Rybicki v. STATE BD. OF ELECTIONS OF STATE OF ILL. ( 1982 )

GRADY, District Judge

(concurring in part and dissenting in part).

I join in the decision of the court which finds against the Republican and suburban (Rybicki) plaintiffs. I concur in part and dissent in part as to the finding of liability to the black (Crosby) plaintiffs and dissent from the remedy. I also dissent from the approval of the Hispanic (DelValle) settlement.

The Crosby Plaintiffs

I agree with the majority that the Democrat members of the Commission intentionally diluted black voting strength in drawing the boundaries for Senate Districts 14, 17 and 18. While the lines were drawn in this manner to protect the incumbencies of white Senators Joyce and Dawson, this protection was accomplished by racial gerrymandering. The thinking of the Democrat Commission members obviously was that Senators Joyce and Dawson would have better chances for reelection if they ran in districts in which whites rather than blacks were the majority; the lines were drawn according to this racial hypothesis, giving Dawson and Joyce each a gerrymandered white district and packing the black population into the grotesquely configured District 17. A clearer example of an intentional dilution of racial voting strength would not be easy to find.

I am not persuaded that the same intentional racial dilution has taken place on the west side in regard to Senate Districts 8, 9 and 10. The boundaries of Senate District 8, for instance, have been shown to be the result of a request by the Village of Oak Park that it be located entirely within one district, without fracturing. The boundaries of District 8 do indeed follow the municipal boundary of Oak Park.

Because of the differences I have with the majority concerning another aspect of the liability question and the whole matter of remedy, it is not necessary to extend this opinion by further discussion of the west side districts. Whether or not intentional dilution has been shown there, the west side districts drawn by the Commission would have to be set aside in my view simply because I believe virtually the entire map as it affects concentrations of black residents in Chicago has to be redrawn.

I agree with the majority that, except in the case of Senate Districts 14, 17, and 18, discussed supra, plaintiffs have failed to show the boundary lines were drawn for the purpose of diluting the black vote. Plaintiffs claim that the “wall” on the South Side was drawn with the intention of compacting the black population into the least possible number of districts in which their votes would elect candidates of their choice. The Commission map, according to plaintiffs, affords only five such districts. Plaintiffs argue that this “dilution” of the black vote was done for the purpose of denying black people a voice in the legislature and in the councils of the Democratic Party. The major premise of the argument is that if blacks had two more senatorial districts, the interests of black people— which plaintiffs say are in conflict with the interests of the Democratic leadership— would be given priority by the candidates elected. Plaintiffs’ own evidence, if true, indicates that this is at best a doubtful proposition. Electoral districts which are almost solidly black have traditionally sent qrganization Democrats to the legislature. Plaintiffs Newhouse and Braun, a black Democratic senator and a black Democratic representative respectively, both testified that most of their black colleagues in the legislature are under the thumb of the Democratic leadership and do not adequately represent their black constituents. These black legislators are said to be loyal, hand-picked candidates the Democratic organization is able to slate and elect in the solid black districts. If this is true, it is difficult to see what the Democratic organization would have to lose from the creation of two more black senatorial districts.

Plaintiffs have another objection to the “wall,” however, and unlike the majority, I believe it is a valid one. Plaintiffs complain that the black residents of the walled-in districts are stigmatized by being separated from the white population on the basis of race.¹

By the defendants’ own admissions, the boundaries of various districts in the City of Chicago have been drawn along white and black racial lines.² White and black populations have been separated in an effort to avoid racial tensions and to facilitate the conduct of political campaigns. Various witnesses testified, for instance, that if the neighborhoods of Bridgeport and Canaryville were combined in electoral districts with the black neighborhoods to the east of them, creating predominantly black districts, it would be difficult for the black candidates to carry on their campaigns in the white neighborhoods. Several black incumbents testified they would not attempt to campaign in such solid white neighborhoods as Bridgeport and Canary-ville. These were the main reasons given for drawing the lines of the South Side electoral districts almost precisely along the boundaries of the areas shown on demographic maps as containing the highest concentrations of black population. The metaphoric reference to a “wall” is entirely apt.³

The reasons assigned by the Commission for the drawing of these racial lines do not pass constitutional muster. With narrow exceptions, the Constitution does not permit state action based upon race. This case is not within one of the narrow exceptions. I believe the lines drawn by the Commission which purposefully separate white from black voters on the south side of Chicago are constitutionally impermissible and must be voided. I reach this conclusion without regard to whether the lines have the effect of “diluting” the black vote.

The majority concludes that, since the evidence fails to show the wall is intentionally designed to dilute the black vote, it is constitutionally permissible.⁴ As I read the majority opinion, my colleagues find no fault with the idea of racial separation per se and, indeed, express the view that it can be a good thing under the circumstances of this case. The majority sees an antagonism between the desire of blacks for racial integration on the one hand and for bloc voting strength on the other. The majority reasons that if the blacks are put into voting districts with whites they will lose their opportunity to elect candidates of their choice; therefore, it is in the interest of black voters that they be segregated into districts of their own. In this connection, the majority cites the testimony of the various black legislators that they would not fare well in districts that were not predominantly black.

This argument of the majority misses one of plaintiffs’ main points: in order for a black candidate to win, it is not necessary that the district be 95 per cent black. There can be a significant white population and a black can still win. The evidence shows that there are two black legislators in Illinois — one of them from Chicago— who are regularly reelected from majority white districts.⁵ A district which is 65 per cent black will, as all parties agree, afford black voters a better than even chance of electing a candidate of their choice. Thus, the majority rationale for the wall — that it is necessary or at least desirable from the standpoint of enhancing the political strength of blacks as a bloc — does not comport with the evidence and does not withstand analysis.

I would have trouble with the majority theory even if I did believe that the electoral fortunes of blacks depend upon their having House districts in which they comprise majorities of 94.83, 98.43, 98.44, 97.01 and 89.62 per cent (the percentages in House Districts 23, 24, 31, 33 and 25). This is because I believe state-enforced racial separation cannot be tolerated under any circumstances, regardless of motive, even if the motive is apparently benign. The matter was well stated by Justice Douglas in his dissenting opinion in Wright v. Rockefeller, 376 U.S. 52, 59-67, 84 S.Ct. 603, 606-11, 11 L.Ed.2d 512 (1963), a case in which certain intervenors sought to justify the creation of a racially segregated congressional district in the City of New York. One of the intervenors was Adam Clayton Powell, the black incumbent Congressman. Justice Douglas described the argument of the intervenors in this way:

The intervenors are persons who apparently have a vested interest in control of the segregated Eighteenth District. They and the State seem to support this segregation not on the “separate but equal” theory of Plessy v. Ferguson, [163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256] supra, but on another theory. Their theory might be called the theory of “separate but better off” — a theory that has been used before. A like argument was made in Buchanan v. Warley, 245 U.S. 60, 81, [38 S.Ct. 16, 20, 62 L.Ed. 149] in support of municipal segregation of residential areas; in District of Columbia v. Thompson, 346 U.S. 100, [73 S.Ct. 1007, 97 L.Ed. 1480] in support of segregation in restaurants; in Watson v. Memphis, 373 U.S. 526, [83 S.Ct. 1314,10 L.Ed.2d 529] in support of delayed integration of municipal parks. Indeed, the final argument of John W. Davis for South Carolina in Brown v. Board of Education, supra, ended with the words, “The good is sometimes better than the best.”

The fact that Negro political leaders find advantage in this nearly solid Negro and Puerto Rican district is irrelevant to our problem. Rotten boroughs were long a curse of democratic processes. Racial boroughs are also at war with democratic standards.

