Gonzalez, Sam v. City of Aurora , 535 F.3d 594 ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-4175
SAM GONZALEZ, MARIA CROSBY, and MARIANA CORREA,
Plaintiffs-Appellants,
v.
CITY OF AURORA, ILLINOIS,
Defendant-Appellee.
____________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 02 C 8346—Ronald A. Guzmán, Judge.
____________
ARGUED JANUARY 22, 2008—DECIDED JULY 24, 2008
____________
Before EASTERBROOK, Chief Judge, and WOOD and SYKES,
Circuit Judges.
EASTERBROOK, Chief Judge. In the 2000 Census, 32.6% of
the population in the City of Aurora, Illinois, identified
itself as Hispanic, but of the City’s residents who are
citizens and old enough to vote only 16.3% are Hispanic.
Aurora has 10 single-seat wards, only one of which
reliably elects Latino candidates to the City Council.
Another ward, although about 66% Latino, has twice
elected a black alderman since the redistricting that
followed the 2000 Census. When the record was com-
2 No. 06-4175
piled, 2 of the 12 aldermen (there are 2 at-large seats in
addition to the 10 wards) were Hispanic. One was elected
and the second appointed. Plaintiffs contend in this
suit under §2 of the Voting Rights Act, 42 U.S.C. §1973,
that these numbers are insufficient. They want an injunc-
tion compelling the City to redraw the ward boundaries
so that Aurora’s Latino population is concentrated in
three wards, each of which then would be likely to elect a
Latino candidate (would be, as plaintiffs say, “Latino
effective”).
Plaintiffs start with the proposition that it takes 70% or
more Latino population to ensure the election of a Latino
candidate. Whatever rule of thumb courts may have used
in the 1960s and 1970s for black voters does not apply to
Latinos, plaintiffs contend, because Latinos are younger
and less likely to be citizens than are blacks and other
minorities. Cf. Barnett v. Chicago, 141 F.3d 699 (7th Cir.
1998) (discussing the rules of thumb used in voting
cases and their doubtful transferability from one minority
group to another). Although the City used the rule of
thumb that 65% population is enough to make a district
“effective” for a minority group, plaintiffs are sure that
this won’t work. This table shows why 65% may not be
enough:
Latino Latino Voting- Latino Voting-Age
Population Age Population Citizen Population
Ward 2 74.54% 71% 47.5%
Ward 7 66.27% 62.9% 43%
Ward 3 52.61% 48% 28%
No. 06-4175 3
These figures, all from 2000, are the right ones to use.
Plaintiffs’ estimates about population in 2005 don’t matter,
because apportionment is based on Census returns. The
district court concluded that a ward with 65% or more
Latino residents should be deemed sufficient no matter
who it elects. If Latinos vote for candidates of other
ethnic backgrounds, this means that Aurora is not
afflicted by racial bloc voting, rather than that the map
deprives Latinos’ votes of full effect. The judge added
that, with 16% of the eligible population, Latinos would
receive 2 seats in a 12-seat legislature under proportional
representation. As 2 of the existing 12 members were
Latino, the district judge saw no problem under §2 and
granted summary judgment for the City. 2006 U.S. Dist.
LEXIS 10677 (N.D. Ill. Mar. 13, 2006), reconsideration
denied, 2006 U.S. Dist. LEXIS 81451 (Nov. 3, 2006).
The most striking thing about plaintiffs’ brief on appeal
is that it neither quotes from nor analyzes the text of §2.
Instead it leaps straight to the “Gingles factors” (from
Thornburg v. Gingles, 478 U.S. 30 (1986)) and language in a
Senate committee report. The statute is not self-defining,
so it is understandable that lawyers would turn to sec-
ondary sources such as judicial decisions and legislative
history. But neither is it irrelevant. It is worth quoting.
Section 2(a) says that governments cannot adopt stand-
ards, practices, or procedures that “result[ ] in a denial or
abridgement of the right of any citizen of the United States
to vote on account of race or color”. This sounds like a
rule that race and color cannot be used to prevent any-
one from voting, or to disregard a vote once cast.
Section 2(b), 42 U.S.C. §1973(b), then adds this famously
elliptical language:
A violation of subsection (a) of this section is
established if, based on the totality of circum-
4 No. 06-4175
stances, it is shown that the political processes
leading to nomination or election in the State or
political subdivision are not equally open to partic-
ipation by members of a class of citizens protected
by subsection (a) of this section in that its members
have less opportunity than other members
of the electorate to participate in the political
process and to elect representatives of their choice.
