Last night, in a case that produced four opinions from the seven-member Court, a sharply divided Illinois Supreme Court affirmed the trial court’s judgment in Hooker v. Illinois State Board of Elections holding that a ballot initiative which would have fundamentally rewritten the legislative redistricting procedures in Illinois was not constitutionally eligible for the ballot.
Given Illinois’ highly unusual constitutional structure, let’s begin with a quick review of the relevant provisions. Article III, Section 3 provides that “all elections shall be free and equal.” We’ll get to what that means in a moment.
Article IV contains fifteen sections pertaining to the structure, procedures and powers of the legislature. The sections are entitled: (1) Legislature – 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. The Redistricting Section imposes duties on a number of different officials, including the Speaker and Minority Leader of the House, the President and Minority Leader of the Senate, the Supreme Court, the Secretary of State and the Attorney General. Section (3) provides that the General Assembly should try to agree on a redistricting plan, but if the General Assembly doesn’t get it done, a Legislative Redistricting Commission, evenly divided between the two parties (and with an even number of members) shall be appointed to settle the matter.
Article XIV is called “Constitutional Revision.” In Section 1, it provides for the possibility of a new Constitutional Convention. The question of calling a Constitutional Convention is automatically put on the ballot every twenty years, but in between those recurring elections, may be put on the ballot only if three-fifths of both houses of the General Assembly approve. In Section 3 of Article XIV, the constitution adds a limited power of amendment by voter initiative. Although Section 3 regulates various aspects of such initiatives (such as the number of signatures necessary, and the number of votes needed to approve), one sentence of Section 3 is at issue in Hooker:
Amendments shall be limited to structural and procedural subjects contained in Article IV.
Of course, the language of the Constitution doesn’t specify exactly what parts of the fifteen sections in Article IV are “structural and procedural subjects” as opposed to anything else.
Redistricting has had a rocky history in Illinois since the 1970 constitution was approved. The General Assembly has managed to agree to a redistricting plan itself only once, in 2011. In three of the other four cases, the Redistricting Commission has deadlocked, forcing the appointment of a ninth member through the drawing of lots.
A redistricting reform plan was submitted for inclusion on the November 2016 ballot as a voter initiative constitutional amendment. The plan completely rewrites Section 3, removing the General Assembly from the process and creating a new 11-member Independent Redistricting Commission. Members of the Commission were to be selected in a multi-step process: the Auditor General first accepts applications to act as one of three “Reviewers.” Reviewers must be registered voters, have “demonstrated understanding of and adherence to standards of ethical conduct,” and be unaffiliated with any political party for the three years preceding amendment. The Auditor General winnows down the pool of applicants to persons who meet these criteria, and then chooses three Reviewers by lot.
The panel of three Reviewers then selects a pool of 100 potential Commissioners. The legislative leadership of both parties may remove up to five potential Commissioners each; the Reviewers select seven Commissioners from the remaining applicants to serve on the Redistricting Commission; and the legislative leaders then appoint one additional Commissioner each from the remaining members of the pool.
If the Commission is unable to agree to a plan, then the backup kicks in – the Chief Justice of the Supreme Court and the senior Justice who is of the opposite political party to the Chief jointly appoint a “Special Commissioner for Redistricting.” He or she must conduct at least one public hearing, but then the lone Commissioner writes a redistricting map and files it with the Secretary of State. The Supreme Court retains original jurisdiction over challenges to the map finally adopted (a change from the current section, which vests “original and exclusive” jurisdiction in the Court).
A few days after the plan was filed as a proposed initiative, the Hooker action was filed. The eleven count complaint challenged the initiative on three basic grounds: (1) it didn’t relate to “structural and procedural subjects contained in Article IV” at all; (2) even if it did, it wasn’t limited to such subjects; and (3) it violated the “free and equal elections” clause. The “free and equal” clause serves a similar function to what in other states is called the “single subject” rule – the clause is violated if entirely different subjects are linked together in a single initiative, since that would present voters with a “I’m for that, but against that” conundrum.
The parties filed cross-motions for judgment on the pleadings. The Circuit Court held that the initiative violated the constitutional limitations on the initiative power. The initiative proponent than appealed, filed a motion to transfer the case straight to the Supreme Court and a motion to expedite the appeal, both of which were granted.
The majority opinion by Justice Kilbride found a single issue – the proposed role of the Auditor General – dispositive in dooming the initiative.
The Auditor General of Illinois is a constitutional office established in Article VIII, which requires the Auditor General to audit the public accounts, make investigations and reports required by the General Assembly, and report his or her findings to the General Assembly and the Governor. The initiative would, for the first time, add the Auditor General to the redistricting process, requiring him or her to manage selection of the panel of reviewers and to play a role in final selection of Commissioners.
Given that the proposed amendment requires that applicants for “Reviewer” be evaluated for their “ethical conduct” and partisan leanings, the majority concluded that the duties imposed on the Auditor General were “likely to be . . . time-consuming and resource-intensive . . . requir[ing] considerable effort, time, and expense.” Since the Auditor General’s diversion into that role would take time and resources away from his or her other work, the majority viewed that single point as taking the initiative beyond the boundaries of a permissible initiative relating only to “structural and procedural subjects” in Article IV.
The proponents of the initiative argued that the duties assigned to the Auditor General did not violate the limits on the initiative power because they weren’t a subterfuge intended to impede the Auditor General from carrying out his or her other duties, but the majority held that that was irrelevant. Although the possibility that ballot initiatives would be misused as a backdoor means of altering other provisions of the Constitution was discussed at the 1970 Constitutional Convention, according to the majority, it wasn’t the only reason for limiting the power of initiative.
