Smith v. Boyle

• Decision Date: 21 May 1998
• Docket Number: No. 97-2191,97-2191
• Citation: 144 F.3d 1060
• Parties: Harold B. SMITH and Illinois Republican Party, Plaintiffs-Appellants, v. Kenneth R. BOYLE et al., in their official capacity as members of the Illinois State Board of Elections, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1060

144 F.3d 1060

Harold B. SMITH and Illinois Republican Party, Plaintiffs-Appellants, v. Kenneth R. BOYLE et al., in their official capacity as

members of the Illinois State Board of Elections,

Defendants-Appellees.

No. 97-2191.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 5, 1997.

Decided May 21, 1998.

James R. Schirott (argued), Schirott & Luetkehans, Itasca, IL, Patrick J. O'Shea, Lombard, IL, Patrick K. Bond, Bond, Mork & Dickson, Wheaton, IL, for Plaintiffs-Appellants.

Rita M. Novak, A. Benjamin Goldgar (argued), Office of the Attorney General, Chicago, IL, for Defendants-Appellees.

Dennis A. Rendleman, Athena T. Taite, Illinois State Bar Association, Springfield, IL, for Amicus Curiae.

Before POSNER, Chief Judge, and BAUER and FLAUM, Circuit Judges.

POSNER, Chief Judge.

The Illinois Republican Party and its chairman appeal from the dismissal, 959 F.Supp. 982 (C.D.Ill.1997), on grounds of justiciability, of their suit for a declaration that the method prescribed by the state constitution for electing justices of the Supreme Court of Illinois in Cook County violates the equal protection clause of the Fourteenth Amendment. See Ill. Const. Art. VI, §§ 2, 3. As amended in 1970, the constitution divides the state into five districts for purposes of electing supreme court justices. One of the districts is Cook County, which includes Chicago and surrounding suburbs. Three of the seven justices are elected by Cook County voters in at-large elections; each of the remaining four is elected by the voters of one of the other districts. This system violates the principle of "one person, one vote," but that is not the plaintiffs' complaint--and for the excellent reason that the principle is inapplicable to judicial elections challenged as denials of equal protection. Wells v. Edwards, 409 U.S. 1095, 93 S.Ct. 904, 34 L.Ed.2d 679 (1973), aff'g 347 F.Supp. 453 (M.D.La.1972) (three-judge district court). The complaint is that the use of the at-large method in Cook County denies members of a particular group, namely Republicans, a fair opportunity to elect candidates of their choice. White v. Regester, 412 U.S. 755, 765-70, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Republican Party v. Martin, 980 F.2d 943 (4th Cir.1993); cf. Barnett v. Daley, 32 F.3d 1196, 1198-99 (7th Cir.1994); Garza v. County of Los Angeles, 918 F.2d 763, 771 (9th Cir.1990). Cook County as a whole has more Democratic than Republican voters, and although Republicans are sometimes elected to county office, no Republican has been elected to the supreme court from Cook County since the 1970 amendment of the state constitution. The suburban areas of the county, however, are heavily Republican, with the consequence that if Cook County were divided into three districts for the election of supreme court justices (which the state constitution forbids, Cincinnati Ins. Co. v. Chapman, 181 Ill.2d 65, 229 Ill.Dec. 264, 268-69, 691 N.E.2d 374, 378-79 (1998)), then, provided the districts were not gerrymandered, the Republicans would have a good shot at electing one justice. So an effect of the at-large system is to deprive Republicans in Cook County of the power they would have under a districted system to elect a Republican justice.