The extent to which members of a protected class
have been elected to office in the State or political
subdivision is one circumstance which may be
considered: Provided, That nothing in this section
establishes a right to have members of a pro-
tected class elected in numbers equal to their
proportion in the population.
What does it mean to “have less opportunity than other
members of the electorate to participate in the political
process and to elect representatives of their choice“?
Gingles held that gerrymandering district borders can have
this effect even though everyone is entitled to vote, and all
votes are counted equally. The Court set out circum-
stances (the “Gingles factors”) under which clever map-
drawing could have this effect and then turned to the
Senate committee report for factors to consider if the
conditions are met. The district judge found, and we
shall assume, that these conditions are satisfied in Aurora:
Latinos are sufficiently concentrated geographically that
they can form a majority in some districts (whether po-
tential majority status is essential is the question posed
in Bartlett v. Strickland, cert. granted, 128 S. Ct. 1648 (2008)
(to be argued Oct. 14, 2008), but not one we need con-
sider); Latinos are politically cohesive; and, without a
large bloc of voters, Latino candidates rarely prevail. This
just sets the stage.
No. 06-4175 5
Plaintiffs leap from satisfaction of the Gingles factors to
the proposition that the City must do what is possible to
maximize Latino voters’ ability to elect Latino
candidates (euphemistically “candidates of their choice”).
But neither §2 nor Gingles nor any later decision of the
Supreme Court speaks of maximizing the influence of any
racial or ethnic group. (Nor does §5 of the Act, see Reno
v. Bossier Parish School Board, 528 U.S. 320 (2000).) Section 2
requires an electoral process “equally open” to all, not a
process that favors one group over another. One cannot
maximize Latino influence without minimizing some
other group’s influence. A map drawn to advantage
Latino candidates at the expense of black (or white ethnic)
candidates violates §2 as surely as a map drawn to maxi-
mize the influence of those groups at the expense of
Latinos.
The Supreme Court emphasized in League of United Latin
American Citizens v. Perry, 548 U.S. 399 (2006) (LULAC), its
most recent §2 redistricting case, that the Voting Rights
Act protects the rights of individual voters, not the rights
of groups. See Shaw v. Hunt, 517 U.S. 899, 917 (1996). That’s
why LULAC rejected Texas’s argument that it could dilute
the votes of Latinos in one part of the state as long as
it gerrymandered a Latino-majority district somewhere
else. There is a serious problem with any proposal to
employ black or Asian or white citizens of some other
ethnic background as “fill” in districts carefully drawn to
ensure three 70%-Latino wards—wards in which the
remaining 30% are (by design) never going to be able to
elect a candidate of their choice. How could one explain to
this 30% that the political process was “equally open” to
them, as §2 commands? A problem under §2 arises when-
ever any person is moved from one district to another to
6 No. 06-4175
minimize the value of his vote and give an advantage to
someone else.
Section 2’s requirement of an “equally open” process
usually is described as including a prohibition of vote
dilution by redistricting. See Abrams v. Johnson, 521 U.S. 74(1997); Bush v. Vera, 517 U.S. 952 (1996); and Holder v. Hall,
512 U.S. 874 (1994), in addition to Gingles and LULAC.
Plaintiffs want the court to reduce the influence of others
to produce an advantage for Latino voters. That may be
necessary as a remedy for some earlier vote-dilution
exercise, see Shaw v. Hunt, 517 U.S. 899 (1996), but the
first question we need to ask is whether Latino votes have
been diluted by Aurora’s map. Diluted relative to what
benchmark? Not the maximum influence Latinos could
have, surely; as we’ve explained, no group is entitled to
that (and all groups cannot enjoy maximum influence
simultaneously). Nor is proportional representation the
benchmark. Gingles holds that this is not the statute’s
objective—that it is not necessary and, LULAC adds, is not
sufficient either, if a minority group in one part of a
jurisdiction has been thrown to the wolves.
