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 abovementioned 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, 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.
State Senator Cecil Partee attempted to submit a map as an exhibit to his comments and suggestions. However, his map was successfully objected to as not properly submitted, hence it was not before the court for its consideration.
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. 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.
Within the less than one per cent variance, we specifically find that the order of deviation ranks as follows, from smallest to largest:
1. Skolnick-Sherman. 2. Illinois Congressional Deleg. 3. Blair-Hyde. 4. Hartunian.
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 devised a map based largely upon vote results in the 1968 and 1970 Congressional elections. The districts have been drawn so that seventeen are "safe" districts, i.e. districts which will almost certainly elect a Democrat (seven) or a Republican (ten). The remaining seven districts are represented as having been drawn so that neither of the two major parties would enjoy a predictable majority. In these seven districts it was hoped that the bloc of independent voters would, according to the political climate, sway the election for one party or the other.
Implicit in the Hartunian plan is an aversion for "safe" Congressional seats. The proponent of the map has argued that there is no place in a reapportionment scheme for the protection of incumbents from vigorous contests for reelection. However, the fact that a given plan may minimize the number of close contests in a Congressional election does not of itself invalidate that plan. See Ely v. Klahr, 403 U.S. 108, 112, n. 5, 91 S.Ct. 1803, 29 L.Ed.2d 352 (1971); Burns v. Richardson, 384 U.S. 73, 89, n. 16, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); contra, League of Nebraska Municipalities v. Marsh, 242 F. Supp. 357, 360 (D.Neb. 1965), appeal dismissed, 382 U.S. 1021, 86 S.Ct. 642, 15 L.Ed.2d 537 (1966).
No authority has been cited to the effect that partisan balance is required in each district when devising a map. Indeed, the Hartunian map invites the court to speculate on the outcome of future elections in Illinois' twenty-four Congressional districts, based upon voting figures from the last two elections. While Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and its progeny thrust the court into the "political thicket" of reapportionment, it did not to our knowledge invite the court to become a prognosticator of election results. Given the vagaries of electoral politics, and given the imperfect data available for predicting the outcome of elections, it would be unwise for the court to establish as a criterion for Congressional redistricting the establishment of politically-balanced districts. Therefore, the Hartunian map must be rejected.
The map of the Illinois Congressional Delegation was, as its name suggests, drawn up by the twenty-four members of Congress from Illinois. The Delegation's map was first introduced as a reapportionment bill in the Illinois House of Representatives, where it was voted down by the Committee on Reapportionment. The primary non-population factor taken into account in drawing the Delegation map was the so-called "core" principle, namely the conscious adherence to previous district boundaries, with concessions made to pre-existing boundaries only when population changes so require. The argument advanced in support of the core principle is that the court in applying the principle is required to involve itself as little as possible in the "political" task of reapportionment: it merely takes the existing map as it finds it and alters a few boundary lines to accommodate population changes.
To the extent the core of the 1965 Congressional map was changed to create the proposed Delegation map, that change was effected by the incumbent congressmen who revamped the boundaries of the districts and then submitted the map to the Delegation's expert, Dr. Godwin, for his comparison with 1970 census data. Of course, there was no evidence introduced of the drafter's drawing up district boundaries to solidify their own partisan electoral support. And, as indicated in regard to the Hartunian map, there appears to be no constitutional infirmity in drawing an otherwise valid map which protects incumbents. Nevertheless, there are compelling reasons why the core principle should not be accorded the status of the primary and controlling non-population factor which must dictate our choice in this matter.
The core of the existing Congressional map, the one used in the last election, is almost certainly outmoded at this date. As Dr. Godwin testified, the 1965 provisional map was based upon the 1961 map originally drawn up by the legislature. The 1961 map was held unconstitutional in People ex rel. Scott v. Kerner, supra, because of the great population variance among the districts. In drawing up the 1965 map, which was only provisional, the court took the nucleus of the 1961 map, but changed it considerably to bring the districts more into equality of size. In turn, however, new Supreme Court law rendered even the 1965 plan unconstitutional, again because of the population variance among districts. Skolnick v. Illinois State Electoral Board, supra.
Under these circumstances, it is difficult to imagine any justification for using the existing core as a starting point for a new map. The core was originally drawn ten years ago, based upon the 1960 census. It was held unconstitutional, redrawn provisionally, and again held unconstitutional. It is sophistry to claim now that the core is a creation of the state legislature which should be changed slightly but preserved in its essence. It has been changed once, considerably, by this court, and it would be changed considerably again if the Delegation map were adopted, so that it can in no way properly be called the "legislature's" map.
Most important, the 1970 census figures are now available. They indicate significant population changes over the past decade. For instance, the City of Chicago declined in population by 5.2 per cent during the last ten years. More dramatically, during the same period suburban Cook County increased in population by 34.5 per cent. The changes suggest not only a shift of population from the city to its surrounding suburbs, but also an influx of people to the suburbs from outside Cook County. Under these circumstances, there is little justification for adhering to the core of a map drawn up using outmoded census figures. The core principle may have been followed in a rough way in drawing up the 1965 provisional map, when the 1960 census figures were the only ones available. Now, however, the 1970 census figures are available, and there is no compelling reason to apply them to the 1961-1965 core.
Or, to paraphrase a comment made by counsel for defendant, the court should avoid spoiling a brand new apple by using an old core.
We are not persuaded by the rationale of the dissent of our distinguished colleague Senior District Judge Campbell. We perceive nothing in our previous rulings which affords a basis for his premise that our jurisdiction in this matter is limited to arriving at a reapportionment plan based on outmoded cores. Nor, in our order inviting interested parties to submit reapportionment proposals, did we require the proposals to begin with the 1965 core. The order of July 13, 1971, was unqualified, and Judge Campbell's assertion that the parties were invited "to validate our provisional plan" can only represent his personal interpretation of the meaning of our order.
Judge Campbell, apparently relying on his long experience, has attempted to predict the political consequences of the acceptance of the Blair proposal. We suggest that any shift of the boundary lines of existing districts in order to equalize population is bound to have some political consequences. This is true whether the lines are shifted wittingly by incumbent congressmen for the purpose of protecting their seats or unwittingly for the sole purpose of achieving a compact district. We prefer not to indulge in any judicial speculation as to the future voting patterns in any particular district, new or old. Political prognostication is a dangerous and futile exercise.
Despite the eloquent plea made by our brother Campbell, we find the Illinois Congressional Delegation map to be unacceptable.
