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

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Supreme Court Date: 2016.11.30
15:50:51 -06'00'
Hooker v. Illinois State Board of Elections, 2016 IL 121077
Caption in Supreme JOHN HOOKER et al., Appellees, v. ILLINOIS STATE BOARD OF
Court: ELECTIONS et al. (Support Independent Maps, Appellant).
Docket No. 121077
Filed August 25, 2016
Rehearing denied October 20, 2016
Decision Under Appeal from the Circuit Court of Cook County, the Hon. Diane J.
Review Larsen, Judge, presiding.
Judgment Affirmed.
Mandate to issue immediately.
Counsel on Michele Odorizzi, John A. Janicik, Lori E. Lightfoot, and Chad M.
Appeal Clamage, all of Mayer Brown LLP, of Chicago, for appellant.
Robert T. Shannon and Adam R. Vaught, both of Hinshaw &
Culbertson LLP, and Richard J. Prendergast and Michael T. Layden,
both of Richard J. Prendergast, Ltd., and Michael J. Kasper, of
Chicago, and Eric M. Madiar, of Springfield, for appellees.
Constantine L. Trela, Jr., Tacy F. Flint, and Neil H. Conrad, all of
Sidley Austin LLP, of Chicago, for amici curiae League of Women
Voters of Illinois et al.
Ruth Greenwood and Annabelle Harless, both of Campaign Legal
Center, of Chicago, for amici curiae Illinois Public Interest Research
Group et al.
Justices JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Justices Freeman, Burke, and Theis concurred in the judgment and
opinion.
Chief Justice Garman dissented, with opinion, joined by Justices
Thomas and Karmeier.
Justice Thomas dissented, with opinion, joined by Chief Justice
Garman and Justice Karmeier.
Justice Karmeier dissented, with opinion, joined by Chief Justice
Garman and Justice Thomas.
Justice Karmeier dissented upon denial of rehearing, with opinion,
joined by Chief Justice Garman and Justice Thomas.
OPINION
¶1 This case addresses the question of whether the circuit court erroneously held that the
redistricting initiative petition submitted by Support Independent Maps (Independent Maps)
failed to comply with the requirements of article XIV, section 3, of our constitution (Ill Const.
1970, art. XIV, § 3), thus precluding its inclusion on the ballot at the November 8, 2016,
Illinois general election. On the grounds that the public interest requires a timely resolution of
this matter, we granted Independent Maps’ emergency motion to transfer the appeal from the
appellate court. See Ill. S. Ct. R. 302(b) (eff. Oct. 4, 2011). This court ordered expedited
briefing that has now been completed. We also granted a group of business, consumer, and
public interest organizations led by the League of Women Voters leave to file an amicus curiae
brief in support of Independent Maps pursuant to Supreme Court Rule 345 (eff. Sept. 20,
2010). Reviewing the merits of the appeal before us, we now affirm the judgment of the circuit
court.
¶2 I. BACKGROUND
¶3 The Illinois Constitution of 1970 may be amended by three methods: (1) constitutional
convention (Ill. Const. 1970, art. XIV, § 1); (2) “[a]mendments by General Assembly” (Ill.
Const. 1970, art. XIV, § 2); and (3) ballot initiatives (Ill. Const. 1970, art. XIV, § 3). Ballot
initiatives, the method at issue here, may only be used for amendments directed at “structural
and procedural subjects contained in Article IV” of the constitution (Ill. Const. 1970, art. XIV,
§ 3; Ill. Const. 1970, art. IV), pertaining to Illinois’s legislative branch. The ballot initiative at
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issue addresses redistricting, the process used to redraw the legislative and representative
districts following each federal decennial census (Ill. Const. 1970, art. IV, § 3).
¶4 In May 2016, Independent Maps filed with the Secretary of State a petition proposing the
amendment of article IV, section 3, of the constitution, to replace the current system for
redrawing Illinois’s legislative and representative districts. That section currently provides:
“(a) Legislative Districts shall be compact, contiguous and substantially equal in
population. Representative Districts shall be compact, contiguous, and substantially
equal in population.
(b) In the year following each Federal decennial census year, the General Assembly
by law shall redistrict the Legislative Districts and the Representative Districts.
If no redistricting plan becomes effective by June 30 of that year, a Legislative
Redistricting Commission shall be constituted not later than July 10. The Commission
shall consist of eight members, no more than four of whom shall be members of the
same political party.
The Speaker and Minority Leader of the House of Representatives shall each
appoint to the Commission one Representative and one person who is not a member of
the General Assembly. The President and Minority Leader of the Senate shall each
appoint to the Commission one Senator and one person who is not a member of the
General Assembly.
The members shall be certified to the Secretary of State by the appointing
authorities. A vacancy on the Commission shall be filled within five days by the
authority that made the original appointment. A Chairman and Vice Chairman shall be
chosen by a majority of all members of the Commission.
Not later than August 10, the Commission shall file with the Secretary of State a
redistricting plan approved by at least five members.
If the Commission fails to file an approved redistricting plan, the Supreme Court
shall submit the names of two persons, not of the same political party, to the Secretary
of State not later than September 1.
Not later than September 5, the Secretary of State publicly shall draw by random
selection the name of one of the two persons to serve as the ninth member of the
Commission.
Not later than October 5, the Commission shall file with the Secretary of State a
redistricting plan approved by at least five members.
An approved redistricting plan filed with the Secretary of State shall be presumed
valid, shall have the force and effect of law and shall be published promptly by the
Secretary of State.
The Supreme Court shall have original and exclusive jurisdiction over actions
concerning redistricting the House and Senate, which shall be initiated in the name of
the People of the State by the Attorney General.” Ill. Const. 1970, art. IV, § 3.
¶5 Since the adoption of the 1970 Constitution, the General Assembly has agreed on a
districting plan without resort to the backup provisions only once, after the most recent federal
census. Pub. Act 97-6 (eff. June 3, 2011). Following each of the other four decennial censuses,
the formation of a redistricting commission has been necessary. People ex rel. Scott v. Grivetti,
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50 Ill. 2d 156 (1971); Schrage v. State Board of Elections, 88 Ill. 2d 87 (1981); People ex rel.
Burris v. Ryan, 147 Ill. 2d 270 (1992); Cole-Randazzo v. Ryan, 198 Ill. 2d 233 (2001);
Beaubien v. Ryan, 198 Ill. 2d 294 (2001).1 In three out of those four occasions, the commission
has deadlocked, triggering the selection of an additional member to break the tie through the
drawing of lots. See Schrage, 88 Ill. 2d at 92; Burris, 147 Ill. 2d at 277 (1991); Beaubien, 198
Ill. 2d at 299. While that process has been criticized, it has withstood federal constitutional
challenge in the federal courts (Winters v. Illinois State Board of Elections, 197 F. Supp. 2d
1110 (2001), aff’d, 535 U.S. 967 (2002)).
