League of Women Voters of Illinois^®

Lawyers in all three cases – LWVIL’s and the two filed by Republicans – requested a 3-judge panel (a common practice in Federal court) to hear their respective cases. Since all three cases are related to the same issue, the lawyers thought the Chief Judge would assign all three cases to the same 3-judge panel. (LWVIL leadership felt that having each case heard by separate panel was a poor use of both the court’s and LWVIL’s resources) In the end, however, the Chief Judge assigned each case to its own panel.

A stipulation of being heard by this federal panel is that LWVIL had to drop the Congressional map from its complaint. LWVIL is only challenging the General Assembly map in its lawsuit. On September 1, 2011, LWVIL filed an amended complaint stating it was not including the Congressional maps in its lawsuit.

The 3- judge panel who will consider both the LWVIL and the Republican’s state lawsuit consists of U.S. District Court (Northern District of Illinois) Judge Elaine Bucklo who heads the panel; Judge Diane Sykes, U.S. Court of Appeals, 7th Circuit: and Philip Simon, the Chief Judge of the U.S. District Court of Northern Indiana. The 3-judge panel for the Republican Congressional map challenge is headed by U.S. District Court Judge Joan Lefkow.

This lawsuit is not the first attempt of the League of Women Voters of Illinois to reform the current system. Two years ago, LWVIL was involved in a citizens’ initiative to amend the Illinois Constitution to create a fairer, less partisan, more transparent process of redistricting. The League and its partners did not have sufficient resources – either time or money – to procure the requisite number of signatures (nearly 500,000 were needed) to place the measure – the Illinois Fair Map Amendment – on the 2010 election ballot.

Although launching another citizens’ initiative remains a possibility, it will not be effective until 2021 – ten years from now – after the next census. This lawsuit seemed like an opportunity to effect change sooner and keep the issue alive.

The United States Supreme Court has consistently found that political gerrymandering plans or schemes may be justiciable (capable of being considered by a court of law) under the Voting Rights Act of 1965 but has determined that, since no standard by which to determine the constitutionality of a political gerrymander exists, merits of a particular plan are outside its scope.

The United States Supreme Court’s interpretation of the Voting Rights Act of 1965 has determined that certain redistricting plans that seek to create majority-minority legislative districts are constitutional but has not extended that interpretation to include legislative districts drawn using political or partisan data. Thus efforts to challenge political gerrymandering under the 14th Amendment have not been successful.

None of the recent Supreme Court decisions regarding either political or racial gerrymandering have been unanimous. Justice Kennedy, even though siding with the majority in Vieth v. Jubelirer 541 U.S. 267 (2004), an important redistricting case, found a First Amendment consideration compelling:

“The First Amendment may be the more relevant [more relevant than the 14th Amendment] constitutional provision in future cases that allege unconstitutional partisan gerrymandering. After all, these allegations involve the First Amendment interest of not burdening or penalizing citizens because of their participation in the electoral process, their voting history, their association with a political party, or their expression of political views.” Our lawyers have incorporated this theory into our court pleadings.

The League’s approach to challenging the partisan gerrymandering of Illinois legislative districts is novel and is one that has never been tested but given the public frustration with the current system, the League chose this approach. Ultimately the League wants the federal court to order a process that is driven by “impartial” decision-makers.

1. Declare that the maps drawn and are about to be implemented deny or abridge the First Amendment rights of LWVIL members and other residents throughout Illinois.


2. Enjoin the Illinois State Board of Elections from implementing the new legislative maps based on the Court’s finding in #1 above.


3. Direct the appropriate Illinois public and elected officials to develop a new process for developing new state legislative districts through the selection of an impartial decision-maker or body by the Legislative Redistricting Commission (Article IV, section 3 of the Illinois Constitution) that ensures the least infringement on the First Amendment rights of Illinois residents based on their political views, opinions and beliefs and to ensure that any process developed safeguards against the dilution of minority voting rights under the Voting Rights Act.

Chicago Tribune editorial, Sunday, August 21, 2011

Your vote is your voice.

So when Democrats in the General Assembly rigged the legislative maps to favor themselves, they violated your First Amendment right to free expression, the League of Women Voters of Illinois says in an intriguing federal lawsuit. The suit asks the court to throw out the maps.

It's the third legal challenge filed against the maps, which were signed into law earlier this year by Gov. Pat Quinn, also a Democrat. Quinn declared the maps "fair" and "competitive," even as Republicans howled in protest and Democrats danced a victory jig.

