Illinois’ New Supreme Court Map and its Potential Lawsuits

On November 3, 2020, Illinois Supreme Court Justice Thomas Kilbride lost his bid to win retention,[1] making him the first Supreme Court justice in the State of Illinois to lose the retention vote.[2] On May 25, 2021, Illinois Democrats proposed a new map of the state Supreme Court’s judicial districts, which have not been redrawn since 1964.[3] On June 4, 2021, Governor Pritzker signed into law the new map of the Illinois Supreme Court.[4]

     1. An Overview of the Illinois Supreme Court

The Illinois Supreme Court is comprised of seven justices, who are elected in partisan elections and serve ten-year terms.[5] The Illinois Constitution provides that the “State is divided into five Judicial Districts for the selection of Supreme and Appellate Court Justices.”[6] The Constitution provides that there are to be five judicial districts – the “First District consists of Cook County”, and the “remainder of the State shall be divided by law into four Judicial Districts of substantially equal population, each of which shall be compact and composed of contiguous counties.”[7] The Second, Third, Fourth, and Fifth districts consist of “Chicago’s suburban counties and downstate areas.”[8] Three justices are elected from the First District, and the Second, Third, Fourth, and Fifth districts each elect one justice.[9]

The Democrats have long controlled the Supreme Court,[10] and currently, four justices are Democrats and three justices are Republicans.[11] The First District’s (Cook County) three justices are Democrats, while the Second, Fourth, and Fifth districts each contain a Republican justice.[12] Justice Kilbride, a Democrat, was elected from the Third District, and when he lost retention, Democrat Robert Carter was appointed as an interim justice to serve until the November 2022 election.[13] However, Justice Carter stated he will not run for the Third District seat in the upcoming election, which is a district the Republicans believe they could win, and in turn, could give the Party a 4-3 advantage on the Court.[14]

     2. A Look at the New Map

On May 25, 2021, about five months after Justice Kilbride’s lost retention, the Illinois Democrats offered a new map of the state Supreme Court districts, which the Illinois Constitution allows to be redrawn at any time.[15] On June 4, 2021, Governor Pritzker signed into law the new map of the Illinois Supreme Court.[16]

Illinois Republicans opposed the new judicial maps, arguing that the Democratic loss of Justice Thomas Kilbride’s retention election in 2020 prompted a politically motived redrawing of the district boundaries.[17] In other words, Republicans believed that Democrats offered the new map “in an effort to ensure the [Democratic] party maintains control of the state’s highest court.”[18] Republicans also argued that the new maps “were not based on U.S. Census data, which will not be released until August due to the pandemic.”[19] Instead, Democrats used “population estimates from the American Community Survey, a product of the federal Census Bureau that is less accurate than the granular census count.”[20]

On the other hand, Illinois Democrats argued that the Supreme Court redistricting was “needed because those districts have remained unchanged since the early 1960s.”[21] Democrats contended that “major population changes in the five judicial districts justif[ied] a new Illinois Supreme Court map, to comply with the state constitution’s requirement that the four districts outside of Cook County have ‘substantially equal population.’”[22] However, it should be noted that “the population imbalance had lasted for years, and the Democrats’ move came after Democrat Thomas Kilbride” lost his retention election.[23] The Third District, which Justice Kilbride was elected from, “has turned steadily Republican and Democrats faced the potential of seeing a GOP court majority next November without redrawing the boundaries.”[24]

So, what all does the new map change? To start, the First District (Cook County) was not changed during the redistricting of the judicial map.[25] Instead, the new map redraws the Second, Third, Fourth, and Fifth districts, “which each have one elected justice.”[26] The Second District, which “previously spanned 13 counties that surrounded Cook County and ran across the northwestern portion of the state, bordering Wisconsin to the north and Iowa to the west,” will now cover “DeKalb, Kendall, Kane, Lake, and McHenry counties.”[27] The Second District previously included DuPage County, which has now been moved to the Third District.[28] The Third District “previously included 21 counties spanning from Kankakee County to the Metro East[,]” but now “includes Bureau, LaSalle, Grundy, Iroquois, Kankakee and Will counties.”[29] The new Fourth District, “which contains 22 counties that were previously within the [Second] or [Third] districts, contains counties in western Illinois along the Mississippi River and encompasses counties up to the Wisconsin border.”[30] Finally, the new Fifth District “gained 11 counties that were previously in the [Fourth] District.”[31]