¶6 To replace the current system, Independent Maps’ proposed amendment to article IV,
section 3, would substitute an entirely new section 3 that fundamentally restructures the
redistricting process. The General Assembly’s role would be eliminated from the process, with
primary responsibility for drawing legislative and representative districts falling to a new
“Independent Redistricting Commission.” Commission members would be selected through a
process involving limited legislative input. Specifically, the provision proposed by
Independent Maps provides:
“(a) The Independent Redistricting Commission comprising 11 Commissioners
shall adopt and file with the Secretary of State a redistricting plan for Legislative
Districts and Representative Districts by June 30 of the year following each Federal
decennial census. Legislative Districts shall be contiguous and substantially equal in
population. Representative Districts shall be contiguous and substantially equal in
population. The redistricting plan shall comply with Federal law. Subject to the
foregoing, the Commission shall apply the following criteria: (1) the redistricting plan
shall not dilute or diminish the ability of a racial or language minority community to
elect the candidates of its choice, including when voting in concert with other persons;
(2) the redistricting plan shall respect the geographic integrity of units of local
government; and (3) the redistricting plan shall respect the geographic integrity of
communities sharing common social and economic interests, which do not include
relationships with political parties or candidates for office. The redistricting plan shall
not either intentionally or unduly discriminate against or intentionally or unduly favor
any political party, political group or particular person. In designing the redistricting
plan, the Commission shall consider party registration and voting history data only to
assess compliance with the requirements in this subsection (a).
(b) For the purpose of conducting the Commissioner selection process, an
Applicant Review Panel comprising three Reviewers shall be chosen in the following
manner. Beginning not later than January 1 and ending not later than March 1 of the
year in which the Federal decennial census occurs, the Auditor General shall request
and accept applications to serve as a Reviewer. The Auditor General shall review all
1
This court held that the redistricting commission created after the 1970 census was illegally
constituted. Nonetheless, we permitted the redrawn map drafted by that commission to be used as a
“provisional” plan in 1972. We directed, however, that a “redistricting plan for subsequent elections
shall be adopted pursuant to the procedures outlined in section 3 of article IV of the 1970 constitution of
this State.” People ex rel. Scott v. Grivetti, 50 Ill. 2d at 168. The legislature later adopted that same map.
See Pub. Act 78-42 (eff. June 30, 1973); Robert M. Rogers, Illinois Redistricting History Since 1970, 3
Illinois General Assembly Legislative Research Unit Research Response (2008).
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applications and select a pool of 30 potential Reviewers. The Auditor General should
select applicants for the pool of potential Reviewers who would operate in an ethical
and non-partisan manner by considering whether each applicant is a resident and
registered voter of the State and has been for the four years preceding his or her
application, has demonstrated understanding of and adherence to standards of ethical
conduct and has been unaffiliated with any political party for the three years preceding
appointment. By March 31 of the year in which the Federal decennial census occurs,
the Auditor General shall publicly select by random draw the Panel of three Reviewers
from the pool of potential Reviewers.
(c) Beginning not later than January 1 and ending not later than March 1 of the year
in which the Federal decennial census occurs, the Auditor General shall request and
accept applications to serve as a Commissioner on the Independent Redistricting
Commission. By May 31, the Panel shall select a pool of 100 potential Commissioners.
The Panel should select applicants for the pool of potential Commissioners who would
be diverse and unaffected by conflicts of interest by considering whether each
applicant is a resident and registered voter of the State and has been for the four years
preceding his or her application, as well as each applicant’s prior political experience,
relevant analytical skills, ability to contribute to a fair redistricting process and ability
to represent the demographic and geographic diversity of the State. The Panel shall act
by affirmative vote of two Reviewers. All records of the Panel, including applications
to serve on the Panel, shall be open for public inspection, except private information
about applicants for which there is no compelling public interest in disclosure.
(d) Within 45 days after the Panel has selected the pool of 100 potential
Commissioners, but not later than June 23 of the year in which the Federal decennial
census occurs, the Speaker and Minority Leader of the House of Representatives and
the President and Minority Leader of the Senate each may remove up to five of those
potential Commissioners. Thereafter, but not later than June 30, the Panel shall
publicly select seven Commissioners by random draw from the remaining pool of
potential Commissioners; of those seven Commissioners, including any replacements,
(1) the seven Commissioners shall reside among the Judicial Districts in the same
proportion as the number of Judges elected therefrom under Section 3 of Article VI of
this Constitution, (2) two Commissioners shall be affiliated with the political party
whose candidate for Governor received the most votes cast in the last general election
for Governor, two Commissioners shall be affiliated with the political party whose
candidate for Governor received the second-most votes cast in such election and the
remaining three Commissioners shall not be affiliated with either such political party
and (3) no more than two Commissioners may be affiliated with the same political
party. The Speaker and Minority Leader of the House of Representatives and the
President and Minority Leader of the Senate each shall appoint one Commissioner
from among the remaining applicants in the pool of potential Commissioners on the
basis of the appointee’s contribution to the demographic and geographic diversity of
the Commission. A vacancy on the Panel or Commission shall be filled within five
days by a potential Reviewer or potential Commissioner from among the applicants
remaining in the pool of potential Reviewers or potential Commissioners, respectively,
in the manner in which the office was previously filled.
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(e) The Commission shall act in public meetings by affirmative vote of six
Commissioners, except that approval of any redistricting plan shall require the
affirmative vote of at least (1) seven Commissioners total, (2) two Commissioners
from each political party whose candidate for Governor received the most and
second[-]most votes cast in the last general election for Governor and (3) two
Commissioners not affiliated with either such political party. The Commission shall
elect its chairperson and vice chairperson, who shall not be affiliated with the same
political party. Six Commissioners shall constitute a quorum. All meetings of the
Commission attended by a quorum, except for meetings qualified under attorney-client
privilege, shall be open to the public and publicly noticed at least two days prior to the
meeting. All records of the Commission, including communications between
Commissioners regarding the Commission’s work, shall be open for public inspection,
except for records qualified under attorney-client privilege. The Commission shall
adopt rules governing its procedure, public hearings and the implementation of matters
under this Section. The Commission shall hold public hearings throughout the state
both before and after releasing the initial proposed redistricting plan. The Commission
may not adopt a final redistricting plan unless the plan to be adopted without further
amendment, and a report explaining its compliance with this Constitution, have been
publicly noticed at least seven days before the final vote on such plan.
(f) If the Commission fails to adopt and file with the Secretary of State a
redistricting plan by June 30 of the year following a Federal decennial census, the Chief
Justice of the Supreme Court and the most senior Judge of the Supreme Court who is
not affiliated with the same political party as the Chief Justice shall appoint jointly by
July 31 a Special Commissioner for Redistricting. The Special Commissioner shall
adopt and file with the Secretary of State by August 31 a redistricting plan satisfying
the requirements set forth in subsection (a) of this Section and a report explaining its
compliance with this Constitution. The Special Commissioner shall hold at least one
public hearing in the State before releasing his or her initial proposed redistricting plan
and at least one public hearing in a different location in the State after releasing his or
her initial proposed redistricting plan and before filing the final redistricting plan with
the Secretary of State. All records of the Special Commissioner shall be open for public
inspection, except for records qualified under attorney-client privilege.
(g) An adopted redistricting plan filed with the Secretary of State shall be presumed
valid and shall be published promptly by the Secretary of State.
(h) The Supreme Court shall have original jurisdiction in cases relating to matters
under this Section.”
¶7 Independent Maps filed a petition to bring this proposed amendment before the voters by
using the ballot initiative process governed by article XIV, section 3, of the Illinois
Constitution (Ill. Const. 1970, art. XIV, § 3). That provision requires petitions seeking to
amend article IV to be signed by “a number of electors equal in number to at least eight percent
of the total votes cast for candidates for Governor in the preceding gubernatorial election.” Ill.
Const. 1970, art. XIV, § 3. The State Board of Elections determined that the petition received
more than the required number of valid signatures.
