740 F.2d 1398 (7th Cir. 1984), 83-2044, Ketchum v. Byrne

Docket Nº:83-2044, 83-2065 and 83-2126.
Citation:740 F.2d 1398
Party Name:Mars KETCHUM, et al., Plaintiffs-Appellants, v. Jane M. BYRNE, et al., Defendants-Appellees.
Case Date:May 17, 1984
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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Page 1398

740 F.2d 1398 (7th Cir. 1984)

Mars KETCHUM, et al., Plaintiffs-Appellants,

v.

Jane M. BYRNE, et al., Defendants-Appellees.

Nos. 83-2044, 83-2065 and 83-2126.

United States Court of Appeals, Seventh Circuit

May 17, 1984

Page 1399

[Copyrighted Material Omitted]

Argued Nov. 1, 1983.

As Amended May 23 and Aug. 14, 1984.[*]

Rehearing and Rehearing En Banc Denied Sept. 10, 1984.

Page 1400

Judson H. Miner, Davis, Miner, Barnhill & Galland, Chicago, Ill., for plaintiffs-appellants.

William J. Harte, William J. Harte, Ltd., Chicago, Ill., for defendants-appellees.

Before WOOD and CUDAHY, Circuit Judges, and KELLEHER, Senior District Judge. [**]

CUDAHY, Circuit Judge.

Plaintiffs, including individual black and Hispanic residents of the City of Chicago, sued several individual defendants and the City Council of the City of Chicago alleging that the 1981 redistricting plan for the aldermanic wards of Chicago violated section 2 of the Voting Rights Act of 1965, as amended on June 29, 1982, by Pub.L. No. 97-205, Sec. 3, 96 Stat. 134 (1982), 42 U.S.C. Sec. 1973 (1982), the fourteenth and fifteenth amendments to the U.S. Constitution, various federal civil rights statutes and several Illinois constitutional and statutory provisions. The district court rejected plaintiffs' fourteenth and fifteenth amendment claims but entered judgment for plaintiffs on their Voting Rights Act claim and subsequently adopted a new ward map. Plaintiffs now appeal this final district court order primarily because they deem the relief granted to be insufficient. For the reasons stated herein, we affirm in part, reverse in part and remand for reconsideration of the appropriate remedy.

I

Background

The City of Chicago is divided into fifty aldermanic wards, each with nearly equal population and composed of contiguous and compact territories. The City Council must redistrict the city on the basis of new census data by December 1 of the year following the taking of a national census. ILL.REV.STAT. ch. 24, Secs. 21-36 and 21-38 (1981). The census taken in 1980 showed that the city population was 3,005,072 so that the ideal population per ward would be approximately 60,101 (Stipulation of Facts 52, Appendix B to Brief of Defendant-Appellee, The City Council of the City of Chicago) [the "Stip."]. Because virtually every ward varied from this ideal figure (Stip. 60), it was necessary for the City Council to devise a redistricting plan by December 1, 1981.

The demographic composition of Chicago changed significantly between 1970 and 1980 due to a major decrease in the size of the white population and increases in the size of the black and Hispanic populations. The respective population percentages were as follows (Stips. 48 and 52): 1

1970 1980 Non-Hispanic White 65.5% 43.2% Black 32.7% 39.8% Hispanic 7.3% 14.0%

In 1970, blacks had a population majority in fifteen wards, but, in 1980, under the 1970 ward map, blacks had a majority in nineteen wards and a plurality of 49.3% in another ward. In 1970, Hispanics had no majority ward, but, in 1980, again under

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the 1970 map, Hispanics had four majority and two plurality wards. In 1980, therefore, non-Hispanic whites had a majority in twenty-two wards and, presumably, a plurality in two additional wards (Stip. 62; appellants' brief at 10-11).

In April and May of 1981, defendant Martin R. Murphy, Commissioner of the Department of Planning of the City of Chicago, and defendant Thomas E. Keane, former alderman of the 31st Ward, drafted a new ward map in conformance with the 1980 census population figures. In September and October 1981, Mr. Murphy consulted with various city officials and transmitted to the City Council's Subcommittee on Redistricting his census data and ward map draft. Information concerning each proposed new ward was submitted to the alderman currently representing that ward, but the city-wide map was not submitted to the City Council. This "October map" provided for twenty-four non-Hispanic white majority wards, eighteen black majority wards, five Hispanic majority wards and three wards with no majority (Stips. 73-84).

