Hooker v. Illinois State Board of Elections , 2016 IL 121077 ( 2016 )

2016 IL 121077
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 121077)
JOHN HOOKER et al., Appellees, v. ILLINOIS STATE BOARD OF
ELECTIONS et al. (Support Independent Maps, Appellant).
Opinion filed August 25, 2016.
JUSTICE KILBRIDE delivered the judgment of the court, with opinion.
Justices Freeman, Burke, and Theis concurred in the judgment and opinion.
Chief Justice Garman dissented, with opinion, joined by Justices Thomas and
Karmeier.
Justice Thomas dissented, with opinion, joined by Chief Justice Garman and
Justice Karmeier.
Justice Karmeier dissented, with opinion, joined by Chief Justice Garman and
Justice Thomas.
Justice Karmeier dissented on denial of rehearing, with opinion, joined by
Chief Justice Garman and Justice Thomas.
OPINION
¶1 This case addresses the question of whether the circuit court erroneously held
that the redistricting initiative petition submitted by Support Independent Maps
(Independent Maps) failed to comply with the requirements of article XIV, section
3, of our constitution (Ill Const. 1970, art. XIV, §3), thus precluding its inclusion on
the ballot at the November 8, 2016, Illinois general election. On the grounds that
the public interest requires a timely resolution of this matter, we granted
Independent Maps’ emergency motion to transfer the appeal from the appellate
court. See Ill. S. Ct. Rule 302(b) (eff. Oct. 4, 2011). This court ordered expedited
briefing that has now been completed. We also granted a group of business,
consumer, and public interest organizations led by the League of Women Voters
leave to file an amicus curiae brief in support of Independent Maps pursuant to
Supreme Court Rule 345 (Ill. S. Ct. Rule 345, eff. Sept. 20, 2010). Reviewing the
merits of the appeal before us, we now affirm the judgment of the circuit court.
¶2 I. BACKGROUND
¶3 The Illinois Constitution of 1970 may be amended by three methods: (1)
constitutional convention (Ill. Const. 1970, art. XIV, § 1); (2) “[a]mendments by
General Assembly” (Ill. Const. 1970, art. XIV, § 2); and (3) ballot initiatives (Ill.
Const. 1970, art. XIV, § 3). Ballot initiatives, the method at issue here, may only be
used for amendments directed at “structural and procedural subjects contained in
Article IV” of the constitution (Ill. Const. 1970, art. XIV, § 3; Ill. Const. 1970, art.
IV), pertaining to Illinois’s legislative branch. The ballot initiative at issue
addresses redistricting, the process used to redraw the legislative and representative
districts following each federal decennial census (Ill. Const. 1970, art. IV, § 3).
¶4 In May 2016, Independent Maps filed with the Secretary of State a petition
proposing the amendment of article IV, section 3, of the constitution, to replace the
current system for redrawing Illinois’s legislative and representative districts. That
section currently provides:
“(a) Legislative Districts shall be compact, contiguous and substantially
equal in population. Representative Districts shall be compact, contiguous, and
substantially equal in population.
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(b) In the year following each Federal decennial census year, the General
Assembly by law shall redistrict the Legislative Districts and the
Representative Districts.
If no redistricting plan becomes effective by June 30 of that year, a
Legislative Redistricting Commission shall be constituted not later than July
10. The Commission shall consist of eight members, no more than four of
whom shall be members of the same political party.
The Speaker and Minority Leader of the House of Representatives shall
each appoint to the Commission one Representative and one person who is not
a member of the General Assembly. The President and Minority Leader of the
Senate shall each appoint to the Commission one Senator and one person who is
not a member of the General Assembly.
The members shall be certified to the Secretary of State by the appointing
authorities. A vacancy on the Commission shall be filled within five days by the
authority that made the original appointment. A Chairman and Vice Chairman
shall be chosen by a majority of all members of the Commission.
Not later than August 10, the Commission shall file with the Secretary of
State a redistricting plan approved by at least five members.
If the Commission fails to file an approved redistricting plan, the Supreme
Court shall submit the names of two persons, not of the same political party, to
the Secretary of State not later than September 1.
Not later than September 5, the Secretary of State publicly shall draw by
random selection the name of one of the two persons to serve as the ninth
member of the Commission.
Not later than October 5, the Commission shall file with the Secretary of
State a redistricting plan approved by at least five members.
An approved redistricting plan filed with the Secretary of State shall be
presumed valid, shall have the force and effect of law and shall be published
promptly by the Secretary of State.
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The Supreme Court shall have original and exclusive jurisdiction over
actions concerning redistricting the House and Senate, which shall be initiated
in the name of the People of the State by the Attorney General.” Ill. Const.
1970, art. IV, § 3.
¶5 Since the adoption of the 1970 Constitution, the General Assembly has agreed
on a districting plan without resort to the backup provisions only once, after the
most recent federal census. Pub. Act 97-6 (eff. June 3, 2011). Following each of the
other four decennial censuses, the formation of a redistricting commission has been
necessary. People ex rel. Scott v. Grivetti, 50 Ill. 2d 156 (1971); Schrage v. State
Board of Elections, 88 Ill. 2d 87 (1981); People ex rel. Burris v. Ryan, 147 Ill. 2d
270 (1992); Cole-Randazzo v. Ryan, 198 Ill. 2d 233 (2001); Beaubien v. Ryan, 198
Ill. 2d 294 (2001). 1 In three out of those four occasions, the commission has
deadlocked, triggering the selection of an additional member to break the tie
through the drawing of lots. See Schrage, 88 Ill. 2d at 92; Burris, 147 Ill. 2d at 277
(1991); Beaubien, 198 Ill. 2d at 299. While that process has been criticized, it has
withstood federal constitutional challenge in the federal courts (Winters v. Illinois
State Board of Elections, 197 F. Supp. 2d 1110 (2001), aff’d, 535 U.S. 967 (2002)).
¶6 To replace the current system, Independent Maps’ proposed amendment to
article IV, section 3, would substitute an entirely new section 3 that fundamentally
restructures the redistricting process. The General Assembly’s role would be
eliminated from the process, with primary responsibility for drawing legislative
and representative districts falling to a new “Independent Redistricting
Commission.” Commission members would be selected through a process
involving limited legislative input. Specifically, the provision proposed by
Independent Maps provides:
1
This court held that the redistricting commission created after the 1970 census was
illegally constituted. Nonetheless, we permitted the redrawn map drafted by that
commission to be used as a “provisional” plan in 1972. We directed, however, that a
“redistricting plan for subsequent elections shall be adopted pursuant to the procedures
outlined in section 3 of article IV of the 1970 constitution of this State.” People ex rel. Scott
v. Grivetti, supra at 168. The legislature later adopted that same map. See P.A. 78-42
(19730; Rogers, Illinois Redistricting History Since 1970 3 Illinois General Assembly
Legislative Research Unit Research Response (2008).
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“(a) The Independent Redistricting Commission comprising 11
Commissioners shall adopt and file with the Secretary of State a redistricting
plan for Legislative Districts and Representative Districts by June 30 of the
year following each Federal decennial census. Legislative Districts shall be
contiguous and substantially equal in population. Representative Districts shall
be contiguous and substantially equal in population. The redistricting plan shall
comply with Federal law. Subject to the foregoing, the Commission shall apply
the following criteria: (1) the redistricting plan shall not dilute or diminish the
ability of a racial or language minority community to elect the candidates of its
choice, including when voting in concert with other persons; (2) the
redistricting plan shall respect the geographic integrity of units of local
government; and (3) the redistricting plan shall respect the geographic integrity
of communities sharing common social and economic interests, which do not
include relationships with political parties or candidates for office. The
redistricting plan shall not either intentionally or unduly discriminate against or
intentionally or unduly favor any political party, political group or particular
person. In designing the redistricting plan, the Commission shall consider party
registration and voting history data only to assess compliance with the
requirements in this subsection (a).
(b) For the purpose of conducting the Commissioner selection process, an
Applicant Review Panel comprising three Reviewers shall be chosen in the
following manner. Beginning not later than January 1 and ending not later than
March 1 of the year in which the Federal decennial census occurs, the Auditor
General shall request and accept applications to serve as a Reviewer. The
Auditor General shall review all applications and select a pool of 30 potential
Reviewers. The Auditor General should select applicants for the pool of
potential Reviewers who would operate in an ethical and non-partisan manner
by considering whether each applicant is a resident and registered voter of the
State and has been for the four years preceding his or her application, has
demonstrated understanding of and adherence to standards of ethical conduct
and has been unaffiliated with any political party for the three years preceding
appointment. By March 31 of the year in which the Federal decennial census
occurs, the Auditor General shall publicly select by random draw the Panel of
three Reviewers from the pool of potential Reviewers.
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(c) Beginning not later than January 1 and ending not later than March 1 of
the year in which the Federal decennial census occurs, the Auditor General
shall request and accept applications to serve as a Commissioner on the
Independent Redistricting Commission. By May 31, the Panel shall select a
pool of 100 potential Commissioners. The Panel should select applicants for the
pool of potential Commissioners who would be diverse and unaffected by
conflicts of interest by considering whether each applicant is a resident and
registered voter of the State and has been for the four years preceding his or her
application, as well as each applicant’s prior political experience, relevant
analytical skills, ability to contribute to a fair redistricting process and ability to
represent the demographic and geographic diversity of the State. The Panel
shall act by affirmative vote of two Reviewers. All records of the Panel,
including applications to serve on the Panel, shall be open for public inspection,
except private information about applicants for which there is no compelling
public interest in disclosure.
(d) Within 45 days after the Panel has selected the pool of 100 potential
Commissioners, but not later than June 23 of the year in which the Federal
decennial census occurs, the Speaker and Minority Leader of the House of
Representatives and the President and Minority Leader of the Senate each may
remove up to five of those potential Commissioners. Thereafter, but not later
than June 30, the Panel shall publicly select seven Commissioners by random
draw from the remaining pool of potential Commissioners; of those seven
Commissioners, including any replacements, (1) the seven Commissioners
shall reside among the Judicial Districts in the same proportion as the number
of Judges elected therefrom under Section 3 of Article VI of this Constitution,
(2) two Commissioners shall be affiliated with the political party whose
candidate for Governor received the most votes cast in the last general election
for Governor, two Commissioners shall be affiliated with the political party
whose candidate for Governor received the second-most votes cast in such
election and the remaining three Commissioners shall not be affiliated with
either such political party and (3) no more than two Commissioners may be
affiliated with the same political party. The Speaker and Minority Leader of the
House of Representatives and the President and Minority Leader of the Senate
each shall appoint one Commissioner from among the remaining applicants in
the pool of potential Commissioners on the basis of the appointee’s
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contribution to the demographic and geographic diversity of the Commission.
A vacancy on the Panel or Commission shall be filled within five days by a
potential Reviewer or potential Commissioner from among the applicants
remaining in the pool of potential Reviewers or potential Commissioners,
respectively, in the manner in which the office was previously filled.
(e) The Commission shall act in public meetings by affirmative vote of six
Commissioners, except that approval of any redistricting plan shall require the
affirmative vote of at least (1) seven Commissioners total, (2) two
Commissioners from each political party whose candidate for Governor
received the most and second[-]most votes cast in the last general election for
Governor and (3) two Commissioners not affiliated with either such political
party. The Commission shall elect its chairperson and vice chairperson, who
shall not be affiliated with the same political party. Six Commissioners shall
constitute a quorum. All meetings of the Commission attended by a quorum,
except for meetings qualified under attorney-client privilege, shall be open to
the public and publicly noticed at least two days prior to the meeting. All
records of the Commission, including communications between
Commissioners regarding the Commission’s work, shall be open for public
inspection, except for records qualified under attorney-client privilege. The
Commission shall adopt rules governing its procedure, public hearings and the
implementation of matters under this Section. The Commission shall hold
public hearings throughout the state both before and after releasing the initial
proposed redistricting plan. The Commission may not adopt a final redistricting
plan unless the plan to be adopted without further amendment, and a report
explaining its compliance with this Constitution, have been publicly noticed at
least seven days before the final vote on such plan.
(f) If the Commission fails to adopt and file with the Secretary of State a
redistricting plan by June 30 of the year following a Federal decennial census,
the Chief Justice of the Supreme Court and the most senior Judge of the
Supreme Court who is not affiliated with the same political party as the Chief
Justice shall appoint jointly by July 31 a Special Commissioner for
Redistricting. The Special Commissioner shall adopt and file with the Secretary
of State by August 31 a redistricting plan satisfying the requirements set forth in
subsection (a) of this Section and a report explaining its compliance with this
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Constitution. The Special Commissioner shall hold at least one public hearing
in the State before releasing his or her initial proposed redistricting plan and at
least one public hearing in a different location in the State after releasing his or
her initial proposed redistricting plan and before filing the final redistricting
plan with the Secretary of State. All records of the Special Commissioner shall
be open for public inspection, except for records qualified under attorney-client
privilege.
(g) An adopted redistricting plan filed with the Secretary of State shall be
presumed valid and shall be published promptly by the Secretary of State.
(h) The Supreme Court shall have original jurisdiction in cases relating to
matters under this Section.”
¶7 Independent Maps filed a petition to bring this proposed amendment before the
voters by using the ballot initiative process governed by article XIV, section 3, of
the Illinois Constitution (Ill. Const. 1970, art. XIV, § 3). That provision requires
petitions seeking to amend article IV to be signed by “a number of electors equal in
number to at least eight percent of the total votes cast for candidates for Governor in
the preceding gubernatorial election.” Ill. Const. 1970, art. XIV, § 3. The State
Board of Elections determined that the petition received more than the required
number of valid signatures.
¶8 Five days after Independent Maps submitted its petition, a “taxpayer’s suit”
was filed in the circuit court of Cook County pursuant to section 11-303 of the
Code of Civil Procedure (735 ILCS 5/11-303 (West 2014)). The lawsuit sought to
enjoin the defendants from disbursing public funds to determine the petition’s
compliance with the Election Code (10 ILCS 5/1-1 et seq. (West 2014)) or to place
the proposal on the ballot at the upcoming November 2016 General Election. The
complaint also requested declaratory relief. 2
2
The parties do not dispute that a taxpayer action for declaratory and injunctive relief is
a proper method of challenging the constitutionality of a proposed ballot initiative. Even
though the petition has not been officially declared valid or been certified for placement on
the November 2016 ballot, the issue in this appeal is ripe. No additional matters appear to
stand in the way of the proposal being placed in the ballot. The only steps remaining for the
Board of Elections are solely administrative. See Chicago Bar Ass'n v. Illinois State Bd. of
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¶9 The action was filed by a political committee called People’s Map, along with
its chairperson, John Hooker, and individual members and leaders of other groups, 3
each alleged to be Illinois residents and taxpayers. The named defendants were the
Board of Elections and its chairperson and members; Leslie Munger, the State
Comptroller; Jesse White, the Secretary of State; Michael Frerichs, the State
Treasurer; David Orr, the County Clerk of Cook County; and the Board of Election
Commissioners for the City of Chicago, its chairperson and members. Later, the
circuit court entered an agreed order dismissing Orr and the Chicago Board of
Election Commissioners, along with its chair and members, without prejudice.
¶ 10 Although Independent Maps was not originally included as a party, it was later
granted leave to intervene. See 735 ILCS 5/2-408 (West 2014). No question is
raised on the sufficiency of the case law permitting intervention by an entity in
support of its own ballot initiative proposal (see Chicago Bar Ass’n v. Illinois State
Board of Elections, 161 Ill. 2d 502, 506 (1994) (per curiam) (hereinafter CBA II);
Chicago Bar Ass’n v. State Board of Elections, 137 Ill. 2d 394, 396 (1990)
(hereinafter CBA I); Coalition for Political Honesty v. State Board of Elections, 65
Ill. 2d 453, 456 (1976) (per curiam) (hereinafter Coalition I)).
¶ 11 The complaint at issue here had 11 counts. The first six were directed against all
defendants and sought a declaratory judgment that the amendment to article IV,
section 3 (Ill. Const. 1970, art. IV, § 3), is unconstitutional because it exceeds the
scope of ballot initiatives permitted under article XIV, section 3 (Ill. Const. 1970,
art. XIV, § 3). Relying on another constitutional provision, count VII also seeks a
declaratory judgment. Counts VIII through XI seek a permanent injunction based
on the allegations in the prior counts.
¶ 12 Article XIV, section 3, limits the scope of permissible ballot initiatives “to
structural and procedural subjects contained in Article IV [Ill. Const. 1970, art. IV,
§ 3],” the legislative article. Ill. Const. 1970, art. XIV, § 3. Count V of the
plaintiffs’ complaint alleged that the latter provision limited the ballot initiative
Elections, 161 111. 2d 502, 506-07 (1994), agreeing with Harrison, J., dissenting, 161 Ill.
2d at 515-16.
