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Republican legislative leaders file federal suit to block Democratic remap based on population estimates

Wednesday, Jun 9, 2021

* Filed in the US District Court for the Northern District of Illinois

Plaintiffs bring this lawsuit to protect the fundamental rights of Illinois voters and to invalidate the state legislative redistricting plan passed by the Illinois General Assembly on May 28, 2021 and signed into law by Governor Pritzker on June 4, 2021 (the “Redistricting Plan” or “Plan”). In its zeal to rush a plan through the legislature, the General Assembly drew the legislative districts in the Plan using population estimates derived from a survey rather than waiting a few months for the U.S. Census Bureau (the “Census Bureau” or “Bureau”) to provide redistricting data containing official population counts from the 2020 decennial census. Plaintiffs seek a declaration that the Plan is unconstitutional, invalid, and thus void ab initio. Plaintiffs also seek an order directing Defendants Emanuel Christopher Welch and Don Harmon to appoint members to a bipartisan redistricting commission (“Commission”) per Article IV, Section 3 of the Illinois Constitution, or alternatively granting other appropriate relief that allows for the drafting and implementation of a redistricting plan based on the official 2020 decennial census counts, including appointing a Special Master to draft a valid and lawful redistricting plan. […]

Because it uses ACS estimates for population data, the Redistricting Plan does not ensure that the Senate and Representative Districts satisfy the constitutional mandate of substantially equal populations […]

Because the legislative districts in the Plan were drawn using ACS estimates and unspecified “election data,” the districts cannot and do not satisfy the constitutional requirement of substantial population equality. The use of ACS estimates for the Redistricting Plan, among other issues, also renders the Plan arbitrary and discriminatory. For these reasons, the Court should declare the Redistricting Plan unconstitutional, invalid, and thus void ab initio and order Defendants to cooperate with the creation of a bipartisan legislative redistricting Commission. […]

Plaintiffs request a three-judge trial court pursuant to 28 U.S.C. § 2284(a) and Rule 9.1 of the Local Rules for the Northern District of Illinois because this action challenges the constitutionality of the apportionment of a statewide legislative body.

Click here to read the rest.

…Adding… Press release…

Illinois House Republican Leader Jim Durkin (R-Western Springs) and Illinois Senate Republican Leader Dan McConchie (R-Hawthorn Woods) filed a lawsuit today in federal court to challenge the legislative maps drawn and passed by Illinois Democrats in the General Assembly and signed into law by Governor JB Pritzker. The lawsuit is being filed against Illinois House Speaker Emanuel Chris Welch (in his official capacity), Illinois Senate President Don Harmon (in his official capacity), the offices of the Speaker of the House and the Senate President, and the Illinois State Board of Elections and its members (in their official capacities).

“Today’s filing should come as no surprise to Illinoisans. The partisan process upon which the legislative maps were drawn flies in the face of the strong recommendations made by countless advocacy groups and citizens who testified at the redistricting hearings,” Leader Durkin said. “The tone deaf Democratic party of Illinois has robbed citizens of a fair and transparent legislative map-making process, and I plan to be a conduit for Illinois citizens who demand honesty by ensuring they also have their day in court.”

The lawsuit argues that the use of American Community Survey (ACS) estimates violates the federal law, including well established “one-person, one-vote” principles under the U.S. Constitution. More than 50 good government and community advocacy organizations and leaders implored the General Assembly to wait for the release of official census counts, which are expected by August 16, 2021. The use of ACS estimates will undercount minority, rural and growing communities and will result in a population disparity between districts that exceeds what federal law allows. Even the U.S. Census Bureau has said that ACS estimates are not appropriate for drawing legislative boundaries.

“Today we are entering court on behalf of the thousands of families, small business owners, workers, and taxpayers who said they wanted an independently drawn map, not the one handed down by political insiders desperately clinging to power,” said Illinois Senate Republican Leader Dan McConchie (R-Hawthorn Woods). “We believe this is our best option to advocate for the 75 percent of voters who were refused an independent process and a map created with accurate data. More than 50 independent groups asked the legislature not to use American Community Survey sampling estimates, and instead wait for the actual Census counts to be released, but the politicians in power ignored them. ACS estimates have never before been used for redistricting in Illinois, and we plan to challenge the legitimacy of these maps to the fullest extent of the law.”