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¶8 Five days after Independent Maps submitted its petition, a “taxpayer’s suit” was filed in the
circuit court of Cook County pursuant to section 11-303 of the Code of Civil Procedure (735
ILCS 5/11-303 (West 2014)). The lawsuit sought to enjoin the defendants from disbursing
public funds to determine the petition’s compliance with the Election Code (10 ILCS 5/1-1 et
seq. (West 2014)) or to place the proposal on the ballot at the upcoming November 2016
General Election. The complaint also requested declaratory relief.2
¶9 The action was filed by a political committee called People’s Map, along with its
chairperson, John Hooker, and individual members and leaders of other groups,3 each alleged
to be Illinois residents and taxpayers. The named defendants were the Board of Elections and
its chairperson and members; Leslie Munger, the State Comptroller; Jesse White, the Secretary
of State; Michael Frerichs, the State Treasurer; David Orr, the County Clerk of Cook County;
and the Board of Election Commissioners for the City of Chicago, its chairperson, and
members. Later, the circuit court entered an agreed order dismissing Orr and the Chicago
Board of Election Commissioners, along with its chair and members, without prejudice.
¶ 10 Although Independent Maps was not originally included as a party, it was later granted
leave to intervene. See 735 ILCS 5/2-408 (West 2014). No question is raised on the sufficiency
of the case law permitting intervention by an entity in support of its own ballot initiative
proposal (see Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 506
(1994) (per curiam) (hereinafter CBA II); Chicago Bar Ass’n v. State Board of Elections, 137
Ill. 2d 394, 396 (1990) (hereinafter CBA I); Coalition for Political Honesty v. State Board of
Elections, 65 Ill. 2d 453, 456 (1976) (per curiam) (hereinafter Coalition I)).
¶ 11 The complaint at issue here had 11 counts. The first six were directed against all defendants
and sought a declaratory judgment that the amendment to article IV, section 3 (Ill. Const. 1970,
art. IV, § 3), is unconstitutional because it exceeds the scope of ballot initiatives permitted
under article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3). Relying on another constitutional
provision, count VII also seeks a declaratory judgment. Counts VIII through XI seek a
permanent injunction based on the allegations in the prior counts.
¶ 12 Article XIV, section 3, limits the scope of permissible ballot initiatives “to structural and
procedural subjects contained in Article IV [Ill. Const. 1970, art. IV, § 3],” the legislative
article. Ill. Const. 1970, art. XIV, § 3. Count V of the plaintiffs’ complaint alleged that the
latter provision limited the ballot initiative process to proposing changes in the structure and
procedure of the legislature. Because Independent Maps’ proposal addresses the redistricting
process rather than the organization of the General Assembly or “the process by which it
adopts a law,” the plaintiffs contended it impermissibly falls outside article XIV, section 3.
2
The parties do not dispute that a taxpayer action for declaratory and injunctive relief is a proper
method of challenging the constitutionality of a proposed ballot initiative. Even though the petition has
not been officially declared valid or been certified for placement on the November 2016 ballot, the
issue in this appeal is ripe. No additional matters appear to stand in the way of the proposal being placed
in the ballot. The only steps remaining for the Board of Elections are solely administrative. See
Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 506-07 (1994), agreeing with the
dissent (id. at 515-16 (Harrison, J., dissenting, joined by Miller and Heiple, JJ.)).
3
The remaining plaintiffs are Frank Clark, Leon Finney, Elzie Higgenbottom, Raymond Chin,
Fernando Grillo, Jorge Perez, and Craig Chico.
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¶ 13 Alternatively, counts I through IV and VI alleged that, even if redistricting constitutes a
“structural and procedural subject[ ] contained in Article IV,” the proposed ballot initiative is
invalid because it is not “limited” to those subjects, violating article XIV, section 3 (Ill. Const.
1970, art. XIV, § 3). According to count I, the initiative exceeds those limitations by adding to
the existing duties of the Auditor General enumerated in article VIII of the constitution (Ill.
Const. 1970, art. VIII). Count II alleged the initiative unconstitutionally modifies our courts’
jurisdiction as currently stated in the judicial article (Ill. Const. 1970, art. VI). Count III
asserted the proposal would improperly impose new duties on both the Chief Justice of this
court and the most senior Justice who is not affiliated with the same political party as the Chief
Justice. Count IV contended the proposed initiative is invalid because it would impose a new
requirement that the members of this court be affiliated with a political party. According to
count VI, Independent Maps’ proposal exceeds the limits mandated in article XIV, section 3,
by eliminating the Attorney General’s authority to commence actions pertaining to legislative
redistricting.
¶ 14 Similar to counts I through VI, count VII sought a declaratory judgment against all
defendants. Count VII did not, however, allege a violation of article XIV, section 3. Rather, it
relied on an alleged violation of article III, section 3, of our constitution (Ill. Const. 1970, art.
III, § 3). Article III, section 3, provides that “[a]ll elections shall be free and equal.” Ill. Const.
1970, art. III, § 3. The plaintiffs asserted that Independent Maps’ ballot initiative does not
comply with that requirement because it improperly includes separate and unrelated questions
into one ballot proposition.
¶ 15 Counts VIII through XI present no new substantive claims for challenging the validity of
this proposed ballot initiative. Instead, they merely incorporated by reference the complaint’s
previous allegations and requested a permanent injunction to preclude public funds from being
disbursed to evaluate the sufficiency of the petition or to place the measure on the ballot at the
November 8, 2016, general election. Count VIII was directed at the State Board of Elections,
its officers, and members, while Count IX was directed at the Board of Election
Commissioners for the City of Chicago and its officers and members, as well as the County
Clerk of Cook County. These defendants have already been dismissed from the case.
Accordingly, count IX was stricken and is not before this court. Count X was directed at the
Comptroller and State Treasurer, and count XI sought an injunction against the Secretary of
State.
¶ 16 On May 20, 2016, the plaintiffs were given leave to file their complaint, and Independent
Maps filed its answer. The remaining defendants filed a separate, joint answer. The plaintiffs
moved for judgment on the pleadings pursuant to section 2-615(e) of the Code of Civil
Procedure (734 ILCS 5/2-615(e) (West 2014)), asking that the court grant both declaratory and
injunctive relief. Independent Maps filed a cross-motion for judgment on the pleadings,
seeking dismissal of the plaintiffs’ complaint with prejudice.
¶ 17 The circuit court held a hearing on both motions before granting the plaintiffs’ motion as to
counts I through VII, concluding that the proposed ballot initiative did not comply with the
requirements in our constitution. The court then denied Independent Maps’ motion on those
counts. The court entered no judgment on counts VIII, X, and XI, seeking injunctive relief. To
prevent the absence of a judgment on those three counts from delaying appellate review, the
court expressly found that there was no just reason for delaying enforcement or appeal of its
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judgment pursuant to Illinois Supreme Court Rule 304(a). Ill. S. Ct. R. 304(a) (eff. Mar. 8,
2016).
¶ 18 Independent Maps immediately filed a notice of appeal to the appellate court and asked
that the case be expedited. See Ill. S. Ct. R. 311(b) (eff. Mar. 8, 2016). It then filed a motion to
transfer the case directly to this court pursuant to Illinois Supreme Court Rule 302(b) (eff. Oct.
4, 2011). Rule 302(b) permits those transfers when the public interest requires prompt
adjudication of the matter by the supreme court. We allowed that motion on July 22, 2016,
ordering the appeal to be taken directly to us and establishing an expedited briefing schedule
for the parties. We also permitted a group consisting of the League of Women Voters and more
than two dozen other business, civic, and public interest groups to file an amicus curiae brief in
support of Independent Maps.4 Following receipt of the parties’ briefs, the matter has been
submitted to the court without oral argument.