The Blair map was drawn up by a political scientist and an urban planning firm retained by the Illinois House Committee on Reapportionment. The main non-population factor taken into account in drawing up the Blair map was the recognition of the existence of metropolitan communities and existing county lines. Maryland Citizens Committee for Fair Congressional Redistricting, Inc. v. Tawes, 253 F. Supp. 731, 735 (D.Md.), aff'd sub nom., Alton v. Tawes, 384 U.S. 315, 86 S.Ct. 1590, 16 L.Ed.2d 586 (1966) (per curiam). For instance, seven out of the eight Chicago districts are wholly contained within the city limits, and three out of the four suburban Cook County Districts are located outside the city but within the county. Only one district, the Third, overlaps between the city and the suburbs. Downstate, the boundaries of the remaining twelve districts follow, wherever possible, county lines. It is clear that the Blair map is a good-faith effort to adhere to existing communities of interest and existing political boundaries.
Representative Madigan testified that his map did not take into account the residence of incumbent Congressmen. He also testified that the drafters of the Blair map were not instructed to take into account the compactness and contiguity of the districts. However, even a cursory examination of the Blair map shows that the twenty-four districts are substantially compact and contiguous. The unaesthetic appearance of certain boundaries does not detract from the fact that equality of population has been substantially achieved. Kirkpatrick v. Preisler, 394 U.S. 526, at 536, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969).
Moreover, the map did get the overwhelming approval of one house of the legislature. It would be unwise to attempt to guess the fate of the map in the upper house, had it been brought to a vote. However, the approval of the bill in the state House of Representatives is at least probative of the fact that the Blair map had substantial bipartisan support among certain legislators.
The record is silent as to the reasons for the near unanimous support for the Blair map in the House, and it would be sheer speculation to argue, as has been done by our brother Campbell, that the only purpose for its passage was so that it could be used as a vehicle for negotiations in the Senate.
The largest district on the Blair map has only 6930 more inhabitants than the smallest district. The two districts at the extremes deviate only three-quarters of a per cent from the numerical average. Thus, it is clear that the primary consideration, equality of districts, was sufficiently achieved. Moreover, it was achieved without substantially impairing recognized political boundaries and communities of interest.
It has been suggested, particularly by the Democratic Chairmen of the 22nd Congressional District, that the court take it upon itself to alter the boundaries of one or more districts in order to include or exclude certain political subdivisions. This the court refuses to do. Perhaps the Blair map could be improved upon, making the districts more congruous as to some political subdivision boundaries. However, in this instance, it would not be a proper judicial task to undertake. The districts in the Blair map are already so near to being equal in population that it would serve no useful purpose to further refine them. Moreover, the drafters of the Blair map followed, as nearly as possible, existing political boundaries, and it would be unwise for the court merely to substitute its choice of different political boundaries. Therefore, the Blair map will be accepted without judicial modification.
For all the foregoing reasons, the Blair-Hyde-Madigan plan of reapportionment, as set out in Appendix 2 and Appendix 3, is found to meet all federal constitutional requirements and is hereby approved and declared to be the Congressional map for the State of Illinois, beginning with the 1972 election to the United States House of Representatives and continuing thereafter until Illinois Congressional districts are reapportioned in accordance with law.
Judgment Order
The foregoing memorandum opinion is hereby adopted as our findings of fact and conclusions of law.
It is therefore ordered that the reapportionment plan as set out in Appendix 2 and Appendix 3 attached to our memorandum opinion be, and the same is, declared to meet all federal constitutional requirements; and it is further ordered that said plan of reapportionment govern the nomination and election of members of the House of Representatives of the United States Congress beginning with the 1972 primary and election and continuing thereafter until Illinois Congressional districts are reapportioned in accordance with law.
Appendix 1, also attached, is a summary of the population data for the twenty-four Congressional districts.
It is further ordered that the defendant, State Electoral Board of Illinois, in the performance of its duties and functions under the Illinois election laws, be governed by and comply with said plan of reapportionment accordingly.
APPENDIX 1 POPULATION DATA FOR TWENTY-FOUR CONGRESSIONAL DISTRICTS
% DeviationDistrict Population From Ideal
1 462,434 -.13% 2 464,792 +.36% 3 461,346 -.37% 4 464,446 +.29% 5 459,731 -.72% 6 464,763 +.36% 7 464,269 +.25% 8 462,076 -.21% 9 463,791 +.01% 10 462,121 -.20% 11 461,084 -.43% 12 461,054 -.43% 13 463,096 +.00% 14 465,029 +.42% 15 462,969 -.02% 16 461,719 -.29% 17 462,943 -.03% 18 463,155 +.00% 19 462,085 -.21% 20 463,551 +.01% 21 464,693 +.34% 22 464,121 +.22% 23 462,960 -.02% 24 465,017 +.42%
APPENDIX 2 LEGAL DESCRIPTIONS FOR TWENTY-FOUR CONGRESSIONAL DISTRICTS
District No. 1 shall be comprised of all of Census Tracts 4212, 4208, 4209, 6906, 4303, 4304, 6907, 6908, 6905, 4310, 4501, 6915, 6914, 4402, 4401, 4502, 4407, 4409, 4904, 4701, 4802, 4803, 5001, 4905, 4908, 4906, 7301, 4902, 4903, 7115, 4901, 4405, 4406, 7109, 4404, 4403, 6913, 6912, 7101, 6910, 6911, 6813, 6904, 6903, 6909, 4408, 4306, 4305, 4301, 4302, 4211, 4210, 4201, 4202, 4203, 4204, 4205, 4206, 4207, 4111, 4110, 4112, 4113, 4114, 4101, 4102, 4103, 4104, 4105, 4106, 4107, 4108, 4109, 3901, 3902, 3903, 3904, 3905, 3906, 3907, 3604, 3601, 3602, 3603, 3605, 3801, 3511, 3510, 3512, 3513, 3514, 4309, 3804, 3805, 3803, 3807, 3808, 3809, 3810, 3811, 3815, 3814, 3813, 3812, 4001, 4003, 3806, 3816, 3817, 4002, 3820, 3819, 3818, and 3802 in the City of Chicago in Cook County.
