Skolnick v. State Electoral Board of Illinois

• Decision Date: 15 November 1971
• Docket Number: No. 69 C 755.,69 C 755.
• Citation: 336 F. Supp. 839
• Parties: Sherman H. SKOLNICK et al., Plaintiffs, v. STATE ELECTORAL BOARD OF ILLINOIS, Defendant, William L. Springer et al., Intervenors.
• Court: U.S. District Court — Northern District of Illinois

336 F. Supp. 839

Sherman H. SKOLNICK et al., Plaintiffs, v. STATE ELECTORAL BOARD OF ILLINOIS, Defendant, William L. Springer et al., Intervenors.

No. 69 C 755.

United States District Court, N. D. Illinois, E. D.

September 21, 1971.

Order November 5, 1971.

Dissenting Opinion November 10, 1971.

Memorandum November 15, 1971.

COPYRIGHT MATERIAL OMITTED

Sherman H. Skolnick and others pro se.

William J. Scott, Atty. Gen. of Ill., for defendant.

Jerome H. Torshen, Ltd., Chicago, Ill., for intervenors, W. Robert Blair, Henry J. Hyde and Edward Madigan.

Before CASTLE, Senior Circuit Judge, CAMPBELL, Senior District Judge, and DECKER, District Judge.

DECKER, District Judge.

This is the latest chapter in the quest to apportion Illinois' twenty-four Congressional districts so that they comply with the constitutional mandate of one man one vote. Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). In 1961 the Illinois General Assembly established districts on the basis of population figures derived from the 1960 decennial census. Ill.Rev.Stat. ch. 46, § 156f.1. The sizes of the districts varied substantially, the largest having a population almost twice as great as the smallest. The population disparity in the 1961 map was challenged in the state court, and in People ex rel. Scott v. Kerner, 32 Ill.2d 539, 208 N.E.2d 561 (1965), it was held unconstitutional. Jurisdiction was retained in order to oversee the drawing of a provisional map for the 1966 Congressional election which complied with the Constitution.

At the time the state court declared the 1961 map unconstitutional, there was pending in this court, before the same panel of three judges as is now convened, a suit to compel the reapportionment of Illinois' Congressional districts. With the aid of the parties to the litigation, this court adopted a provisional map which was to be used for the elections beginning in 1966. Kirby v. Illinois State Electoral Board, 251 F.Supp. 908 (N.D.Ill.1965). The Illinois Supreme Court gave its approval to that plan. People ex rel. Scott v. Kerner, 33 Ill.2d 460, 211 N.E.2d 736 (1965). It was drawn up largely on the basis of the 1961 map, the court using the existing twenty-four districts as a nucleus, and then modifying district lines to comply as nearly as practicable with the constitutional requirement of numerical equality. The result was a plan in which the population of the largest district was 7.5 per cent above the average district, and the smallest district was 6.1 per cent below the average district.

Following the 1969 Supreme Court decisions in two Congressional reapportionment cases, Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), plaintiffs Sherman H. Skolnick and Harriet Sherman filed the present lawsuit to test the constitutionality of the 1965 plan. The case was heard by the same three-judge panel which participated in the Kirby case. After considering the 1965 plan in relation to the requirement of mathematical exactness as set out in Kirkpatrick and Wells, the court held that it was unconstitutional. Skolnick v. Illinois State Electoral Board, 307 F.Supp. 698 (N.D.Ill.1969) (per curiam). The court permitted the 1970 Congressional election to proceed under the 1965 plan. Looking forward to the 1972 election, it issued the following order:

"This court assumes that the General Assembly of Illinois will, during its legislative session in the first half of 1971, enact a complete and constitutionally valid plan of reapportionment for election of Members to the United States House of Representatives from Illinois. Defendant is hereby ordered to present to this court on or before July 1, 1971 such duly enacted plan of reapportionment. Upon failure so to do this court shall undertake appropriate relief." 307 F. Supp. at 700.

However, a new map was never adopted by the Assembly. Representative Edward Madigan, the Chairman of the House Committee on Reapportionment, testified that a map drawn up for his committee was approved by the House of Representatives on June 28, 1971, by the margin of 148-1. The Senate adjourned on June 30, 1971, however, without taking any final action on the House-approved bill. Because the legislature failed to adopt its own map, it fell upon this court to effect a constitutionally-acceptable reapportionment scheme.

