This matter is before the court on remand from the Supreme Court for further consideration in light of Shaw v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (hereinafter "Shaw II"), and Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (hereinafter "Bush"). King v. Illinois Bd. of Elections, ___ U.S. ___, 117 S.Ct. 429, 136 L.Ed.2d 328 (1996). Pursuant to 28 U.S.C. § 2284(a), the undersigned three-judge panel was appointed to preside over this litigation.
Upon remand, plaintiff filed a motion for an additional evidentiary hearing. This court denied the requested relief by order of April 4, 1997. Plaintiff has since moved this court to reconsider its ruling on that issue. Briefs have been filed both on the remand and on plaintiff's motion for an additional evidentiary hearing. Thus, this case is before the court on both issues. Having carefully examined Shaw II and Bush and the memoranda and arguments presented by the parties, this court finds both cases supportive of its analysis and accordingly affirms its previous decision in King v. State Bd. of Elections, No. 95-C827, 1996 WL 913660, ___ F.Supp. ___ (N.D.Ill. Mar. 6, 1996) (hereinafter "King I"). Moreover, for the reasons stated in this memorandum opinion, plaintiff's motion to reconsider is denied.
It is important to note at the outset, however, that this opinion merely supplements the subject of the remand 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 road-map of King I that illustrates that King I is in accord with Shaw II and Bush. To this end, this opinion will discuss the relevant holdings of each of those opinions.
Since this court issued its ruling in King I, the Supreme Court has further developed its constitutional jurisprudence with respect to voting rights in two pivotal decisions: Shaw II and Bush. These decisions of even date have markedly changed and elucidated the landscape of voting rights litigation and legislation. As a result, this court has undertaken a full review of the underlying record as well as the briefs filed upon this remand. The court has likewise carefully considered the evidence submitted upon the plaintiff's offer of proof in support of his motion to reopen the evidence.
Notwithstanding the accuracy of the factual record, certain comments upon the law are in order. Indeed, the necessity for or the propriety of reopening the record can better be judged following some analysis of both the legal and factual issues involved in this remand. Moreover, such analysis affirms this court's earlier conclusion that the Fourth Congressional District (hereinafter the "Fourth District") is constitutionally sound.
I. The Import of Shaw II and Bush to King I
Shaw II and Bush have a direct impact on this court's strict scrutiny analysis in King I. Although both Shaw II and Bush further develop the analysis that should apply to each aspect of voting rights litigation, (e.g., the Gingles test and the "predominance of race" test — especially, with respect to § 2 violations), none of these developments alters this court's determination that strict scrutiny applies. Rather, on remand, what is implicated by the two more recent decisions is this court's strict scrutiny analysis, and more specifically, the issue of whether the Fourth Congressional District is a narrowly tailored response to prior discrimination. In King I, this court set forth a strict scrutiny analysis which supported its conclusion that the Fourth District is constitutional. A review of that analysis in light of Shaw II and Bush reveals that no additional examination is required.
A. Compelling State Interest
In addition to finding that there is no dispute that race was a factor in the configuration of the Fourth District, this court concluded that "racial considerations predominated." King I, 979 F.Supp. at 606, 610. Accordingly, this court applied strict scrutiny to the Fourth District to determine whether it passed constitutional muster under the Equal Protection Clause.