¶ 19 II. ANALYSIS
¶ 20 In its appeal, Independent Maps argues that the circuit court erred in granting judgment on
the pleadings in favor of the plaintiffs pursuant to section 2-615(e) of the Code of Civil
Procedure (735 ILCS 5/2-615(e) (West 2014)) and that, instead, the court should have allowed
its cross-motion for judgment on the pleadings and dismissed the plaintiffs’ complaint with
prejudice.
¶ 21 The standards guiding our review of this appeal are well established. Judgment on the
pleadings is proper only where no genuine issue of material fact exists and the moving party is
entitled to judgment as a matter of law. Pekin Insurance Co. v. Wilson, 237 Ill. 2d 446, 454
(2010). In ruling on a motion for judgment on the pleadings, a court may consider only those
facts appearing on the face of the pleadings, matters subject to judicial notice, and any judicial
admissions in the record. All well-pleaded facts and reasonable inferences based on those facts
are taken as true. Gillen v. State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 385
(2005); M.A.K. v. Rush-Presbyterian-St.-Luke’s Medical Center, 198 Ill. 2d 249, 255 (2001).
We review the grant of judgment on the pleadings de novo. Pekin Insurance, 237 Ill. 2d at 454.
De novo review is also appropriate here because the resolution of this case turns on the
interpretation and application of the Illinois Constitution, creating a question of law.
Hawthorne v. Village of Olympia Fields, 204 Ill. 2d 243, 254-55 (2003).
¶ 22 In challenging the ballot initiative, the plaintiffs advanced two basic lines of constitutional
argument: (1) the ballot initiative exceeds the scope of permissible amendments pursuant to
4
The following groups have joined the League of Women Voters: the Small Business Advocacy
Council Illinois, Illinois Campaign for Political Reform, CHANGE Illinois, Champaign County
Chamber of Commerce, McCormick Foundation, Union League Club of Chicago, West Rogers Park
Community Organization, Illinois Farm Bureau, Better Government Association, Chicago Southside
Branch NAACP, Independent Voters of Illinois-Independent Precinct Organization, Rockford
Chamber of Commerce, Naperville Area Chamber of Commerce, Illinois Chamber of Commerce,
Chicagoland Chamber of Commerce, Metropolitan Planning Council, Business and Professional
People for the Public Interest, Latino Policy Forum, Sargent Shriver National Center on Poverty Law,
Illinois Public Interest Research Group, Common Cause, Citizen Advocacy Center, the Civic
Federation, Commercial Club of Chicago, Chicago Embassy Church, and Illinois Hispanic Chamber of
Commerce.
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article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3), because it is not “limited to structural
and procedural subjects contained in Article IV,” the constitution’s legislative article (counts I
through VI of the plaintiffs’ complaint) and (2) it violates article III, section 3, of the
constitution, stating that “[a]ll elections shall be free and equal” (Ill. Const. 1970, art. III, § 3),
because it impermissibly combines separate and unrelated questions into a single ballot
proposition (count VII of the plaintiffs’ complaint). Within the plaintiffs’ argument about
article XIV, section 3, they address several proposed changes to the redistricting process. As
we noted in Coalition for Political Honesty v. State Board of Elections, 83 Ill. 2d 236, 247
(1980) (per curiam) (hereinafter Coalition II) (citing 4 Record of Proceedings, Sixth Illinois
Constitutional Convention 2710 (hereinafter Proceedings)), the limitation established in article
XIV, section 3, “is apparently unique to Illinois,” severely undermining the guidance that may
be obtained from the case law of our sister states addressing limitations on ballot initiatives.
We note, however, that other jurisdictions have upheld the propriety of enjoining citizen
initiatives proposing amendments when the applicable constitutional requirements are not met.
Coalition I, 65 Ill. 2d at 461-62. When addressing constitutional amendments,
“ ‘the will of the people to this end can only be expressed in the legitimate modes by
which such a body politic can act, and which must either be prescribed by the
constitution whose revision or amendment is sought, or by an act of the legislative
department of the State, which alone would be authorized to speak for the people upon
this subject ***.’ 1 Cooley’s Constitutional Limitations, 84-85 (8th ed. 1927).
(Emphasis added.)” Coalition I, 65 Ill. 2d at 460-61.
¶ 23 In our constitution, the framers chose to limit the scope of ballot initiatives in article XIV,
section 3. That section states, in relevant part: “Amendments shall be limited to structural and
procedural subjects contained in Article IV,” our legislative article. Ill. Const. 1970, art. XIV,
§ 3. We have already addressed this language in four cases: CBA I, 137 Ill. 2d at 396; CBA II,
161 Ill. 2d at 506; Coalition I, 65 Ill. 2d at 457, and Coalition II, 83 Ill. 2d at 247. Thus,
“[t]he controlling legal principles are settled. The prior constitutions of this State
did not provide for amendment through the direct initiative process. ([CBA I], 137 Ill.
2d at 398.) The Framers of the 1970 Illinois Constitution intended article XIV, section
3, to be a very limited form of constitutional initiative. The Framers considered that a
general initiative provision was unnecessary due to the liberalized amendment
procedures of the new constitution. ([CBA I], 137 Ill. 2d at 401.) ***.
Based on the Framers’ concerns, article XIV, section 3, provides only for
amendment of the legislative article, article IV. Further, not every aspect of the
legislative article is subject to amendment through the initiative process. Rather,
“ ‘ “Amendments shall be limited to structural and procedural subjects contained in
Article IV.” ’ (Emphasis added.) [CBA I], 137 Ill. 2d at 398, quoting Ill. Const. 1970,
art. XIV, § 3.” CBA II, 161 Ill. 2d at 508-09.
¶ 24 The Proposed Role of the Auditor General
¶ 25 Because we find this issue dispositive, we first examine count I of the plaintiffs’ complaint.
That count inserts the Auditor General into the redistricting process for the first time.
¶ 26 In its appeal before this court, Independent Maps presents three main arguments:
(1) assigning the Auditor General duties related to redistricting does not “change” his
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constitutional duties established in article VIII, section 3, because the new duties relate to
“redistricting” under article IV; (2) the new duties do not constitute the type of “substantive
change” to policy matters that concerned the delegates at the 1970 Constitutional Convention;
and (3) redistricting reforms would be hobbled if “non-legislative actors” could not be
assigned new duties. Before we address these arguments, we must review the current
constitutional provisions relating to our Auditor General and the additional duties interposed
by the proposed initiative.
¶ 27 Our constitution mandates that the Auditor General (1) “shall conduct the audit of public
funds of the State,” (2) “shall make additional reports and investigations as directed by the
General Assembly,” and (3) “shall report his findings and recommendations to the General
Assembly and to the Governor.” Ill. Const. 1970, art. VIII, § 3(b). In addition to the duties
already imposed on the Auditor General by our constitution, the proposed ballot initiative
imposes several other duties. Indeed, the proposed ballot initiative greatly expands the duties
of that office. While the Auditor General plays no part in the current redistricting process,
under the proposed ballot initiative, that office would be responsible for multiple tasks critical
to the success of the new redistricting plan. Under the proposed amendment,
“[f]or the purpose of conducting the Commissioner selection process, an Applicant
Review Panel comprising three Reviewers shall be chosen in the following manner.
