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Divided court kicks remap reform off ballot

Friday, Aug 26, 2016

[This post has been bumped up for visibility.]

* The Illinois Supreme Court has blocked the remap reform amendment from appearing on the ballot. The 4-3 opinion, written by Democratic Justice Thomas Kilbride and decided on partisan lines, completely centers around the last four words of article XIV, section 3 of the Illinois Constitution

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

Article IV deals with legislative duties, powers, etc.

* From the opinion

(T)he 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. […]

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.

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 confines of article XIV, section 3, are sufficiently broad to encompass more than one potential redistricting scheme.

* From Justice Karmeier’s dissent

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 si ngle 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.

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.

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 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.

* Expect this dissent to get plenty of media play

But the three Republican justices on the court each wrote separate dissenting opinions, including a stinging rejection of the majority view by Justice Robert Thomas.

Thomas said the majority’s action should “include a bright orange warning sticker for readers to paste over” the citizen-initiative section of the constitution that reads “Out of Service.”

“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,” Thomas wrote.

“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,” he wrote.

His dissent began: “The Illinois constitution is meant to prevent tyranny, not to enshrine it.” And concludes: “Today a muzzle has been placed on the people of this State, and their voices supplanted with judicial fiat. The whimper you hear is democracy stifled. I join that muted chorus of dissent.”

- Posted by Rich Miller        

  1. - Big Muddy - Thursday, Aug 25, 16 @ 8:17 pm:

    “The Illinois constitution is meant to prevent tyranny, not to enshrine it.”

    Ouch. Justice Thomas hits it out of the park there.

  2. - walker - Thursday, Aug 25, 16 @ 8:26 pm:

    Knew this would come down to a narrow, strict construction approach to the language itself, versus an argument about framer intentions and practical impacts. Ironically the “Dems” took the more “conservative” approach.

    Justice Thomas’ comments show him a fool.

  3. - Oswego Willy - Thursday, Aug 25, 16 @ 8:40 pm:

    While it’s a strongly divided 4-3 ruling, it boiled down to how the constitution is interpreted, and the strict following of the constitution got 4 votes.

    Doesn’t mean that fair maps isn’t worthy, or needed for Illinois, but exactly like the pension issues, the interpretation of the constitution (one was unanimous, this was 4-3) is the mitigating factor. Not the 563,000 signatures, not the TV ads, not the bluster, not the hand wringing.

    We all need to find the commonality and strict constitutional language to make this happen.

    Toying with this, and tinkering with that… that’s not going to get 4 votes.

    Instead of monies spent on ads with Gov. Rauner, that money should be spent on lawyers willing to write a proposal that will pass muster. For the life of me, I can’t understand the willingness to tout these types of amendment cases when it appears in rulings they can’t pass.

    Then again, I know exactly why success and failure doesn’t matter in these cases, and the politics, and ads, we’ll see in the next few months will be fueled by Justice Thomas’ words.

  4. - Retired SURS Employee - Thursday, Aug 25, 16 @ 8:42 pm:

    Does anyone else think that Justice Karmier’s dissent reads as if it were at one time a majority opinion? In other words, did one of the Democrat justices switch sides at the last minute?

  5. - pundent - Thursday, Aug 25, 16 @ 8:51 pm:

    This effort was always more about creating a narrative than it was about adhering to the constitution. As OW captures when you put more resources behind how you message the issue rather than the constitutionality of it, this is the end result. This will only embolden those that wish to frame the “system” as corrupt. That’s what this effort was all about. In some respects this decision only helps.

  6. - Chicagonk - Thursday, Aug 25, 16 @ 9:39 pm:

    Somehow I doubt that following the majority’s suggestion to find another “nonlegislative actor” besides the Auditor General would have yielded a different result.

    This was a partisan decision and a disappointing one at that.

  7. - Lucky Pierre - Thursday, Aug 25, 16 @ 9:47 pm:

    One of the best things about the Roberts court is that they bend over backwards trying to appear above politics. Sorry to say Illinois Supreme Court does not. The Judge Thomas comment confirms the court has lost its objectivity especially when the proposal is supported by a majority of Illinois residents.

