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Federal 3-judge panel to decide whether Illinois redistricting plan is constitutional

Ken Lund

Lawyers for plaintiffs and the state told a panel of federal judges Wednesday the issues involved in two lawsuits challenging the state’s legislative redistricting plan are “straightforward” and ought to be resolved in short order.

But the three-judge panel hearing the case appeared uncertain about how much time they actually have, given the deadlines that are spelled out in the Illinois Constitution and the fact that lawmakers this year pushed back the 2022 primary by three months, to June instead of March.

The two lawsuits – one by Republican legislative leaders and another by the Mexican American Legal Defense and Education Fund, or MALDEF – both argue that the new state House and Senate district maps violate the U.S. Constitution because they were drawn using survey data rather than official U.S Census numbers, which have been delayed this year due to the pandemic and other factors.

Both suits name the Illinois State Board of Elections and its individual members as well as Illinois House Speaker Emanuel “Chris” Welch and Senate President Don Harmon as defendants.

Those two cases have since been consolidated and assigned to a three-judge panel, as is required under federal law whenever a suit challenges the constitutionality of a redistricting plan. Those include Judge Robert Dow Jr., of the Northern District of Illinois; Judge Jon E. DeGuilio, of the Northern District of Indiana, and Judge Michael B. Brennan of the 7th U.S. Circuit Court of Appeals.

During a remote status conference Wednesday, Charles Harris, an attorney representing the Republican leaders, called it a “straightforward and simple case” that violates the “one person, one vote” principle under the equal protection clause of the U.S. Constitution.

He said courts have previously held that legislative districts must be “substantially equal” in population and that the data from the Census Bureau’s American Community Survey, which is what Democratic leaders used to draw the new maps, should not be used for redistricting.

If the case goes to trial, which is yet to be determined, Harris said his team plans to call expert witnesses, including a former Census Bureau official who would testify about why ACS data is inappropriate, as well as a data expert who would demonstrate how the use of ACS data results in maps that are far outside the margins of what courts consider allowable deviations in population.

MALDEF attorney Francisco Fernandez-del Castillo said his team plans to present substantially similar arguments. But he said they will also argue that the standard for determining whether the maps meet constitutional requirements is to analyze them using data that the Census Bureau provides states for redistricting purposes.

That data from the 2020 census will not be available until mid-August. The only data currently available, he said, is from the 2010 census, and if that were used to analyze the new maps, they would not meet constitutional muster.

But attorney Michael Kasper, who represents Welch and Harmon, said he doesn’t believe the case should go to trial because the plaintiffs lack standing to sue and because the case is not yet “ripe” for consideration.

He said that under previous U.S. Supreme Court decisions, plaintiffs can sue only if they can demonstrate that they live in a district where their vote has been diluted. He also argued that the question of whether district populations vary too widely can be answered only after the official census numbers are released in August.

Under the Illinois Constitution, lawmakers are given until June 30 in the year after a decennial census to approve new legislative maps. After that, the job is handed to an eight-member legislative commission, evenly divided between Republicans and Democrats.

If that panel cannot produce maps by Aug. 10, a ninth member, who could come from either party, is randomly drawn and added to the commission to give one party a single-vote advantage. That commission then has until Oct. 5 to approve new maps.

The suit by Republican leaders asks the court to invoke that section of the constitution by ordering Welch and Harmon to appoint a bipartisan commission. In the alternative, they ask the court to appoint a special master to draft valid maps.

Kasper, however, argued that such an order would be an extreme remedy and that the question of whether to appoint a bipartisan commission is a matter of state law and the state constitution.

After the hearing, the panel issued an order directing all parties to begin lining up their expert witnesses and setting a schedule of deadlines for filing briefs. The case is tentatively set for trial Sept. 27-29.

Peter Hancock joined the Capitol News Illinois team as a reporter in January 2019.
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