Beginning not later than January 1 and ending not later than March 1 of the year in
which the Federal decennial census occurs, the Auditor General shall request and
accept applications to serve as a Reviewer. The Auditor General shall review all
applications and select a pool of 30 potential Reviewers. The Auditor General should
select applicants for the pool of potential Reviewers who would operate in an ethical
and non-partisan manner by considering whether each applicant is a resident and
registered voter of the State and has been for the four years preceding his or her
application, has demonstrated understanding of and adherence to standards of ethical
conduct and has been unaffiliated with any political party for the three years preceding
appointment. By March 31 of the year in which the Federal decennial census occurs,
the Auditor General shall publicly select by random draw the Panel of three Reviewers
from the pool of potential Reviewers.”
After the Applicant Review Panel is constituted, the auditor must undertake another task, that
of “request[ing] and accept[ing] applications to serve as a Commissioner on the Independent
Redistricting Commission.”5
¶ 28 Objecting to these changes, count I of the plaintiffs’ complaint alleged that imposing duties
on the Auditor General violates article XIV, section 3, of our constitution, limiting the scope of
ballot initiatives “to structural and procedural subjects contained in Article IV.” The plaintiffs
assert that the additional duties appear to require the Auditor General to conduct extensive
screening steps and applicant interviews to ensure compliance with the criteria established in
the initiative for members of the Applicant Review Panel. In turn, Independent Maps counters
that the Auditor General “already has a substantial staff devoted to a wide variety of different
tasks and therefore should be capable of undertaking the task of screening applicants for the
Applicant Review Panel.”
5
The plaintiffs’ complaint does not challenge this aspect of the Auditor General’s participation.
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¶ 29 While it is unclear from the record exactly how great a burden the additional duties
imposed by the proposed initiative would create, two points appear certain. First, winnowing
the number of applicants statewide down to a pool of 30 reviewers is likely to be a
time-consuming and resource-intensive task. Indeed, the mandate that the Auditor General
evaluate the “ethical conduct” and partisan leanings of “each applicant” who applies from
across the state is likely to require considerable effort, time, and expense. Conversely, the time
and resources expended on that process will necessarily be unavailable to perform the duties
already specifically assigned to the Auditor General in article VIII, section 3. That alteration in
the duties of the Auditor General, in itself, has a material effect on another section of our
constitution, in violation of article XIV, section 3.
¶ 30 Second, and more importantly, the parties do not explain how the Auditor General’s
hypothetical ability to perform the newly assigned redistricting tasks affects the
constitutionality of the proposal. Indeed, this argument conflicts with Independent Maps’ own,
quite accurate, description of the proper division of labor in the review process. As explained
in its reply brief, “whether or not a provision is a good idea is beside the point for purposes of
the constitutional analysis. It is for the voters to decide whether a proposed constitutional
amendment is wise or workable; the courts’ task is simply to decide whether it is limited to a
structural and procedural subject in Article IV.” (Emphasis added.) We agree and reject
Independent Maps’ claim that the new duties assigned to the Auditor General under its plan are
constitutional because they are not unduly burdensome.
¶ 31 Independent Maps also argues that its proposed amendment does not, in fact, “change” the
constitutional duties of the Auditor General and that its newly imposed duties do not raise the
type of concerns raised during the Sixth Illinois Constitutional Convention in 1970. In
discussing the latter point, it maintains that the ballot initiative comports with constitutional
standards because it is “not being used as a subterfuge to undermine the duties the Constitution
assigns to the Auditor General in Article VIII,” distinguishing it from CBA I. Independent
Maps adds that “the key point for purposes of Article XIV, § 3 is that the Redistricting
Initiative is aimed solely at reforming the redistricting process and is not designed to affect the
auditing function established by Article VIII, § 3.” (Emphasis in original.)
¶ 32 What these arguments fail to recognize, however, is twofold. First, nothing in our current
constitution, its development, or this court’s case law requires a proposed ballot initiative to be
designed intentionally to undercut or otherwise even affect another constitutional provision to
be found invalid under article XIV, section 3. The propriety of Independent Maps’ unexpressed
underlying intent is simply not a factor in the test established in the plain language of that
article.
¶ 33 Certainly, during the debates at the 1970 Constitutional Convention, the possibility that a
ballot initiative could provide a “backdoor” means of altering other constitutional provisions
or even the substantive law was discussed. However, the intentional abuse of the ballot
initiatives was not the sole incentive for enacting the limitations in article XIV, section 3, nor
was it a factor incorporated into the standard set out in article XIV, section 3. The only relevant
restriction in that section was that the ballot proposition be “limited to structural and
procedural subjects contained in Article IV,” the constitution’s legislative article. Ill. Const.
1970, art. XIV, § 3.
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¶ 34 Moreover, the framers of our constitution intended this court alone “to determine whether
constitutional requirements for a proposed amendment were satisfied.” Coalition I, 65 Ill. 2d at
462. That role does not require us to read between the lines of every proposal in an attempt to
discern the propriety of the proponent’s underlying intentions; our role is solely to determine
whether the proposal comports with the strict limitations set out in article XIV, section 3.
¶ 35 Second, at its core, the question in this case requires us to construe the relevant
constitutional provisions, a purely legal question. As this court recently explained in Walker v.
McGuire, we apply the same general principles to construe both statutory and constitutional
provisions. When construing a constitutional provision, our primary purpose is to effectuate
“ ‘the common understanding of the persons who adopted it—the citizens of this state’.”
Walker v. McGuire, 2015 IL 117138, ¶ 16 (citing Kanerva v. Weems, 2014 IL 115811, ¶ 36). If
the language of the provision is unambiguous, we must give it effect without resorting to aids
of statutory construction. Kanerva, 2014 IL 115811, ¶ 36. Only if the provision is ambiguous
will we “consult the drafting history of the provision, including the debates of the delegates to
the constitutional convention.” Walker, 2015 IL 117138, ¶ 16 (citing Glisson v. City of Marion,
188 Ill. 2d 211, 225 (1999), and Committee for Educational Rights v. Edgar, 174 Ill. 2d 1, 13
(1996)). In addition, “[o]ne contending that language should not be given its natural meaning
understandably has the burden of showing why it should not.” Coalition I, 65 Ill. 2d at 464.
¶ 36 The plain language of article XIV, section 3, unambiguously states that constitutional
amendments created by ballot initiative “shall be limited to structural and procedural subjects
contained in Article IV.” Ill. Const. 1970, art. XIV, § 3. “It is clear from the debates of the
Constitutional Convention of 1970 that only a very limited form of constitutional initiative was
acceptable.” CBA I, 137 Ill. 2d at 401; see also CBA II, 161 Ill. 2d at 508-09 (restating the same
conclusion). In fact, the 1970 convention delegates expressly rejected an alternative provision
granting citizens the authority to seek a ballot initiative affecting a broader range of subject
matter. Coalition I, 65 Ill. 2d at 467. Moreover, not only was the scope of permissible ballot
initiatives in article XIV, section 3, limited to the amendment of the legislative article, it was
intentionally restricted to a subset of topics relating to that article, namely, “ ‘structural and
procedural subjects contained in Article IV.’ ” (Emphasis in original.) (Internal quotation
marks omitted.) CBA II, 161 Ill. 2d at 509 (quoting CBA I, 137 Ill. 2d at 398).
¶ 37 In Coalition I and Coalition II, we quoted from an explanation provided by the spokesman
for the majority on the Constitutional Convention Committee on the legislature, Louis Perona,
addressing the intentionally limited nature of amendments that could be enacted by ballot
initiative. Delegate Perona emphasized the framers’ rationale for limiting the reach of ballot
initiatives,
“As I indicated preliminarily in my remarks, I think the limitation on this initiative
eliminates the abuse which has been made of the initiative in some states. The attempt
has been made here to prevent it being applied to ordinary legislation or to changes
which do not attack or do not concern the actual structure or makeup of the legislature
itself. (4 Proceedings 2911.)” (Emphasis added.) Coalition I, 65 Ill. 2d at 470.
