their
15
preferred candidate, then the third Gingles precondition
would be meaningless. Because the Latino-preferred
candidate prevailed in three of the four elections on
which appellants rely, the district court correctly
rejected their claim under Section 2.
2. The "Special Circumstances" Doctrine
Cannot Transform Latino Victories
Into Victories For The White Majority.
Notwithstanding the foregoing, appellants attempt
to count Latino-bloc victories as wins for a supposed
white bloc of voters with a misreading of Gingles’
suggestion thatmwhen considering historical election
results under prong three and tallying wins and losses
for minority-preferred candidates--a court should
account for "special circumstances" present in a
particular election. 478 U.S. at 57. Appellants argue
that the two elections among their chosen four where
multiple white candidates split the white vote, and
where the Latino-backed candidate prevailed, constitute
"special circumstances" under Gingles. Juris. Stmt. 21.
To be sure, this "special circumstances" analysis
may explain away an occasional victory by a
minority-preferred candidate where unique
circumstances (such as incumbency or the minority
candidate running without a white challenger) account
for that victory. See Gingles, 478 U.S. at 57; see also
Rodriguez v. Bexar Cnty., 385 F.3d 853, 864 (5th Cir.
2004). But even if appellants were correct that their
proffered elections involved "special circumstances," it
would do nothing to advance their claim, for the result
of finding "special circumstances" is to discount the
relevance of the minority-bloc victory in that election or,
at best, to ignore that election entirely; it is not to count
16
a minority-bloc win as a white-bloc victory, as appellants
seek to do. See Jenkins v. Manning, 116 F.3d 685, 694
(3d Cir. 1997) (under Gingles prong three, victory for
black-preferred candidate against multiple white
candidates "still should be counted, although it should
be accorded less weight"); Little Rock Sch. Dist. v.
Pulaski Cnty. Special Sch. Dist., No. 1, 56 F.3d 904, 911
(8th Cir. 1995) (in totality-of-circumstances analysis,
considering elections won by minority against multiple
white candidates to be special circumstance, without
deciding whether such races should be discounted or
disregarded); Red Clay, 4 F.3d at 1133 n.31 (declining to
decide whether minority-backed candidate’s victory
against multiple white candidates should be discounted
or disregarded entirely in tally of historical elections
under Gingles prong three); Neal v. Coleburn, 689 F.
Supp. 1426, 1436 (E.D. Va. 1988) (discounting, but not
excluding, election of black-preferred candidate where
multiple white candidates split white vote). None of
these cases, on which appellants rely, hold that a
minority-bloc victory should be re-classified as a victory
for the white majority.
Indeed, the Ninth Circuit affirmatively rejected a
similar argument, explaining that it was:
marked * * * by a fundamental flaw. Even
if the district court had concluded that
special circumstances accounted for the
success of minority-preferred candidates
in 1986 and 1988, and had accordingly
disregarded the results of those elections,
it would have possessed no other evidence
regarding the success or failure of
minority-preferred candidates in city
council races. The grant of summary
17
judgment would still have been
appropriate, because the appellants would
still have failed to present any evidence in
support of the third Gingles requirement.
Valladolid v. City of Nat’l City, 976 F.2d 1293,
1297-1298 (9th Cir. 1992).
Like the plaintiffs in Valladolid, appellants, having
selected the four elections that comprise their historical
review of relevant contests under Gingles prong three,
now attack two of those elections and try to re-write
their outcomes. If they are correct that these races were
accompanied by "special circumstances," then the
appropriate remedy is to discount the Latino-bloc
victories or, possibly, ignore them altogether. But that
would not change the fact that appellants can show only
one victory for a white-preferred candidate~whether it
is one victory out of four elections or one out of two.
Either way, appellants have not shown that the
white-preferred candidate "usually" defeats the
Latino-preferred candidate. And either way, as the
district court observed, App. 30a, a study of historical
elections sufficient to satisfy Gingles" third prong must
include more than a single white-bloc victory, see
Gingles, 478 U.S. at 57 ("Racial polarization should be
seen as an attribute not of a single election, but rather
of a polity viewed over time[,]" "because the evil to be
avoided is the subordination of minority groups in
American politics, not the defeat of individuals in
particular electoral contests.").
