Barnett v. Daley, 93-3644

Decision Date02 November 1994
Docket NumberNo. 93-3644,93-3644
Citation32 F.3d 1196
PartiesRichard BARNETT, et al., Plaintiffs-Appellants, v. Richard M. DALEY, et al., Defendants-Appellees, and Carole Bialczak, et al., Defendants-Intervenors-Appellees.
CourtU.S. Court of Appeals — Seventh Circuit

Judson H. Miner (argued), Barack H. Obama, Davis, Miner, Barnhill & Galland, Nathaniel R. Howse, R. Eugene Pincham, P. Scott Neville, Jr., Howse, Howse, Neville & Gray, Chicago, IL, for plaintiffs-appellants.

Lawrence Rosenthal, DCC, Benna R. Solomon, Andrew S. Mine (argued), Susan S. Sher, Office of the Corp. Counsel, Appeals Div., Chicago, IL, for Richard M. Daley.

Michael Levinson, Lawrence Rosenthal, DCC, Benna R. Solomon, Andrew S. Mine, Susan S. Sher, Office of the Corp. Counsel, Chicago, IL, for City Council of City of Chicago, Board of Election Com'rs of City of Chicago.

Michael Levinson, Lawrence Rosenthal, DCC, Benna R. Solomon, Andrew S. Mine, Susan S. Sher, James M. Scanlon, Rieff & Scanlon, Chicago, IL, for Board of Election Com'rs of City of Chicago.

Jerold S. Solovy, Barry Sullivan, Joel T. Pelz (argued), Thomas C. Buchele, Gar Patterson, Jenner & Block, Richard A. Devine, David A. Bonoma, Pope, Cahill & Devine, Donald Hubert, Hubert and Assoc., Chicago, IL, for Carole Bialczak, Thomas W. Murphy, Patrick Huels, James J. Laski, Anthony C. Laurino, Ginger Rugai, Patrick Levar, John Madrzyk, Theodore Mazola, Lemuel Austin, Jr., Edwin Eisendrath, Edward Burke, William J.P. Banks, Bernard L. Stone, Eugene Schulter, Richard Mell, Mary A. Smith, Ambrosio Medrano, Lorraine L. Dixon, Theris M. Gabinski, Ray Suarez, Burton Natarus, Bernard Hansen, Mark Fary, Michael A. Wojcik, Patrick O'Connor, Brian Doherty, John J. Buchanan.

Brenda Wright, Jaqueline A. Berrien, Lawyers Committee for Civil Rights Under Law, Washington, DC, for Lawyers' Committee for Civil Rights Under Law, amicus curiae.

Roslyn C. Lieb, Cynthia A. Wilson, Chicago Lawyers' Committee, Chicago, IL, for Chicago Lawyers' Committee for Civil Rights Under Law, Inc., amicus curiae.

Before POSNER, Chief Judge, and RIPPLE and KANNE, Circuit Judges.

POSNER, Chief Judge.

The Chicago City Council is composed of 50 aldermen, each elected from a different ward. Illinois law requires that the wards be redistricted after each decennial census. The latest redistricting plan was adopted by referendum (after the Council itself could not agree on a plan) in 1992, and is challenged in this suit by black voters who claim mainly that it violates both the equal protection clause of the Fourteenth Amendment and section 2(b) of the Voting Rights Act, 42 U.S.C. Sec. 1973(b), which offers a remedy to members of a racial or other minority who "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." The district judge dismissed the suit for failure to state a claim. 835 F.Supp. 1063 (N.D.Ill.1993). The only facts on which we can base decision, therefore, are those in the plaintiffs' last amended complaint, which superseded their previous pleadings, Prymer v. Ogden, 29 F.3d 1208, 1215 n. 6 (7th Cir.1994); Manning v. Ashland Oil Co., 721 F.2d 192, 197 (7th Cir.1983); Ferdik v. Bonzelet, 963 F.2d 1258, 1262 (9th Cir.1992), plus facts (census population figures, for example) of which we can take judicial notice.

The challenged plan creates 23 wards in which whites have at least a bare majority of either the total or the voting-age population, 19 in which blacks have at least a 65 percent majority of the total population and 1 in which they have 55 percent, and 7 in which Hispanics have at least a 65 percent majority. The reason for conceiving "majority" differently for whites on the one hand and blacks and Hispanics on the other is that the latter groups have a younger age distribution and therefore a lower percentage of voting-age members, and also lower voter registration and turnout among those who are of voting age. The rule of thumb is that these groups must have at least a 65 percent majority in the electoral district in order to have a reasonable assurance of being able to elect a candidate of their choice. United Jewish Organizations v. Carey, 430 U.S. 144, 164, 97 S.Ct. 996, 1009, 51 L.Ed.2d 229 (1977) (plurality opinion); Ketchum v. Byrne, 740 F.2d 1398, 1416 (7th Cir.1984). The complaint alleges that no black aldermanic candidate in Chicago has ever beaten a white in a ward that had a black majority of less than 62.6 percent, and it is emphatic that the ward in which the population is 55 percent black is not a black ward--is indeed a white ward, even though only 42 percent of its population is white.

