James W. Sutton v. George W. Dunne, Carl R. Hansen, Defendants-Cross-Plaintiffs v. George W. Dunne, Defendants-Cross-Defendants

681 F.2d 484, 1982 U.S. App. LEXIS 18541
CourtCourt of Appeals for the Seventh Circuit
DecidedJune 10, 1982
Docket82-1016
StatusPublished
Cited by4 cases

This text of 681 F.2d 484 (James W. Sutton v. George W. Dunne, Carl R. Hansen, Defendants-Cross-Plaintiffs v. George W. Dunne, Defendants-Cross-Defendants) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James W. Sutton v. George W. Dunne, Carl R. Hansen, Defendants-Cross-Plaintiffs v. George W. Dunne, Defendants-Cross-Defendants, 681 F.2d 484, 1982 U.S. App. LEXIS 18541 (7th Cir. 1982).

Opinions

BAUER, Circuit Judge.

Defendants appeal from the district court order requiring them to increase the size of the Board of Commissioners of Cook County (“Board”) from fifteen members, nine elected from Chicago and six from the suburbs, to seventeen members, ten elected from Chicago and seven from the suburbs. Defendants contend that the district court erred in ordering reapportionment because the plaintiffs failed to prove that the Board’s fifteen member apportionment plan diluted their voting rights in violation of the fourteenth amendment. We affirm.

I

Plaintiffs originally filed this reapportionment suit in 1973. They alleged that the Board, which then had fifteen members, ten elected from Chicago and five elected from the suburbs, overrepresented Chicago citizens by 4.87% and underrepresented suburban citizens by 4.87%. The district court held that the 9.74% total deviation diluted the voting rights of the suburban voters in violation of the fourteenth amendment. The court ordered the Board to increase its size to sixteen members, ten to be elected from the city and six from the suburbs. The court’s reapportionment plan decreased the total deviation to 1.4%, the smallest feasible deviation. Sutton v. Dunne, 365 F.Supp. 483 (N.D.Ill.1973). Defendants did not appeal the district court’s 1973 reapportionment order.

On October 15, 1973, the Board adopted an ordinance implementing the district court’s reapportionment plan. The 1974 and 1978 Board elections were held on the basis of that ordinance. On November 2, 1981, the Board passed an ordinance decreasing its size to fifteen members, nine to [486]*486be elected from the city and six from the suburbs. The Board’s 1981 apportionment plan was based on Cook County population figures from the 1980 census.

Plaintiffs returned to the district court to obtain modification of the court’s 1973 order to reflect 1980 population changes. Plaintiffs requested the court to reject the Board’s 1981 plan and order it to increase either to sixteen members, nine to be elected from the city and seven from the suburbs, or to seventeen members, ten to be elected from the city and seven from the suburbs. Using adjusted raw population figures from the 1980 census,1 the district court calculated that the Board’s 1981 plan created a 2.11% overrepresentation of Chicago citizens and a concomitant 2.11% un-derrepresentation of suburban citizens. The court held that the plan’s 4.22% total deviation violated the fourteenth amendment. The court also rejected the plaintiffs’ plan calling for a proposed sixteen member Board because that plan created an unacceptable 3.28% total deviation, with Chicago underrepresented by 1.64% and the suburbs overrepresented by a like amount. The court adopted the plaintiffs’ alternate plan and ordered the Board to increase its size to seventeen members, ten to be elected from Chicago and seven from the suburbs. The court found that this apportionment plan would result in a .93% underrepresen-tation of the suburbs and .93% overrepre-sentation of the city voters, with a total deviation of 1.86%. Sutton v. Dunne, 529 F.Supp. 312 (N.D.I11.1981).

II

Defendants claim that the district court erred in ordering them to adopt plaintiffs’ apportionment plan because plaintiffs failed to prove that the 4.22% total deviation in the Board’s plan is of a sufficient “size and quality to amount to an invidious discrimination under the Fourteenth Amendment.” Gaffney v. Cummings, 412 U.S. 735, 741, 93 S.Ct. 2321, 2325, 37 L.Ed.2d 298 (1973). Rather, defendants argue, the deviation is de minimis, and, therefore, the Board’s plan is constitutionally acceptable. Defendants argue in the alternative that, even if the total deviation is not de minimis, the Board’s plan is still acceptable because the state’s policy of maintaining the Board’s membership at fifteen is a sufficient justification for the 4.22% deviation.

The Supreme Court has declined to prescribe “any precise constitutional tests” for reviewing courts to use in determining whether a particular apportionment plan passes constitutional muster. Reynolds v. Sims, 377 U.S. 533, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964). There is no fixed percentage deviation demarcating the de minimis from the unconstitutional, Kirkpatrick v. Preisler, 394 U.S. 526, 530-31, 89 S.Ct. 1225, 1228-29, 22 L.Ed.2d 519 (1969); each deviation must be examined on a case-by-case basis. “What is marginally permissible in one State may be unsatisfactory in another, depending on the particular circumstances of the case.” Reynolds v. Sims, 377 U.S. 533, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964).

Initially, plaintiffs bear the burden of proving that the deviation from popula[487]*487tion equality is substantial. Gaffney v. Cummings, 412 U.S. 735, 745, 93 S.Ct. 2321, 2327, 37 L.Ed.2d 298 (1973). Once plaintiffs prove a prima facie case of discrimination, the burden shifts to defendants to show either that the deviation is unavoidable, Kirkpatrick v. Preisler, 394 U.S. 526, 531, 89 S.Ct. 1225, 1229, 22 L.Ed.2d 519 (1969), or that the deviation is justified by an attempt to effectuate a rational state policy. Reynolds v. Sims, 377 U.S. 533, 579, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964).

Although the Supreme Court has approved apportionment plans with a total deviation greater than 4.22%, White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973); Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971), in only two of the eases, White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), and Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), did the Court find that the deviation was de minimis. In White, the Court held that a total deviation of 9.9% in the state house of representatives was de minimis, and in Gaffney, the Court held that a maximum deviation of 1.81% in the state senate and a 7.83% deviation in the state house of representatives were de minimis. In both cases the Court was examining a population deviation created by a multiple district apportionment plan. In this case, however, we are confronted with an apportionment plan that involves only two districts.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
681 F.2d 484, 1982 U.S. App. LEXIS 18541, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-w-sutton-v-george-w-dunne-carl-r-hansen-ca7-1982.