¶ 38 We further stated in Coalition I,
“Any offered amendment under the initiative obviously must comply with the
procedure and the limitations on amendment set out in [article XIV,] section 3 before it
can be submitted to the electorate. As this court has observed: ‘The constitution is the
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supreme law, and every citizen is bound to obey it and every court is bound to enforce
its provisions. It is a most extraordinary doctrine that the court has a discretion to
enforce or not enforce a provision of the constitution according to its judgment as to its
wisdom or whether the public good will be subserved by disregarding it.’ People ex rel.
Miller v. Hotz, 327 Ill. 433, 437.” Coalition I, 65 Ill. 2d at 460.
Thus, this court is obliged to respect the imitations placed on the scope of ballot initiatives by
article XIV, section 3, as approved by the citizens of this state. Those limitations alone must
guide our review of Independent Maps’ arguments.
¶ 39 Returning to the task of construing article XIV’s limitation on the permissible subject
matter of the ballot initiative process, our only concern in this case must be the proposed
initiative’s compliance with the applicable standard expressed in article XIV, section 3, of our
constitution: whether the proposal is “limited to structural and procedural subjects contained in
Article IV.” Ill. Const. 1970, art. XIV, § 3.
¶ 40 In CBA I, this court was similarly asked to address a ballot initiative’s effects on another
constitutional provision. There, the proposed amendment required each legislative house to
create a “revenue committee” possessing a designated number of members. More critically,
any bill that increased the state’s revenue required a three-fifths vote in each house before
becoming law. In analyzing whether that proposal violated article XIV, section 3, we focused
not on whether it encompassed both structural and procedural components but on whether it
was “limited to structural and procedural subjects contained in Article IV.” (Emphases in
original.) (Internal quotation marks omitted.) CBA I, 137 Ill. 2d at 403.
¶ 41 “[W]e [found] that the proposed Amendment [was] not limited to the structural and
procedural subjects of article IV. Wrapped up in this structural and procedural package is a
substantive issue not found in article IV—the subject of increasing State revenue or increasing
taxes.” (Emphasis in original.) CBA I, 137 Ill. 2d at 404. We further explained that
“if this court finds that the proposed Amendment falls within the limitations of section
3 of article XIV then almost any substantive issue can be cast in the form of an
amendment to the structure and procedure of the legislative article by using the same
scenario.” CBA I, 137 Ill. 2d at 405.
¶ 42 Here, the sole provision in our constitution currently addressing the “subject” of the
Auditor General’s job duties is indisputably article VIII, section 3 (Ill. Const. 1970, art. VIII,
§ 3). As presently constituted, article IV does not mention the “subject” of the Auditor
General’s office or its duties, even in passing. Moreover, the additional duties the ballot
initiative imposes on the Auditor General creates changes that neither “ ‘attack [n]or ***
concern the actual structure or makeup of the legislature itself.’ ” Coalition I, 65 Ill. 2d at 470
(quoting 4 Proceedings 2911 (statements of Delegate Perona)). Therefore, the duties of the
Auditor General have never been and are not now a “subject contained in Article IV” as
currently constituted. Thus, that provision is not a proper “subject” of the legislative article, in
violation of the limitation in article XIV, section 3.
¶ 43 Finally, Independent Maps makes the policy argument that upholding the circuit court’s
finding that the plaintiffs were entitled to judgment on the pleadings will “make it largely
impossible to make meaningful reforms in the redistricting process.” We respectfully disagree.
The Auditor General is not the only potential nonlegislative actor capable of filling the duties
outlined in its proposal. Certainly Illinois has other offices or individuals that are
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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.
¶ 44 We conclude that the duties assigned to the Auditor General by the ballot initiative at issue
in this case do not comport with the strict limitations in article XIV, section 3 (Ill. Const. 1970,
art. XIV, § 3). Therefore, the proposition submitted by Independent Maps must fail. We hold
that the circuit court properly granted the plaintiffs’ motion for judgment on the pleadings
pursuant to section 2-615(e) of the Code of Civil Procedure (734 ILCS 5/2-615(e) (West
2014)). In reaching this conclusion, we emphasize that it is based solely on the constitutional
infirmity of the particular ballot initiative before this court. Our decision is not intended to
reflect in any way on the viability of other possible redistricting reform initiatives.
¶ 45 Because we affirm the circuit court’s grant of the plaintiff’s motion on the pleadings, we
need not consider the remaining arguments on appeal, including the parties’ invitation to
determine whether any hypothetical ballot initiative addressing the redistricting process could
be constitutional. Accordingly, we leave that question for another day.
¶ 46 III. CONCLUSION
¶ 47 Even when concerned citizens legitimately attempt to exercise their constitutional right to
seek changes in their state government through ballot initiatives, this court is constrained by
the expressed intent of the framers of our constitution to review the propriety of only the
specific provisions in the proposal before it. In conducting that review, we must first and
foremost look to the plain language adopted by the framers. That is the most certain route to
determining the framers’ intent.
¶ 48 In this case, our inquiry is limited to the intent expressed by the plain language of article
XIV, section 3. The intent demonstrated by both the plain constitutional language and this
court’s prior case law imposes clear restrictions on the scope of permissible ballot initiatives.
As both parties expressly acknowledge, the wisdom of placing before the voters of this state
any particular ballot initiative seeking reform of the redistricting process, as well as the
workability of that reform, is irrelevant to this limited issue and not a matter properly before
this court. We may not ignore our mandate by simply deferring to the redistricting approach
proffered by a particular ballot proposal, no matter how appealing it may be. It is our role to
review all ballot initiatives for constitutional merit only, and we will examine all future ballot
initiative proposals brought before this court on the merit of their particular provisions.
¶ 49 Here, after closely examining the framers’ carefully chosen language, as previously
interpreted by this court, we conclude the ballot initiative in this case fails to comport with the
restrictions incorporated into article XIV, section 3, to protect the integrity of this state’s
constitution. For the reasons stated above, we affirm the judgment of the circuit court of Cook
County. The mandate of this court shall issue immediately.
¶ 50 Affirmed.
¶ 51 Mandate to issue immediately.
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¶ 52 CHIEF JUSTICE GARMAN, dissenting:
¶ 53 I join and agree with Justice Karmeier’s dissent. I write separately to express my concern
with the impact of the majority’s conclusion on the future of redistricting in Illinois. Article
XIV, section 3, was included in our constitution to provide the people of this state with the
power to act in situations where it is against the legislature’s self interest to do so. Redistricting
is clearly such an issue. Those elected have an incentive to draw maps that will help them
remain in office. Pursuant to article XIV, section 3, the people of Illinois should have an
opportunity to vote on whether the redistricting process controlled by the legislature ought to
be amended.
¶ 54 This check against the legislature’s self interest is especially important when the issue at
hand is one so crucial to our democracy. As I noted fifteen years ago, following the
redistricting triggered by the 2000 federal census:
“In any action involving redistricting, much more is at stake than simply who will
control the legislature for the next 10 years. ‘If any fundamental principle underlies our
American system of government, it is the notion that government exists only to serve
the governed.’ [Citation.] Today, that fundamental principle is dealt a serious blow.”
Cole-Randazzo v. Ryan, 198 Ill. 2d 233, 248 (2001) (Garman, J., dissenting, joined by
Thomas, J.).
