People Ex Rel. Burris v. Ryan , 147 Ill. 2d 270 ( 1992 )

588 N.E.2d 1033 (1992) 147 Ill. 2d 270 167 Ill. Dec. 903

The PEOPLE of the State of Illinois ex rel. Roland BURRIS, et al., Plaintiffs,
v.
George H. RYAN, et al., Defendants.

No. 72662.

Supreme Court of Illinois.

January 14, 1992.

Roland W. Burris, Atty. Gen., Springfield (Thomas R. Dodegge, James R. Carroll, Roger P. Flahaven and Michael Daniels, Asst. Attys. Gen., Chicago, of counsel), for plaintiffs.

William J. Harte, Robert L. Tucker, Joseph E. Tighe, Stephen L. Garcia, Courtney C. Nottage, Herman G. Bodewes and James H. Donnewald, Chicago, for intervenor-plaintiffs Joseph Gardner et al.

Gary A. Weintraub, David A. Epstein and Les S. Kuczynski, Chicago, for intervenor-plaintiffs Thaddeus S. Lechowicz et al.

Schaefer, Rosenwein & Fleming, Chicago (Martha A. Mills, of counsel), for intervenor-plaintiffs Rebecca W. Owens et al.

Kevin M. Forde and Janice R. Forde, Kevin M. Forde, Ltd., and James M. Scanlon, Chicago, for intervenor-plaintiffs Beverly Area Planning Assoc. et al.

Matthew J. Piers, Jonathan A. Rothstein and Carol L. Nealy, Gessler, Flynn, Fleischmann, Hughes & Socol, Ltd., Chicago, for intervenor-plaintiff Miguel del Valle.

William H. Mansker, Mansker & Shanahan, James D. Montgomery and Jean M. Templeton, James D. Montgomery & Associates, Ltd., and Robert Anderson, Chicago, for intervenor-plaintiffs Task Force for Black Political Empowerment et al.

Jeffery D. Colman, Thomas S. O'Neill and Janice A. Hornaday, Jenner & Block, and Linda Yanez and Arturo Jauregui, Chicago, for intervenor-plaintiffs Henry Martinez et al.

Dan K. Webb, Steven F. Molo, Timothy J. Rooney and Thomas V. Skinner, Winston & Strawn, Chicago, special State counsel for defendants George H. Ryan, Illinois Secretary of State, and the Ill. Legislative Redistricting Com'n.

A.L. Zimmer and V. James Tenuto, Chicago, special State counsel for defendant Ill. State Board of Elections.

Asher, Gittler, Greenfield, Cohen & D'Alba, Ltd., Chicago (Marvin Gittler and Joel A. D'Alba, of counsel), for amicus curiae Ill. State Federation of Labor.

Tyrone C. Fahner, Richgard S. Williamson, George J. Tzanetopoulos and Lori E. Lightfoot, Mayer, Brown and Platt, and Charles F. Marino and David M. Marino, Chicago, for amici curiae Congressmen Dennis J. Hastert et al.

Justice CUNNINGHAM delivered the judgment of the court:

As stated in the order of this court dated January 10, 1992, the Legislative Redistricting Commission (the Commission) has complied with the procedural and substantive directives of our December 13, 1991, opinion, 147 Ill. 2d 270, 167 Ill. Dec. 893, 588 N.E.2d 1023, and article IV, section 3, of the Illinois Constitution of 1970.

Following the December 13, 1991, opinion, the Commission held expedited hearings on January 4 and 5, 1992. At that time, the Commission heard testimony by experts on behalf of the parties, and reviewed affidavits filed on behalf of the parties, as well as voluminous documents, including those documents submitted by the main intervenors. The Commission focused the hearing on two plans, Certain Intervenors' Proposed Remedial Redistricting Plan (CIP II-A), and the Commission's plan, Jourdan III-A.