In order to survive strict scrutiny, the Fourth District must be proved narrowly tailored to serve a compelling state interest. The compelling state interest proffered by the Hastert court was remedying a potential violation of or achieving compliance with § 2 of the Voting Rights Act. Id. at 610. Recognizing that the Court has never expressly held that remedying a potential violation of or achieving compliance with § 2, standing alone, is a compelling state interest, this court advanced arguments based on earlier Supreme Court decisions on race-based remedies in support of its view that such an interest is compelling. Specifically, this court asserted that the Court's recognition of a distinction between "`what the [Voting Rights Act] permits and what it requires'" and its resulting conclusion that "`compliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and applications of those laws'" demonstrate that race-based remedies may be appropriate. King I, 979 F.Supp. at 582, at 614 (quoting Shaw v. Reno, 509 U.S. 630, 653, 113 S.Ct. 2816, 2830, 125 L.Ed.2d 511 (1993); Voinovich v. Quilter, 507 U.S. 146, 153, 113 S.Ct. 1149, 1156, 122 L.Ed.2d 500 (1993)). Moreover, noting the Court's acknowledgment of justifiable race-based remedies to cure the effects of past discrimination where there is a "strong basis in evidence" of the harm being remedied, this court reasoned that
In Bush, Justice O'Connor (in concurrence) provided additional support for these propositions. She asserted that compliance with § 2 of the Voting Rights Act and, in particular, the results test, is a compelling interest. In favor of that position she wrote:
Bush, 517 U.S. at ___, 116 S.Ct. at 1970 (O'Connor, J., concurring) (emphasis added). Similarly, in a lengthy dissent in which Justices Ginsburg and Breyer join, Justice Stevens refers to the Court's assumption that compliance with § 2 of the Voting Rights Act is a compelling state interest as "perfectly obvious." Id. at ___, 116 S.Ct. at 1989 (Stevens, J., dissenting). These comments support this court's conclusion that remedying a potential violation of or achieving compliance with § 2 is a compelling state interest. Indeed, in King I this court wrote:
King I, 979 F.Supp. 582, 614 (citations omitted). The King I opinion then goes on to acknowledge the strong basis in evidence that the Hastert court had "both for finding a § 2 violation and for adopting a redistricting plan that remedied that violation." Id. at * 27, ___. Thus, in light of the statements of Justices O'Connor and Stevens and the absence of any contrary holding by a majority of the Court, this court affirms its prior analysis that remedying a potential violation of or achieving compliance with § 2 constitutes a compelling state interest.
B. Narrow Tailoring
The true significance of the Court's remand of King I becomes evident upon review of this court's discussion on the narrow tailoring of the Fourth District. In Shaw II and Bush the Supreme Court defines the parameters of narrow tailoring in an effort to guide lower courts in their evaluation of challenged legislative or judicial action in the voting rights context. Although this court did not perform analyses that expressly reflect the newly articulated narrow tailoring inquiry in King I, it drew all of the conclusions necessary to support its holding within that framework.
In Bush, Justice O'Connor noted that the narrow tailoring prong permits "a limited degree of leeway" in drawing remedial districts, provided that (1) there exists a "strong basis in evidence" of the three Gingles prerequisites and (2) the race-based district "substantially addresses the § 2 violation." Id. at ___ - ___, 116 S.Ct. at 1960-61. To be sure, Bush makes clear that the shape of the district is relevant to the narrow tailoring inquiry. Id. at ___, 116 S.Ct. at 1962. However, Bush rejected as "impossibly stringent" the view that "a district must have the least possible amount of irregularity in shape, making allowances for traditional districting criteria." Id. Thus, "a § 2 district that is reasonably compact and regular, taking into account traditional redistricting principles such as maintaining communities of interest and traditional boundaries, may pass strict scrutiny without having to defeat rival compact districts  in endless `beauty contests'" if it does not "subordinate traditional districting principles to race substantially more than is `reasonably necessary' to avoid § 2 liability." Id. at ___, 116 S.Ct. at 1961.
Shaw II further defines this standard in holding that, in order to pass constitutional muster under the Equal Protection Clause, the majority-minority district "must, at a minimum, remedy the anticipated violation or achieve [§ 2] compliance ...". Id. at ___, 116 S.Ct. at 1905. Read together, Shaw II and Bush reveal the following precept for narrow tailoring inquiries under § 2: A § 2 district is narrowly-tailored if (1) at a minimum, the district remedies the anticipated violation or achieves § 2 compliance, and (2) its consideration of race is no more than reasonably necessary to fulfill its remedial purpose.