3
The remaining plaintiffs are Frank Clark, Leon Finney, Elzie Higgenbottom,
Raymond Chin, Fernando Grillo, Jorge Perez, and Craig Chico.
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process to proposing changes in the structure and procedure of the legislature.
Because Independent Maps’ proposal addresses the redistricting process rather
than the organization of the General Assembly or “the process by which it adopts a
law,” the plaintiffs contended it impermissibly falls outside article XIV, section 3.
¶ 13 Alternatively, counts I through IV and VI alleged that, even if redistricting
constitutes a “structural and procedural subject[ ] contained in Article IV,” the
proposed ballot initiative is invalid because it is not “limited” to those subjects,
violating article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3). According to count
I, the initiative exceeds those limitations by adding to the existing duties of the
Auditor General enumerated in article VIII of the constitution (Ill. Const. 1970, art.
VIII). Count II alleged the initiative unconstitutionally modifies our courts’
jurisdiction as currently stated in the judicial article (Ill. Const. 1970, art. VI).
Count III asserted the proposal would improperly impose new duties on both the
Chief Justice of this court and the most senior Justice who is not affiliated with the
same political party as the Chief Justice. Count IV contended the proposed
initiative is invalid because it would impose a new requirement that the members of
this court be affiliated with a political party. According to count VI, Independent
Maps’ proposal exceeds the limits mandated in article XIV, section 3, by
eliminating the Attorney General’s authority to commence actions pertaining to
legislative redistricting.
¶ 14 Similar to counts I through VI, count VII sought a declaratory judgment against
all defendants. Count VII did not, however, allege a violation of article XIV,
section 3. Rather, it relied on an alleged violation of article III, section 3, of our
constitution (Ill. Const. 1970, art. III, § 3). Article III, section 3, provides that “[a]ll
elections shall be free and equal.” Ill. Const. 1970, art. III, § 3. The plaintiffs
asserted that Independent Maps’ ballot initiative does not comply with that
requirement because it improperly includes separate and unrelated questions into
one ballot proposition.
¶ 15 Counts VIII through XI present no new substantive claims for challenging the
validity of this proposed ballot initiative. Instead, they merely incorporated by
reference the complaint’s previous allegations and requested a permanent
injunction to preclude public funds from being disbursed to evaluate the sufficiency
of the petition or to place the measure on the ballot at the November 8, 2016,
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general election. Count VIII was directed at the State Board of Elections, its
officers and members, while Count IX was directed at the Board of Election
Commissioners for the City of Chicago and its officers and members, as well as the
County Clerk of Cook County. These defendants have already been dismissed from
the case. Accordingly, count IX was stricken and is not before this court. Count X
was directed at the Comptroller and State Treasurer, and count XI sought an
injunction against the Secretary of State.
¶ 16 On May 20, 2016, the plaintiffs were given leave to file their complaint, and
Independent Maps filed its answer. The remaining defendants filed a separate, joint
answer. The plaintiffs moved for judgment on the pleadings pursuant to section
2-615(e) of the Code of Civil Procedure (734 ILCS 5/2-615(e) (West 2014)),
asking that the court grant both declaratory and injunctive relief. Independent Maps
filed a cross-motion for judgment on the pleadings, seeking dismissal of the
plaintiffs’ complaint with prejudice.
¶ 17 The circuit court held a hearing on both motions before granting the plaintiffs’
motion as to counts I through VII, concluding that the proposed ballot initiative did
not comply with the requirements in our constitution. The court then denied
Independent Maps’ motion on those counts. The court entered no judgment on
counts VIII, X, and XI, seeking injunctive relief. To prevent the absence of a
judgment on those three counts from delaying appellate review, the court expressly
found that there was no just reason for delaying enforcement or appeal of its
judgment pursuant to Illinois Supreme Court Rule 304(a). Ill. S. Ct. R. 304(a) (eff.
Mar. 8, 2016).
¶ 18 Independent Maps immediately filed a notice of appeal to the appellate court
and asked that the case be expedited. See Ill. S. Ct. R. 311(b) (eff. Mar. 8, 2016). It
then filed a motion to transfer the case directly to this court pursuant to Illinois
Supreme Court Rule 302(b) (eff. Oct. 4, 2011). Rule 302(b) permits those transfers
when the public interest requires prompt adjudication of the matter by the supreme
court. We allowed that motion on July 22, 2016, ordering the appeal to be taken
directly to us and establishing an expedited briefing schedule for the parties. We
also permitted a group consisting of the League of Women Voters and more than
two dozen other business, civic, and public interest groups to file an amicus curiae
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brief in support of Independent Maps. 4 Following receipt of the parties’ briefs, the
matter has been submitted to the court without oral argument.
¶ 19 II. ANALYSIS
¶ 20 In its appeal, Independent Maps argues that the circuit court erred in granting
judgment on the pleadings in favor of the plaintiffs pursuant to section 2-615(e) of
the Code of Civil Procedure (735 ILCS 5/2-615(e) (West 2014)) and that, instead,
the court should have allowed its cross-motion for judgment on the pleadings and
dismissed the plaintiffs’ complaint with prejudice.
¶ 21 The standards guiding our review of this appeal are well established. Judgment
on the pleadings is proper only where no genuine issue of material fact exists and
the moving party is entitled to judgment as a matter of law. Pekin Insurance Co. v.
Wilson, 237 Ill. 2d 446, 454 (2010). In ruling on a motion for judgment on the
pleadings, a court may consider only those facts appearing on the face of the
pleadings, matters subject to judicial notice, and any judicial admissions in the
record. All well-pleaded facts and reasonable inferences based on those facts are
taken as true. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d
381, 385 (2005); M.A.K. v. Rush-Presbyterian-St.-Luke’s Medical Center, 198 Ill.
2d 249, 255 (2001). We review the grant of judgment on the pleadings de novo.
Pekin Insurance, 237 Ill. 2d at 454. De novo review is also appropriate here because
the resolution of this case turns on the interpretation and application of the Illinois
4
The following groups have joined the League of Women Voters: the Small Business
Advocacy Council Illinois, Illinois Campaign for Political Reform, CHANGE Illinois,
Champaign County Chamber of Commerce, McCormick Foundation, Union League Club
of Chicago, West Rogers Park Community Organization, Illinois Farm Bureau, Better
Government Association, Chicago Southside Branch NAACP, Independent Voters of
Illinois-Independent Precinct Organization, Rockford Chamber of Commerce, Naperville
Area Chamber of Commerce, Illinois Chamber of Commerce, Chicagoland Chamber of
Commerce, Metropolitan Planning Council, Business and Professional People for the
Public Interest, Latino Policy Forum, Sargent Shriver National Center on Poverty Law,
Illinois Public Interest Research Group, Common Cause, Citizen Advocacy Center, the
Civic Federation, Commercial Club of Chicago, Chicago Embassy Church, and Illinois
Hispanic Chamber of Commerce.
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Constitution, creating a question of law. Hawthorne v. Village of Olympia Fields,
204 Ill. 2d 243, 254-55 (2003).
¶ 22 In challenging the ballot initiative, the plaintiffs advanced two basic lines of
constitutional argument: (1) the ballot initiative exceeds the scope of permissible
amendments pursuant to article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3),
because it is not “limited to structural and procedural subjects contained in Article
IV,” the constitution’s legislative article (counts I through VI of the plaintiffs’
complaint); and (2) it violates article III, section 3, of the constitution, stating that
“[a]ll elections shall be free and equal” (Ill. Const. 1970, art. III, § 3), because it
impermissibly combines separate and unrelated questions into a single ballot
proposition (count VII of the plaintiffs’ complaint). Within the plaintiffs’ argument
about article XIV, section 3, they address several proposed changes to the
redistricting process. As we noted in Coalition for Political Honesty v. State Board
of Elections, 83 Ill. 2d 236, 247 (1980) (per curiam) (hereinafter Coalition II)
(citing 4 Record of Proceedings, Sixth Illinois Constitutional Convention 2710
(hereinafter Proceedings)), the limitation established in article XIV, section 3, “is
apparently unique to Illinois,” severely undermining the guidance that may be
obtained from the case law of our sister states addressing limitations on ballot
initiatives. We note, however, that other jurisdictions have upheld the propriety of
enjoining citizen initiatives proposing amendments when the applicable
constitutional requirements are not met. Coalition I, 65 Ill. 2d at 461-62. When
addressing constitutional amendments,
“ ‘the will of the people to this end can only be expressed in the legitimate
modes by which such a body politic can act, and which must either be
prescribed by the constitution whose revision or amendment is sought, or by an
act of the legislative department of the State, which alone would be authorized
to speak for the people upon this subject ***.’ 1 Cooley’s Constitutional
Limitations, 84-85 (8th ed. 1927). (Emphases added.)” Coalition I, 65 Ill. 2d at
460-61.
¶ 23 In our constitution, the framers chose to limit the scope of ballot initiatives in
article XIV, section 3. That section states, in relevant part: “Amendments shall be
limited to structural and procedural subjects contained in Article IV,” our
legislative article. Ill. Const. 1970, art. XIV, § 3. We have already addressed this
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language in four cases: CBA I, 137 Ill. 2d at 396; CBA II, 161 Ill. 2d at 506;
Coalition I, 65 Ill. 2d at 457, and Coalition II, 83 Ill. 2d at 247. Thus,
“[t]he controlling legal principles are settled. The prior constitutions of this
State did not provide for amendment through the direct initiative process.
([CBA I], 137 Ill. 2d at 398.) The Framers of the 1970 Illinois Constitution
intended article XIV, section 3, to be a very limited form of constitutional
initiative. The Framers considered that a general initiative provision was
unnecessary due to the liberalized amendment procedures of the new
constitution. ([CBA I], 137 Ill. 2d at 401.) ***.
Based on the Framers’ concerns, article XIV, section 3, provides only for
amendment of the legislative article, article IV. Further, not every aspect of the
legislative article is subject to amendment through the initiative process.
Rather, “ ‘ “Amendments shall be limited to structural and procedural subjects
contained in Article IV.” ’ (Emphasis added.) [CBA I], 137 Ill. 2d at 398,
quoting Ill. Const. 1970, art. XIV, § 3.” CBA II, 161 Ill. 2d at 508-09.
¶ 24 The Proposed Role of the Auditor General
¶ 25 Because we find this issue dispositive, we first examine count I of the plaintiffs’
complaint. That count inserts the Auditor General into the redistricting process for
the first time.
¶ 26 In its appeal before this court, Independent Maps presents three main
arguments: (1) assigning the Auditor General duties related to redistricting does not
“change” his constitutional duties established in article VIII, section 3, because the
new duties relate to “redistricting” under article IV; (2) the new duties do not
constitute the type of “substantive change” to policy matters that concerned the
delegates at the 1970 Constitutional Convention; and (3) redistricting reforms
would be hobbled if “non-legislative actors” could not be assigned new duties.
Before we address these arguments, we must review the current constitutional
provisions relating to our Auditor General and the additional duties interposed by
the proposed initiative.
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¶ 27 Our constitution mandates that the Auditor General (1) “shall conduct the audit
of public funds of the State,” (2) “shall make additional reports and investigations
as directed by the General Assembly,” and (3) “shall report his findings and
recommendations to the General Assembly and to the Governor.” Ill. Const. 1970,
art. VIII, § 3(b). In addition to the duties already imposed on the Auditor General
by our constitution, the proposed ballot initiative imposes several other duties.
Indeed, the proposed ballot initiative greatly expands the duties of that office.
While the Auditor General plays no part in the current redistricting process, under
the proposed ballot initiative, that office would be responsible for multiple tasks
critical to the success of the new redistricting plan. Under the proposed
amendment,
“[f]or the purpose of conducting the Commissioner selection process, an
Applicant Review Panel comprising three Reviewers shall be chosen in the
following manner. Beginning not later than January 1 and ending not later than
March 1 of the year in which the Federal decennial census occurs, the Auditor
General shall request and accept applications to serve as a Reviewer. The
Auditor General shall review all applications and select a pool of 30 potential
Reviewers. The Auditor General should select applicants for the pool of
potential Reviewers who would operate in an ethical and non-partisan manner
by considering whether each applicant is a resident and registered voter of the
State and has been for the four years preceding his or her application, has
demonstrated understanding of and adherence to standards of ethical conduct
and has been unaffiliated with any political party for the three years preceding
appointment. By March 31 of the year in which the Federal decennial census
occurs, the Auditor General shall publicly select by random draw the Panel of
three Reviewers from the pool of potential Reviewers.”
After the Applicant Review Panel is constituted, the auditor must undertake
another task, that of “request[ing] and accept[ing] applications to serve as a
Commissioner on the Independent Redistricting Commission.” 5
5
The plaintiffs’ complaint does not challenge this aspect of the Auditor General’s
participation.
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¶ 28 Objecting to these changes, count I of the plaintiffs’ complaint alleged that
imposing duties on the Auditor General violates article XIV, section 3, of our
constitution, limiting the scope of ballot initiatives “to structural and procedural
subjects contained in Article IV.” The plaintiffs assert that the additional duties
appear to require the Auditor General to conduct extensive screening steps and
applicant interviews to ensure compliance with the criteria established in the
initiative for members of the Applicant Review Panel. In turn, Independent Maps
counters that the Auditor General “already has a substantial staff devoted to a wide
variety of different tasks and therefore should be capable of undertaking the task of
screening applicants for the Applicant Review Panel.”
¶ 29 While it is unclear from the record exactly how great a burden the additional
duties imposed by the proposed initiative would create, two points appear certain.
First, winnowing the number of applicants statewide down to a pool of 30
reviewers is likely to be a time-consuming and resource-intensive task. Indeed, the
mandate that the Auditor General evaluate the “ethical conduct” and partisan
leanings of “each applicant” who applies from across the state is likely to require
considerable effort, time, and expense. Conversely, the time and resources
expended on that process will necessarily be unavailable to perform the duties
already specifically assigned to the Auditor General in article VIII, section 3. That
alteration in the duties of the Auditor General, in itself, has a material effect on
another section of our constitution, in violation of article XIV, section 3.
¶ 30 Second, and more importantly, the parties do not explain how the Auditor
General’s hypothetical ability to perform the newly assigned redistricting tasks
affects the constitutionality of the proposal. Indeed, this argument conflicts with
Independent Maps’ own, quite accurate, description of the proper division of labor
in the review process. As explained in its reply brief, “whether or not a provision is
a good idea is beside the point for purposes of the constitutional analysis. It is for
the voters to decide whether a proposed constitutional amendment is wise or
workable; the courts’ task is simply to decide whether it is limited to a structural
and procedural subject in Article IV.” (Emphasis added.) We agree and reject
Independent Maps’ claim that the new duties assigned to the Auditor General under
its plan are constitutional because they are not unduly burdensome.
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¶ 31 Independent Maps also argues that its proposed amendment does not, in fact,
“change” the constitutional duties of the Auditor General and that its newly
imposed duties do not raise the type of concerns raised during the Sixth Illinois
Constitutional Convention in 1970. In discussing the latter point, it maintains that
the ballot initiative comports with constitutional standards because it is “not being
used as a subterfuge to undermine the duties the Constitution assigns to the Auditor
General in Article VIII,” distinguishing it from CBA I. Independent Maps adds that
“the key point for purposes of Article XIV, § 3 is that the Redistricting Initiative is
aimed solely at reforming the redistricting process and is not designed to affect the
auditing function established by Article VIII, § 3.” (Emphasis in original.)
¶ 32 What these arguments fail to recognize, however, is twofold. First, nothing in
our current constitution, its development, or this court’s case law requires a
proposed ballot initiative to be designed intentionally to undercut or otherwise even
affect another constitutional provision to be found invalid under article XIV,
section 3. The propriety of Independent Maps’ unexpressed underlying intent is
simply not a factor in the test established in the plain language of that article.
¶ 33 Certainly, during the debates at the 1970 Constitutional Convention, the
possibility that a ballot initiative could provide a “backdoor” means of altering
other constitutional provisions or even the substantive law was discussed.
However, the intentional abuse of the ballot initiatives was not the sole incentive
for enacting the limitations in article XIV, section 3, nor was it a factor
incorporated into the standard set out in article XIV, section 3. The only relevant
restriction in that section was that the ballot proposition be “limited to structural
and procedural subjects contained in Article IV,” the constitution’s legislative
article. Ill. Const. 1970, art. XIV, § 3.
¶ 34 Moreover, the framers of our constitution intended this court alone “to
determine whether constitutional requirements for a proposed amendment were
satisfied.” Coalition I, 65 Ill. 2d at 462. That role does not require us to read
between the lines of every proposal in an attempt to discern the propriety of the
proponent’s underlying intentions; our role is solely to determine whether the
proposal comports with the strict limitations set out in article XIV, section 3.