  8. - Anonymous - Thursday, Aug 25, 16 @ 9:48 pm:

    I agree with this decision. Within a few years many people will be retiring from the legislature. What bothers me is the amount of money poured into this campaign and elections in general. The GOP is literally a wholly owned majority of Rauner and vice versa. Hopefully history doesn’t repeat itself…

  9. - illinois manufacturer - Thursday, Aug 25, 16 @ 10:28 pm:

    There is a federal court in Maryland looking at the partisan redistrcting issue again. Maybe the SCOTUS will make it clear nationally. It wasnt crystal clear to me like the pension cases

  10. - Anonymous - Thursday, Aug 25, 16 @ 11:06 pm:

    Sounds like justice Thomas missed one again , wide to the right !!!!

  11. - Johnny Justice - Thursday, Aug 25, 16 @ 11:13 pm:

    The one constitutional amendment that would for sure make it on the ballot would be changing to a unicameral (one house) legislature, like Nebraska…less legislators for Rauner to buy off!

  12. - Federalist - Thursday, Aug 25, 16 @ 11:17 pm:

    All of a sudden the Democrats are taking an absurdly narrow view of the Constitution. If you can not see the irony and hypocrisy I that you have not been paying attention.

  13. - Huh? - Friday, Aug 26, 16 @ 7:39 am:

    “… court has lost its objectivity especially when the proposal is supported by a majority of Illinois residents.”

    I disagree. The court ruled that the proposed amendment was unconstitutional. It doesn’t matter if 500,000 people signed the petition, the amendment didn’t have the legal foundation to be put on the ballot.

    The same silly argument could be made if 500,000 people signed a petition amend the constitution to ban gay marriage.

  14. - Demoralized - Friday, Aug 26, 16 @ 8:07 am:

    ==The Judge Thomas comment confirms the court has lost its objectivity==

    Says who? You? Because you disagree with the ruling they are all of a sudden a bunch of partisan hacks? Forever the victim.

  15. - Archiesmom - Friday, Aug 26, 16 @ 8:18 am:

    What is fascinating to me is that the Court decided the case without oral argument. Deciding this case on the papers alone was not to be expected, even though the case was on a rocket docket. And three dissents, each one joined in by the other two dissenting justices? Bizarre. A veteran court observer told me that it indicated to him that the minority “couldn’t get it together”; I’m not sure what that means, honestly. After the knee-jerk reactions are over, I’ll be interested in hearing what the folks who are Court experts have to say. This is not as simple as a partisan political decision, IMO.

  16. - LTSW - Friday, Aug 26, 16 @ 8:20 am:

    While I wholeheartedly believe redistricting reform is needed, as a former auditor I never thought the Auditor General’s inclusion in this process was appropriate. Strict construction can cut both ways.

  17. - 47th Ward - Friday, Aug 26, 16 @ 8:25 am:

    That Justice Thomas makes a full-throated, over-the-top political argument, rather than a legal argument, is telling.

    When the facts are on your side, pound the facts. When the law is in your side, pound the law. When neither is on your side, pound the table.

  18. - Dee Lay - Friday, Aug 26, 16 @ 8:40 am:

    Madigan and the Supreme Court Justices He Controls….

    Also, Rauner should be tickled pink, this decision will make great mailers to low-information voters.

  19. - TwoFeetThick - Friday, Aug 26, 16 @ 8:55 am:

    ===One of the best things about the Roberts court is that they bend over backwards trying to appear above politics.===

    Wow. I’ll have what you’re smoking.

  20. - atsuishin - Friday, Aug 26, 16 @ 9:13 am:

    ==Madigan and the Supreme Court Justices He Controls….==

    Agreed the court ruling was an absolute disgrace, but IL is Madigan’s state. He runs things here. Everyone must know their role, bow there heads and kiss his ring.

    We have no more of a democracy than mexico or venezuela.

