The state's top Republican leaders on Thursday asked the Illinois Supreme Court to reconsider its June decision denying their attempt to revive a constitutional challenge to the Democratic-drawn legislative maps.
In a 4-3 vote along party lines, the state high court early last month denied a request from House Republican Leader Thomas H. Cross III, Senate Republican Leader Christine Radogno and a pair of Illinois voters to file a motion for declaratory judgment and injunctive relief as an original action in their battle over the results of the most recent redistricting process.
The majority of the court did not provide an explanation for their denial, a move Republicans argue in a memorandum supporting their Thursday motion "undermines the transparency of government and repudiates notions of fairness and equity."
In February, Republicans sought permission from the court to file an original action under Supreme Court Rule 382 and a proposed complaint challenging the constitutionality of the maps. Challenges to these maps, which are redrawn every 10 years following the U.S. Census and typically favor the political party in control, go directly to the Illinois Supreme Court.
The complaint contends that 27 representative districts, including districts 113 and 114 in St. Clair County, violate provisions of the Illinois Constitution requiring districts to be compact and politically fair. Republicans claim that Democrats gerrymandered the districts in a way that would benefit their party in the next election, a common complaint in the oft-political redistricting process.
The court in March ordered both parties to file briefs on whether the Republicans' motion was timely under Rule 382, which governs actions related to redistricting challenges. The Board of Elections argued that Republicans waited more than eight months after the maps were approved to file the complaint in an effort to delay the primary election.
The majority of the court – all Democrats—denied the motion in a two paragraph order that did not include an explanation. The court's three Republican justices dissented, arguing that the motion was timely and that the doctrine of laches did not bar the GOP motion.
While laches may prevent the granting of redistricting relief in an imminent election, Justice Robert R. Thomas wrote for the dissenting justices that "it does not bar the granting of relief in relation to subsequent elections, which is what plaintiffs here are seeking."
"In light of these considerations, I would grant plaintiffs' request for leave to file their original action, give them their day in court, and then decide this important matter of public policy on the merits rather than on the equitable and purely discretionary doctrine of laches," Thomas wrote.
In the memo supporting their motion for reconsideration filed with the high court Thursday, Republicans contend that majority of the court's failure to provide guidance on its decision has put them "in the position of urging the court to reconsider a final judgment it never explained."
"Regardless of whether the court denied the movants' motion for leave to file a complaint because of the timing of the filing or the merits of the proposed complaint, this court should grant this motion to reconsider, vacate the June 7, 2012 order and hear the movants' case on the merits," the Republicans assert in their memo.
The Republican leaders also argue that the court "misapplied significant applicable court precedent" in its denial of their February motion, an "error that must be remedied" because "the imposition of the unconstitutional redistricting plan of 2011 will have comprehensive negative ramifications to Illinois politics and policy for the next decade and beyond."
The precedent Republicans claim the court failed to follow comes from Reynolds v. Sims, a 1964 U.S. Supreme Court case that they assert provides clear guidance in the area of redistricting case law.
In that case, the Republican leaders said the nation's high court "cautioned reviewing courts against outright dismissal of meritorious claims solely because of their potential effects on impending elections."
The Reynolds court noted that while a reviewing court might be justified in letting one election cycle go forward under an allegedly unconstitutional redistricting plan, "it would be an unusual case in which a court would be justified in not taking appropriate action to ensure that no future elections are conducted under an invalid plan."
"Many courts, both in this state and others have followed the Reynolds precedent when faced with a challenge to a redistricting scheme so close in time to an impending election," the Republicans' memo asserts.
While the reasoning behind the Illinois Supreme Court's June denial is unknown, the Republican leaders contend the court's June order "defies the ample precedent stemming from Reynolds by ordering outright dismissal rather than ensuring that the voting rights of the movants, as well as all voters affected by the pervasive lack of compactness and political fairness of the redistricting plan, are vindicated in due course."
Neither the court's majority nor the respondents "cited to a single court decision by this court or any other in support of the holding that equitable doctrine of laches bars meritorious challenges to redistricting plans as applied to future elections," the GOP memo claims.
"Applying a remedy to the 2014 elections would be the most expeditious way to provide the movants with relief without causing substantial disruption to the public, candidates and election authorities," the Republican leaders suggest in their memo. "Potential candidates and incumbent legislators for the new districts would have sufficient time to determine whether to bear the expense of mounting a campaign. The public would have ample time to discern the candidates running in the new district(s)."
Republicans also argue that the majority of the court "misapprehended its essential role as the court of last resort for voters' rights" by not reviewing the Democratic-drawn maps to determine their constitutionality.
Saying that the high court is the only forum in the state in which litigants can challenge the constitutionality of the redistricting process, the Republicans point back to the past redistricting cycles, including the one in 2000, when "this court entertained 14 different challenges to the redistricting plan."
"In each of the cases, the Court waded into the turbulent political waters of redistricting despite the pressure of impending election deadlines and partisan rancor," the memo states. "While this court may not prefer to venture into this contentious territory, its constitutional role as the sole neutral and deliberative body demands that it grant plenary review in this case in order to guarantee equal voting rights for all voters of Illinois."
If the court denies their motion based on the merits of their proposed complaint, the Republicans' memo asks the court to reconsider its June denial in light of newly discovered evidence that was not available when they filed their motion in February.
That evidence, the Republicans assert, comes from Trey Hood, a political science professor at the University of Georgia who previously penned an expert report on how the new maps would affect voters. Using data from past elections, Hood predicted that the maps would unfairly favor Democratic candidates by giving them more than 50 percent likely Democratic voters in 70 of the representative districts.
When the Republicans prepared their briefs on the issue of timeliness, they asked Hood to apply his statistical analysis to the most recent primary election. Using that data, the Republicans said that Hood predicted that among other findings, the new maps would provide the Democratic Party 70 to 76 seats in the House of Representatives after the General Election, giving Democrats disporportionate control of the chamber.
Because Hood's most recent findings were not available when the Republicans submitted their briefs, the Republicans contend they constitute newly discovered evidence.
The Republicans' motion to reconsider, which will likely mark its last attempt to revive its redistricting challenge, was submitted by Chicago attorneys Andrew Sperry, Thomas Leinenweber and Peter Baroni. It is unclear when the court will rule on the motion.
The case is Thomas Cross, et al. v. Illinois State Board of Elections, et al., No. 113840.