Before addressing either of the proposed plans, we must make certain findings in light of the extraordinary circumstances of the case at hand with the hope that this situation will not again be before this court and place in jeopardy the voting rights of the people of this State. Throughout the process, we noted the troubled winds that have unfailingly roared through the legislature, the Commission and the media; needless to say, these criticisms do have bearing, adverse at best, on any plan this court may adopt or fashion. However, time, staff and budget demands do not permit this court to fashion its own redistricting plan that meets all of the objectives, no matter how desirable. The most important consideration, and the underlying thrust of this opinion, is the interest of the voters of this State. The interest of the voters mandates holding elections on time. It is that consideration and the lack of sufficient budget and time which prevents this court from competently drawing a map that would take into account the diverse interests at stake in this litigation. We are more concerned with the prospect of denying the voters the right to choose the representative of their choice and of denying equality in voting, i.e., one man, one vote.

It is also of the utmost importance for all parties involved to understand that the necessity of compromise is essential to any politically fair redistricting plan. Too many interests exist in this matter, both represented and unrepresented, to keep clearly in mind. Furthermore, as the population increases and changes, the need to compromise becomes an integral part of the goal to protect the rights of the voters. This is a country which believes everyone has a fair chance. Those democratic values, so firmly entrenched in this country, make compromise essential. In our view, that element of compromise is profoundly lacking in this matter. Furthermore, the parties must understand that by adoption of the Commission plan, this court in no way has expressed an overwhelming acceptance of the plan of the Commission. The holding of this court has been made with the best interests of the voters in mind.

The tortuous process which we have just experienced is not in the best interests of the voters of this State. The legislature has eight years, if it is sincere, to correct this process in order that the voters with special interests will have an opportunity to participate in the election process. After all of the deliberation and expense to the taxpayers, over $2 million, we do not find that a lottery or a flip of a coin is in the best interests of anyone except the party which has won the toss. The rights of the voters should not be part of a game of chance. The consequences of such a method affect everyone.

We further conclude that any order of this court issued after January 19, 1992, would be too late to establish proper election procedures. An order issued after this date would not give candidates enough time to decide whether to run. Nor would it give those involved in the election process time to prepare. Most importantly, it would not give voters adequate opportunity to familiarize themselves with their districts and their candidates. If elections are to be timely held, they must be held pursuant to existing law. We find it preferable to hold elections on the date already established for State elections. Conducting special elections would result in lower voter turnout and place extraordinary expenses on the State at a time when this court takes judicial notice of extreme budgetary constraints.

In light of our overwhelming concern for the voting rights of the people of this State, we cannot, in good conscience, order an at-large election which would place a heavy burden on the budget of this State and place tight time constraints on the proper functioning of the State Board of Elections. The above considerations have made this court reach its conclusion.

It is well established that the map submitted by the constitutionally mandated Commission is valid unless it is against the manifest weight of the evidence. (Ill. Const.1970, art. IV, § 3(b).) Thus, the parties opposing the map must establish that not only their map or maps are superior, but that the Commission map is against the manifest weight of the evidence.

In testing each map submitted, the court viewed each map with these issues in mind:

(1) whether the plan satisfies the Illinois constitutional requirement of substantially equal population in each district;

(2) whether the map has provided adequate representation to minorities and other special interests to satisfy various State and United States constitutional rights as well as Federal statutes, i.e., racial, ethnic and gender;

(3) whether the maps satisfy the compactness requirements of the Illinois Constitution; and

(4) whether the maps meet all legal requirements regarding political fairness.

Based on the testimony of the expert witnesses and the negative responses to both plans, the adoption by this court of one of the plans submitted by either party would actually be a reflection on legislative policy choices. After reviewing all of the evidence submitted, this court finds that both plans are similar regarding compactness. However, the Commission map meets all four requirements. In finding thus, we did not judge the credibility of each expert, but rather relied on the statistics provided.

For the reasons stated, we hold that the Jourdan III-A map is valid. It is the order of this court that the State Board of Elections establish the boundaries in accordance with the Jourdan III-A map. On order of this court, the clerk of this court is directed to issue the mandate forthwith.

Map approved.

Chief Justice MILLER, concurring:

I concur in the judgment of the court but for reasons different from those expressed by the majority.

As the majority opinion observes, the Legislative Redistricting Commission has fully complied with the mandate contained in this court's opinion of December 13, 1991. Following the parties' submission of two new redistricting maps, the Commission conducted extensive evidentiary hearings on those proposals, as amended, and addressed the concerns previously raised by this court. At the conclusion of the hearings, the Commission adopted a new statewide redistricting plan, Jourdan III-A.

