92 L. Ed. 2d 85, 106 S. Ct. 2797 (1986) (plurality opinion). A lack of proportional representation, however, is insufficient; "unconstitutional discrimination occurs only when the electoral system is arranged in a manner that will consistently degrade a voter's or a group of voters' influence on the political process as a whole." Id. at 132. An intent to disadvantage one political party will also not suffice. Id. at 139. The complaining political party members must in fact be disadvantaged, and to a greater extent than loss of control of the General Assembly after a single election. Id. at 139-40.
Count II alleges that Illinois is a "swing" state that tends to vote for Republican Party candidates in presidential election years and for Democratic Party candidates in non-presidential election years. The final redistricting plan, however, allegedly creates an excessive number of Republican-leaning districts, even for non-presidential election years. The counter-plaintiffs assert that of the 118 Illinois House of Representatives districts, up to 59 are "safe" for the Republicans, while there may be as few as 38 "safe" seats for the Democrats. The 59 Illinois Senate districts allegedly include 27 or 28 "safe" Republican seats. Another allegedly unfair aspect is the combination of Democratic incumbents, forcing them to run against each other, in 12 House districts and four Senate districts.
Assuming the truth of the counter-plaintiffs' claims, however, as the court must on a motion to dismiss, it is not clear that the Democrats will lose control of the General Assembly, much less that they will be unable to effectively influence legislative outcomes. Moreover, there is no allegation that any particular harm has already befallen the Democrats, except for forcing some of their incumbents to run against each other. That result is a common result of politically motivated redistricting, and is hardly sufficient to establish an equal protection violation. See Davis, 478 U.S. at 128-29; Gaffney v. Cummings, 412 U.S. 735, 752-53, 37 L. Ed. 2d 298, 93 S. Ct. 2321 (1973).
Count II also asserts a claim under the 15th Amendment, which prohibits abridgment of the right to vote "on account of race, color, or previous condition of servitude." The count lacks any factual allegations concerning racial discrimination, and therefore does not state a claim under the 15th Amendment. Therefore, Count II of the counterclaims is dismissed.
Finally, Count III of the counterclaims alleges 14th Amendment procedural due process violations -- essentially that the counter-plaintiffs were denied their right to be heard or to a trial before either the Redistricting Commission or the Illinois Supreme Court -- but does not identify any basis for such a right. This failure is a fatal flaw in such a claim. Pardo v. Hosier, 946 F.2d 1278, 1281 (7th Cir. 1991) (two procedural due process inquiries, the first being "whether there exists a liberty or property interest which has been interfered with by the State") (quoting Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989)). Accordingly, Count III of the counterclaims is dismissed.
For the above reasons, Counts II and III of the counterclaims are dismissed, the motion to dismiss Count I under Fed. R. Civ. P. 12(b)(6) is denied, and a ruling is reserved as to summary judgment on or preclusion of Count I.
IT IS SO ORDERED.
CHARLES RONALD NORGLE, SR., Judge
United States District Court