Frank, Harold v. Forest County ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 02-2433
HAROLD FRANK and FOREST COUNTY POTAWATOMI
COMMUNITY OF WISCONSIN,
Plaintiffs-Appellants,
v.
FOREST COUNTY, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 01-C-0847—Thomas J. Curran, Judge.
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ARGUED DECEMBER 10, 2002—DECIDED JULY 15, 2003
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Before FLAUM, Chief Judge, and POSNER and WILLIAMS,
Circuit Judges.
POSNER, Circuit Judge. This suit by an Indian tribe (and
a member of the tribe, but we can ignore that detail) claims
that a county board of supervisors redistricted the county
in a manner that violated both the equal protection
clause and the Voting Rights Act, 42 U.S.C. § 1973. The
district court granted summary judgment for the defen-
dants (collectively, the County), 194 F. Supp. 2d 867 (E.D.
Wis. 2002), and the tribe appeals.
2 No. 02-2433
The oddness of the tribe’s claims is made dramatically
clear by the facts of the case. Forest County is a large (1014
square miles) but sparsely populated (barely 10,000 people)
county in the extreme northeastern corner of Wisconsin,
fronting on Lake Superior. The population is unevenly
distributed across the county; 57 percent of the 1620 census
blocks into which the county is divided have no human
inhabitants at all. The county is governed by a board of
supervisors each of whose 21 members is elected from a
single-member district in nonpartisan elections held every
two years. The board redistricted the county after learning
the results of the 2000 census, which revealed a marked
increase in the Indian population since the 1990 census,
from 8 percent to almost 12 percent (45 percent of the
Indians live on reservations). The rest of the county’s
population is white, except for a very small number of
blacks (only 118 on census day) almost all of whom (106)
are residents of the Blackwell Job Corps Civilian Con-
servation Center, which offers a comprehensive educa-
tional and job-training program for “at risk” youth ages
16 through 24. The residents of the center, a majority of
whom are black, are transients; the average length of their
stay is only 188 days. Only 57 percent are Wisconsinites,
and very few either come from Forest County or plan to
remain there when their stint at the center is up.
If the 21 districts that elect supervisors each had 477
residents, the districts would be of equal population. The
district map adopted by the board of supervisors and
challenged by the tribe does not hit this nail on the head.
One district, the largest, has 514 residents, and another, the
smallest, has 428 residents, the others being of essentially
uniform size. The difference between the largest and the
smallest (86) is 18 percent of 477. The County admits,
prematurely as we are about to see, that this deviation
from perfect equality, because it exceeds 10 percent, con-
No. 02-2433 3
stitutes a prima facie denial of equal protection. But it
argues (and the district court agreed) that the deviation is
defensible because to redraw the district lines in a way that
would reduce the deviation to 10 percent would produce
districts that were not compact and that crossed many local-
government boundaries, so that school districts, fire dis-
tricts, and so forth would straddle board of supervisor
districts. The districts created by the board’s plan are
compact; there is no evidence that they are gerrymandered,
whether along political or racial lines. The tribe points
out, however, that the board’s argument for why the 18
percent deviation is tolerable in the circumstances ap-
pears nowhere in the minutes of the meeting at which the
board adopted the new district map over the tribe’s objec-
tion.
The 10 percent norm on which the tribe’s equal protection
claim pivots represents the latest in a series of steps toward
the ever greater automation of the redistricting process.
Because the U.S. population is so mobile, there are large
population shifts across thousands of federal, state, and
local government districts between the decennial censuses.
Redistricting is an intensely political process and there is
no theoretical guidance to how to balance the various
considerations that political science might deem relevant
to conforming districted governments to the principles of
democracy (themselves contested). So the judicial tendency
has been to insist on a very close approach to mathematical
equality, and one of the devices used is the 10 percent
norm. “Our decisions have established, as a general matter,”
the Supreme Court has said, “that an apportionment
plan with a maximum population deviation under 10%
falls within this category of minor deviations. A plan with
larger disparities in population, however, creates a prima
facie case of discrimination and therefore must be justified
by the State.” Brown v. Thompson, 462 U.S. 835, 842-43 (1983)
4 No. 02-2433
(citations omitted); see also Regensburger v. City of Bowling
Green, 278 F.3d 588, 595 (6th Cir. 2002).
Rules are attractive devices for economizing on litigation
costs and minimizing judicial discretion; and safe harbors
are particularly welcome to the bar. But a rule applied to
circumstances remote from those contemplated when it was
adopted can produce perverse results. The 10 percent rule,
viewed not as a safe harbor (which it is in part, and unex-
ceptionably) but as a rule of prima facie liability (which
it also is—both aspects are clear from the passage we
quoted from Brown v. Thompson) was devised for elections
in large electoral units. See, e.g., Voinovich v. Quilter, 507
U.S. 146, 149, 161-62 (1993); Brown v. Thompson, supra, 462
U.S. at 838-39; Connor v. Finch, 431 U.S. 407, 416-17 (1977);
Daly v. Hunt, 93 F.3d 1212, 1215, 1221 (4th Cir. 1996); Garza
v. County of Los Angeles, 918 F.2d 763, 773 n. 4 (9th Cir. 1990).