I note, at the outset, that we are not being called upon in the present case to judge either the wisdom or the validity of the procedures mandated by the Illinois Constitution for formation of the Commission (see Ill. Const.1970, art. IV, § 3(b)). Significantly, the parties have not questioned the constitutionality of the method used to select the Commission's ninth member. Nor has any member of this court seen fit to raise the issue sua sponte at any earlier point in these proceedings. In any event, I believe that a due process challenge to the tie-breaking procedure would fail. In People ex rel. Scott v. Grivetti (1971), 50 Ill. 2d 156, 277 N.E.2d 881, this court upheld, against constitutional attack on first amendment and equal protection grounds, the general scheme prescribed for the selection of the Commission members. Although a due process challenge to the tie-breaking procedure was not raised in that case, I believe that this new argument would fail as well.

As framed by the court's earlier mandate in this case, our task now is simply to review the statewide redistricting plan adopted by the Commission and determine whether it satisfies the criteria by which such plans must be measured. The record before us demonstrates that the Jourdan III-A plan fully meets all relevant constitutional and statutory redistricting requirements and, moreover, is superior in these respects to the plan submitted by certain interveners, CIP II-A. The legislative and representative districts drawn by Jourdan III-A are substantially equal in population, are sufficiently compact, are fair to minorities, and are fair to both major political parties. In virtually all respects, too, the districts contained in the Jourdan III-A plan more closely meet these requirements than do the districts found in the intervenors' proposed map. Thus, unlike the majority, I would uphold the plan adopted by the Commission-not because we lack the time, staff, or resources to draw a better map ourselves, as the majority opinion suggests, but because the Commission's plan satisfies all applicable requirements and is superior to the one submitted by certain intervenors.

For these reasons, I concur in the judgment of the court adopting the Jourdan III-A statewide redistricting plan.

Justice HEIPLE, also concurring:

The practice and custom of honoring great personal achievements and famous people has been around since the mind of man runneth not to the contrary. Such recognition is accomplished in many ways. Often, statues are erected. Also, the names of places, events and things may be given the name of the person to be honored. Public holidays may be declared as in the case of George Washington, Abraham Lincoln and Casimir Pulaski, to mention a select few. Physicians often have diseases named after them. A man once told me with great pride that his great-grandfather, a doctor, had given his name to an entire plague, surely the capstone of medical recognition. I later learned that this was not correct. His great-grandfather had died of the plague but had not given his name to it. It was a mere coincidence that his name was Bubonic.

So it is that once every decade, in State legislatures throughout this land, we honor the name of Governor Elbridge Gerry of Massachusetts. The event is triggered by the completion of the decennial census. Though the governor's name is seldom mentioned, the tribute is paid obliquely in the legislatures by engaging in the practice of gerrymandering. Governor Gerry is commonly recognized as the father of that practice and, accordingly, his name gave rise to a new word in the English language. In broad terms, gerrymandering means the manipulation of district lines for partisan political ends. It was seared in the public's consciousness by the drawing of a legislative district in Massachusetts which resembled the shape of a gargoyle or a salamander and so was dubbed a "gerrymander." In short, it was a district which lacked compactness and which was drawn for partisan political ends. The word "gerrymandering" was coined as a pejorative and that connotation continues to this very day. It is, however, a practice that is both universally condemned and universally, followed. The parties to this law suit, likewise, have all both condemned and followed the practice.

The best recent summation of gerrymandering is contained in a short policy study authored by Daniel D. Polsby and Robert D. Popper. It states:

"There are different varieties of gerrymandering, including racial gerrymandering, remedial racial gerrymandering, collusive bipartisan gerrymandering, and probably others. But the most common kind * * * is gerrymandering undertaken by the political party in control of a state legislature in order to help itself and injure its competitor.

The techniques for gerrymandering are conceptually simple. In single-member district elections, only one legislator can win in a district. Any support beyond 50 percent-plus-one is therefore superfluous, or, from the party's point of view, ``wasted.' The partisan map-maker seeks to draw lines that concentrate the opposition's electoral support in just a few districts (called ``packing' or ``stacking'), while at the same time creating many more districts where his own party commands a small, but still safe, majority (``cracking').