18
3. The "Special Circumstances" Doctrine
Does Not Apply In Any Event.
Finally, and in the alternative, the "special
circumstances" doctrine does not apply to these facts in
any event. The district court did not decide whether the
doctrine applied here; rather, it assumed that it did but
rejected appellants’ reliance on it for the reasons set out
above. App. 29a. As an independent basis for affirming
the judgment below, however, appellants cannot claim
that fully half of the historical elections they chose to
present as evidence involved "special circumstances."
The "special circumstances" doctrine has its limits.
If the minority-preferred candidate consistently wins,
then the circumstances cease to be "special" and become
the norm. See Red Clay, 4 F.3d at 1122 ("If
minority-preferred candidates are consistently able to
prevail [because whites split their vote among multiple
candidates] * * * then it cannot be said that white voters
vote sufficiently as a bloc usually to prevent the election
of the minority preferred candidates"). Thus, the
"’special circumstances’ doctrine has little applicability
where," as here, "minorities win frequently." Aldasoro
v. Kennerson, 922 F. Supp. 339, 376 (S.D. Cal. 1995); see
also Rollins v. Fort Bend Indep. Sch. Dist., 89 F.3d
1205, 1212-1214 (5th Cir. 1996) ("Every victory cannot
be explained away as a fortuitous event."). Appellants
chose to rely on just four prior elections as proof that
whites (or non-Latinos) vote sufficiently as a bloc to
usually defeat the Latinos’ preferred candidate in
RD 23. They cannot now claim that victories by
Latino-preferred candidates in half of those elections
were the result of "special circumstances."
19
In sum, the decision below granting summary
judgment to appellees on the Section 2 claim should be
affirmed. The district court correctly declined
appellants’ "invitation to be the first court ever to count
actual Latino victories as putative white victories, and
to conclude, on that basis, that Gingles’s third prong
has been met, despite uncontroverted evidence that
Latino victories in fact outnumbered white victories
three-to-one in RD 23." App. 29a.
C. The District Court Properly Granted
Summary Judgment On The Racial
Gerrymander Claim.
Because of the "sensitive nature of redistricting and
the presumption of good faith that must be accorded
legislative enactments," courts exercise "extraordinary
caution in adjudicating claims that a state has drawn
district lines on the basis of race." Miller, 515 U.S. at
916. Accordingly, to sustain their racial gerrymander
claim, appellants must prove that race was not merely
"a motivation for the drawing" of RD 96, but the
"predominant factor," Easley, 532 U.S. at 241 (emphasis
in original)--that is, that RD 96’s boundaries are
"unexplainable on grounds other than race," Arlington
Heights v. Metropolitan Housing Dev. Corp., 429 U.S.
252, 266 (1997). The district court correctly held that
appellants could not make this showing.
1. The District Court Did Not Hold That A
Minority-Majority District Is A
"Prerequisite" To A Racial
Gerrymander Claim.
As a threshold matter, this appeal does not present
the question whether a Shaw violation may be found in
a district that is not minority-majority. The court below
2O
did not so hold, and appellants’ claim that it did, Juris.
Stmt. i, 28-31, misstates that court’s opinion.
To be sure, the district court had difficulty
reconciling appellants’ claim that RD 96 was
gerrymandered to favor African-Americans with the
undisputed fact that the African-American VAP is
24.87% and the white VAP exceeds 70%. App. 14a-16a.
In this regard, the decision below tracked Lawyer v.
Department of Justice, where this Court rejected a Shaw
challenge to a district where the African-American VAP
was greater (36.2%) than in this case. See 521 U.S. at
581. As the court below observed, App. 15a, Lawyer
explained why such districts are unlikely to pose the
harms Shaw identified: "The fact that [the challenged
district] is not a majority black district * * * supports
the District Court’s finding that the district is not a
’safe’ one for black-preferred candidates, but one that
’offers to any candidate, without regard to race, the
opportunity’ to seek and be elected to office." 521 U.S.
at 581 (quoting Scott v. Dep’t of Justice, 920 F. Supp.