376 U.S. at 62, 84 S.Ct. at 608. Unlike the majority in the instant case, the majority in Wright v. Rockefeller did not adopt the “separate but better off” theory. The basis of the majority opinion in Wright, which upheld the challenged apportionment, was that the lower court finding that the boundaries had not deliberately been drawn along racial lines was not clearly erroneous.

Commenting on the general question of racial bloc voting and governmental action designed to facilitate that practice, Justice Douglas concluded:

Racial electoral registers, like religious ones, have no place in a society that honors the Lincoln tradition — “of the people, by the people, for the people.” Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on. Cf. Gray v. Sanders, 372 U.S. 368, 379 [83 S.Ct. 801, 808, 9 L.Ed.2d 821]. The racial electoral register system weights votes along one racial line more heavily than it does other votes. That system, by whatever name it is called, is a divisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. Of course race, like religion, plays an important role in the choices which individual voters make from among various candidates. But government has no business designing electoral districts along racial or religious lines. We held in Akins v. Texas, 325 U.S. 398, 403, [65 S.Ct. 1276, 1279, 89 L.Ed. 1692] and in Brown v. Allen, 344 U.S. 443, 471, [73 S.Ct. 397, 414, 97 L.Ed. 469] that courts in selecting juries need not — indeed should not — give each jury list the proportional racial complexion that the community has. If race is not a proper criterion for drawing a jury list, how can it be in designing an electoral district?

In Anderson v. Martin, 375 U.S. 399, [84 S.Ct. 454, 11 L.Ed.2d 430] we barred Louisiana from putting on a ballot opposite a Negro candidate’s name the word, “Negro,” as it was a device encouraging racial discrimination. When we said in that case that a State may not encourage its citizens “to vote for a candidate solely on account of race,” id., at 404, [84 S.Ct. at 456] I had assumed that we would hold a fortiori that no State could make an electoral district out of any racial bloc unless the electoral unit represented an actual neighborhood. Yet we violate that principle here.

When racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated; communities seek not the best representative but the best racial or religious partisan. Since that system is at war with the democratic ideal, it should find no footing here.

“Separate but equal” and “separate but better off” have no more place in voting districts than they have in schools, parks, railroad terminals, or any other facility serving the public.

376 U.S. at 66-67, 84 S.Ct. at 610-11.

Although Justice Douglas’ views were expressed in a dissenting opinion (concurred in by Justice Goldberg), there is no reason to believe that those views would not have been agreeable to the majority had they found the district lines to have been racially motivated, as is the case here, and then reached the “separate but better off” argument of the intervenors. It seems to me that the above-quoted language of Justice Douglas, considered in light of the authorities he cites, would represent the position of the Supreme Court today.

If the case for racial segregation to enhance minority voting strength is weak, the case for what I regard as the more prominent motivation for the wall is even weaker. I am not persuaded that the Democrat Commission members were motivated by a desire to enhance black voting power. I found equally unconvincing the rote responses given by the regular Democrat organization black legislators to leading question about whether they feared difficulties in the primary if they were to run in districts with less than 90 or 95 per cent black population. In short, my view of the evidence is that a desire to accommodate black voters had little if anything to do with the creation of the wall. The real reason for the wall — and it was not concealed, it was just denied the top billing it deserved — was the desire of the Democrat Commission members to ensure that the white populations west of the wall would continue to be represented by white legislators. This concern was based upon the candidly expressed belief that the antagonisms between whites and blacks make it impracticable for any legislator, white or black, to represent their interests simultaneously. As I understand the opinion of my colleagues, they regard this apprehension as a proper basis for drawing district lines. I do not, for the reasons expressed by Justice Douglas in Wright v. Rockefeller, supra. If it is constitutionally permissible to draw segregated voting district boundaries on the theory that the races are antagonistic, I fail to see why it would not be equally valid to draw segregated school attendance boundaries on the same theory. Yet, no one needs to be told that the latter proposition is clearly untenable.

My colleagues also find the “wall” constitutionally permissible since it does not stigmatize blacks. I believe the wall stigmatizes blacks and restricts their freedom of political association. It is no answer to say, as the majority does, that “... the record in this case is barren of any indication that black voters on the South Side are, or feel themselves to be, stigmatized by the challenge to the electoral boundaries, or that such voters would prefer to be associated, for voting purposes, with predominantly white neighborhoods such as Bridgeport and Canaryville.” (p. 1116). First of all, as the majority points out, one of the plaintiffs, Carol Mosely-Braun, did testify that she regarded the segregation as a stigma. Secondly, the attorneys for the Crosby plaintiffs vehemently argued that blacks were harmed by the segregation. Most importantly, it is too late in the day to require evidence in support of the proposition that racial segregation is stigmatizing. To say that it is not, or to require proof each time that it is, is to ignore the last quarter century of precedents starting with Brown v. Board of Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955). In the decade following Brown, the Supreme Court ordered in a series of per curiam decisions an immediate end to segregation in all public places. Muir v. Louisville Park Theatrical Association, 347 U.S. 971, 74 S.Ct. 783, 98 L.Ed. 1112 (1954), vacating 202 F.2d 275 (6th Cir.1953) (parks); Holmes v. City of Atlanta, 350 U.S. 879, 76 S.Ct. 141,100 L.Ed. 776 (1955), rev’g 223 F.2d 93 (5th Cir.1955) (golf courses); Mayor of Baltimore v. Dawson, 350 U.S. 877, 76 S.Ct. 133, 100 L.Ed. 774 (1958) , aff'g 220 F.2d 386 (4th Cir.1955) (public beaches); New Orleans Park Improvement Association v. Detiege, 358 U.S. 54, 79 S.Ct. 99, 3 L.Ed.2d 46 (1958), affg 252 F.2d 122 (5th Cir.1958) (parks); State Athletic Commission v. Dorsey, 359 U.S. 533, 79 S.Ct. 1137, 3 L.Ed.2d 1028 (1959) , affg 168 F.Supp. 149 (E.D.La.1958) (athletic events); Turner v. City of Memphis, 369 U.S. 350, 82 S.Ct. 805, 7 L.Ed.2d 762 (1962), vacating 199 F.Supp. 585 (W.D.Tenn.1961) (restaurants); Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963) (courtroom seating); Schiro v. Bynum, 375 U.S. 395, 84 S.Ct. 452, 11 L.Ed.2d 412 (1964), affg 219 F.Supp. 204 (E.D.La.1963) (auditoriums). In not one of these cases did the Supreme Court or those lower courts that were affirmed find it necessary to explore the question whether blacks were stigmatized by the segregation. As Judge Wisdom stated in Dorsey, segregation based on race is “inherently discriminatory and a violation of the Equal Protection Clause of the Fourteenth Amendment.” 168 F.Supp. at 151. Beyond statements such as these, the courts struck down all forms of segregation on the basis of nothing more than a citation to Brown or cases relying on Brown. Thus, in segregation cases, stigma may be presumed.⁶ In the instant case, the defendants adduced no evidence to rebut the presumption.⁷

Again, it should be noted that the black majorities in the walled-in districts far exceed any percentage necessary to guarantee the election of a black candidate. The majority does not even attempt to suggest how the blacks in, say, Senate District 16 will benefit from being 98.69 per cent of the electorate in that district or how the 96.38 per cent majority in District 12 will be better off than if they were only a 70 per cent majority in that district. The majority says that “... the desirability of perfectly integrated voting districts must be balanced against the ability of blacks and other minority groups to elect candidates of their choice to the relevant political bodies.” Ante at p. 1116. I doubt that anyone argues for “perfectly integrated voting districts.” Given the segregated housing patterns in Chicago, there must in the best of plans be some districts in which blacks are a higher percentage than they are in the city at large. “Perfect integration” is not the goal. The goal in this case should be the avoidance of deliberate, governmentally mandated segregation. Even if one were to accept the proposition that such segregation is permissible to augment black voting strength, segregation in excess of that required to elect a black candidate would have to be justified on some other ground. The majority has suggested no other justification for the solid black districts.

