Two weeks ago the Republican Minority Leaders in both Houses of the Illinois legislature (known as the General Assembly), in their official capacity and as individual registered voters, brought suit in federal district court in McConchie v. Illinois State Board of Elections (McConchie) to challenge the constitutionality of the apportionment of state legislative districts passed by the General Assembly at the end of May and signed by Illinois Governor J.B. Pritzker on June 4. In the space below and Part Two of this two-part series, we (in classic law professorial fashion) “spot” and analyze a number of issues raised by the plaintiffs’ complaint. As we will explain, our issue spotting and analysis point up a number of hurdles that, to us at least, make the lawsuit and its requested relief unlikely to succeed.
The thrust of the challenge in McConchie is that in its recently enacted Redistricting Plan (Plan) the Illinois legislature improperly used population estimates around the state drawn from a survey rather than official U.S. Census Bureau data that is forthcoming in August based on the 2020 decennial census. Because, plaintiffs assert, the population estimates are inferior to the official Census data that is scheduled to be released in a few months, the districts created by the Illinois legislature violate the one-person, one-vote requirement in the Fourteenth Amendment that the U.S. Supreme Court has identified and enforced ever since the famous malapportionment cases of the 1960s. Under those cases, any population deviation in legislative districts that exceeds 10% is presumptively impermissible. Because, plaintiffs argue, the use of survey data will likely create malapportioned districts, and because in any event use of unreliable survey data is “arbitrary” and “discriminatory,” Illinois’s actions have violated the Constitution.
As to the remedy they seek, plaintiffs are quite ambitious. They point to a provision in Article IV of the Illinois Constitution that provides , in plaintiffs’ words, that if “a valid redistricting plan does not become effective with the full force and effect of law by June 30, 2021, regardless of the reason for that failure, . . . responsibility for drafting a plan [moves] from the General Assembly to a bipartisan redistricting Commission, which must be constituted by July 10, 2021,” and which consists of “eight members, no more than four of whom are members of the same party.” If that Commission fails to file with the Secretary of State a plan garnering the approval of at least five members by August 10, the Supreme Court of Illinois “must submit the names of two persons, not of the same political party, to the Secretary of State by September 1.” And by September 5, the Secretary of State is supposed to “draw the name of one of the two persons to serve as the ninth member of the Commission” and break the logjam.
Because of this state constitutional provision, the plaintiffs seek not only a declaration that the plan enacted by the General Assembly is unconstitutional, but also an order directing the state official defendants to take the necessary steps to create and empower a bipartisan redistricting Commission right now.
We think plaintiffs confront difficult hurdles as to justiciability (standing and/or ripeness), on the merits, and as to remedy even if a court were to find the case justiciable and to agree with the plaintiffs’ substantive reading of the Constitution. In the space below we take up justiciability and the merits, and in Part Two we delve into some remedial complexity.
As to standing, the U.S. Supreme Court has made clear that the right to vote is a personal one that is exercised by each individual who votes within a single district. In Gill v. Whitford, a unanimous Supreme Court affirmed just three years ago that in order to challenge the alleged practices of “packing” and “cracking” on the part of the Wisconsin Republican legislative majority (that is, the practices of concentrating likely Democratic voters into a small number of districts that Democrats would win handily, spreading the rest around the state somewhat thinly, leaving the large majority of districts with Republicans having a substantial numerical edge and thus the likelihood of big election successes) a plaintiff had to demonstrate she lived in a district that was “packed” or “cracked.” Per Chief Justice Roberts:
We have long recognized that a person’s right to vote is “individual and personal in nature.” Thus, “voters who allege facts showing disadvantage to themselves as individuals have standing to sue” to remedy that disadvantage. The plaintiffs in this case alleged that they suffered such injury from partisan gerrymandering, which works through “packing” and “cracking” voters of one party to disadvantage those voters. That is, the plaintiffs claim a constitutional right not to be placed in legislative districts deliberately designed to “waste” their votes in elections where their chosen candidates will win in landslides (packing) or are destined to lose by closer margins (cracking).