The end result is that the opposition party's votes are squandered by being thrown into carefully constructed landslides. The gerrymandering party thus can win more seats in proportion to its overall electoral support than it would if the district lines were drawn by someone oblivious to partisan considerations." D. Polsby & R.D. Popper, Partisan Gerrymandering: Harms and a New Solution, A Heartland Policy Study (The Heartland Institute, Chicago, Ill.), No. 34, March 4, 1991.

The simple facts of the instant case are that reapportionment failed in the General Assembly which caused the case to be referred to the Illinois Legislative Redistricting Commission. When the Commission, which was evenly divided between Republicans and Democrats, failed to agree, a tie-breaker additional member was drawn and added to the Commission. The Republicans won the draw. The Commission then adopted a Republican-sponsored map which was challenged by the Attorney General, et al., in this lawsuit. The Constitution provides that 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(b).

Feeling the need for more information, this court remanded the case to the redistricting commission to conduct further study and report back to the court. The result of that remand was yet a new map called Jourdan III-A and a detailed report to justify the map. Various other maps have been submitted by the parties involved in this litigation. In addition, the parties have roundly criticized each other's maps. All are gerrymandered to suit their own purposes.

The question before this court is not whether the Jourdan III-A map is gerrymandered to some extent. It is. The question, rather, is whether it meets Illinois constitutional guidelines. That is to say, are the districts therein delineated found to be compact, contiguous and substantially equal in population? (Ill. Const.1970, art. IV, § 3(a).) If found to be the case, this court has no option but to approve the map. It is, after all, a map drawn and submitted according to law by a governmental body charged with the responsibility of drawing the map. (Ill. Const.1970, art. IV, § 3(b).) The function of the Illinois Supreme Court in this case in the first instance is to review what has been done by the body charged with that responsibility to determine if it has comported itself and discharged its responsibility in a lawful, legal manner. If it is determined that such has been done, that is the end of the matter. Since I believe that the Jourdan III-A map meets the Illinois constitutional guidelines in a sufficient manner, I support the adoption of that map.

In so ruling in favor of the Jourdan III-A map, however, I acknowledge that it is not a perfect map from the standpoint of compactness. A visual examination of the map shows unusual shapes for some of the districts in Chicago and environs. Downstate, this difficulty is not observed. It must be noted, however, that ideal compactness in a densely populated urban district that is but a few city blocks across is of far less consequence than lack of compactness in a rural area that may stretch across many miles. That the map could have been drawn better I have no doubt. Whether the map could have been drawn better, however, is not the issue. The issue is whether the map meets constitutional guidelines and whether the Commission discharged its duty in a lawful matter. It does and they did.

In passing, I note that all of the maps submitted to this court by all of the parties are flawed maps. All were drawn with a view to securing a partisan political advantage. That the Jourdan III-A map is obnoxious to various contesting parties goes without saying. That the other maps are equally obnoxious for similar reasons is also true.

The drawing of a reapportionment map is essentially a political and not a judicial process. It becomes judicial only if the parties who have the responsibility of drawing a map violate the law and produce a legally unacceptable map. A map that is politically unacceptable to one political party is not, for that reason, legally unacceptable. The courts must necessarily extend latitude to the political and governmental authorities in discharging their duties. Otherwise, the courts would become a political rather than a judicial institution. Had this court rejected the Commission's adoption of the Jourdan III-A map and then chosen one of the competing partisan maps, that would have been a political and not a judicial decision.

Were the Jourdan III-A map to be rejected by this court, there would be but a single option, an at-large election for all members of the House and the Senate. While this was a possible alternative, it would have been a poor choice for the people of Illinois. Implementing legislation to conduct an at-large election would have been necessary. Great uncertainties would have been introduced into the electoral process. Normal electoral processes would have been severely disrupted and great costs would have been imposed on the electorate.

Some may suggest that the court itself could have purchased a package of crayons and drawn its own map. This was not a feasible alternative. The parties to this lawsuit have spent millions of dollars and weeks of effort to produce the maps that were submitted. This court lacks the resources to hire computer experts, election experts and cartographers for that purpose. Moreover, time is short and election day draws closer. It is problematic whether this court even with time, money and experts could have produced a better map than Jourdan III-A and still had any semblance of a normal electoral process. That any map could ever be produced which would be free from complaints of bias and unfairness is doubtful.