So what benchmarks are possible? One would be the
outcome of a race-neutral process in which all districts
are compact. Cases in which the Supreme Court has found
a problem under §2 all involve transparent gerrymander-
ing that boosts one group’s chances at the expense of
another’s. See, e.g., Shaw v. Reno, 509 U.S. 630 (1993) (an
inkblot of a district stretching almost all the way across
North Carolina); Miller v. Johnson, 515 U.S. 900 (1995)
(extensive racial gerrymander violates equal protection
clause and cannot be rescued by a desire to satisfy §2 or
§5); LULAC, 548 U.S. at ___, 126 S. Ct. at 2623 (“entirely
new district that combined two groups of Latinos, hun-
8 No. 06-4175
Still, although many opinions, of which LULAC is the most
recent, emphasize compact districts as the benchmark for
a map that does not dilute any group’s influence, it is
possible to locate even compact districts for political
advantage.
Given the very large number of ways that reasonably
compact districts of equal population can be drawn, how
can a court tell whether a jurisdiction has chosen a particu-
lar arrangement in order to advantage one ethnic group
over another, diluting the influence of the disfavored
group? When the Voting Rights Act was enacted, the
answer would have depended on the intent of those who
drew the map. See Mobile v. Bolden, 446 U.S. 55 (1980). The
1982 amendments replaced intent with effect as the rule
of decision, see Gingles, but did not supply a means to
test whether a given map was ordinary or abnormal.
Today, however, computers can use census data to gener-
ate many variations on compact districts with equal
population. One could do this exercise a hundred or a
thousand times, each time placing the center of the first
(or “seed”) district in a different location. That would
generate a hundred or a thousand different maps, and
the software could easily check these to determine the
ethnic makeup of the districts.
Suppose that after 1,000 different maps of Aurora’s
wards have been generated, 10% have two or three “safe”
districts for Latinos and the other 90% look something
like the actual map drawn in 2002: one safe district and
two “influence districts” where no candidate is likely to
win without substantial Latino support. Then we could
confidently conclude that Aurora’s map did not dilute
the effectiveness of the Latino vote. But suppose, in-
stead, that Latinos are sufficiently concentrated that the
No. 06-4175 9
random, race-blind exercise we have proposed yields
three “Latino effective” districts at least 50% of the time.
Then a court might sensibly conclude that Aurora had
diluted the Latino vote by undermining the normal effects
of the choices that Aurora’s citizens had made about
where to live. Redistricting software can not answer all
hard questions, but it provides a means to implement a
pure effects test without demanding proportional represen-
tation.
Plaintiffs did not conduct such an exercise, however (or,
if they did, they didn’t put the results in the record). What
we can see from the record suggests that Latinos are not
concentrated enough to support three “Latino effective”
districts without serious gerrymandering. Ward 2 has
2,453 voting-age citizens who identified themselves as
Hispanic in the 2000 Census. Wards 7 and 3 have fewer.
Wards 1, 4, and 6 all have more than 1,000 citizen, voting-
age Latinos. Ward 5 has another 668. In other words, the
Latino population is not concentrated in a way that neu-
trally drawn compact districts would produce three
“Latino effective” wards. That may be why plaintiffs have
staked their all on a proposal that Latinos are entitled
at least to proportional representation via two Latino-
effective districts no matter what the consequences of race-
blind districting would be. The Voting Rights Act does not
require either outcome.
Because plaintiffs lack any evidence of dilution, there
is no point in traipsing through the multiple factors
mentioned in the 1982 committee reports. Although
plaintiffs briefly mention the City’s two at-large
districts—at-large districts are a traditional means of
reducing the influence of minority groups—they did not
make much of them in the district court or here, devoting
10 No. 06-4175
less than two pages of their brief to the subject. The at-large
districts predate the 2002 reapportionment and, for all
we know, long predate the presence of a substantial
Latino population in Aurora. After the 2000 Census,
the City increased the number of single-member districts
from 8 to 10, reducing the effect of the 2 at-large districts.
Any contention that the at-large districts violate §2 of
the Voting Rights Act has been forfeited.
And plaintiffs have no other arguments. They ignore the
fact that several wards—at least wards 3 and 7, and likely
wards 1, 4, and 6 as well—contain enough Latino citizens
to produce substantial influence. (Many cases, of which
LULAC is again the most recent example, hold that
“influence districts” count in any assessment of vote
dilution. See also, e.g., Johnson v. De Grandy, 512 U.S. 997(1994).) Plaintiffs tried for the big prize (three safe dis-
tricts) but did not build the sort of factual record that
creates a genuine issue for trial, even under the balancing
approach of Gingles. They thought, wrongly, that all
they had to do to prevail is to show that Ward 7 is not
“Latino effective.” That’s not enough to condemn the
current map. The district court’s judgment therefore is
AFFIRMED
USCA-02-C-0072—7-24-08