The equal protection clause has been interpreted to require some degree, often a high degree (notably in legislative reapportionment cases, where the rule of "one person one vote" reigns), of equality in voting power, in the sense that each voter's vote should have to the extent feasible the same weight in the political process as every other voter's vote. Of course, the goal of equality of voting power must remain to a considerable degree aspirational. The system for electing United States Senators, a system not only embedded in the Constitution but expressly placed beyond the power of alteration by Article V, has the effect of weighting votes for Senators in states that have a small population more heavily than the votes for Senators in states that have a large population. And voters in swing districts have more effective voting power than voters in districts that are politically lopsided. These disparities cannot be corrected. Others can be. The Court long ago held racial gerrymandering unconstitutional. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); see also id. at 349, 81 S.Ct. 125 (concurring opinion). Later it held that state legislative districts must have the same population. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Then that gerrymanders aimed at diluting the voting power of supporters of one of the political parties were, like racial gerrymanders, justiciable. Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986). And later still that malapportionment of judicial election districts could violate the Voting Rights Act. Chisom v. Roemer, 501 U.S. 380, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991). The Supreme Court has not yet had a case in which the use of at-large elections to fill judicial offices is challenged as a denial of equal protection because aimed at preventing the election of candidates of one of the parties. But like the Fourth Circuit in Republican Party v. Martin, supra--the only case similar to this one that we've found--we cannot see an objection in principle to what would be after all only a modest extension of existing law. The at-large election is a familiar device, as we know from such cases as Cane v. Worcester County, 35 F.3d 921, 925-27 (4th Cir.1994), and Westwego Citizens for Better Government v. City of Westwego, 946 F.2d 1109, 1116-23 (5th Cir.1991), for reducing the voting power of a minority, whether racial or political; and the reduction is the same whatever the office, whether legislative, executive, or judicial, is to be filled by election.

Suppose, to take a simplified version of the present case, that a state is divided into four legislative districts of which one has 50 percent of the population and the other three 16.67 percent each. The large district elects 3 legislators, all at large, and the small ones elect 1 legislator each. Party A is supported by 60 percent of the voters in the large district, Party B by the other 40 percent. Therefore Party A's candidates win all three seats. But suppose that support for the two parties is uneven across the large district; if that district were divided into three equal parts without regard to politics, Party A would command the support of 80 percent of the voters in each of two subdistricts but Party B would command the support of 80 percent of the voters in the third subdistrict. (To see this, imagine that there is a total of 1,200 voters in the district as a whole, 400 in each subdistrict. Party A will then have 720 voters in total (.6 X 1,200) of whom 320 will be in the first subdistrict (.8 X 400), 320 in the second, and therefore only 80 (720 - 320 - 320) in the third: 20 percent.) So A would end up with two seats and B with one. B's supporters would still have less effective voting power than A's, because B with 40 percent of the votes would elect only 33 percent of the legislators from the district and A with 60 percent would elect 67 percent of the legislators. Still, that is far different from 40 percent of the electorate electing zero percent of the legislators and 60 percent of the electorate electing 100 percent of the legislators.

Given the experience that the courts have had with challenges to at-large elections, including at-large elections for judges (Chisom), we cannot understand the basis for the district court's holding that the challenge to the at-large system for electing state supreme court justices from Cook County is not justiciable. Judicial reluctance to enter the political thicket of state electoral systems was overcome many years ago, and we cannot see what difference it makes that the election is of judges rather than of legislators. The district judge expressed understandable reluctance to enter the "quagmire" of electoral reform, but did not explain why the quagmire is any deeper when the election is of judges. It is true as he remarked that judges perform different functions from legislators, but we do not see how this bears on justiciability.

The concept of justiciability is designed to confine the federal courts to the traditional core judicial functions of Anglo-American judiciaries. So when there is no "case" in that traditional sense, because of mootness, lack of adversity, lack of standing in the sense either that the plaintiff has suffered no injury from the defendant's alleged wrongdoing or the court cannot grant relief that will confer a benefit on the plaintiff, lack of any law to apply (as when the court is asked to decide a "political question" in the sense of a question that lies outside judicial competence because of lack of judicially administrable standards or an unwillingness to "take on" a coequal branch of government in sensitive areas such as foreign relations), the suit will be dismissed as nonjusticiable. E.g., Steel Co. v. Citizens for a Better Environment, --- U.S. ----, 118 S.Ct. 1003, 1016-20, 140 L.Ed.2d 210 (1998); Spencer v. Kemna, --- U.S. ----, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Nixon v. United States, 506 U.S. 224, 113 S.Ct. 732, 122 L.Ed.2d 1 (1993); United States v. Johnson, 319 U.S. 302, 63 S.Ct. 1075, 87 L.Ed. 1413 (1943) (per curiam). None of these conditions is present in this case. The Illinois Republican Party and its chairman have a real dispute with the State of Illinois; the equal protection clause provides a legal framework for its resolution; a judicial decree (for example splitting Cook County into three compact districts equal in population, each to elect one supreme court justice) could be entered that would provide the plaintiffs with real relief from the harm inflicted on them by the wrong that they allege; and redistricting (essentially what the plaintiffs are...