The Cook County Record Aug. 26, 2016, 11:26am

After the Illinois Supreme Court voted 4-3 to toss the measure from the November ballot, the backers of a proposed constitutional amendment to rewrite the rules under which Illinois draws the districts from which its lawmakers are elected have indicated they have not yet decided whether to seek a rehearing before the state’s high court on the matter.

On Thursday, Aug. 25, a narrow majority of the Illinois Supreme Court ruled the proposed so-called Independent Map Amendment failed to meet constitutional muster and refused to allow the people of Illinois the chance to vote on the measure, which supporters said was needed to reform a system that allows those already in power to use legislative mapmaking to strengthen their hold on power and block any meaningful change in Illinois politics.

Justice Thomas Kilbride wrote the opinion of the majority. Justices Anne M. Burke, Charles Freeman and Mary Jane Theis concurred in the opinion. Before winning election to the state Supreme Court, all four justices in the majority had affiliated with the Democratic Party. Three of the four are from the court’s First District, which solely encompasses Cook County.

The ruling came as the result of an appeal filed by Independent Map supporters after a Cook County judge had first ruled the ballot question unconstitutional, saying it violated safeguard provisions in the Illinois constitution.

The amendment, which has been supported by Republican Illinois Gov. Bruce Rauner and more than 500,000 other Illinois voters who signed petitions to place the matter on the fall 2016 ballot, would have stripped the General Assembly of the power to draw their own legislative districts, and would vest that power in a new commission empaneled every 10 years.

Opponents of the measure, which included a number of allies of Democratic Illinois House Speaker Michael J. Madigan and were represented by Michael Kasper, an attorney with the firm of Hinshaw Culbertson, who also serves as general counsel for the Illinois Democratic Party, filed suit in Cook County court to challenge the amendment.

They argued the proposed methods by which the members of that commission would be selected violated the constitution, as they imposed new duties on the state’s Auditor General and the Illinois Supreme Court, among others. This is impermissible, they said, because the state constitution limits citizen-initiated amendments only to “structural and procedural” questions concerning the General Assembly.

Amendment supporters, however, argued the measure passed constitutional muster because it addressed just one question: How the state redraws district lines. They noted the language in the constitution pertaining to redistricting already imposed duties related to redistricting on the Supreme Court and the Illinois Attorney General, making them fair game, should the amendment either impose new duties related to redistricting or remove existing ones. In this case, the amendment would have removed language permitting only the Attorney General to challenge a legislative map.

Cook County Circuit Judge Diane J. Larsen agreed with opponents, however, striking the measure and prompting the appeal to the Supreme Court.

In its decision, the majority focused on a single question: The power and duties of the state’s Auditor General. The majority opinion said, by requiring the Auditor General to participate in the vetting and selection of members of a proposed independent mapmaking commission, the proposed amendment imposes new duties on a constitutional officer.

Since the Auditor General’s constitutional duties are contained in an article of the constitution separate from the article which establishes and governs the state’s legislative branch, the majority reasoned the amendment doesn’t pass muster.

Because the amendment failed on this question, the majority declined to weigh in on the other challenges. The majority also refused to provide any examples of a redistricting “scheme” that could be considered constitutional.

The majority opinion drew sharp rebukes from the other three justices.

Justice Lloyd Karmeier filed the official dissent. But Chief Justice Rita B. Garman and Justice Robert Thomas also filed dissents of their own. Each of these justices had previously affiliated as Republicans.

Karmeier said the majority decision has effectively made it impossible for the people of Illinois to initiate any kind of meaningful reform of Illinois’ redistricting regime.

Karmeier said the Independent Map proposal should have been allowed, as it focused on a single question – how the legislature’s districts are drawn – the rules for which are contained solely in the article within the constitution subject to such amendments, and which happen to already impose duties on the Supreme Court and other constitutional officers.

He said additional duties imposed on the Auditor General also “poses no constitutional problem,” as the additional duties would still relate only to redistricting and wouldn’t alter the Auditor General’s existing duties, as spelled out in the constitution.

“Nothing in the 1970 Constitution requires that all of a constitutional officer’s responsibilities be set out in a single article, and such is certainly not the case with respect to the redistricting-related duties of this court and the Attorney General under the current redistricting mechanism,” Karmeier said.

While the majority declared it believed redistricting reform could be accomplished within “constitutional confines,” Karmeier said any future attempts to alter the process “would fail just as this one has failed and for the same reasons” – namely, that changing the redistricting process would inevitably draw in the other constitutional officers who have duties related to redistricting, and that the courts would then declare such proposals unconstitutional because they touch on the duties of those other constitutional officers and other branches of government.

“Because all of the current actors in the process also have roles outside of the redistricting process, any proposed change in the cast of characters or any significant alteration of their responsibilities would, by plaintiffs’ logic, mean that the proposal was not limited to a structural and procedural subject of article IV and was therefore beyond the constitutionally authorized scope of the ballot initiative process,” Karmeier wrote.  “The potential for a redistricting commission comprised entirely of nonlegislative members, first expressed during the constitutional convention … would be lost.

“The only changes that would be permissible would be those of the most limited and inconsequential type, and the only tools available for revision of the redistricting provisions in article VI, section 3, would be those already present in those provisions. If all that can be done is rearrange the pieces, it is difficult to see how meaningful reform could ever be accomplished.”

Thomas’ language was even more pointed in his special concurring dissent.

“The majority’s decision to quash (the Independent Map ballot initiative) is no less than the death knell of article XIV, section 3’s promise of direct democracy as a check on legislative self-interest,” Thomas wrote. “Today a muzzle has been placed on the people of this State, and their voices supplanted with judicial fiat.

“The whimper you hear is democracy stifled.”

Following the ruling, the Independent Map group said it was deciding whether to see a rehearing of the case before the state Supreme Court.

But it said the decision, by focusing on a single phrase in the constitution, ran counter to the essence of the citizen ballot amendment initiative process itself.

"Drafters of the Illinois Constitution would not recognize the interpretation made by the Supreme Court majority," said Dennis FitzSimons, chairman of the Independent Maps organization, in a prepared statement. "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.

"In short, the system is broken and the way this court interprets the constitution seems likely to prevent its repair." 

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