District No. 2 shall be comprised of all of Census Tracts 7113, 7201, 7203, 7303, 7202, 7304, 7306, 7307, 7207, 7206, 7505, 7502, 7501, 7506, 5302, 5303, 5304, 4912, 4913, 4911, 4909, 4914, 5305, 4910, 7305, 4907, 6715, 7302, 5202, 5203, 5204, 5205, 5206, 5501, 5502, 5104, 5105, 5102, 5103, 5101, 5201, 4805, 4804, 4606, 4607, 4608, 4609, 4610, 4601, 4602, 4603, 4604, 4314, 4315, 5401, 5003, 5002, 4313, 4307, 4308, 4312, 4605, 4503, 4801, 4311, 5306, 5301, 7114, 7110, 7111, 7112, 7105, 7106, 7107, 7108, 7104, 7103, 7102, 6720, 6719, 6601, 6718, 6814, 6716, 6717, 6714, 6713, 6712, 6711, 6708, 6707, 6705, 6306, 6704, 6705, 6703, 6702, and 6602 in the City of Chicago in Cook County.
District No. 3 shall be comprised of all of the Townships of Thornton and Calumet in Cook County; and all of Census Tracts 7204, 7205, 7401, 7402, 7403, 7404, 7503, 7504, 7003, 7004, 7002, 7001, 6505, 6504, 6611, 6610, 6609, 6503, 6605, 6608, 7005, 6607, and 6606 in the City of Chicago in Cook County; and all of Worth Township in Cook County, except the Villages of Chicago Ridge, Worth, Crestwood, and Bridgeview, and the City of Palos Heights.
District No. 4 shall be comprised of all of the Townships of Lyons, Palos, Lemont, Orland, Bremen, Rich, and Stickney in Cook County; and all of the Villages of Bridgeview, Chicago Ridge, Worth and Crestwood in Worth Township in Cook County; and the City of Palos Heights in Worth Township in Cook County; and the part of the Village of Homewood that is in Bloom Township in Cook County; and the part of the Village of Flossmoor that is in Bloom Township in Cook County; and all of Census Tracts 8190, 8189, 8188, 8187, 8186, 8185, 8180, 8184, 8181, 8182, 8179, 8183, 8169; and Block Groups 4 and 5 in Census Tract 8171; and all of Census Tract 8168 in Proviso Township in Cook County.
District No. 5 shall be comprised of all of Census Tracts 4007, 4008, 6901, 4006, 6902, 6809, 6812, 6811, 6810, 6710, 6709, 6806, 6807, 6808, 6802, 6801, 4004, 4005, 5610, 5611, 5612, 5613, 6203, 6204, 6309, 6404, 6403, 6402, 6401, 6502, 6501, 6604, 6603, 6405, 6406, 6407, 6408, 5609, 5608, 5607, 5602, 5603, 5604, 5605, 5606, 5703, 5704, 5705, 6201, 5810, 6303, 5811, 6302, 6304, 6305, 6115, 6301, 6116, 6001, 6002, 6003, 6004, 6005, 6006, 6007, 6008, 6009, 6010, 6011, 6012, 6013, 6014, 6015, 6016, 6101, 6102, 6103, 6104, 6105, 6106, 6107, 6108, 6109, 6110, 6111, 6112, 6113, 6114, 6119, 6120, 6121, 6122, 6803, 6804, 6805, 6701, 5901, 5902, 5903, 5904, 5905, 5906, 5907, 3704, 3703, 3702, 3701, 3406, 3405, 3404, 3403, 3515, 3505, 3506, 3507, 5801, 5805, 5806, 5807, 5808, 5701, 5702, 5601, 5802, 5803, 5804, 5809, 6118, 6117, 3020, 3018, 3017, 3016, 3007, 3503, 3504, 3508, 3502, 3501, 3509, 6202, 6307, 6308, and 3019 in the City of Chicago in Cook County.
District No. 6 shall be comprised of all of the Townships of Leyden, River Forest, Oak Park, Cicero, Berwyn, Riverside, and Norwood Park in Cook County; and all of Census Tract 7606 in the City of Chicago in Cook County; and all of Census Tracts 8401, 8402, and 7701 in Addison Township in DuPage County; and all of Proviso Township in Cook County except for Census Tracts 8190, 8189, 8188, 8187, 8186, 8185, 8180, 8184, 8181, 8182, 8179, 8183, 8169, 8168, and Block Groups 4 and 5 in Census Tract 8171.
District No. 7 shall be comprised of all of Census Tracts 2419, 2420, 2421, 2422, 2423, 2424, 2425, 2434, 2433, 2432, 2431, 2430, 2429, 812, 2428, 2803, 2804, 2805, 2806, 2807, 2808, 2809, 2810, 2811, 2812, 2813, 2814, 2815, 2816, 2817, 2701, 2702, 2707, 2708, 2828, 2829, 2830, 2831, 2832, 2833, 2834, 2835, 2836, 2837, 2838, 2839, 2840, 2841, 2842, 3301, 3302, 3303, 3304, 3305, 3401, 3402, 3101, 3102, 3103, 3104, 3105, 3106, 3107, 3108, 3109, 3110, 3111, 2709, 2710, 2317, 2316, 2315, 2601, 2704, 2703, 2818, 2706, 2711, 2712, 2713, 2714, 2608, 2705, 2418, 2435, 2436, 2801, 2802, 2410, 2426, 2715, 2820, 2821, 2822, 2823, 2824, 2825, 2826, 2827, 3112, 3113, 3114, 3115, 3001, 3002, 3003, 3010, 3011, 3012, 3013, 3014, 3009, 2901, 2902, 2903, 2719, 2819, 2718, 2717, 2716, 2904, 2913, 2914, 2915, 2843, 2916, 2917, 2918, 2919, 3008, 3015, 2905, 2912, 3206, 3205, 3204, 3203, 3202, 3201, 807, 808, 819, 809, 818, 817, 815, 813, 814, 816, 3006, 3005, 2925, 2924, 2923, 2927, 2926, 2909, 2921, 2922, 2910, 2911, 2906, 2920, 3004, 2609, 2907; and Block Group 2 of Census Tract 2412, in the City of Chicago in Cook County.