The lawsuit requests that the court declare the Democrats’ plan to be unconstitutional, invalid, and void ab initio. The lawsuit also requests that the court direct Speaker Welch and President Harmon to make their appointments to the Illinois Legislative Redistricting Commission as required by the Illinois Constitution. That commission has been used in every redistricting cycle but one since the constitution’s adoption in 1970. Leaders Durkin and McConchie will make their appointments soon and have pledged to work with those commissioners and the Democratic Leaders to adopt a transparent, bipartisan and independent process for drawing and approving a legislative map after the release of official census data in August.

…Adding… A commenter mentioned this passage in the lawsuit

Comparisons using historical data also demonstrate the problems inherent in using ACS estimates for redistricting. Experts have run comparisons of computer-generated plans drawn using the 2005-2009 ACS estimates, which show that the use of ACS estimates inevitably results in population disparities well in excess of 10%. Among a thousand computer-generated plans drawn using the 2005-2009 ACS estimates, while controlling for compactness and majority-minority districts, not a single plan had a maximum population deviation within 10% when subsequently analyzed against the 2010 census counts. Instead, the plans based on ACS estimates showed maximum population deviations that were generally between 23% and 55%, far beyond the constitutional limits.

That’s fascinating, but there’s no footnote to explain what experts these are or how the computer-generated plans were developed and what they’re basing the comparison on, since there’s no available census data.

…Adding… Press release…

The statement below can be attributed to Sen. Omar Aquino, D-Chicago, Chair of the Senate Redistricting Committee, and Sen. Elgie Sims, D-Chicago, Vice Chair of the Senate Redistricting Committee:

“It is disappointing but not surprising Republicans would seek to strike down these new maps, which reflect the great racial and geographic diversity of our state. Throughout this process, they have done nothing but delay and obstruct efforts to ensure our communities are fairly represented, as seen by their refusal to even draft their own proposals. We stand by our work to ensure everyone has a voice in state government.”

…Adding… Press release…

Leader Hernandez’s Statement Regarding Republican Effort To Block Maps Reflective of Diversity of Illinois

“As expected, the Republicans are doing everything in their power to block a map that reflects the true diversity of Illinois in hopes that they get a chance to single handedly draw a map for their political gain,” said Rep. Lisa Hernandez, Chair of the House Redistricting Committee. “Republicans in the House have done nothing but attempt to obstruct this citizen-driven process. They’ve staged charades for the media while spending well over $500,000 of taxpayer money out of their redistricting budget, but couldn’t even bother to submit their own proposals to be considered. This is just another disappointing waste of taxpayer dollars, but not at all surprising. We have full confidence in the maps passed by the legislature and signed by Governor Pritzker, and we will continue to review this lawsuit.”

- Posted by Rich Miller        

42 Comments »
  1. - Oswego Willy - Wednesday, Jun 9, 21 @ 11:55 am:

    It’s all they got…


  2. - Just Me 2 - Wednesday, Jun 9, 21 @ 12:02 pm:

    It’s simple: one man, one vote. Nobody can show proof the corruptly-created map fulfills that Constitutional requirement. That is why the Congressional map has been delayed.


  3. - Cheryl44 - Wednesday, Jun 9, 21 @ 12:08 pm:

    If I have to choose between the Democratic Party or the party of The Former Guy, I will choose the Dems’ map.


  4. - Oswego Willy - Wednesday, Jun 9, 21 @ 12:09 pm:

    ===corruptly-created map===

    What, very specifically, is corrupt.

    So we’re all talking about the same thing


  5. - Precinct Captain - Wednesday, Jun 9, 21 @ 12:17 pm:

    They talk about all these computer generated maps, but they publicly said there was no map drawing of any kind going on. They’re already lying in their lawsuit.


  6. - Oswego Willy - Wednesday, Jun 9, 21 @ 12:20 pm:

    They want a federal court to rule on a lawsuit pertaining to an interpretation… that might be better in jurisdiction in an Illinois court?


