Judge Philip P. Simon
Judge Elaine E. Bucklo
Judge Diane S. Sykes
This opinion and order addresses the second round of motion-to-dismiss litigation in the ongoing challenge to the Illinois legislative redistricting plan enacted after the 2010 federal Census. The Plaintiffs, a mix of voters, Republican state legislators, and interested parties, filed a complaint alleging that the redistricting plan violates federal and state law. They later amended their complaint, and on October 21, 2011, we issued an order granting in part and denying in part the Defendants' motion to dismiss the amended complaint. We granted leave to replead some of the dismissed claims.
The Plaintiffs accepted our invitation and filed a Second Amended Complaint. The Defendants again moved to dismiss. The issue now before us is the sufficiency of the Plaintiffs' restated political gerrymandering claims alleged in Counts 2, 3, and 4 of the Second Amended Complaint. In our previous order we gave the Plaintiffs a second opportunity to (1) identify a constitutionally appropriate and administrable standard by which to adjudicate political gerrymandering claims; and (2) make allegations sufficient to raise a plausible inference that the redistricting plan violates the standard. On November 16, 2011, we issued a minute order granting the Defendants' motion and dismissing Counts 2, 3, and 4 of the Second Amended Complaint with prejudice. This opinion explains why the Plaintiffs' second effort falls short.
Our previous order discussed the background allegations in this case, so we will not rehearse them in great detail here. Following the 2010 federal Census, the Illinois General Assembly, pursuant to the state constitution, drew new district lines for its 59 Legislative (or "Senate") districts and 118 Representative (or "House" district). After a series of public hearings, which the Plaintiffs contend were a sham, the new redistricting plan was signed into law on June 3, 2011.
The Plaintiffs in this case include the minority leaders of the two houses of the Illinois General Assembly, several voters, and the Illinois Republican Party, which was granted leave to intervene as a plaintiff on August 20, 2011. The first Amended Complaint named the Illinois State Board of Elections and its individual members as defendants, and alleged violations of the federal Voting Rights Act, political gerrymandering claims under the First and Fourteenth Amendments, racial gerrymandering claims, and various state-law claims.
The Defendants filed a motion to dismiss, which we granted in part and
denied in part in our October 21 order. On sovereign immunity grounds,
we dismissed the state-law claims entirely and dismissed all claims
against the Board itself except for those arising under the Voting
Rights Act. We dismissed the Voting Rights Act claims on various
grounds, but granted leave to replead. We dismissed the state-wide
racial gerrymandering claim, but allowed the racial gerrymandering
claim specific to District 96 to go forward. And most importantly for
present purposes, we dismissed with prejudice the political
gerrymandering claim premised on the First Amendment, but dismissed
with leave to replead the political gerrymandering claim arising under
the Equal Protection Clause of the Fourteenth Amendment.*fn1
Regarding the latter, we specifically explained that we were
giving the Plaintiffs a chance to articulate a "workable test" or a
"reliable standard" for judging partisan gerrymanders and to "make
allegations sufficient to give rise to a plausible inference that the
redistricting plan violates the standard." [DE 59 at 10-11.] The
Plaintiffs filed a Second Amended Complaint, which includes three
counts alleging political gerrymandering violations. Count 2 is styled
as a traditional partisan gerrymandering claim [DE 65 at 21-24], and
Counts 3 and 4 allege that the redistricting plan violates the Equal
Protection Clause by discriminating against Republican voters on the
basis of their political beliefs and affiliations [DE 65 at
As we indicated in our previous order, the Supreme Court's caselaw on political gerrymandering offers limited guidance, as the Court has not coalesced around a position regarding the legal standard by which they are to be judged. The Court first declared partisan gerrymandering claims justiciable in Davis v. Bandemer, 478 U.S. 109, 113 (1986), but there was no majority opinion regarding the proper standard for adjudicating these claims. In Vieth v. Jubelirer, 541 U.S. 267 (2004), a four-Justice plurality concluded that Bandemer should be overruled, and that partisan gerrymandering claims are non-justiciable. Id. at 305-06 (plurality opinion). Justice Kennedy provided the fifth vote to affirm the dismissal of the claim in Vieth; he agreed that neither Bandemer nor the plaintiffs or the dissenting Justices in Vieth had articulated an appropriate standard, but he declined to foreclose all political gerrymandering claims on the chance that a proper standard might emerge in the future. Id. at 306 (Kennedy, J., concurring in the judgment).
The Court addressed partisan gerrymandering once more in League of United Latin American Citizens (LULAC) v. Perry, 548 U.S. 399 (2006), but did little to clarify the issue for lower courts and litigants. The Court declined to revisit the question of justiciability in LULAC. Justice Kennedy, announcing the judgment of the Court, simply noted that the plaintiffs' claims must be dismissed because of "the absence of any workable test for judging partisan gerrymanders." Id. at 420.
As we explained in our previous order, the point that we draw from these cases is that political gerrymandering claims remain justiciable in principle but are currently "unsolvable" based on the absence of any workable standard for addressing them. The crucial theoretical problem is that partisanship will always play some role in the redistricting process. As a matter of fact, the use of partisan considerations is inevitable; as a matter of law, the practice is constitutionally acceptable. See Vieth, 541 U.S. at 286-88 (plurality opinion); id. at 313 (Kennedy, J., concurring in the judgment). The relevant question is not whether a partisan gerrymander has occurred, but whether it is so excessive or burdensome as to rise to the level of an actionable equal-protection violation. How much is too much, and why?
So as things currently stand, minority-party plaintiffs may continue to bring political gerrymandering claims, but they face the Sisyphean task of articulating a standard by which judges may reliably and objectively sort the "routine" use of partisanship in redrawing district lines from that which is excessive to the point of violating the Equal Protection Clause. To illustrate concretely the enormity of this challenge, it is useful to identify the standards that a majority of the Supreme Court has rejected:
* A showing of intent to discriminate, plus denial of a political group's chance to influence the political process as a whole (offered by the plurality in Bandemer, 478 U.S. at 132-22 (plurality opinion), rejected by a majority*fn2 in Vieth, 541 U.S. at 281-82 (plurality opinion)).
* Whether boundaries were drawn for partisan ends to the exclusion of fair, neutral factors (offered by Justice Powell's concurrence in Bandemer, 478 U.S. at 161, 173 (Powell, J., concurring in part and dissenting in part), rejected by ...