An Update on the Lawsuit Challenging Illinois’s Districting Plan, McConchie v. Illinois State Board of Elections

Posted in: Constitutional Law

In two earlier columns (the second of which is here) we discussed McConchie v. Illinois State Board of Elections (McConchie), a recent federal lawsuit by Republican Minority Leaders in both Houses of the Illinois legislature (known as the General Assembly) challenging the constitutionality of the apportionment of state legislative districts passed by the General Assembly at the end of May and signed into law by Illinois Governor J.B. Pritzker on June 4. In the space below we address recent developments in the litigation and offer our sense of the likely future course of things.

First, a recap: the lawsuit, filed in mid-June, contends that in its redistricting plan the General Assembly improperly used population estimates from a survey rather than from U.S. Census Bureau data based on the 2020 decennial census. Because of delays by the federal government, the census data were not available to the state legislature (or anyone else) at the time it adopted its plan (which it did ostensibly to comply with the timing requirements of the Illinois Constitution). The plaintiffs’ complaint asserts nonetheless that because the population estimates are inferior to the census data, the districts approved by the Illinois legislature violate the Fourteenth Amendment’s Equal Protection Clause and the one-person, one-vote principle it embodies. The plaintiffs invoke decisions of the U.S. Supreme Court that hold that any population deviation between legislative districts that exceeds 10% is presumptively impermissible. The complaint asks the district court to declare the plan invalid and—invoking a state constitutional provision that says 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”—to order state defendants to create and empower a commission to adopt a new plan.

In our previous columns we were skeptical that the plaintiffs had asserted sufficient individual injury to establish standing to sue in federal court under Article III of the Constitution (because they had not demonstrated that they lived in any allegedly over-populated districts) and we thought the lawsuit was not yet ripe (because the census data had not yet been released). On the merits, our provisional view was that because the General Assembly had used the best available data available to it at the time it acted (and because nothing in the federal Constitution required it to wait before acting), the plaintiffs could not easily succeed on their Equal Protection argument. And in any event we were (and remain) very skeptical that it would be appropriate for a federal court, by way of remedy in this case, to take redistricting out of the hands of the General Assembly and turn it over to a commission.

On August 12, the federal government released the census data. The plaintiffs thereafter moved for summary judgment. In their motion, they contend that the now-available census data confirm their predictions and demonstrate that the sizes of some districts drawn under the legislature’s plan indeed deviate by more than the 10% threshold. They reassert their equal protection claims and their demands for declaratory relief and a court order for a commission to draft a new plan based on the census numbers. Also before the district court now are motions by the defendants to dismiss the lawsuit, that track many of the arguments we laid out in our columns, including that the plaintiffs have not established standing. It is thus noteworthy that while in their summary judgment motion the plaintiffs report on their expert’s finding that, given the census figures, the overall plan contains districts that vary by more than the 10% threshold, they do not provide any evidence—presumably because they cannot—that they themselves live in districts that are too populous, an essential requirement, as we explained in Part One of our series, for them to establish standing in this case.

It seems to us very likely, now that the census data are available, that the General Assembly will simply tinker with the redistricting plan it adopted three months ago in a way that ensures a distribution of seats consistent with the 10% threshold the Supreme Court identified. When that happens it, in our view, should end the matter, since even if the plaintiffs had standing to sue in federal court, their federal equal protection claim would no longer have any force, since no election was ever held using districts that run afoul of one person, one vote.

We should add here that we are not certain that the federal Constitution actually requires the General Assembly to revise its plan or to do so immediately. That is, even if the Illinois legislature did nothing, the plaintiffs’ federal claim (if it were deemed justiciable) might still very well lose. As we explained in our earlier installments, the General Assembly made use of the best available data at the time it devised its plan; the General Assembly cannot be faulted for the fact that the federal government had not yet released the census figures. And while redistricting when census data become available gives states something of a safe harbor, neither the Constitution’s text nor the Supreme Court cases implementing it lays out any particular schedule for state redistricting, or even a firm requirement to ever use census data. Even if the plaintiffs can succeed in establishing standing—and so far it is hard to see how they will—they have not necessarily demonstrated an equal protection violation that would entitle them to summary judgment, whether or not the Illinois legislature modifies its plan before the federal court rules in late August (when the summary judgment hearing is set for) or beyond.

The plaintiffs assert in their motion for summary judgment that the General Assembly cannot now revise its plan to conform to the census data—the very thing the plaintiffs themselves said they want in the complaint—because under the Illinois Constitution the General Assembly had to complete its work prior to June 30. But it’s hard for us to see how a federal court would prevent a state legislature from enacting a revision to the adopted plan or bar the governor from signing the revision into law. Especially because whether or not the plaintiffs have any plausible argument that revision today would run afoul of state law (and we think it wouldn’t), a federal court is not likely to try to enforce such state law before adjudicating a weighty federal claim. And, as we noted above, if the General Assembly does revise its plan in light of the census numbers and the governor signs that plan into law, plaintiffs’ equal protection claim—which, recall, is that a census-based plan is required—would disappear. For this reason, we think the inevitable result is that the district court would then dismiss the lawsuit.

Relatedly, it strikes us as very unlikely that a district court would retain jurisdiction over the plaintiffs’ associated claim, one that is really about remedy, that the state constitution requires the creation of a commission to produce the new plan. The plaintiffs might be able to challenge in state court new action by the General Assembly to modify the plan (or inaction by the General Assembly in not creating a commission). But we are skeptical that even a state court would be inclined to enjoin a revised redistricting plan produced once the census data became available, and lacking any substantive defect, on the ground that had things proceeded on a normal timeline it was the commission’s turn. The plaintiffs do not explain, for example, why, if it is imperative to follow the state constitution’s schedule, a commission is even possible at this stage: the very provision of the state constitution the plaintiffs rely on requires any commission to be constituted by July 10 and to file its own plan by August 10—also before the census data were released. So the timelines provided for by the state constitution are already by the boards no matter what, which would leave a state court without much of a basis for creating a commission that already violates the prescribed timeline for it to act. For this, and other more pragmatic reasons, we do not expect the Illinois Supreme Court (where any aggressive lower state court ruling would be appealed to in any event) to support doing anything but letting the revised district lines (if they be revised as we expect) go into effect.

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