  7. - Curious - Wednesday, Jun 9, 21 @ 12:30 pm:

    So, is a State court suit imminent on the Supreme Court redistricting? It seems like there is a valid argument on that one that the new fourth district is not “compact” as required by the State constitution.


  8. - Oswego Willy - Wednesday, Jun 9, 21 @ 12:33 pm:

    === that the new fourth district is not “compact” as required by the State constitution.===

    Really? How so? Is there a Voting Rights Act reason it’s drawn that way?


  9. - Huh? - Wednesday, Jun 9, 21 @ 12:38 pm:

    What took them so long to file the lawsuit? And who is paying for it?


  10. - Rich Miller - Wednesday, Jun 9, 21 @ 12:40 pm:

    ===What took them so long===

    The governor signed the bill a few days ago, for crying out loud. Maybe a nap is in order.


  11. - Curious - Wednesday, Jun 9, 21 @ 12:41 pm:

    It isn’t a Voting Rights Act issue. The State constitution requires the judicial districts to be “compact.” Webster defines that as “closely and neatly packed together; dense.” The new fourth judicial district is huge and bends around the third. In fact, a person in the north part of the district would pretty much drive right past the third district court house to get to their own new courthouse location in Springfield.


  12. - Oswego Willy - Wednesday, Jun 9, 21 @ 12:43 pm:

    === The new fourth judicial district is huge and bends around the third. In fact, a person in the north part of the district would pretty much drive right past the third district court house to get to their own new courthouse location in Springfield.===

    Meh.

    Land and size versus population.

    Your goal isn’t equal population but how a district “looks”


  13. - Rich Miller - Wednesday, Jun 9, 21 @ 12:46 pm:

    ===Webster defines that===

    Webster is not the operative authority here.


  14. - Norseman - Wednesday, Jun 9, 21 @ 12:50 pm:

    Lot of interesting things going on here. Jurisdiction/venue is one of them. Requested remedy is another. They want a federal court to order the imposition of a state constitutional procedure that by wording no longer applies. So the federal court must get into interpretation of federal law and also state law - state constitutional law.

    If the Fed court is being asked to implement part of the state constitution commission procedure, they will get into a major debate over the interpretation of those procedures. The defendants will argue that by the very nature of the plaintiffs argument (the use of actual census data must be used), the time frame in IL law would result in an unbalanced partisan commission.

    Pass the M&M’s (not a popcorn fan), this will be an interest show.


  15. - Stu - Wednesday, Jun 9, 21 @ 12:52 pm:

    The Illinois Supreme Court already said they were not implementing the new judicial map “until further notice”


  16. - Rich Miller - Wednesday, Jun 9, 21 @ 12:57 pm:

    ===they were not implementing the new judicial map “until further notice” ===

    That’s not what they said.


  17. - Frank talks - Wednesday, Jun 9, 21 @ 1:03 pm:

    Lots of whistling and presumptions here today


  18. - EssentialStateEmployeeFromChatham - Wednesday, Jun 9, 21 @ 1:06 pm:

    ===In fact, a person in the north part of the district would pretty much drive right past the third district court house to get to their own new courthouse location in Springfield.===

    Galesburg would be an ideal location for the new 4th district’s courthouse.


  19. - All this - Wednesday, Jun 9, 21 @ 1:14 pm:

    I doubt using American Community Survey violates federal law. Talk about a Hail Mary pass.


  20. - Ducky LaMoore - Wednesday, Jun 9, 21 @ 1:18 pm:

    “They want a federal court to rule on a lawsuit pertaining to an interpretation… that might be better in jurisdiction in an Illinois court?”

    Maybe that is plan B if the lawsuit fails. I am not sure how deeply federal courts want to get involved in how states draw their maps and the data used. But I guess we’ll see.


  21. - The Dude Abides - Wednesday, Jun 9, 21 @ 1:20 pm:

    I thought the GOP opposed frivolous law suits.