District No. 8 shall be comprised of all of Census Tracts 806, 703, 704, 705, 707, 708, 709, 710, 711, 719, 720, 2401, 2402, 2403, 2220, 2413, 2415, 2416, 2219, 2217, 2218, 2221, 2414, 2417, 2518, 2515, 2519, 2520, 2521, 2522, 2523, 2524, 2602, 2603, 2604, 2607, 2606, 2605, 2908, 2610, 2305, 2304, 2229, 2006, 2005, 1910, 2004, 2209, 2302, 2227, 2211, 2212, 2226, 2303, 2301, 2408, 2225, 2213, 2214, 2215, 2216, 2204, 2203, 2201, 2003, 2208, 2002, 2207, 2206, 2205; and Block Group 1 of Census Tract 2412; and all of Census Tracts 2411, 2210, 1709, 1801, 1802, 1803, 2228, 2224, 1904, 1905, 1906, 1907, 2407, 1911, 1912, 1913, 1914, 2501, 2502, 2503, 2504, 2505, 2506, 2507, 2508, 2509, 2510, 2511, 2512, 2513, 2306, 2307, 2308, 2309, 2310, 2311, 2312, 2313, 2314, 2318, 2514, 712, 2516, 2517, 2409, 2427, 2223, 2222, 2406, 2405, and 2404 in the City of Chicago in Cook County.
District No. 9 shall be comprised of all of Census Tracts 101, 102, 103, 104, 105, 106, 107, 108, 109, 301, 302, 303, 304, 305, 306, 307, 308, 309, 201, 202, 203, 204, 205, and 206; and Block Groups 1 and 6 in Census Tract 207; and all of Census Tracts 209, 401, 404, 405, 406, 513, 514, 515, 601, 602, 603, 604, 605, 606, 607, 608, 609, 610, 611, 612, 613, 614, 615, 616, 617, 618, 619, 620, 621, 622, 623, 624, 625, 626, 627, 628, 629, 630, 631, 632, 313, 314, 315, 316, 317, 318, 319, 320, 321, 310, 311, 312, 634, 633, 702, 718, 805, 713, 716, 717, 804, 810, 803, 715, 714, 701, 802,
801, 811, 706, 409, 410, and 501 in the City of Chicago in Cook County.
District No. 10 shall be comprised of all of the Townships of Evanston, New Trier, Northfield, Maine, and Niles in Cook County.
District No. 11 shall be comprised of all of Census Tracts 901, 902, 903, 1001, 1002, 1003, 1004, 1005, 1006, 1007, 1201, 1202, 1203, 1204, 1101, 1102, 1103, 1104, 1105, 1302, 1502, 1503, 1504, 1505, 1506, 1512, 1701, 1702, 1703, 1704, 1705, 1706, 1707, 1708, 1711, 1710, 7601, 7603, 7604, 7605, 7602, 1408, 1603, 1604, 1605, 1606, 1607, 1608, 1609, 1610, 1611, 1612, 1613, 2102, 2103, 2104, 2105, 2106, 2001, 1405, 1406, 1407, 1402, 1403, 1602, 1509, 1901, 1510, 1601, 1404, 1501, 1508, 1507, and 1909; and Block Groups 2, 3, 4, and 5 in Census Tract 207; and all of Census Tracts 208, 402, 403, 407, 408, 502, 503, 504, 505, 1511, 1903, 506, 507, 508, 509, 510, 511, 512, 2101, 2107, 2108, 2202, 1902, 1908, 1401, 1304, 1301, 1303, 1305, and 2109 in the City of Chicago in Cook County.
District No. 12 shall be comprised of all of the Townships of Wheeling, Elk Grove, Palatine, Schaumburg, Hanover, and Barrington in Cook County; and all of the Townships of Ela, Vernon, Deerfield, West Deerfield, and Libertyville in Lake County.
District No. 13 shall be comprised of all of the Townships of Marengo, Riley, Coral, Dorr, Grafton, Nunda, and Algonquin in McHenry County; and all of Lake County, except the townships of Ela, Vernon, Deerfield, West Deerfield, and Libertyville; and all of Kane County, except the Townships of Aurora, Sugar Grove, Big Rock, Batavia, and Geneva.
District No. 14 shall be comprised of all of DuPage County, except Census Tracts 8401, 8402, and 7701 in Addison Township.
District No. 15 shall be comprised of all of the Counties of Ford, Livingston, LaSalle, Grundy, Kendall, DeKalb, Woodford, Marshall, and Putnam; and all of the Townships of Aurora, Sugar Grove, Big Rock, Batavia, and Geneva in Kane County.
District No. 16 shall be comprised of all of the Counties of Boone, Winnebago, Stephenson, Ogle, and Jo Daviess; and all of Lee County, except the Townships of Palmyra, Nelson, South Dixon, Harmon, Marion, Hamilton, and East Grove; and all of McHenry County, except the Townships of Marengo, Riley, Coral, Dorr, Grafton, Nunda, and Algonquin.
District No. 17 shall be comprised of all of the Counties of Will, Kankakee, and Iroquois; and all of Bloom Township, except the Villages of Homewood and Flossmoor in Cook County.
District No. 18 shall be comprised of all of the Counties of Stark, Peoria, Knox, Mason, Tazewell, Cass, Schuyler, and Brown; and all of Bureau County, except the Townships of Fairfield, Greenville, Gold, and Manilus.
District No. 19 shall be comprised of all of the Counties of Hancock, McDonough, Henderson, Warren, Mercer, Rock Island, Fulton, Henry, Whiteside, and Carroll; and all of the Townships of Fairfield, Greenville, Gold, and Manilus in Bureau County; and all of the Townships of Palmyra, Nelson, South Dixon, Harmon, Marion, Hamilton, East Grove in Lee County; and all of the Townships of Lima, Mendon, and Ursa in Adams County.
District No. 20 shall be comprised of all of the Counties of Macoupin, Jersey, Calhoun, Greene, Pike, Scott, Morgan, and Sangamon; and all of Adams County, except the Townships of Lima, Mendon, and Ursa; and all of Madison County, except the Townships of Wood River, Fort Russell, Chouteau, Edwardsville, Granite City, Venice, Nameoki, Collinsville, Jarvis, St. Jacob, and Helvetia; and all of Montgomery County, except the Townships of Audubon, Nokomis, Witt, Filmore, South Filmore, East Ford, Grisham and Hillsboro.
District No. 21 shall be comprised of all of the Counties of Champaign, Piatt, McLean, DeWitt, Logan, and Menard; and all of Macon County, except the Townships of Mount Zion, and Milan.
District No. 22 shall be comprised of all of the Counties of Vermillion, Edgar, Clark, Douglas, Moultrie, Christian, Shelby, Coles, Cumberland, Effingham, Jasper, Crawford, Clay, Richland, Lawrence, Fayette, Wayne, Edwards, and Wabash; and all of the Townships of Mount Zion, and Milan in Macon County, and all of the Townships of Audubon, Nokomis, Witt, Filmore, South Filmore, East Fork, Grisham, and Hillsboro in Montgomery County.