Even the city council districts in the modest-sized city of
Bowling Green, Ohio, were almost 15 times more populous
than the districts in our case. Regensburger v. City of Bowl-
ing Green, supra, 278 F.3d at 592 n. 1. The smaller and more
scattered the population of the area to be redistricted and
the more numerous the districts, making it harder to
create districts of equal population without creating weird
shapes that straddle the boundaries of the smaller gov-
ernment units, as recognized early on by the Supreme
Court in Abate v. Mundt, 403 U.S. 182, 185 (1971), the more
arbitrary the rule of 10 percent prima facie liability becomes,
until finally it becomes absurd. It is true that in Chapman
v. Meier, 420 U.S. 1, 24 (1975), the Court said that “sparse
population is not a legitimate basis for a departure from
the goal of equality.” But the districts in question were
roughly 25 times as populous as the districts in our case
and anyway it would be improper to give sparsely popu-
lated areas greater representation than densely populated
ones. See id. at 25 n. 16. At all events, even if intended to
No. 02-2433 5
apply to the tiniest electoral districts, the 10 percent rule
is merely one of prima facie liability, and is therefore
rebuttable, Voinovich v. Quilter, supra, 507 U.S. at 161-62—
and more easily so the smaller the population of the area
to be redistricted, the more unevenly the population is
distributed across the area, and the more numerous the
districts. Let us elaborate on these points, beginning with
population size.
No one supposes that the census is totally accurate,
see Wisconsin v. City of New York, 517 U.S. 1, 6-7 (1996); and
to bring the 18 percent deviation of which the tribe com-
plains down to 10.9 percent would require subtracting
only 16 people from the census count in the largest dis-
trict and adding only 20 to the count in the smallest, which
are changes that may well be within the census-takers’
margin of error. Over a larger population, mistakes of
overcounting and mistakes of undercounting will tend to
cancel out. For example, the 1990 census is believed to have
overcounted the national population by about 1.6 percent,
but the small (relative) size of the error was the conse-
quence of the fact that the 15-million gross overcount and
10-million gross undercount largely canceled each other
out. See U.S. Census Monitoring Board, “Final Report
to Congress” 16-17 and n. 11 (Sept 1, 2001), available at
http://govinfo.library.unt.edu/cmb/cmbp/reports/final
_report/FinalReport.pdf. But this cannot be assumed in
the case of a minute local population. Moreover, more
than three years have elapsed since the 2000 census was
conducted, and during that time the movement of a few
families across district lines in Forest County may have
decisively altered the deviation on which the tribe relies
to show a denial of equal protection. The significance of
population shifts as a function of the time from the census-
taking to the court challenge was recognized in Abrams
v. Johnson, 521 U.S. 74, 100-01 (1997); here we add that
6 No. 02-2433
the significance is also greater the smaller the popula-
tion—and also the smaller the redistricted area is geographi-
cally, since people are more likely to move short than
long distances.
Number of districts is important too, as we recognized
in Sutton v. Dunne, 681 F.2d 484, 487 (7th Cir. 1982). The
more districts there are, the less meaningful a compari-
son between just two of the districts is. If there are four
districts in the electoral unit, and the largest and the small-
est have very different populations, the unit itself is seri-
ously malapportioned. If there are a hundred, the malap-
portionment created by two outliers is apt to be at once
trivial and unavoidable. Twenty-one, the number of dis-
tricts in our case, is a large number from this perspective.
All this said, the board didn’t provide much in the way
of an explanation for the particular districting choices it
made out of the almost infinite array theoretically available.
(There are an unbelievably vast number of district configu-
rations that would result in districts in Forest County of
equal population.) But as with most other cases in which
governmental action is challenged as a violation of the
federal Constitution, it should be enough that good rea-
sons can be given for the action, whether or not they were
articulated in advance of the action. E.g., FCC v. Beach
Communications, Inc., 508 U.S. 307, 315 (1993); McDonald
v. Board of Election Commissioners, 394 U.S. 802, 809 (1969);
Estate of Kunze v. Commissioner, 233 F.3d 948, 954 (7th
Cir. 2000). This precept is especially appropriate when one
is dealing with so tiny a polity as Forest County, Wisconsin.
We intend no disrespect in saying that the exceedingly
modest functions that the State of Wisconsin has assigned
to the board of supervisors of this remote rural county
preclude any reasonable expectation of a deliberative pro-
cess that we might expect of the Congress of the United
No. 02-2433 7
States on one of its better days. Indeed we are mystified
as to how this suit, with its impressive array of expert
witnesses, was financed by either side; we are reluctant
to impose upon the board a requirement of process that
will burden the county government with expenses dis-
proportionate to either its resources or its responsibilities.
The supervisors are elected in nonpartisan elections, and
their principal responsibility appears to be limited to
keeping the county roads in good shape.
