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Beyond the rhetoric

Friday, May 2, 2014

* From an op-ed by Kent Redfield on the proposed constitutional amendment to reform redistricting

This redistricting amendment is straightforward: Create an independent commission of Illinois citizens who would draw state maps in a transparent way, using nonpartisan, criteria. Those criteria would include keeping together communities of common interests — economic, social, racial, linguistic or cultural.

They also include respecting existing city and geographic boundaries and complying with state and federal voting rights laws. And the criteria prohibit the commission from favoring one political party over another or using district boundaries to reward or punish any incumbent legislator.

The number of signatures collected showing support for putting the proposal on the ballot make it unlikely a challenge to their validity will be successful. My reading of the proposal is in agreement with many experts who believe the Illinois Supreme Court will turn back any legal challenge to the proposal.

Yet political leaders in control of the legislature are laying the groundwork to challenge this measure.

Why use precious resources against long odds? The risk does offer a reward. If efforts to block the proposal from being on the November ballot are successful, it will relieve those in power from having to defend the failed status quo.

During the debate over the constitutional convention several years ago, I argued forcefully and repeatedly for a convention based mostly on this one issue of redistricting reform. Politicians shouldn’t be allowed to choose their own voters.

* But there’s a real constitutional issue here. This is what the Illinois Constitution says about citizen amendment initiatives

Amendments shall be limited to structural and procedural subjects contained in Article IV

Article IV is the General Assembly’s article.

* But this is from the proposed amendment’s language on the composition of the Redistricting Commission

For ten years after service as a Commissioner or Special Commissioner, a person is ineligible to serve as a Senator, Representative, officer of the Executive Branch, Judge, or Associate Judge of the State or an officer or employee of the State whose appointment is subject to confirmation by the Senate.

By prohibiting people from running for judge or statewide office for ten years, the proposal goes well beyond anything in Article IV.

And that’s a real problem, no matter what the merits of the issue of redistricting reform itself may be. I can understand the reform reasoning for putting that campaign ban in there, but I don’t yet see the constitutional support for it.

- Posted by Rich Miller        


27 Comments
  1. - wordslinger - Friday, May 2, 14 @ 12:18 pm:

    You’d think that if you were going to make this effort, you’d have your lawyers draw it so tight that there wouldn’t be Constitutional questions.


  2. - Abe the Babe - Friday, May 2, 14 @ 12:22 pm:

    ==By prohibiting people from running for judge or statewide office for ten years, the proposal goes well beyond anything in Article IV.==

    Unless you can successfully argue that the new commission is a mechanism by which the structure and procedure of the GA is changed. And the prohibition on commission employment is a part of that “mechanism”.


  3. - RNUG - Friday, May 2, 14 @ 12:23 pm:

    It’s a bit of a stretch, but Article IV does address requirements to hold office:

    (c) To be eligible to serve as a member of the General Assembly, a person must be a United States citizen, at least 21 years old, and for the two years preceding his election or appointment a resident of the district which he is to represent.

    If you view the 10 year “ban” as another requirement, then it probably passes muster. And let’s not forget, no one is being forced to be a Commissioner or Special Commissioner; that is a voluntary choice.

    While it’s anybody’s guess what a particular court would do, I think it would survive a challenge.


  4. - thechampaignlife - Friday, May 2, 14 @ 12:30 pm:

    They should’ve thrown a severability clause in it.


  5. - Oswego Willy - Friday, May 2, 14 @ 12:30 pm:

    Everyone thinks they have good Counsel, then you end up in court and you find out how good they are.

    This isn’t “Trial and Error” when going about a state government decides to do something as critical as changing the impactful structuring of legislative bodies, in any manner of that structure.

    Just because some think they have a good idea, doesn’t mean that. “Good Idea” passes muster to even be considered.

    To the Point of convening the Constitutional Convention, I go back and forth, but here is the rub, for me;

    Gathering together to look at a document that in its design gives avenues to gather and make it better, you should take “it” up on it.

    If ignoring it isn’t working for either side, while all sides keep pointing to it, arbitrarily, let’s grab a chair and talk. Even if but a small few changes are made, they are made all the same, the map question notwithstanding.


