Cousins v. City Council of City of Chicago

• Decision Date: 10 October 1972
• Docket Number: No. 71-1077.,71-1077.
• Citation: 466 F.2d 830
• Parties: William COUSINS, Jr., et al., Plaintiffs-Appellants, Mary Lee Leahy, Intervenor-Appellant, v. CITY COUNCIL OF the CITY OF CHICAGO, Richard J. Daley, individually and as Mayor of the City of Chicago, and Board of Election Commissioners of the City of Chicago, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

466 F.2d 830 (1972)

William COUSINS, Jr., et al., Plaintiffs-Appellants, Mary Lee Leahy, Intervenor-Appellant, v. CITY COUNCIL OF the CITY OF CHICAGO, Richard J. Daley, individually and as Mayor of the City of Chicago, and Board of Election Commissioners of the City of Chicago, Defendants-Appellees.

No. 71-1077.

United States Court of Appeals, Seventh Circuit.

May 25, 1972.

Rehearing Denied June 23, 1972.

As Amended June 30, 1972.

Certiorari Denied October 10, 1972.

Michael L. Shakman, Thomas N. Todd, Robert Plotkin, Chicago, Ill., for plaintiffs-appellants.

Richard L. Curry, Edmund Hatfield, Gayle L. Haglund, Earl L. Neal, William R. Ming, Jr., Aldus S. Mitchell, Howard M. Miller, Andrew M. Raucci, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, CUMMINGS and STEVENS, Circuit Judges.

Certiorari Denied October 10, 1972. See 93 S.Ct. 85.

FAIRCHILD, Circuit Judge.

On November 6, 1970 the city council, Chicago's legislative body, enacted a redistricting ordinance dividing Chicago into fifty wards. The city council is composed of aldermen, one elected from each ward for a four year term. Aldermen were elected February 23, 1971, under the redistricting ordinance, and are now serving. Plaintiffs in this case challenge the validity of the ordinance on the grounds that it embodies racial and political gerrymandering in violation of federally protected rights and that the wards are not compact, as required by an Illinois statute, S.H.A. ch. 24, § 21-36. The action was begun and decided in the district court, and an appeal taken, before the February 23, 1971 election.

I. History of the litigation.

Litigation seeking redistricting of Chicago began in 1966. Plaintiffs Sherman H. Skolnick and others challenged the districts as drawn in the 1961 ordinance for deviation from one person-one vote standards. In 1968 the district court found deviations in terms of the 1960 census to an impermissible degree, enjoined further general elections under the 1961 ordinance and required a new districting ordinance, based on 1970 census figures, to be enacted and filed by November, 1970. Except for one modification, advancing the deadline and no longer significant, this court affirmed.¹

On November 14, 1970, after hearing, the district court held the November 6, 1970 ordinance constitutional.²

On appeal, this court affirmed, but limited our affirmance to rejection of the claim that the districts did not yet come close enough to exact equality of population. In an unreported order, entered December 14, 1970, we said:

"We conclude that, considering the ordinance from the point of view of mathematical precision alone, the district court\'s decision that the ordinance fulfills the required standards (Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519), is to be affirmed.

"The appellants and the Chicago Bar Association assert that as late as the hearing date the district judge should have permitted the filing of an amended complaint and should have permitted several aldermen to realign themselves as plaintiffs and other Chicagoans to become plaintiffs. These parties claim in substance that notwithstanding the close approximation to precise equality of the wards presented by the ordinance, the ordinance is invalid by reason of alleged gerrymandering which could dilute the voting strength of racial, political and religious groupings of people. Although the district court on its own motion gave some thought to whether this might be true and concluded after examining offers of proof that there was `no evidence\' of racial and `no substantial evidence\' of political gerrymandering, it cannot be said that the claims of gerrymandering advanced by the appellants were fully litigated or decided on their merits.

"Since these claims were not fully litigated by the parties and since some parties appear to interpret the judgment as deciding them, we consider it appropriate to declare expressly in this order that consideration of the gerrymandering issue has not been foreclosed by the district court\'s judgment, which we now affirm, and that appellants or others are free to file a new action if they wish to pursue this issue."