1248, 1256 (M.D. Fla. 1996) (three-judge court), aff’d
sub nom. Lawyer, 521 U.S. 567); see also Cano v. Davis,
211 F. Supp. 2d 1208, 1218 (C.D. Cal. 2002) (three-judge
court) (rejectingShaw challenges to districts containing
less than 50% minority VAP, because concern about
representational harm was not present), aff’d, 537 U.S.
1100 (2003). Similarly, the racial composition of RD 96
would not make an election "safe" for a black-preferred
candidate, nor would it lead an elected representative to
believe that he or she needed to be responsive to only
24.87% of the voters, as the district court held. App.
16a.
But the district court did not adopt a per se rule
limiting Shaw to minority-majority districts. Nor did
21
the court grant summary judgment based solely on the
minimal African-American VAP in RD 96. Rather, the
court relied on "abundant," additional evidence (which
appellants fail even to mention) "that the legislature did
not elevate racial considerations above legitimate
redistricting principles when drawing RD 96." App.
16a. Because appellants did not dispute this evidence,
ibid. (describing appellees’ evidence as
"uncontroverted"), the district court properly granted
summary judgment on the racial gerrymander claim, see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(1986) (non-movant must set forth specific
counter-evidence to create genuine issue of material fact
in response to properly-supported Rule 56 motion).
2. Undisputed Evidence Established That
PartisanshipmRather Than
Race--Played A Key Role In Drawing
RD 96.
It is well-settled that state legislatures may, and
indeed are presumed to, consider the partisan
composition of districts they draw. See supra pp. 8-9.
Moreover, if legislatures draw lines based on partisan
preference that happens to correspond with racial
identity, there is no constitutional violation. SeeEasley,
532 U.S. at 243 ("’[i]f district lines merely correlate
with race because they are drawn on the basis of
political affiliation, which correlates with race, there is
no racial classification to justify’") (quoting Bush v.
Vera, 517 U.S. 952, 968 (1996) (O’Connor, J., principal
op.)).
Below, appellees presented overwhelming evidence
that partisanship, not racial considerations, played a
central role in drawing RD 96. First, Timothy Mapes,
22
the principal architect of the Illinois Map, testified that
he sought to create a Democratic-competitive district in
RD 96. App. 6a-7a. Before approving the district in its
final form, Mapes analyzed its partisan, but not its
racial, demographics. App. 6a-7a, 16a. Mapes’
testimony was "undisputed" by appellants. App. 16a.
Nor did appellants dispute evidence that "RD 96
excludes sizeable African-American populations that
could have been included in the district," App. 18a, or
that the boundaries of RD 96 include virtually all
Democratic-majority precincts in the area, ibid., and
they conceded that the overall effect of the drawing of
RD 96 was to increase Democratic competitiveness in
that district, App. 17a. Appellants do not explain how
RD 96 could be a racial gerrymander under those
circumstances.
Finally, appellees presented evidence based on
actual voter behavior--which, again, appellants did not
dispute--that any overlap in RD 96 between
Democratic-majority precinct lines and
African-American population was explained by "a strong
correlation between race and partisan preference." App.
20a; see also Easley, 532 U.S. at 243 (correlation
between race and partisan affiliation, if based on actual
voting behavior and not merely party registration, was
sufficient to show that partisan concerns, not race,
motivated map drawers). Specifically, the district court
had the benefit of expert testimony (which the Illinois
legislature also heard before enacting the map), a
comparison of partisan maps with racial-demographic
maps, and appellants’ concession "that
African-American voters strongly tend to prefer the
Democratic party." App. 7a; 20a-21a. This made
appellants’ "already substantial burden of proving that
23
’race rather than politics predominantly explains’ RD
96’s boundaries even more difficult to meet." App.
20a-21a (quoting Easley, 532 U.S. at 243) (emphasis in
original).
3. The Map’s Perfect Population Equality,
RD 96’s "Unremarkable" Shape, And
The Legislature’s Statement Of
Reasons Confirm That Racial
Considerations Did Not Predominate.