  21. - Oswego Willy - Friday, Aug 26, 16 @ 9:19 am:

    ===Agreed the court ruling was an absolute disgrace, but IL is Madigan’s state.===

    (Face palm)

    Not one word on the Constitutionality? Just “blame Madigan”?

    Why be a victim? Ask “Why can’t anyone get the strict language figured out?”.

  22. - Norseman - Friday, Aug 26, 16 @ 9:31 am:

    This ruling is consistent with past rulings. So it shouldn’t be a surprise.

    To the political ramifications. Rauner will be using this for political mailers for his minions. The media will pick up the harangue on Dems. The Dems will be defending their less than reform-minded position.

    Remap reform may come if a Rauner re-election forces the Dems to reconsider their chances in a lottery vs. reform scenario. Although, Madigan certainly seems to feel very very lucky.

  23. - Arthur Andersen - Friday, Aug 26, 16 @ 9:39 am:

    But it’s a lot more fun to buy ads and cut commercials than sit in a roomful of stuffy, boring election lawyers! Anyway, like the guy posted yesterday, those lawyers should be out gathering signatures. /s+

  24. - simple mind - Friday, Aug 26, 16 @ 9:44 am:

    So many will look at it and say, “Because …Illinois.”

  25. - walker - Friday, Aug 26, 16 @ 9:47 am:

    Federalist: –”all of a sudden the court took a strict constructionist approach”–

    Huh? They did exactly the same thing in the “pension reform” case, where they came out against Madigan’s position. The regular national labels don’t apply well to parties in our state.

  26. - muon - Friday, Aug 26, 16 @ 9:58 am:

    I don’t think this opinion compares to the pension decision.

    In the pension case, the opinion was extremely thorough and addressed all the points at issue. In many ways the pension decision made clear the full scope of changes in the bill that violated the Constitution. They also pointed out items that could stand, but they were so inextricably linked to the rest of the pension bill, that the whole bill must fail. In other words, there was some guidance for future legislatures.

    In this redistricting decision the Court found a single point that was unconstitutional and said little about anything else. Of course the Court need not address anything else, but it was in their purview to address all the counts before them. So, unlike the pension decision this one provides little or no guidance on how the Court would view any of the other contested points from the lower court.

    In many ways Karmeier’s dissent is more like the pension decision. It tackles the full set of issues raised in the appeal and it would have provided guidance for future petitions had it been the form of the majority opinion.

  27. - Ron - Friday, Aug 26, 16 @ 9:59 am:

    - simple mind - Friday, Aug 26, 16 @ 9:44 am:

    So many will look at it and say, “Because …Illinois.”

    And that is the correct conclusion. This state is a joke, a national embarrassment, a complete disaster. Only West Virginia is losing population faster than Illinois. The population loss will only accelerate as Madigan and his henchmen continue to bleed the citizens dry. And the usual suspects continue to lament how low our taxes are. If only they were the highest in the nation! That will surely save us!

  28. - illini97 - Friday, Aug 26, 16 @ 9:59 am:

    I’ve heard arguments like this all too often lately.

    “That doesn’t meet the letter of the law”

    “But a lot of people want it!”

    “That’s not a valid argument for circumventing the law”

    “Seriously, a LOT of people want it.”


    Why don’t people “get” this?

  29. - Steve Rogers - Friday, Aug 26, 16 @ 10:12 am:

    @Retired SURS: I’m guessing both Karmeier and Kilbride wrote majority opinions at the same time so this could be fastracked. The votes fell on Kilbride’s side, and Karmeier’s opinion was then updated to reflect a dissent.

  30. - walker - Friday, Aug 26, 16 @ 10:17 am:

    muon. Good points. Karmeier did a good job. I personally agree with him, but that doesn’t mean the majority opinion is necessarily illegitimate or overly partisan.

  31. - veritas - Friday, Aug 26, 16 @ 10:25 am:

    It is what it is - but it does seem ludircrous that there is evidently no constitutionally acceptable path in Illinois to restore a democratic election process.