¶ 35 Second, at its core, the question in this case requires us to construe the relevant
constitutional provisions, a purely legal question. As this court recently explained
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in Walker v. McGuire, we apply the same general principles to construe both
statutory and constitutional provisions. When construing a constitutional provision,
our primary purpose is to effectuate “ ‘the common understanding of the persons
who adopted it—the citizens of this state’.” Walker v. McGuire, 2015 IL 117138,
¶ 16 (citing Kanerva v. Weems, 2014 IL 115811, ¶ 36). If the language of the
provision is unambiguous, we must give it effect without resorting to aids of
statutory construction. Kanerva, 2014 IL 115811, ¶ 36. Only if the provision is
ambiguous will we “consult the drafting history of the provision, including the
debates of the delegates to the constitutional convention.” Walker, 2015 IL 117138,
¶ 16 (citing Glisson v. City of Marion, 188 Ill. 2d 211, 225 (1999), and Committee
for Educational Rights v. Edgar, 174 Ill. 2d 1, 13 (1996)). In addition, “[o]ne
contending that language should not be given its natural meaning understandably
has the burden of showing why it should not.” Coalition I, 65 Ill. 2d at 464.
¶ 36 The plain language of article XIV, section 3, unambiguously states that
constitutional amendments created by ballot initiative “shall be limited to structural
and procedural subjects contained in Article IV.” Ill. Const. 1970, art. XIV, § 3. “It
is clear from the debates of the Constitutional Convention of 1970 that only a very
limited form of constitutional initiative was acceptable.” CBA I, 137 Ill. 2d at 401;
see also CBA II, 161 Ill. 2d at 508-09 (restating the same conclusion). In fact, the
1970 convention delegates expressly rejected an alternative provision granting
citizens the authority to seek a ballot initiative affecting a broader range of subject
matter. Coalition I, 65 Ill. 2d at 467. Moreover, not only was the scope of
permissible ballot initiatives in article XIV, section 3, limited to the amendment of
the legislative article, it was intentionally restricted to a subset of topics relating to
that article, namely, “ ‘structural and procedural subjects contained in Article
IV.’ ” (Emphasis in original.) (Internal quotation marks omitted.) CBA II, 161 Ill.
2d at 509 (quoting CBA I, 137 Ill. 2d at 398).
¶ 37 In Coalition I and Coalition II, we quoted from an explanation provided by the
spokesman for the majority on the Constitutional Convention Committee on the
legislature, Louis Perona, addressing the intentionally limited nature of
amendments that could be enacted by ballot initiative. Delegate Perona emphasized
the framers’ rationale for limiting the reach of ballot initiatives,
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“As I indicated preliminarily in my remarks, I think the limitation on this
initiative eliminates the abuse which has been made of the initiative in some
states. The attempt has been made here to prevent it being applied to ordinary
legislation or to changes which do not attack or do not concern the actual
structure or makeup of the legislature itself. (4 Proceedings 2911.)” (Emphasis
added.) Coalition I, 65 Ill. 2d at 470.
¶ 38 We further stated in Coalition I,
“Any offered amendment under the initiative obviously must comply with the
procedure and the limitations on amendment set out in [article XIV,] section 3
before it can be submitted to the electorate. As this court has observed: ‘The
constitution is the supreme law, and every citizen is bound to obey it and every
court is bound to enforce its provisions. It is a most extraordinary doctrine that
the court has a discretion to enforce or not enforce a provision of the
constitution according to its judgment as to its wisdom or whether the public
good will be subserved by disregarding it.’ People ex rel. Miller v. Hotz, 327 Ill.
433, 437.” Coalition I, 65 Ill. 2d at 460.
Thus, this court is obliged to respect the imitations placed on the scope of ballot
initiatives by article XIV, section 3, as approved by the citizens of this state. Those
limitations alone must guide our review of Independent Maps’ arguments.
¶ 39 Returning to the task of construing article XIV’s limitation on the permissible
subject matter of the ballot initiative process, our only concern in this case must be
the proposed initiative’s compliance with the applicable standard expressed in
article XIV, section 3, of our constitution: whether the proposal is “limited to
structural and procedural subjects contained in Article IV.” Ill. Const. 1970, art.
XIV, § 3.
¶ 40 In CBA I, this court was similarly asked to address a ballot initiative’s effects on
another constitutional provision. There, the proposed amendment required each
legislative house to create a “revenue committee” possessing a designated number
of members. More critically, any bill that increased the state’s revenue required a
three-fifths vote in each house before becoming law. In analyzing whether that
proposal violated article XIV, section 3, we focused not on whether it encompassed
both structural and procedural components but on whether it was “limited to
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structural and procedural subjects contained in Article IV.” (Emphases in original.)
(Internal quotation marks omitted.) CBA I, 137 Ill. 2d at 403.
¶ 41 “[W]e [found] that the proposed Amendment [was] not limited to the structural
and procedural subjects of article IV. Wrapped up in this structural and procedural
package is a substantive issue not found in article IV—the subject of increasing
State revenue or increasing taxes.” (Emphasis in original.) CBA I, 137 Ill. 2d at 404.
We further explained that
“if this court finds that the proposed Amendment falls within the limitations of
section 3 of article XIV then almost any substantive issue can be cast in the
form of an amendment to the structure and procedure of the legislative article
by using the same scenario.” CBA I, 137 Ill. 2d at 405.
¶ 42 Here, the sole provision in our constitution currently addressing the “subject”
of the Auditor General’s job duties is indisputably article VIII, section 3 (Ill. Const.
1970, art. VIII, § 3). As presently constituted, article IV does not mention the
“subject” of the Auditor General’s office or its duties, even in passing. Moreover,
the additional duties the ballot initiative imposes on the Auditor General creates
changes that neither “ ‘attack [n]or *** concern the actual structure or makeup of
the legislature itself.’ ” Coalition I, 65 Ill. 2d at 470 (quoting 4 Proceedings 2911
(statements of Delegate Perona)). Therefore, the duties of the Auditor General have
never been and are not now a “subject contained in Article IV” as currently
constituted. Thus, that provision is not a proper “subject” of the legislative article,
in violation of the limitation in article XIV, section 3.
¶ 43 Finally, Independent Maps makes the policy argument that upholding the
circuit court’s finding that the plaintiffs were entitled to judgment on the pleadings
will “make it largely impossible to make meaningful reforms in the redistricting
process.” We respectfully disagree. The Auditor General is not the only potential
nonlegislative actor capable of filling the duties outlined in its proposal. Certainly
Illinois has other offices or individuals that are unencumbered by the limitations
expressed in Article XIV. Indeed, the scheme proffered in the instant proposal is
not the only model of redistricting reform that could be imagined. 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
- 20 -
confines of article XIV, section 3, are sufficiently broad to encompass more than
one potential redistricting scheme.
¶ 44 We conclude that the duties assigned to the Auditor General by the ballot
initiative at issue in this case do not comport with the strict limitations in article
XIV, section 3 (Ill. Const. 1970, art. XIV, § 3). Therefore, the proposition
submitted by Independent Maps must fail. We hold that the circuit court properly
granted the plaintiffs’ motion for judgment on the pleadings pursuant to section
2-615(e) of the Code of Civil Procedure (734 ILCS 5/2-615(e) (West 2014)). In
reaching this conclusion, we emphasize that it is based solely on the constitutional
infirmity of the particular ballot initiative before this court. Our decision is not
intended to reflect in any way on the viability of other possible redistricting reform
initiatives.
¶ 45 Because we affirm the circuit court’s grant of the plaintiff’s motion on the
pleadings, we need not consider the remaining arguments on appeal, including the
parties’ invitation to determine whether any hypothetical ballot initiative
addressing the redistricting process could be constitutional. Accordingly, we leave
that question for another day.
¶ 46 III. CONCLUSION
¶ 47 Even when concerned citizens legitimately attempt to exercise their
constitutional right to seek changes in their state government through ballot
initiatives, this court is constrained by the expressed intent of the framers of our
constitution to review the propriety of only the specific provisions in the proposal
before it. In conducting that review, we must first and foremost look to the plain
language adopted by the framers. That is the most certain route to determining the
framers’ intent.
¶ 48 In this case, our inquiry is limited to the intent expressed by the plain language
of article XIV, section 3. The intent demonstrated by both the plain constitutional
language and this court’s prior case law imposes clear restrictions on the scope of
permissible ballot initiatives. As both parties expressly acknowledge, the wisdom
of placing before the voters of this state any particular ballot initiative seeking
reform of the redistricting process, as well as the workability of that reform, is
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irrelevant to this limited issue and not a matter properly before this court. We may
not ignore our mandate by simply deferring to the redistricting approach proffered
by a particular ballot proposal, no matter how appealing it may be. It is our role to
review all ballot initiatives for constitutional merit only, and we will examine all
future ballot initiative proposals brought before this court on the merit of their
particular provisions.
¶ 49 Here, after closely examining the framers’ carefully chosen language, as
previously interpreted by this court, we conclude the ballot initiative in this case
fails to comport with the restrictions incorporated into article XIV, section 3, to
protect the integrity of this state’s constitution. For the reasons stated above, we
affirm the judgment of the circuit court of Cook County. The mandate of this court
shall issue immediately.
¶ 50 Affirmed.
¶ 51 Mandate to issue immediately.
¶ 52 CHIEF JUSTICE GARMAN, dissenting:
¶ 53 I join and agree with Justice Karmeier’s dissent. I write separately to express
my concern with the impact of the majority’s conclusion on the future of
redistricting in Illinois. Article XIV, section 3, was included in our constitution to
provide the people of this state with the power to act in situations where it is against
the legislature’s self interest to do so. Redistricting is clearly such an issue. Those
elected have an incentive to draw maps that will help them remain in office.
Pursuant to article XIV, section 3, the people of Illinois should have an opportunity
to vote on whether the redistricting process controlled by the legislature ought to be
amended.
¶ 54 This check against the legislature’s self interest is especially important when
the issue at hand is one so crucial to our democracy. As I noted fifteen years ago,
following the redistricting triggered by the 2000 federal census:
“In any action involving redistricting, much more is at stake than simply
who will control the legislature for the next 10 years. ‘If any fundamental
principle underlies our American system of government, it is the notion that
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government exists only to serve the governed.’ [Citation.] Today, that
fundamental principle is dealt a serious blow.” Cole-Randazzo v. Ryan, 198 Ill.
2d 233, 248 (2001) (Garman, J., dissenting, joined by Thomas, J.).
¶ 55 I again lamented in Beaubien v. Ryan that the court had failed its “duty to
ensure that the process that ultimately results in a redistricting map that will
represent the people of Illinois for the next decade will be ‘equitable, balanced, and
fair.’ ” 198 Ill. 2d 294, 308 (2001) (Garman, J., dissenting, joined by Thomas, J.).
The majority opinion fails this duty and deals another serious blow to our
fundamental principles.
¶ 56 JUSTICES THOMAS and KARMEIER join in this dissent.
¶ 57 JUSTICE THOMAS, dissenting:
¶ 58 The Illinois Constitution is meant to prevent tyranny, not to enshrine it.
¶ 59 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. In direct contradiction of
the clear and unambiguous intention of the people who drafted the constitution and
the citizens who voted to adopt it, 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. When the Reporter of Decisions sends out the majority’s disposition, he
should include a bright orange warning sticker for readers to paste over article XIV,
section 3, of their personal copies of the 1970 Constitution reading, “Out of
Service.”
¶ 60 The majority’s ruling in this case comes at a particularly unfortunate time. In
Illinois, as throughout the United States, there is a palpable sense of frustration by
voters of every political affiliation that self-perpetuating institutions of government
have excluded them from meaningful participation in the political process.
¶ 61 In their wisdom, the drafters of the 1970 Constitution foresaw just this problem
and fashioned a clear and specific mechanism to insure that the legislature could
never have the upper hand on the people of Illinois, in whose hands the sovereign
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power of this State rests. That mechanism is article XIV, section 3. In undertaking
our constitutional duties, we, as judges, are obliged to resolve any doubt as to the
meaning of that provision in favor of the right of the people to have a voice in
government, as the drafters intended. I would honor that obligation and permit the
ballot initiative proposed here to go forward. The majority’s decision to quash it is
no less than the death knell of article XIV, section 3’s promise of direct democracy
as a check on legislative self-interest.
¶ 62 Today a muzzle has been placed on the people of this State, and their voices
supplanted with judicial fiat.
¶ 63 The whimper you hear is democracy stifled.
¶ 64 I join that muted chorus of dissent.
¶ 65 CHIEF JUSTICE GARMAN and JUSTICE KARMEIER join in this dissent.
¶ 66 JUSTICE KARMEIER, dissenting:
¶ 67 The issue in this case is whether the circuit court erred when it held that a
redistricting initiative petition submitted by Support Independent Maps
(Independent Maps) and supported by the number of signatures required by law
may not be placed before Illinois voters at the November 8, 2016, general election
because it fails to comply with the requirements of article XIV, section 3, of our
state constitution (Ill. Const. 1970, art. XIV, § 3). The circuit court’s judgment is
before us on direct review after we granted an emergency motion by Independent
Maps to transfer the appeal from the appellate court on the grounds that the public
interest requires prompt adjudication by this court. See Ill. S. Ct. R. 302(b) (eff.
Oct. 4, 2011). Expedited briefing has been completed by the parties. In addition, a
coalition of numerous business, consumer and public interest organizations led by
the League of Women Voters has been granted leave to file a friend of the court
brief in support of Independent Maps pursuant to Illinois Supreme Court Rule 345
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(eff. Sept. 20, 2010). 6 The matter is now ready for a decision on the merits. For the
reasons that follow, the judgment of the circuit court should be reversed.
¶ 68 BACKGROUND
¶ 69 The Illinois Constitution of 1970 provides three methods by which it may be
amended: constitutional convention (Ill. Const. 1970, art. XIV, § 1);
“[a]mendments by General Assembly” (Ill. Const. 1970, art. XIV, § 2); and ballot
initiatives (Ill. Const. 1970, art. XIV, § 3). Unlike the first two methods, ballot
initiatives may only be used for amendments directed at “structural and procedural
subjects contained in Article IV” of the constitution (Ill. Const. 1970, art. XIV, § 3;
Ill. Const. 1970, art. IV), a provision which pertains to the legislative branch of our
state government. Among these subjects is the process by which legislative and
representative districts are redrawn following each federal decennial census. Ill.
Const. 1970, art. IV, § 3.
¶ 70 In May 2016, Independent Maps—a “ballot initiative committee” duly
organized in accordance with section 9-1.8(e) of the Election Code (10 ILCS
5/9-1.8(e) (West 2014))—filed with the Secretary of State a petition proposing that
article IV, section 3, of the Illinois Constitution be amended to replace the current
system for redrawing this state’s legislative and representative districts with a new
one. In its present form, section 3 of article IV (Ill. Const. 1970, art. IV, § 3)
provides:
6
The specific organizations joining with the League of Women Voters in this
proceeding are the Small Business Advocacy Council Illinois, Illinois Campaign for
Political Reform, CHANGE Illinois, Champaign County Chamber of Commerce,
McCormick Foundation, Union League Club of Chicago, West Rogers Park Community
Organization, Illinois Farm Bureau, Better Government Association, Chicago Southside
Branch NAACP, Independent Voters of Illinois-Independent Precinct Organization,
Rockford Chamber of Commerce, Naperville Area Chamber of Commerce, Illinois
Chamber of Commerce, Chicagoland Chamber of Commerce, Metropolitan Planning
Council, Business and Professional People for the Public Interest, Latino Policy Forum,
Sargent Shriver National Center on Poverty Law, Illinois Public Interest Research Group,
Common Cause, Citizen Advocacy Center, the Civic Federation, Commercial Club of
Chicago, Chicago Embassy Church, and Illinois Hispanic Chamber of Commerce.
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“(a) Legislative Districts shall be compact, contiguous and substantially
equal in population. Representative Districts shall be compact, contiguous, and
substantially equal in population.
(b) In the year following each Federal decennial census year, the General
Assembly by law shall redistrict the Legislative Districts and the
Representative Districts.
If no redistricting plan becomes effective by June 30 of that year, a
Legislative Redistricting Commission shall be constituted not later than July
10. The Commission shall consist of eight members, no more than four of
whom shall be members of the same political party.
The Speaker and Minority Leader of the House of Representatives shall
each appoint to the Commission one Representative and one person who is not
a member of the General Assembly. The President and Minority Leader of the
Senate shall each appoint to the Commission one Senator and one person who is
not a member of the General Assembly.
The members shall be certified to the Secretary of State by the appointing
authorities. A vacancy on the Commission shall be filled within five days by the
authority that made the original appointment. A Chairman and Vice Chairman
shall be chosen by a majority of all members of the Commission.
Not later than August 10, the Commission shall file with the Secretary of
State a redistricting plan approved by at least five members.
If the Commission fails to file an approved redistricting plan, the Supreme
Court shall submit the names of two persons, not of the same political party, to
the Secretary of State not later than September 1.
