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JAMES R. KING, Plaintiff, v. STATE BOARD OF ELECTIONS, DAVID E.MURRAY, LAWRENCE E. JOHNSON, HANNELORE HUISMAN, JUDTTH

JONES, LANGDON D. NEAL, THERESA M. PETRONE, WANDA REDNOUR,Defendants, and BOBBY RUSH, TIMUEL BLACK, AL JOHNSON, ELVIRA

CARRIZALES, NEOMI HERNANDEZ, and THE CHICAGO URBAN LEAGUE,and the UNITED STATES OF AMERICA, Defenda n t-Intervenors.

No. 95 C 827

UN ITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OFILLINOIS, EASTERN DIVISION

979 F. Supp. 619; 1997 U.S. A ist. LEXIS 11 479

August 1 , 1997, DecidedAugust 5, 1997, DOCKETED

SUBSEQUENT HISTORY: Affirm ed without opinionby King v. Illinoi s Bd of Election , 522 U . S . 1087 , 1 39L . Ed. 2d 866 118 S. Ct. 877 1998 U . S . LEXIS 6501998

PRIOR HISTORY: King v . State Bd . of Elections, 979F. Supp 582 1996 U S Dist. LEXIS 3195 (N D Ill.,1996

DISPOSITION: [ "* t] Cou rt affirmed its earlier rul-ing that the Fourth District passes constitutional musterand denied plaintiff s motion to reconsider thi s court ' soral ruling deny i ng plaintiffs motion for an additionale videntiary hearin g.

CASE SUMMARY:

PROCEDURAL POSTURE : Plaintiff voter challengedthe validity of a votin g district drawn to include concen -trations of Hispanic voters, s o as to remedy the past ef-fects of racial discrimination . On remand from theUnited States Supreme Court , a three-judge panel of thecourt reconsidered its earlier finding that the district didnot violate the Equal Protection Clause . The voter al s ofi l ed a m oti on for t h e c ou rt t o re con s ider a denial of amotion to reop e n evidence.

OVERVIEW: The district under rev iew connected twoHispanic population centers in the northern and southernparts of Chicago by a narrow band on the weste rn side ofthe city . On reconsideration , the court applied strict scru-tiny to the di strict to determine whether it violated theEqual Protection Clause and held that the distr ict must beproved to be narrowly tailored to serve a compellingstate interest. The court held that compli an ce with federalantidiscrimination laws did not justify race-based dis -tricting where the challenged district was not reasonablynecessary under a constitutional reading and applicationsof those laws , but that race-based remedies could be jus-tified to cure the effects of past discrimination where , ashere, there was a strong basis in evidence of the harmbeing remedied . The court reaffirmed that remedying apotential violation of or achieving compliance with § 2of the Voting Rights Act constituted a compelling stateinterest . The court found that the racial group was geo-graphicall y compact , politically cohesive and potentiallybarred by the majority from electing its candidate andth at this district was narrowly tailored Co meet a legiti-mate interest .

OUTCOME : The court determined that it already hadthe pertinent factual data and denied a motion to recon-s ider its denial of a motion to reopen the evidence . Thecou rt concluded that under the s tandards s et Porth in re-ce nt d ecisions , the challenged di s trict still pas sed con s ti -

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tutional muster becau se its cons ideration of race was nomore than re asonably necessary to fulfill its remedialpurpose .

[HN3]Remedying a potenti a l violation of or achievin gcompliance with § 2 of the Voting Ri ghts Act constitutesa compelling state intere st .

CORE TERMS: votin g, congre ssional districts , stateintere st, voting rights, tailoring, block, remedial , com-pact , bloc, map , strict scrutiny , reasonably necessary,candidate , pre cinct , s pl i t , evidentiary hearing, redi strict-i ng, districting, anticipated , remedying , concentration ,election , census, citation s omitted, race-based , narrowly,tailored , voters, voting age , constitutional muster

LexisNexis(R) T Ieadnotes

Constitutional Law > Equal Protection > Level of Re-viewConstitutional Law > Equal Protection > Scope of Pro-tectionConstitutional Law > Equal Protection > Voting Dis-triets & Representatives[HN1 ] If race was a factor in the configuration of a dis-trict, the court applies strict scrutiny to the district todetermine whether it pass es constitutional muster underthe Eaual Protection Clause . In order to survive strictscrutiny , the district must be proved narrowly tailored toserve a compelling state i nterest .

Civil Rights Law > Voting Rights > General OverviewConstitutional Law > Elections, Terms & Voting >Race-Based Voting RestrictionsConstitutional Law > Equal Protection > Scope of Pro-tection[HN2]There is a distinction between what the VotingRights Act permits and what it requires. Compliancewith federal antidiscriminat i on laws cannot justify race -based districting where the challenged district is not rea-sonably necessary under a constitutional reading andapplications of those laws . Race-based remedies may bejustified to cure the effects of past discrimination wherethere is a "strong basis in evidence" of the harm beingremedied . This compelling state interest extends toremedying past or present violations of federal statutesintended to eliminate discrimination in specific aspectsof life .

Constitutional Law > Equal Protection > Scope of Pro-tectionConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernneent ,s > Federal Government > Elections

Constitutional Law > Equal Protection > Level of Re-viewConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Federal Government > Elections[HN4]The narrow tailoring prong of the strict scrutinyanalysis permits a limited degree of leeway in drawingremedial districts , prov ided that (1) there exists a strongbasis in evidence of the three Gingles prerequisites and(2) the race-based district substantially addresses theviolation of § 2 of the Voting Rights Act.

