'It's more possible now' - Penn Supreme Court ruling could open gerrymander reform avenue in IL, via courts

By Jonathan Bilyk | Mar 5, 2018

Across the country, partisans on both sides of the aisle await rulings from the U.S. Supreme Court on just how much sway state legislatures should have to draw congressional district and state legislative district maps to benefit their side.

However, at the same time, redistricting reform proponents in Illinois and other states have also taken note of recent developments in the state of Pennsylvania, where that state’s Democratic-controlled Supreme Court has granted a win against what that court deemed to be redistricting overreach from the Republican majority in the state’s legislature.

The partisan struggle has landed before the U.S Supreme Court, where Pennsylvania Republicans have asked the nation’s high court to declare the state Supreme Court itself went too far in essentially taking over the mapmaking process in redrawing the state’s congressional districts in such a way that Republicans allege the map actually now advantages Democrats.

However, as the U.S. Supreme Court mulls whether to step into that conflict, observers say the Pennsylvania court’s ruling could point to a new avenue for Illinois reformers to force longtime Illinois House Speaker Michael Madigan and other legislative leaders to relinquish their near total control over the legislative mapmaking process.

Ruth Greenwood   Campaign Legal Center

“The Pennsylvania Supreme Court’s opinion demonstrates there could be additional avenues to challenge extreme partisan gerrymanders under state constitutions,” said Jeff Raines, spokesman for the reform organization Change Illinois. “It’s an interesting idea, and it’s one we’re going to continue to explore.”

For years, a Democratic majority on the Illinois Supreme Court, along with other judges in Cook County, have granted wins to Madigan allies in court, rejecting attempts to give voters the chance to vote on proposals to amend the Illinois state constitution to create an independent redistricting commission to draw the state’s legislative district maps, ostensibly without oversight from the state’s partisan legislative leaders or governor.

Currently, Republicans contend, Madigan and Democrats have used that power to “gerrymander” – or draw legislative districts in such a way to increase their partisan advantage, building a near supermajority in the Illinois General Assembly in the process, while simultaneously protecting incumbents and making many state legislative districts in Illinois non-competitive.

Other observers are quick to note, however, that on the question of how heavily gerrymandered Illinois is, it still falls short of what is observed in other states, such as Wisconsin, where Democrats challenged the Republican majority’s district map. There, Democrats won a key decision from a three-judge panel in federal court, which found the map effectively disenfranchises the state’s Democratic voters. Republicans appealed, and that case also now awaits a decision from the U.S. Supreme Court on the question of whether partisan gerrymandering should be allowed, at all, and if so, to what extent?

“Illinois’ current map doesn’t have such an extreme advantage as many people think,” said Ruth Greenwood, senior legal counsel for voting rights and redistricting at the Campaign Legal Center in Washington, D.C., and an adjunct law professor at Loyola University Chicago.

She points to the so-called “efficiency gap,” a statistic developed to help reflect how much a particular legislative map favors one party or another. In Illinois, in 2012, for instance, the first election year under the current legislative maps, Democrats enjoyed an efficiency gap of a little more than 2 percent in their favor. By contrast, in Wisconsin, the Republican map gave the GOP a 15 percent advantage.

Greenwood, however, said that comparison may mean less than some observers may believe. She, for instance, was among those who filed briefs in 2016 with the Illinois Supreme Court in support of the ballot question that would have placed the so-called Independent Maps amendment before Illinois voters.

“There’s clear evidence this (Illinois’ map) was drawn to favor Democrats,” said Greenwood. “We know both sides have done their best to gerrymander over the last 50 years.”

And, while Greenwood is among those watching the U.S. Supreme Court to see how it may rule in the Wisconsin case, she is also among those who believe the Pennsylvania ruling could introduce some new possibilities into the fight over redistricting in Illinois.

While the Pennsylvania case also incorporated arguments over the efficiency gap standard and other, more traditional anti-gerrymandering assertions, the case also found solid footing in arguing the Pennsylvania state constitution guarantees voters that elections will be “free and equal.”

Gerrymandered districts, the plaintiffs contended, deny voters a free and equal chance to elect representatives of their choice. And the Pennsylvania Supreme Court agreed, with the author of the court’s opinion noting the constitutions of other states, including Illinois, also make similar guarantees to their voters.

While the decision is not binding on any other state, the reasoning underpinning the ruling could, in turn, perhaps spur a similar legal challenge in the Prairie State and other states from anti-gerrymandering reform groups, also seeking to establish new ways of drawing legislative and congressional district boundaries.

“The language of both constitutions is similar,” said Greenwood. “Could a court apply a similar standard in Illinois? It is more possible now than before the Pennsylvania ruling.”

Kent Redfield, a political scientist at the University of Illinois at Springfield, said such a court fight would break new legal ground in Illinois, where courts have typically defined the constitutionality of partisan gerrymandering against the backdrop of the language pertaining to district mapmaking specifically.

He predicted a hypothetical legal fight over the meaning of “free and equal” elections would likely result in courts weighing not only the common and legal meanings of those terms, but also sifting through records of the 1970 Illinois state constitutional convention, at which the state’s current controlling legal compact was drafted and ratified.

“It is certainly an intriguing question, and novel approach,” said Redfield. “I have no idea what the Illinois Supreme Court might do with that argument.”

For now, a number of organizations contacted by The Cook County Record who participated in the Independent Maps fight either declined to comment or noted they were, for now, focused on what the U.S. Supreme Court may do in the gerrymandering cases now before them.

Raines also noted Change Illinois, which absorbed the former Independent Maps coalition after the 2016 defeat before the Illinois Supreme Court, has introduced an anti-gerrymandering amendment in the Illinois General Assembly. He said Change Illinois intends to issue questionnaires to Illinois’ gubernatorial candidates and candidates for the General Assembly, as well as take other steps to get their positions on redistricting reform on the record and “hold their feet to the fire.”

After the string of losses in court in the attempt to bring the question directly to the people, Raines said Change Illinois had decided, before the Pennsylvania court ruling, to “change tactics.”

“But we’re not ruling anything out,” he said.  

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Change Illinois Illinois General Assembly Illinois Supreme Court Loyola University Chicago Pennsylvania Supreme Court University of Illinois at Springfield

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