Not later than September 5, the Secretary of State publicly shall draw by
random selection the name of one of the two persons to serve as the ninth
member of the Commission.
Not later than October 5, the Commission shall file with the Secretary of
State a redistricting plan approved by at least five members.
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An approved redistricting plan filed with the Secretary of State shall be
presumed valid, shall have the force and effect of law and shall be published
promptly by the Secretary of State.
The Supreme Court shall have original and exclusive jurisdiction over
actions concerning redistricting the House and Senate, which shall be initiated
in the name of the People of the State by the Attorney General.”
¶ 71 A central feature of the current version of article IV, section 3, is that initial
responsibility for formulating a redistricting plan lies with the General Assembly.
In the 46 years since the 1970 Constitution was adopted, however, the General
Assembly has managed to agree on such a plan and redistrict itself only once,
following the most recent federal census. Pub. Act 97-6 (eff. June 3, 2011).
Following each of the other four decennial censuses, resort to a redistricting
commission has been required. People ex rel. Scott v. Grivetti, 50 Ill. 2d 156
(1971); Schrage v. State Board of Elections, 88 Ill. 2d 87 (1981); People ex rel.
Burris v. Ryan, 147 Ill. 2d 270, 293 (1992); Cole-Randazzo v. Ryan, 198 Ill. 2d 233
(2001); Beaubien v. Ryan, 198 Ill. 2d 294 (2001). 7 Moreover, in three of the four
instances when resort to the redistricting commission has been needed, the
commission itself has deadlocked. This has triggered the provision for selection of
an additional member to break the tie through the drawing of lots (see Schrage v.
State Board of Elections, 88 Ill. 2d at 92; People ex rel. Burris v. Ryan, 147 Ill. 2d
270, 277 (1991); Beaubien v. Ryan, 198 Ill. 2d at 299), a process which has been
strongly criticized by some members of this court (see People ex rel. Burris v.
Ryan, 147 Ill. 2d at 308-14 (Bilandic, J., dissenting, joined by Clark and Freeman,
7
The legislative redistricting commission formed after the General Assembly failed to
pass a redistricting bill following the 1970 census was ultimately determined by this court
to have been illegally constituted, but the redrawn map it formulated was nevertheless
adopted by our court as a “provisional” plan for use in 1972, with instructions that a
“redistricting plan for subsequent elections shall be adopted pursuant to the procedures
outlined in section 3 of article IV of the 1970 constitution of this State.” People ex rel. Scott
v. Grivetti, 50 Ill. 2d at 168. When the General Assembly revisited the matter, it simply
adopted the same map formulated by the commission and approved by the court. See Pub.
Act 78-42 (eff. June 30, 1973); Robert M. Rogers, Illinois Redistricting History Since
1970, 3 Illinois General Assembly Legislative Research Unit Research Response (2008).
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JJ.) (“[w]e should not hasten to gamble away the government ‘of the People, by the
People, and for the People’ on the turn of a card, roll of the dice, or even random
selection”)), though it has been upheld against federal constitutional challenge in
the federal courts (Winters v. Illinois State Board of Elections, 197 F. Supp. 2d
1110 (N.D. Ill. 2001), aff’d, 535 U.S. 967 (2002)). In each of the three instances,
the resulting map favored the political party with which the winner of the draw was
affiliated.
¶ 72 In place of the current provision, the amendment to article IV, section 3,
proposed by Independent Maps would substitute an entirely new section 3. Under
the new section 3, the framework of the redistricting process would be
fundamentally restructured. The General Assembly, as an institution, would be
removed completely from the redistricting process. Instead, primary responsibility
for redrawing legislative and representative districts would lie with a new
“Independent Redistricting Commission,” whose members are selected through a
process in which legislative leaders have only limited input and which, among
other things, eliminates the drawing of lots to break deadlocks.
¶ 73 The new system is not unlike the one adopted through a citizen initiative in
Arizona with the hope of “ending the practice of gerrymandering and improving
voter and candidate participation in elections” (internal quotation marks omitted)
(Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S.
___, 135 S. Ct. 2652, 2661 (2015)), and recently upheld by the United States
Supreme Court against a federal constitutional challenge (id. at ___, 135 S. Ct. at
2661). Specifically, the provision proposed by Independent Maps provides as
follows:
“(a) The Independent Redistricting Commission comprising 11
Commissioners shall adopt and file with the Secretary of State a redistricting
plan for Legislative Districts and Representative Districts by June 30 of the
year following each Federal decennial census. Legislative Districts shall be
contiguous and substantially equal in population. Representative Districts shall
be contiguous and substantially equal in population. The redistricting plan shall
comply with Federal law. Subject to the foregoing, the Commission shall apply
the following criteria: (1) the redistricting plan shall not dilute or diminish the
ability of a racial or language minority community to elect the candidates of its
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choice, including when voting in concert with other persons; (2) the
redistricting plan shall respect the geographic integrity of units of local
government; and (3) the redistricting plan shall respect the geographic integrity
of communities sharing common social and economic interests, which do not
include relationships with political parties or candidates for office. The
redistricting plan shall not either intentionally or unduly discriminate against or
intentionally or unduly favor any political party, political group or particular
person. In designing the redistricting plan, the Commission shall consider party
registration and voting history data only to assess compliance with the
requirements in this subsection (a).
(b) For the purpose of conducting the Commissioner selection process, an
Applicant Review Panel comprising three Reviewers shall be chosen in the
following manner. Beginning not later than January 1 and ending not later than
March 1 of the year in which the Federal decennial census occurs, the Auditor
General shall request and accept applications to serve as a Reviewer. The
Auditor General shall review all applications and select a pool of 30 potential
Reviewers. The Auditor General should select applicants for the pool of
potential Reviewers who would operate in an ethical and non-partisan manner
by considering whether each applicant is a resident and registered voter of the
State and has been for the four years preceding his or her application, has
demonstrated understanding of and adherence to standards of ethical conduct
and has been unaffiliated with any political party for the three years preceding
appointment. By March 31 of the year in which the Federal decennial census
occurs, the Auditor General shall publicly select by random draw the Panel of
three Reviewers from the pool of potential Reviewers.
(c) Beginning not later than January 1 and ending not later than March 1 of
the year in which the Federal decennial census occurs, the Auditor General
shall request and accept applications to serve as a Commissioner on the
Independent Redistricting Commission. By May 31, the Panel shall select a
pool of 100 potential Commissioners. The Panel should select applicants for the
pool of potential Commissioners who would be diverse and unaffected by
conflicts of interest by considering whether each applicant is a resident and
registered voter of the State and has been for the four years preceding his or her
application, as well as each applicant’s prior political experience, relevant
- 29 -
analytical skills, ability to contribute to a fair redistricting process and ability to
represent the demographic and geographic diversity of the State. The Panel
shall act by affirmative vote of two Reviewers. All records of the Panel,
including applications to serve on the Panel, shall be open for public inspection,
except private information about applicants for which there is no compelling
public interest in disclosure.
(d) Within 45 days after the Panel has selected the pool of 100 potential
Commissioners, but not later than June 23 of the year in which the Federal
decennial census occurs, the Speaker and Minority Leader of the House of
Representatives and the President and Minority Leader of the Senate each may
remove up to five of those potential Commissioners. Thereafter, but not later
than June 30, the Panel shall publicly select seven Commissioners by random
draw from the remaining pool of potential Commissioners; of those seven
Commissioners, including any replacements, (1) the seven Commissioners
shall reside among the Judicial Districts in the same proportion as the number
of Judges elected therefrom under Section 3 of Article VI of this Constitution,
(2) two Commissioners shall be affiliated with the political party whose
candidate for Governor received the most votes cast in the last general election
for Governor, two Commissioners shall be affiliated with the political party
whose candidate for Governor received the second-most votes cast in such
election and the remaining three Commissioners shall not be affiliated with
either such political party and (3) no more than two Commissioners may be
affiliated with the same political party. The Speaker and Minority Leader of the
House of Representatives and the President and Minority Leader of the Senate
each shall appoint one Commissioner from among the remaining applicants in
the pool of potential Commissioners on the basis of the appointee’s
contribution to the demographic and geographic diversity of the Commission.
A vacancy on the Panel or Commission shall be filled within five days by a
potential Reviewer or potential Commissioner from among the applicants
remaining in the pool of potential Reviewers or potential Commissioners,
respectively, in the manner in which the office was previously filled.
(e) The Commission shall act in public meetings by affirmative vote of six
Commissioners, except that approval of any redistricting plan shall require the
affirmative vote of at least (1) seven Commissioners total, (2) two
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Commissioners from each political party whose candidate for Governor
received the most and second[-]most votes cast in the last general election for
Governor and (3) two Commissioners not affiliated with either such political
party. The Commission shall elect its chairperson and vice chairperson, who
shall not be affiliated with the same political party. Six Commissioners shall
constitute a quorum. All meetings of the Commission attended by a quorum,
except for meetings qualified under attorney-client privilege, shall be open to
the public and publicly noticed at least two days prior to the meeting. All
records of the Commission, including communications between
Commissioners regarding the Commission’s work, shall be open for public
inspection, except for records qualified under attorney-client privilege. The
Commission shall adopt rules governing its procedure, public hearings and the
implementation of matters under this Section. The Commission shall hold
public hearings throughout the state both before and after releasing the initial
proposed redistricting plan. The Commission may not adopt a final redistricting
plan unless the plan to be adopted without further amendment, and a report
explaining its compliance with this Constitution, have been publicly noticed at
least seven days before the final vote on such plan.
(f) If the Commission fails to adopt and file with the Secretary of State a
redistricting plan by June 30 of the year following a Federal decennial census,
the Chief Justice of the Supreme Court and the most senior Judge of the
Supreme Court who is not affiliated with the same political party as the Chief
Justice shall appoint jointly by July 31 a Special Commissioner for
Redistricting. The Special Commissioner shall adopt and file with the Secretary
of State by August 31 a redistricting plan satisfying the requirements set forth in
subsection (a) of this Section and a report explaining its compliance with this
Constitution. The Special Commissioner shall hold at least one public hearing
in the State before releasing his or her initial proposed redistricting plan and at
least one public hearing in a different location in the State after releasing his or
her initial proposed redistricting plan and before filing the final redistricting
plan with the Secretary of State. All records of the Special Commissioner shall
be open for public inspection, except for records qualified under attorney-client
privilege.
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(g) An adopted redistricting plan filed with the Secretary of State shall be
presumed valid and shall be published promptly by the Secretary of State.
(h) The Supreme Court shall have original jurisdiction in cases relating to
matters under this Section.”
¶ 74 As noted earlier, the proponent of this amendment, Independent Maps,
petitioned to bring it before the voters for approval using the ballot initiative
process in article XIV, section 3, of the Illinois Constitution (Ill. Const. 1970, art.
XIV, § 3). Article XIV, section 3, requires that petitions to amend article IV be
signed by “a number of electors equal in number to at least eight percent of the total
votes cast for candidates for Governor in the preceding gubernatorial election.” Ill.
Const. 1970, art. XIV, § 3. In this case, that number was 290,216. Independent
Maps’ petition was signed by 563,974 people. The State Board of Elections
determined that at least 375,613 of those signatures were valid. The petition
therefore surpassed the signature requirement necessary for it to be placed before
the voters.
¶ 75 On May 11, 2016, five days after Independent Maps submitted its petition to the
State Board of Elections, a “taxpayer’s suit” was filed in the circuit court of Cook
County pursuant to section 11-303 of the Code of Civil Procedure (735 ILCS
5/11-303 (West 2014)) to restrain and enjoin the State Board of Elections and
various other governmental agencies and officers from disbursing public funds to
determine whether the petition complies with the Election Code (10 ILCS 5/1-1
et seq. (West 2014)) or to place the proposed amendment on the ballot for
consideration at the upcoming General Election in November 2016. Declaratory
relief was also requested. 8
8
There is no dispute that a taxpayer action for declaratory and injunctive relief is an
appropriate vehicle for challenging the constitutionality of a proposed ballot initiative, nor
is there any question that the matter is ripe for consideration notwithstanding the fact that
the State Board of Elections has not yet officially declared Independent Maps’ petition
valid nor certified the initiative for inclusion on the ballot for the November election. Aside
from the constitutional challenge mounted by plaintiffs, there do not appear to be any
impediments to placing the proposed amendment before the voters. Any additional steps
the Board of Elections must take to complete the process are purely administrative. See
Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 506-07 (1994),
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¶ 76 The action was brought in the name of a political committee called People’s
Map; the chairperson of People’s Map, John Hooker; Frank Clark, president and
chairperson of an organization known as the Business Leadership Council; various
individual members of the Business Leadership Council; and the leaders of four
different ethnic, cultural, business and community groups, all of whom were
alleged to be Illinois residents and taxpayers. In addition to the Board of Elections
and its chairperson and members, the complaint named as defendants Leslie
Munger, the State Comptroller; Jesse White, the Secretary of State; Michael
Frerichs, the State Treasurer; David Orr, the County Clerk of Cook County; and the
Board of Election Commissioners for the City of Chicago, its chairperson, and
members. By agreed order, Orr and the Chicago Board of Election Commissioners,
its chair and members were later dismissed from the case without prejudice. They
are no longer part of these proceedings.
¶ 77 Independent Maps was not included as a party. Shortly after the action was
filed, however, it sought and was granted leave to intervene. See 735 ILCS 5/2-408
(West 2014). The organization’s intervention in support of its proposed ballot
initiative has ample precedent in our case law (see Chicago Bar Ass’n v. Illinois
State Board of Elections, 161 Ill. 2d 502, 506 (1994) (per curiam) (hereinafter CBA
II); Chicago Bar Ass’n v. State Board of Elections, 137 Ill. 2d 394, 396 (1990)
(hereinafter CBA I); Coalition for Political Honesty v. State Board of Elections, 65
Ill. 2d 453, 456 (1976) (per curiam) (hereinafter Coalition I)) and has not been
questioned.
¶ 78 Plaintiffs’ complaint contained 11 counts. Counts I through VI were directed
against all defendants, and all sought a declaratory judgment that the amendment to
article IV, section 3, of the Illinois Constitution (Ill. Const. 1970, art. IV, § 3)
proposed by Independent Maps is unconstitutional because it exceeds the scope of
ballot initiatives permitted under article XIV, section 3, of the Illinois Constitution
(Ill. Const. 1970, art. XIV, § 3).
¶ 79 As noted earlier, article XIV, section 3, specifies that amendments using the
ballot initiative procedure “shall be limited to structural and procedural subjects
agreeing with the dissent (id. at 515-16 (Harrison, J., dissenting, joined by Miller and
Heiple, JJ.)).
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contained in Article IV [Ill. Const. 1970, art. IV, § 3],” the legislative article. Ill.
Const. 1970, art. XIV, § 3. Count V of plaintiffs’ complaint construed this
provision as limiting the use of the ballot initiative process to changes to the actual
structure and procedure of the General Assembly itself. Because Independent
Maps’ proposal is addressed to redistricting and not how the General Assembly is
organized or “the process by which it adopts a law,” plaintiffs contended that it falls
outside the parameters of article XIV, section 3, and is impermissible.
¶ 80 Counts I through IV and VI alleged, in the alternative, that even if redistricting
does qualify as one of the “structural and procedural subjects contained in Article
IV” within the meaning of article XIV, section 3, the proposed ballot initiative is
nevertheless invalid because it is not “limited” to those subjects as article XIV,
section 3 (Ill. Const. 1970, art. XIV, § 3), requires. According to count I, the
initiative goes beyond the requisite limit by imposing additional duties on the
Auditor General beyond those specified in article VIII of the Illinois Constitution
(Ill. Const. 1970, art. VIII, § 3), which creates the office. Count II alleged that the
initiative is unconstitutional because it would alter the jurisdiction of the courts as
specified in the judicial article of the Illinois Constitution (Ill. Const. 1970, art. VI).
Count III complained that the initiative cannot proceed because, if adopted, it
would impose new duties on the Chief Justice of this court and the most senior
Justice who is not affiliated with the same political party as the Chief Justice. Count
IV contended that the proposed initiative is fatally infirm because it would require
members of this court to be affiliated with a political party when no such
requirement currently exists under the constitution. Count VI argued that the
initiative goes beyond the permissible limits of ballot initiatives by removing the
power currently held by the Attorney General to initiate actions concerning
legislative redistricting.
¶ 81 Count VII also sought a declaratory judgment against all defendants. Unlike the
previous six counts, however, Count VII did not allege a violation of article XIV,
section 3. Rather, it called for rejection of Independent Maps’ ballot initiative on
the grounds that it violates a different provision of our state’s constitution, namely,
article III, section 3 (Ill. Const. 1970, art. III, § 3). Article III, section 3, provides
that “[a]ll elections shall be free and equal.” Ill. Const. 1970, art. III, § 3. Plaintiffs
asserted that Independent Maps’ ballot initiative contravenes that requirement by
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impermissibly combining separate and unrelated questions into a single ballot
proposition.
