The opinion
2025 IL 131480
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 131480)
TONY McCOMBIE et al., Movants, v. THE ILLINOIS STATE BOARD OF
ELECTIONS et al., Respondents.
Opinion filed April 9, 2025.
PER CURIAM
Justice Overstreet dissented, with opinion.
Justice Holder White took no part in the decision.
OPINION
¶1 This cause comes before the court on the motion of Tony McCombie et al. for
leave to file a complaint for declaratory judgment and injunctive relief as an original
action in this court under article IV, section 3, of the Illinois Constitution of 1970.
Plaintiffs seek to challenge the legislative redistricting plan for election of members
of the Illinois General Assembly signed into law on September 24, 2021 (2021
Enacted Plan). See Pub. Act 102-663, § 5 (eff. Sept. 24, 2021) (amending 10 ILCS
92/5, 20 and adding 10 ILCS 92/11). This court allowed the motion of the Illinois
Speaker of the House, Emanuel Christopher Welch, and the Illinois Senate
President, Don Harmon, to intervene as defendants in this matter. The parties have
filed briefs as directed by the court on the issue of whether plaintiffs’ motion for
leave to file an original action pursuant to Illinois Supreme Court Rule 382 (eff.
July 1, 2017) is timely.
¶2 Plaintiffs seek to invoke this court’s original jurisdiction and assert that the
2021 Enacted Plan violates the requirement of article IV, section 3(a), of the Illinois
Constitution that legislative and representative districts “shall be compact,
contiguous and substantially equal in population” (Ill. Const. 1970, art. IV, § 3(a)).
Defendants argue that the motion is untimely and barred by the doctrine of laches.
¶3 Article IV, section 3, contains no specific time limitation period for filing an
action, and Rule 382, which governs the procedure for such original actions in this
court, does not contain a time limitation. This court has never applied the five-year
catchall statute of limitations found in section 13-205 of the Code of Civil
Procedure (735 ILCS 5/13-205 (West 2022)) to claims invoking this court’s
original and exclusive jurisdiction under article IV, section 3(b).
¶4 The lack of a specific time limitation period, however, does not mean that
plaintiffs’ motion was timely. The issue before us is whether plaintiffs’ 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 is
an equitable defense asserted against a party ‘who has knowingly slept upon his
rights and acquiesced for a great length of time ***.’ ” Tillman v. Pritzker, 2021 IL
126387, ¶ 25 (quoting Pyle v. Ferrell, 12 Ill. 2d 547, 552 (1958)). Whereas a statute
of limitations bars a claim based solely on the expiration of a set period of time,
“laches turns on ‘the inequity of permitting the claim to be enforced’ ” based on a
“change in the condition or relation of the property and parties.” Id. (quoting Pyle,
12 Ill. 2d at 552). Laches has two fundamental elements: (1) lack of due diligence
by the party asserting the claim and (2) prejudice to the opposing party. Id.
¶5 Plaintiffs argue that their motion seeking leave to challenge the 2021 Enacted
Plan under article IV, section 3, of the Illinois Constitution is timely, but they rely
on federal and out-of-state case law for that proposition. These cases do not inform
our decision on whether plaintiffs’ motion in this court is timely. Plaintiffs also fail
-2-
to discuss or even recognize the expeditious filing and disposition of every previous
redistricting case considered by this court since the adoption of the 1970
Constitution. See People ex rel. Scott v. Grivetti, 50 Ill. 2d 156 (1971) (per curiam)
(plaintiffs sought to invoke this court’s original and exclusive jurisdiction on
October 19, two months after the filing of the redistricting plan on August 10,
1971); Schrage v. State Board of Elections, 88 Ill. 2d 87 (1981) (plaintiffs sought
to invoke this court’s original and exclusive jurisdiction on October 19, 14 days
after the filing of the redistricting plan on October 5, 1981); People ex rel. Burris
v. Ryan, 147 Ill. 2d 270 (1991) (plaintiffs sought to invoke this court’s original and
exclusive jurisdiction on October 11, seven days after the filing of the redistricting
plan on October 4, 1991); Cole-Randazzo v. Ryan, 198 Ill. 2d 233 (2001) (plaintiffs
sought to invoke this court’s original and exclusive jurisdiction on September 27,
two days after the filing of redistricting plan on September 25, 2001). Notably,
plaintiffs do not even acknowledge this court’s most recent redistricting case from
2012, when this court similarly ordered the parties to brief the issue of timeliness
of the challenge to the legislative map and then denied the plaintiffs leave to file
their complaint. See Cross v. Illinois State Board of Elections, No. 113840 (Ill. June
7, 2012) (plaintiffs denied leave to file complaint after they waited eight months to
seek leave to challenge the redistricting plan, from June 3, 2011, to February 8,
2012).
