Sharply divided Illinois Supreme Court keeps redistricting question off fall ballot
August 26, 2016
A 4-3 Democratic majority agreed with a Cook County judge's ruling last month that the petition-driven Independent Map amendment proposal did not fit the narrow legal window for citizen initiatives to change the 1970 Illinois Constitution.
The ruling was a win for Democratic House Speaker Michael Madigan, who opposed the referendum, suggesting it would hurt protections on ensuring minority representation in the General Assembly.
The speaker has maintained his hold at the Capitol for more than three decades in part because he's had the power to draw the maps. Additionally, a longtime Madigan ally was the lead attorney for the People's Map, a group of prominent racial and ethnic minority businessmen that challenged the proposal.
It's also a loss for Republican Gov. Bruce Rauner, who threw his support behind the map proposal this year when it appeared the initiative process could gain better traction than his own failed effort to get lawmakers to authorize such a ballot question. A new map-drawing process has been among a half-dozen legislative proposals Rauner has sought as conditions for breaking the budget stalemate in Springfield.
"Today's court decision to deny Illinoisans the right to vote on a redistricting referendum does nothing to stem the outflow or change people's views of how the system is rigged and corrupt," Rauner said in a statement.
"When the General Assembly reconvenes this fall, they should put political reform — term limits and independent redistricting — at the top of the legislative agenda so that incumbents aren't locked into power and democracy is restored through competitive general elections," he said.
The state Supreme Court ruling came just one day before the Illinois State Board of Elections is to certify what appears on the Nov. 8 ballot. The Independent Maps group said it's weighing whether to ask the high court for a rehearing.
"Drafters of the Illinois Constitution would not recognize the interpretation made by the Supreme Court majority," said Dennis FitzSimons, the group's chairman and chairman of the McCormick Foundation board. "According to the majority, voters cannot propose sensible changes to the legislative article that would make a meaningful difference in the way legislative district boundaries are drawn."
More than 563,000 Illinois voters signed petitions to put the Independent Map amendment on the ballot in a multimillion-dollar drive backed by two dozen businesses, consumer groups and public interest organizations.
The complicated proposal called for a multistep process in which an 11-member board, including representatives of the four legislative leaders, would be charged with drawing new boundaries for Illinois' 118 House and 59 Senate seats after the once-a-decade federal census. Seven votes would be needed for approval of a new map, including at least two members from each political party and three independents.
The Independent Maps group had argued that the state Supreme Court's failure to reverse Cook County Judge Diane Larsen's ruling "would eviscerate the constitutional right conferred on the people of Illinois by the 1970 Constitution to bypass self-interested legislators and directly propose needed reforms."
But in writing for the Supreme Court majority on Thursday, Justice Thomas Kilbride said that while redistricting is an issue that could meet the constitutional test of affecting both the "structure and procedure" of the legislature as required of a citizen-driven amendment, the plan offered by the Independent Maps groups went beyond the scope of dealing only with changing the legislative branch of the constitution.
Specifically, the court's majority cited a provision that would have had the auditor general review applicants for a panel that would ultimately determine the commissioners assigned to draw new legislative maps.
"As presently constituted, (the legislative article of the constitution) does not mention the 'subject' of the auditor general's office or its duties, even in passing," Kilbride wrote. "Moreover, the additional duties the ballot initiative imposes on the auditor general creates changes that (do not affect) the actual structure or makeup of the legislature itself."
Kilbride added that the high court's "role is solely to determine whether the proposal comports with the strict limitations set out in" the legislative article for citizen initiatives — not whether adding new duties to the auditor general's office, which is covered in another section of the constitution, were unduly burdensome.
Kilbride said the ruling "is not intended to reflect in any way on the viability of other possible redistricting reform initiatives."
"Indeed, the scheme proffered … is not the only model of redistricting reform that could be imagined," he wrote.
"The constitutional right of the citizens of this state to alter the legislative article by ballot initiative is not tied to any particular plan, and we trust that the constitutional confines … are sufficiently broad to encompass more than one potential redistricting scheme," he wrote.
But the three Republican justices on the court each wrote separate dissenting opinions, including a stinging rejection of the majority view by Justice Robert Thomas.
Thomas said the majority's action should "include a bright orange warning sticker for readers to paste over" the citizen-initiative section of the constitution that reads "Out of Service."
"Today, just as a critical election board deadline is about to expire, four members of our court have delivered, as a fait accompli, nothing less than the nullification of a critical component of the Illinois Constitution of 1970," Thomas wrote.
"The majority has irrevocably severed a vital lifeline created by the drafters for the express purpose of enabling later generations of Illinoisans to use their sovereign authority as a check against self-interest by the legislature," he wrote.
Under the state constitution, lawmakers get to draw up a new map that is subject to approval of the governor. That's what happened after the 2010 census, when the Democrat-controlled legislature drew a map signed by then-Democratic Gov. Pat Quinn.
If lawmakers are unable to put together a map that could be signed into law, an eight-member panel of equal numbers of Democrats and Republicans is charged with drawing the new boundaries. If they fail, a tie-breaking panel member is chosen in a random drawing.
The prospect of a random draw to decide the map was initially thought by drafters of the constitution to be a way to force Republicans and Democrats to come together on a compromise. Instead, both parties have opted for the winner-take-all risk: Democrats won the tie-breaker and the map in 1981 and 2001, and a Republican name was drawn in 1991.
It's the second time in recent years such a referendum was tossed from the ballot. In 2014, a lower court judge rejected a similar redistricting proposal because it would have unconstitutionally created new qualifications for serving in the legislature or on the courts by imposing a ban on commissioners serving in public office.
Also rejected that year was a Rauner-backed initiative to impose term limits on state public officials. The courts effectively ruled that such a change couldn't be mounted by citizen petition and that lawmakers would have to vote to put term limits on the ballot for adoption.
Only one citizen-driven petition drive to change the constitution has survived court scrutiny and made it on the ballot. It was the Quinn-led 1980 Cutback Amendment that sliced the size of the Illinois House by one-third and created single-member legislative districts.
As a result of the court's latest decision Thursday, only one proposed state constitutional amendment will appear on the fall ballot — a legislatively passed proposal that would ask voters to place a guarantee that funds such as motor fuel taxes raised for transportation purposes not be used for other functions of government.