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Welch, Harmon, Board of Elections urge judges to dismiss federal redistricting lawsuits


Tuesday, July 20, 2021  |  Article  |  Joel Ebert

Redistricting (78)

Attorneys representing House Speaker Chris Welch (D-Hillside), Senate President Don Harmon (D-Oak Park) and the Illinois State Board of Elections pushed back last week on two lawsuits challenging the state’s new legislative redistricting maps, encouraging a three-judge panel to dismiss both cases. 


In separate motions filed in federal court on Friday, attorneys for Welch and Harmon argued the lawsuits from the plaintiffs — which include House Republican Leader Jim Durkin (R-Western Springs), Senate Republican Leader Dan McConchie (R-Lake Zurich) and five registered voters represented by the Mexican American Legal Defense and Education Fund — should be dismissed because of “legal deficiencies.” 


Related: Lawsuits challenging legislative redistricting maps consolidated, assigned to three-judge panel


The new filings come just days after attorneys for both the plaintiffs and defendants appeared before a three-judge panel for a status hearing when the litigators aired their main arguments in the case. But Friday’s filing provided the defendants the first real opportunity to respond to the plaintiffs’ initial lawsuits. 


Attorneys representing Welch and Harmon filed substantially similar motions to dismiss the lawsuits, arguing the plaintiffs lacked standing because they failed to make specific allegations of harm and a court has never deemed the use of American Community Survey (ACS) data for redistricting as improper. The defendants also argued the claims included in the lawsuits were “not ripe” because the 2020 Census data has yet to be released. 


The defendants pointed to a Supreme Court case that found that voters who showed they were at a “disadvantage” have the ability to file lawsuits to “remedy that disadvantage.” 


“Plaintiffs lack standing to bring this claim because they have not alleged that they suffered any injury in fact, nor have they alleged that the actions of Defendants resulted in any

disadvantage to themselves as individuals’,” wrote Welch and Harmon’s attorneys, who include prominent election attorney Michael Kasper.


The defendants argued Durkin and McConchie failed to allege that their “personal voting strength is diluted by the current redistricting plan.” 


“They have not alleged, for example, that their votes are diluted by overpopulation in their districts when compared to the voting power of those residing in less populated districts,” the defendants’ motion to dismiss said. 


The defendants’ attorneys criticized Durkin and McConchie’s claims that using ACS data was insufficient, saying the “gist” of their argument was that they “simply disagree” with the legislature’s decision to use the five-year estimates. Further, the defendants argued the plaintiffs failed to include any “factual allegation of population deviation.”


“Without the 2020 census data, Plaintiffs’ claims of any deviation, arbitrariness and discrimination are purely speculative and conclusory and should be rejected,” the attorneys wrote. 


The defendants defended the use of ACS data in several ways, pointing to testimony from Allan Lichtman, who supported Democrats’ plan during the redistricting process and a previous legal challenge. 


“This Court also relied upon the five-year ACS survey in upholding Illinois’ 2011 Congressional redistricting plan,” attorneys wrote in the motion to dismiss, noting the court’s decision in Committee for a Fair and Balanced Map v Illinois State Board of Elections.


The three-judge panel that handled the federal court case challenging the 2011 congressional maps ultimately rejected the plaintiffs’ claims that the new map violated the Voting Rights Act and the 14th Amendment of the U.S. Constitution. 


“Because rough proportionality under the totality of circumstances test looks to citizen-age voting population at the statewide level, we find that ACS figures are reliable for this purpose,” the judges wrote in their final order, which Welch and Harmon’s attorneys noted in their motion to dismiss the new cases. 


Welch and Harmon’s attorneys further defended the use of ACS data by noting the estimates used for Illinois’ total population was about 42,000 people off of the state’s official population count by the Census. “The ACS five-year estimate deviates only approximately 0.3% from the census count – well within the permissible 10% deviation,” attorneys wrote. 


The deviation issue is noteworthy because of the constitutional requirement for legislative districts to have “substantially equal” populations. In their lawsuit, McConchie and Durkin looked at how the 2005-2009 ACS estimates compared to the 2010 Census count, noting some counties deviated by as much as 55 percent. 


Although much of the attorneys’ motions to dismiss were similar between the two cases, which have been consolidated and assigned to the three-judge panel, there was one main difference. 


The Republicans asked in their lawsuit for the court to declare the maps unconstitutional and require Welch and Harmon to appoint members to a special commission tasked with drawing new maps. The plaintiffs in MALDEF’s lawsuit did not ask for the creation of such a commission, instead calling for the legislature to redraw the maps. 


In the GOP-led case, the defendants argued in their motion to dismiss that the plaintiffs failed to adequately state a claim for the court to order Welch and Harmon to appoint members to the Legislative Redistricting Commission. The attorneys noted the redistricting maps were approved by the General Assembly, signed by Gov. JB Pritzker and became effective on June 4, which they noted was “well before” the state’s June 30 deadline that would trigger the creation of the Legislative Redistricting Commission. 


“Even if this Court were to find the redistricting plan is void…because it used ACS data rather than census data in drawing that plan, under Illinois law, the Illinois Constitution’s requirement that a redistricting plan enacted by the General Assembly become effective by June 30 will have still been met,” the court filing said. 


In addition to the motions filed by the attorneys working on behalf of Welch and Harmon, Attorney General Kwame Raoul’s office on Friday filed a similar motion to dismiss the cases on behalf of members of the Illinois State Board of Elections. In a two-page motion, Raoul’s office made a host of arguments, including saying the plaintiffs failed to state any “viable claims” against the board, lacked standing and did not state a “viable equable protection claim.”