An individual voter in Wisconsin is placed in a single district. He votes for a single representative. The boundaries of the district, and the composition of its voters, determine whether and to what extent a particular voter is packed or cracked. This “disadvantage to [the voter] as [an] individual,” . . . therefore results from the boundaries of the particular district in which he resides.
This individualistic reasoning would seem to doom the plaintiffs’ standing in McConchie, because they have not alleged (and cannot credibly allege) that the particular districts in which the General Assembly placed them dilute their votes in any way. Nor does their service as statewide representatives of the party and their related invocation of statewide injury to the Republican party and some unspecified Illinoisans on account of violations of the one-person, one-vote principle, solve the problem. As Chief Justice Roberts went on to say in Gill, when discussing the seminal malapportionment cases:
The plaintiffs argue that their claim of statewide injury is analogous to the claims presented in Baker [v. Carr] and Reynolds [v. Sims, the two best-known one person, one vote cases] , which they assert were “statewide in nature” because they rested on allegations that “districts throughout a state [had] been malapportioned.” But as we have already noted, the holdings in Baker and Reynolds were expressly premised on the understanding that the injuries giving rise to those claims were “individual and personal in nature,” because the claims were brought by voters who alleged “facts showing disadvantage to themselves as individuals” (internal citations omitted and emphasis added).
That is, in the malapportionment cases, plaintiffs who were afforded standing alleged and demonstrated they lived in districts that were significantly more populous than other districts, and that as a result were being afforded less political power on a per-person basis, by the districting plans at issue.
But the McConchie plaintiffs are able to allege at this point only that the survey estimate numbers used by the General Assembly likely generated some districts that are too large and some that are too small relative to the more accurate census data forthcoming in August that will demonstrate more clearly who lives where. The plaintiffs have no basis for alleging that the districts in which they live are ones that are too populous. And unless they can allege this, they are not harmed—but instead are favored—by the alleged deviation from the one-person-one-vote principle.
Another way to frame the justiciability difficulty the McConchie plaintiffs confront is ripeness. Indeed, many justiciability cases can meaningfully be thought of as implicating a lack of cognizable injury needed to demonstrate standing, or alternatively an injury that is not yet clear enough to be ripe. In McConchie, there are two ripeness problems. First, when the Census data come out in August, they may end up demonstrating that all the districts drawn by the General Assembly fall within the 10% cushion of equal size; plaintiffs point to deviations between estimates and official census data in prior censuses, but, as they say, past performance is no guarantee of (or even necessarily indicative of) future results. So, the case may be premature, or unripe, in this general sense until the Census data are released by the federal government.
And second, once that data are released, only then will we be able to know whether, assuming some Illinois districts drawn by the General Assembly are malapportioned (that is, deviate from others by 10% or more), the plaintiffs in McConchie reside and vote in the overpopulated districts rather than the smaller ones, whose voters are the beneficiaries, not the victims, of any malapportionment.
Hurdles of the Merits Arguments
Turning to the merits, plaintiffs contend that it was improper for Illinois to use in redistricting an alternative data source, namely 2015-2019 population estimates from the Census Bureau’s American Community Survey, rather than the official 2020 census figures.