¶ 55 I again lamented in Beaubien v. Ryan that the court had failed its “duty to ensure that the
process that ultimately results in a redistricting map that will represent the people of Illinois for
the next decade will be ‘equitable, balanced, and fair.’ ” 198 Ill. 2d 294, 308 (2001) (Garman,
J., dissenting, joined by Thomas, J.). The majority opinion fails this duty and deals another
serious blow to our fundamental principles.
¶ 56 JUSTICES THOMAS and KARMEIER join in this dissent.
¶ 57 JUSTICE THOMAS, dissenting:
¶ 58 The Illinois Constitution is meant to prevent tyranny, not to enshrine it.
¶ 59 Today, just as a critical election board deadline is about to expire, four members of our
court have delivered, as a fait accompli, nothing less than the nullification of a critical
component of the Illinois Constitution of 1970. In direct contradiction of the clear and
unambiguous intention of the people who drafted the constitution and the citizens who voted to
adopt it, the majority has irrevocably severed a vital lifeline created by the drafters for the
express purpose of enabling later generations of Illinoisans to use their sovereign authority as a
check against self-interest by the legislature. When the Reporter of Decisions sends out the
majority’s disposition, he should include a bright orange warning sticker for readers to paste
over article XIV, section 3, of their personal copies of the 1970 Constitution reading, “Out of
Service.”
¶ 60 The majority’s ruling in this case comes at a particularly unfortunate time. In Illinois, as
throughout the United States, there is a palpable sense of frustration by voters of every political
affiliation that self-perpetuating institutions of government have excluded them from
meaningful participation in the political process.
¶ 61 In their wisdom, the drafters of the 1970 Constitution foresaw just this problem and
fashioned a clear and specific mechanism to insure that the legislature could never have the
upper hand on the people of Illinois, in whose hands the sovereign power of this State rests.
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That mechanism is article XIV, section 3. In undertaking our constitutional duties, we, as
judges, are obliged to resolve any doubt as to the meaning of that provision in favor of the right
of the people to have a voice in government, as the drafters intended. I would honor that
obligation and permit the ballot initiative proposed here to go forward. The majority’s decision
to quash it is no less than the death knell of article XIV, section 3’s promise of direct
democracy as a check on legislative self-interest.
¶ 62 Today a muzzle has been placed on the people of this State, and their voices supplanted
with judicial fiat.
¶ 63 The whimper you hear is democracy stifled.
¶ 64 I join that muted chorus of dissent.
¶ 65 CHIEF JUSTICE GARMAN and JUSTICE KARMEIER join in this dissent.
¶ 66 JUSTICE KARMEIER, dissenting:
¶ 67 The issue in this case is whether the circuit court erred when it held that a redistricting
initiative petition submitted by Support Independent Maps (Independent Maps) and supported
by the number of signatures required by law may not be placed before Illinois voters at the
November 8, 2016, general election because it fails to comply with the requirements of article
XIV, section 3, of our state constitution (Ill. Const. 1970, art. XIV, § 3). The circuit court’s
judgment is before us on direct review after we granted an emergency motion by Independent
Maps to transfer the appeal from the appellate court on the grounds that the public interest
requires prompt adjudication by this court. See Ill. S. Ct. R. 302(b) (eff. Oct. 4, 2011).
Expedited briefing has been completed by the parties. In addition, a coalition of numerous
business, consumer and public interest organizations led by the League of Women Voters has
been granted leave to file a friend of the court brief in support of Independent Maps pursuant to
Illinois Supreme Court Rule 345 (eff. Sept. 20, 2010).6 The matter is now ready for a decision
on the merits. For the reasons that follow, the judgment of the circuit court should be reversed.
¶ 68 BACKGROUND
¶ 69 The Illinois Constitution of 1970 provides three methods by which it may be amended:
constitutional convention (Ill. Const. 1970, art. XIV, § 1); “[a]mendments by General
Assembly” (Ill. Const. 1970, art. XIV, § 2); and ballot initiatives (Ill. Const. 1970, art. XIV,
§ 3) Unlike the first two methods, ballot initiatives may only be used for amendments directed
at “structural and procedural subjects contained in Article IV” of the constitution (Ill. Const.
6
The specific organizations joining with the League of Women Voters in this proceeding are the
Small Business Advocacy Council Illinois, Illinois Campaign for Political Reform, CHANGE Illinois,
Champaign County Chamber of Commerce, McCormick Foundation, Union League Club of Chicago,
West Rogers Park Community Organization, Illinois Farm Bureau, Better Government Association,
Chicago Southside Branch NAACP, Independent Voters of Illinois-Independent Precinct Organization,
Rockford Chamber of Commerce, Naperville Area Chamber of Commerce, Illinois Chamber of
Commerce, Chicagoland Chamber of Commerce, Metropolitan Planning Council, Business and
Professional People for the Public Interest, Latino Policy Forum, Sargent Shriver National Center on
Poverty Law, Illinois Public Interest Research Group, Common Cause, Citizen Advocacy Center, the
Civic Federation, Commercial Club of Chicago, Chicago Embassy Church, and Illinois Hispanic
Chamber of Commerce.
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1970, art. XIV, § 3; Ill. Const. 1970, art. IV), a provision which pertains to the legislative
branch of our state government. Among these subjects is the process by which legislative and
representative districts are redrawn following each federal decennial census. Ill. Const. 1970,
art. IV, § 3.
¶ 70 In May 2016, Independent Maps—a “ballot initiative committee” duly organized in
accordance with section 9-1.8(e) of the Election Code (10 ILCS 5/9-1.8(e) (West
2014))—filed with the Secretary of State a petition proposing that article IV, section 3, of the
Illinois Constitution be amended to replace the current system for redrawing this state’s
legislative and representative districts with a new one. In its present form, section 3 of article
IV (Ill. Const. 1970, art. IV, § 3) provides:
“(a) Legislative Districts shall be compact, contiguous and substantially equal in
population. Representative Districts shall be compact, contiguous, and substantially
equal in population.
(b) In the year following each Federal decennial census year, the General Assembly
by law shall redistrict the Legislative Districts and the Representative Districts.
If no redistricting plan becomes effective by June 30 of that year, a Legislative
Redistricting Commission shall be constituted not later than July 10. The Commission
shall consist of eight members, no more than four of whom shall be members of the
same political party.
The Speaker and Minority Leader of the House of Representatives shall each
appoint to the Commission one Representative and one person who is not a member of
the General Assembly. The President and Minority Leader of the Senate shall each
appoint to the Commission one Senator and one person who is not a member of the
General Assembly.
The members shall be certified to the Secretary of State by the appointing
authorities. A vacancy on the Commission shall be filled within five days by the
authority that made the original appointment. A Chairman and Vice Chairman shall be
chosen by a majority of all members of the Commission.
Not later than August 10, the Commission shall file with the Secretary of State a
redistricting plan approved by at least five members.
If the Commission fails to file an approved redistricting plan, the Supreme Court
shall submit the names of two persons, not of the same political party, to the Secretary
of State not later than September 1.
Not later than September 5, the Secretary of State publicly shall draw by random
selection the name of one of the two persons to serve as the ninth member of the
Commission.
Not later than October 5, the Commission shall file with the Secretary of State a
redistricting plan approved by at least five members.
An approved redistricting plan filed with the Secretary of State shall be presumed
valid, shall have the force and effect of law and shall be published promptly by the
Secretary of State.
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The Supreme Court shall have original and exclusive jurisdiction over actions
concerning redistricting the House and Senate, which shall be initiated in the name of
the People of the State by the Attorney General.”