Constitutional Law > Equal Protection > Level of Re-viewConstitutional Law > Equal Protection > Voting Dis-tricts & RepresentativesGovernments > Federal Government > Elections[HN5]A distr ict under § 2 of the Voting Rights Act thatis reasonably compact and regular, taking into accounttraditional redistri cting principles such as maintainingcommunities of interest and tradit i onal boundaries, maypass strict scrutiny without having to defeat rival com-pact districts in endless "beauty contests" if it does notsubordinate traditional districting principles to race sub-stantially more than is reasonably necessary to avoid § 2liability.

Civil Rights Law > Voting Rights > General OverviewConstitutional Law > Equal Protection > Scope of Pro-tectionConstitutional Law > Equal Protection > Voting Dis-tricts & Representatives[I-IN6]In order to pass constitutional muster under theEqual Protection Clause, the majority-minority districtmust, at a minimum, remedy the anticipated violation orachieve compliance with § 2 of the Voting Rights Act . A§ 2 district is narrowly-tailored if (1) at a minimum , thedistrict remedies the anticipated violation or achieves § 2compliance , and (2) its consideration of race is no morethan reasonably necessary to fulfill its remedial purpose .

Civil Rights Luw > Voting Rights > RemediesConstitutional Law > Equal Protection > Scope of Pro-tectionGovernments > Local Governments > Elections[HN7]A dis trict cannot be held to remedy a potenti a lviolation of § 2 of the Vot ing Ri ghts A ct i f the min ority

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group contained there in is not (1) geograph i cally com-pact ; (2) politically cohesive; and (3) potentially barredby majority bloc voting from electing its preferred can-didate , ab s ent the ex istence of the di s tricttn addition tothes e three factors, th e court considers the "totality of thecircumstances" test to determine whether the district iswarranted under § 2 .

Constitutional Law > Equal Protection > Scope of Pro-tectionConstitutional Law > Equal Protection > Voting Dis-tricts & Reyresentatives[HNS]In the absence of evidence that districts are uncon-stitutionally drawn , the preservation of existing districtsis a valid secondary consideration. The following arerecognized as relevan t secondary criteria : compactness,contiguity, preservation of the integrity of county andmunicipal boundaries, maintenance of the cores of exist-ing districts, preservation of cultural, social, and eco-nom ic communities of interest and political and racialfairness .

COUNSEL: For JAMES R KING, plaintiff: DouglasEdward Markham , Attorney at Law , Houston, TX .

r i an , (See above), For LANGDON D NEAL, d efendant :Limo T . Cherian , (See above) . For THERESA MPETRONE , defendant : L , imo T . Cheri an, (See above) .For WANDA REDNOUR, defendant : Limo T . Cheri an ,(See above) .

For J DENNIS HASTERT, intervenor: Charles FrankMarino , David M . Marino , A tt orney at Law, Chicago ,IL. For HENRY J HYDE, intervenor: Charles FrankMarino, (See above), David M. Marino , (See above) . ForPHILIP M CRANE, intervenor : Charles Frank Marino,(See above) , David M . Marino , (See above) . For JOHNEDWARD PORTER, intervenor : Charles Frank Marino,(See above) , David M . Marino , (See above). For HAR-RIS W FAWELL, intervenor : Charles Frank Marino ,(See above) , David M. Marino, (See above). [ * *3] ForTHOMAS W EWING, intervenor: Charles Frank Mar-ino, (See above) , David M. Marino, (See above) . ForRAY LAHOOD, intervenor: Charles Frank Marino, (Seeabove), David M. Marino, (See above) . For DONALD AMANZULLO, intervenor : Charles Frank Marino, (Seeabove). For JERRY WELLER, intervenor : Charles FrankMarino , (See above), David M. Marino , (See above) . ForMICHAEL PATRICK FLANAGAN, intervenor : CharlesFrank Marino , (See above) , David M. Marino, (Seeabove) .

For BOBBY RUSH , intervenor : Joan Cagen Laser,United States Attorney's Office , Chicago, IL . Judson H .Miner, Miner Barnhill & Galland, Chicago, IL. ForTIMUEL BLACK, intervenor: Joan Cagen Laser , (Seeabove) . Judson H. Miner, (See above) . For AL JOHN -SON , intervenor : Joan Cagen Laser, (See above). JudsonH . Miner, (See above) . For ELVIRA CARRIZALES,intervenor: Joan Cagen Laser, (See above) . Maria Val-dez, Mexican American Legal Defense & EducationalFund, Chicago , IL . For NEOMI HERNANDEZ, interve-nor: Joan Cagen Laser , (See above) . Judson H. Miner,(See above) . Maria Valdez , (See above) . For CHGOURBAN LEAGUE, intervenor : Joan Cagen Las er, (Seeabove). Judson H. Miner, (See above). Clyde Murphy ,Chicago Lawyers' Committee for Civil Rights, Chicago ,IL. Martha J . Avery , Robins, Kaplan, Miller & Ciresi ,Chicago , IL . Brenda Wright, Lawyers' Committee forCivil Rights, Washington, [**2] DC. Mark StephenGrotefeld, Provizer , Phillips , Grotefeld & Denenberg,P .C . , Chicago , IL . For CHICAGO URBAN LEAGUE ,intervenor : Joan Cagen Laser, (See above) .