Because I believe that the Jourdan III-A map meets legal guidelines and because I believe there is no other feasible alternative, I support the adoption of the Jourdan III-A map as reported out by the Illinois Legislative Redistricting Commission and I specially concur in the opinion enunciated by Justice Cunningham and submitted in this case.

Justice CLARK, dissenting:

In People ex rel. Burris v. Ryan (1991) 147 Ill. 2d 270, 167 Ill. Dec. 893, 588 N.E.2d 1023 (Ryan I), this court began its discussion of the constitutional requirements of a redistricting map with the observation that such a "plan must not accomplish political gerrymandering and must keep communities of interest." (Ryan I, 147 Ill.2d at 280, 167 Ill. Dec. at 897, 588 N.E.2d at 1027). The term "community of interest" has been used by several courts over the years to define a politically neutral criterion which can be used in redistricting. This idea of a community of interest makes an assumption—that the people of a voting district share the same values, ethnicity or economy. Residing in a voting district should allow the people who have the same interests to elect representatives who will advocate those interests. Because I do not believe the maps submitted for approval to this court have been drawn with the community of interest in mind and because I believe that they are constitutionally infirm, I respectfully dissent from the majority opinion.

It is the duty of a legislative redistricting entity to provide "fair and effective representation for all citizens." (Reynolds v. Sims (1964), 377 U.S. 533, 565, 84 S. Ct. 1362, 1383, 12 L. Ed. 2d 506.) This duty has been recognized in several instances by the United States Supreme Court. (See e.g., Gomillion v. Lightfoot (1960), 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (racial fairness); Reynolds v. Sims (1964), 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (population equality); Gaffney v. Cummins (1973), 412 U.S. 735, 93 S. Ct. 2321, 37 L. Ed. 2d 298, and Davis v. Bandemer (1986), 478 U.S. 109, 106 S. Ct. 2797, 92 L. Ed. 2d 85 (political fairness).) The Illinois Constitution provides a set of requirements to ensure that this duty is fulfilled. (Ill. Const. 1970, art. IV, § 3(a).) The initial concern in drawing boundary lines for proposed representative and legislative districts is compactness. While it is an end to be sought in the redistricting process, its special purpose is to combat political gerrymandering. In remanding this matter to the Commission, we specifically identified several districts created by the proposed map as "not appear[ing] to meet the constitutionally mandated requirements" in three categories, two of which included the compactness requirement. Ryan I, 147 Ill.2d at 285, 167 Ill. Dec. at 900, 588 N.E.2d at 1030.

While the parties have addressed issues of population equality and racial fairness in the new maps presented to this court, they have brushed aside the requirement of compactness, in spite of our directive in Ryan I. In essence, the parties have presented gerrymandered maps.

In a memorandum of law submitted to this court by the Commission, a majority of those members concede that "both plans contain districts which, in isolation, appear oddly shaped." In a disingenuous sleight of hand, however, these same members maintain that "this is a natural occurrence given the other goals which want to be accommodated in redistricting." Both of the experts appearing before the Commission's hearing testified that compactness is a "concept rapidly diminishing in significance in redistricting." I disagree. This concept is constitutionally mandated. "The compactness standard is, after all, a constitutional requirement in Illinois (Ill. Const. 1970, art. IV, sec. 3(a)) and cannot be ignored in redistricting the State. It cannot be written out or replaced by another requirement short of redrafting or amending our present constitution." (Schrage v. State Board of Elections (1981), 88 Ill. 2d 87, 96, 58 Ill. Dec. 451, 430 N.E.2d 483.) Proponents of this thinking seek to impose a map advantageous to their allies upon the voters of this State. Although it may be said that compactness is subservient to the goals of population equality and fairness to minorities, I am not convinced it is impossible to draw a map which serves all of these goals.

