Seventh Circuit OKs Chicago's ward map for 2015 aldermanic elections

By Bethany Krajelis | Jul 9, 2014

A federal appeals panel today upheld the City of Chicago’s new ward map as constitutional.

In an 11-page opinion, the Seventh Circuit Court of Appeals affirmed the dismissal of a redistricting challenge the League of Women Voters (LWV) of Chicago and more than a dozen of its members lodged last year over the city’s 2015 map they argued violates their voting rights and the "one person, one vote" principle under the Fourteenth Amendment.

Determining that the LWV plaintiffs "failed to allege any facts that would entitle them to relief under the Equal Protection Clause," the panel said U.S. District Judge Sharon Coleman was right to grant the city’s motion to dismiss for failure to state a claim.

Judge Michael Kanne wrote the opinion, with Chief Judge Diane Wood and Judge Diane Sykes concurring.

They heard the appeal in April, when Chicago attorney Sean Morales-Doyle of Despres, Schwartz & Geoghegan Ltd. argued for the LWV plaintiffs and Benna Ruth Solomon, deputy corporation counsel for the city’s Law Department, represented the city.

Sean Morales-Doyle told the panel in arguments that the new map "cannot stand" because it has deviations in population of up to 8.7-percent, which he dubbed as an "arbitrary and discriminatory" violation of the "one-person, one-vote" principle.

Solomon urged the judges to uphold the dismissal of the suit, saying the plaintiffs failed to prove the new map was discriminatory since the highest population deviation is below 10-percent, a figure many courts have used as the threshold in redistricting challenges.

Citing a pair of U.S. Supreme Court’s decisions, Kanne explained for the panel that "when a maximum deviation is less than ten percent, the deviation is considered minor and the plaintiffs cannot 'establish a violation of the Equal Protection Clause from population variations alone,'" and as such, "will be presumed to be constitutionally valid absent a showing of ‘arbitrariness or discrimination."

The panel then analyzed a trio of allegations of arbitrariness or discrimination that the LWV plaintiffs offered in an attempt to overcome this presumption.

The plaintiffs first claimed that a statement Alderman Patrick O’Connor of the 40th Ward made about how the redistricting plan was put into an ordinance in order "to have the largest number of City Council members available so that we would not have a referendum" shows the city’s new map was created arbitrarily.

"Yet this statement suggests nothing of the sort," Kanne wrote for the panel. "Alderman O’Connor was simply stating a fact: in order to prevent a referendum from occurring, it was necessary to obtain the proper majority of votes."

He added, "One alderman’s statement can hardly be said to establish that the whole City Council acted arbitrarily in designing the map. At most, the statement reflects that Alderman O’Connor wanted this bill to pass into law, a proposition that required a substantial majority of votes."

The LWV plaintiffs also alleged the new map targeted the 2nd and 36th wards because the aldermen there --Bob Fioretti and Nick Sposato, respectively -- had shown political independence from the council’s Democratic majority, which was "attempting to oust" the two from their districts.

During arguments in April, Morales-Doyle told the panel the city claims the new map does not amount to a constitutional violation because there was no intent to dilute votes and that deviations in population between wards are allowed for legitimate purposes, such as keeping communities together.

Morales-Doyle, however, said there was "no way" the 2015 map was drawn to keep communities together as some are in five different wards under the new map. He also said the new 2nd Ward "looks like leftover spaghetti on a dinner plate."

Solomon countered by telling the judges that while the LWV plaintiffs’ voter dilution claims focus on the 2nd and 36th wards, neither of those wards have the 8.7 percent in population deviation mentioned in their suit.

This issue spurred Kanne in April to bring up the oft-political nature of redistricting; a process that occurs every 10 years following the census and commonly ends in court challenges. It also led Wood to mention that the city's claim the suit was brought to try to advance the arguments of the two aldermen and not the voters.

The panel revisited both of those points in today’s opinion.

The Constitution, Kanne wrote, "is not meant to insulate individual politicians from the threat of political reprisal once redistricting occurs. The fact remains that the equal-population requirement is meant to protect 'an individual’s right to vote.'"

"Redistricting is an inherently political process," he said, adding that "the Supreme Court has noted that '[p]olitics and political considerations are inseparable from districting and apportionment.... The reality is that districting inevitably has and is intended to have substantial political consequences.'"

In rejecting the LWV plaintiffs’ claim the map targeted the 2nd and 36th wards, Kanne noted there will be winners and losers in every election and redistricting plan.

Kanne said, "Simply alleging that two aldermen—who were of the same party as those seeking to 'oust’' them—were at the short end of the proverbial stick is not enough to overcome a presumptively constitutional map and establish a prima facie violation of voters’ equal protection rights."

The panel also didn’t buy the plaintiffs’ claim that the city departed from traditional redistricting criteria in the 2015 map.

"[T]he League fails to allege how any of these ‘grotesque shapes and boundaries’ harm voters," Kanne wrote. "The suggestion that a map that is not compact or genuinely contiguous violates equal protection principles simply misstates the law, for 'compactness or attractiveness has never been held to constitute an independent federal constitutional requirement.'"

Kanne went on to explain that "[t]he use of traditional redistricting criteria is not a basis for an equal-population violation, but rather a defense to be used in defending a redistricting decision once the plaintiff has made out a prima facie case."

"Whether certain wards appear to be 'bizarre or uncouth,' as the League alleges, is not enough to establish a prima facie case for an equal protection violation," Kanne wrote, noting that "had  the League made out a prima facie case, the City could use traditional redistricting criteria to show that the deviations are nonetheless constitutional."

But, "[t]he League has not done so and therefore their equal protection claim must fail."

In addition, the Seventh Circuit, like the district court, rejected the LWV plaintiffs’ argument that the city has deprived them of their voting rights by allegedly implementing the new map before its 2015 effective date.

The plaintiffs claimed in their suit the city already "changed the City Council members who will be recognized for the purpose of representing plaintiffs in zoning changes, sign orders, infrastructure spending and other city services, as well as other matters that may come before the City Council."

For instance, the suit alleged, city records show the 13th Ward spent money to resurface a street that was located in the 23rd Ward under the last map, but is part of the 13rd Ward in the map for the 2015 election. Some of the LWV member plaintiffs also claimed they’ve been referred to aldermen for help as a result of the new map.

Wood in April told Morales-Doyle that she had trouble grasping this argument, questioning how it is a voting rights issue given that if an elected council member dies or resigns, a replacement would made without voter approval in order to fill the vacancy until the next election.

Solomon, the city’s attorney, appeared not to give much weight to the pearly implementation claim in arguments, simply telling the panel that the plaintiffs have not made a Monell claim (a legal principle dealing with when municipalities can be sued).

Kanne said the plaintiffs’ early implementation argument "is essentially a Monell claim, seeking to invoke the rule that prohibits municipal agencies from implementing policies that cause constitutional injuries under" Section 1983 of the U.S. Code.

But, municipalities, the panel’s opinion states, can only be held liable under Section 1983 if there is policy that would cause a constitutional deprivation if enforced, is so widespread it could be considered a common practice, or an allegation that the constitutional injury was caused by a person authorized to make final policymaking decisions.

Kanne said the plaintiffs didn’t prove the alleged early implementation of the map met any of these factors, and as such, "The League has failed to allege a violation of their constitutional rights."

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