For STATE BOARD OF ELECTIONS , defendant: LimoT . Cherian , Illinois Attorney General's Office, Chicago ,IL. For DAVID E MURRAY, defendant : Limo T . Che-rian , (See above) . For LAWRENCE E JOHNSON , de-fendant : Limo T . Cherian, (See above). For HAN-NELORE HUISMAN, defendant : Limo T . Cherian, (Seeabov e). For JUDITH JONES , defendant : Limo T . Che-

JUDGES: Michael S. Kanne, United States CircuitJudge. Charles R. Norgle, Sr., United States DistrictJudge. David H. Coar, United States District Judge

Ol' TNION BY: Michael S. Kanne; Charles R. Norgle,Sr.; David H. Coar

OPINION

[*6201 MEMORANDUM OPINION AND ORDER

This matter is before the cou rt on remand from theSupreme Court for further consideration in light of Shawv . Hunt, 517 U S 899, 116 S. Ct . 1894, 135 L. Ed. 2d207 (1996) (hereinafter " Shaw II"), and Bush v. Vera,135 L. Ed. 2d 248, 517 U.S . 952, 116 S. Ct. 1941 (1996)(hereinafter "Bush"). King v. Illinois Bd. of Elections ,U . S . , 117 S . Ct . 429 , 136 L. Ed. 2d 328 (1996). Pursu-ant to 28 U . S . C . 2284(a),284(a) , the undersigned three-judge[ ** 4 ] panel was appointed to preside over this litigation .

Upon remand, plaintiff filed a motion for an addi-tional evidentiary hearing . This court den i ed the re-quested relief by order of April 4, 1997. Plaintiff hassince moved this court to reconsider i ts ruling on thatissue . Briefs have been filed both on the remand and onplaintiffs motion for an additional evidentiary hearing.Thus , this cas e i s before th e court on both i s sue s_ Havingcarefu ll y examined Shaw II and Bush and th e mem o -

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randa and arguments presented by the part i es, thi s cou rtfind s both cas e s suppo rt ive of its analysis and accord-ing ly affirm s its previous decision in King v . State Bd . ofE l ections , 979 F . Supp . 582 , 1996 WL 130439 (N . D . Ill .1 996 (hereinafter " King P') . Moreove r , for th e rea son sstated in this memorandum opinion , plaintiffs motion toreconsider is d en i ed .

It is imp ortant to note at the outset , however, thatthis op i nion merely supplements the subject of the re-mand and its purpose is to determine what impact, if any ,Shaw II and Bush have on this court's prior analyses .Hopefully , this opinion will provide a roadmap of King Ithat illustrates that King I is in accord [ ** 5] with ShawII and Bush . To this end, this opinion w i ll discus s therelevant holdings of each of those opinions .

DiscussionSince this court issued its ruling in King I , the Su-

preme Court has further developed its constitutional ju-risprudence with respect to voting rights in two pivotaldecisions : Shaw II and Bush . These decisions of evendate have markedly changed and elucidated the land -scape of voting rights litigation and legislation . As a re-sult, this court has undertaken a fu ll review of the under-lying record as well as the briefs filed upon this remand .The court has likewise carefully considered the evidencesubmitted upon the plaintiffs offer of proof in support ofhis motion to reopen the evidence. ' Nothing in this re-study of the [ * 621] record has revealed any error in thestatement of facts set forth in King I. Rather, the courtremains of the view that the facts , other than those to beinferred , are correctly set forth in its prior opinion .

I Plaintiff proposed to present the court with thefollowing:

(a) Names an d addresses of vot-ers who lost their ballot secrecy inspecific precincts in Chicago andCook County; for example , twovoters residing in the 400 block ofNoble St. in the 1st Ward , precinct55 in the March 19 , 1996 primarywere the only two of 139 Democ-rats in the precinct who wereplaced in Congressional District 7instead of Congressional District4 ; currently Plaintiff has a total ofthirty (30) such instances occur-ring in 1996 , 1994 and 1992 Gen -e ral Congressional Elections andthe 1 992 Primary Congre ss ionalElecti on .

(b) Administrative confusion ;for example , that occurrin g inProviso prec i nct 13 2, in the west-ern s e c t i o n o f North Rivers id e,where voters on the 9000 block ofForest View Dr i ve have been in-correctly assi gned to Congres-sional Distr i ct 4 for the last (3)e lection cycl e s .

(c) Fractured neighborhoods ,including the testimony of Dr.John Pelissaro, an expert witnessin the Barnett case, regarding thecontinued re liance by the Ci ty andother governmental bodies uponmaps of the community areas andneighborhoods of the City of Chi-cago .

(d) Evidence of the split po-litic al subdivisions by Congres-si onal plans in the 1980's and1970's in contra st to the Hastertplan .

(e) While evidence was of-fered that Hispanic citizen s do notcomprise a majority of the present4th Congressional District , Plain-tiff is now prepared to offer fur-ther evidence of the Citizen Vot-ing Age Population introduced to as ister court in the Barne tt proceed-ing . This evidence would includethe testimony of CongressmanGutierrez that he knew in 1991that Latino voters were not a ma-jority of the district.