The courts have long recognized that the freedom to associate with others to effect political change, be it through joining a group that advocates a particular doctrine or campaigning to elect a representative, is among the highest values protected by the First Amendment. Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (J. Brandeis, dissenting); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976). The harm occasioned by the virtually total segregation of the races by voting districts, and the consequent limitation it places on the ability of blacks and whites to join together in the campaign process, cuts to the heart of our principle of self-government.

The Remedy

I disagree with several aspects of the remedy the majority accords the Crosby plaintiffs. First, the majority remedy adopts the wall which was part of the Commission plan. To my knowledge, this is the first time a federal court has ordered a state to segregate the races. There is some attenuation by reason of the fact that the wall was first devised by the Commission, but the fact remains that these segregated districts are part of an overall plan which the majority is ordering the state to put into effect. The departures the majority has ordered from the original Commission plan are necessarily based upon the remainder of the map being configured the way it is. The districts are pieces of a jigsaw puzzle and each piece must fit.

The plan ordered by my colleagues does give the blacks six senatorial districts in which they are likely to elect a candidate, rather than the five they would have under the Commission plan. The court plan also gives the blacks 13 rather than the 12 House districts provided by the Commission plan. The manner in which this result has been obtained is the basis for my second objection to the majority remedy. The district boundaries have been drawn along racial lines for the purpose of yielding black majorities of 65 per cent or more in selected districts. Just as the line forming the boundaries of the “wall” districts has been precisely drawn along the western edge of the heaviest black concentration, so also the boundaries of the court-ordered districts outside the walled area have been precisely drawn along the irregular and sometimes tortuous contours of heavy black concentrations as shown on demographic maps.

The rationale for this method has not been explicitly stated by my colleagues, but it is apparent from what has been done. The majority has obviously adopted the proposition that racial minorities are entitled to proportional representation. Secondly, they have accepted the argument of the plaintiffs that blacks and Hispanics are entitled to be placed in districts in which they will form at least 65 per cent of the population. I disagree with both of these propositions.

It is important to know how the court arrived at its remedy, for the process reveals the principles of reapportionment my colleagues have embraced. The majority did not have to structure its own plan from the ground up. Instead, the majority was able to produce a court plan by splicing several already available maps onto the Commission plan. These additional maps were drawn by the parties in the course of settlement negotiations. The parties discussed settlement throughout the trial of the case, with the encouragement of the court. Everyone realized the case presented difficult problems and that a settlement would probably be preferable to a solution imposed by the court. To make these settlement discussions as concrete as possible, thé court requested counsel for the Comfnission defendants to prepare various alternative district configurations that would represent a compromise between the Commission plan and the demands of the three groups of plaintiffs.⁸ It was stipulated that counsel’s efforts in this regard would not be taken as any concession or admission. Thereafter, counsel for the Commission spent long hours preparing various alternative maps which were then received as “court exhibits” for purposes of discussion. The principal exhibit was marked Court Exhibit 1A.

One of the criteria counsel used in preparing the court exhibits was the 65 per cent formula urged by plaintiffs, since it was clear that any district which did not have at least a 65 per cent black or Hispanic population would not be regarded by either the Crosby or DelValle plaintiffs as a district in which blacks or Hispanics would have, using plaintiffs’ terminology, “a meaningful opportunity to elect representatives of their choice.” Witnesses for both sides acknowledged that “an informal guideline” of 65 per cent has been used in reapportionments to obtain effective minority representation. The figure is arrived at by starting with 50 per cent and adding to it a 5 per cent allowance for the fact that minority populations are generally younger than white populations (and therefore have fewer members of voting age), a 5 per cent allowance on the basis that fewer minority members than whites register to vote, and another 5 per cent on the basis that the turnout of registered minority voters at the polls is less than the turnout of registered white voters. No witness testified to the accuracy of these estimates even in general, let alone as they might apply to Chicago. The 5 per cent allowance for each of the three factors appears to be arbitrary, and whether it has any relation to fact is, on the basis of this record, anyone’s guess. At no time did the defendants agree that the “65 per cent formula” was factually legitimate or that its use could legally be required by this court.

The DelValle plaintiffs were not satisfied with the court exhibits insofar as they pertained to the Hispanic communities. Therefore, the DelValle plaintiffs prepared their own “settlement” map and this became known as DelValle Exhibit 208.

The Crosby plaintiffs and the defendants, despite considerable effort, were unable to settle. While the court was not privy to their discussions, in subsequent briefs the plaintiffs indicated that the major stumbling block was that Court Exhibit 1A retained the “wall” intact.

After the trial was concluded, my colleagues desired to examine a map which would incorporate DelValle Exhibit 208 into Court’s Exhibit 1A. Accordingly, counsel for the Commission was directed to prepare such a map, which he promptly did and furnished to the court. Shortly thereafter, we were informed by counsel for the Commission and the DelValle plaintiffs that those parties had settled the case between themselves by agreeing to the combination of DelValle Exhibit 208 and Court Exhibit 1A.

It should be emphasized that the Commission defendants have at no time agreed that Court’s Exhibit 1A is an appropriate map insofar as the Crosby plaintiffs are concerned. They have not acceded to the proposition that racial minorities are entitled to proportional representation nor have they conceded the propriety of the 65 per cent formula. During final argument, counsel for the Commission reiterated his position that the court’s exhibits were not offered by the Commission and that the Commission was standing by its original plan.

What the majority has now done is to adopt as the court’s remedy Court Exhibit 1A combined with DelValle Exhibit 208. Because it has ready-made maps it can adopt by simple reference, the majority believes it need not explain how these particular lines came to be drawn and what their legal basis is. The entire exposition is contained in footnote 107 of the majority opinion, which refers to the court exhibits and describes the percentages of minority population which will be contained in each of the revised districts. The absence of a detailed explanation of the plan seems to be addressed by this statement in footnote 107 of the majority opinion:

We think it would be foolish to “draw our own map” or have a third party draw a map for us when we are able, by instructing the Commission, to eliminate the unconstitutional (and therefore unacceptable) features of the Commission plan.

In evaluating the court’s remedy, it is important to distinguish this case from one arising under the Voting Rights Act of 1965, or a case in which, due to previous intentional discrimination, affirmative action in favor of racial or ethnic groups may be permitted or even required. United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977). Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971) (school desegregation). The State of Illinois is not subject to Sections 4 and 5 of the Voting Rights Act, 42 U.S.C. § 1973, so there is no question of the need for affirmative action to comply with that Act. It is arguable that where the Voting Rights Act does not apply a state may not voluntarily reapportion its electoral districts so as to strengthen the voting power of a racial minority at the expense of the white majority. See the concurring opinion of Justice Brennan in United Jewish Organizations, supra, 430 U.S. 144 at 168-179, 97 S.Ct. 996 at 1011-17, 51 L.Ed.2d 229.⁹ However, we are not dealing here with what the State of Illinois might voluntarily have done. We have rejected the reapportionment map the state, through its constitutionally authorized Commission, had decided upon. The question before us now is what the state can be required to do as an alternative to the rejected plan. The majority opinion requires the state to reapportion its electoral districts so as to afford proportional representation to racial and ethnic minorities. The exhibits which the majority superimposes upon the Commission map to create the court-imposed plan are expressly drawn along the lines of census tracts which have known numbers of whites, blacks and Hispanics. The lines have been drawn in a way that will give the blacks and Hispanics greater bloc voting strength than they would have under the Commission map, and this is the sole difference between the Commission plan and the court plan. The court plan does not give the blacks the maximum possible bloc voting strength they desire — and for that reason will still be regarded as “discriminatory” by the Crosby plaintiffs — but it is nonetheless an adoption of the proposition that racial and ethnic groups are entitled to have the boundaries of electoral districts drawn in a way that will enhance their bloc voting strength.