The district court also relied on evidence that other,
equally legitimate, considerations motivated the
drawing of RD 96’s boundaries. First, every
representative district in the 2011 Illinois Map contains
either 108,734 or 108,735 people. App. 18a. This
perfect compliance with the one-person, one-vote
doctrine is relevant in its own right, for it was clearly a
principle that overrode all others in the drawing of the
map. But just as significantly, as the district court
recognized, it shows that the legislature passed on an
opportunity to buttress the African-American VAP
within RD 96 by refusing to manipulate the total
population of RD 96. App. 17a-18a. As the court
explained, the General Assembly could have deviated
from population equality by as much as ten percent
without sacrificing the presumption of constitutionality,
and could have targeted white population for exclusion
in order to bolster the percentage of African-American
voters in RD 96. Ibid. (citing Connor, 431 U.S. at
417-418). That the legislature did not stray from
population equality thus further belies the notion that
racial concerns were the predominant factor in drawing
RD 96. Ibid. And once again, appellants "d[id] not
dispute" this evidence; in fact, they "offer[ed] no
response at all" to it. App. 18a.
24
Moreover, as the district court found, RD 96 has a
"wholly unremarkable" shape: "[t]he maximum
border-to-border distance in the district is 41.89 miles,"
"it is visibly one of the smallest downstate districts in
terms of geographic size," its "borders follow many
county or township lines, and in areas stretch for miles
in entirely straight lines," and it "is not nearly the
longest, the widest, or the most irregularly shaped of
Illinois’ 118 representative districts." App. 7a-8a,
21a-22a. Thus, the court held that RD 96 bears no
resemblance to other "snakelike" districts that this
Court has found constitutionally infirm. App. 21a
(noting that RD 96 does not "wind[] through
demographically disparate regions, gobbling in enclaves
of the targeted population while avoiding others * * * or
¯ * * contain ’narrow corridors, wings or fingers’ that
’reach out to enclose black voters’") (quotingBush, 517
U.S. at 973). Indeed, even appellants "admit[ted] that
RD 96’s compactness varies only moderately from the
mean for the redistricting plan as a whole, as measured
by the * * * two most commonly employed indicators."
Ibid. The court below thus correctly held that the
unremarkable shape of RD 96 belied any claim that it
was unexplainable on grounds other than race. App.
22a.
Finally, the district court heard evidence that, in
drawing RD 96, the General Assembly sought to join a
number of communities of interest within one district.
App. 8a-12a. The 2011 Illinois Map included two
"Resolutions," explaining the legislative intent in
drawing each district. App. 3a-4a. With regard to
RD 96, specifically, the legislature explained that it had
sought to join (1) the two urban centers of Decatur and
Springfield, which are connected by the "Interstate-72
25
corridor" but are otherwise surrounded by rural
territory and whose citizens have more in common with
each other than with their rural neighbors in terms of
unemployment, crime, educational opportunities and
income; (2) the many residents of Decatur and
Springfield who are government employees (both
Decatur and Springfield are county seats, Springfield is
the seat of state government, and many Decatur citizens
travel to work in Springfield for state government); and
(3) the community of health-care professionals who
work within the Mid-Illinois Medical District, which is
one of only two medical districts in Illinois and consists
of hospitals located in both Springfield and Decatur.
App. 8a, 10a-lla. This clear expression of legislative
intent, issued contemporaneously with the adoption of
the map, is additional confirmation that racial
considerations did not predominate over all other
redistricting factors. See Bush, 517 U.S. at 966
(evidence gathered, and justifications given, prior to
passage of redistricting map was far more probative of
legislative intent than after-the-fact justifications).
In short, because appellees presented "copious
evidence that legitimate, non-racial considerations
played a significant role in the General Assembly’s
adoption of RD 96," App. 23a--and appellants did not
dispute that evidence--the district court’s grant of
summary judgment for appellees on the racial
gerrymander claim should be affirmed.
26
CONCLUSION
The judgment of the three-judge district court
should be affirmed.
Respectfully submitted.
LISA MADIGAN
Attorney General of Illinois
MICHAEL A. SCODRO*
Solicitor General
JANE ELINOR NOTZ
Deputy Solicitor General
100 West Randolph Street
Chicago, Illinois 60601
(312) 814-3698
mscodro@atg.state.il.us
* Counsel of Record
JUNE 2012