CHICAGO — Illinois’ leading Democratic lawmakers have responded to accusations of gerrymandering that followed passage of new state legislative districts drawn without the benefit of official U.S. Census data.
On June 11, attorneys for the Mexican American Legal Defense and Educational Fund, of Chicago, filed a federal lawsuit on behalf of Latino voters against House Speaker Emanuel “Chris” Welch and Senate President Don Harmon, as well as the Illinois State Board of Elections.
That filing came one day after another federal action from the Democrats’ counterparts, Senate Minority Leader Dan McConchie, of Hawthorn Woods, and House Minority Leader Jim Durkin, of Western Springs, who asked a panel of three federal judges to toss out the maps and order the creation of a bipartisan commission to draft new ones.
The Democratic supermajority in the Illinois House and Senate approved two sets of maps at the end of May - one map for state House and Senate districts, and another for Illinois state Supreme Court districts.
The legal challenges asserted the Democratic district maps violate voters' constitutional rights, and improperly rely on unofficial population estimates, rather than actual Census data, to draw the district boundaries.
Welch and Harmon filed a motion to dismiss the complaints on July 16.
The motion takes issue with the claims the district maps violate the Constitution because they use of ]U.S. Census Bureau American Community Survey Data, rather than final Census numbers.
The official Census information is expected on Aug. 16, later in the year than usual following the decennial nationwide count. But Democrats rushed to approve the new maps before the end of the General Assembly’s spring session, rather than wait for the official Census data, because they wished to avoid a deadline that may have forced a different redistricting process, without them in control.
The Democrats say the complaints are legally deficient on three principles: there is no specific allegation of harm; there is no precedent establishing the use of ACS data for redistricting as improper or unconstitutional; and the “claims are not ripe because the 2020 Census data still has not been released.”
The motion to dismiss relied on a 2018 U.S. Supreme Court opinion in Gill v. Whitford in which Wisconsin Democrats failed to establish standing to challenge Republican-drawn maps. While that court recognized a few plaintiffs alleged direct personal injury, they “never followed up with the requisite proof,” according to that opinion, meaning the suit failed by relying “on their theory of statewide injury to Wisconsin Democrats.”
Welch and Harmon argued their opponents have not and cannot allege “their personal voting strength is diluted by the current redistricting plan. 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 Democrats said complaining about the maps without offering evidence about a specific legislative district, according to Gill, amounts to “only a generalized grievance against governmental conduct,” and cannot support a federal lawsuit.
“Plaintiffs’ complaint simply disagrees with the General Assembly’s decision to use ACS data to prepare a redistricting plan in furtherance of its undisputed constitutional duty to redraw the legislative districts by June 30,” said Welch and Harmon.
They further argued no court has ever held the U.S. Constitution mandates use of any specific data to draw state legislative maps, but said “the Supreme Court, and other federal courts, have long recognized the flexibility the Constitution affords states in redrawing their own legislative districts.”
Among the examples are Hawaii being able to apportion its state Senate based on registered voter numbers instead of Census-based total population, and the accepted notion that population deviations less than 10% comply with the Fourteenth Amendment’s equal protection clause.
The Democrats quoted Justice Clarence Thomas, who wrote in the 2016 Texas case, Evenwel v. Abbott — also an instance of Democrats challenging Republican maps — that “a state has wide latitude in selecting its population base for apportionment,” because “the choice is best left for the people of the states to decide for themselves how they should apportion their legislature.”
Finally, Welch and Harmon said the complaints can’t even be adjudicated yet because they are “based on speculative allegations about why plaintiffs believe ACS data is not as accurate as the census count,” concerns that can’t be evaluated until the Census numbers come through next month.
The Democratic lawmakers are represented by attorney Michael Kasper, a lawyer well known for his association with former Illinois House Speaker Michael J. Madigan. Kasper, for instance, led the court fight several years earlier against a voter-led effort to amend the state constitution to strip the power to draw legislative district lines from the majority party in the Illinois General Assembly. Kasper's arguments helped persuade the Illinois Supreme Court's Democratic majority to declare the proposed amendment unconstitutional.
Other firms representing the Democrats include Power Rogers,LLP; Latham & Watkins; Hinshaw & Culbertson; and Heather Wier Vaught. Wier Vaught is also an associate of Madigan.
McConchie and Durkin are represented in the action by attorney Charles E. Harris II, and others with the firm of Mayer Brown, of Chicago, and attorney Phillip A. Luetkehans and others with the firm of Luetkehans Brady Garner & Armstrong, of Itasca.
The Latino voters are represented in their case by MALDEF attorneys Griselda Vega Samuel, Francisco Fernandez del Castillo, Thomas A. Saenz and Ernest Herrera, of Chicago and Los Angeles.