( f) Evidence that African-Americans can e lect their candi-date of choice in far less rac i al dis-tricts than the present 7th Con-gressional District ; this would in-clude data of recent victories byA frican-American congressmen indistricts with less than 50% VAPAfrican -Americans .

Pl. Motion at 34

[** 6] Notwithstanding the accuracy of the factualrecord, ce rt ain comment s upon the law are in order. In -deed, the necessi ty for or the propr iety o f reop e nin g therecord can better be judged fol lowing som e ana l y s is o fboth the le gal and factual i ss u es inv ol v ed i n thi s rem and .

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Moreover , s uch analysis affirms this cou rt's e arlier con -clusion that the Fourth Congres sional Di s trict (hereinaf-ter the "F'ou rth Di s trict") i s con stitutionally sound .

1. The Import of Shaw lI and Bush to King I

Shaw 11 and Bush have a direct impact on thiscourt's strict s crutiny analy s i s in K i ng I . Although bothShaw iI and Bush further deve lop the analysi s thatshould apply to each aspect of voting rights liti gation ,(e . g, the Gingles test and the "predominance of rac e "test--especially, wi th respect to § 2 violations), none ofthese developments alters this cou rt's determination thatstrict s crutiny appl i es . Rather, on remand, what is impli-cated by the two more recent decisions is this court'sstrict scru tiny analysis, and more speci fically, the issueof whether the Fourth Congressional District is a nar-rowly tailored response to prior discrimination . In King[* * 7] I , this court set forth a strict scrutiny analysiswhich supported its conclusion that the Fourth District isconstitutional . A review of that analysis in light of ShawII and Bush reveals that no add itional examination isrequired .

A . Compellin g State Interest

In addition to finding that there i s no dispute that[HNl ]race was a factor in the configuration of the FourthDistrict , this court concluded that "racial eonsiderationspredominated . " King I , 1996 WL 130439 * 19 , 22 . Ac-cordingly , this court applied strict scrutiny to the FourthDistrict to determin e whether it passed constitutionalmuster under the Equal Protection Clause .

In order to survive strict scrutiny , the Fourth Districtmust be proved narrowly tailored to serve a compellingstate interest . The compelling state interest pro ffered bythe Hastert court was remedying a potential violation ofor ach i eving compliance with § 2 of the Voting RightsAct . Id . at * 22 . Recognizing that the Court has neverexpressly held that remedying a potential violation of orachieving compliance with § 2 , standing alone , is a com-pelling state interest, this court advanced argumentsbased on earlier Supreme Court [ * "8] deci s ions on race-based remedies in support of its v iew that such an inter-est is compelling . Specificall y, this court asserted that theCourt's recognition of [HN2]a distinction between " ' whatthe [Voting Rights Act] permits and what it requires"'and its resulting conclusion that "'compliance with fed -eral antidiscrimination laws cannot justify race -baseddistracting where the challenged district was not rea-sonably necessary under a constitutional reading andapplicat i ons of those laws"' demonstrate that race-basedremedies may be appropriate . King 1, 1996 WL 130439 ,at *26 (quoting Shaw v . Reno, 509 U S 630, 653, 113 S.Ct . 2816, 2830, 125 L . Ed . 2d S l l(1993) ; Voinovich v .Qui Ite ,r 507 U . S . 1 4 6.1 5 3 I l 3 S Ct 1149 1156 1 22 L

Ed . 2d 500 (1993)). Moreove r , n o ting th e Court's ac -knowled gment of justifiable race-based remedi es to curethe effects of past discrimin at i on where there is a "strongbas is in ev i dence" of the h arm being remedied , thi s cou rtreasoned that [ * 6 221 " this compe ll ing state intere st ex-tends to remedying past or present violations of federalstatutes intended to el i minate d iscrimination in speci fi caspects of life." Id. (citing Quilter v . Voinovich, [ ** 9]912 F. Supp . 1006, 1020 (N.D . Ohio 1995) (citationsomi tted); Shaw v . Hunt, 861 F . Supp. 408, 437(E.D.N.C. 1994)).

In Bush , Justice O'Connor (in concurrence) providedadditional support for these propositions . She assertedthat compliance with § 2 of the Voting Rights Act and , inparticular, the results test, is a compelling interest . Infavor of that position she wrote :

We should allow States to assume theconstitutionality of § 2 of the VotingRights Act , including the 1 982 amend-ments.

This conclusion is bolstered by con-cerns of respect for the authority of Con -gress under the Reconstruction Amend-ments . See Rome v . United States, 446U.S. 156 , 179 , 100 S . Ct . 1548 , 1562-1563, 64 L . Ed. 2d 119 (1980). The re-sults test of § 2 is an important part of theapparatus chosen by Congress to effectu-ate this Nation's commitment "CO confrontits conscience and fulfill the guarantee ofthe Constitution" with respect to equalityin voting . S . Rep . No . 97-417 , p . 4 (1982),U . S . Code Cong . & Admin. News 1982 ,pp. 177, 181. Congress considered the test"necessary and appropriate to ensure fullprotection of the Fourteenth and FifteenthAmendments rights." Id., at 27 , U . S .[ " * 10 ] Code Cong . & Admin . News1982, p . 204 . It believed that without theresults test, nothing could be done about"overwhelming evidence of unequal ac-cess to the electoral system , " id ., at 26,U . S. Code Cong . & Admin. News 1982 ,p . 204 , or about "voting practices andprocedures [that] perpetuate the effects ofpast purposeful discrimination , " id ., at 40 ,U . S Code Cong. & Admin . News 1 982,p . 218 . And it founded those beliefs onthe sad reali ty that " there still are somecommunities in our Nation where racialpol i tics do dominate the e lectora l proc-ess . " Id ., at 33 , U . S . Code Cong. &Adm i n . N ews 198 2, p . 21 1 . Res pec t for

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those le gislative conclusion s mandatesthat the § 2 results te st be accepted andapplied unles s and until current lowercou rt precedent i s re v ersed and it i s h e ldunconstitutional .

