Judge Elaine E. Bucklo Judge Diane S. Sykes Judge Philip P. Simon
This is the second of two cases filed in this district challenging the Illinois General Assembly's most recent redistricting of the state's legislative districts. This one is brought by the League of Women Voters (LWV) who claim that their First Amendment rights have been violated by the redistricting plan. The Defendants -- the Governor and individual members of the Illinois State Board of Elections -- have now moved to dismiss. Because the redistricting plan in no way burdens the exercise of First Amendment rights of LWV or its members, Defendants' Motion to Dismiss the Amended Complaint [DE 17] will be granted.
Just like the first redistricting challenge brought by Christine Radogno, the Minority leader of the Illinois Senate, and others (1:11-cv-4884), this case challenges the General Assembly Redistricting Act of 2011, which cemented Illinois's proposed new map of 118 House districts and 59 Senate districts. After the first challenge to the redistricting plan had already been filed, LWV initiated this case. LWV's original complaint challenged both the redistricting plan for Illinois's General Assembly seats and the redistricting plan for Illinois's federal seats in the House of Representatives. Since that complaint was sufficiently related to the redistricting challenge brought by Radogno, this case was reassigned to us so that it could be handled by the same three-judge panel handling the Radogno case. This reassignment was on the condition, however, that LWV file an amended complaint limited only to the redistricting plan for Illinois's General Assembly seats. That Amended Complaint was filed on September 1, 2011, and Defendants filed their motion to dismiss a week later.
Defendants' motion originally challenged LVW's standing to assert a First Amendment challenge on behalf of its individual members. Defendants did not pursue that challenge further in their reply brief, however, and for good reason, as LVW's associational standing is sufficiently well established in the Amended Complaint. Moreover, all parties now agree that Governor Pat Quinn should be dismissed as a Defendant. The only issue now before us is thus whether LVW's Amended Complaint states a cognizable claims against the remaining Defendants.
LWV's Amended Complaint raises a single count based on a discrete legal theory: Illinois's redistricting plan is unconstitutional because it is a content-based restriction on LWV members' First Amendment rights of expression. LWV argues that by "adopt[ing] a redistricting scheme based on partisan speech and other content-based expressive activity," the Defendants have implemented an unconstitutional content-based restriction on speech "without any safeguards to ensure the least possible regulation or abridgment of protected speech and expressive activity." [DE 11 at 2.]
LVW contends that the redistricting plan explicitly "took account of the 'partisan composition' of the new districts," and the plan is therefore "based on the content of partisan speech or viewpoints of residents." [DE 11 at 7.] The redistricting plan thus "unlawfully abridge[s] or regulate[s] expressive activity" of LWV's members because it is "attempting to control or influence the kinds of views, opinions and speech that members of the League of Women Voters of Illinois and other state residents placed in those districts are likely to express or hear and receive." [DE 11 at 7, 9.] Precisely how the redistricting plan accomplishes this feat, however, is entirely unclear from the Amended Complaint.
LWV correctly acknowledges that this is a novel legal theory for redistricting cases. It grows out of two new Supreme Court holdings, Citizens United v. Federal Election Comm'n, 558 U.S. _, 130 S.Ct. 876 (2010) and Arizona Free Enterprise Club's Freedom Club v. Bennett, _U.S. _, 131 S. Ct. 2806 (2011), which -- according to LWV -- "significantly strengthen the limiting effect of the First Amendment on government regulation of electoral matters." [DE 26 at 3.]
In LWV's view, Citizens United and Arizona Free Enterprise "foreclose the use of 'viewpoint based' redistricting to control, adjust or influence electoral speech or partisan activity in state legislative campaigns on First Amendment grounds." [DE 26 at 6.] According to LWV, by considering "the 'partisan composition' of a district in redrawing its lines," the redistricting plan is "countering the expression by LWV-IL members and other citizens who expressed views tilting their districts too far to one side or the other." [DE 26 at 12.] Under Citizens United and Arizona Free Enterprise, this viewpoint-based gerrymandering violates the First Amendment because Illinois "may not 'seek to restrict the speech of some elements of our society in order to enhance the relative voice of others.'" [DE 26 at 3 (quoting Citizens United).] Illinois's attempt "to balance or control electoral speech" is therefore -- the argument goes -- "a violation of the First Amendment because it seeks to control 'the marketplace of ideas.'" [DE 26 at 2.] As LWV summarizes its position, "the government is regulating electoral speech for a purpose that the Supreme Court has condemned as unlawful in both Citizens United and Arizona Free Enterprise . . . ." [DE 26 at 7.]
It is of course true that the First Amendment broadly protects political expression in order to foster the uninhibited exchange of ideas among the citizenry. Buckley v. Valeo, 424 U.S. 1, 14 (1976). In Buckley, for example, a law that capped a candidate's expenditure of personal funds to finance a political campaign was found to burden the candidate's First Amendment right to engage in unfettered political speech. Id; see also Davis v. Federal Election Comm'n, 554 U.S. 724, 741 (2008) (finding unconstitutional a law that "imposes a substantial burden on the exercise of the First Amendment right to use personal funds for campaign speech").
The problem with LWV's argument, however, is that it brushes aside a critical first step to bringing a content-based First Amendment challenge: the challenged law must actually restrict some form of protected expression. It seems a rather obvious point. See, e.g., Meese v. Keene, 481 U.S. 465, 480-82 (U.S. 1987) (reversing a district court finding that the Foreign Agents Registration Act's use of the term "political propaganda" violated the First Amendment because, in "the absence of any direct abridgment of speech," the Act "placed no burden on protected expression"); Initiative and Referendum Inst. v. Walker, 450 F.3d 1082, 1104 (10th Cir. 2006) ("To qualify as a content-based 'regulation of speech,' a statute must restrict speech or expressive conduct in the first place."); Asociacion de Educacion Privada de P.R., Inc. v. Echevarria-Vargas, 385 F.3d 81, 84-85 (1st Cir. 2004) (a law requiring disclosure of information about changes in school textbooks was not a content-based restriction because it "[did] not purport to address the content of speech; nor [did] it purport to regulate speech at all"); U.S. West, Inc. v. FCC, 182 F.3d 1224, 1232 (10th Cir. 1999) ("As a threshold requirement for the application of the First Amendment, the government action must abridge or restrict protected speech.").
This threshold requirement was obviously met in both Citizens United and Arizona Free Enterprise, as well as in Buckley and Davis, as those cases all stand for the proposition that a law may not burden campaign expenditures -- long recognized as a form of speech -- unless it is justified by a compelling state interest. It would therefore be correct to say that Citizens United and Arizona Free Enterprise "significantly strengthen the limiting effect of the First Amendment on government regulation of" campaign contributions. But LWV advertises these cases as applying more broadly: they "significantly strengthen the limiting effect of the First Amendment on government regulation of electoral matters." [DE 26 at 3 (emphasis added).]
To which we ask: what does "government regulation of electoral matters" even mean? The way LWV has framed the issue, "electoral matters" is apparently supposed to represent some sort of protected form of expression on par with campaign expenditures. Indeed, LWV repeatedly invokes similarly vague phrases as if they were well recognized categories of expression under the First Amendment. In addition to "electoral matters," LWV also states that the redistricting plan implicates "electoral speech or partisan activity" [DE 26 at 6], "election- related speech" [DE ...