The Statehouse map includes at least a dozen districts in which two or even three Republican incumbents are roped together, forcing them to run against each other while Democrats sail to victory in friendly districts drawn just for them.

The congressional map is designed to flip the state's Washington delegation from 11-8 Republican to 12-6 Democratic. (Illinois is losing a seat because its population is down in the 2010 U.S. census.) That egregiously gerrymandered map prompted Politico.com to pronounce that House Speaker Michael Madigan, the state's top Democrat, had "punched his ticket to the partisan hall of fame."

The first two challenges, filed by aggrieved Republicans, focus mostly on the claim that the maps fall short of the protections afforded to African-Americans and Latinos under the federal Voting Rights Act. It's an argument courts historically have taken very seriously.

But getting a map thrown out because it favors one party over another is generally a lost cause. Legislative maps are inherently political, and complaints about partisan gerrymandering are invariably dismissed with the old line about victors and spoils.

The U.S. Supreme Court has heard only two cases — in 1986 and 2004 — based on claims of politically motivated redistricting, and the rulings haven't been especially helpful. At the risk of oversimplifying: The Supreme Court recognizes that partisan gerrymandering might violate the U.S. Constitution. But neither of the cases it has heard identified a constitutional standard that could be applied, and the court didn't offer one, either.

Both of the cases claimed that deliberately diluting an opposing party's voting strength violated the 14th Amendment's equal protection provision. In the 2004 case, Justice Anthony M. Kennedy hinted that the First Amendment might be a better button to push.

Let's have a go at it, then.

The League of Women Voters makes a convincing argument that by sorting residents into districts based on how they're expected to vote, lawmakers manipulate the opinions that are expressed and heard in those districts. As a result, "voters in Illinois seldom have real choices in our elections," League President Jan Dorner said.

The lawsuit asks the court to declare that drawing maps based on the political views or voting histories of residents for the purpose of securing a partisan advantage violates the First Amendment. It asks the court to invalidate the maps, and to order the governor and General Assembly to come up with a redistricting process that isn't based on self-serving political interests.

It's asking the court to make new law, in other words. The league spent most of last year trying to accomplish that through legislative channels. It didn't happen, for obvious reasons.

Fair representation is supposed to be the goal of legislative mapmaking. Partisan gerrymandering hijacks that process, allowing political power brokers — not voters — to pick winners and losers. By rearranging the map to place your vote where it suits their needs, politicians stifle your voice. Is it any wonder your lawmakers listen to their party leaders instead of to you?

It is noteworthy that the delegates to the LWVIL 2011 Convention readopted redistricting reform as a focus for its work during the next biennium.
October 18, 2011

Links to Resources:

• Where We Stand
  
• Illinois District Maps
  
• The Brennan Center Guide to Redistricting
  

Josh Goodman with the Pew Center on the States suggests the following are the seminal redistricting cases decided by the Supreme Court of the United States:

• Baker v. Carr (1962) The Supreme Court rules that redistricting is an appropriate subject for judicial oversight, reversing earlier rulings that had deemed it a “political question” that the courts should avoid.
• Reynolds v. Sims (1964) The Court rules that state legislative districts must be roughly equal in population under the "one-person, one-vote" principle and in doing so sets the stage for redistricting to be required after each Census. The same principle applies to U.S. House districts.
• Davis v. Bandemer (1986) The Court rules for the first time gerrymandering for a party's electoral advantage is an appropriate subject for judicial oversight, but creates a very high bar for proving that a partisan gerrymander is unconstitutional.
• Shaw v. Reno (1993) The Court rules that redistricting plans based primarily on racial considerations deserve strict scrutiny, clarifying the difficult balance that map-drawers must strike: They must consider race in accordance with the Voting Rights Act, but can’t allow it to override all other factors.
• Vieth v. Jubelirer (2004) In a 5-4 decision, the Court maintains its reluctance to throw out maps drawn for partisan advantage.
• LULAC v. Perry (2006) Ruling on a controversial mid-decade redistricting plan in Texas, the Court says that states are allowed to redraw districts more than once per decade, and continues to reject claims against partisan gerrymandering under its new Chief Justice, John Roberts.

For further information, contact: Jan Dorner, President, League of Women Voters of Illinois, 312.939.5935 x-35.