In my view , therefore , the States havea compelling interest in complying withth e results test as this Court has inter-preted it.

Bush, 517 U.S. 952, 116 S. Ct. at 1970 (O'Connor, J.,concurring) (emphasis added). Similarly, in a lengthydissent in which Justices Ginsburg and Breyer join, Jus-tice Stevens refers to the Court's assumption that compli-ance with [**I l ] § 2 of the Voting Rights Act is a com-pelling state interest as "perfectly obvious." Id. at , 116S. Ct. at 1989 (Stevens, J., dissenting). These commentssupport this court's conclusion that remedying a potentialviolation of or achieving compliance with § 2 is a com-pelling state interest. Indeed, in King I this court wrote:

Because the purpose of Section 2 is "tohelp effectuate the Fifteenth Amendment'sguarantee that no citizen's right to voteshall 'be denied or abridged . . . on ac-count of race [or] color ...", ... state ac-tors have frequently argued that a raciallybased redistricting remedy under Section2 serves a compelling government inter-est.

In Shaw , the Court recognized that a sig-ni fi cant state interest exists in eradicatingthe effects of past racial discrimination,provided the State has a "strong basis inevidence for concluding that remedial ac-tion [is] necessary . " . . . . This compellingstate interest extends to remedying past orpresent violations of federal statutes in-tended to eliminate di s crimination in spe-cific aspects of life .

King I , 1996 WL 130439 , *26 (citations omitted). TheKing I opinion [ ** 12 ] then goes on to acknowledge thestrong basis in evidence that the Haste rt cou rt had "bothfor finding a § 2 violation and for adopting a redistrictingplan that remedied that violation . " Id. at *2 7. Thus, inlight of the statements of Justices O'Connor and Stevensand the absence of any contrary holding by a majority ofthe Court, th i s c ou rt affirms its prior analysis that[HN3 ] remedy ing a pot enti a l violation of or achieving

compl i ance with § 2 constitutes a compe lling state inter-est.

[*623] B . Narrow Tail o rin g

The true s i gnificance of the Court ' s remand of KingI become s evident upon review of this cou rt 's discussionon the narrow tailorin g of the Fourth District. In Shaw IIand Bu sh the Supreme Court defines the parameters ofnarrow tai l oring in an effort to guide lower courts in theirevaluation of challenged legislative or judicial action inthe voting rights context. Although this court did notperform analy s es that expressly reflect the newly articu-lated narrow tailor ing inquiry in King I , it drew all of theconclus i ons necessary to support its holding within thatframework .

In Bush , Justice O'Connor noted that [HN4]the nar-row tailoring prong permits "a limited [ * *13] degree ofleeway" in drawing remedial districts , provided that (1)there ex i sts a "strong basis in evidence" of the threeGingles prerequisites and (2) the race-based distr ict" substantially addres ses the § 2 violation." 116 S. Ct. at1 960-61 . To be sure , Bush makes clear that the shape ofthe district is relevant Co the narrow tailoring inquiry . Id.at 1962 . However, Bush rejected as "impossibly strin-gent" the view that "a district must have the least possi -ble amount of irregularity in shape , making allowancesfor tradit ional districting criteria ." Id . Thus, [HNS]"a § 2district that is reasonably compact and regular , takinginto account traditional redistricting principles such asmaintaining communities of interest and traditionalboundarie s , may pass strict scrutiny without having tod efeat rival compact distr icts [] in endless 'beauty con-tests"' if it does not "subordinate traditional districtingprinciples to race substantially more than is 'reasonablyneces sary to avoid § 2 liabili ty. " Id , at 1961.

Shaw II further defines this standard in holding that,[HN6]in order to pass constitutional muster under theEqual Protection Clause, the majority-minority district[ ** 14 ] "must, at a minimum, remedy the anticipatedviolation or achieve [ § 2) compliance . . . " . 116 S . CL at1905 . Read together , Shaw II and Bush reveal the fol-lowing precept for narrow tailoring inquiries under § 2:A § 2 di strict i s narrowly-tailored if (1) at a minimum ,the district remedies th e anticipated violation or achieves§ 2 compliance, and (2) its consideration of race is nomore than reasonably necessary to fulfill its remedialpurpose .

