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MALDEF prefers Franks remap reform over Independent Maps’ proposal

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Illinois

* 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.

posted by Rich Miller
Tuesday, May 3, 16 @ 1:46 pm

Comments

I was talking to some people on this issue more knowledgeable than me and I had two questions, you may find this as interesting as I did.

1) the Franks proposal seems a bit more robust that the Independent Maps proposal, if you support the Independent Maps proposal should you support or even prefer the Franks plan?

They pointed out something I didn’t realize but should be obvious. The legislature has broad authority to introduce amendments, the citizenry can only do so under more narrow circumstances so the IM proposal has been crafted to clear the Supreme Court, the Franks proposal can go farther because it doesn’t have to clear that hurdle. They also told me that the Franks proposal looks like an honest effort at fair policy.

2) if the Franks proposal passes both chambers and makes it on to the ballot in time does the Independent Maps proposal get pulled to avoid confusion?

I was told that by a simple majority vote of the legislature the GA can vote to have the Franks proposal taken off the ballot at any time (or practically speaking prior to the ballots going to print/being distributed/early vote starting/etc.) so Independent Maps supporters are leery of pulling the plug until it gets much closer to the election and even then who knows.

Note: I haven’t had a chance to verify the details on voting to remove the amendment from the ballot so I apologize if I’m passing along inaccurate information.

Comment by The Captain Tuesday, May 3, 16 @ 2:13 pm
President Cullerton made himself the Chief Senate Sponsor today, so I assume that means it will come up for a vote and pass?

Comment by Grand Avenue Tuesday, May 3, 16 @ 2:30 pm
@The Captain - informative comment. Good on IM for being cautious.

To be clear, there is also no risk of ==losing== any existing voting rights under either remap system. As the Justice Department says of Section 2 of the Voting Rights Act and protection for voting rights: ==Section 2 of the Act (42 U.S.C. 1973) makes it illegal for any state or local government to use election processes that are not equally open to voters based on race, or that give voters less opportunity than other voters to participate in the political process and elect representatives of their choice to public office based on race.==

iirc, Article IV Section 3 of the constitution also does not explicitly ==prioritize minority voting rights== either and yet those rights are obviously protected. If anything, HC0058 would be a much more dramatic change by creating this new list of priorities that does not appear in the constitution or anywhere else since at least Thornburg v Gingles in 1986.

Comment by Formerly Known As... Tuesday, May 3, 16 @ 2:53 pm
Have Rauner and his “Fair maps” team dropped their opposition yet?

Comment by Juvenal Tuesday, May 3, 16 @ 3:10 pm
That vote of 105 in the House seems to indicate there are no ‘bricks’ on this one. Let’s see what happens in the Senate.

Comment by Not quite a majority Tuesday, May 3, 16 @ 3:40 pm
@Juvenal: To call the Fair Maps team Rauner’s entity is completely inaccurate. Do some investigation.

Comment by Indochine Tuesday, May 3, 16 @ 3:41 pm
==Rep. Franks’ proposal passed the House today by a vote of 105-7.==

Sounds like they want to beat any announcement on the success or failure of the Independent Maps proposal’s signature drive.

I’ve noticed that the full text of any HJRCA resolution on the ILGA website hasn’t been available since last week. It’s certainly odd, and I have to wonder whether or not that’s intentional.

Comment by The Man on 6 Tuesday, May 3, 16 @ 3:48 pm
Will people now finally start to realize Independent Map is nothing more than a GOP ploy to draw a GOP map!

Comment by Doh Tuesday, May 3, 16 @ 8:48 pm
It is interesting that the General Assembly only bothers with proposing a new redistricting plan *after* the Independent Map proposal looks like it will make the ballot.

The GA could have done this anytime; like years ago. But they only act when something they don’t control might actually get some attention. The GA is only trying to muddy the water with their proposal.

Comment by Late to the Party Wednesday, May 4, 16 @ 6:02 am
Agreed, Late to the Party.

Comment by Arock Wednesday, May 4, 16 @ 9:28 am
Many moons ago, I was the victim of race and gender reverse discrimination by the state. A lawsuit (in which I didn’t participate) helped address that situation

I am married to and friends with a lot of minorities.

I think the politically drawn maps are disgraceful and that districts should respect municipal boundaries to extent possible. I also think there is a lot of wisdom in the following words.

“The way to stop discrimination on the basis of race,” Chief Justice John Roberts wrote in 2007, “is to stop discriminating on the basis of race.”

Comment by Logic not emotion Wednesday, May 4, 16 @ 1:19 pm