In a number of cases, the Supreme Court has made it clear that the district court’s remedy in a reapportionment case may be an abuse of its equitable discretion if it is not founded on solid constitutional grounds. It is, of course, true that “[o]nce a right and a violation have been shown, the scope of a district court’s equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies.” Swann v. Board of Education, 402 U.S. 1, 15, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). However, as the Court cautioned in Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 1878, 29 L.Ed.2d 363 (1971), “The remedial powers of an equity court must be adequate to the task, but they are not unlimited. Here the District Court erred in so broadly brushing aside state apportionment policy without solid constitutional or equitable grounds for doing so.”

The Court has also made it clear that a court-ordered reapportionment plan will be held to stricter standards of constitutionality than those governing plans adopted by a legislature. Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977); Chapman v. Meier, 420 U.S. 1, 18-19, 95 S.Ct. 751, 761-62, 42 L.Ed.2d 766 (1975); East Carroll Parish School Board v. Marshall, 424 U.S. 636, 639, 96 S.Ct. 1083, 1085, 47 L.Ed.2d 296 (1976). The rationale is set forth in Connor:

These high standards reflect the unusual position of federal courts as draftsmen of reapportionment plans. We have repeatedly emphasized that “legislative reapportionment is primarily a matter for legislative consideration and determination, Reynolds v. Sims, 377 U.S. at 586 [84 S.Ct. at 1394] for a state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality. The federal courts by contrast possess no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people’s name. In the wake of a legislature’s failure constitutionally to reconcile these conflicting state and federal goals, a federal court is left with the unwelcome obligation of performing in the legislature’s stead, while lacking the political authoritativeness that the legislature can bring to the task. In such circumstances, that must be accomplished circumspectly, and in a manner “free from any taint of arbitrariness or discrimination.” Roman v. Sin-cock, 377 U.S. 695, 710 [84 S.Ct. 1449, 1458, 12 L.Ed.2d 620],

Connor v. Finch, 431 U.S. at 414-415, 97 S.Ct. at 1833-34.

For the reasons stated in Connor, the Supreme Court has held that a federal court abuses its equitable discretion when it creates a plan containing districts with population deviations that are unnecessarily large, Chapman v. Meier (5.95 per cent deviation), and when it mandates the use of a multi-member district plan, Connor v. Finch, East Carroll Parish School Board v. Marshall. On the other hand, the Court has approved plans submitted by a legislature in which the population deviation is significantly higher than that in Chapman. See, e.g., Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1972) (16.4 per cent deviation), and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) (9.9 per cent deviation). It has also approved, in certain circumstances, the use of multi-member districts in legislative plans. See, e.g., Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971).

Most recently, the Fifth Circuit Court of Appeals held that a District Court abuses its equitable discretion when it premises a remedial plan on proportional representation of minorities. Marshall v. Edwards, 582 F.2d 927 (5th Cir.1978), cert. denied sub nom East Carroll Parish Police Jury v. Marshall, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979). In Marshall v. Edwards, the court had before it a plan ordered by the district court to remedy a prior history of franchise dilution. See Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973). In developing its remedy, the lower court sought to create districts in East Carroll Parish exactly proportional to the Parish’s black population. Noting that the question whether equitable standards permit a court to approve such a plan was one of first impression, the court looked to the Supreme Court’s then most recent pronouncement in United Jewish Organizations v. Carey for guidance. The Court of Appeals observed that although United Jewish Organizations established that, as a matter of state policy, a legislature may voluntarily adopt a plan based on proportional representation, the case provided federal courts with no such license:

At this time, we read the decisions of the Supreme Court as admonishing lower federal courts to act cautiously in reapportionments and to leave racially proportional representation to legislative bodies, at least in the absence of some impelling reason to take it into account, for example, where the correction of historic racial discrimination and not merely proper representation is involved.

582 F.2d at 936. The Court of Appeals concluded with some advice to the district court on fashioning an acceptable remedy:

The judge must analyze the plan and determine that the probable results are such that minority strength is not diluted. But this legitimate concern with the outcome cannot justify a strict proportionality brought about by manipulation of district lines ____ The boundaries should be drawn with an eye to compactness, contiguousness, and the preservation of natural, political and traditional boundaries; not racially balanced representation. We are not legislatures.

582 F.2d at 937 (emphasis supplied).

Thus, in Marshall, it was held an abuse of discretion to remedy a long history of vote dilution with a plan premised on proportional representation. The remedy adopted by the majority in the instant case presents one further turn of the screw. Here, the issue is whether a federal court may require a state that is not subject to the Voting Rights Act and has not been shown to have engaged in voting dilution in the past to adopt a race-conscious remedy that deliberately creates districts in which blacks constitute at least a 65 per cent majority.¹⁰ In my view, the court is without “solid constitutional grounds” for doing so.

I begin with the Supreme Court’s latest expression, Mobile v. Bolden, 446 U.S. 55, 78-79, 100 S.Ct. 1490, 1506, 64 L.Ed.2d 47 (1980) (plurality opinion) since that case both confirmed and extended the holding of Marshall v. Edwards. There the Court stated:

It is, of course, true that the right of a person to vote on an equal basis with other voters draws much of its significance from the political associations that its exercise reflects, but it is an altogether different matter to conclude that political groups themselves have an independent constitutional claim to representation. And the Court’s decisions hold squarely that they do not [citations omitted].

The fact is that the Court has sternly set its face against the claim, however phrased, that the Constitution somehow guarantees proportional representation.

According to the plurality in Mobile, it is not only strict proportional representation that is beyond the equitable power of a court to require. Rather, it is any kind of plan that requires a racial, ethnic or other identifiable group to be given representation as such a group. In the quotation from Mobile, supra, the plurality opinion rebuffs the idea “that political groups themselves have an independent constitutional claim to representation ” by noting that the Court has consistently rejected the claim “however phrased, that the Constitution somehow guarantees proportional representation” (emphasis added). The majority in the instant case claims that its plan is not proportional representation because the blacks will have six rather than the seven Senate districts they would have under strict proportional representation. In my view, the question is not whether it is six or seven, but whether the districts have been drawn on the invalid premise that blacks have a constitutional right to district lines that will enable them to vote as a group.

Even apart from the holding of Mobile v. Bolden, the majority’s remedy suffers from a further defect. As indicated in Connor v. Finch, a court abuses its equitable discretion when it adopts a remedy that usurps the prerogative of the state legislature to make critical policy choices in connection with reapportionment. Justice Stewart succinctly stated the job of federal courts in these cases: “In the reapportionment context, it is the duty of a court seeking to remedy an unconstitutional apportionment to right the constitutional wrong while minimizing disturbance of legitimate state policies.” Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 202, 92 S.Ct. 1477, 1486, 32 L.Ed.2d 1 (1972).