The 19 black supermajority wards are 38 percent of the total number of wards, a figure only slightly less than the percentage of the Chicago population that is black--38.6 percent. The 23 white majority wards constitute 46 percent of the total number of wards, a figure that substantially exceeds the percentage of the Chicago population that is white, which is 37.9 percent. Hispanics, with 19.6 percent of the population, have only 14 percent of the wards--and they have a separate suit pending in the district court challenging the redistricting plan as unfair to them. (We have not discovered why the two suits have not been consolidated.) The white advantage over blacks is much smaller if voting-age population rather than total population is used for comparison with the ward percentages, and later we shall consider which is the superior benchmark.

The complaint alleges that a ward map could be drawn that would create 24 black supermajority wards. Because such a map would grossly short change the other racial groups by giving blacks, who have less than 39 percent of the city's population, 48 percent of the wards, the plaintiffs do not insist on the maximum possible number of black supermajority wards. But they do want parity with whites and they point out that the ward map they are challenging--the map the electorate adopted by referendum--gives the white population, although smaller than the black, 23 wards to only 19 for the blacks. The complaint charges that the mayor and administration aldermen, who proposed that map, deliberately drew it in such a way that it would protect white incumbents. A reasonable compromise, the plaintiffs suggest, would be a plan that created 22 black wards, 21 white wards, and 7 Hispanic wards.

The complaint charges, as we have said, violations of both the equal protection clause and the Voting Rights Act. It will simplify exposition to discuss the two violations separately, and to begin with the equal protection clause. Here (as under the Fifteenth Amendment, see City of Mobile v. Belden, 446 U.S. 55, 62, 100 S.Ct. 1490, 1497, 64 L.Ed.2d 47 (1980) (plurality opinion), on which the plaintiffs also rely, though its applicability to a case such as this is unsettled, Voinovich v. Quilter, --- U.S. ----, ----, 113 S.Ct. 1149, 1158, 122 L.Ed.2d 500 (1993)) the plaintiffs cannot succeed without proving intentional racial discrimination. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Tucker v. U.S. Dept. of Commerce, 958 F.2d 1411, 1414 (7th Cir.1992). Desire to protect incumbents as such is, of course, not a form of racial discrimination, and it may have been the dominant desire actuating the redistricting plan challenged in this case. If, however, in order to protect incumbents of whatever race the redistricting authority deliberately adopted devices for limiting black representation (maybe because white incumbents were thought particularly vulnerable to challenge at the next election), they would be engaged in deliberate racial discrimination. Ketchum v. Byrne, supra, 740 F.2d at 1408. The fact that discrimination may have an ulterior motive that is not discriminatory does not make it any the less intentional, as would be obvious if the ulterior motive were not to protect incumbents but to promote racial harmony, by forbidding all association between the races.

We may assume, because the complaint so alleges and it is all we have, that the defendants were indeed trying to keep the number of black wards to 19. Such a motive is racial. Yet to say that may not seem to say much, and this for two reasons. First, the complaint makes no allegations concerning the motives of the voters who voted for the administration plan in the referendum. It could be argued that since the defendants merely proposed, and the electorate disposed, the relevant motives would be those of the voters (about which the complaint is silent). See Arthur v. City of Toledo, 782 F.2d 565 (6th Cir.1986), and cases cited there. But the defendants do not argue this. Though permitted, Massachusetts Mutual Life Ins. Co. v. Ludwig, 426 U.S. 479, 96 S.Ct. 2158, 48 L.Ed.2d 784 (1976) (per curiam); Singletary v. Continental Illinois National Bank & Trust Co., 9 F.3d 1236, 1240 (7th Cir.1993), they were not obliged, Jackson v. Norris, 748 F.Supp. 570, 571 (M.D.Tenn.1990), to defend the judgment on grounds other than those adopted by the district judge; so they are free to advance the argument in the district court (not having waived it in that court) in the further proceedings on remand that we shall be ordering. But the argument's merit or lack thereof is not so clear that we could feel comfortable addressing it when it has not even been briefed.

Second, the racial motive alleged here could not be considered racist--could not, that is, be considered racial in an invidious sense--if the creation of additional black wards would violate the rights of the city's other major racial groups, the whites and Hispanics. With exceptions not argued to be relevant to this case, the equal protection clause does not countenance reverse discrimination. A redistricting authority cannot, in order to maximize the voting...

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