District No. 23 shall be comprised of all of St. Clair County; and all of the Townships of Wood River, Fort Russell, Chouteau, Edwardsville, Granite City, Venice, Nameoki, Collinsville, Jarvis, St. Jacob, and Helvetia in Madison County.
District No. 24 shall be comprised of all of the Counties of Alexander, Pulaski, Massac, Union, Johnson, Pope, Hardin, Jackson, Williamson, Saline, Gallatin, Randolph, Perry, Franklin, Hamilton, White, Jefferson, Washington, Monroe, Marion, Clinton, and Bond.
The terms "census tract", "enumeration district" and "block group" used herein are those terms as defined by the 1970 Population Census.
CASTLE, Senior Circuit Judge, and DECKER, District Judge.
We are asked by the defendant, State Electoral Board of Illinois, under 28 U.S.C. § 1651 and § 2283 and pursuant to Rule 65 of the Federal Rules of Civil Procedure, to restrain and to enjoin the respondents, Joseph Germano, John Alesia, Joseph Cesario, Sam E. Perish and Buddy W. Davis, from proceeding further as petitioners in a recently filed and currently pending original mandamus proceeding in the Supreme Court of Illinois, entitled People ex rel. Germano, et al. v. Lewis, et al., Cause No. 44728. Similar injunctive relief is also sought against Edward V. Hanrahan, State's Attorney of Cook County, as amicus curiae in that proceeding, John W. Lewis, Secretary of State, Richard B. Ogilvie, Governor, William J. Scott, Attorney General, Alan J. Dixon, Treasurer, Michael J. Howlett, Auditor, James A. Ronan and Victor S. Smith, Chairmen, respectively, of the Democratic and Republican State Central Committees, as respondents in the aforesaid cause in the Supreme Court of Illinois and as members of the State Electoral Board of Illinois.
We entered a restraining order November 5, 1971, maintaining the status quo pending thorough consideration of the issues and to afford full opportunity to the parties and persons above-named to be heard by counsel on the consolidated requests for preliminary and permanent injunction. Having held such further hearing and having heard the arguments of counsel, we conclude that a permanent injunction should now be granted. Mindful of the important and sensitive federal-state relationships necessarily involved in our action, as well as the fundamental questions of judicial comity which must be resolved, we set forth herein the salient facts and legal principles which we deem controlling.
The history of the instant case, Skolnick v. State Electoral Board of Illinois, is fully set forth in our order entered September 21, 1971. It will be sufficient to summarize those developments which bear directly on the jurisdictional conflict which has arisen and which must be considered in determining the need for and the scope of the permanent injunction. Similarly, we consider briefly the remedy sought by the respondents to the pending motion in their role as petitioners in the original mandamus proceeding in the Supreme Court of Illinois, which, for convenience, we shall hereinafter refer to as Germano v. Lewis.
The instant case, Skolnick v. Electoral Board of Illinois, came to this court on April 9, 1969, and was assigned to the calendar of Judge Campbell. Shortly thereafter a three-judge court was convened pursuant to 28 U.S.C. § 2284. Pursuant to the teachings of 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), we entered an order on December 31, 1969, holding that the existing congressional reapportionment approved by this court in 1965 in Kirby v. Illinois State Electoral Board, 251 F. Supp. 908 (N.D.Ill. 1965), was no longer constitutional because of population disparities. We determined at that time that the 1970 congressional election might lawfully proceed under the 1965 plan, contemplating reapportionment of the congressional districts by action of the Illinois General Assembly in time for the 1972 election. In our order we provided:
"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.
In the subsequent regular session, which convened in January 1971 and adjourned on June 30, 1971, no new map was adopted by the General Assembly, and in consequence, following full hearing and the submission by the parties and intervenors of proposed maps, we then proceeded to draft a congressional reapportionment plan meeting applicable federal standards and which was set forth and ordered implemented in our order entered September 21, 1971. In so doing we followed the procedure indicated as appropriate in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). See also, Roberts v. Babcock, 246 F. Supp. 396, 399 (D.Mont. 1965), and Klahr v. Goddard, 250 F. Supp. 537 (D. Ariz. 1966).
Subsequent thereto, the Illinois General Assembly convened in further session from October 5, 1971, to November 13, 1971, on which latter date, it adjourned until January 1972. Once again the Illinois legislature has failed to perform its duty to enact a constitutional and valid reapportionment plan. There appears no likelihood that it will do so in time for the 1972 congressional elections.
Similarly, no suit in any Illinois state court was filed during the pendency of the instant case prior to the entry of our order of September 21, 1971, which reapportioned the Illinois congressional districts, or which in any manner related to the issues before this court in Skolnick v. State Electoral Board of Illinois.
It is in this context of Illinois legislative and judicial non-action that we briefly review the nature and objectives of the original mandamus proceedings pending in the Supreme Court of Illinois.
On October 5, 1971, a motion was filed in the Supreme Court of Illinois by respondents herein Joseph Germano, et al., captioned a "Motion for Leave to File Petition for Supplementary Relief in the Matter of Apportionment of Illinois Congressional Districts and for Substitution and Addition of Parties, or, in the Alternative, Original Petition for Writ of Mandamus." The supplemental relief there sought represented an effort to reinstate and use, as a basis of continuing mandamus proceeding, the earlier case of People ex rel. Scott v. Kerner, 32 Ill.2d 539, 208 N.E.2d 561 (1965), in which the Illinois Supreme Court by simultaneous decree approved the redistricting plan adopted and also approved by this court in Kirby v. Illinois State Electoral Board, 251 F. Supp. 908, and reserved jurisdiction to assure the use of said plan in the 1966 congressional elections. The attempted exhumation failed. The supplemental relief was denied by the Illinois Supreme Court on October 14, 1971.
At the same time, however, the Illinois Supreme Court granted leave to Germano, et al., to file their petition for an original mandamus, Cause No. 44728, directing the named respondents therein to answer on or before October 26, 1971, and setting the matter for oral argument on November 9, 1971. Our restraining order intervened, and we are advised that no further proceedings have since occurred.