¶6 Plaintiffs’ timing in filing the instant motion shows a lack of due diligence. The
current redistricting map was signed into law on September 24, 2021. On December
30, 2021, a three-judge federal district court panel in three consolidated cases
rejected challenges that the map violated the Voting Rights Act of 1965 (52 U.S.C.
§ 10301 et seq. (2018)) and the equal protection clause (U.S. Const., amend. XIV)
by engaging in racial gerrymandering. See McConchie v. Scholz, 577 F. Supp. 3d
842, 885 (N.D. Ill. 2021). No appeal was taken from that decision. Plaintiffs’ instant
motion for leave to file in this court states that they are challenging the
constitutionality of the 2021 Enacted Plan because it features numerous districts
that were gerrymandered for strictly partisan purposes and that it violates the
requirements of article IV, section 3(a), that legislative and representative districts
are compact. Plaintiffs could have brought this argument years ago. Their claim
that waiting multiple election cycles is necessary to reveal the effects of
redistricting is unpersuasive.
-3-
¶7 Plaintiffs’ approach would also be prejudicial and create uncertainty for voters
and officeholders alike, now and in the future, as to whether any redistricting plan
in Illinois is ever final. Plaintiffs’ motion for leave to file was brought more than
three years and four months after the adoption of the current map. This delay is 32
months more than the delay in the 2012 challenge, which this court denied in Cross.
We are closer to the next decennial census than the last. Plaintiffs seek to use data
that may now be stale, which could be prejudicial to the parties as well as the public.
¶8 CONCLUSION
¶9 For these reasons, plaintiffs’ motion for leave to file a complaint for declaratory
and injunctive relief pursuant to Rule 382 is untimely and barred by laches.
¶ 10 Motion for leave denied.
¶ 11 JUSTICE OVERSTREET, dissenting:
¶ 12 I respectfully dissent from the majority’s decision to deny plaintiffs’ motion for
leave to file a complaint for declaratory and injunctive relief. This court is the sole
means of ensuring that legislative redistricting plans enacted pursuant to article IV,
section 3, of the Illinois Constitution of 1970 (Ill. Const. 1970, art. IV, § 3) conform
with the requirements set forth by the Illinois Constitution and this court. Yet, the
majority refuses to consider plaintiffs’ well-pled complaint on its merits, citing the
equitable doctrine of laches. I disagree that laches applies to bar the claims set forth
in the proposed complaint and would allow plaintiffs’ motion for leave to file same,
thus addressing the complaint on its merits as our constitution requires. See id.
¶ 13 A. The Majority Invited Intervenors to
Raise the Laches Defense
¶ 14 As a preliminary matter, I disagree with the majority’s decision to raise the issue
of the timeliness of plaintiffs’ complaint sua sponte. Although issues of timeliness
are raised via affirmative defenses that are defendants’ burden to plead and prove
(Ruddock v. First National Bank of Lake Forest, 201 Ill. App. 3d 907, 918 (1990)),
-4-
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 plaintiff’s motion for leave to file the complaint. As a result of this sua sponte
briefing order, plaintiffs were required to anticipate and respond to an unspecified
and hypothetical affirmative defense, as the briefing order did not indicate whether
the court was concerned about an applicable statute of limitations or some other
issue related to the timing of the motion for leave to file the complaint.
¶ 15 The irregularity of the sua sponte briefing order is further illustrated by
defendants’ response to the order, in which they filed a statement that they were
taking no position on the issue of timeliness, thus declining to raise any affirmative
defense to the motion despite the implication of the order, which invited defendants
to do so. On the deadline the sua sponte briefing order set for defendants to file a
brief on timeliness, intervenors sought to intervene and raise the laches defense.
Considering the majority’s position that there is no applicable statute of limitations
and defendants’ statement that they take no position on timeliness, the effect of this
procedure was to invite intervenors to assert a laches defense 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.