¶ 82 Counts VIII through XI advanced no additional substantive grounds for
challenging the validity of Independent Maps’ ballot initiative. They merely
incorporated by reference the allegations in the prior counts and, rather than
seeking declaratory relief, requested a permanent injunction to prevent the various
defendant agencies and officials from disbursing any more public funds to assess
the sufficiency of Independent Maps’ petition or to place the measure on the ballot
for consideration by the voters at the November 8, 2016, general election. Count
VIII was directed against the State Board of Elections, its officers, and members.
Count IX was directed at the Board of Election Commissioners for the City of
Chicago and its officers and members as well as the County Clerk of Cook County.
As noted earlier, these defendants were later dismissed from the case.
Correspondingly, count IX was stricken and is no longer at issue. Count X was
directed at the Comptroller and State Treasurer. Count XI sought to enjoin the
Secretary of State.
¶ 83 On May 20, 2016, following the requisite notice and hearing, the circuit court
entered an order allowing plaintiffs leave to file their complaint. Independent Maps
promptly filed an answer. A separate, joint answer was also filed by all of the
defendant State agencies and their members and the State officials. At the same
time, plaintiffs moved for judgment on the pleadings pursuant to section 2-615(e)
of the Code of Civil Procedure (735 ILCS 5/2-615(e) (West 2014)) asking that the
court grant them the declaratory and injunctive relief requested in their complaint.
Independent Maps simultaneously filed a cross-motion for judgment on the
pleadings arguing that plaintiffs’ complaint should be dismissed with prejudice.
¶ 84 The circuit court conducted a hearing on the parties’ respective motions on June
30, 2016. Approximately three weeks later, it granted plaintiffs’ motion with
respect to counts I through VII, which sought declaratory relief, and denied
Independent Maps’ motion with respect to those same seven counts, agreeing with
plaintiffs that the proposed ballot initiative failed to meet constitutional
requirements. Because the parties had apparently not briefed the question of
whether injunctive relief should be entered, the court entered no judgment as to the
three remaining counts still left in the case, VIII, X, and XI, all of which had sought
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such relief. To prevent the absence of a judgment as to those counts from impeding
immediate review, the court made an express written finding pursuant to Illinois
Supreme Court Rule 304(a) that there was no just reason for delaying enforcement
or appeal of its judgment. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).
¶ 85 Independent Maps filed an immediate appeal to the appellate court and
requested that the matter be placed on an accelerated docket. See Ill. S. Ct. R.
311(b) (eff. Mar. 8, 2016). It then moved to transfer the case to this court pursuant
to Illinois Supreme Court Rule 302(b) (eff. Oct. 4, 2011), which provides for such
transfers when the public interest requires prompt adjudication of the matter by the
Illinois Supreme Court. We allowed that motion on July 22, 2016, ordered that the
appeal be taken directly to us, and set an expedited briefing schedule for the parties.
We also permitted a coalition consisting of the League of Women Voters and more
than two dozen other business, civic, and public interest groups to file an amicus
brief in support of Independent Maps. All briefs have now been received, and the
matter has been taken under submission without oral argument.
¶ 86 ANALYSIS
¶ 87 As grounds for its appeal, Independent Maps argues that the circuit court erred
in granting judgment on the pleadings in favor of plaintiffs pursuant to section
2-615(e) of the Code of Civil Procedure (735 ILCS 5/2-615(e) (West 2014)) and
that the court should instead have allowed its cross-motion for judgment on the
pleadings and dismissed plaintiffs’ complaint with prejudice. The standards
guiding our consideration of these arguments are well established. Judgment on the
pleadings is proper only where no genuine issue of material fact exists and the
moving party is entitled to judgment as a matter of law. Pekin Insurance Co. v.
Wilson, 237 Ill. 2d 446, 454 (2010). In ruling on a motion for judgment on the
pleadings, a court may consider only those facts apparent from the face of the
pleadings, matters subject to judicial notice, and judicial admissions in the record.
All well-pleaded facts and all reasonable inferences from those facts are taken as
true. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385
(2005); M.A.K. v. Rush-Presbyterian-St. Luke’s Medical Center, 198 Ill. 2d 249,
255 (2001). We review the grant of judgment on the pleadings de novo. Pekin
Insurance Co. v. Wilson, 237 Ill. 2d at 454. De novo review is also appropriate here
- 36 -
because resolution of this case turns on the interpretation and application of the
Illinois Constitution, which is a question of law. Hawthorne v. Village of Olympia
Fields, 204 Ill. 2d 243, 254-55 (2003).
¶ 88 As set forth earlier in this dissent, plaintiffs have advanced two basic lines of
constitutional attack against Independent Maps’ ballot initiative: (1) that it exceeds
the scope of amendments permitted through ballot initiative under article XIV,
section 3 (Ill. Const. 1970, art. XIV, § 3), because it is not “limited to structural and
procedural subjects contained in Article IV,” our constitution’s legislative article
(counts I through VI of plaintiffs’ complaint) and (2) that it violates article III,
section 3, of the constitution, which provides that “[a]ll elections shall be free and
equal” (Ill. Const. 1970, art. III, § 3), because it impermissibly combines into a
single ballot proposition separate and unrelated questions (count VII of plaintiffs’
complaint). Contrary to the view taken by the circuit court and adopted by the
majority, neither argument can be sustained.
¶ 89 I will begin with plaintiffs’ challenge under article III, section 3 (Ill. Const.
1970, art. III, § 3), the so-called “free and equal” clause. This clause, which was
also included in the Illinois Constitution of 1870 (Ill. Const. 1870, art. II, § 18), has
been construed by our court as requiring, among other things, “that separate and
independent questions may not be combined in one [ballot] proposition in such a
way as to place a voter in the position of having to vote for or against both questions
when he [or she] might otherwise favor one but oppose the other.” Village of
Deerfield v. Rapka, 54 Ill. 2d 217, 223 (1973). When applying this clause in the
context of ballot initiatives, we have been careful to point out that the simple fact
that a proposition may touch on multiple issues will not render it improper for “free
and equal” purposes. Id. at 224. Nearly any proposition, after all, could be broken
into simpler questions. Coalition for Political Honesty v. State Board of Elections,
83 Ill. 2d 236, 258 (1980) (per curiam) (hereinafter Coalition II). If inclusion of
multiple components were sufficient, in itself, to render a proposal fatally infirm
under the “free and equal” clause, the ability of the people of our State to exercise
their right to change the law through ballot measures would therefore be
significantly compromised. That is therefore not the test. Rather, our precedent
makes clear that “free and equal” election concerns are triggered only if the ballot
initiative seeks to combine in a single proposition questions that are separate and
unrelated. Id. at 254.
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¶ 90 In evaluating whether or not ballot questions are “separate and unrelated,” we
have held that multiple questions “may be combined in a single proposition as long
as they are reasonably related to a common objective in a workable manner.”
(Emphasis added.) Id. at 254, 256. If the various parts of the proposal have a
reasonable, workable relationship to the same subject, if they are germane to the
accomplishment of a single objective, the proposal may be submitted for approval
or rejection by the voters. Id. at 257-58.
¶ 91 Independent Maps’ ballot initiative plainly meets this test. It proposes a single
question narrowly focused on a single objective: replacing the current system for
redistricting set forth in article IV, section 3, of the Illinois Constitution (Ill. Const.
1970, art. IV, § 3) with the new redistricting system Independent Maps has
proposed. All components of the proposition are integrally related to that purpose
and no other.
¶ 92 It is true, of course, that the proposed amendment at issue here does touch on a
range of matters, including the authority of various State officials and the
jurisdiction of this court. As I have just pointed out, however, the mere fact that a
proposition may touch on multiple issues does not render it infirm for “free and
equal” purposes. The critical inquiry is whether the various components are
directed at accomplishing the same objective. In this case, they are. 9
9
In arguing for a contrary conclusion, plaintiffs note, for example, that the amendment
proposed by the initiative would eliminate an express reference to compactness when
describing the criteria to be followed in the redistricting process. Plaintiffs contend that this
change has nothing to do with the purpose of the initiative. That is manifestly incorrect.
The purpose of the initiative is to change the current redistricting system, and the criteria
that guide how districts are to be determined—something the current version of article IV
expressly addresses—are fundamental to that process. Plaintiffs’ argument is also flawed
because it fails to recognize that criteria (2) and (3) in subsection (a) of the proposal,
dealing with the geographic integrity of governmental units and communities sharing
common social and economic interests, reflect considerations similar to those underlying
the current compactness requirement. Plaintiffs have not cited and I have not found any
authority that would support the proposition that a free and equal clause problem is created
simply because a ballot initiative expresses a corresponding objective in a different way
than the provision it seeks to change.
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¶ 93 Indeed, the initiative’s components are not only all related to a single, unifying
objective, they are also integrally related to one another. They are essential pieces
of an overall framework designed to remedy the various problems perceived by the
proponents with the current redistricting system. This is an all-in-one,
take-it-or-leave-it proposition. And because the proposed new system would
operate in a fundamentally different way than the system presently in place, it
simply does not lend itself to being implemented in steps. The voters can choose to
accept or reject it, but it would make no sense to require them to vote on it in
installments.
¶ 94 Putting aside the logistical challenges, which would be formidable, dividing up
the proposal’s constituent parts for separate consideration by the voters could be
disastrous. As Independent Maps has pointed out in its brief,
“[i]t would take numerous separate votes to consider just the procedural issues
that plaintiffs claimed *** were ‘separate and unrelated’—votes concerning the
role of the Auditor General, the role of the Supreme Court, the role of the
Attorney General, and the basic Independent Commission structure. If the
provisions regarding the Auditor General failed, there would be no coherent
process for choosing the Independent Redistricting Commission. And if the
provisions regarding the Supreme Court failed, there would be no back-up
mechanism in the event the Commission could not agree.”
The result could well be a hybrid system that no one wanted, that no one had ever
suggested, and that could not possibly work. The confusion and uncertainty in the
electoral process that would follow from such a development is manifest.
¶ 95 Decades ago we held the combination of related questions in a single
proposition is not constitutionally prohibited where presentation of the questions
separately might yield incongruous results and create uncertainty and confusion
through a “legislature in an intermediate stage of development.” See Coalition II,
83 Ill. 2d at 255. For the reasons just described, that would certainly be the case
here.
¶ 96 Finally, I note that to the extent the amendment proposed by Independent Maps
may be complex, it is because the very process the amendment seeks to change is
itself complex. The redistricting mechanism set forth in article IV, section 3 (Ill.
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Const. 1970, art. IV, § 3), is an elaborate one containing multiple steps and
involving members of all three branches of government. Alternative redistricting
measures cannot be substituted without touching on these same areas, and the terms
of the amendment are no more varied or wide-ranging than the terms of the current
redistricting rules set out in the version of article IV, section 3, presently in force.
To hold that the multifaceted nature of the proposal dooms it under the “fair and
equal” clause of the Illinois Constitution would, under these circumstances, be
tantamount to holding that the provisions of section 3 of the legislative article of
our constitution (Ill. Const. 1970, art. IV, § 3) are not subject to amendment
through the ballot initiative notwithstanding the express authorization to use the
ballot initiative process to amend the legislative article, which the people of Illinois
reserved for themselves under article XIV, section 3 (Ill. Const. 1970, art. XIV,
§ 3), when they ratified the 1970 Constitution. In effect, the constitution’s
provisions for amendment of the legislative article through the ballot initiative
process would be nullified by the constitution’s “free and equal” clause.
¶ 97 This is a construction of the law we cannot countenance. It is incumbent upon
us to give meaning to every section and clause of the constitution, and whenever
different parts of the constitution might appear to be in conflict, it is our obligation
to harmonize them, if practicable. One clause will not be allowed to defeat another
if by any reasonable construction the two can be made to stand together. Oak Park
Federal Savings & Loan Ass’n v. Village of Oak Park, 54 Ill. 2d 200, 203 (1973). I
would therefore hold that the circuit court erred when it granted judgment for the
pleadings in favor of plaintiffs and against Independent Maps on count VII of
plaintiff’s complaint alleging violation of the “free and equal” clause. That count
should have been dismissed.
¶ 98 I turn then to counts I through VI of plaintiffs’ complaint. Those counts, as
described earlier, were directed against all defendants, and all sought a declaratory
judgment that the amendment to article IV, section 3, of the Illinois Constitution
(Ill. Const. 1970, art. IV, § 3) proposed by Independent Maps in its ballot initiative
is not valid and should not be placed before the voters because it does not fall
within the scope of initiative measures permitted by article XIV, section 3, of the
Illinois Constitution (Ill. Const. 1970, art. XIV, § 3).
¶ 99 Article XIV, section 3, specifies, in pertinent part:
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“Amendments to Article IV of this Constitution may be proposed by a
petition signed by a number of electors equal in number to at least eight percent
of the total votes cast for candidates for Governor in the preceding
gubernatorial election. Amendments shall be limited to structural and
procedural subjects contained in Article IV. *** If the petition is valid and
sufficient, the proposed amendment shall be submitted to the electors at that
general election and shall become effective if approved by either three-fifths of
those voting on the amendment or a majority of those voting in the election.”
Ill. Const. 1970, art. XIV, § 3.
¶ 100 The parties agree that the viability of counts I through VI of plaintiffs’
complaint turns solely on the question of how the provisions of article XIV, section
3, should be construed. In general, when construing the provisions of the Illinois
Constitution, we apply the same principles applicable to the construction of
statutes. People ex rel. Chicago Bar Ass’n v. State Board of Elections, 136 Ill. 2d
513, 526 (1990). Our objective when construing a constitutional provision is to
determine and effectuate the common understanding of the citizens who adopted it.
In doing so, we will look to the natural and popular meaning of the language used
as it was understood when the constitution was adopted, as well as “ ‘the object to
be attained or the evil to be remedied.’ ” Walker v. McGuire, 2015 IL 117138, ¶ 16
(quoting People ex rel. Chicago Bar Ass’n, 136 Ill. 2d at 526). If the language of a
constitutional provision is unambiguous, we will give it effect without resort to
other aids for construction. When the meaning of a provision is not clear from its
language, however, “we will consult the drafting history of the provision, including
the debates of the delegates to the constitutional convention.” Id.
¶ 101 Illinois courts have grappled with the language of article XIV, section 3, on
multiple occasions since the 1970 Constitution was adopted. Unlike the majority
here, they have not found its meaning clear and unambiguous. To the contrary, in
each instance, resort to the history of the provision, including the debates at the
constitutional convention regarding its meaning and purpose, has been necessary.
See Coalition I, 65 Ill. 2d 453; Coalition II, 83 Ill. 2d 236; Lousin v. State Board of
Elections, 108 Ill. App. 3d 496 (1982); CBA I, 137 Ill. 2d 394 (1990); CBA II, 161
Ill. 2d 502. This case is no different.
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¶ 102 Most lawmaking in the United States occurs through representative bodies
elected by the people. Direct lawmaking by the people themselves was virtually
nonexistent at the time the United States Constitution was drafted. It did not gain a
foothold in our country until the turn of the twentieth century. Since then, two
principal forms of direct legislation have been adopted, the initiative and the
referendum. The referendum serves as a negative check on action by the
legislature, allowing the voters to petition to refer legislative action to the voters for
approval or rejection at the polls. The initiative, by contrast, allows the voters to
adopt positive legislation independently of their state’s representative assemblies
by petitioning to place proposed statutes or constitutional amendments directly
before their fellow voters for adoption or rejection at the polls. It has been said that
the referendum corrects sins of commission by elected representative bodies, while
the initiative corrects the sins of omission by such bodies. Arizona State
Legislature, 576 U.S. at ___, 135 S. Ct. at 2659-60.
¶ 103 For most of this state’s history, the initiative process could not be used to amend
our constitution. Originally, the only way the constitution could be changed was by
convening a constitutional convention. Ill. Const. 1818, art. IV, § 2. Eventually a
second method was added under which amendments could also be proposed by the
General Assembly for approval by the voters. Lawrence Schlam, State
Constitutional Amending, Independent Interpretation, and Political Culture: A
Case Study in Constitutional Stagnation, 43 DePaul L. Rev. 269, 326 (1994). It was
not until the Sixth Illinois Constitutional Convention in 1970 that amending the
constitution through a direct ballot initiative was proposed as a third alternative.
CBA I, 137 Ill. 2d at 398.
¶ 104 Although the initiative does not have a counterpart in the federal constitution,
the United States Supreme Court has recognized that
“invention of the initiative was in full harmony with the Constitution’s
conception of the people as the font of governmental power. As Madison put it:
‘The genius of republican liberty seems to demand . . . not only that all power
should be derived from the people, but that those intrusted with it should be
kept in dependence on the people.’ [The Federalist], No. 37, at 223.