The majority’s remedy does not merely conflict with legitimate state policies regarding reapportionment, it preempts the state from forming the policies. As Mobile v. Bolden makes clear, the object of the remedy in any vote dilution case is to give the minority group equal access to the political processes leading to nomination and election. This is all the cases have ever held. United Jewish Organizations, 430 U.S. at 165, 97 S.Ct. at 1009-10; White v. Regester, 412 U.S. 755, 765-767, 93 S.Ct. 2332, 2339-40, 37 L.Ed.2d 314 (1973); Whitcomb v. Chavis, 403 U.S. at 149, 91 S.Ct. at 1872. Equality of access may be effected in several ways. The legislature may choose to draw “safe” minority districts or it may choose to spread, but not intentionally to fracture, the minority population over a few districts. It is clear, however, that neither choice is constitutionally mandated. Mobile v. Bolden, supra; Whitcomb v. Chavis, 403 U.S. at 156-157, 91 S.Ct. at 1875-76. How equality of access is achieved in a given state is thus a policy choice that has been left, in the first instance, to the legislatures.

Where there is a history of official discrimination in connection with exercise of the franchise, a court may be justified in fashioning a remedy, such as “safe” black districts, that remove the “structure and residual effects of the past.” Kirksey, 554 F.2d at 151; Marshall v. Edwards, 582 F.2d at 936. See also University of California Regents v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978). Where there is no history of discrimination, a federal court has no business imposing on a state a policy — the creation of black districts and white districts — that represents an extreme departure from prior reapportionments.

The majority plan is not only a substitution of the court’s policy for that of the legislature, it is the imposition of a policy that has no constitutional basis. It is a political compromise. It lies half way between the Commission plan and the Coalition plan proposed by the plaintiffs. This is apparent from simply looking at the majority plan: it gives the blacks six senate districts in which they have a 65 per cent majority rather than the five contained in the Commission plan or the seven provided in the Coalition plan and still demanded by the plaintiffs. It gives the blacks 13 House districts in which they are at least a 65 per cent majority rather than the 12 found in the Commission plan or the 14 in the Coalition plan. Thus, on its face, the majority plan appears to be a compromise arrived at by the time-honored method of splitting the difference. But this conclusion need not be based merely upon looking at the various plans. That would be a matter of inference — a good one, but still subject to the usual reservations about circumstantial evidence. It is not necessary to rely on inference here. To the extent that anyone can know anything, we know that the majority plan is the result of political compromise because we know it is based entirely upon Court’s Exhibit’s 1A and DelValle Exhibit 208, nothing more. The remedy Court Exhibit 1A provides for the blacks is simply the settlement offer made by counsel for the Commission. It does not purport to be based upon any constitutional principle at all; it was merely a way of trying to dispose of the case. DelValle Exhibit 208 is different in one respect, in that it does not represent a compromise. It represents total victory for the Hispanic plaintiffs, who drew this particular exhibit in such a way as to afford the Hispanic communities the maximum possible representation consistent with requirements that legislative districts be compact and contiguous. But I do not see that the Hispanic component of the majority plan is any more constitutionally based than the black component.

The majority remedy does not stop with ordering proportional representation for minorities. It actually goes beyond that and orders that blacks and Hispanics be given special treatment by way of the 65 per cent formula. The majority’s discussion of the guideline is, like its discussion of the majority plan itself, contained in footnote 87. The footnote recites that during the testimony “both sides referred approvingly to the 65 per cent figure.” I recall no such “approving” reference by any defense witness. Defendants acknowledged that such a formula has been used in reapportionment cases but did not concede its propriety. The only witness for defendants referred to in the footnote was Kim-ball Brace, a professional reapportioner, and while he said he has used the guideline himself in other cases, he did not say he believes it is valid.

This is the first court to order the implementation of such a guideline. I believe the order is without evidentiary basis and without legal precedent. Furthermore, I believe it is bad public policy.

In United Jewish Organizations v. Carey, 430 U.S. 144, 164, 97 S.Ct. 996, 1009, 51 L.Ed.2d 229 (1977), a voting rights case where affirmative action was required to remedy past discrimination, the Court stated

We think it was reasonable for the Attorney General to conclude in this case that a substantial non-white population majority — in the vicinity of 65 per cent— would be required to achieve a non-white majority of eligible voters. (Emphasis in original).

This language furnishes no authority for requiring a state to use a 65 per cent formula, nor does it even support the proposition that a state’s voluntary use of a 65 per cent formula would be reasonable in every case.

Justice Brennan, concurring in United Jewish Organizations, explored the implications of preferential treatment such as the 65 per cent formula:

Furthermore, even preferential treatment may act to stigmatize its recipient groups, for although intended to correct systematic or institutional inequities, such a policy may imply to some the recipient’s inferiority and especial need for protection.

430 U.S. at 173-174, 97 S.Ct. at 1014. See also University of California Regents v. Bakke, 438 U.S. 265, 298, 360, 98 S.Ct. 2733, 2752, 2783-84, 57 L.Ed.2d 750 (1978) (opinions of J. Powell and Justices Brennan, White, Marshall and Blackmun); Califano v. Goldfarb, 430 U.S. 199, 223, 97 S.Ct. 1021, 1035, 51 L.Ed.2d 270 (1977) (J. Stevens, concurring); Stanton v. Stanton, 421 U.S. 7, 14-15, 95 S.Ct. 1373, 1378, 43 L.Ed.2d 688 (1975); DeFunis v. Odegaard, 416 U.S. 312, 343, 94 S.Ct. 1704, 1719, 40 L.Ed.2d 164 (1974) (J. Douglas, dissenting). It seems to me that the 65 per cent formula, applied routinely in favor of minorities without reference to whether they have been fenced out of the electoral process, is indeed a suggestion of their inferiority. The evidence is undisputed in this case that there has never been any racial or ethnic bar to voting in the State of Illinois. There has never been a poll tax here, nor a literacy test, nor any history of racial intimidation in electoral matters. There is no question that blacks in this country have had enormous obstacles to overcome and that the effects of slavery and discrimination are difficult to extirpate. On the other hand, registering to vote and turning up at the polling place to cast that vote is something millions of blacks are able to do. This is because, in a state like Illinois, whatever racial barriers there are in matters such as housing and employment, there are none barring access to the voter’s registration office or to the polling place.

Various groups of immigrants to this country have faced and are still facing difficult problems of adjustment that interfere with their participation in the electoral process. Many of these people do not speak English when they arrive in this country but take the trouble to learn it. Millions of immigrants have encountered discrimination in employment. All immigrants, regardless of their national origin, have had to do something to gain the franchise that no black in modern times has had to do: they have had to go through the lengthy and not altogether undemanding process of becoming citizens of the United States.

Despite the deficiencies of the record before us, I do not doubt that a factual basis for each of the predicates of the 65 per cent formula — younger age, lower registration, lower turnout — could be demonstrated. (I do doubt that there is any factual basis for the 5 per cent allowance for each of these factors; I suspect this is entirely arbitrary). I am willing to assume that the Illinois legislature could validly make an allowance for these factors in drawing the boundaries of legislative districts.¹¹ But I do not think it is proper for this court to order the State of Illinois to make such an allowance. Granting that the black and Hispanic populations have a higher birth rate than whites and thus have a lower average age, how does this translate into a constitutional principle that the states must therefore allow the blacks and Hispanics of voting age to cast supercharged ballots? Granting that blacks and Hispanics of voting age have a lesser registration rate than whites, how, in the absence of any state-imposed bar to registration, can a federal court interpret the Fourteenth Amendment to require a gerrymander on this account?¹² And how does the failure of a qualified, registered voter to appear at the polls on election day become a constitutional question? There may be something about failing to vote that is racially or ethnically based, but it would take a great deal more time than was spent on the matter in this trial to show what it is.¹³ The Illinois legislature might see fit to draw boundary lines in a way that will relieve blacks and Hispanics of the consequences of failing to cast the votes they are eligible to cast, but it seems to me that is a decision for the legislature to make, not one for this court to dictate.