The tribe’s voting-rights claim, to which we now move,
is in great tension with its equal protection claim. The
Voting Rights Act, so far as bears on this case, entitles a
minority to seek district configurations that will suffi-
ciently concentrate the minority population to enable it
to elect some officials of its choice. 42 U.S.C. § 1973(b);
Thornburg v. Gingles, 478 U.S. 30, 47 (1986); Barnett v. City
of Chicago, 141 F.3d 699, 702 (7th Cir. 1998); Milwaukee
Branch of the N.A.A.C.P. v. Thompson, 116 F.3d 1194, 1196
(7th Cir. 1997). The County’s map creates one district in
which Indians have 78 percent of the total population
and 75 percent of the voting-age population, and another
in which Indians have 53 percent of the total population
but only 49 percent of the voting-age population. The
final plan presented by the tribe in the district court would
leave these districts intact but would alter the boundaries
of another district to bring the Job Corps center that we
mentioned earlier into the same district with a number of
Indians, creating a district that would have a total popula-
tion that was 49 percent Indian and 20 percent black and
a voting-page population that was 39 percent Indian and
24 percent black.
What is remarkable about this plan is that it does not
alter the largest and smallest districts in the County’s plan
and thus does not remedy the alleged denial of equal
8 No. 02-2433
protection. As an afterthought on appeal the tribe argues
that the deviation in population between those districts
can be rectified consistently with creating the Indian-
black district that is obviously the particular object of the
lawsuit. But there is no map to indicate district boundaries
and so we cannot evaluate the new plan. Barnett v. City
of Chicago, supra, 141 F.3d at 702.
As it happens, both of the “deviant” districts are pre-
dominantly white; the larger is only 1.5 percent Indian and
the smaller only 2.5 percent Indian, and the larger has a
single black resident and the smaller none. The voters
harmed by the deviation are the voters in the large(st)
district, each of whom has less voting power than the voters
in the other districts (and particularly the voters in the
smallest district), but almost all of them are white—and
there are no white plaintiffs. What is more, although the
voting power of Indian residents is diluted in the large
district, the dilution is more than offset in the small one
because it has a larger Indian population, although the
numbers are minute (8 Indians in the large district, 11 in
the small). There thus does not seem to be any Indian in-
terest in eliminating the alleged violation of equal protec-
tion, which is probably why the tribe did not bother to
submit a plan to the district court that would eliminate
the violation without compromising the tribe’s goal of ob-
taining a combined Indian and black district.
In arguing for moving boundary lines to create a district
that will give Indians and blacks together a majority of
the population, the tribe points to studies of the voting
patterns of blacks and Indians that indicate that the two
groups have similar electoral preferences, so that by being
concentrated in the same district each can hope for better
representation of its interests than if Indians and blacks
were scattered across districts dominated by whites. There
No. 02-2433 9
are cases that support the argument, Campos v. Bay Town,
840 F.2d 1240, 1244, 1244 (5th Cir. 1988); League of United
Latin American Citizens, Council No. 4434 v. Clements, 986
F.2d 728, 785-86 (5th Cir. 1993); Bridgeport Coalition for Fair
Representation v. City of Bridgeport, 26 F.3d 271, 275 (2d Cir.),
rev’d on other grounds, 512 U.S. 1283 (1994); Badillo v.
City of Stockton, 956 F.2d 884, 891 (9th Cir. 1992); Concerned
Citizens of Hardee County v. Hardee County Board of Com-
missioners, 906 F.2d 524, 526 (11th Cir. 1990); contra, Nixon
v. Kent County, 76 F.3d 1381, 1393 (6th Cir. 1996) (en banc),
but the Supreme Court has reserved the issue, Growe
v. Emison, 507 U.S. 25, 41 (1993), and its problematic char-
acter is vividly shown by the present case. The studies
of black and Indian voting on which the tribe relies are
limited to voting in Presidential elections—a far cry from
voting in county board elections—and particularly inap-
plicable to the only black population to which the tribe’s
plan pertains, namely the black residents of the Job Corps
center. So far as the record shows, the only thing they have
in common with the Potawatomi Indians who live in
the proposed district is that they are not Caucasian. The
Indians are among the most rooted inhabitants of Forest
County, having lived there since the 1880s. The black
residents of the Job Corps Center are the least rooted and
most transient. So far as appears, they do not mix with
the surrounding population. And while the Indians and
these blacks may conceivably have similar preferences in
state or federal elections, the suggestion that they have
similar preferences, different from those of whites, con-
cerning road maintenance in Forest County strikes us
as ludicrous. County roads are not a racial issue.
It is no surprise that the residents of the Job Corps cen-
ter apparently do not vote at all in local elections. On
election day, assuming continuous turnover, the average
remaining stay of such a resident is only 94 days (188/2).
10 No. 02-2433
Even if a resident had strong views on county roads, the
election of a supervisor sharing those views could not
be expected to have any actual effect on road building or
road maintenance until long after the resident had de-
parted. A supervisor’s term does not begin on election
day, and contracts for road building and maintenance
are not let and performed instantaneously.
The tribe admits that it has no evidence that the Job
Corps residents have any interests in county government
that are in common with those of the Indians, but argues
that since no evidence is available on the question the
studies of state and national elections should carry the
day for it. But when the party with the burden of proof
cannot obtain evidence to sustain the burden, he loses.
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—7-15-03