In concluding that the Fourth District was narrowlytailored , this court deferred to the Hastert cou rt's discre-tion i n adopt i ng remedial plans and its "exacting consti-tutional review " in determining the best remedial meas-ure . King l, 1996 WL 13043 9 , at *28 . In add it io n , thi scou rt found that th e Fou rt h District "was properl y pro-

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po rtioned Co the nature of the v io latio n ." Id . Specificallythis cou rt s tated ,

discus s ion o f the Hastert Court 's § 2 an alysis , which thi scourt adopted later in its opinion : '

The [Ha s tei t ] co u rt a d o pt e d a s in g le ma-j ori ty-minority district which was limitedin size to the minimum number of His-panic res i dents generally believ ed neces-s ary to counteract the e ffects o f racial blocvoting and ensure that the Hispanic elec-torate had a reasonable opportunity toe lect a candidate of its [* * 15] choice. Itfurther determined that the distrScYs ex -traordinary configuration was required topreserve shared communities of interestand protect the three A frican-Americansuper-majori ty districts against impermis-sible re trogression . Under these circum-stances , this court defers to the Hastertcourt's balancing of these concern s andconcludes that it adopted a narrowly tai-lored pl an.

Id.In order to suppo rt thi s conclu s ion in th e wake of

Shaw II and Bush, the record must demonstrate that (i)there was a "strong basis in evidence" for finding thethreshold conditions for § 2 liability ; (2) at a m inimum ,the Fourth District remedies the anti cipated violation orachieves § 2 compliance ; and (3) the district's considera-tion of race is no more than reasonably necessary to ful-fill its remed i al purpose. Having determined that th erewas a "strong basis in evidence " for finding the thresholdconditions for § 2 liability, ' thi s court must show that theFourth District achieves compliance with § 2 or remediesthe anticipated violation thereof and doe s "not subordi-nate traditional dis tr icting principles [ * 62 4] to race s ub-stantially more than 'reasonably necessary ."'

2 See King 1, 1996 WL 130439 , at *27 .

[** 16) [HN71

A distr ict cannot be held to remedy a potential § 2violation if the minority group contained therein is not(I) "geographically compact ; " (2) "politically cohesive ; "and (3) potentially ba rred by majority bloc voting frome lecting its preferred candidate, absent the existence ofthe district . See Bush , 51 7 U . S . , 116 S . Ct. at 1 961 ;Shaw II, 517 U . S . , 116 S . Ct . at 1906 . Thus , as part ofits narrow tailoring i nqui ry, thi s cou rt must rely on itsearlier fi nd i n gs that th e Fourth Di s tr i ct meets these threerequirements. These find i ngs are co nta i n ed in this c ou rt 's

The [Haste rt) cou rt made the followin gfindings of fact to suppo rt its conclusionthat the Chicago/Cook County Hispaniccommunity was "sufficiently large andgeographically compact to constitute as ingle district majori ty. " First , the 1990census repo rted the Hispanic populationin Chicago at 545 , 852, a 29.33% increaseover the 1980 total . Second, "most of theChicago/Cook County Hispanic popula-tion is clustered in two dense enclaves,one on Chicago's near northwest side andone on the near [**17] southwest side ."Third , the two enclaves are less than onemile apart at their closest point. Fourth ,this separation resulted from exogenousphysical and institutional barriers--specifically, the east-west EisenhowerExpressway , the Univers ity of Illinois-Chicago Circle campus, and various ma-jor medical institutions--and thus did notindicate the existence of two distinctcommunities .

To support its conclusion that theChicago/Cook County Hispanic commu -ni ty was politically cohesive, the courtadopted the findings of cohesivenessmade by two federal courts in the early1980s in cases where the Hispanic com-munity challenged discrim inatory redis-tr icting practices at the state and local lev-els. The court fuxther found that the vot-ing bloc patterns of the Hispanic commu-nity also demonstrated its political cohe-siveness . More specifically, the cou rtfound that "single and bivariate regressionanalysis of voting pattern s in Chicagoprecincts demonstrate sign ificant ethnicbloc voting patterns." Finally , the courtfound that the third threshold factor wasfulfilled because the paucity of Hispanicofficials in city and state-wide elected po-litical offices compelled "the finding thatethnic [ ** 18] bloc voting pattern s havethwarted the politi cal interests of the His-panic community . "

Id. at * 9 (citations omi tted) . In additi on to these threefactors , the Haste rt cou rt considered the "totality of thecircumstances " test, also required und er Gingl es, to de-

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term i n e whether the Fourth District was warranted under§ 2 .

Howeve r , rather than making its ownfi ndin gs of fa ct with resp e ct to th ese fao-tors , the [Has tert] court adopted the Sev-enth Circuit's fi ndings concern ing theChicago Hispanic community s et forth inKetchum v . Byrn e, the Section 2 VotingRights Act challenge of the 1982 Chicagoaldermanic redistricting plan . Based on a"judicially recognized history of discrimi-nation, both past and present, against theCh icago Hispanic community and its at-tendant impact on effective political par-ticipation and representation," the Hastertcou rt concluded that an Hispanic majori tydistrict was warranted under Gingles.

Id . at * 9-10 (citation s omitted) .

3 Id. at *26 ("The Hastert court properly held anHispan ic majority district was warranted underSection 2 of the Voting Rights Act . ") .