  22. - Rabid - Wednesday, Jun 9, 21 @ 1:43 pm:

    What data is the GOP using to make this assumption. Soothsayer prediction


  23. - Arsenal - Wednesday, Jun 9, 21 @ 1:56 pm:

    ==It’s simple: one man, one vote. Nobody can show proof the corruptly-created map fulfills that Constitutional requirement.==

    Well, for one thing, the burden of proof rests with the plaintiffs. It’ll be up to them to show proof that the map violates OMOV.

    And for another, the only clear requirement of OMOV is proportionality- the districts have to be of equal size, give or take a certain margin for error. It’ll be very hard for the plaintiffs to show proof that that requirement isn’t fulfilled here.


  24. - Steve Rogers - Wednesday, Jun 9, 21 @ 2:06 pm:

    @Curious =The new fourth judicial district is huge and bends around the third=

    So? The district map needs to keep the circuits together. The new fourth was drawn in order to do that. You got a better map?


  25. - Just Another Anon - Wednesday, Jun 9, 21 @ 2:10 pm:

    The meat of the case is not cited above, but if you look at page 27, you get into the actual argument. Using 2005-2009 ACS data vs. the 2010 Census data, the ACS data had population deviations topping out between 23% and 55%. Similarly, that data undercounted almost 200,000 minorities in Illinois, the largest of which was Latinos, resulting in two fewer majority Latino districts.

    from the start, ynything beyond 10% deviation is unconstitutional. So, if they used ACS data, and they drew a map that was 100% equal down to the person, they would still be between 23% and 55% undercounting depending on the geographic districts.

    I understand this is a political blog, but I’ll point out that reapportionment is about more than political gain. Its designed to ensure that everyone’s voice and vote carries equal weight in our republic. Those values are enshrined in the Illinois and United States Constitutions. At a minimum, any responsible citizen who remotely claims to be anything but a partisan should be encouraging the use of the most accurate data. Sacrificing accuracy, which undermines the very principles which founded this country and system of government, at the altar of political gain or expediency only accelerates the decline of this system of government.


  26. - Rich Miller - Wednesday, Jun 9, 21 @ 2:13 pm:

    ===ACS data had population deviations topping out===

    I see that now. However, it’s not footnoted. Just “experts say” without revealing which experts say it.


  27. - Just Another Anon - Wednesday, Jun 9, 21 @ 2:23 pm:

    @ Rich

    And in a complaint, they won’t need to. Evidentiary hearings (or affidavits) come afterwards. Federal Court does not have the same strict “fact pleading” standard that Illinois courts have. Federal courts require only a short and plain statement of the claim showing that the pleader is entitled to relief. Iqbal and Twombly simply refined that to require some facts, not merely conclusions and recitations of elements.


  28. - Anyone Remember - Wednesday, Jun 9, 21 @ 2:47 pm:

    In 2006 the US Supreme Court said a state(s) could reapportion as often as they wanted in a decade. This came out of the 2003 Texas reapportionment, the second reapportionment after the 2000 Census. Of note is the decision did not require actual Census data be used. IF a state were to reapportion every 2 years, after 6 years wouldn’t the current ACS be more accurate than the last Census?

    There is nothing that prevents the maps from being redrawn for 2024 after actual Census data is available.


  29. - thisjustinagain - Wednesday, Jun 9, 21 @ 3:09 pm:

    No surprise at all; the useless ACS-based maps do not comport to Illinois law, and also invoke Federal Constitutionality claims under well-settled Federal law and rulings. While Federal Constitutional claims may be heard in State courts, it is the plaintiff’s choice unless and until a Federal judge rules otherwise. Tthe GOP finds the Federal courts likely more amenable to their claims and proposed remedies.


  30. - Norseman - Wednesday, Jun 9, 21 @ 3:13 pm:

    === but I’ll point out that reapportionment is about more than political gain. Its designed to ensure that everyone’s voice and vote carries equal weight in our republic ===

    Said by a gaslighting partisan or someone who hasn’t been paying attention to the massive Republican effort in red states to prevent everyone’s voice from carrying equal weight.

    Your premise has already been rejected by SCOTUS in refusing to overturn egregious partisan maps.