The people’s ultimate sovereignty had been expressed by John Locke in
1690, a near century before the Constitution’s formation:
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‘[T]he Legislative being only a Fiduciary Power to act for certain ends,
there remains still in the People a Supream [sic] Power to remove or alter
the Legislative, when they find the Legislative act contrary to the trust
reposed in them. For all Power given with trust for the attaining an end,
being limited by that end, whenever that end is manifestly neglected, or
opposed, the trust must necessarily be forfeited, and the Power devolve into
the hands of those that gave it, who may place it anew where they shall
think best for their safety and security.’ Two Treatises of Government
§ 149, p. 385 (P. Laslett ed. 1964).
Our Declaration of Independence, ¶2, drew from Locke in stating:
‘Governments are instituted among Men, deriving their just powers from the
consent of the governed.’ And our fundamental instrument of government
derives its authority from ‘We the People.’ U. S. Const., Preamble. As this
Court stated, quoting Hamilton: ‘[T]he true principle of a republic is, that the
people should choose whom they please to govern them.’ Powell v.
McCormack, 395 U.S. 486, 540-541 (1969) (quoting 2 Debates on the Federal
Constitution 257 (J. Elliot ed. 1876)).” Arizona State Legislature, 576 U.S. at
___, 135 S. Ct. at 2674-75.
¶ 105 Our court recently addressed these principles in the context of Illinois
government. In In re Pension Reform Litigation, 2015 IL 118585, ¶¶ 77-78, we
explained:
“Unlike Great Britain, where the sovereignty of the nation resides in
Parliament, ‘[u]nder our institutions this sovereignty or transcendent power of
government resides in or with the people.’ Hawthorn v. People, 109 Ill. 302,
305-06 (1883). See 33A Ill. L. and Prac. State Government § 3 (2012).
Sovereignty is lodged in the people (People ex rel. Dickinson v. Board of
Trade, 193 Ill. 577, 589 (1901)), and the people are the sovereign power (Field
v. People ex rel. McClernand, 3 Ill. 79, 110-11 (1839)). The people therefore
possess all power originally, including all legislative power. Harder’s Fire
Proof Storage & Van Co. v. City of Chicago, 235 Ill. 58, 68 (1908).
As the ultimate sovereign, the people can, ‘within constitutional restrictions
imposed by the Federal constitution, delegate the powers of government to
whom and as they please. They can withhold or [e]ntrust it, with such
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limitations as they choose.’ Hawthorn v. People, 109 Ill. at 306; accord City of
Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 672 (1976) (‘all power
derives from the people’ who can delegate it to representative instruments
which they create or reserve to themselves the power to deal directly with
matters which might otherwise be assigned to the legislature). *** Munn v.
Illinois, 94 U.S. 113, 124 (1876).”
¶ 106 The drafters of the 1970 Illinois Constitution acted in accordance with these
principles when they formulated the initiative provision set forth in article XIV,
section 3. In some jurisdictions, the initiative power is broad. Under the Arizona
Constitution, for example, any law that may be enacted by the legislature may be
enacted by the people directly through the initiative process. Arizona State
Legislature, 576 U.S. at ___, 135 S. Ct. at 2660-61. Article XIV, section 3, which
was ratified by the people of our state, is more focused. It pertains specifically to
changes to the constitution’s legislative article, article IV. The reason for this, as we
noted more than 30 years ago, is that “[t]he majority of delegates [to the
Convention] appear to have believed that legislative reform presented unique
problems and required a special provision.” Coalition II, 88 Ill. 2d at 244.
¶ 107 In the course of the convention’s debate regarding the desirability and scope of
ballot initiatives, Delegate Perona elaborated:
“[O]ne important area in which I think [initiatives] would be very beneficial
would be in regard to the legislative article. I am convinced, from serving on the
Legislative Committee, that neither by the process of legislative amendments or
by the process of Constitutional Convention are we going to get any substantial
change in our present legislative article. Now whether we need change or not, I
am not arguing that point. But sometime, possibly, in the next 100 years, we
may need some change in the legislative article; and if we are dependent upon
an amendment suggested by the legislature to reduce its size or to abolish
cumulative voting or possibly to change to a unicameral legislature, I don’t
think we are going to get it done. I would also feel that it is unlikely that the
Constitutional Convention—because of its ties, in many cases, or obligations to
members of the legislature and in saying these things, I am not being critical of
the legislature or of any of its members; I just think we have to recognize that all
of us are affected by our point of view, and that this is a necessary and inherent
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ingredient in human nature. And so if we are to leave open the possibility of
effective change in the legislative article, I think we have to have something
like the initiative ***.” 2 Record of Proceedings, Sixth Illinois Constitutional
Convention 583 (hereinafter Proceedings).
¶ 108 During the same discussion, Delegate Garrison followed the foregoing
observations with similar points bearing even more directly on the issue at hand in
this case. He stated:
“The initiative would provide a safety valve through which the people may
act directly if sufficiently aroused. It would furnish a salutary effect on the
legislature. For example, we could hardly expect the legislature ever to propose
a Constitutional amendment to reduce the size of its membership, to establish a
reapportionment commission comprised entirely of nonlegislative
members, or perhaps even to establish single-member districts.” (Italics in
original, bold added for emphasis.) 2 Proceedings 584.
¶ 109 The specific provision which would ultimately become article XIV, section 3,
was addressed by Delegate Perona later in the convention. He stated that the
purpose of this provision, which he described as providing for “initiatives limited to
the legislative article,” were as follows:
“One, to give the people an opportunity to participate in government, but on a
limited basis in an attempt to prevent some of the abuses that have occurred in
some areas. ***
This provision has been structured to apply only to the legislative article
and to be limited to the area of government which it is most likely will not be
changed in the constitution by amendment. The legislature, being composed of
human beings, will be reluctant to change the provisions of the constitution that
govern its structure and makeup ***.
*** [A]nd also I think the General Assembly will be more—have its ear
tuned to a greater degree as to what the people desire, because they will know
that if they do not suggest amendments that the people would desire, that it can
be done in another manner ***.” 4 Proceedings 2911.
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¶ 110 When the convention’s Committee on the Legislature subsequently made its
report on what became article XIV, section 3, it echoed those sentiments. The
report explained:
“The primary reason for offering a limited constitutional initiative proposal
for the Legislative Article is quite simple: members of the General Assembly
have a greater vested interest in the legislative branch of government than any
other branch or phase of governmental activity.
Cognizant of this fundamental fact of life, the Legislative Committee
proposes that the people of the State of Illinois reserve the right to propose
amendments by the initiative process to the Legislative Article. ***
In addition to this primary reason for proposing a limited form of
Constitutional initiative, the Legislative Committee believes:
—(1) the greatest virtue in having this provision rests in the potential for
keeping the General Assembly more responsive on matters directly and vitally
affecting them;
—(2) voters can better decide on the merits of proposals suggesting
changes in the Legislative Article since they are not directly and personally
involved; and
—(3) this is a method to circumvent a legislature which might be
dominated by interests opposing legislative changes.” 6 Proceedings
1399-1400 (quoted in Coalition II, 83 Ill. 2d at 245).
¶ 111 In sum, article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3), “was drafted and
adopted as a check on the legislature’s self-interest” (Coalition II, 83 Ill. 2d at 247)
and a means by which the people could overcome “ ‘a reluctance on the part of the
General Assembly to propose changes in its own domain’ ” (id. at 246 (quoting 7
Proceedings 2677-78)). Our forefathers emphasized the importance of structuring
the legislative branch of government so as to support in the members “ ‘an habitual
recollection of their dependence on the people.’ ” Arizona State Legislature, 576
U.S. at ___, 135 S. Ct. at 2677 (quoting James Madison, The Federalist No. 57, at
350). Article IV, section 3, of the Illinois Constitution and article XIV, section 3,
through which article IV may be amended, directly serve that critical goal.
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¶ 112 When courts are called upon to intervene in the initiative process, as we have
been here, “they must act with restraint, trepidation and a healthy suspicion of the
partisan who would use the judiciary to prevent the initiative process from taking
its course.” Committee for a Healthy Future, Inc. v. Carnahan, 201 S.W.3d 503,
507 (Mo. 2006) (en banc). The need for caution and restraint may be especially
compelling in cases such as this one, challenging an initiative related to legislative
redistricting, for it is a core principle of republican government “ ‘that the voters
should choose their representatives, not the other way around.’ ” Arizona State
Legislature, 576 U.S. at ___, 135 S. Ct. at 2677 (quoting Mitchell N. Berman,
Managing Gerrymandering, 83 Tex. L. Rev. 781 (2005)).
¶ 113 Consistent with the foregoing principles, our court has previously held that
when interpreting and applying articles IV, section 3, and XIV, section 3, of the
Illinois Constitution (Ill. Const. 1970, art. IV, § 3; art. XIV, § 3), we must avoid
unduly technical and/or restrictive constructions that would tend to defeat their
purpose. Rather, those provisions “are to be construed so as to effectuate the basic
purpose of article XIV, section 3, to provide a workable initiative scheme
unfettered by restraints which unnecessarily inhibit the rights which article XIV
confers.” Coalition II, 83 Ill. 2d at 247.
¶ 114 When the court first adopted this standard in 1980, we noted that the initiative
procedure was then relatively new to Illinois and that there were no Illinois cases
directly on point. We therefore looked to relevant authority from sister states, as we
frequently do in such circumstances. In developing the standard, we cited, with
approval, decisions from other jurisdictions that had “carefully protected
constitutionally provided initiative plans from unnecessarily burdensome
legislative restrictions.” Id. at 248. Our decision quoted at length an earlier opinion
from the Supreme Court of Oklahoma, In re Initiative Petition No. 23, State
Question No. 38, 127 P. 862, 866 (Okla. 1912), which admonished “ ‘[t]he right of
direct legislation in the people must be administered by the officers charged with
that duty in such manner as to make it operative. If technical restrictive
constructions are placed upon the laws governing the initiation and submission of
these measures, the purpose and policy of the people in establishing the same will
be entirely defeated ***.’ ” Coalition II, 83 Ill. 2d at 249. Decisions from Nebraska
and Arizona to similar effect were also invoked. Id. at 248-50.
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¶ 115 The standard is a liberal one. Courts from Maine to Michigan to Hawaii have so
recognized when interpreting constitutional provisions applicable to the initiative
process in their respective states. League of Women Voters v. Secretary of State,
683 A.2d 769, 771 (Me. 1996) (“[w]hen the people enact legislation by popular
vote, we construe the citizen initiative provisions of the Maine Constitution
liberally in order to facilitate the people’s exercise of their sovereign power to
legislate”); Welch Foods, Inc. v. Attorney General, 540 N.W.2d 693, 695 (Mich.
Ct. App. 1995) (“[i]nitiative provisions are liberally construed to effectuate their
purposes and facilitate rather than hamper the exercise of reserved rights by the
people”); Ruggles v. Yagong, 353 P.3d 953, 969 (Haw. 2015) (“direct democracy
and the initiative process have had considerable influence on public policy, and
they remain as one of the most precious rights of our democratic process. In order
to protect this fundamental democratic right, ‘courts are required to liberally
construe [the initiative process] and accord it extraordinarily broad deference’ ”).
Other decisions to the same effect are legion. See, e.g., Brooks v. Wright, 971 P.2d
1025, 1027 (Alaska 1999); Blocker v. Sewell, 75 S.W.2d 658, 660 (Ark. 1934);
Pedersen v. Bennett, 288 P.3d 760, 762 (Ariz. 2012); Marblehead v. City of San
Clemente, 277 Cal. Rptr. 550, 553 (Ct. App. 1991); In re Statement of Sufficiency
for 1997-98 # 40 (Medical Use of Marijuana), 968 P.2d 112, 118-19 (Colo. 1998)
(en banc); Billings v. Buchanan, 555 P.2d 176, 178 (Colo. 1976) (en banc);
Chouteau County v. Grossman, 563 P.2d 1125, 1128 (Mont. 1977); Rothenberg v.
Husted, 129 Ohio St. 3d 447, 2011-Ohio-4003, 953 N.E.2d 327, ¶ 5; State ex rel.
Carson v. Kozer, 217 P. 827, 829 (Or. 1923). Plaintiffs have not cited and I have not
found any authority from Illinois or elsewhere holding otherwise.
¶ 116 It is true, of course, that when assessing ballot initiatives, we must keep in mind
that if the constitution has placed limitations on the initiative power, such
limitations are also an expression of the people’s sovereign power and must
likewise be obeyed. See Committee for a Healthy Future, Inc. v. Carnahan, 201
S.W.3d at 507. Reservation of the right to propose an initiative regarding eligibility
to serve as Governor, for example, could scarcely be interpreted as contemplating
the right to bring an initiative regarding income tax. With respect to whatever
particular sphere or spheres of power the people have chosen to reserve for
themselves, however, courts must act with deference and restraint to insure that
such power may be exercised as the people intended. A contrary view, i.e., that a
provision reserving sovereign authority to amend the constitution through initiative
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must be read in a narrow, technical, and restrictive fashion, would require us to
assume that when they reserved their sovereign powers, it was the hope of the
people that the courts would prevent them from actually exercising those powers
except in the most limited possible way. Such a view is incompatible with the very
concept of popular sovereignty under the American constitutional order. It has no
foundation in the history or text of the Illinois Constitution of 1970. It is why we
have held that the provisions of article XIV, section 3, “are to be construed so as to
effectuate the basic purpose of [those provisions], to provide a workable initiative
scheme unfettered by restraints which unnecessarily inhibit the rights which article
XIV confers.” Coalition II, 83 Ill. 2d at 247.
¶ 117 Applying the standards our court has established for construing article XIV,
section 3 (Ill. Const. 1970, art. XIV, § 3), to the present case, I agree with
Independent Maps that the circuit court erred when it concluded that plaintiffs were
entitled to judgment on the pleadings on counts I through VI of their complaint,
which sought a declaratory judgment that the amendment to article IV, section 3
(Ill. Const. 1970, art. IV, § 3), proposed by Independent Maps is unconstitutional
because it exceeds the scope of ballot initiatives that article XIV, section 3 (Ill.
Const. 1970, art. XIV, § 3), permits. Contrary to plaintiffs’ contentions,
Independent Maps’ proposed ballot initiative does conform to article XIV, section
3. Judgment on the pleadings should therefore have been granted in favor of
Independent Maps as to counts I through VI of plaintiffs’ complaint, just as it
should have been granted in favor of Independent Maps with respect to count VII.
¶ 118 The objection asserted in count V of plaintiffs’ complaint as to why
Independent Maps’ proposed ballot initiative fails to meet the requirements of
article XIV, section 3, was different from and more basic than the theory they
advanced in counts I through IV and VI. I shall therefore consider the viability of
that count separately and first.
¶ 119 Count V was premised on the notion that when article XIV, section 3, states that
amendments through the initiative process “shall be limited to structural and
procedural subjects contained in Article IV,” what it really means is that such
amendments must pertain to changes to section 1 of Article IV, which specifies that
“[t]he legislative power is vested in a General Assembly consisting of a Senate and
a House of Representatives, elected by the electors from 59 Legislative Districts
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and 118 Representative Districts” (Ill. Const. 1970, art. IV, § 3). There is no
question that Independent Maps’ initiative, if approved, would not alter anything
contained in section 1. The power of the General Assembly and how that body is
organized by houses and districts would remain unchanged. Plaintiffs asserted that
the initiative therefore falls completely outside the scope of article XIV, section 3.
Plaintiffs similarly contended in count V of their complaint that to qualify under
article XIV, section 3, an initiative must address “the process by which [the
legislature] adopts a law.” Because Independent Maps’ proposal does not do that
either, plaintiffs asserted that it is unauthorized for that reason as well.
¶ 120 There is no support for plaintiffs’ contentions in either the language or the
history of article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3). Article XIV
authorizes use of ballot initiatives to amend article IV, the legislative article, with
the sole proviso that such initiatives “shall be limited to structural and procedural
subjects contained in Article IV.” Ill. Const. 1970, art. XIV, § 3. Article IV contains
no fewer than fifteen different sections: (1) legislative power and structure, (2)
legislative composition, (3) legislative redistricting, (4) election, (5) sessions, (6)
organization, (7) transaction of business, (8) passage of bills, (9) veto procedure,
(10) effective date of laws, (11) compensation and allowances, (12) legislative
immunity, (13) special legislation, (14) impeachment, and (15) adjournment.
Under a straightforward reading of article XIV, section 3, any structural and
procedural subject contained in article IV is eligible for change through a ballot
initiative. Article XIV contains no qualifying language that would restrict its
applicability only to matters contained in section 1, the provision on which
plaintiffs rest their argument, or to the process by which the legislature enacts a
law. To so limit it would therefore require us to rewrite article XIV, section 3, to
add restrictions that the drafters did not include and the citizens did not approve
when the 1970 Constitution was ratified. That, of course, is something we may not
do. In re Pension Reform Litigation, 2015 IL 118585, ¶ 75.