The petitioners in Germano v. Lewis (respondent herein) alleged inter alia that mandamus was "necessary to assure that the 1972 Illinois congressional elections take place only pursuant to a plan of congressional reapportionment reviewed and approved by this court. Only in this way can the citizens of Illinois be assured that such reapportionment will be consistent with applicable principles of Illinois law as well as federal constitutional requirements." The moving parties in Germano v. Lewis prayed:
"Wherefore, petitioners pray that a writ of mandamus issue forthwith against the respondent Lewis directing him to immediately take the following action: to advise all persons inquiring about Congressional nominating
procedures of this proceeding and inform such persons that no nominating petitions should be circulated, except in Districts yet to be approved by this Court.
"Petitioners further pray that this Court retain jurisdiction of this cause for the purpose of taking such affirmative action as may be necessary to assure that the 1972 Illinois Congressional elections take place only pursuant to a districting plan approved by this Court."
This open and collateral attack upon our order of September 21, 1971, is claimed by respondents' counsel to be warranted by a "unique jurisdiction" in such cases as these, said to be conferred by Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477 (1965). It is further asserted that the Illinois Supreme Court should exercise this asserted overriding jurisdiction to assure that effect will be given to "new" Illinois standards said to have been established by the recently adopted Illinois Constitution of 1970. Our review of both Scott v. Germano, supra, and the new Illinois Constitution demonstrates the error of these contentions and confirms the need to protect our order of September 21, 1971, by appropriate injunction against the possibility of unfounded collateral attack.
Scott v. Germano, supra, vacated and remanded Germano v. Kerner, D.C., 241 F. Supp. 715 (1965), which had invalidated the Illinois State Senatorial reapportionment, consistent with the ruling of the Illinois Supreme Court in People ex rel. Engle v. Kerner, 32 Ill.2d 212, 205 N.E.2d 33 (1965). Despite the concurrent state ruling, this District Court refused to grant a motion to stay further action and to allow the state court an opportunity to fashion appropriate relief. The United States Supreme Court said that redistricting by the appropriate state agencies was to be encouraged, and ordered this court to stay its hearing so as to afford Illinois state agencies an opportunity to act. But even under these circumstances, the United States Supreme Court ordered that jurisdiction was to be retained by this court to fashion a "valid reapportionment plan, failing timely state action."
Unlike the instant case, in Scott v. Germano, supra, no valid reapportionment plan had come into existence by final order of either federal or state court. Unlike that case, here we have made every effort to afford opportunity to the Illinois General Assembly to adopt a constitutionally effective map over a period extending from December 1969 to September 21, 1971. To accept respondents' contention that there is an overriding and superseding jurisdiction in the Illinois Supreme Court under the facts of this case would be effectively to nullify federal jurisdiction in reapportionment cases. We do not believe this was the intendment of Scott v. Germano, supra. In that case approximately nine months remained for appropriate redistricting. In the case at bar, after an interval of over twenty months, during which time state agencies were afforded an opportunity to act, the decision of this court issued on September 21, 1971. Nominating petitions are due December 13 to December 30, 1971, a matter of four to five weeks hence. It is now the eleventh hour.
Equally unconvincing are respondents' assertions that new Illinois standards, requiring application by the Illinois Supreme Court, have been established in consequence of the recently adopted Illinois Constitution of 1970. We take judicial notice of that Constitution and particularly of Sections 1, 2 and 3 of Article IV thereof; also of the relevant debates and proceedings of the Sixth Illinois Constitutional Convention which drafted the Constitution. These clearly show that Illinois has not by its Constitution established any standards governing congressional districting but that the new Constitution confines itself to provisions expressly limited to the method of districting the Senate and House of the Illinois General Assembly. Moreover, the teaching of Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964), is particularly appropriate here and is authoritatively dispositive of respondents' argument. In Mann the Supreme Court, in addressing itself to the question of the relevance of state standards, said ( 377 U.S. 678 at 690-691, 84 S.Ct. 1441 at 1447):
"Appellants' contention that the court below should have abstained so as to permit a state court to decide the questions of state law involved in this litigation is without merit. Where a federal court's jurisdiction is properly invoked, and the relevant state constitutional and statutory provisions are plain and unambiguous, there is no necessity for the federal court to abstain pending determination of the state law questions in a state court. McNeese v. Board of Education,
373 U.S. 668 [
83 S.Ct. 1433,
10 L.Ed.2d 622]. This is especially so where, as here, no state proceeding had been instituted or was pending when the District Court's jurisdiction was invoked. We conclude that the court below did not err in refusing to dismiss the proceeding or stay its action pending recourse to the state courts."
Respondents' appeal to vague and amorphous considerations of "public policy" in seeking to find new state standards for congressional districting in unrelated provisions of the Illinois Constitution is without merit.
Certain respondents assert herein that a three-judge court was not required to be convened in this case under 28 U.S.C. § 2284. A similar contention in a motion for mandamus and prohibition in the Circuit Court of Appeals for the Seventh Circuit on November 8, 1971, was summarily rejected by a panel of that Court. Dixon v. Castle, No. 71-1788. We are satisfied that under proper interpretation of Section 2284 and the nature of the instant case, our three-judge court was properly constituted and had complete jurisdiction.
We are unaware of any reapportionment case brought before a United States District Court which was not in fact heard by a three-judge panel pursuant to that section. The jurisdiction of a three-judge court convened under Section 2284 continues through the grant or denial of the remedy that is sought. Stout v. Hendricks, 235 F. Supp. 556, 558 (S.D.Ind. 1964). Jurisdiction to review any judgment of this three-judge court lies in the United States Supreme Court pursuant to 28 U.S.C. § 1253.
Our brother Campbell has filed herein a vigorous dissent in connection with the restraining order of November 5, 1971. We believe that his dissent rests upon an incorrect reading of the authorities he has cited and overlooks fundamental considerations of comity which should govern the relations of courts.
First and foremost, we regret his charge that the majority would intimidate the Supreme Court of Illinois, for indeed this is not our intent. To the contrary, we seek to maintain a most cordial and respectful relationship with that distinguished court, and we simply desire to avoid any conflict which could result only to the detriment of each tribunal were respondents to continue their effort to place us both upon a collision course.
The situation here is not as it would have been had the jurisdiction of the Supreme Court of Illinois been invoked during the course of our proceedings in the instant case and before the entry of our final order of September 21, 1971. In that context, the teachings of Germano v. Scott, supra, would have suggested the possibility of abstention, but that certainly is not the posture in which this case existed when Germano, et al., filed their proceeding in the Illinois court. Respondents Germano, et al., sat upon the sidelines throughout the pendency of this case. They offered no assistance to this court, nor did they take any independent action in any state court intended to provide constitutional and timely solutions to the complex problems which we faced in this matter of congressional redistricting.