¶ 16 While the majority likens this procedure to that employed by the court in 2012
in Cross v. Illinois State Board of Elections, No. 113840 (Ill. June 7, 2012) (supra
¶ 5), an examination of the docket sheet for that case reveals crucial differences. In
Cross, the named defendants, the Illinois State Board of Elections and its members,
raised a laches defense in a timely filed response to the motion for leave to file the
complaint. After the defendants asserted the defense of laches in response to the
motion for leave, the court appropriately ordered a briefing schedule in which the
plaintiffs were afforded the opportunity to answer the affirmative defense that the
defendants properly raised. Thus, when the court entered its order denying leave to
file the complaint in Cross, it was adjudicating an appropriately asserted and fully
briefed affirmative defense to the proposed complaint.
¶ 17 Here, in contrast to Cross, plaintiffs’ motion for leave to file the complaint was
unopposed. After the time for responding to the motion had passed and without any
objection having been filed, the majority entered a briefing order that sua sponte
ordered plaintiffs to file a brief anticipatorily responding to an unspecified
-5-
affirmative defense related to timeliness. While defendants indicated they were not
raising any such defense, the intervenors were permitted to file a brief to assert a
laches defense in defendants’ stead. This abdicated the court’s role as neutral arbiter
of plaintiffs’ motion for leave to file the complaint.
¶ 18 I voted to allow the motion and to order defendants to answer the complaint at
the time the deadline for filing a response to the motion had passed in silence. Had
the majority done so and not invited a timeliness defense through its sua sponte
briefing order, intervenors would not have had an opportunity to raise a laches
defense at this juncture. For these reasons, the majority’s decision to deny leave to
file the complaint based on the merits of the laches defense was procedurally
improper.
¶ 19 B. Intervenors’ Laches Argument Fails to
Show Lack of Due Diligence
¶ 20 Moving to the substance of intervenors’ laches defense, I disagree that
intervenors have made the requisite showing that plaintiffs have not brought the
proposed claims with due diligence. There are fundamental differences in
plaintiffs’ claims and “every previous redistricting case considered by this court
since the adoption of the 1970 Constitution.” See supra ¶ 5. An examination of the
precise nature of these claims, as well as the evidence necessary to establish their
elements, must inform an analysis of plaintiffs’ diligence.
¶ 21 As the majority indicates, plaintiffs’ proposed complaint contains a claim that
the 2021 redistricting plan violates the requirement of article IV, section 3, of the
Illinois Constitution (Ill. Const. 1970, art IV, § 3) that legislative and representative
districts shall be compact. See supra ¶ 2. If this were the only constitutional
infirmity for which plaintiffs are seeking redress, the majority’s comparison with
prior redistricting cases in assessing plaintiffs’ diligence (supra ¶ 5) would be
indicated because the factual basis for such claims is discoverable upon the
redistricting plan’s enactment. See People ex rel. Scott v. Grivetti, 50 Ill. 2d 156
(1971) (challenging composition of redistricting committee, compactness, and
equality in population); Schrage v. State Board of Elections, 88 Ill. 2d 87 (1981)
(challenging compactness of a single district); People ex rel. Burris v. Ryan, 147
Ill. 2d 270 (1991) (compactness); Cole-Randazzo v. Ryan, 198 Ill. 2d 233 (2001)
-6-
(compactness). However, the claims plaintiffs seek to have addressed in the
proposed complaint require proof beyond the redistricting process, lines drawn in
the redistricting plan, and the relative population of the resulting districts. Rather,
in the proposed complaint, plaintiffs make allegations that the plan is a result of
intentional partisan gerrymandering in violation of the constitutional requirement
set forth in article III, section 3, that “[a]ll elections shall be free and equal” (Ill.
Const. 1970, art. III, § 3), as well as this court’s prior statements that redistricting
plans must meet the “legal requirements regarding political fairness” (Ryan, 147
Ill. 2d at 297). See Cole-Randazzo, 198 Ill. 2d at 236.
¶ 22 This court has never adjudicated a claim of partisan gerrymandering or
expounded on the “legal requirements regarding political fairness” in redistricting,
although it has enumerated this requirement as separate from the requirements of
compactness and population proportionality. See Ryan, 147 Ill. 2d at 297. For this
reason, the timing of past challenges to redistricting plans has no bearing on
plaintiffs’ diligence here. Prior to 2019, claims such as those made by plaintiffs
were primarily brought in the federal courts, but the United States Supreme Court
in Rucho v. Common Cause, 588 U.S. 684, 718 (2019), ruled that such claims, when
made in the context of the equal protection clause of the United States Constitution
(U.S. Const., amend. XIV), are not justiciable. In so doing, the Court stated that
state statutes and state constitutions can provide standards and guidance for state
courts to apply in addressing redistricting complaints involving excessive partisan
gerrymandering. Rucho, 588 U.S. at 719.
