Can/Should A Federal Court Order the Creation of a Bipartisan Districting Commission in Illinois? Evaluating the Claims for Remedy in McConchie, the Republican Challenge to Illinois’s Recently Adopted Redistricting Plan

Posted in: Election Law

In this—the second—installment in our series on McConchie v. Illinois State Board of Elections, in which Republican Minority Leaders in the Illinois General Assembly (in their official capacity and as registered voters) challenge in federal court the constitutionality of the apportionment of state legislative districts that the General Assembly and the Governor recently enacted, we focus on remedies. Our prior discussion flagged standing and ripeness hurdles the plaintiffs will need to overcome in order to get to the merits of their claim. And as to the merits themselves, we expressed doubts about whether the plaintiffs should and will prevail in their argument that because the Illinois legislature used a population survey rather than (traditionally) more reliable but not yet available decennial census results based on the 2020 national count, the enacted redistricting plan violates the one-person, one-vote requirement of the Fourteenth Amendment.

Yet even if the federal courts were to agree that the plaintiffs have overcome the justiciability hurdles and that they have established a violation of the Fourteenth Amendment, we are skeptical that it would be proper for the courts to grant the remedies the plaintiffs are seeking.

In their Complaint, the plaintiffs do not ask merely for an order enjoining implementation of the state’s allegedly unconstitutional redistricting plan. That was no oversight. Rather than simply requesting a court to direct the legislature to correct the constitutional violation they assert, the plaintiffs seek to take the redistricting process out of the hands of the Democratic-controlled state legislature entirely by invoking procedural provisions of Article IV of the Illinois Constitution. Article IV says that “[i]f no redistricting plan becomes effective by June 30” in the year after the federal decennial census, then “a Legislative Redistricting Commission shall be constituted not later than July 10,” comprising “eight members, no more than four of whom are members of the same party.” And if that bipartisan commission fails to file a plan supported by five commissioners 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; the Secretary then draws one of the two names to add a ninth member to the Commission to break the deadlock and submit a majority-approved redistricting plan by October 5.

The plaintiffs foresee, then, an opportunity for a different plan—perhaps one more favorable to their own political fortunes—emerging from a bipartisan commission in which (in contrast to the state legislative process), Democrats do not have voting control. And beyond that, if the bipartisan commission itself deadlocks, the plaintiffs surely understand there is a 50-50 shot of Republican control, since the name of the ninth commissioner would be drawn by lot. By way of judicial remedy, then, the plaintiffs ask a declaration that the legislature’s plan is unconstitutional and an order—styled as a writ of mandamus, which is a directive to government officials to perform ministerial tasks, that is, tasks over which they have no discretion—directing the state defendants to take the necessary steps to create, right now, the bipartisan commission so it can begin working on a new plan. (The plaintiffs propose in the alternative, and without much explanation, court appointment of a special master, but we do not take up that issue here.)

The plaintiffs’ remedial request hinges on their claim that the legislature’s plan cannot be deemed to have “become[] effective by June 30” insofar as an unconstitutional plan is not “effective” because it lacks valid legal effect. That argument reflects a particular, and perhaps unusual, reading of the Illinois state constitution. It is surely not the only plausible reading. One might, instead, read “becomes effective” to mean, more basically, that the legislature passed, and the governor signed into law, a plan with a start date no later than June 30. All enacted laws have effective dates, whether the moment of signing or some point in the future. Given this, it might make good sense to read “becomes effective by June 30” in light of the separate requirement in the Illinois Constitution (entitled “Effective Dates of Laws”) that the General Assembly “provide by law for a uniform effective date for laws passed prior to June 1 of a calendar year,” but permitting the legislature to adopt variations from the uniform requirement in particular laws passed before June 1. Under the state’s Effective Date of Laws Act (the statute seeking to comply with the constitution’s requirement), “[a] bill passed prior to June 1 of a calendar year that does not provide for an effective date in the terms of the bill shall become effective on January 1 of the following year, or upon its becoming a law, whichever is later.” The redistricting plan was adopted by the General Assembly at the end of May and so would otherwise not take effect until the beginning of 2022 but for the fact that (because in redistricting, time is of the essence), it has its own “effective date” provision (in section 99): “This Act takes effect upon becoming law,” i.e., upon signing by the Governor.

Again, the plaintiffs’ argument is that the plan never took (and could never take) “effect” because an unconstitutional statute is not law and cannot become so—and thus we are back to a failure to meet Article IV’s deadline of June 30. (Perhaps that is why, tactically, the plaintiffs do not ask the court to enjoin implementation of the legislature’s plan—the need to enjoin implementation might suggest that the plan is already becoming “effective.”) But a far simpler understanding of Article IV, one the General Assembly itself appears to have had, is that “becomes effective” for purposes of Article IV requires asking only whether an adopted plan has a statutory start date before June 30.

Broader considerations also cut against the plaintiffs’ claim that “becomes effective” depends on the constitutionality of the plan adopted. Viewed together, the Article IV provisions seem best understood to create a process for moving redistricting along and getting it past logjams so as to ensure that a timely plan is agreed upon by state lawmakers. Illinois gives redistricting in the first instance to its General Assembly, and only if it fails does the responsibility shift to a commission. Different states have different approaches, but in Illinois the legislature is the primary actor; if it generates a plan, there is nothing for a commission to do (indeed, one is not even constituted). But legislatures can and do deadlock, and because redistricting is different from other legislative initiatives (in that it is not merely helpful but periodically necessary), there exists what the Illinois Supreme Court calls the “backup procedure”: assignment of responsibility for the plan to a commission.