  6. - Formerly Known As... - Friday, May 2, 14 @ 12:32 pm:

    Severability?


  7. - Formerly Known As... - Friday, May 2, 14 @ 12:34 pm:

    champaignlife beat me to it!

    To the post: even if this is thrown out in court, it still focuses attention on the broad support for this issue and generates some heat on legislators to act. Whether that will be a first step or last on the road to reform, it is too early to tell.


  8. - Mason born - Friday, May 2, 14 @ 12:35 pm:

    Fogive my ignorance but, can the court remove the restriction allow the rest or is it all out?


  9. - Precinct Captain - Friday, May 2, 14 @ 12:40 pm:

    Mason, that’s why Champaignlife brought up severability. If there’s a severability clause then if one part of the act/amendment/etc is thrown out, the rest of it stands. Wiki actually has a good overview of severability.

    http://en.wikipedia.org/wiki/Severability


  10. - muon - Friday, May 2, 14 @ 12:50 pm:

    I have no idea whether this gets to the constitutional question, but I read the section on commissioners as describing their duties for their term of service. The commissioners may be called upon to defend their map over the decade it’s in use, so ten years seems like a reasonable definition of the term of office of the commissioners. By agreeing to be a commissioner, the person is agreeing to the term of service which includes the restrictions on other offices that may be held. A person doesn’t have to agree to be a commissioner and then there is no limitation on the qualifications for those other offices.


  11. - Hon. John Fritchey - Friday, May 2, 14 @ 1:02 pm:

    Not surprisingly, Kent is spot on.


  12. - VanillaMan - Friday, May 2, 14 @ 1:07 pm:

    It isn’t uncommon for governments to undergo reforms during long stretches of economic uncertainty.

    We just may be living during one of those times.

    The status quo is fighting it, but voters have lost their patience with the status quo.

    I was also a big proponent of a constitutional convention - but Jim Edgar took quite a squat over it and helped kill it.

    Either party could have taken an opportunity to clean their own houses and demonstrate that they could change. Instead they chose to tell everyone that it is someone else’s problem, or mere complaints from losers, or that everyone didn’t know how to do governing better than they could.


  13. - Anon. - Friday, May 2, 14 @ 1:09 pm:

    ==I don’t yet see the constitutional support for it.==

    No problem. The “police powers” exception from constitutional provisions will take care of that.


  14. - Anon - Friday, May 2, 14 @ 1:18 pm:

    Rich,
    I’m not taking sides here, but I would suggest your argument takes one view without acknowledging the existence of others. Sure this language deals with qualifications for office, but it also deals with process for developing district boundaries free of personal political motivations. It reminds me of the “single subject rule” of the IL constitution (requiring bills to be confined to a single subject). It all depends on how one reads something. Surely advocates for the redistricting amendment will argue this all deals with process and structure, with the provision you highlight going to ensuring a process free of personal agendas. If the qualification for office language were entirely unrelated — e.g., nobody can run for office if they lived overseas during the past four years — you would be correct that it could not be viewed as process and structure. Again, two ways to look at this, and I’m not arguing for either one.


  15. - Bill White - Friday, May 2, 14 @ 1:23 pm:

    Whether or not this is a problem, a severability clause would have been prudent

    FWIW, without such a clause, I don’t believe the courts can delete the parts they find unconstitutional and allow the remainder to be put on the ballot.

    Which is unfortunate because this measure is a small step forward.


  16. - Rich Miller - Friday, May 2, 14 @ 1:27 pm:

    I don’t think severability is a viable option here.


  17. - Blah - Friday, May 2, 14 @ 1:44 pm:

    #1: Plain and simple, the redistricting proposal is not limited to the Legislative Article. You may wish it was, but it is not. It impacts the qualifications of those eligible to run and be elected as executive officers and judges. It is not simply limited to the legislature.

    #2: Severability is a concept used in legislation, but not a constitution. You include a severability clause if you have a concern that the language may be “unconstitutional.” You don’t have that same issue with an actual constitution. This is a prime example why a constitution establishes a framework, not the specifics for items that should be subject to legislation.