One wonders just how far this matter of electoral subsidies goes, and where it will end. What if it could be shown that naturalized citizens of Lithuanian extraction in Chicago are registered to vote in lesser percentages than native-born citizens of Irish and Polish extraction? Is this an Equal Protection question? What if Hispanics have a lower average age than blacks; are the Hispanics entitled to more than the 5 per cent allowance for age, or does the black allowance become reduced? The questions are unending, and it does not seem to me that the majority opinion provides any answers. It certainly is not an answer to say that the blacks and Hispanics in this case are being given the advantage of the 65 per cent guideline because of a prior history of state discrimination against them in electoral matters. There is no such history. The black and Hispanic plaintiffs are being given the benefit of this 65 per cent guideline solely because of the testimony that blacks and Hispanics are younger, register less and vote less. It follows, it seems to me, that any group which can make a similar claim vis-a-vis the white population, or any identifiable white ethnic group that can make the claim vis-avis the white population at large, can request the same relief.

A further problem with the 65 per cent formula is that it seems to be inconsistent with the cases in this Circuit which hold that a defendant in a criminal case cannot complain that grand and petit jurors were selected from a voting list which contains disproportionately few young persons and blacks. See United States v. Dellinger, 472 F.2d 340, 364-366 (7th Cir.1972); United States v. Gast, 457 F.2d 141 (7th Cir. 1972). As Justice Douglas asked in his dissent in Wright v. Rockefeller, supra, “If race is not a proper criterion for drawing a jury list, how can it be in designing an electoral district?” 376 U.S. at 67, 84 S.Ct. at 611.

This completes my criticism of the remedy ordered by the majority. I will describe briefly the remedy I think appropriate for the Crosby plaintiffs. The relief I would grant would be a map drawn according to the traditional neutral criteria, without regard to what I believe is the constitutionally impermissible consideration of race or ethnic character. Such a map would consist of compact and contiguous districts, drawn with due regard to the one-person-one-vote requirement as well as natural and political boundaries. See, e.g., Connor v. Finch, 431 U.S. at 425, 97 S.Ct. at 1839; Marshall v. Edwards, 582 F.2d at 937. It would be a colorblind map. I do not know what the effect on minority bloc voting would be, but since my remedy would take down the wall and would not gerrymander against blacks, I do not see how blacks could have fewer majority districts than they would have under the Commission plan. Conceivably, they would have more than the court plan provides. But whatever the bloc voting effect of a colorblind map might be, it would be unintended. That, in my view, is the only way the Constitution permits. There is no way to draw racially conscious lines that will be “neutral.” If the lines give minority groups anything less than strict proportional representation based on their percentage of the population as a whole, the minorities will claim their vote was “diluted;” yet, the law is clear that proportional representation is not a constitutional requirement.

My instructions to a court reapportioner would be to draw contiguous, compact, one-person-one-vote districts in the City of Chicago, starting at some point on the edge of the lake (selected either arbitrarily or with some neutral logic the reapportioner might have) and work out from there. I would forbid any initial reference to demographic maps showing racial and ethnic distribution. If the end result turned out to be clearly unfair to some racial or ethnic minority, this would be cause for some redrawing. I do not suggest that a completely random map would necessarily be adequate on the first try. What I do suggest is that it is the only appropriate starting point for a court-ordered plan in a case where there is no prior history of official discrimination, and thus, no basis for affirmative action.

The majority opinion, in footnote 95, addresses itself to the idea of a colorblind map and concludes that it would have to be drawn by a computer because “any human redistricter is well aware of the racial concentrations in the city____” The majority also expresses “grave doubts as to whether such a ‘colorblind’ map would be accepted as neutral by any of the parties to this lawsuit.”

It seems to me a non sequitur to say that because a redistricter would be aware of the racial concentrations in the city he would be unable to draw a map that ignored racial concentrations. To know, something is not to be controlled by it, unless, of course, one wants to be. Much of our civil rights legislation is based upon the premise that decisionmakers can and should make decisions without regard to race, religion, national origin, or other invidious factors. Employers who obviously know the race or sex of job applicants are required by law to make hiring decisions without regard to race or sex. If the majority opinion is correct, this would be impossible. Yet, it is done every day. Fair Housing laws require sellers and landlords to sell and rent real estate without regard to race, religion or national origin. The same laws also require realtors to show available housing on a non-discriminatory basis. These are person-to-person, face-to-face dealings. There is no doubt that the seller of a home or a landlord or a realtor knows the race of the applicant. Age discrimination laws provide another example of a situation where the decision-maker is expected to act without regard to a particular factor even though he knows that factor exists.

A closer analogy to the drawing of electoral district lines would be the drawing of school attendance boundary lines. Surely our law presumes that school attendance boundaries can be drawn along neutral lines, without regard to race, because this is what federal law requires.¹⁴ If the majority opinion is correct about the frailty of a “human” decisionmaker, it would be impossible to draw school attendance boundaries which are not based upon race. Again, however, I hope it is safe to say that the vast majority of school districts in this country have boundary lines which have not been drawn on the basis of race.

The computer will be involved whether the lines are colorblind or not, since so much of the redistricting process is based upon computer data. The census information itself, which provides the reapportioner his most important data base, is computer-generated. All of the maps received in evidence, including Court Exhibit 1A and DelValle Exhibit 208, which the majority adopts as its plan, are drawn from data supplied by computers. (The information could, of course, be derived in other ways; the computer merely speeds up the process).

Finally, I would not worry about whether any of the parties to this lawsuit would consider a colorblind map to be neutral. All of the plaintiffs in this case desire not a neutral map but one which will maximize their group voting potential. The DelValle plaintiffs have achieved this under the court-ordered plan. I assume they will be fully satisfied with the court plan. The Crosby plaintiffs, on the other hand, have not achieved the maximum bloc voting strength for blacks which they sought in this lawsuit, and I suspect they will be no happier with the court plan than they were with the Commission plan. I believe these cases must be decided according to the law, not according to what the parties want or think they should have. The majority’s concern with whether the parties would “accept” a colorblind map reveals again the desire of the majority for compromise.

The drawing of a colorblind map might have pitfalls of which I am unaware. Should that prove true, adjustments would have to be made. Whatever the difficulties might be, I think they would be less formidable than those which are found in the majority plan. If we were to tell a reapportioner to draw a colorblind map, he would have instructions he could understand. I do not know what instructions are given by the majority decision. The rationale for the lines being drawn as they are is not stated. The result is in reality a political compromise, but the opinion does not say so. It gives no guidance to the next set of reapportioners who will have the task of drawing a map that complies with the Constitution. Heretofore, it has been thought sufficient to avoid purposeful discrimination or dilution of minority voting strength. Now, some unspecified degree of affirmative action is required, even without a prior finding of official discrimination. Perhaps the explanation omitted from the majority opinion can be spelled out in future cases. On the basis of today’s decision, I suspect there will be plenty of them.

The DelValle Plaintiffs

The majority opinion adopts the Hispanic post-trial settlement with the Commission as part of the court-ordered plan and finds that the settlement is “fair.” The parties were, of course, free to settle the case and were encouraged by the court to do so. If that was all that occurred here, I would have no occasion to dissent. But this settlement is receiving the imprimatur of this court, both by its incorporation into the court’s judgment order and by the specific finding of the majority that the settlement is “fair.” Thus, the settlement will apparently have precedential value. In future reapportionments, Hispanics and other groups, could believe, quite reasonably, that they are entitled to the same treatment the Hispanics receive in the settlement adopted by the court today. For this reason, I am compelled to state that, in my view, the settlement is not fair. It gives the Hispanics full relief when, under the evidence, they are entitled to none.