¶ 121 Plaintiffs seek support for their argument in the title of section 1, which
includes the word “structure.” I note, however, that if use of the word structure in
the title of section 1 meant that section 1 is the sole “structural” subject in article
IV, as plaintiffs contend, it would likewise follow that use of the word “procedure”
in section 9 (veto procedure) would make the contents of that provision the article’s
sole “procedural” subject. Plaintiffs, however, make no such argument. To the
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contrary, and as I have pointed out, they think article XIV, section 3’s reference to
“procedural” is limited to “the process by which the legislature adopts a law.” That
subject is covered primarily by section 8 of article IV (Ill. Const. 1970, art. IV, § 8),
not section 9. Plaintiffs’ position is therefore inconsistent.
¶ 122 More than that, it overlooks basic principles of statutory construction. While an
enactment’s title can sometimes provide guidance in resolving ambiguities (see
Home Star Bank & Financial Services v. Emergency Care & Health Organization,
Ltd., 2014 IL 115526, ¶ 40), our interpretation cannot turn on particular words or
phrases viewed in isolation. We must construe the enactment as a whole. In re E.B.,
231 Ill. 2d 459, 466 (2008).
¶ 123 Even a cursory review of article IV’s fifteen sections reveals that structural and
procedural matters are not the exclusive province of sections 1 and 9. To the
contrary, a full range of matters, from the purely procedural (e.g., the number of
times a bill must be read before it may be enacted) to the purely structural
(legislative composition), may be found throughout the various provisions of
article IV. To limit the reach of article XIV, section 3, in the manner suggested by
plaintiffs therefore has no support in the language of the constitution itself.
¶ 124 It is also completely unsupported by the record of the debates at the convention
that led to article XIV, section 3’s adoption. As presented to the Convention by the
Committee on the Legislative Article, article XIV, section 3, addressed “subject
matter specifically contained in the Legislative Article [art. IV]” and was targeted
at “the basic qualities of the legislative branch—namely, structure, size,
organization, procedures, etc.” 6 Proceedings 1401. It was not limited to any
particular section or sections of the legislative article.
¶ 125 This was intentional. As Delegate Perona explained,
“[W]e intend to limit this to the sections—to the sections presently—the type of
sections presently in the legislative article. We toyed with the idea or
considered the idea of naming the specific sections and limiting it to those; but
you run into problems with that, also. *** I think the courts could iron out those
questions and protect against abuse.” (Emphasis added.) 4 Proceedings 2711.
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¶ 126 In response to Perona’s remarks, Delegate Tomei stated: “I take it it is not the
intention of the committee to limit the initiative just to those things presently
contained in the legislative article.” Id. Delegate Perona answered:
“Yes. That’s correct. We—that’s the problem. If you get too specific with the
limitation, you inhibit the possibility of change within the legislative setup. ***
So we’ve attempted to do it by the explanation as to what our purposes are, and
then to leave the question of abuse to the courts.” Id. at 2711-12.
¶ 127 The delegates then explored the scope of changes that could be accomplished
through the initiative process under article XIV, section 3. Adoption of a
unicameral legislature was the first example given. Such a change was recognized
as falling within the scope of the provision even though it would introduce a new
form of organization entirely different from the one in the current legislative article
and affect many of the things addressed by the article. Moreover, the scope of the
change was identified by Delegate Perona as “the major reason that we could not
limit [article XIV, section 3] to certain sections [of the legislative article].” Id. at
2712.
¶ 128 Delegate Tomei then asked if the same would be true with a range of other
matters, including “apportionment,” which was the term initially used in article IV,
section 3, to refer to legislative redistricting, and whether those matters would
likewise “be subject to initiative under [proposed article XIV, section 3]. 10 Id.
Delegate Perona not only responded in the affirmative but stated “[t]hose are the
critical areas, actually.” (Emphasis added.) Id. In light of this, there can be no
serious question that the drafters of our constitution regarded the redistricting
provision of the legislative article to be an altogether proper subject of change
through the ballot initiative process.
¶ 129 In urging us to reach a contrary conclusion, plaintiffs invoke this court’s prior
decision in CBA II, 161 Ill. 2d 502. Plaintiffs assert, as they did in the circuit court,
that under that decision, redistricting cannot qualify as a structural and procedural
subject of article IV and that Independent Maps’ proposal does not meet the subject
10
The term was changed from apportionment to redistricting at the recommendation
of the Committee on Style, Drafting and Submission. 6 Proceedings 1540-44.
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matter requirement for a ballot initiative set forth in article XIV, section 3, of the
Illinois Constitution (Ill. Const. 1970, art. XIV, § 3). The circuit court rejected this
contention, and so do I. The initiative at issue in CBA II concerned term limits, not
redistricting. As I have just discussed, redistricting was specifically recognized by
the drafters of the constitution as not only a proper but a critical matter that would
be subject to amendment through article XIV, section 3’s ballot initiative process.
No analogous circumstance was noted or considered by this court when dealing
with the term limit question in CBA II. For that reason alone, CBA II is
distinguishable.
¶ 130 I note, moreover, that the focus of the court’s discussion in CBA II was whether
the provisions of the term limit initiative challenged there could be considered both
“structural and procedural” or even either of those things within the meaning of
article XIV, section 3. In resolving that question, the court simply followed its prior
decision Coalition I, 65 Ill. 2d 453, which concluded that to pass muster under
article XIV, section 3, an initiative must propose changes that are both structural
and procedural in nature, something the initiative challenged in Coalition I did not
do and did not purport to do. Id. at 466-72.
¶ 131 In the course of its discussion in Coalition I, this court gave as examples of
initiatives that would qualify as both structural and procedural ones involving the
conversion from a bicameral to a unicameral legislature or for the conversion from
multiple- to single-member legislative districts. Id. at 466 (quoted in CBA II, 161
Ill. 2d at 529). Nothing in Coalition I suggests, however, that the subject matter of
the two examples are the only things that may be the sole topics of initiative
authorized by article XIV, section 3. So restrictive a construction of that provision
would, moreover, be incompatible with the history of the provision, with the
intention of the drafters, and with the language they used and that the voters
approved. It would also directly conflict with our obligation to construe
constitutional provisions authorizing ballot initiatives so as to effectuate rather than
defeat the people’s exercise of their sovereign power to legislate. The circuit court
therefore erred when it granted judgment on the pleadings in favor of plaintiffs and
against Independent Maps on count V of plaintiff’s complaint. As with count VII,
that count should have been dismissed.
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¶ 132 I turn then to the remaining counts of plaintiffs’ complaint, I through IV and VI.
Those counts alleged, in the alternative, that even if redistricting qualifies as one of
the “structural and procedural subjects contained in Article IV” within the meaning
of article XIV, section 3, the proposed ballot initiative is nevertheless invalid
because it is not “limited” to those subjects, as article XIV, section 3 (Ill. Const.
1970, art. XIV, § 3), requires. As set forth earlier in this dissent, count I alleged that
the initiative goes beyond the requisite limits by imposing additional duties on the
Auditor General beyond those specified in article VIII of the constitution (Ill.
Const. 1970, art. VIII), which creates the office. Count II alleged that the initiative
is unconstitutional because it would alter the jurisdiction of the courts as specified
in the judicial article of the constitution (Ill. Const. 1970, art. VI, § 9). Count III
complained that the initiative cannot proceed because, if adopted, it would impose
new duties on the Chief Justice of this court and the most senior Justice who is not
affiliated with the same political party as the Chief Justice. Count IV contended that
the proposed initiative is fatally infirm because it would require members of this
court to be affiliated with a political party when no such requirement currently
exists under the constitution. Finally, count VI argued that the initiative goes
beyond the permissible limits of ballot initiatives by removing the power currently
held by the Attorney General to initiate actions concerning legislative redistricting.
None of these contentions withstands scrutiny.
¶ 133 As a preliminary matter, a number of plaintiffs’ assertions regarding the effect
of the proposed ballot initiative are simply incorrect. For example, contrary to the
claim made in count II of plaintiffs’ complaint, the ballot initiative, if adopted,
would not impact the jurisdictional provisions of the judicial article (Ill. Const.
1970, art. VI) at all. The provision of the constitution specifying this court’s current
jurisdiction over actions concerning redistricting, which is original and exclusive,
is not the judicial article but rather is a subject of the legislative article. To the
extent there is any mention of jurisdiction over redistricting in the judicial article, it
is in the context of the jurisdiction of circuit courts, and the provision defining
circuit court jurisdiction simply states that those courts have original jurisdiction of
all justiciable matters “except when the Supreme Court has original and exclusive
jurisdiction relating to redistricting.” Ill. Const. 1970, art. VI, § 9.
¶ 134 By its terms, this jurisdictional grant is entirely conditional. If Independent
Maps’ ballot initiative were to be approved by the voters and this court’s
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jurisdiction over redistricting was thereby changed from “original and exclusive” to
simply “original” in Article IV, there would therefore be no conflict at all with
article VI, section 9, of the Illinois Constitution. The contingency necessary to
trigger the exception noted above would simply be removed. Article VI, section 9
would still make complete sense and be fully operative precisely as currently
written.
¶ 135 That such is the case reflects, we think, how carefully and thoughtfully the 1970
Constitution was crafted. By placing the Illinois Supreme Court’s jurisdiction over
redistricting in the legislative article and thereby making it among the matters
subject to amendment through the ballot initiative process under article XIV,
section 3, the drafters understood that the scope of this court’s jurisdiction over
such matters, and by extension, the jurisdiction of the lower courts, might change.
The conditional nature of the circuit court’s jurisdiction as set forth in the judicial
article is an expression of that awareness and a means for insuring that the process
for amending the legislative article could be given full effect without the need to
revise the judicial article at the same time.
¶ 136 Also erroneous is the claim made by plaintiffs in count IV of the complaint that
the ballot initiative is fatally defective because the part of the proposed process that
would require participation by two members of this court in the event the
redistricting commission failed to adopt a redistricting plan would impermissibly
impose a political affiliation requirement on supreme court judges. Contrary to
plaintiffs’ view, the proposal would not alter current judicial eligibility
requirements in any way. One does not need to be affiliated with a political party to
serve as a judge of the supreme court. Ill. Const. 1970, art. VI, § 11. Supreme,
appellate, and circuit judges are, however, selected for office through partisan
elections. Ill. Const. 1970, art. VI, § 12. While it is theoretically possible for a judge
to run and be elected to the supreme court as an independent, we know of no
instance in the history of our court where that has occurred. It has certainly not
happened since adoption of the judicial article of 1964, the precursor of the judicial
article in the 1970 Constitution. Accordingly, while political affiliation is not
required, every member of this court in modern times has, in fact, had one.
¶ 137 It is true that judges who seek to remain on the bench following expiration of
their terms may seek retention through an election process in which their names
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appear on the ballot “without party designation” (Ill. Const. 1970, art. VI, § 12(d)).
Their original party affiliation, however, remains a matter of public record. And
while some judges join this court through assignments or appointments to fill
vacancies that occur between elections, those appointments are temporary and
relatively brief. Ill. Const. 1970, art. VI, § 12(c). Because the Chief Justice is
determined, by custom, through seniority, and because the proposed initiative
would involve only the Chief Justice and the next most senior Justice not affiliated
with the same political party as the Chief Justice, it would be all but impossible for
those two positions to be occupied by temporary appointees. And even those
appointees would have an ascertainable party affiliation if they had been elected to
lower judicial office prior to joining this court. But even if they did not, and even if
it were somehow possible for the most senior members of this court to have risen to
their positions without any prior political affiliation, it still would not matter. The
only requirement under the proposed ballot initiative is that the member of the court
who acts with the Chief Justice in carrying out the terms of the procedure when the
redistricting commission fails to adopt a plan “not be affiliated with same political
party as the Chief Justice.” If the Chief Justice were an independent, or if the next
most senior member of the court were an independent, or even if all the members of
the court were independents and therefore had no party affiliation, the proposed
system would still work. That is so because the members of the court who would be
participating could not be said to be affiliated with the same political party, and that
is all the amendment proposed by the initiative would require. The initiative
therefore cannot be assailed on the grounds that it would improperly impose a
political affiliation requirement on members of the supreme court.
¶ 138 In reaching this conclusion, I am mindful that difficulties in application of the
proposed amendment could arise if it were somehow to happen that all seven
members of the court ended up belonging to the same political party. In light of
modern Illinois history and politics, such an alignment seems so unlikely as to be
impossible. But even if there were a theoretical possibility that the process
proposed by plaintiffs’ initiative could one day prove problematic in practice, that
is an entirely separate question from the one before us, which is simply whether the
initiative meets the requirements of article XIV, section 3. So long as the proposal
is legally valid, its wisdom and flaws are a matter for the voters to decide. They are
not a legitimate basis for us to prevent the voters from even considering the matter.
Count IV of plaintiffs’ complaint therefore fails as a matter of law as well.
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¶ 139 In count III of their complaint, plaintiffs protested that the very act of involving
the Chief Justice and another member of this court in the process when the
redistricting commission fails to adopt a plan also crosses an impermissible
constitutional line in that it imposes additional responsibilities on members of this
court beyond those specified in the judicial article (Ill. Const. 1970, art. VI) and the
rules of this court. As is clear from the text of the current version of article IV,
section 3 (Ill. Const. 1970, art. IV, § 3), however, this court already plays an
integral role in the redistricting process when the redistricting commission fails to
file a plan. The authority for our involvement in that process emanates entirely
from article IV, section 3, itself. It is unrelated to anything in the judicial article or
our rules. The proposed initiative would therefore have no spillover effects on any
other provisions of the constitution. Its effect would be confined to the court’s role
under section 3 of article IV. While the nature of that role would be different, the
change is therefore not subject to challenge on the grounds that it is not “limited to
structural and procedural subjects contained in Article IV” as article XIV, section
3, requires. To hold otherwise would mean that the provisions of the legislative
article could never be altered unless the supreme court’s role in redistricting remain
fixed precisely as it is today. That is not what article XIV, section 3, says, and it is
incompatible with what the drafters intended when article XIV, section 3, was
placed before the voters for ratification. Count III of plaintiffs’ complaint is
therefore meritless as a matter of law and should also have been dismissed on the
pleadings.
¶ 140 Count VI of plaintiffs’ complaint, which challenged the ballot initiative based
on its removal of an express reference to the Attorney General is similarly flawed.
Article V, section 15, of the Illinois Constitution (Ill. Const. 1970, art. V, § 15)
addresses the office of Attorney General. It specifies that the Attorney General is
the legal officer of the State and “shall have the duties and powers that may be
prescribed by law.” The current version of article IV, section 3 (Ill. Const. 1970,
art. IV, § 3), confers on the Attorney General one such duty, namely, responsibility
for initiating actions concerning redistricting and specifies how the action is to be
brought (in the name of the People of the State of Illinois) and where it is to be filed
(in the supreme court). The ballot initiative proposed by Independent Maps
eliminates the reference to the Attorney General and the related instruction
regarding how the action is to be styled, along with removing language giving the
supreme court exclusive jurisdiction over such actions. There is nothing
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constitutionally suspect about that. Assigning responsibility for who is to bring an
action and specifying how it is to be styled and where it should be filed are
quintessentially procedural aspects of the redistricting process and therefore place
the changes squarely within the bounds authorized by article XIV, section 3, for
ballot initiatives. The changes, moreover, have no purpose and would have no
effect beyond redistricting. Article V, section 15, would not be not altered in any
way. Its provision that the Attorney General shall have the duties prescribed by law
would remain fully intact. The only thing changing would be what the law
prescribes. That is in no way problematic as a constitutional matter. If a
procedure-related duty may be conferred by article IV, section 3, it necessarily
follows that it can be removed through an amendment to that provision. To hold
otherwise would mean that the right to amend the legislative article through the
ballot initiative process reserved to the people under article XIV, section 3, could
not be fully realized.
¶ 141 That leaves only count I of plaintiffs’ complaint, which alleged that the
initiative cannot be said to be limited to procedural and structural subjects
contained in article IV because, if adopted, it would confer on the Auditor General
additional duties not presently assigned to that office, namely, responsibility for
assisting in selection of the new Applicant Review Panel that would be established
under the proposed amendment. 11 This contention, as with the others I have just
discussed, must be rejected.
¶ 142 It is true that, unlike this court and the Attorney General, the Auditor General is
not presently involved in the redistricting process. The constitution references the
Auditor General only in article VIII, section 3 (Ill. Const. 1970, art. VIII, § 3),
which mandates that the Auditor General “shall conduct the audit of the public
funds of the State” and “shall make additional reports and investigations as directed
by the General Assembly.” Involving the Auditor General in the redistricting
process in the matter contemplated by Independent Maps’ proposal would not fall
within this charge. Because action by constitutional officers that is not (1)
11
Under the amendment, the Auditor General would also be involved in requesting
and accepting applications to serve as commissioner of the new Independent Redistricting
Commission. Count I of plaintiffs’ complaint does not challenge this aspect of the Auditor
General’s participation.
