Illinois Republicans won't get the chance to argue in court that Democrats have unconstitutionally skewed state legislative maps to all but guarantee their party a supermajority in Springfield, after the Illinois Supreme Court ruled they waited too long to challenge the maps.
A dissenting Republican justice on the state high court, however, said the Democrat-dominated state high court improperly chose sides by moving on its own to force Republicans to defend the "timeliness" of their case.
On April 9, the Illinois Supreme Court issued an unsigned order denying Republicans in Illinois a hearing to challenge state legislative district maps drawn by Democrats in 2021.
Illinois Supreme Court Justice David Overstreet
| Illinoiscourts.gov
The case had landed before the Illinois Supreme Court in late January. At that time, Republican voters from Cook County, St. Clair County, DeKalb County and elsewhere in Illinois joined with Republican state House Minority Leader Tony McCombie to directly petition the state high court to toss out and replace the state's most recent legislative district map.
The map, which was approved by the Democratic legislative supermajority in the General Assembly and Gov. JB Pritzke, has been in place for both the 2022 and 2024 elections.
In their lawsuit, McCombie and her fellow plaintiffs called the map "the byproduct of extreme partisan gerrymandering," which violates Illinoisans' constitutional rights to actual representation in Springfield, rather than total control by the leadership of one party.
"They are drawn by the political party in control and are intended to entrench the Democratic Party in power," the Republicans said in their lawsuit. "The districts are also meant to prevent voters affiliated with the minority party from electing candidates of their choice. In other words, the general election outcomes are rigged."
In the lawsuit, Republicans noted the results of the past two elections have demonstrated just how successful Democrats have been in using the maps to entrench their political power.
They noted that in 2022, Republican candidates collectively "won a majority - 50.9% - of the statewide votes.
And in 2024, Republicans claimed 45% of the statewide vote, amid the election of President Donald Trump.
Yet in both elections, Democrats won and held a supermajority in the Illinois state House and Senate.
They asserted Democrats accomplished this goal by carving up the map of Illinois and its communities into Tetris-like jigsaw cut shapes, which pay no heed to community, city or county boundaries, but merely are intended to ensure Democrats are the majority in as many districts as possible.
The complaint asserted such mapmaking violates the Illinois state constitution's mandates that legislative districts must be both "contiguous" and "compact."
Republicans further argued the maps violate past Illinois Supreme Court rulings, in which the state high court tossed out past district maps featuring district designs which, they argued, are more constitutional than at least 52 Illinois House Districts drawn by Democrats in their current legislative map.
Republicans argued an academic analysis of state election results show that, if maps were drawn to comply with the state constitution's mandates, Republicans would hold at least 11 more seats than they do now, giving them 43% of the seats and breaking the Democrats' supermajority.
The complaint further asserted the current map violates Illinoisans' rights to "free and equal" elections. They noted other states with similar clauses in their state constitutions, including Pennsylvania, have interpreted that language to mean voters must "have an equal opportunity to translate their votes into representation" - rights which can be violated by so-called "gerrymandering for unfair partisan political advantage."
Republicans said that same reasoning must now be applied to the Democrats' map in Illinois.
The Illinois Supreme Court, however, has blocked Republicans from getting even a hearing on the merits of their claims.
The order provided no further guidance or more specific questions for the parties to address.
Republicans filed their response to the court order by Feb. 28, as required.
The State Board of Elections did not file a response by the March 14 deadline.
Instead, the Supreme Court majority gave permission to powerful Democratic Illinois House Speaker Emanuel "Chris" Welch and Illinois State Senate President Don Harmon - who supervised the creation of the challenged maps - to intervene in the case and defend the maps.
Welch handed that task to Democratic elections lawyer Michael J. Kasper, a top Democratic Party operative and longtime ally of former Illinois House Speaker Michael J. Madigan.
Madigan was recently convicted on federal corruption charges.
In a reply filed March 19 - five days after the supposed deadline to respond and just two days before Republicans were directed to file their reply to the state's reply - Kasper asserted the Republicans' petition wasn't "timely" because Republicans didn't file the challenge until more than three years after the maps were enacted.
