Quick Takes on Illinois Supreme Court Opinion Issued Wednesday, April 9, 2025

Leading appellate attorney reviews the Illinois Supreme Court opinion handed down Wednesday, April 9. 

Tony McCombie, et al. v. The Illinois State Board of Elections, 2025 IL 131480

By Michael T. Reagan, Law Offices of Michael T. Reagan

This per curiam opinion denied plaintiffs’ motion for leave to file a complaint for declaratory judgment and injunctive relief as an original action in the supreme court. Plaintiffs sought to challenge the legislative redistricting plan for members of the Illinois General Assembly in the Enacted Plan which took effect on September 24, 2021. The court found that the timing of plaintiffs’ complaint demonstrated a lack of due diligence, and the court concluded that the proposed filing was barred by laches. Justice Overstreet dissented, with a detailed opinion. Justice Holder White did not participate.

Plaintiffs’ pleading asserted that the 2021 Enacted Plan violates the requirement of article IV, section 3(a) of the Constitution that districts “shall be compact, contiguous and substantially equal in population, ” as well as claims of partisan gerrymandering and lack of political fairness.

Original actions may be brought under article IV, section 3 of the Illinois Constitution. Neither the Constitution, nor Rule 382 governing the procedure for original actions, contains a time limitation. The court directed the parties to file briefs on the issue of whether plaintiffs’ motion for leave to file an original action was timely. The court granted leave to the Speaker of the House and the Illinois Senate President to intervene as defendants. Some pertinent procedural details, including the timing of that intervention,  are set out in the dissent, which will be treated here in a moment.

The opinion relates that “defendants” argued that the motion for leave to file was barred by laches.  The court observed that it has never applied the five-year catchall statute of limitations to claims invoking the court’s original jurisdiction, but that the lack of a specific time limitation does not mean that this motion was necessarily timely. The court phrased the issue as whether the motion “is barred by the equitable doctrine of laches because it was filed more than three years, and two election cycles, after the redistricting map was enacted in 2021.” 

Laches has two fundamental elements: (1) lack of due diligence, and (2) prejudice to the opposing party. The court commented that plaintiffs relied upon federal and out-of-state case law in support of the argument that the filing was timely. The court observed that plaintiffs did not discuss or recognize “the expeditious filing and disposition of every previous redistricting case” since the adoption of the 1970 Constitution. The court further stated that plaintiffs did not acknowledge the court’s treatment of the most recent redistricting case, from 2012, when the court there also ordered briefing on timeliness and then denied leave to file the complaint. The lapse of time involved in that case was eight months. 

In support of the court’s finding of the lack of due diligence, it was first noted that on December 30, 2021, approximately three months after the map was signed into law, a three-judge federal district court panel in three consolidated cases rejected challenges that the map violated the Voting Rights Act of 1965. The court observed that plaintiffs could have brought their argument years ago, and that their claim that waiting multiple election cycles is necessary to reveal the effects of redistricting is unpersuasive. The court was of the opinion that permitting this filing would create uncertainty for both voters and office holders, as to whether any redistricting plan is ever final. The court further stated that data sought to be used by the plaintiffs may now be stale, which could be prejudicial to the parties and the public.

Applying laches, the motion for leave to file was denied.

Justice Overstreet dissented at length. He first stated that the Illinois Supreme Court “is the sole means of ensuring that legislative redistricting plans” conform with the requirements of the Illinois Constitution and the court. He stated his disagreement that laches applies. 

He began his dissent by stating that the majority raised the issue of the timeliness of the complaint sua sponte. Although issues of timeliness are to be raised via affirmative defenses by defendants, the majority’s sua sponte briefing order required plaintiffs to file an opening brief on timeliness “despite the fact that no party had entered an appearance or objected to plaintiffs’ motion for leave to file the complaint.” Justice Overstreet related that the (original) defendants’ response to the order was a filing stating that they were taking no position on the issue of timeliness, despite the court’s order. The dissent further relates that on the deadline for the briefing, the intervenors sought to intervene as defendants and raise the laches defense. The dissent states that the effect of that procedure was to invite intervenors to assert laches even prior to the court allowing the motion for leave to file the complaint, “despite the fact that the motion for leave was presented to the court unopposed.” Justice Overstreet contrasted the procedure in this case with that in the 2012 challenge in which the named defendants had raised laches in a response to the motion for leave to file the complaint. The dissent states that the procedure here “abdicated the court’s role as neutral arbiter of plaintiffs’ motion for leave to file.” 

On the substance of the laches defense, Justice Overstreet stated that there are fundamental differences between this case and every previous redistricting case considered by the court since the adoption of the 1970 Constitution. The dissent acknowledged that if the requirement of compactness were the only constitutional infirmity claimed, the comparison with the prior redistricting cases would be apt. However, in this case the plaintiffs also made allegations that the plan is a result of intentional partisan gerrymandering in violation of the requirement of article III, section 3, that “all elections shall be free and equal,” as well as precedent that plans must meet the “legal requirements regarding political fairness.” The dissent states that this court has never adjudicated such claims but that the Supreme Court of the United States, in Rucho v. Common Cause, 588 U.S. 684 (2019), ruled that such claims made under the United States Constitution are not justiciable. Rather, that court stated that state statutes and constitutions provide the standards for state courts to address claims of excessive partisan gerrymandering. The dissent noted that plaintiffs’ plan to offer data from two election cycles is required by pre-2019 federal precedent.

The dissent also stated that there had not been a showing of prejudice. The dissent quotes Justice Thomas’ dissent in  Cross, No. 113840 (June 7, 2012) to the effect that while laches may bar the granting of redistricting relief in relation to an imminent election, it does not bar the granting of relief in relation to subsequent elections. Here, plaintiffs are said  to not be seeking to invalidate the results of any election or interfere with any upcoming election.

The dissent concluded that while the court has indicated that “political fairness” is an Illinois constitutional requirement, the court has yet to provide guidance to as to what that entails, and how that requirement is to be enforced in Illinois. Accordingly, Justice Overstreet would have allowed the motion for leave to file the complaint.