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authorized by constitutional provisions creating the position or defining the
officer’s duties or (2) by legislation promulgated under authority of such
constitutional provisions is impermissible (City of Chicago v. Holland, 206 Ill. 2d
480, 489-90 (2003)), the constitution must therefore be changed before the Auditor
General could perform the responsibilities that would be assigned to him or her
under the new system for redistricting.
¶ 143 The amendment proposed by Independent Maps would supply the requisite
authority for the Auditor General’s participation in the process. That the additional
authorization would appear in a different constitutional provision than the one in
which the Auditor General’s basic duties are defined poses no constitutional
problem. 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.
¶ 144 Moreover, the additional duties the Auditor General would assume under the
amendment would not alter any of the responsibilities the Auditor General already
possesses under article VIII. To the extent the Auditor General’s duties would
change, the change would pertain solely and exclusively to the redistricting
process, which, as set forth earlier, is a structural and procedural subject of article
IV and therefore subject to amendment under article XIV, section 3 (Ill. Const.
1970, art. XIV, § 3). The change would have no effect at all beyond that limited
sphere.
¶ 145 When the delegates to the 1970 Constitution drafted article XIV, section 3, as
they did, they were mindful that attempts could be made to circumvent their
intention and use the initiative process as a substitute for legislative action by the
General Assembly or to make substantive changes to the constitution unrelated to
legislative article. See Coalition I, 65 Ill. 2d at 468; CBA I, 137 Ill. 2d at 401-04.
That is why they made clear that any amendment proposed under article XIV,
section 3, “would be required to be limited to subjects contained in the Legislative
Article, namely matters of structure and procedure and not matters of substantive
policy.” 6 Proceedings 1400. In no sense would inclusion of the Auditor General in
the redistricting process run afoul of these concerns. It is not an attempt to bypass
the General Assembly’s authority to enact legislation, nor is it a subterfuge to alter
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other substantive provisions of the constitution. As I have just noted, the change
pertains solely and exclusively to the redistricting mechanism of article IV, section
3, which the amendment proposed by Independent Maps’ initiative would replace.
Taking into account the limited subject matter to which the initiative power may be
applied under article XIV, section 3, while construing article XIV, section 3’s
provisions “so as to effectuate [its] basic purpose ***, to provide a workable
initiative scheme unfettered by restraints which unnecessarily inhibit the rights
which article XIV confers” (Coalition II, 83 Ill. 2d at 247), I would hold that
plaintiffs’ challenge to that aspect of the proposed initiative in count I of their
complaint must therefore be rejected.
¶ 146 I close my discussion with a few additional observations. As noted earlier in
this dissent, the drafters of article XIV, section 3, and the citizens of this state who
adopted it acted with a clear and unmistakable appreciation of two things: (1) that
the structural and procedural subjects set forth in the legislative article, including
the structure of the redistricting commission and the procedure for implementing
redistricting as set forth in article IV, section 3, might one day need revision and (2)
that the General Assembly could not be counted on to overcome its self-interest and
propose the necessary changes itself. Under plaintiffs’ reading of article IV, section
3, however, the promise of any real change to the present redistricting system
would be rendered illusory. 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. The potential for a redistricting commission comprised
entirely of nonlegislative members, first expressed during the constitutional
convention (2 Proceedings 584), 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.
¶ 147 There can be no serious dispute that the drafters and adopters of article XIV,
section 3, intended for that provision to allow citizens to actually accomplish
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something through ballot initiatives. Plaintiffs’ reading of the law, however, would
allow them to accomplish nothing. Ballot initiatives would be pointless. To adopt
plaintiffs’ interpretation would therefore offend one of the most basic precepts of
construction, namely, that whenever possible, the constitution and statutes of this
state should be construed so that no part of them is rendered meaningless and every
word and phrase is given effect. Solon v. Midwest Medical Records Ass’n, 236 Ill.
2d 433, 440-41 (2010); City of Springfield v. Edwards, 84 Ill. 626, 640 (1877)
(Dickey, J., dissenting). More importantly, and as indicated throughout this dissent,
it would require us to abandon our responsibility to construe article XIV, section 3,
so as to effectuate that provision’s basic purpose and “provide a workable initiative
scheme unfettered by restraints which unnecessarily inhibit the rights which article
XIV confers.” Coalition II, 83 Ill. 2d at 247.
¶ 148 As an attempt to refute the conclusion that plaintiffs’ construction of article IV,
section 3, would make impossible any meaningful ballot initiative regarding
redistricting, an argument has been made that a ballot initiative that simply repealed
the existing redistricting scheme and replaced it with instructions for the General
Assembly to formulate and implement a new redistricting mechanism could pass
muster under article XIV, section 3. That argument, however, is also untenable.
¶ 149 First, it would have the effect of stripping away powers and duties of officials
who have responsibilities defined in other parts of the constitution. As I have just
pointed out, that is a consequence which, under plaintiffs’ logic, would doom the
proposal on the grounds that it 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.
¶ 150 Second, as discussed earlier, article XIV, section 3, was born of the recognition
that there were certain changes to the constitution which the legislature, through
self-interest, simply could not be counted on to propose itself. Redistricting was
one such area. If the only valid ballot initiative regarding redistricting were one
which placed responsibility for redistricting back in the hands of the General
Assembly, eliminating direct citizen participation in the redistricting process, the
entire point of article XIV, section 3, would be defeated. Such a scheme could,
moreover, mean the end of redistricting altogether, for once the existing system
was repealed and the General Assembly was left with responsibility for
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implementing a new redistricting system through legislation, it might elect to
simply do nothing. If that were to happen, this court would have no authority to
compel the General Assembly to act. The only remedy, apart from another
constitutional amendment, would be election of a new General Assembly willing to
carry out its constitutional duties. Fergus v. Kinney, 333 Ill. 437, 440-41 (1928).
¶ 151 In their opinion, the majority state that “we trust that the constitutional confines
of article XIV, section 3, are sufficiently broad to encompass more than one
potential redistricting scheme.” Supra ¶ 43. This observation is unquestionably
true. The confines are broad enough to include a range of possible systems for
carrying out redistricting. The problem is that under the contorted and restrictive
approach urged by the majority, none of these potential redistricting schemes could
possibly pass constitutional muster. All would fail just as this one has failed and for
the same reasons. If that were not so, someone, at some point in this litigation,
would surely have been able to come up with an example of a redistricting initiative
that would actually meet the test the majority has set. No one, including and
especially the majority, has been able to do so. The promise my colleagues offer is
therefore an empty one.
¶ 152 In Cole-Randazzo v. Ryan, 198 Ill. 2d at 244, Justice Thomas warned in his
dissent that “gone forever is the Illinois voter’s confidence that *** the highest
court of this State will ensure that the process of approving and adopting [new
legislative maps] will be equitable, balanced, and fair.” Id. (Thomas, J., dissenting,
joined by Garman, J.). If that was not true then, it will certainly be true once the
majority’s opinion is filed. If we do not permit this ballot initiative to go forward in
accordance with the law, our authority over the redistricting process and, indeed,
our status as an institution, will forever be suspect.
¶ 153 Finally, nothing in what I have written here should be construed as an
expression of support for the proposed ballot initiative. Whether the initiative
should be adopted is a question for the voters and the voters alone to decide. Our
role is here is limited to determining whether Independent Maps’ otherwise valid
initiative meets the requirements of article XIV, section 3, and is therefore eligible
for inclusion on the ballot at the November 8, 2016, general election. In the exercise
of that responsibility, I would hold that it does.
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¶ 154 CONCLUSION
¶ 155 For the foregoing reasons, the circuit court erred when it granted judgment on
the pleadings in favor of plaintiffs on counts I through VII of their complaint and
denied the cross-motion for judgment on the pleadings filed by Independent Maps.
Counts I through VII should have been dismissed with prejudice. The judgment of
the circuit court should therefore be reversed. Because the remaining counts of
plaintiffs’ complaint all depend on the viability of the claims asserted in counts I
through VII, there would be no need for remand. Those counts also fail as a matter
of law. Pursuant to the power conferred on us by Illinois Supreme Court Rule
366(a) (eff. Feb. 1, 1994) “to make any other and further orders and grant any relief
*** that the case may require,” we should dismiss those counts with prejudice as
well. I therefore dissent.
¶ 156 CHIEF JUSTICE GARMAN and JUSTICE THOMAS join in this dissent.
DISSENT UPON DENIAL OF REHEARING
¶ 157 JUSTICE KARMEIER, dissenting:
¶ 158 Independent Maps moved to recall the mandate in order to permit it to seek
rehearing pursuant to Illinois Supreme Court Rule 367 (eff. Aug. 15, 2016).
Although our court granted Independent Maps leave to file its petition for
rehearing, the majority then summarily denied the petition without further
comment or consideration. Independent Maps’ petition set forth many reasons why
reconsideration should have been allowed. I will mention only a few.
¶ 159 First, the majority’s opinion all but ignored the substantive discussion of
plaintiffs’ various claims and Independent Maps’ response. It based its entire
judgment on a single argument—involvement of the Auditor General—and left
every other point unaddressed. This was so notwithstanding the fact that I
addressed every objection in my lengthy dissent.
¶ 160 The dissent laid out why Independent Maps’ proposal passed constitutional
muster in accordance with the intent of the drafters of the Illinois Constitution of
1970, setting out in detail not only the rationale but the words of the delegates
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supporting the dissent’s position. Rehearing would give the majority the
opportunity to rebut the dissent’s rationale.
¶ 161 I believe the majority would have considerable difficulty doing so, for long
before the constitutional convention at which article XIV, section 3, was adopted,
our court actually considered and rejected the very interpretive approach on which
the majority’s decision here is based. Distilled to its essence, the majority’s
position is that Independent Maps’ initiative fails to meet the article XIV, section 3
requirement that proposed amendments “be limited to structural and procedural
subjects contained in Article IV” (Ill. Const. 1970, art. XIV, § 3) because it assigns
additional duties to the Auditor General, whose current responsibilities are set forth
in a different part of the constitution, namely article VIII, section 3 (Ill. Const.
1970, art. VIII, § 3). The majority’s notion that the proposed amendment was
doomed because it also impacted a different section of the constitution is nearly
identical to one advanced more than a hundred years earlier in a case challenging
the validity of a constitutional amendment placed before the voters pursuant to
article XIV of the 1870 Illinois Constitution (Ill. Const. 1870, art. XIV), the
predecessor to article XIV of the 1970 Constitution, which is at issue here. The case
was City of Chicago v. Reeves, 220 Ill. 274 (1906), and the amendment challenged
there changed article IV, the Legislative Article, to confer legislative power on the
General Assembly to establish local municipal government in the city of Chicago.
Included in that change were, among other things, provisions that would authorize
creation of new judicial offices and abolition of existing ones, matters which would
affect article VI of the 1870 Constitution, the counterpart to the present judicial
article, and an additional provision that would permit the city to accrue
indebtedness, thus altering a provision of article IX of the 1870 Constitution,
dealing with revenue. Id. at 283.
¶ 162 When an attempt was made to establish a municipal court in Chicago as the
amendment permitted, a taxpayer action was brought to challenge the legislation on
the grounds that the constitutional amendment, which provided authorization for
the legislation, exceeded the bounds for amendments permitted by the 1870
Constitution because it was not limited to article IV, the legislative article, but also
changed articles VI and IX. Surveying numerous decisions from sister states as
well as prior case law from Illinois, we found it “obvious” that while amendments
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to a particular article of the constitution “must relate to and be germane to the
subject-matter of the article proposed to be amended,” if
“the effect of the amendment of a particular article is to change other articles of
the constitution, and such changes are germane and only incidental to the object
sought to be accomplished by the express amendment, then the fact that articles
of the constitution other than the article expressly amended are changed does
not render the express amendment invalid by reason of the fact that other
articles of the constitution are changed to bring the constitution into a
harmonious whole, after an amendment has been incorporated into the
constitution as a part of a particular article thereof.” (Emphasis added.) Id. at
290.
¶ 163 It could not be otherwise, this court reasoned, because “[a]ny other view would
be so narrow as to prohibit *** in many, if not in all, cases” amendments to the
constitution,
“as the several articles of the constitution are so far connected and dependent
upon each other that a change in any article, generally, if not universally, has
the effect to produce changes of more or less importance in one or more of the
articles of the constitution other than that which is expressly amended.” Id. at
284.
¶ 164 We made clear, of course, that
“if the effect of the amendment of a particular article of the constitution is to
work changes in other articles of the constitution, and there is no connection
between the object sought to be accomplished by the express amendment to a
particular article and the changes wrought in other articles of the
constitution,—that is, the changes worked, by implication, in other articles than
that expressly amended are entirely foreign to the object sought to be
accomplished by the express amendment,—a different result would follow.” Id.
at 290.
¶ 165 We also cautioned, however, that when assessing whether a proposed
amendment satisfies constitutional requirements governing such amendments,
courts should proceed with deference and restraint. Proposed amendments should
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not be invalidated “unless it clearly appear[s] that the limitations imposed [by the
constitution] upon the grant of the power *** to propose amendments to the
constitution had been abused, [for] the limitations imposed upon the power *** to
propose amendments should not be so construed as to defeat the power itself,
except in a case falling clearly within the terms of the limitation.” Id. at 290-91. In
accordance with these principles, the court held that the challenged amendment
was, in fact, valid.
¶ 166 Drafters of constitutional provisions are presumed to know existing law and
constitutional provisions and to have drafted their provisions accordingly. Kanerva
v. Weems, 2014 IL 115811, ¶ 41. Although Reeves was decided 64 years before the
constitutional convention at which article XIV, section 3, was proposed, the case
was frequently cited throughout the intervening period and remained good law
when the convention convened. See, e.g., People ex rel. Engle v. Kerner, 32 Ill. 2d
212, 218 (1965). To interpret article XIV, section 3, without reference to the
reasoning and result in Reeves would therefore require that we either remove that
provision from its historical context or else rewrite history itself. Neither is a
permissible mode of constitutional interpretation.
¶ 167 While the challenge in Reeves involved a different mechanism for amending
the constitution and arose in a different posture than the controversy before us, the
reasoning and analysis are fully applicable to this case. The object sought to be
accomplished by Independent Maps’ proposed amendment is an overhaul of the
current mechanism for carrying out redistricting, which is unquestionably a
structural and procedural subject of article IV. None of the proposed changes,
including inclusion of the Auditor General, can possibly be dismissed as
“unconnected” or “entirely foreign” to that objective. To the contrary, to the extent
the initiative, if adopted, would result in a change to the Auditor General’s duties or
affect any other provision of the constitution, implicitly or directly, the change
would pertain solely to the redistricting process and have no purpose except as it
relates to redistricting. Put another way, those other matters, including the duties of
the Auditor General, are in no sense the subject of the proposed amendment. The
“subject” for purposes of article XIV, section 2, is the mechanism for redistricting.
The assignment of responsibilities to the Auditor General and the other changes
that would result from adoption of the amendment are merely ancillary to and
supportive of the amendment’s core purpose, changing article IV, section 3 (Ill.
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Const. 1970, art. IV, § 3). Accordingly, here as in Reeves, the fact that “articles of
the constitution other than the article expressly amended are changed does not
render the express amendment invalid.” Reeves, 220 Ill. at 290.
¶ 168 Rather than taking the opportunity to speak up and explain why it believes the
initiative proposed by Independent Maps here must nevertheless be rejected, the
majority simply said, without comment, “denied.”
¶ 169 Second, the majority suggested that some alternative plan involving a
nonlegislative actor other than the Auditor General could be formulated that would
meet the requirements of article XIV, section 3. But Independent Maps, in its
petition for rehearing, succinctly and correctly points out that the majority’s
approach would preclude the assignment of any new role in the redistricting
process to any nonlegislative actor, not just the Auditor General, because any such
changes would be barred by precisely the same barriers erected by the majority to
rationalize invalidation of the proposal advanced here. If the majority believes that
such is not the case, it should take this opportunity on rehearing to explain why.
¶ 170 Finally, Independent Maps urges the court to reconsider its refusal to consider
the other substantive points in the case because it believes that we should, at a
minimum, provide some guidance for formulation of future initiatives. I agree,
particularly in light of the importance of the rights at stake. Without the critical
clarification that rehearing would provide, the majority’s disposition not only fails
to provide a road map, it erects a roadblock that seems insurmountable.
¶ 171 For all of the foregoing reasons and for the reasons set forth in my original
dissent, rehearing should have been granted. I therefore dissent from the denial of
rehearing.
¶ 172 CHIEF JUSTICE GARMAN and JUSTICE THOMAS join in this dissent.
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