     3. The Effects of the New Map and the Possible Grounds for a Lawsuit

As noted above, it is believed that the Democrats’ proposed new judicial map stemmed from the party’s desire to maintain its control in Illinois.[32] To keep their 4-3 majority in the Court, Democrats would “need to win one of two partisan elections in November 2022.”[33] Prior to the Democrats redrawing the new map, those two districts, being the Second and Third, were trending Republican.[34] Now, with the new map, it is believed that the newly drawn Third District now reduces the Republican advantage, and the newly drawn Second District is now a “50-50 toss-up.”[35] Moreover, the new map means that “Justice Michael Burke, a Republican appointed for the [Second] District in March 2020 following the retirement of Bob Thomas, will likely be forced to run in the [Third] District because of the shift of DuPage County from the [Second] to the [Third] District.”[36]

Having a majority in the Court is important to both parties in Illinois. For example, the “Illinois Trial Lawyers Association and organized labor are significant allies of Democrats, and business interests are major allies of Republicans[,]” and those organizations have “served as major funders in Supreme Court campaigns as their agendas play out in the courts[.]”[37] And, with Democrats holding control in both the Illinois House and Senate, as well as in the governor’s office, “the partisan influence can often play into the court’s decisions.”[38]

Beyond the effects of the new map, there are possible grounds for lawsuits challenging the new map. One possible ground is to challenge the use of the estimated data from the American Community Survey that Democrats used to draw the new maps.[39] Currently, Illinois Republicans are asking a federal judge to toss out the new district maps for the state legislature[40] and the Illinois Supreme Court,[41] arguing that “the Democratic decision to base the maps on American Community Survey information instead of waiting for census data was ‘arbitrary and discriminatory’ and against the law.”[42] The lawsuit asked for an appointed bipartisan “commission to redraw the maps based on data from the census,” rather than from the American Community Survey.[43] If the Illinois Republicans prevail, it could potentially “send mapmakers back to work.”[44] While the lawsuit is primarily aimed at challenging the new legislative districts, and not the new judicial districts, the same grounds would likely be used for specifically challenging the new map of the judicial districts.

[1] Sarah Mansur, Kilbride’s Failed Retention Vote is First in Illinois Supreme Court’s History, Rockford Reg. Star (Nov. 4, 2020, 2:50 PM), www.rrstar.com/story/news/politics/elections/2020/11/04/kilbridersquos-failed-retention-vote-is-first-in-illinois-supreme-courtsquos-history/42996289/ (explaining that Justice Kilbride “failed to win at least 60% of the ‘yes’ vote in his district”); see generally Jeffrey D. Colman & Julie L. Bentz, Illinois Inst. For Continuing Legal Educ., Redistricting and Reapportionment 12 (2002) (explaining that “a judge can request certification for a non-partisan retention election” within “[s]ix months prior to the expiration of his or her term,” and that the judge will be reelected to another term if “sixty percent of the electorate votes to retain the judge”).

[2] Joe Tabor, Kilbride is First Illinois Supreme Court Justice to Lose Retention Vote, Ill. Policy (Nov. 4, 2020), www.illinoispolicy.org/kilbride-is-first-illinois-supreme-court-justice-to-lose-retention-vote/ (explaining that Kilbride is “the first sitting Illinois Supreme Court Justice to lose a retention bid since the practice was first adopted in 1964”).

[3] Rick Pearson, Democrats want to Redraw Illinois Supreme Court Districts for First Time in Almost 60 Years in Effort to Maintain Majority, Chi. Tri. (May 25, 2021, 6:12 PM), www.chicagotribune.com/politics/ct-illinois-supreme-court-redistricting-20210525-5bdeyxbx3ffs7j3bllrkzuku7a-story.html.

[4] Jerrick Adams, Redistricting Review: Illinois Enacts State Leg., Supreme Court Maps, Ballotpedia News (June 11, 2021, 5:58 PM), www.news.ballotpedia.org/2021/06/11/redistricting-review-illinois-enacts-state-leg-supreme-court-maps/.