The Hispanic plaintiffs, in my opinion, have not met their burden of showing that the defendants purposefully discriminated against them because of their Hispanic ancestry. It is true that the Commission map is not drawn so as to maximize the voting strength of either the Puerto Rican community on the near north side of the City or the Mexican-American community on the south side. The lines could have been drawn so as to form districts which would concentrate larger numbers of Hispanic voters, thus making more likely the election of a candidate of their choice. But there is no showing that the failure of the Commission to draw the lines in that manner was the result of purposeful discrimination against Hispanics. Unlike the situation regarding the black population of the City, there was no testimony that anyone wanted to put the Hispanics in districts separate from whites or other identifiable groups. There was no testimony concerning tension between Hispanics and whites or any perceived difficulties that a white candidate or a Hispanic candidate might experience running in a district composed of a majority of Hispanic and a minority of white voters. This is not to say that such tensions do not exist or that such difficulties might not be encountered. The point is they were not part of the evidence, and there is no reason to conclude that any such ethnic-political considerations played a part in the way the lines effecting the Hispanic neighborhoods were drawn. What the evidence does disclose, without contradiction, is that the lines were drawn so as to protect and enhance the reelection chances of incumbent legislators. It happens that those legislators are white, but the evidence does not show this is why they were favored. They were favored because they are incumbents. Some of them are members of the Democratic organization, and two of them, Senators Netsch and Marovitz, were favored because of the intervention of former Governor Shapiro, the tie-breaking member of the Commission. Shapiro told the Democrat members of the Commission that the one condition of his voting for their map was that they revise it to make separate districts for Netsch and Marovitz. If defendants had not made that concession they would have had no map. There is no evidence that Governor Shapiro, in causing the lines to be drawn so as to provide separate districts for Netsch and Marovitz, did so because he desired to discriminate against Hispanics. This situation is unlike that on the South Side involving Senators Joyce and Dawson. There, the districts were gerrymandered precisely because the Commission believed blacks would not vote for Joyce and Dawson. On the North Side, Netsch and Marovitz were not going to be in districts with heavy Hispanic concentrations in any event. The only question was whether they would be placed in one district or in separate districts. As a consequence of the decision to give them separate districts, the configurations of the districts to the west, where heavy concentrations of Hispanics live, had to be changed. The evidence is undisputed that, without the intervention by former Governor Shapiro, the Commission map would have given the Puerto Rican community almost as much voting strength as it would have under the Coalition map.¹⁵

Plaintiffs also point out that the Commission acceded to the requests of Evanston and Oak Park not to be divided, while ignoring the requests of Hispanic leaders that the Hispanic neighborhoods in Chicago be given the same treatment. Plaintiffs argue that this disparate treatment of the various requests is, of itself, unconstitutional discrimination against the Hispanic community. While the argument has some equitable appeal, I believe it must be rejected. Failure or refusal to comply with the request of Hispanics, even while complying with similar requests by other groups, does not show purposeful ethnic discrimination. What it shows is that a particular group of residents was not afforded the same consideration as other groups of residents. The evidence showed that the Commission was beleagered with requests and demands of all kinds, many of which were in conflict, so that, necessarily, not everyone could be satisfied. There must always be disappointed suitors in every reapportionment. The fact that the suitor happens to be white, black or Hispanic does not show that this was the reason for the decision.

There are good reasons for including an entire city, such as Evanston or Oak Park, within one electoral district rather than splitting it up. It cannot be argued that the Commission complied with unmeritorious requests by these municipalities and yet ignored legitimate demands by the Hispanic communities.

There is no doubt that the Commission knew the effect of its lines on the Hispanic communities. It knew that the voting strength in each of the communities would be divided in such a manner that there would be no district in which Hispanics, as a bloc, would be likely to elect a candidate of their choice. Plaintiffs placed heavy emphasis on this awareness. However, as the Supreme Court has held, the discriminatory intent required for a constitutional violation means more than that the decisionmaker was aware of the consequences; it means that the decisionmaker selected the particular course of action not merely “in spite of” but at least in part “because of” its adverse affects upon the objecting group. Mobile v. Bolden, 446 U.S. 55, 72 n. 17, 100 S.Ct. 1490, 1502 n. 17, 64 L.Ed.2d 47 (1979), quoting from Personnel Administrator of Mass v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2296, 60 L.Ed.2d 870 (1979). It is clear that the Commissioners acted “in spite of” the adverse affect upon the block voting strength of the Hispanic communities. There is no evidence, however, that the Commission acted, even in part, “because of” that adverse effect.

Plaintiffs also argued at trial, and the majority appears to agree, that the Commission’s “snowsuit theory” about the Hispanics amounted to intentional ethnic discrimination. This is as close as the plaintiffs came to the necessary showing, but it falls short. First, it is clear to me that the “snowsuit theory” was a defense devised in preparation for trial. It was not something the reapportioners had in mind when drawing the Commission map. The notion that Michael Madigan and Martin Murphy, the authors of the Chicago portion of the Commission map, gave careful consideration to the probable direction of future Hispanic population movement is not one I find to be supported by any credible evidence. It is ironic that this post-event rationalization offered by the defendants is now the principal evidence against them.

Even assuming that Madigan and Murphy did consider probable Hispanic residential trends at the time they were drawing the map, it seems to me that such a consideration would still be in the “in spite of” category rather than the “because of” category. The lines were not drawn as they were because of the direction of anticipated Hispanic migration. They were drawn that way because of Governor Shapiro’s insistence that Senators Netsch and Marovitz be accommodated. The snowsuit theory, assuming it played a role, was simply a prediction that the Netsch-Marovitz concession would not hurt the Hispanics in the long run because they would “grow into” the districts as drawn.

Conclusion:

What has happened here, in my view, is that a federal court has adopted as constitutional requirements the racial considerations which the Constitution permits a state voluntarily to consider. It is undoubtedly good government and good politics to try to accommodate as many competing demands as the law and reason will allow when a state is reapportioned. Obviously, one of the prime demands in recent times has been that of racial and ethnic minorities for fair treatment. Thus, the state reapportioner works with a mass of demographic information which inevitably becomes depicted in demographic maps, showing the concentrations of blacks and Hispanics. This is all made possible by the census conducted every ten years, which reveals this information. Federal courts are therefore always going to be confronted with an abundance of demographic maps, showing where blacks and Hispanics live. At the present time, we have no maps showing where other ethnic groups live, but if called upon, the computer could probably deliver them. It seems to me important for federal courts to realize that this information, in all its splendor, may be very useful to the state reapportioners, but it does not form the basis for a rule of federal law. I believe that my colleagues, with the best of intentions, have been diverted from their proper inquiry by a preoccupation with the census data. In short) they have tried to do a better job with the census data than the state legislature did. Apart from the question of the wall, they may have succeeded in doing exactly that. From the standpoint of social policy, the court plan imposed by my colleagues may be better than the Commission plan. However, it is not our proper office to substitute our social philosophies for those of the state legislature. Our very limited function in reapportionment cases is to see to it that the requirements of the federal constitution are observed.

Appendix To The Dissent

This Appendix consists of a map of the House Districts on the South Side of Chicago as they appear in both the Commission Plan and the plan ordered by the court. The shaded portions of the map represent those census tracts in which Blacks make up at least 85 percent of the population. In the unshaded portions, Blacks constitute less than 20 percent of the population. The heavy dark line drawn along the westernmost boundary of House Districts 23, 24, 31, 33, 27 and 34 represents what is referred to in both opinions as the “wall.” The white neighborhoods of Bridgeport, Canaryville, Gage Park, Marquette Manor and Marquette Park lie immediately west of Districts 23, 24, 31 and 33.