The particular deadlines specified in the Illinois state constitution also make sense in broader and historical context. Ordinarily, the federal government, in accordance with federal statutory requirements, releases census data to states for redistricting within one year of the required April 1 census start date (see 18 U.S.C. § 141(c)), thus by April 1, 2021, for the 2020 census. Under the Illinois Constitution, federal census release by April 1 would give the General Assembly (at least) three months, before June 30, to generate a redistricting plan—with the more compressed backup procedures kicking in only should the legislature fail to meet the deadline.

Some state constitutions, recognizing the possibility of unusual circumstances, build in provisions for extensions of state redistricting deadlines. The Colorado Constitution assigns redistricting responsibility in the first instance to a commission (with a staffer-generated plan if the commission fails), but the commission’s constitutional September 15 deadline can be extended “if conditions outside of the commission’s control require such an adjustment to ensure adopting a final plan.” See Colorado Const., art. V, § 48.2. Delay of federal census data is an obvious example of a condition beyond the state’s own control. And New Jersey also had good recent foresight: in November 2020, New Jersey voters amended their constitution to postpone the planned legislative redistricting process until after the 2021 state elections if the federal census data arrived late.

Planning for the unexpected can certainly be a good thing. But it would be unfair and unwise to read the Illinois Constitution to mean that the legislature gets to perform its intended redistricting role only if the federal census data (which the plaintiffs insist the state use) arrive on the normal schedule. The California Supreme Court recently explained in its unanimous order extending a constitutional deadline for the state redistricting commission (responsible in the first instance for generating a plan there) to complete its work, the deadline was best understood as “the amount of time that is ordinarily appropriate for an affective redistricting process after the necessary federal census data are released” and that the “backstop” option, the court itself generating a plan, was “not designed to address the situation here, where the Commission will be unable to complete its work by the prescribed deadline because of extraordinary events outside of its control.”

The California Supreme Court order is illustrative and important not only in its disinclination to divest the state’s primary districting authority (in that state a commission, in Illinois the legislature) of its power in favor of a backup procedure when the cause for delay lies outside the control of the state. The California decision is noteworthy also because it comes from a high state, not federal, court. Although the McConchie plaintiffs are (likely for tactical reasons) not explicit about it, their case really raises a state-law claim (under Article IV of the Illinois Constitution) that is pendant to their federal, Fourteenth Amendment, claim. In other words, the plaintiffs’ legal entitlement or claim (if any) to the appointment of a bipartisan commission derives from state, not federal, law. And state supreme courts—not federal courts, not even the U.S. Supreme Court—are the ultimate interpretive authority when it comes to the meaning of state law.

Enabling the Illinois Supreme Court—rather than federal courts—to decide what “becomes effective” means in this context makes sense not just for the general reasons discussed above about not ousting a state’s primary redistricting entity when delay in action is not its fault, but for another reason as well. Notice that timing of the release of federal census data is in the hands of the executive branch of the federal government. Imagine that the White House were held by one party, and a majority of states had legislative majorities of the other party (as is true today). Imagine further that many (most?) states have a state constitutional timeline and backup procedure similar to Illinois’s. Finally, let’s assume the plaintiffs are correct that only federal census data can be the basis of state redistricting. Such a scenario would give the President of one party an incentive and an opportunity to effectively unfairly enable his party to enhance its redistricting power across the nation, by delaying release of federal data with the knowledge that in the (majority of) states where his party is in the state legislative minority, his party would end up with control of the ultimately powerful bipartisan commissions half the time. (Indeed, even for those states that don’t use bipartisan commissions in lieu of legislative districting, the “backup” plans might be more favorable to the party controlling the White House than are state legislatures of the opposing party.) Given these partisan gamesmanship possibilities and incentives, before we move on to bipartisan commissions or other fallback processes instead of the state legislatures primarily tasked with districting, we should be sure that is what each state constitution actually requires in these unusual circumstances.

Happily, there are easy ways the federal court in which the McConchie plaintiffs have sued can make sure that the Illinois Supreme Court gets a chance to interpret Article IV. As noted earlier, the plaintiffs (without saying so directly) are asking the federal court to exercise “supplemental” jurisdiction over their claim that they are entitled, under Illinois law, to the creation of a bipartisan commission. And the federal statute that allows federal courts to hear supplemental state-law claims when they arise out of the same case or controversy as the federal (anchor) claim also permits federal courts to decline to exercise jurisdiction over state law claims that “raise[] novel or complex issue[s] of state law.” The plaintiffs’ alleged entitlement under Article IV raises an argument that is both novel and complex. If the federal court declines to exercise jurisdiction over the Article IV claim, the plaintiffs would then be free (assuming they won on the merits of their federal claim in federal court) to go to state court to ask for creation of a commission, in which case the Illinois Supreme Court could weigh in as appropriate.

Or the federal court could simply deny the requested writ of mandamus (either right away or after taking up the merits.) The plaintiffs could then appeal that denial to the federal appellate court, which then could (and perhaps the district court order denying relief could suggest this) “certify” to the Illinois Supreme Court under Illinois Supreme Court Rule 20 questions about the proper interpretation of “becomes effective” under Article IV of the state constitution. Indeed, if the district court denied mandamus (or indicated its disinclination to exercise jurisdiction over the supplemental state-law claim right away), it could facilitate “interlocutory” (that is, immediate, before everything else is resolved in the district court) appeal right away, permitting prompt certification to the Illinois Supreme Court. In any of these ways, the question of whether a commission is required under state law would (rightly) be decided by the appropriate arbiter of state law—the Illinois Supreme Court.

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