A few words about the Constitution and the census: The Constitution requires that members of the House of Representatives be “apportioned among the several States according to their respective numbers,” based on an “actual enumeration” made “within every . . . ten years, in such manner as . . . [Congress] shall by Law direct.” That provision is the source of the decennial census and the resulting reapportionment of House seats. Note, however, that the Constitution itself does not requires states to use decennial census data either for in-state congressional (re)districting or (of concern in McConchie) state legislative (re)districting. In Burns v. Richardson, for example, involving the allocation of seats in the Hawaii state legislature, the Supreme Court explained: “the Equal Protection Clause does not require the States to use total population figures derived from the federal census as the standard by which . . . substantial population equivalency [as required by Reynolds] is to be measured.” While the Court has indeed invalidated uses of data less accurate than census data (as in Kirkpatrick v. Preisler) it has never held that only federal census data suffice for in-state districting plans. Nonetheless, states have a strong incentive to redistrict when census data are available, and to use that data, because otherwise they might face Equal Protection challenges if their districts do not reflect the most recent federal census figures. In other words, tying redistricting, as most states do, to the federal census gives states something of a safe harbor. Reynolds recognized as much:
That the Equal Protection Clause requires that both houses of a state legislature be apportioned on a population basis does not mean that States cannot adopt some reasonable plan for periodic revision of their apportionment schemes. Decennial reapportionment appears to be a rational approach to readjustment of legislative representation in order to take into account population shifts and growth. . . . Limitations on the frequency of reapportionment are justified by the need for stability and continuity in the organization of the legislative system, although undoubtedly reapportioning no more frequently than every 10 years leads to some imbalance in the population of districts toward the end of the decennial period, and also to the development of resistance to change on the part of some incumbent legislators. In substance, we do not regard the Equal Protection Clause as requiring daily, monthly, annual or biennial reapportionment, so long as a State has a reasonably conceived plan for periodic readjustment of legislative representation. While we do not intend to indicate that decennial reapportionment is a constitutional requisite, compliance with such an approach would clearly meet the minimal requirements for maintaining a reasonably current scheme of legislative representation. And we do not mean to intimate that more frequent reapportionment would not be constitutionally permissible or practicably desirable. But if reapportionment were accomplished with less frequency, it would assuredly be constitutionally suspect.
Most states, therefore, provide, by state constitution or by state statute, for redistricting following the federal census and using federal census data, even as the precise practices vary. For example, some states, like Illinois, require redistricting to be completed on a short timetable the year after the census is taken (and thus in 2021 with respect to the most recent census). In states with census-year requirements, delay on the part of the federal government in releasing the census data produces the problem the Illinois legislature confronted and about which the McConchie plaintiffs now complain (or of which the plaintiffs are trying to take advantage, depending on how one views things).
In other states, including Pennsylvania (see Pa Const art. II, sec. 17) and Texas (see Tex. Const. art. III, sec. 28), redistricting occurs in the year after the census are delivered (or later). Those states are less impacted by federal delay. Other states also have backup plans in the case of federal delay or a need for off-cycle redistricting. In Maine (see Maine Const art. IV, pt. 1, sec. 2) the constitution provides for districting based on population figures “according to the latest Federal Decennial Census or a State Census.” Under the Ohio Constitution, state legislative districts are to be drawn based on population “as determined by the federal decennial census or, if such is unavailable, such other basis as the general assembly may direct” (see Ohio Const. art. XI, sec 3.).
If the Equal Protection Clause does not require states to redistrict on any particular timetable or to use census data in redistricting (though states have incentives to do both), the plaintiffs’ argument, at least at this stage of the litigation, strikes us as unfounded. The plaintiffs’ argument would make sense if, after delivery of the federal census data, Illinois had decided to use an alternative and less reliable data set in its recent redistricting plan. Under that scenario, the plaintiffs could readily point to the federal census data as a basis for their contention that Illinois is in violation of Reynolds’ requirements and go to trial on their claim. But that is not the world we are in: Illinois didn’t select a weaker data source among those available; nobody suggests that Illinois would not have used the 2020 census data if the data had actually been available to the state.
Put differently, because the plaintiffs also lack access to the 2020 census data, they surely cannot challenge Illinois’s plan based on a speculative comparison to an unavailable (and thus for practical purposes non-existent) alternative data set. Plaintiffs do not point to some other, more accurate data set (among those available) than the data Illinois actually used. The Supreme Court itself has been wise to understand redistricting methods in comparative terms. The census, after all, is better than other population counts, but it isn’t 100% accurate. We wouldn’t find remotely plausible a challenge to a redistricting plan faithfully using the most recent census data on the basis that if a better count were made the district lines would look different. The plaintiffs are making that sort of argument in challenging Illinois’s use of best available data.
Even assuming all these justiciability and merits barriers were surmounted by the McConchie plaintiffs, we believe, as we explain in Part Two, that as a remedial matter the federal judiciary should be very wary of taking the districting question out of the General Assembly’s hands and placing it into a bipartisan commission that might easily end up having a majority of representatives from the party currently in the state legislative minority.