Although I recognize and accept that political considerations will inevitably be intertwined in the development of a constitutional redistricting plan, I believe that this court and the parties before it must focus their attention on whether this redistricting map guarantees the citizens of the State of Illinois fair and effective representation. In Gaffney v. Cummings (1973), 412 U.S. 735, 752, 93 S. Ct. 2321, 2331, 37 L. Ed. 2d 298, 312, the Supreme Court stated that "[i]t would be idle * * * to contend, that any political consideration taken into account in fashioning a reapportionment plan is sufficient to invalidate it." Thus, while politics and political considerations unfortunately have had more than a subtle influence on this proposed map, the resulting analysis conducted by this court must set aside the partisan and special interest bickering and stress the mandate of our State Constitution that the legislative and representative "[d]istricts shall be compact, contiguous, and substantially equal in population." Ill. Const.1970, art. IV, § 3(a).

Over the years, reviewing courts have taken judicial notice that political data is available to redistricting authorities and is taken into account by those authorities in drawing maps. (Gaffney, 412 U.S. at 753, 93 S. Ct. at 2331, 37 L.Ed.2d at 312.) As Justice White wryly observed in Davis v. Bandemer, "As long as redistricting is done by a legislature, it should not be very difficult to prove that the likely political consequences of the reapportionment were intended." 478 U.S. at 129, 106 S.Ct. at 2809. I make that assumption about the maps promoted by the parties to this case. I am not persuaded by the explanations for district configurations forwarded in the affidavits submitted to the Commission. Oddly shaped districts are frequently used to divide communities with shared interests and to link communities which are geographically and economically disparate, and it is quite obvious that the purpose of some of those districts is not to achieve population equality or racial fairness. "[I]f it clearly appear[s] that in the formation of any district the requirement of compactness of territory and equality of population had been wholly ignored, had not been considered or applied at all, to any extent, then the [result] would be clearly unconstitutional." Schrage, 88 Ill.2d at 96, 58 Ill. Dec. 451, 430 N.E.2d 483, quoting People ex rel. Woodyatt v. Thompson (1895), 155 Ill. 451, 477, 40 N.E. 307.

If any fundamental principle underlies our American system of government, it is the notion that government exists only to serve the governed. The Illinois Constitution provides that "All elections shall be free and equal." Implicit in this declaration is the idea that voter choices should not be narrowed artificially by redistricting. An artificially weighted map may ensure a political party's dominance of a legislative body for a decade or more, but it does not ensure that a citizen's right to elect officials who will represent him effectively is protected.

In my opinion, this court should draw its own redistricting map that provides fair and effective representation to the citizens of this State. In doing so, a trial judge would be selected to conduct an evidentiary hearing on the constitutional requirements of compactness, contiguity and equality in population, and who would then provide recommendations to this court. See Carstens v. Lamm (D.C.Colo.1982), 543 F. Supp. 68; Wisconsin AFL-CIO v. Elections Board (E.D.Wis.1982), 543 F. Supp. 630 (where the courts drew their own maps rather than adopt maps proposed by the parties).

I believe the framers of the Illinois Constitution of 1970 intended the compactness requirement of article IV, section 3, to protect the citizens of this State from the type of political gerrymandering which predominates the maps submitted. By placing their own political self-interests above the citizens' right to a fair and representative form of government, the parties to this dispute have struck a blow against this fundamental right. While I do not naively believe that partisan politics will never play a part in the redistricting process, I cannot in good conscience approve a legislative redistricting map which places partisan politics above the interests of the citizens of this State.

The role of the courts in our system of government is to balance the interests of the State against the interests of the public and the individual. I believe that this court, in carrying out its role, is obliged to listen not only to the voices of those special interests clamoring to be heard, but to all the citizens of this State, whose right it is to have a redistricting plan that ensures neutral reapportionment and guarantees fair and effective representation.

FREEMAN, J., joins in this dissent.

Justice BILANDIC, also dissenting:

The procedure set forth in the Illinois Constitution of 1970 for adopting a redistricting plan violates due process as guaranteed by the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV). Therefore, I respectfully dissent.

Article IV, section 3(b), of the Illinois Constitution of 1970 provides, in pertinent part:

"In the year following each Federal decennial census year, the General Assembly by law shall redistrict the Legislative 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.

* * * * * *

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." (Emphasis added.) Ill. Const.1970, art. IV, § 3(b).