    #3: No one seems to saying a word about the fact that unpaid, non-governmental types with no reapportionment experience are not going to be the ones sitting in front of a computer drawing districts. They are going to hire staff, high paid staff, who will have their own interests. What about the provision in the proposal that gives this group of commissioners the ability to hire their own lawyers to defend these maps. In 2023, the law firms will be lining up to challenge and defend this because they will not be subjected to the fee cap currently instituted by the Attorney General. This entire proposal is geared toward special interests, but because a bunch of good government groups are behind it everything thinks it’s squeaky clean.


  18. - IsItJuneYet - Friday, May 2, 14 @ 1:47 pm:

    How can a provision in the constitution be held unconstitutional? Severability isn’t an option.


  19. - Blah - Friday, May 2, 14 @ 2:07 pm:

    The redistricting amendment did not have to include the qualification language or dilute the Attorney General’s powers. Without those items, can you make a pretty good argument it is limited to structural and procedural subjects in the Legislative Article.


  20. - Norseman - Friday, May 2, 14 @ 2:40 pm:

    I’ve done a lot of reading on legislative actions, but I haven’t read anything that touched on the issue of a proposed constitutional amendment. Severability is an issue that relates to laws. The laws are judged on their conformance with the ultimate standard - the constitution. As frequently discussed on this blog, the judiciary tries to do what it can to find a law constitutional. That is why they’ll only strike offending portions of a law if possible. Under current law, every law that is passed is severable. Exceptions, inseverability clauses, can be inserted if desired by the GA, as was done with several provisions of the pension reduction bill.

    At issue with the proposed constitutional amendments, these seek to revise the ultimate standard. The courts also have to keep in mind that these proposals were presented by supporters in the manner they preferred. For that reason, I believe the amendments have to be read as and ruled on as a whole. Severability does not apply.


  21. - Walker - Friday, May 2, 14 @ 2:49 pm:

    It’s an argument, but my guess is that this remapping petition will pass muster.

    The term-limits petition, on the other hand, is way out of bounds, misleading, and shouldn’t have a legal chance.

    Of course, I’m often wrong.


  22. - muon - Friday, May 2, 14 @ 2:52 pm:

    Blah, If I understand your sense about qualifications, one cannot create by citizen initiative a constitutional body under the legislative article that requires its members to hold no other office while they serve that body. The ten years actually would not matter in this case. It could be for the one year while they were first meeting and your argument would have to be the same.


  23. - stand - Friday, May 2, 14 @ 3:33 pm:

    -Amendments shall be limited to structural and procedural subjects contained in Article IV-

    The Supremes take this to mean that amendments must meet both structural and procedural requirements at the same time. That’s ridiculous. I read it to mean that amendments are confined to either of those areas. For example, if I told my kids they are only allowed to play in my yard and my neighbors yard, it doesn’t mean they have to play in both at the same time. It means those are the areas in which they are allowed. I highly doubt the framers envisioned it would be so difficult for citizens to get an amendment on the ballot.


  24. - Oswego Willy - Friday, May 2, 14 @ 3:58 pm:

    === I highly doubt the framers envisioned it would be so difficult for citizens to get an amendment on the ballot.===

    lol, you see how it had to be delivered?

    ===The Supremes take this to mean that amendments must meet both structural and procedural requirements at the same time. That’s ridiculous===

    Good luck with that “Ridiculous”. Michael Kasper is making that argument, based on a precedent.

    It’s in the courts, we will see how this gets interpreted.


  25. - stand - Friday, May 2, 14 @ 4:19 pm:

    Oswego Willy

    -lol, you see how it had to be delivered?-

    You made my point. How it had to be delivered was not put in there by the framers. It was put in there by the GA.


  26. - stand - Friday, May 2, 14 @ 4:22 pm:

    -Good luck with that “Ridiculous”. Michael Kasper is making that argument, based on a precedent.-

    My point again. It is based on precedent and not the actual language of the framers.

    Does anyone really believe that the framers thought we needed all this craziness just to get an amendment on the ballot???


  27. - Just The Way It Is One - Friday, May 2, 14 @ 4:23 pm:

    ==And that’s a real problem, no matter what the merits….==

    Spot on.


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