By now permanently enjoining said respondents, we seek not alone to protect and effectuate our judgment of September 21, 1971, but also to avoid an imposition upon the Illinois Supreme Court which in this eleventh hour of the preparations for the 1972 congressional elections would bring only grave and irreparable damage were respondents to proceed unrestrained.
We believe that whoever would seek needlessly to create an unseemly conflict between the two courts would evidence indeed a total lack of understanding of the meaning and purposes sought to be served by the principle of comity.
Section 2283 in essence is a statutory enactment of the doctrine of comity. Wells Fargo v. Taylor, 254 U.S. 175, 183, 41 S.Ct. 93, 65 L.Ed. 205 (1920); Oklahoma Packing Co. v. Oklahoma Gas and Electric Co., 309 U.S. 4, 8-9, 60 S.Ct. 215, 84 L.Ed. 447 (1940); Landry v. Daley, 288 F. Supp. 200 (N.D.Ill. 1968). A Section 2283 injunction in this case would effectuate the doctrine of comity by prohibiting these respondents from drawing the federal and state judicial systems into needless conflict. It would prevent a confrontation which would threaten the integrity of this court's judgment; and it would avoid relitigation of a case fully adjudicated. Commerce Oil Refining Corp. v. Miner, 303 F.2d 125, 127 (1st Cir. 1962).
Our brother Campbell has also mistakenly read Atlantic Coastline Railroad Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970), in which he places much reliance. There are a number of distinguishing aspects of that case; but the marked difference is that the district court there involved had not entered any prior judgment or order which was sought to be protected and effectuated under the express exception of 28 U.S.C. § 2283. In fact that case lends support to our view.
In critically analyzing that decision, it becomes quite clear that it is distinguishable from the case at bar in several respects. First, the district court injunction in that case was designed to nullify an existing state court injunction, while in the case at bar there is no such existing injunction, and there is, as yet, not even any state court action. Further, in Atlantic, the initial district court action only implied that the state court should not act, while the opinion in this case made it quite clear that this court had fully disposed of all of the pending issues. Finally, the Court there points out that "both exceptions to the general prohibition of § 2283 imply that some federal injunctive relief may be necessary to prevent a state court from so interfering with a federal court's consideration or disposition of a case as to seriously impair the federal court's flexibility and authority to decide that case." (Emphasis ours.)
Likewise, our brother Campbell ignores the major thrust of Moss v. Burkhart, 220 F. Supp. 149 (W.D.Okla. 1968), which we submit is a clear authority for our permanent injunction under Section 2283. While it is true that the district court in Moss v. Burkhart did defer to the Oklahoma Supreme Court on the simple question of the size of a vote required to adopt an initiative referendum, a public proposal calling for a legislative redistricting commission, that court certainly did not abstain in the matter of protecting its judgment against a collateral and superseding attack sought to be carried forward in the Oklahoma Supreme Court. It is significant that the district court's injunction, preventing all persons from proceeding further in the Oklahoma Supreme Court, was left undisturbed by the United States Supreme Court. See also, Reynolds v. State Election Board, 233 F. Supp. 323 (W.D.Okla. 1964).
It is in this context of equitable and jurisdictional considerations that we feel that we are clearly authorized by 28 U.S.C. § 2283 to enter the permanent injunction sought. Furthermore, we believe that in the circumstances of this case, the protection of the rights of the plaintiffs and of all the citizens of Illinois similarly situated, as well as the due and effective administration of justice, require the avoidance of the unseemly conflict which the respondents seek to create to the damage of the due and effective administration of justice. This conflict will be avoided by the protection and effectuation of our order of September 21, 1971.
Therefore, in view of these equitable and jurisdictional considerations, we enter the following order:
INJUNCTION ORDER
This matter having come on for further hearing upon this court's order of November 5, 1971, granting defendant, State Electoral Board's motion for a temporary restraining order, and giving leave for the filing of responsive pleadings to defendant's motion on or before November 9, 1971, and setting the consolidated issues of preliminary and permanent injunctive relief requested by said defendant for hearing on November 11, 1971;
This Court finds, that on September 21, 1971, the three-judge panel of Judges Castle, Campbell and Decker entered its final order in the matter of Skolnick v. State Electoral Board of Illinois, 69 C. 755, adopting a congressional redistricting plan and ordering the defendant, State Electoral Board of Illinois, to comply with the apportionment plan so adopted, said order having been entered after a full hearing during which evidence was heard and all interested persons or parties were given the opportunity to be heard or testify, and from which order no appeal has been taken; that the said proceedings in this court were well publicized, but neither Edward V. Hanrahan nor any of the petitioners in the Germano, et al., mandamus action sought leave to intervene or appeared before this court in connection therewith.
On or about October 5, 1971, a "Motion for Leave to File Petition for Supplementary Relief in the Matter of Apportionment of Illinois Congressional Districts and for the Substitution and Addition of Parties or, in the Alternative, Original Petition for Writ of Mandamus" was filed with the Clerk of the Illinois Supreme Court by petitioners Joseph Germano, John Alesia, Joseph Cesario, Sam E. Perish and Buddy W. Davis against respondent members of the State Electoral Board of Illinois: Richard B. Ogilvie, Governor; William J. Scott, Attorney General; Alan J. Dixon, Treasurer; Michael J. Howlett, Auditor; James A. Ronan, Chairman, Democratic State Central Committee; and Victor L. Smith, Chairman, Republican State Central Committee, which petition or motions seek to modify, supersede, set aside or nullify the September 21, 1971, order of this court; the relief prayed for being:
". . . that a writ of mandamus issue forthwith against the respondent Lewis directing him to immediately take the following action: to advise all persons inquiring about Congressional nominating procedures of this proceeding and inform such persons that no nominating petitions should be circulated, except in Districts yet to be approved by this Court.
"Petitioners further pray that this Court retain jurisdiction of this cause for the purpose of taking such affirmative action as may be necessary to assure that the 1972 Illinois Congressional elections take place only pursuant to a districting plan approved by this Court."
On or about October 14, 1971, the Supreme Court of Illinois allowed the above-named petitioners leave to file an original petition for mandamus under No. 44728, but did not grant petitioners leave to file a petition for supplementary relief in case No. 39201 (reported as Scott v. Kerner, 32 Ill.2d 539, 208 N.E.2d 561 (1965)). Said order of the Illinois Supreme Court directed the respondents to file their answer to the petition on or before October 26, 1971, whereupon petitioners could file their reply on or before November 5, 1971, with oral argument to be heard in Springfield on November 9, 1971.