  32. - Norseman - Friday, Aug 26, 16 @ 10:28 am:

    muon, the court was under a time-crunch here and there have been prior rulings more expansively. I would have preferred a longer discussion, but it isn’t relevant to the outcome.

    My interest was on the lower court’s loosening of the ISOC’s “structure and process” interpretation of the constitution. In previous rulings the ISOC has indicated that amendments must be structural and process related. The lower court seemed to allow for a process only change.

  33. - David Starrett - Friday, Aug 26, 16 @ 10:32 am:

    @Steve: That sounds about right to me.

  34. - Retired SURS Employee - Friday, Aug 26, 16 @ 10:39 am:

    @Steve Rogers - that could be, although I would have thought that the justices would have taken a preliminary vote before setting out to write opinions. Perhaps one or more of the justices were on the fence and unwilling to commit before seeing draft opinions?

  35. - atsuishin - Friday, Aug 26, 16 @ 10:51 am:

    ===Not one word on the Constitutionality? Just “blame Madigan”?===

    Hi Oswego Willy, constitutionality matters in IL about much as it does in mexico or some other third world tin pot government. Madigan et al do as they please, while the rest do what we must and put with this corrupt state.

  36. - Oswego Willy - Friday, Aug 26, 16 @ 10:53 am:

    ===…constitutionality matters in IL about much as it does in mexico or some other third world tin pot government. Madigan et al do as they please, while the rest do what we must and put with this corrupt state.===

    Argue like an adult or choose another person to feed you.

    Good luck.

  37. - JS Mill - Friday, Aug 26, 16 @ 11:26 am:

    = especially when the proposal is supported by a majority of Illinois residents.=

    You clearly do not care to understand the role of the court.

    It is not a “Trumpian” popularity contest.

  38. - Lucky Pierre - Friday, Aug 26, 16 @ 11:41 am:

    Really hard to win a game when the referee is wearing the same uniform as the team you are playing

  39. - Ghost - Friday, Aug 26, 16 @ 12:26 pm:

    The anti Judicial activism party, the GOP, is mad that they could not use judicial activism to get around constitutional language they dont like…. that whole emotional plea about tyranny and democracy is a nonlegal judicial activist argument to action becuase something is right, but not allowed under the law.

  40. - Ron - Friday, Aug 26, 16 @ 12:36 pm:

    Illinois is a national embarrassment.

  41. - Whatever - Friday, Aug 26, 16 @ 1:01 pm:

    ==“Today a muzzle has been placed on the people of this State, and their voices supplanted with judicial fiat. The whimper you hear is democracy stifled. I join that muted chorus of dissent.”==

    I haven’t had the time to review the opinion or precedents, but I did look at Justice Thomas’ dissent and take issue with this statement. Nowhere does he point to any misreading of the constitution by the majority, he just says it goes against the “intent” of the provision for amendments, however that can be determined. As to the rant itself, the whole point of having a constitution is to prevent a simple majority from doing whatever it feels like doing whenever it feels like doing it. The constitution was approved by the people of this State after it had been through the process required under the previous constitution. If the proposed amendment doesn’t comply, the judges properly smacked it down, regardless of the merits of the proposal or how many citizens are in favor of it. Disregarding the constitution to allow the proposal to go on the ballot would be a real example of the voice of the people being “supplanted with judicial fiat.”

  42. - Anonymous - Friday, Aug 26, 16 @ 1:41 pm:

    ==“On January 12, 2015 a muzzle was been placed on the Republican Party of this State, and their voices supplanted with gubernatorial fiat. The whimper you hear is democracy stifled. I join that muted chorus of dissent.”==

    Given our current governor, this reads better.

  43. - Keyser Soze - Friday, Aug 26, 16 @ 2:09 pm:

    Justice Thomas put it through the uprights. While many in the political class may applaud the partisan ruling, it says here that rank and file voters just got hosed again. Don’t forget, independents also vote.

Sorry, comments for this post are now closed.

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