¶ 23 In bringing this action, plaintiffs are asking this court to address the issue of
partisan gerrymandering as suggested by the Court in Rucho and, in support of their
claim, have gathered data from two election cycles as is required by pre-2019
federal precedent. See Davis v. Bandemer, 478 U.S. 109, 135-40 (1986) (plurality
opinion) (holding that claims of political gerrymandering require a history of
disproportionate results based on more than a single election), overruled on other
grounds by Rucho, 588 U.S. 684. While the majority is correct in its assertion that
this court is not bound by the federal standard, it has not made a pronouncement of
its own regarding the elements of such a claim. Thus, it is disingenuous to hold that
plaintiffs’ efforts indicate a lack of due diligence sufficient to justify this court’s
refusal to address the merits of such a claim and refuse to make such a
-7-
pronouncement.
¶ 24 C. Intervenors’ Laches Argument Fails to Show Prejudice
¶ 25 Finally, assuming a lack of diligence on plaintiffs’ part in following federal
precedent as to the proof required when making its unprecedented gerrymandering
claim before this court, intervenors fail to show that they are prejudiced as a result.
The majority has adopted intervenors’ arguments wholeheartedly, noting that any
redistricting plan would use the stale data collected in the last decennial census.
Supra ¶ 7. In addition, the majority cites “uncertainty for voters and officeholders
alike, now and in the future, as to whether any redistricting plan in Illinois is ever
final.” Supra ¶ 7. This reasoning is purely speculative and begs the question
presented by plaintiffs’ claims, rendering the propositions on which its reasoning
is based premature. Plaintiffs seek to remedy what they claim they can prove to be
partisan gerrymandering, which has been defined as “unconstitutional
discrimination” that “occurs only when the electoral system is arranged in a manner
that will consistently degrade a voter’s or a group of voters’ influence on the
political process as a whole.” Davis, 478 U.S. at 132. And if the claim is proven,
and a new map is required to remedy the resulting prejudice to “voters and
officeholders alike,” equity could not justify the refusal to grant a remedy based on
the prejudice of “uncertainty” to the same voters and officeholders. Moreover, even
if the same “stale” data were used to draw the new map as was used to draw the
current map, “voters and officeholders alike” would be in a better position. As
explained by the written dissent to the unexplained order denying the motion for
leave to file the complaint in Cross,
“there is ample precedent for the principle 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, which is what
plaintiffs here are seeking. See, e.g., Martin v. Soucie, 109 Ill. App. 3d 731,
732-34 (1982); Wilson v. Kasich, 963 N.E.2d 1282 (Ohio 2012).” (Emphasis in
original.) Cross, No. 113840 (Thomas, J., dissenting, joined by Garman and
Karmeier, JJ.)
Here, plaintiffs are not seeking to invalidate the results of any election or interfere
with any election that is upcoming, and therefore intervenors have not proven
-8-
prejudice.
¶ 26 D. Conclusion
¶ 27 The court is being called upon to address the issue of partisan gerrymandering
in the wake of the Rucho decision, which indicates that state courts are the more
appropriate forum for such claims and that state constitutions provide standards and
guidance for state courts to apply. Rucho, 588 U.S. at 719. While the court has, in
fact, indicated “political fairness” is an Illinois constitutional requirement for
redistricting plans, it has yet to provide standards and guidance to voters and
officeholders as to what such “political fairness” entails and how this requirement
is to be enforced in Illinois.
¶ 28 Mindful of the Illinois Constitution’s provision that the court is to be the sole
arbiter of redistricting claims and because I find the majority’s refusal to address
the issue under the guise of laches is unsupported, I would allow plaintiffs’ motion
for leave to file the complaint. To do so would uphold the court’s duty to address
these claims as an original proceeding and would allow for due process,
culminating in an opinion that provides future guidance on the “political fairness”
requirement that has been enunciated by the court in its prior precedent and states
the court’s position on the issue of political gerrymandering in Illinois. For these
reasons, I respectfully dissent.
¶ 29 JUSTICE HOLDER WHITE took no part in the consideration or decision of
this case.
-9-