[ ** 19] These conclusions, in addition to those con-tained in this cou rt 's refutation of several arguments ad-vanced by plaintiff in an effort to challenge the Hastertcourt's findings , are sufficient to establish that the FourthDistrict is narrowly tailored even in light of Bush andShaw II . For example , this court rejected King's argu-ment that the Haste rt court erred in finding that the His-panic community was sufficiently numerous by failing todetermine the proper eligible minority voting population,that is , the total population [ * 625 ] Hispanic c itizens ofvoting age. This cou rt declined to resolve whether theHastert cou rt had an obligation to identify this populationbefore making its finding of numerosity since King didnot "establish[] via competent evidence that the Hispanicciti zen votin g age population falls below fi fty percent."Id . at * 24 . The court further concluded that "regardless ofwhich measure this cou rt uses--total population , votingage population, or citizen voting age population--theHas te rt court properly found that the City of Chi-cago/Cook County community was sufficiently numer-ous to constitute a majority in a properly drawn distr ict .The congressional election [ **20] results of 1992 and1994 serve to confirm this conclusion . " Id . at *24.

lack of cohesion was main l y anecdotal , often incredible ,and wholly ins ufficient to suppo rt the inferences andconclusions King seeks to draw[ , ]" this cou rt concludedthat th e Hastert court's findin g of political cohesivenesswas not clearly erroneous . Id.

Moreover, thi s cou rt a l so resolved that , since 1 991there was no change in c i rcumstances to support a find-ing that white racial bloc voting had decreased. Id . at*25. Rather , this cou rt found that ,

since 1988 , o n ly three Hispanic candi-dates have been elected in citywide elec-tions. Two Hispanic judges were electedin 1988 and 1990; however, both can di-dates won with less than a majority of thevote due to a splintering of votes amongmultiple white candidates . [* *21] In ad-dition, Miriam Santos , an Hispanic , waselected as city treasurer in 1991; however,Ms . Santos had been slated for this posi-tion by the Chicago Democratic Party andshe ran on a slate that included incumbentmayor Richard Daley . Ms . Santos subse-quently ran as an incumbent in 1995 andwas reelected. With the exception of Ms .Santos , the Democratic Party has notslated an Hispanic candidate for alder-man , state senate , state representative, orcongress in any district with a white ma-jority voting age population .

Id. This cou rt also acknowledged that,while Ms. Santos's electoral success

ra i ses hopes for a color-blind slating andelection processes [sic] in the future, theproblems of racial bloc voting and exclu-sion of Hi spanics from the powerfullyimpo rtant s lating process remain . TheHaste rt cou rt thus properly found that thethird Gingles factor was satis fied in 1991 ,and King has not established any presentday change in circumstances that wouldwarrant a contrary finding.

In addition , thi s court addressed the argument thatthe Pue rto Rican and Mexican-American communitieswere not politically cohesive because of their allegedly"different cultural, social, political, and economic con-cems that serve to separate rather than unify the Latinocommunity." Id. Findin g that the "lay opinion elicited byKin g at trial t o dem on strate a nd sub stantiate the claim ed

Id .

In its discussion of whether race predominated in theHaste rt cou rt's configuration of the Fourth District, thiscourt also rejected the argument that its bi zarre shape[ ** 22 ] bel i es compactness . The foll ow i ng i s a pas s agefrom that discus s ion :

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979 F. Supp . 619 , *; 199 7 U. S . Di st . LEXIS 11 479, **

To a ce rtain extent , the clustering ofHispanics into two dense ly populated en -cl ave s provid ed map makers with the lux-ury of resorting to traditional districtin gprincipl e s . It is not surpri s i ng Co find thata comparati vely small district with twodensely packed minority enclaves is (ex-cluding the connector) " more compact( * 626 ] and more respectful of politicalsubdivisions than a larger district drawnto capture a more dispersed minoritypopulation.

+ � +

In this case , a careful analysis of theFourth District's boundaries establishesthat they were drawn to maximize thepercentage of Hispanics located within thedistrict . As King's witness Cleveland testi-fied, the lines of the Fourth CongressionalDistrict follow the concentrations of theHispanic population with "exquisite" de-tail . The distri ct's boundaries were drawnat the census block level , which roughlycorresponds to a city block. While themap makers had to use census block datato ensure population equality , the censusblock data contained racial data at the cityblock level . This data permitted the mapmakers to draw the district's boundarieson a block-by-block [ * *23] basis in orderto maximize the concentration of Hispan-ics within the district. As a result, when amap of the is superimposed over a mapshowing the concentration of the Hispanicpopulation drawn at the census tract level,the district map "includes vi rt ually all ar-eas of high percent H i spanic concentra-tion on the northern . . . part of the City ofChicago as well as vi rtually all of the ar-eas of high Hispanic concentration on thesouthern part of the City of Chicago." Thesame is true when the exercise is repeatedat the census block level based upon thepercentage of IIispanic concentration , andwhen Latino plurality block groups areconsidered . This close correlation is notsurprising given the racial demographicsof the city discussed earlier .

The evidence al s o e stablishes that thebound ari es of the Fourth CongressionalDistrict s pl i t a number of political subdi-

visions, includin g: eight (8) townships--six (6) of which have population in thedistrict; eighteen ( 1 8) municipalities--sixteen (16) of wh i ch had population inthe district ; twenty (2 0) a l dermanic wards;and two -hundred ei ghteen (218) prec i ncts.With the exception of precincts, other Illi-noi s congre s s i onal districts [ **24 ] split acomparable or greater number of subdivi -sions compared to the Fourth District: theThird, Sixth and Eleventh Districts split asimilar number of townships (9, 8 and 7,respectively); the Second, Third , Sixth,Eighth, Eleventh and Thi rteenth Districtsall spl it more municipalities; and the Firstand Seventh Districts split a comparablenumber of aldermanic wards (19 and 15,respectively) . '

Id . at *20-2 1 (footnotes and citations omitted) .