On November 9, 1981, the Subcommittee on Redistricting held its first and only public meeting at which the proposed ward map was publicly displayed for the first time. This map, like the "October map," provided for twenty-four white wards, eighteen black wards, five Hispanic wards and three wards without any majority, based on a figure of more than 50% of total population as constituting a majority. Commissioner Murphy, however, incorrectly stated at the meeting that the map provided for nineteen black majority wards and twenty-six white majority wards (Stips. 85-88).

After accepting certain amendments, the City Council, on November 30, 1981, adopted by a vote of twenty-nine to seven the final map (the "1981 map" or "City Council map"), which provided for twenty-four white majority wards, seventeen black majority wards, four Hispanic majority wards and five wards with no majority group (Stips. 105-106). Several alternative maps had been proposed but had received relatively little consideration. In addition, the City Council under Chicago's Home Rule powers passed an ordinance requiring that seventeen, rather than ten, aldermen must vote against a redistricting ordinance before a substitute ordinance could be submitted to a public referendum. ILL.REV.STAT. ch. 24 Sec. 21-39 (1981); Stip. 100.

In the summer of 1982, three groups of plaintiffs filed voting rights complaints, including a group of nine black voters of the City of Chicago (the Ketchum plaintiffs), a group of six Hispanic voters of the City of Chicago (the Velasco plaintiffs) and another group of four individuals and a black political organization (the Political Action Conference of Illinois). The defendants in each case were Jane Byrne, Mayor of the City of Chicago; Martin R. Murphy, Commissioner of the Department of Planning of the City of Chicago; Thomas E. Keane, former alderman of the 31st Ward; the City Council of the City of Chicago and the Board of Election Commissioners of Chicago. The three suits were consolidated for all purposes and another group of five voters from the 42nd and 43rd Wards (the Pillman plaintiffs-intervenors) and the United States were granted leave to file intervening complaints. Neither the United States nor the Pillman plaintiffs are involved in this appeal. The individual defendants, Byrne, Murphy and Keane, were dismissed at the end of plaintiffs' case (Tr. 2448-55), and that dismissal has not been appealed.

The trial lasted from October 9 through December 7, 1982. On December 21, 1982, District Judge Thomas R. McMillen delivered an oral opinion from the bench. The court rejected plaintiffs' fourteenth and fifteenth amendment claims finding that the motivation for the adoption of the 1980 redistricting map by the City Council "was not based on the intent or purpose of discriminating against any minority group," but, rather, the reason "was to preserve the incumbencies of those members of the City Council who were voting on the map" (Tr. 4083). The court did, however, find a violation of section 2 of the Voting Rights Act, as amended in 1982, because the "total result" of the map was "unfair" and ordered the defendants to draw a new map revising four wards, although in fact seven wards were changed in the court-approved

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map. Tr. 4107, 4112-13. On December 23, 1982, defendants presented their revised map, which the court adopted on December 24, 1982, over objections of the black and Hispanic plaintiffs. Plaintiffs presented a motion for modification which was denied on May 12, 1983.

Plaintiffs alleged, as they now argue on appeal, that the City Council map caused dilution in minority voting strength through four techniques--fracturing, packing, retrogression and boundary manipulation. The trial court, however, rejected most of these claims (Tr. 4100-05) and found the City Council map unfair only in that it caused retrogression from the nineteen majority black wards in 1980 under the 1970 map to seventeen majority black wards under the new 1981 map. 2 It therefore ordered that a black majority be restored to the 37th and 15th Wards (Tr. 4107). The court also determined that there should be four majority and one plurality Hispanic wards (Tr. 4112-13).

Several important principles underlying the district court's decision should be re-emphasized. First, the district court held that protection of incumbencies--even when accomplished by purposeful manipulation of the racial composition of the voting unit--does not constitute deliberate discrimination. Second, in determining a section 2 violation, the district court said that only the overall city map and, in particular, only retrogression on a "city-wide scale" need be examined; the situation within particular wards and "retrogression" in the size of a majority within individual wards need not be considered. Such phenomena as packing, fracturing and boundary manipulation were also deemed to require no consideration. Third, the district court said that voting age population rather than total population figures should be utilized in determining the relative racial composition of a ward for remedial purposes. Fourth, the court found that a simple majority (i.e., more than 50%) of voting age population is the only criterion to be used in determining whether a particular minority has a reasonable opportunity to elect a candidate of its choice.

On appeal, plaintiffs-appellants have requested that we order the district court to devise a new map which remedies the alleged dilution of minority voting strength through manipulation, packing...

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