On or about October 14, 1971, Edward V. Hanrahan, State's Attorney of Cook County, on behalf of himself and Edward J. Barrett, County Clerk, filed a "Motion for Leave to File an Original Petition for Writ of Mandamus and Supporting Suggestions" with the Clerk of the Supreme Court of Illinois, which petition asked that the Illinois Supreme Court direct the defendant Electoral Board not to conduct an election pursuant to this court's order entered September 21, 1971, and that the Secretary of State be directed to advise any interested persons that, among other things, the districts established by this court are unconstitutional.
On October 26, 1971, pursuant to the order of the Illinois Supreme Court, the members of the State Electoral Board filed their "Answer and Suggestions" with the Illinois Supreme Court, setting out, among other things, that a petition for original mandamus was without authority in that the petition sought a declaratory judgment as to this court's order and that declaratory judgment was not a method of relief subject to the original jurisdiction of the Supreme Court of Illinois. The "Answer" further pointed out that the petition was filed after the entry of our order and would be determined only one month from when candidates' nominating petitions were to be filed. Said "Answer" also makes the observation that the new Constitution of Illinois is totally silent as to congressional districts or redistricting, contrary to the allegations of petitioners that new Illinois standards governing congressional districting had been established by said Constitution of 1970.
On October 27, 1971, the Clerk of the Supreme Court of Illinois issued a letter to the Honorable Edward V. Hanrahan informing him that the Supreme Court of Illinois had denied his petition, filed on behalf of himself and Edward J. Barrett, for an original writ of mandamus; however, leave was given to Mr. Hanrahan to appear as amicus curiae in case No. 44728 filed by petitioners Joseph Germano, et al.
In addition to the parties and movants herein or their attorneys, Edward V. Hanrahan and Joseph Germano, et al., were represented by their counsel and heard by this court, and John E. Cassidy, though not a party or intervenor to this matter, was given leave to argue to this court as a private attorney on behalf of Alan J. Dixon, Michael J. Howlett, James A. Ronan, as individuals, which he declined to do, with regard to the motion for a preliminary or permanent injunction.
This court finds that the matter of congressional redistricting is one of general public importance and that the issues raised herein are of vital importance to the people of Illinois and to the many persons who may desire to seek election to the House of Representatives of the United States Congress from Illinois and the supporters of such candidates. We also take judicial notice of the fact that all candidates and their supporters must make their campaign plans well in advance of filing dates for nominating petitions and that the minority group or independent candidates are faced with a more difficult burden of advance preparation than that of the two established political parties.
This court finds that the case of Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477 (1965), is not applicable to Skolnick v. State Electoral Board, 69 C. 755, for the many reasons set out in our memorandum. We also find that the principle of concurrent jurisdiction does not affect our judgment under the facts and circumstances of this case and that having deferred remedial action to the state agencies for a considerable length of time and until we could wait no longer, that there is no requirement that our judgment be reviewed by the Illinois Supreme Court.
We find that 28 U.S.C. § 2283 and 1651 provide ample authority for the entry of a temporary restraining order and, upon further hearing, a permanent injunction under the circumstances of this case. We recognize that caution and discretion are the watchwords of § 2283, but on balance, we find the necessity and duty to provide Illinois with an orderly electoral process far outweigh any objections to invoking this section.
We take judicial notice of the ten year history of inaction by the Illinois legislature with regard to congressional redistricting; the in-court admission before this panel by a member of the Illinois House of Representatives that redistricting by the legislature in the near future is unlikely; the fact that the legislature adjourned its fall term on November 13, 1971; that the Illinois Constitution (1970) does not require the legislature to reconvene until the second Wednesday of January, 1972; and that no congressional redistricting plan formulated by the Illinois General Assembly is likely to be enacted and become law in time for compliance with the filing dates for nominating petitions for the March 1972 primary election.
We conclude that this court was properly convened, and upon a finding of unconstitutionality as to the 1965 congressional district plan and absent timely remedial action by an agency of the State of Illinois, it was our duty to effect a plan to replace what had been found invalid, and that once adopted said plan must govern the election of United States Representatives from Illinois until the Illinois General Assembly does in fact timely adopt its own constitutional plan. We further conclude that irreparable injury to the people, electors, candidates and their supporters would result if we did not permanently enjoin the subject of this order and see that our order of September 21, 1971, is carried out.
It is hereby ordered, therefore, that all parties and the amicus curiae in the matter entitled People ex rel. Joseph Germano v. John W. Lewis, No. 44728, in the Supreme Court of Illinois, specifically Joseph Germano, John Alesia, Joseph Cesario, Sam E. Perish and Buddy W. Davis, petitioners, Edward V. Hanrahan, amicus curiae, John W. Lewis, Secretary of State, Richard B. Ogilvie, Governor, William J. Scott, Attorney General, Alan J. Dixon, Treasurer, Michael J. Howlett, Auditor, James A. Ronan, Chairman, Democratic State Central Committee, and Victor L. Smith, Chairman, Republican State Central Committee, respondents and members of the State Electoral Board of Illinois, their officers, agents, employees and attorneys and all other persons having knowledge of this court's order herein, be, and are hereby, permanently restrained and enjoined from further proceeding in the above-entitled action now before the Illinois Supreme Court or from filing any new actions affecting the matters herein in issue or in any way interfering with the electoral process applicable to congressional elections or the terms of our order of September 21, 1971, above referred to, and all persons are restrained and enjoined from taking any actions designed to or which will have the effect of interfering with the carrying out of said order, except as may be provided by law for the appeal of the order of September 21, 1971, or this order to the Supreme Court of the United States.
It is further ordered that the defendant, State Electoral Board of Illinois, its successor or successors, and all those acting by and under its authority, are hereby ordered and directed to accept filings and conduct elections, only in accordance with the provisions of the September 21, 1971, order of this court adopting a congressional redistricting plan, and in conformity with the election statutes of the State of Illinois which are not inconsistent therewith. The said Board and those acting by and under its authority are enjoined from accepting filings otherwise than in conformity with said order, from declaring the results of any such election held otherwise than in conformity with the said order of this court.
Jurisdiction is retained for the purpose of making any further orders deemed necessary to insure the effectuation of our order adopting a congressional redistricting plan, and this order permanently enjoining interference with said redistricting plan.
CAMPBELL, Senior District Judge, objects to the entry of this order and dissents therefrom.