The majority concluded by briefly addressing the proponents’ complaint that if the initiative was unconstitutional, redistricting reform was essentially impossible. “The Auditor General is not the only potential nonlegislative actor capable of filling the duties outlined in its proposal,” the majority wrote. “[W]e trust that the constitutional confines of article XIV, section 3, are sufficiently broad to encompass more than one potential redistricting scheme.”
The three Republican members of the Court each filed separate dissents. Chief Justice Garman (joined by Justices Thomas and Karmeier) noted that the citizen initiative procedure was an “especially important” check “against the legislature’s self-interest,” and that the majority’s opinion “deals another serious blow to our fundamental principles.” Justice Thomas (joined by the Chief Justice and Justice Karmeier) filed a sharply worded dissent, suggesting that “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.”
Justice Karmeier (joined by the Chief Justice and Justice Thomas) filed the principal, thirty-nine page dissent. Justice Karmeier began by addressing the argument that the initiative violated the “free and equal” clause. That clause could not possibly mean, he wrote, that any initiative was improper when it was possible for someone to favor parts and oppose other parts; “[n]early every proposition, after all, could be broken into simpler questions.” The test, rather, was whether an initiative combined completely unrelated subjects. The initiative passed that test easily, according to the dissenters – the initiative related to redistricting reform, and nothing in it dealt with anything else.
The dissent therefore turns to the principal challenge to the initiative, the “structural and procedural” challenge. Justice Karmeier quotes two members of the 1970 Constitution Convention commenting that the structure and prerogatives of the legislature pose special problems for the cause of constitutional change. Since it was unlikely that the members of the legislature would propose changes lessening their own powers – and the delegates to a constitutional convention were likely to have ties to the legislature – a third method for amending Article IV was provided. The dissenters quote Delegate Garrison’s comment during the debate: “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.” The Convention’s Committee on the Legislature described the initiative process as “a method to circumvent a legislature which might be dominated by interests opposing legislative changes.”
The dissenters emphasized that the initiative provisions should be construed in such a way as to “provide a workable initiative scheme unfettered by restraints which unnecessarily inhibit the rights which article XIV confers,” while still remaining respectful of the limits on the initiative power. The Justices cite authorities from a number of other states construing their own citizen initiative clauses along similar lines (although Illinois’ limitation of the initiative power to “structural and procedural subjects” in Article IV is apparently unique nationally).
According to the dissenters, the plaintiffs’ complaint was premised in part on the idea that the “structural and procedural subjects” limitation in Article IV actually limits the initiative power to “changes to section 1 of Article IV,” which vests the legislative power in a two-house General Assembly consisting of 59 Senatorial districts and 118 Representative districts. Even though Section 1 is the only part of Article IV using the word “structure,” that didn’t mean that the initiative power was limited to Section 1; Section 9 was the only part of Article IV which used the word “procedure,” but nobody had suggested that the initiative power was limited to making changes in the mechanics of the veto procedure.
Since the language was in their view ambiguous, the dissenters turned to the constitutional debates. The Committee on the Legislature commented that the initiative power was intended to address “the basic qualities of the legislative branch – namely, structure, size, organization, procedures, etc.” One delegate commented that enumerating specific sections of Article IV in the initiative power would unnecessarily limit its scope. Another delegate asked whether the power was intended to extend to “apportionment” – the term then used to refer to redistricting – and the response was “[t]hose are the critical areas, actually.” “[T]here can be no serious question,” the dissenters wrote, that the framers of the 1970 Constitution regarded redistricting as “an altogether proper subject of change through the ballot initiative process.”
The dissenters rejected as well the argument that by involving the two senior members of the Supreme Court in the redistricting process, the initiative impermissibly strays from the legislative article to making changes in the judicial article. Not so, they concluded; the Supreme Court was already assigned a role in redistricting by the legislative article. Nothing in the judicial article was impacted at all. Nor was there anything constitutionally suspect about the initiative’s removal of the current language conferring on the Attorney General the right to initiate court actions relating to jurisdiction, since that change didn’t impact the Attorney General’s core duties in Article V, Section 15.
Finally, the dissenters turned to the issue which the majority had found dispositive, the role of the Auditor General. Even though the Auditor General is not currently involved in the redistricting process, the dissenters concluded that the new duties were not problematic; assigning an official additional duties wasn’t the same thing as changing the duties already assigned, and nothing in constitutional law provides that all of a particular official’s duties must be contained in the same article. Given the basic rule that the initiative clause of the constitution must be construed “to provide a workable initiative scheme unfettered by restraints which unnecessarily inhibit the rights which article XIV confers,” the dissenters concluded that the role of the Auditor General was not fatal to the initiative. The principal dissent closes by suggesting that the test set forth by the majority is so restrictive that no redistricting reform could ever possibly pass judicial muster and be submitted to the voters.
Hooker is an unusual case in several respects. Such close division is rare on the Court – since 2000, only 5.9% of the Court’s 673 civil decisions have had three dissenters. Only twenty-eight of those cases have drawn multiple dissents, and in only two have there been three separate dissents (Price v. Philip Morris in 2005 and Berg v. Allied Security in 2000). They’re only slightly more common on the criminal side, where 48 of 814 cases decided between 2000 and 2015 have produced multiple dissents (nine of those producing more than two each).
Despite the dissenters’ pessimism, don’t expect this to be the end of redistricting reform in Illinois. Ultimately, the initiative was rejected based upon a single issue: the role of the Auditor General. The role of the Supreme Court and the Attorney General and the “free and equal” challenge aren’t even addressed at any length in the majority opinion. The majority all but invites proponents to try again. It’s far from clear that a new plan, drafted with the Court’s previous jurisprudence and the language and convention debates on the constitution firmly in mind, could not pass muster in a sequel to yesterday’s decision.