In concluding that the Fourth District was narrowly tailored, this court deferred to the Hastert court's discretion in adopting remedial plans and its "exacting constitutional review" in determining the best remedial measure. King I, 979 F.Supp. at 616. In addition, this court found that the Fourth District "was properly proportioned to the nature of the violation." Id. Specifically, this court stated,
In order to support this conclusion in the wake of Shaw II and Bush, the record must demonstrate that (1) there was a "strong basis in evidence" for finding the threshold conditions for § 2 liability; (2) at a minimum, the Fourth District remedies the anticipated violation or achieves § 2 compliance; and (3) the district's consideration of race is no more than reasonably necessary to fulfill its remedial purpose. Having determined that there was a "strong basis in evidence" for finding the threshold conditions for § 2 liability,
A district cannot be held to remedy a potential § 2 violation if the minority group contained therein is not (1) "geographically compact;" (2) "politically cohesive;" and (3) potentially barred by majority bloc voting from electing its preferred candidate, absent the existence of the district. See Bush, 517 U.S. at ___, 116 S.Ct. at 1961; Shaw II, 517 U.S. at ___, 116 S.Ct. at 1906. Thus, as part of its narrow tailoring inquiry, this court must rely on its earlier findings that the Fourth District meets these three requirements. These findings are contained in this court's discussion of the Hastert Court's § 2 analysis, which this court adopted later in its opinion:
Id. at 596-97 (citations omitted). In addition to these three factors, the Hastert court considered the "totality of the circumstances" test, also required under Gingles, to determine whether the Fourth District was warranted under § 2.
Id. at 597 (citations omitted).
These conclusions, in addition to those contained in this court's refutation of several arguments advanced by plaintiff in an effort to challenge the Hastert court's findings, are sufficient to establish that the Fourth District is narrowly tailored even in light of Bush and Shaw II. For example, this court rejected King's argument that the Hastert court erred in finding that the Hispanic community was sufficiently numerous by failing to determine the proper eligible minority voting population, that is, the total population
In addition, this court addressed the argument that the Puerto Rican and Mexican-American communities were not politically cohesive because of their allegedly "different cultural, social, political, and economic concerns that serve to separate rather than unify the Latino community." Id. Finding that the "lay opinion elicited by King at trial to demonstrate and substantiate the claimed lack of cohesion was mainly anecdotal, often incredible, and wholly insufficient to support the inferences and conclusions King seeks to draw[,]" this court concluded that the Hastert court's finding of political cohesiveness was not clearly erroneous. Id.
Moreover, this court also resolved that, since 1991 there was no change in circumstances to support a finding that white racial bloc voting had decreased. Id. at 613. Rather, this court found that,
Id. This court also acknowledged that,
In its discussion of whether race predominated in the Hastert court's configuration of the Fourth District, this court also rejected the argument that its bizarre shape belies compactness. The following is a passage from that discussion:
Id. at 608-10 (footnotes and citations omitted).
Finally, the King I opinion presented evidence that the Fourth District, in fact, remedied the anticipated § 2 violation by preserving the Latino community's voting strength through vote consolidation. In this light, this court wrote:
Id. at 615.
In light of the foregoing, this court concludes that, under both Shaw II and Bush, the Fourth District remedies the anticipated violation and achieves § 2 compliance, and that its consideration of race (reflected by its noncompactness and irregularity) is no more than reasonably necessary to fulfill its remedial purpose. Accordingly, the ruling in King I need not be amended or altered in view of either case.
II. The Usefulness of an Additional Evidentiary Hearing
As is apparent from the above discussion, the pertinent factual data needed to determine the constitutionality of the Fourth District was before this court upon its initial adjudication of this matter. Neither Shaw II nor Bush introduces legal guidelines that require additional findings of fact by this court. There is therefore no need to reopen the record and conduct an additional evidentiary hearing. Accordingly, plaintiff's motion to reconsider this court's earlier ruling denying an additional evidentiary hearing in this matter is denied.
For the foregoing reasons, this court affirms its earlier ruling that the Fourth District passes constitutional muster and denies plaintiff's motion to reconsider this court's oral ruling denying plaintiff's motion for an additional evidentiary hearing.
Pl. Motion at 3-4.