  31. - Anonish - Wednesday, Jun 9, 21 @ 3:35 pm:

    === That is why the Congressional map has been delayed. ===

    IIRC the Voting Rights Act is why the CD maps are delayed, but the VRA doesn’t impact the state maps.

    Haven’t the federal courts repeatedly punted on map making lawsuits?


  32. - SN1848 - Wednesday, Jun 9, 21 @ 4:07 pm:

    Can someone provide the link to the evidence that the census is more accurate than the ACS? In the social science community it is often recognized that a headcount, like the census, is often (but not always) actually less accurate than a survey with good sampling. Much of the talk here, and elsewhere, is assuming that the census is obviously more accurate than the ACS. Please provide the link(s) to the social science research saying this is the consensus view among the experts in doing headcount v survey research on a large pop like IL.


  33. - MyTwoCents - Wednesday, Jun 9, 21 @ 5:22 pm:

    The only people who think the Republicans are interested in “fair maps” are either diehard partisans or blind to the realities in Illinois. The Republicans only want to go from a 0% chance of gerrymandering their way to a 50%/50% chance of gerrymandering. This is their latest battle in that regard.


  34. - EssentialStateEmployeeFromChatham - Wednesday, Jun 9, 21 @ 5:34 pm:

    Should the 24 judicial circuits have been redistricted to begin with? Before even trying to do a Supreme Court remap?


  35. - Valerie F. Leonard - Wednesday, Jun 9, 21 @ 6:08 pm:

    I don’t know why the Republicans are citing differences between the 2005-2009 Census and ACS, when those data weren’t used to construct the maps. The difference between the 2019 ACS data that were reportedly used to construct the maps and the 2020 Census Apportionment data is well within the margin of error of a typical complete Census.

    I think the Republicans will get a better result in the Court of Public Opinion than the federal courts.

    I haven’t read their lawsuit, but, if they didn’t cite the apparent dilution of the Black vote that the new map accomplishes, they are not really serious about Voting Rights violations.


  36. - VerySmallRocks - Wednesday, Jun 9, 21 @ 6:20 pm:

    The IL GOP, as part of the Trump MAGA Republican Party, has lost all moral authority to complain about gerrymandering or any other voting issue that supposedly harms them.


  37. - DougChicago - Wednesday, Jun 9, 21 @ 6:39 pm:

    The data issue might have some legs to it, but I would bet against it. Moreover, even if the Democrats lose, the relief is likely to be go back and do it again — and having acted timely under the Illinois Constitution they are out from under the pull-a-name-out-of-the-hat problem.

    Political gerrymandering, the Supreme Court has held, is a non-justiciable issue under the federal Constitution and so it is rather silly, if not pathetic, to raise that in a federal court.


  38. - low level - Wednesday, Jun 9, 21 @ 7:51 pm:

    “Webster defines …”

    Seriously? You sound like you’re still in high school.

    “ Today’s filing should come as no surprise to Illinoisans.” - Durkin.

    One of the few times I agree with Jim. Also not surprising was his blank page map proposal. HB0000 is the bill number in case you were wondering.


  39. - Just Me 2 - Wednesday, Jun 9, 21 @ 8:27 pm:

    ===districts have to be of equal size, give or take a certain margin for error===

    Maybe my professor was wrong, but in con law he said there can’t be margin for error. It has to be exact to the official Census number.


  40. - Oswego Willy - Wednesday, Jun 9, 21 @ 8:29 pm:

    === Maybe my professor was wrong, but in con law he said there can’t be margin for error.===

    Email him.


  41. - Norseman - Wednesday, Jun 9, 21 @ 10:18 pm:

    === No margin for error ===

    Always double check your sources. Especially when they spout absolutes. The Census Bureau is making minor changes in the data to deal with privacy concerns. (See article linked below.) That guarantees some margin of error. I also believe that case law has upheld small marginal differences.

    Again, this will be an interesting legal action to follow.

    https://wapo.st/2Smvaa5


  42. - Keyrock - Wednesday, Jun 9, 21 @ 11:43 pm:

    Federal law doesn’t require equal population districts for courts, because judges are not representatives. That’s why the state got away for decades with not redistricting the Supreme and Appellate Courts.


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