Democratic leaders seek to dismiss redistricting lawsuits

Virtual hearing set for week after U.S. Census data is officially released

By JERRY NOWICKI
Capitol News Illinois
jnowicki@capitolnewsillinois.com

SPRINGFIELD – Lawyers for Illinois’ Democratic legislative leaders last week filed a motion to dismiss a lawsuit from Republicans and a Mexican American advocacy group regarding newly drawn legislative maps, calling the challenge “purely speculative” until full U.S. Census data is released.

The motion, filed Friday, was an expected move following a Wednesday, July 14, status hearing for two consolidated lawsuits filed by Republican legislative leaders Sen. Dan McConchie, R-Hawthorn Woods, and Rep. Jim Durkin, R-Western Springs, as well as the Mexican American Legal Defense and Educational Fund, or MALDEF.

Both suits name the Illinois State Board of Elections and its individual members as well as Illinois House Speaker Emanuel “Chris” Welch and Senate President Don Harmon as defendants.

The lawsuits focus on whether American Community Survey data, rather than full census data, is a permissible source for drawing legislative district lines.

Every 10 years after the census, the Illinois General Assembly has the first crack at redrawing the lines of Illinois’ 59 Senate and 118 House districts, and they face a June 30 deadline set by the Illinois Constitution after which the process is handed to an eight-person commission made up of four members from each party.

If that group fails to approve maps by Aug. 10, a ninth member, who could come from either party, would be randomly chosen and added to the commission to give one party a single-vote advantage.

This year, the supermajority Democrats in the General Assembly passed new redistricting maps by the end of the regular session in May and Gov. JB Pritzker signed them into law on June 4.

But full census data wasn’t available at the time and still won’t be released until Aug. 16, so lawmakers used data from the Census Bureau’s American Community Survey and other private sources to draw the maps.

MALDEF and the Republican leaders argued in their court documents that the use of American Community Survey data represents an incomplete count and therefore violates the “one person, one vote” principle under the equal protection clause of the U.S. Constitution.

The Republican leaders have asked the court to either force Welch and Harmon to appoint a bipartisan commission to oversee redistricting, or appoint a special party to draw the maps themselves. At last week’s status hearing, lawyers for the Democratic leaders argued that would be an extreme remedy in which federal judges are intervening in matters of state law.

MALDEF requested a judge block the new maps from taking effect in any future elections.

But lawyers for the Democratic leaders – which include Michael Kasper, a longtime Democratic redistricting operative and ally to former House Speaker Michael Madigan – argued in the dismissal motion “there is no way to measure the validity of Plaintiffs’ equal protection allegations until the Census Bureau issues the 2020 census data.”

The lawyers for the Democratic leaders focused on the state constitution in other aspects of their motion to dismiss as well, arguing, “Nothing in the U.S. Constitution or Illinois’ Constitution or statutes mandates only the use of final census numbers in redistricting.”

“Plaintiffs do not suggest that the General Assembly should have used a different data set – plaintiffs only suggest that the General Assembly, led by defendants Welch and Harmon, should have done nothing and simply ignored the directives of the state constitution,” the lawyers wrote. “The federal constitution does not require such inaction on the part of state officials.”

Welch and Harmon’s lawyers also argued that the claims against them lack standing because the plaintiffs make no specific claims that the districts in which they reside are negatively impacted by the use of ACS data.

“They have not alleged—nor can they allege—that their personal voting strength is diluted by the current redistricting plan,” they wrote in the court document. “They have not alleged, for example, that their votes are diluted by overpopulation in their districts when compared to the voting power of those residing in less populated districts.”

The state elections board, which is represented by Illinois Attorney General Kwame Raoul’s office, also filed a motion to dismiss the suit Friday, claiming immunity in the case via the 11^th Amendment to the U.S. Constitution and echoing claims that the plaintiffs have not demonstrated injury in the case.

The case is before a three-judge federal panel, which has a tentative trial date set for Sept. 27-29.

But there is also another status hearing scheduled for Aug. 24 – or just over a week after full census numbers will be made available. In an order scheduling that hearing, the court acknowledged that planned expert testimony is likely to “be affected (perhaps substantially) by information that will not be available until the census numbers come out.”

At the virtual August hearing, the parties are scheduled to discuss “the effect, if any, of the release of the census data on the complexity of the case and the presentation of evidence, either on a paper record or a trial,” as well as the logistics of the trial and dates for additional status hearings.

Capitol News Illinois is a nonprofit, nonpartisan news service covering state government and distributed to more than 400 newspapers statewide. It is funded primarily by the Illinois Press Foundation and the Robert R. McCormick Foundation.