He claimed this was too late because Democrats on the state high court - without explanation - had also dismissed another challenge by Republicans to a Democrat-created legislative district map in 2012, which had been filed just one year after Democrats had created that map.
In dissent, Republican justices on the court at the time blasted their Democratic colleagues for ignoring that the state constitution allows for challenges "concerning the redistricting of the House and Senate" but includes no language placing any time limits on bringing such actions.
Yet, Kasper said the 2012 ruling should again guide the Illinois Supreme Court now to dismiss the new challenge, as well, under the so-called doctrine of laches, which limits the filings of lawsuits that the court determines have been filed too late.
In their new ruling, the Democrats on the Illinois Supreme Court sided with Illinois Democrats.
In their ruling, the justices noted the state constitution doesn't place any time limits on when such challenges can be filed.
But that is no problem for Democrats, the Democratic justices said.
They said they believed the Republican petition showed "a lack of due diligence" because Republicans "could have brought this argument years ago."
In response to Democrats' assertions, Republicans had claimed they needed to wait multiple election cycles, because federal courts had rejected redistricting challenges on the grounds that they had been filed too soon and lacked enough evidence to back their claims that the skewed maps had unconstitutionally skewed election results.
The Democratic justices, however, said they found those arguments "unpersuasive."
"Plaintiffs' approach would also be prejudicial and create uncertainty for voters and officeholders alike, now and in the future, as to whether any redistricting plan in Illinois is ever final," the Democratic justices wrote. "Plaintiffs’ motion for leave to file was brought more than three years and four months after the adoption of the current map. This delay is 32 months more than the delay in the 2012 challenge, which this court denied...
"We are closer to the next decennial census than the last. Plaintiffs seek to use data that may now be stale, which could be prejudicial to the parties as well as the public."
In dissent, Justice David K. Overstreet - one of only two Republicans on the seven-member court - criticized his Democratic colleagues for denying Republicans even the chance to present the merits of their claims in courts.
Overstreet said it is his Democratic colleagues who are ignoring legal precedent.
He noted that the rules governing such challenges changed in 2019 when the U.S. Supreme Court declared in the case known as Rucho v Common Cause that such redistricting challenges over "excessive partisan gerrymandering" should be handled in state courts using state laws and state constitutions.
"While the majority is correct in its assertion that this court is not bound by the federal standard, it has not made a pronouncement of its own regarding the elements of such a claim," Overstreet wrote.
"Thus, it is disingenuous to hold that plaintiffs’ efforts indicate a lack of due diligence sufficient to justify this court’s refusal to address the merits of such a claim and refuse to make such a pronouncement. "
Overstreet further criticized Democratic justices' conclusions that they can't address the challenge now because it is too close to the next U.S. Census and next redistricting in five years, calling such conclusions "purely speculative."
He noted Republicans are not seeking to overturn any past election results.
"Plaintiffs seek to remedy what they claim they can prove to be partisan gerrymandering, which has been defined as 'unconstitutional discrimination' that 'occurs only when the electoral system is arranged in a manner that will consistently degrade a voter’s or a group of voters’ influence on the political process as a whole,'" Overstreet said.
"And if the claim is proven, and a new map is required to remedy the resulting prejudice to 'voters and officeholders alike,' equity could not justify the refusal to grant a remedy based on the prejudice of 'uncertainty' to the same voters and officeholders. Moreover, even if the same 'stale' data were used to draw the new map as was used to draw the current map, 'voters and officeholders alike' would be in a better position.
And Overstreet criticized his Democratic colleagues for essentially rushing to challenge the Republicans' petition.
He noted the Democratic majority adopted "wholeheartedly" Kasper's filing on behalf of Democratic Party powerbrokers Welch and Harmon.
He said the court's action to demand Republicans defend the timeliness of their claims when the opposing party never did so, amounts to the majority on the court choosing sides.
"After the time for responding to the motion had passed and without any objection having been filed, the majority (Democrats on the Illinois Supreme Court) entered a briefing order that sua sponte (of the court's own motion) ordered plaintiffs to file a brief anticipatorily responding to an unspecified affirmative defense related to timeliness," Overstreet wrote in dissent.
"...This abdicated the court's role as neutral arbiter of plaintiffs' motion for leave to file the complaint," Overstreet said.