Plaintiffs Skolnick and Sherman, appearing pro se, submitted a proposed map to the court for its consideration. Defendant Illinois State Electoral Board had no map of its own, since the legislature had not adopted one. Therefore, upon the invitation of the court, interested parties were permitted to intervene and submit proposed maps. One party was the Illinois Congressional Delegation, representing the twenty-four incumbent members of Congress from the State of Illinois. Another map was presented by Mr. Aram A. Hartunian, appearing pro se. The final intervening group was comprised of Representatives W. Robert Blair, Henry J. Hyde and Edward R. Madigan of the Illinois General Assembly. Their map was, with one minor exception, the same as the one passed by the Illinois House and introduced into the Senate earlier this year.

The court considered only the maps submitted by plaintiffs and the above-mentioned intervenors. However, it permitted other interested parties to file observations and suggestions with regard to the four proposed plans. It received such suggestions from the Illinois Republican State Central Committee and the Republican Central Committee of Cook County, from the Illinois Democratic State Central Committee and the Democratic Central Committee of Cook County,¹ and from the Democratic Chairmen of the 22nd Congressional District. Finally, the court received the comments of Mr. James Chapman, representing the Chicago Bar Association, the Amicus Curiae. Mr. Chapman's comments did not receive the prior approval of the Chicago Bar Association, thus they are to be considered as his personal remarks only.

A hearing was conducted in this matter on September 2 and 3, 1971. On the first day, the four map proponents presented evidence and made arguments in support of their respective plans. On the second day, the defendant, the amicus, and the intervenors who did not submit maps were permitted to offer their arguments in support of and in opposition to the four maps. By the end of the hearing it had become clear that each of the four maps presented population districts which were substantially equal, and that the variations in district boundaries were explainable by the fact that each map-maker had taken certain nonpopulation factors into account in drawing up his map.

In one of the most recent cases on the subject of Congressional reapportionment, Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), the court rejected the notion that there was a percentage population variance which could be considered de minimus. In order to justify any population variance, no matter how small, the court required the proponent of a particular map to demonstrate either that the variances were unavoidable despite a good-faith effort to achieve absolute equality, or that there was some factor which justified the variances.

It became evident at the hearing that the primary factor influencing each map-maker in drawing up his respective map was equality of population. In no case did any of the proposed districts vary more than one per cent above or below the mathematical average of 463,082 inhabitants.² Other factors were clearly secondary. By coming within one percentage point of the mathematical average, each of the four clearly made a good-faith effort to avoid any variance and therefore complied with Kirkpatrick. Obviously, no map can achieve absolute mathematical perfection. Changes have already occurred since the taking of the census by reason of births, deaths, and population mobility. However, within the context of the figures supplied by the Bureau of the Census, the variances in each plan are so small that the only way to distinguish among them is to consider what non-population factors went into the drawing of each.

Plaintiff Skolnick and his expert witness testified that the only considerations other than population which governed the drawing of his map were that the districts be compact and contiguous. However, there is no requirement of contiguity and compactness imposed by federal law. See Wood v. Broom, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131 (1932); Preisler v. Secretary of State of Missouri, 257 F.Supp. 953, 955, n. 2 (W. D.Mo.1966), aff'd per curiam, 385 U.S. 450, 87 S.Ct. 613, 17 L.Ed.2d 511 (1967); Meeks v. Avery, 251 F.Supp. 245, 250 (D.Kans.1966); Park v. Faubus, 238 F. Supp. 62, 65, n. 2 (E.D.Ark.1965); Clark v. Carter, 218 F.Supp. 448, 449 (E.D.Ky.1963).

The shortcoming of plaintiffs' map is that it ignores traditional boundaries of political subdivisions for the sole purpose of drawing compact, contiguous districts. Certainly compactness and contiguity are desirable features. Indeed, all four maps have districts which are compact and contiguous. However, they are not required by the Constitution, and to ignore effective representation for the sake of district symmetry is not proper. There are values to be preserved in drawing districts which in some way attempt to follow boundaries of cities, townships, counties, etc. It became apparent upon cross-examination of plaintiffs' expert that, at least in Cook County, some effort was made to observe traditional boundaries of political subdivisions. However, plaintiffs' too rigid alherence to the boundaries of census tracts, without regard to traditional political boundaries, requires that their proposed map be rejected.

The Hartunian map is concerned primarily with one non-population factor, the encouragement of closely-contested, or "swing" districts. Mr. Hartunian has...