4 The evid ence at trial demonstrated that only4 . 7% of the population of the Fourth District wascontained in the connector. Id. at *29 & n . 49 .Thus , all but a small fraction of the population re-sides within the compact areas which clearly sat-isfy the Gingles criteria . By contrast, only 20% ofthe dis tricts challenged in Shaw II coincided withthe area where the targeted minority group wasallegedly geographically concentr ated. Shaw Il ,at , 116 S. Ct . at 1907. Thus 80% of the districtdid not contain a compact minority population.Id . Moreover , the western connector serves topreserve the shared interests of Latino voters andprotect the three African American majori ty dis-tricts from retrogression . [HN8]In the absence ofevidence that those districts are unconstitutionallydrawn, the preservation of existing districts was avalid secondary consideration . See Good v . Aus-tin , 800 F. Supp. 551 , 554 (E . & W . D . Mich .1992) (emphasis added) ("Federal cou rts haverecognized the following as relevant secondarycriteria : compactness, cont igu ity, preservation ofthe integrity of county and municipal boundaries ,maintenance of the cores of existing districts ,preservation of cultural , social , and economiccommunit ies of interest and polit i cal and racialfairness . ") ; see also White v . Weiser, 412 U S783 793-97 93 S Ct. 2348 at 2348-56 37 L. Ed2d 335 (1973) (establishing incumbency protec-tion as a legitimate districting principle). Thus,the western connector, whil e it contributes to thedi s trict's phy s ical inelegance, does not compe l afindin g that traditional di strictin g fact o rs were

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subordinate to race more than reasonably neces -sary in the configuration of the Fourth District.

[" * 25)5 Althou gh this court resolve d that thi s evi-dence , when applying the "predominance of race "test, " is of extremely limited usefulness becau s ethere is no meaningful standard against which itis to be measured[ , ] " it also held that the datapermit "the uncertain conclusion that compared toother Illinois congressional dis trict s, the map ofthe Fourth Congressional District did not exces-si vely split political subdivisions . " Id. While un-certain , this conclusion offers support that theFourth District is "reasonably compact" whenviewed in comparison to other Illinois congres-sional districts and therefore should not be disre-garded.

Finally , the King I opinion presented evidence thatthe Fourth District , in fact , remedied the anticipated § 2violation by preserving the Latino community's votingstrength through vote consolidation. In thi s li ght , thiscourt wrote :

The redistricting plan adopted by theHastert court has served more than a re-medial role : hindsight reveals that it hasprotected the Hispanic community since1991 from the invidious effects of racialbloc voting that , [** 26] regrettably, re -tains its chokehold on the Chicago elec-torate . Accordingly , this court concludesthat the [ * 627] remedy adopted by theHastert cou rt to redress an establishedSection 2 violation served , and continuesto serve, compelling state interests .

6 Since iCing i was rem anded , plaintiffs coun s elhas directed thi s cou rt 's attention to c ertain recentdecisions of th e Court, e.g. , Lawyer v . Depart -ment of Justice, 138 L. Ed. 2d 669, 117 S . Ct.2 186, 1997 WL 345240 (U . S . 1997) (affirmingdistrict court's decision upholding constitutional-ity of voting di s trict based on low income); Moonv. Meadows 1 17 S. Ct . 2501, 138 L. Ed. 2d1006 , 1997 WL 274 775 (U . S . 1997) (summarilyaffirming district court 's invalidation of Virginia'sthird congressional district for lack of narrow tai-loring) . After reviewing these decisions, thiscou rt fi nds that none of the cited cases affects thedeterminations or conclusions stated herein .

[**27] 11. The Usefulnes s of an Additional Eviden -tiary Hearing

As is apparent from the above discussion, the perti-nent factual data needed to determine the constitutional-ity of the Fourth District was before this court upon itsinitial adjudication of this matter. Neither Shaw II norBush introduces legal guidelines that require additionalfindings of fact by this court. There is therefore no needto reopen the record and conduct an additional eviden-tiary hearing. Accordingly, plaintiffs motion to recon-sider this court's earlier ruling denying an additional evi-dentiary hearing in this matter is denied.

Conc l us i on

For the foregoing reasons , thi s cou rt affirms its ear-lier ruling that the Fourth District passes constitutionalmuster and den i es plaintiffs motion to reconsider thiscourt's oral ruling denying plaintiffs motion for an addi -tional evidentiary hearing .

Id . at * 27 .

In light of the foregoing, this court concludes that ,under both Shaw II and Bush , the Fourth District reme-dies the anticipated violation and achieves § 2 compli-ance , and that its consideration of race (reflected by itsnoncompactness and irregulari ty) is no more than rea-sonably necessary to ful fi ll its remedial purpose . Accord-ingly , the ruling in King I need not be amended or al-tered in view of either case . ` Rather, these decisionsaffirm this court 's original conclus i on that the FourthDis trict passes constitutional muster.

ENTER:

Michael S . Kanne

United States Circuit Judge

Charles R. Norg le

United Stat es District Judge

David H . Coar

United States D i strict Judge

Dated : August 1 , 1997

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