The opinion of the court was delivered by: Judge John Daniel Tinder United States Court of Appeals for the Seventh Circuit
Judge John Daniel Tinder Judge Robert L. Miller Judge Joan Humphrey Lefkow
This matter is before the court on plaintiffs' motion to compel enforcement of third party subpoenas [Dkt. No. 52] and certain non-parties' motion to quash subpoenas and for a protective order [Dkt. No. 58]. The motions raise legislative privilege issues rarely addressed by the courts because they pertain to the redistricting activity that follows each decennial census. For this reason, this opinion is more lengthy than the typical ruling on discovery issues.
The United States Constitution requires Illinois lawmakers to redraw the state's congressional district boundaries after each decennial census. U.S. CONST. ART. I, § 2; id. amend. XIV, §§ 1 & 2; id. AMEND. XV; Ryan v. State Bd. of Elections of State of Ill., 661 F.2d 1130, 1132 (7th Cir. 1981). Pursuant to this authority, the Illinois General Assembly drafted, debated, and passed the Illinois Congressional Redistricting Act of 2011 (the "Redistricting Act") (P.A. 97-14). The Redistricting Act eliminates one congressional seat, as required by the 2010 United States Census results, and establishes boundaries for the state's eighteen remaining congressional districts.
Beginning on March 28, 2011, and continuing through May 2, 2011, members of the Illinois House of Representatives and the Illinois Senate held a series of public hearings at locations around the state where members of the public were allowed to comment on the redistricting process. See 10 Ill. Comp. Stat. 125/10-5. On May 27, 2011, the Democratic leadership of the Illinois House and Senate Redistricting Committees released the congressional redistricting plan ("2011 Map") on its website. Three days later, the Illinois House of Representatives passed the Redistricting Act, and the next day the Illinois Senate followed suit. On June 24, 2011, the Governor signed the Redistricting Act into law, and the present litigation ensued.
The plaintiffs comprise three groups: The Committee for a Fair and Balanced Map, a notfor-profit organization created by Illinois citizens concerned about the congressional redistricting process in Illinois; nine Republican Congressmen and one Republican Congresswoman; and six registered voters, four of whom are identified as Latino and two as Republican (collectively "plaintiffs"). The defendants include the Illinois State Board of Elections, the agency charged with implementing the 2011 Map, and its individual members (collectively "defendants").
Plaintiffs allege that the 2011 Map discriminates against Latino and Republican voters, and they seek to invalidate the redistricting plan in whole or in part. Specifically, plaintiffs allege that the 2011 Map violates the Voting Rights Act of 1965, 42 U.S.C. § 1973 ("VRA") (Count I), the Fourteenth Amendment (Count II) and the Fifteenth Amendment (Count III) by diluting the voting strength of Latino voters. Plaintiffs also claim that the 2011 Map constitutes an impermissible racial gerrymander in violation of the Fourteenth Amendment (Count IV) and a partisan gerrymander in violation the First Amendment (Count V) and Fourteenth Amendment (Count VI).
The parties have engaged in expedited discovery. Pursuant to Federal Rule of Civil Procedure 45, plaintiffs served thirty subpoenas duces tecum*fn1 on a number of non-party entities and individuals, including the (i) Illinois House of Representatives (through Tim Mapes, Chief of Staff); (ii) Office of the Speaker of the Illinois House of Representatives (through Tim Mapes, Chief of Staff); (iii) Illinois House Redistricting Committee (through Barbara Flynn Currie, Chairperson); (iv) Illinois Senate (through Jillayne Rock, Secretary of the Senate); (v) Office of the Senate President (through Andrew Manar, Chief of Staff); (vi) Illinois Senate Redistricting Committee (through Kwame Raoul, Chairperson); and (vii) various legislative staffers with knowledge of the reapportionment scheme (collectively "Non-Parties"). The subpoenas contain twenty-one requests for production encompassing documents and communications related to the 2011 Map. Non-Parties refused to comply with plaintiffs' requests, claiming that legislative immunity, the deliberative process privilege, the attorney-client privilege and/or the work-product doctrine protect the documents from disclosure.
On September 15, 2011, plaintiffs filed a motion to compel enforcement of the third party subpoenas. The next day, the President of the Illinois Senate, the Speaker of the Illinois House of Representatives, and the chairpersons of the Illinois House and Senate Redistricting Committees moved to quash. Each party was allowed to file a response and this three-judge court heard arguments on September 29, 2011.
I. Relevance of Requested Discovery
Plaintiffs have served Non-Parties with twenty-one document requests.
Plaintiffs seek a plethora of documents concerning the planning,
development, negotiation, and drawing of the 2011 Map.*fn2
These documents can be broadly categorized as
(1) information concerning the motives, objectives, plans, reports,
and/or procedures used by lawmakers to draw the 2011 Map;*fn3
(2) information concerning the identities of persons who
participated in decisions regarding the 2011 Map;*fn4
(3) the identities of experts and/or consultants retained to assist in
drafting the 2011 Map and contractual agreements related
thereto;*fn5 and (4) objective facts upon which
lawmakers relied in drawing the 2011 Map.*fn6
B. Relevancy of Requested Documents
Under Rule 26 of the Federal Rules of Civil Procedure, parties may obtain discovery of any non-privileged matter that is relevant to any party's claim or defense. Plaintiffs make six claims related to the 2011 Map. See Compl. ¶¶ 108--38. Proof of discriminatory intent is required for plaintiffs to prevail on their Fourteenth and Fifteenth Amendment racial discrimination claims.*fn7 It has also been found sufficient, though not necessary, to sustain a VRA claim. See United States v. Irvin, 127 F.R.D. 169, 171 (C.D. Cal. 1989)(after the 1982 amendments to the VRA, "plaintiffs may carry their burden by fulfilling either the more restrictive intent test or the results test") (internal quotation marks and citations omitted); accord Garza v. County of Los Angeles, 918 F.2d 763, 771 (9th Cir. 1990).
To demonstrate intentional discrimination, however, plaintiffs need not offer direct evidence of discriminatory intent. Direct evidence includes statements made by the decision making body or members thereto. See, e.g., ACORN v. County of Nassau, No. 05-2301, 2007 WL 2815810, at *3 (E.D.N.Y. Sept. 25, 2007) (ACORN I) ("testimony regarding a legislator's stated motivation might be the most direct form of evidence" of discriminatory intent.) Instead, plaintiffs may rely on circumstantial evidence to show that lawmakers purposefully discriminated against Latino and/or Republican voters in enacting the 2011 Map. See Ketchum v. Byrne, 740 F.2d 1398, 1406 (7th Cir. 1984) ("In Rogers, the [Supreme] Court affirmed the district court's finding of intentional discrimination based on ...