[5] Illinois Supreme Court, Ballotpedia, www.ballotpedia.org/Illinois_Supreme_Court (last visited Aug. 20, 2021).

[6] Ill. Const. art. VI, § 2

[7] Id.

[8] The Editorial Board, The Incredible Illinois Gerrymander, WSJ Opinion (June 3, 2021, 6:33 PM), www.wsj.com/articles/the-incredible-illinois-gerrymander-11622759603.

[9] Sarah Mansur, Illinois Democrats say Court Remap Reflects Population Shifts, GOP Calls it Power Grab, Rockford Reg. Star (May 28, 2021, 5:44 PM), www.rrstar.com/story/news/state/2021/05/28/illinois-democrats-republicans-continue-fighting-over-redistricting/5255721001/.

[10] See The Editorial Board, supra note 8 (explaining that “Democrats have long controlled the state Supreme Court because three of seven Justices are elected exclusively from Cook County that includes Chicago”).

[11] Illinois Supreme Court, supra note 5.

[12] Mansur, supra note 9.

[13] Pearson, supra note 3.

[14] Id. (“Carter has said he will not seek the post, and the GOP expects to pick up the seat as the district has become increasingly Republican.”).

[15] See Pearson, supra note 3 (explaining that a new court district map moves “through the legislative process like any other bill” and “require[s] House and Senate approval as well as the governor’s signature”).

[16] Adams, supra note 4.

[17] Sarah Mansur, State Supreme Court Pauses Transition to new Appellate Districts, Capitol News Ill. (June 7, 2021), www.capitolnewsillinois.com/NEWS/state-supreme-court-pauses-transition-to-new-appellate-districts.

[18] Pearson, supra note 3.

[19] Mansur, supra note 17.

[20] Rick Pearson, Gov. J.B. Pritzker Signs into Law New Maps for Illinois Legislature, State Supreme Court, Chi. Tri. (June 4, 2021, 4:38 PM), www.chicagotribune.com/politics/ct-pritzker-signs-illinois-legislative-redistricting-maps-20210604-hyohgbgxgjbnddheirxuhx7u5m-story.html.

[21] Mansur, supra note 9.

[22] Id. (quoting Ill. Const. art. VI, § 2); see Pearson, supra note 20 (explaining that Democrats contended that drawing the new map was “an attempt to reflect decades[]long changes in population that resulted in a largely collar county district having more than 3.1 million people while two Downstate districts each had a population of about 1.2 million”).

[23] Pearson, supra note 20.

[24] Id.

[25] Mansur, supra note 17.

[26] Mansur, supra note 9.

[27] Mansur, supra note 17.

[28] Id.

[29] Id.

[30] Id.

[31] Id.

[32] See Pearson, supra note 20 (explaining that Democratic Governor Pritzker signed into law the new partisan-drawn district for the Supreme Court that was “designed to maintain his party’s control in Illinois”).

[33] The Editorial Board, supra note 8.

[34] See id. (explaining that the Third District is trending more Republican), and Mansur, supra note 9 (stating that the Second District has a Republican judge), and Illinois Supreme Court, supra note 5 (stating that Illinois Supreme Court judges from the Second and Third Districts are facing retention elections in 2022).

[35] Pearson, supra note 3.

[36] Id.

[37] Id.

[38] Id.

[39] Pearson, supra note 20.

[40] Id. (explaining that Democrats drew new district maps for the state legislature, in addition to the state Supreme Court).

[41] See Heather Cherone, Illinois Republicans Ask Judge to Toss New Legislative Maps, WTTW News (June 9, 2021, 7:40 PM), www.news.wttw.com/2021/06/09/illinois-republicans-ask-judge-toss-new-legislative-maps (stating that “top-ranking Republicans in Illinois asked a federal judge . . .  to toss out the new maps of districts for the state Legislature [and] Illinois Supreme Court”).

[42] Eric Krol, New Open Seat in Illinois Supreme Court will be Expensive and Hotly Contested, Ctr. for I.L. Politics (July 18, 2021), www.centerforilpolitics.org/articles/new-open-seat-in-illinois-supreme-court-will-be-expensive-and-hotly-contested.

[43] Cherone, supra note 41.

[44] Krol, supra note 42.