As set forth above, when the Redistricting Commission has reached a deadlock in the redistricting process, the Secretary of State must draw the name of the tie-breaking Commission member by "random selection." (Ill. Const.1970, art. IV, § 3(b).) Only once since the adoption of the Illinois Constitution of 1970 has redistricting been accomplished without a ninth tie-breaking member being chosen by random selection to become a member of the Legislative Redistricting Commission. In 1971, after the General Assembly failed to redistrict itself prior to June 30, the Legislative Redistricting Commission adopted a redistricting plan and submitted it to the Secretary of State without the need for the appointment of a ninth tie-breaking member. (See People ex rel. Scott v. Grivetti (1971), 50 Ill.2(1 156, 158, 277 N.E.2d 881.) However, the tie-breaking procedure has since been utilized in both the 1981 and the 1991 redistricting processes. See Schrage v. State Board of Elections (1981), 88 Ill. 2d 87, 92, 58 Ill. Dec. 451, 430 N.E.2d 483.

It is the procedure outlined above for the resolution of a deadlocked Commission vote by the random selection of a tie-breaking ninth member that violates the constitutional guarantee of due process. The fourteenth amendment to the United States Constitution provides that no person shall be deprived of "life, liberty, or property" without due process of law. (U.S. Const., amend. XIV.) Due process preserves an individual's personal and property rights from the arbitrary action of public officials. (People v. Belcastro (1934), 356 Ill. 144, 147, 190 N.E. 301.) The essence of due process is "fundamental fairness." (Lassiter v. Department of Social Services (1981), 452 U.S. 18, 24, 101 S. Ct. 2153, 2158, 68 L. Ed. 2d 640, 648.) When a governmental procedure fails to comport with fundamental fairness, but is instead arbitrary and unreasonable, it violates the fourteenth amendment. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 563, 3 Ill. Dec. 703, 359 N.E.2d 113; Magnuson v. City of Hickory Hills (N.D.Ill.1990), 730 F. Supp. 1439, 1444.) The guarantee of due process of law is not limited to judicial proceedings. Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 454, 227 N.E.2d 754.

"Liberty," as that term is used in the fourteenth amendment, includes the right of every citizen to vote, both in State elections and Federal elections. (Reynolds v. Sims (1964), 377 U.S. 533, 554-55, 84 S. Ct. 1362, 1378, 12 L. Ed. 2d 506, 523; Rudisill v. Flynn (N.D.Ill.1979), 470 F. Supp. 1269, 1274.) The due process clause of the fourteenth amendment guarantees to every citizen the right to participate on a fair and equal basis in the electoral process. (Duncan v. Poythress (N.D.Ga.1981), 515 F. Supp. 327, 336.) The United States Supreme Court has recognized the preeminence of this right, stating:

"The right to vote freely for the candidate of one's choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. * * *

* * * * * *

* * * To the extent that a citizen's right to vote is debased, he is that much less a citizen." (Reynolds, 377 U.S. at 555, 567, 84 S. Ct. at 1378, 1384, 12 L. Ed. 2d at 523, 530.)

The establishment of legislative districts impacts the rights of Illinois citizens to participate on a fair and equal basis in the electoral process. Consequently, when the establishment of legislative districts is accomplished in an arbitrary manner, the right of Illinois citizens to due process of law is violated.

The conclusion that the tie-breaking scheme set forth in article IV, section 3(b), of the Illinois Constitution of 1970 violates the requirement of due process is supported by this court's opinion in Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 3 Ill. Dec. 703, 359 N.E.2d 113. In that case, this court held that the lottery-type of tie-breaking procedure provided for in section 1A—7.1 of the Election Code (Ill.Rev. Stat.1973, ch. 46, par. 1A—7.1) was unconstitutional. That section stated:

"In the event there is a tie vote of the membership of the State Board of Elections with respect to proposed action of the Board or with respect to any issue requiring a vote by the Board, the clerk of the Board upon the direction of any 2 members who certify that there is a deadlock, shall select by lot the name of one of the members of the Board. The member so selected shall be disqualified from voting on the particular proposition and the remaining qualified members shall proceed to decide the proposition." (Emphasis added.) Ill.Rev.Stat.1973, ch. 46, par. 1A—7.1.