1 . The Crosby complaint does not specifically allege this theory and could be read as being entirely confined to the question of dilution. However, during the course of the trial, counsel for plaintiffs made clear in argument that they were objecting to the Commission plan on the basis of racial stigma as well as dilution. If there is any problem about the pleadings in this regard, I would simply allow the Crosby plaintiffs to amend at this time to conform with the proof. Rule 15(b), Fed.R.Civ.P.

2 . In addition to the testimony quoted in the majority opinion, ante at 1114, Madigan testified on cross examination as follows:

BY MR. SULLIVAN:

Q We have established, I believe, that there were accommodations made in respect of the view of Evanston, Oak Park, Hyde Park, the Marovitz/Netsch matter, and I think you testified that you made certain accommodations to the Bridgeport community in drawing your map, is that right, and the Canary-ville community and the Marquette Park community?

A It was my judgment that it would not be wise to have majority black districts representing those communities.

Q Because of the racist attitude of the white people living in those communities?

A Because of the strong racial feelings, it would have been very difficult for a black person to represent the communities.

Q What community is this down here in 17?

A Cicero.

Q Aren't there hard feelings between the Lawndale and the Cicero areas?

A There are some, and I specifically raised that question with Representative Henry. He told me that—

Q Excuse me. I don’t want to get into all this hearsay on my cross-examination. In any event, you accommodated those racial feelings of these communities, didn’t you?

A I don’t know if your form of questioning is correct.

Q You took them into consideration in drawing your lines?

A Yes, I did.

Tr. 1431-1432.

Commissioner Murphy who, along with Madigan, drew the lines in Chicago testified on cross-examination as follows: BY MR. COLEMAN:

Q Shall we call it a line around the major black concentrations of population in the City of Chicago? Would you accept that?

A Yes.

Q That there is a line that the Commission draws around the black community and on the South and West Sides? You agree with that?

A Yes.

Q And one of the reasons why that line was drawn was because to the west of the line on the South Side there are primarily white communities that you believe have a community of interest that is separate from the black communities to the east of the line, isn’t that correct?

A Partly.

Q And it was a concern of yours that if the black populations to the east and the white populations to the west were put into the same districts, that there might be friction.

A Yes.

Tr. 1837-1838.

3 . See map in the Appendix to this opinion.

4 . In fact, the ultimate decision of the majority is that the wall is constitutionally required, as will be demonstrated later in this opinion.

5 . Rep. Jesse White (former District 13), a black, is elected by a constituency in Chicago that is 73 per cent white. Downstate, Sen. Kenneth Hall (former District 57), also a black, is elected by a constituency that is 60 per cent white. There was also evidence that Sen. Earlean Collins (former District 21) receives a substantial vote from whites in her Chicago district.

6 . "[T]he essential issue [of stigma] is one of fact —whether segregation involves special harm for Negroes and therefore violates the constitutional standard of equality. But the basic factual issue cannot be relitigated in each case which involves the question. [T]he relevance of the issues on which the social scientists wrote and testified is inescapable [and] leads to a general constitutional ruling which will govern subsequent cases until the basic factual assumptions can be shown to be wrong ____” Honnold, Book Review, 33 Ind.L.J. 612, 614-615 (1958).

7 . Unlike the majority, I do not believe that racial discrimination must be "explicitly” provided for in a statute before a presumption of invalidity attaches. Ante at n. 91. In Yick Wo v. Hopkins, 118 U.S. 356, 373, 6 S.Ct. 1064, 1073, 30 L.Ed. 220 (1886), it was stated that "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution." The point is somewhat academic in our case because the intent of Messrs. Madigan and Murphy is not just a matter of inference. They testified — as "explicitly" as could be — that they intentionally drew the wall so as to separate whites from blacks.

8 . The reason the attorney for the Commission was requested to draw these maps is that he and his associates were the only ones with adequate knowledge of the geography and demography involved in the case.

9 . A plurality of the court, however, holds a contrary view. See Part IV of the opinion of Justice White, 430 U.S. at 165-168, 97 S.Ct. at 1009-11.

10 . In Taylor v. McKeithen, 407 U.S. 191, 193-194, 92 S.Ct. 1980, 1981-82, 32 L.Ed.2d 648 (1972), the Supreme Court recognized that a court-ordered redistricting plan premised on the principle of “benign discrimination” presents difficult and, at that time, unresolved issues:

An examination of the record in this case suggests that the Court of Appeals may have believed that benign districting by federal judges is itself unconstitutional gerrymandering even where (a) it is employed to overcome the residual effects of past state dilution of Negro voting strength and (b) the only alternative is to leave intact the traditional "safe white districts. If that were in fact the reasoning of the lower court, then this petition would present an important federal question of the extent to which the broad equitable powers of a federal court, Swann v. CharlotteMecklenburg Board of Education, 402 U.S. 1, 15, [91 S.Ct. 1267, 1275, 28 L.Ed.2d 554] are limited by the colorblind concept of Gomillion v. Lightfoot, 364 U.S. 339 [81 S.Ct. 125, 5 L.Ed.2d 110], and Wright v. Rockefeller, 376 U.S. 52, 57, 67 [84 S.Ct. 603, 605, 611, 11 L.Ed.2d 512] (Douglas, J., dissenting). In reapportionment cases, as Justice Stewart has observed, "the federal courts are often going to be faced with hard remedial problems” in minimizing the friction between their remedies and legitimate state policies. Sixty-Seventh Minnesota State Senate v. Beens, 406 U.S. 187, 204 [92 S.Ct. 1477, 1487, 32 L.Ed.2d 1] (dissenting opinion).

While some courts have held that the Supreme Court's opinion in United Jewish Organizations answered this question in the affirmative, see, e.g., Kirksey v. Board of Supervisors of Hinds County, 554 F.2d 139, 151 (5th Cir.1977), I believe this is a mistaken reading of the case. First, as Marshall v. Edwards recognizes, United Jewish Organizations addressed only what a legislature, not a federal court, could do to increase minority representation. Moreover, even with respect to a legislature’s power, United Jewish Organizations did not address the question whether, in the absence of a history of state action causing vote dilution, the legislature could constitutionally apportion the state on the basis of race. A fortiori, whether a federal court, in the absence of official discrimination, may reapportion a state along racial lines is a question United Jewish Organizations simply does not answer.

11 . If this were to be tested against the one-person-one-vote principle, I am not sure what the answer would be. It does seem, at least on the face of it, that these compensatory formulas give an added weight to each minority vote.

12 . In the case of the Hispanics, the low registration may in part be due to the fact that many Hispanics are not American citizens. The majority decision, in adopting the 15 per cent formula for the Hispanics, accepts the doubtful proposition that American citizens of Hispanic extraction are entitled to have their voting power enhanced because of the presence of Hispanic aliens in the community. See Bums v. Richardson, 384 U.S. 73, 92, 86 S.Ct. 1286, 1296, 16 L.Ed.2d 376 (1966):

Neither in Reynolds v. Sims nor in any other decision has this Court suggested that the states are required to include aliens, transients, short-term or temporary residents, or persons denied the vote for conviction of crime in the apportionment base by which their legislators are distributed and against which compliance with the Equal Protection Clause is to be measured.

(Emphasis added).

13 . The entire testimony at the trial concerning the 65 per cent formula would not occupy more than three or four pages of transcript.

14 . I am not referring to a situation where racially conscious lines would have to be drawn in order to correct for past discrimination.

15 . The court received into evidence the map that the Commission had prepared for adoption prior to the intercession of Governor Shapiro on behalf of Netsch and Marovitz. Def. Ex. 81. This map could not reasonably be regarded as an intentional dilution of the Hispanic vote.