On December 22, 1970 plaintiffs filed the complaint in the present case. The February 23 election was imminent, and the district court commendably expedited the case. Hearings began December 29, 1970 and continued, with necessary interruptions, through January 18, 1971. On January 22 the district court filed findings, conclusions, and judgment in favor of defendants. Cousins v. City Council of City of Chicago, 322 F.Supp. 428 (N.D.Ill.1971).

Plaintiffs appealed. We denied their motion to enjoin the election, noting among other things that "the election will not defeat or impair our appellate jurisdiction; should appellants prevail, we would have power to order prompt redistricting and a new election;. . . indeed, it is manifest that the ward boundaries established by the ordinance under attack are to be preferred to the prior boundaries which would be preserved by an injunction."

II. The complaint.

The complaint alleges that the 1970 ward boundaries operate to dilute the votes and voting strength of important elements of the voting population of Chicago, specifically black voters, voters of Latin-American origin or ancestry, and independent voters; that such dilution was accomplished by drawing unnecessarily irregular ward boundaries and creating wards not compact; that boundaries were drawn as a gerrymander with intent to discriminate against black, Latin-American, and independent voters, and candidates whom they would support; that the wards are not composed of compact territory as required by state law. The gist of the claims as developed at trial and in argument is that the boundaries were drawn so as to minimize the number of wards in which the majority would be black, or would be so-called independent voters, and to avoid having any ward in which the majority would be Puerto Rican.

Thirteen plaintiffs are individuals, residents and voters within the city. Five were aldermen who voted against the 1970 districting ordinance. Seven are black and one Puerto Rican. At least ten are so-called independent voters. Party designations do not appear on the ballot, but party organizations often endorse candidates. Plaintiffs refer to independent voters as those who "have frequently voted for and actively supported independent candidates for public office, meaning candidates who are not the candidates of any political party."

Two plaintiffs are unincorporated associations: Independent Voters of Illinois, a statewide organization committed to the advancement of independent politics, including the support of independent candidates in Chicago, and Committee for an Effective City Council, committed to the advancement of independent politics in relation to the city council of Chicago.

III. The districting created by the ordinance.

Printed as part of the opinion is an outline map of Chicago, showing ward boundaries according to the 1970 ordinance

The total population of Chicago, shown by the 1970 census at the time the ordinance was enacted (later revised) was 3,329,090. Thus the goal was to draw wards each containing 1/50 of that number, or 66,582. The result very closely approached that goal.

The map shows that the shapes of wards are far from perfect geometric symmetry. Wards are required, by an Illinois statute, to "be composed of contiguous and compact territory."³ In our view there are a number of reasons why perfect symmetry in outline can not be achieved or closely approached.

The eastern boundary of the city is, for the most part, the curving shore of Lake Michigan. The other boundaries have substantial irregularities. One north-south dimension is over 26 miles, and one east-west dimension in the central portion less than 7. Within the external boundaries are various natural and man-made barriers and substantial areas without resident population, such as Lake Calumet, rivers, expressways, parks, railroads, and concentrations of industry, all of which could have a bearing on whether a particular ward structure reasonably met the compact territory requirement. Census tracts, which were largely relied upon in the process of districting, vary considerably in area, shape, and number of residents.

In considering the plaintiffs' claim, founded on state law, that the wards are not compact, we look for guidance to the Supreme Court of Illinois. In dealing with a requirement that senatorial districts be formed of compact territory, it has said: "There is a vast difference between determining whether the principle of compactness of territory has been applied at all or not, and whether or not the nearest practical approximation to perfect compactness has been attained. The first is a question which the courts may finally determine; the latter is for the legislature."⁴ Notwithstanding the irregularities in outline of wards, we could not determine from the present record, if it were our place to do so, that the principle of compactness was not applied at all.

Nonetheless, it is our view that when other facts point to a probability that there has been invidious discrimination in drawing ward lines, deviations from maximum compactness may be considered along with these other facts in determining whether such discrimination (violating federal rights) has occurred.

At the time of trial, 1970 census figures on racial composition of census tracts were not available, and the evidence at trial tending to show where black people and people of Puerto Rican origin live and the percentage they constituted in various wards was testimony of witnesses, based on various studies. On appeal, we have permitted the parties to file copies of "Racial Composition of Census Tracts, 1970 Census Data" and computations therefrom showing the percentage...