This court found that the tie-breaker provision was unconstitutional in that it violated due process of law because it caused decisions of the State Board of Elections to be made by lot or by chance in some cases. (Walker, 65 Ill.2d at 563, 3 Ill. Dec. 703, 359 N.E.2d 113; see also Kandalepas v. Economou (1989), 191 Ill.App.3d 51, 54, 138 Ill. Dec. 329, 547 N.E.2d 496 (the trial court's flipping of a coin to determine an issue in dispute was improper because an act of chance determined the outcome rather than a balancing of the equities in the case).) The Walker court stated:

"Necessarily included within the tie breaker's scope are those actions and issues upon which rights of individual parties depend. As a result, if the tie breaker, when utilized, causes decisions to be arrived at in an arbitrary manner, the statute must then be considered violative of due process.

In our estimation, the tie-breaker scheme does cause decisions to rest upon an arbitrary basis. Operation of the tie breaker results in the disqualification of one Board member whose name is selected by lot. The remaining members then ``proceed to decide the proposition,' the logical expectation being that each member will adhere to his former position, with two of the three members now constituting a majority. Since the resolution of the controversy depends upon the identity of the member eliminated by the lottery, the ultimate outcome rests not upon reasoned deliberation, but upon chance. * * *

We realize that the remaining members are not inflexibly precluded from altering their prior views upon the disqualification of their colleague. Nevertheless, it strains credulity to suggest that any shift of position would be likely to occur, given the fact that the tie breaker comes into operation only when the inability to reach agreement produces a deadlock. We also concur with defendants that the tie breaker does not overtly cause decisions to be made through chance, as would be the case, for example, if the matter at issue were decided by the flip of a coin. However, since the ultimate outcome, as we have seen, is dependent upon the identity of the member whose name is selected by lot, and who is thereby disqualified from voting upon the proposition at issue, defendants urge upon us a distinction without a difference." (Emphasis added.) Walker, 65 Ill.2d at 563-64, 3 Ill. Dec. 703, 359 N.E.2d 113.

I believe that the reasoning of the Walker court applies in this case. The tie-breaking scheme in article IV, section 3(b), is fundamentally no different from the tie-breaking scheme found to be unconstitutional in Walker. The tie-breaking provision at issue in Walker provided for removing by random selection one member of the decision making body in the event of a deadlock. Article IV, section 3(b), provides for the addition of a new member in the event of a deadlock.

I recognize that this court, in People ex rel. Scott v. Grivetti (1972), 50 Ill. 2d 156, 277 N.E.2d 881, stated that article IV, section 3(b), "does not infringe upon any constitutionally protected interests." (Scott, 50 Ill.2d at 160, 277 N.E.2d 881.) However, in that case, article IV, section 3(b), was challenged only on the grounds that it was violative of the first amendment and the equal protection clause of the fourteenth amendment. The Scott court was not presented with a due process argument, and therefore Scott is not controlling.

I note that the fundamental unfairness of the tie-breaking procedure set forth in article IV, section 3(b), was addressed by defendant Ryan just prior to the September 5, 1991, drawing to select the name of the tie-breaker. Defendant Ryan stated:

"I think everyone is aware that this random drawing, which is charged to me by the Constitution, will affect how the people of Illinois are governed and who their representatives will be and probably which party's philosophy will prevail in the State of Illinois, or in the next ten years, at least.

I believe this is a bad process and bad government. The People of Illinois deserve better, and they deserve representation that's not by lottery. I don't think this process really serves the people well. But the whole point of the legislative process is to achieve compromise.

Legislators can't just flip a coin or pull an answer out of a hat anytime they're forced to face a tough decision. So, let me say that I hope that we really don't have to do this in another ten years." (Emphasis added.)

For the reasons stated above, I believe that the tie-breaking procedure set forth in article IV, section 3(b), of the Illinois Constitution of 1970 violates the due process clause of the fourteenth amendment to the United States Constitution. Any redistricting plan produced as a result of the tie-breaking procedure is therefore unconstitutional and invalid.

There is no need to delay the primary election. The candidates can run in the existing legislative districts and serve until a constitutional map is adopted. This procedure was recently approved by the United States Supreme Court for elections in the State of Mississippi. Watkins v. Mabus (1991), ___ U.S. ___, 112 S. Ct. 412, 116 L. Ed. 2d 433.

We 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.

CLARK and FREEMAN, JJ., join in this dissent.