* Makes sense…

To members of the Illinois General Assembly,

After reviewing HC0058 Sponsored by State Representative Jack Franks it is the considered opinion of MALDEF that his proposal would better protect interests of racial and language minorities covered under Section 2 of the Voting Rights Act. The language of HC0058 prioritizes minority voting rights over a number of criteria including respecting the geographic integrity of units of local government. These subordinate criteria must give way when these are in conflict with the goal of protecting minority voting rights. HC0058 (“Franks Bill”) states:

(a) Legislative Districts and Representative Districts shall each, in order of priority, be substantially equal in population; provide racial minorities and language minorities with the equal opportunity to participate in the political process and elect candidates of their choice; provide racial minorities and language minorities who constitute less than a voting-age majority of a District with an opportunity to substantially influence the outcome of an election; be contiguous; be compact; respect, to the extent practical, geographic integrity of units of local government; respect, to the extent practical, communities sharing common social or economic interests; and not discriminate against or in favor of any political party or individual.

By contrast the Independent Maps proposal does not prioritize minority voting rights and the mandatory language it uses sets up a conflict by requiring that “the redistricting plan shall respect the geographic integrity of units of local government.” This creates a new cause of action where any person of any race sitting in a city or town that was not completely within a given legislative district could have standing to sue to challenge the plan’s treatment of their unit of local government. Two Suburban Chicago legislative districts that currently elect Latinos, Districts 24 and 21, cross a number of city and town borders and under the Independent Maps proposal could be challenged on the basis that they do not “respect the geographic integrity of units of local government.” Under the Franks Bill, if Districts like 21 and 24 were challenged the sole fact that a unit of local government was not kept intact would not be a basis to challenge the map as the criteria is less important than minority voting rights and under the plain language is only required to the extent practical.

Another important way that HC0058 is better is that when it refers to discrimination on the basis of party affiliation it does not contemplate a lawsuit based on disparate impact or unintentional discrimination. HC0058 adds a requirement that a redistricting plan “not discriminate against or in favor of any political party or individual.” Placing this at the end of a list of criteria prioritized by importance and in which minority voting rights is near the beginning of the list better protects minority voting rights.

By contrast the Independent Maps language states:

The redistricting plan shall not either intentionally or unduly discriminate against or intentionally or unduly favor any political party, political group or particular person.

Stating that the plan won’t intentionally “or” unduly favor a political party, group or person, sets up “intentionally” and “unduly” as separate, and distinct forms of discrimination. This allows what is essentially an effects test (or disparate impact) to creep into (ultimately) a court’s assessment about whether a plan “unduly discriminates” even if it does not “intentionally” discriminate.

Historically effects tests have been limited to cases where a protected class cannot show discriminatory intent but can show a discriminatory impact or effect – like under Title VII. These effects tests exist because for the most part people and institutions don’t state that they intend to discriminate against members of protected classes but often adopt policies that do so in effect, and where intentional discrimination may be difficult if not impossible to prove. The language in the Independent Maps amendment puts political discrimination on par with race discrimination. In the voting rights context, Section 2 of the Voting Rights Act actually requires a showing of discriminatory effect plus a finding under the totality of the circumstances that a map discriminates – this is a higher standard than that arguably required to show political discrimination under the Independent Maps language.

Finally, the Franks bill decouples State Senate Districts from State Representative districts by striking the requirement that two representative districts be nestled within one senate district […]

In Illinois, this measure would likely give more flexibility to the map drawers to create majority minority districts when doing so would otherwise be complicated by the nesting requirement.

Very truly yours,
Jorge Sánchez
Senior Litigator MALDEF
Midwest Regional Office

Rep. Franks’ proposal passed the House today by a vote of 105-7.