¶ 71 A central feature of the current version of article IV, section 3, is that initial responsibility
for formulating a redistricting plan lies with the General Assembly. In the 46 years since the
1970 Constitution was adopted, however, the General Assembly has managed to agree on such
a plan and redistrict itself only once, following the most recent federal census. Pub. Act 97-6
(eff. June 3, 2011). Following each of the other four decennial censuses, resort to a redistricting
commission has been required. People ex rel. Scott v. Grivetti, 50 Ill. 2d 156 (1971); Schrage v.
State Board of Elections, 88 Ill. 2d 87 (1981); People ex rel. Burris v. Ryan, 147 Ill. 2d 270,
293 (1992); Cole-Randazzo v. Ryan, 198 Ill. 2d 233 (2001); Beaubien v. Ryan, 198 Ill. 2d 294
(2001).7 Moreover, in three of the four instances when resort to the redistricting commission
has been needed, the commission itself has deadlocked. This has triggered the provision for
selection of an additional member to break the tie through the drawing of lots (see Schrage v.
State Board of Elections, 88 Ill. 2d at 92; People ex rel. Burris v. Ryan, 147 Ill. 2d 270, 277
(1991); Beaubien v. Ryan, 198 Ill. 2d at 299), a process which has been strongly criticized by
some members of this court (see People ex rel. Burris v. Ryan, 147 Ill. 2d at 308-14 (Bilandic,
J., dissenting, joined by Clark and Freeman, JJ.) (“[w]e should not hasten to gamble away the
government ‘of the People, by the People, and for the People’ on the turn of a card, roll of the
dice, or even random selection”)), though it has been upheld against federal constitutional
challenge in the federal courts (Winters v. Illinois State Board of Elections, 197 F. Supp. 2d
1110 (N.D. Ill. 2001), aff’d, 535 U.S. 967 (2002)). In each of the three instances, the resulting
map favored the political party with which the winner of the draw was affiliated.
¶ 72 In place of the current provision, the amendment to article IV, section 3, proposed by
Independent Maps would substitute an entirely new section 3. Under the new section 3, the
framework of the redistricting process would be fundamentally restructured. The General
Assembly, as an institution, would be removed completely from the redistricting process.
Instead, primary responsibility for redrawing legislative and representative districts would lie
with a new “Independent Redistricting Commission,” whose members are selected through a
process in which legislative leaders have only limited input and which, among other things,
eliminates the drawing of lots to break deadlocks.
¶ 73 The new system is not unlike the one adopted through a citizen initiative in Arizona with
the hope of “ending the practice of gerrymandering and improving voter and candidate
participation in elections” (internal quotation marks omitted) (Arizona State Legislature v.
Arizona Independent Redistricting Comm’n, 576 U.S. ___, 135 S. Ct. 2652, 2661 (2015)) and
7
The legislative redistricting commission formed after the General Assembly failed to pass a
redistricting bill following the 1970 census was ultimately determined by this court to have been
illegally constituted, but the redrawn map it formulated was nevertheless adopted by our court as a
“provisional” plan for use in 1972, with instructions that a “redistricting plan for subsequent elections
shall be adopted pursuant to the procedures outlined in section 3 of article IV of the 1970 constitution of
this State.” People ex rel. Scott v. Grivetti, 50 Ill. 2d at 168. When the General Assembly revisited the
matter, it simply adopted the same map formulated by the commission and approved by the court. See
Pub. Act 78-42 (eff. June 30, 1973); Robert M. Rogers, Illinois Redistricting History Since 1970, 3
Illinois General Assembly Legislative Research Unit Research Response (2008).
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recently upheld by the United States Supreme Court against a federal constitutional challenge
(id. at ___, 135 S. Ct. at 2661). Specifically, the provision proposed by Independent Maps
provides as follows:
“(a) The Independent Redistricting Commission comprising 11 Commissioners
shall adopt and file with the Secretary of State a redistricting plan for Legislative
Districts and Representative Districts by June 30 of the year following each Federal
decennial census. Legislative Districts shall be contiguous and substantially equal in
population. Representative Districts shall be contiguous and substantially equal in
population. The redistricting plan shall comply with Federal law. Subject to the
foregoing, the Commission shall apply the following criteria: (1) the redistricting plan
shall not dilute or diminish the ability of a racial or language minority community to
elect the candidates of its choice, including when voting in concert with other persons;
(2) the redistricting plan shall respect the geographic integrity of units of local
government; and (3) the redistricting plan shall respect the geographic integrity of
communities sharing common social and economic interests, which do not include
relationships with political parties or candidates for office. The redistricting plan shall
not either intentionally or unduly discriminate against or intentionally or unduly favor
any political party, political group or particular person. In designing the redistricting
plan, the Commission shall consider party registration and voting history data only to
assess compliance with the requirements in this subsection (a).
(b) For the purpose of conducting the Commissioner selection process, an
Applicant Review Panel comprising three Reviewers shall be chosen in the following
manner. Beginning not later than January 1 and ending not later than March 1 of the
year in which the Federal decennial census occurs, the Auditor General shall request
and accept applications to serve as a Reviewer. The Auditor General shall review all
applications and select a pool of 30 potential Reviewers. The Auditor General should
select applicants for the pool of potential Reviewers who would operate in an ethical
and non-partisan manner by considering whether each applicant is a resident and
registered voter of the State and has been for the four years preceding his or her
application, has demonstrated understanding of and adherence to standards of ethical
conduct and has been unaffiliated with any political party for the three years preceding
appointment. By March 31 of the year in which the Federal decennial census occurs,
the Auditor General shall publicly select by random draw the Panel of three Reviewers
from the pool of potential Reviewers.
(c) Beginning not later than January 1 and ending not later than March 1 of the year
in which the Federal decennial census occurs, the Auditor General shall request and
accept applications to serve as a Commissioner on the Independent Redistricting
Commission. By May 31, the Panel shall select a pool of 100 potential Commissioners.
The Panel should select applicants for the pool of potential Commissioners who would
be diverse and unaffected by conflicts of interest by considering whether each
applicant is a resident and registered voter of the State and has been for the four years
preceding his or her application, as well as each applicant’s prior political experience,
relevant analytical skills, ability to contribute to a fair redistricting process and ability
to represent the demographic and geographic diversity of the State. The Panel shall act
by affirmative vote of two Reviewers. All records of the Panel, including applications
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to serve on the Panel, shall be open for public inspection, except private information
about applicants for which there is no compelling public interest in disclosure.
(d) Within 45 days after the Panel has selected the pool of 100 potential
Commissioners, but not later than June 23 of the year in which the Federal decennial
census occurs, the Speaker and Minority Leader of the House of Representatives and
the President and Minority Leader of the Senate each may remove up to five of those
potential Commissioners. Thereafter, but not later than June 30, the Panel shall
publicly select seven Commissioners by random draw from the remaining pool of
potential Commissioners; of those seven Commissioners, including any replacements,
(1) the seven Commissioners shall reside among the Judicial Districts in the same
proportion as the number of Judges elected therefrom under Section 3 of Article VI of
this Constitution, (2) two Commissioners shall be affiliated with the political party
whose candidate for Governor received the most votes cast in the last general election
for Governor, two Commissioners shall be affiliated with the political party whose
candidate for Governor received the second-most votes cast in such election and the
remaining three Commissioners shall not be affiliated with either such political party
and (3) no more than two Commissioners may be affiliated with the same political
party. The Speaker and Minority Leader of the House of Representatives and the
President and Minority Leader of the Senate each shall appoint one Commissioner
from among the remaining applicants in the pool of potential Commissioners on the
basis of the appointee’s contribution to the demographic and geographic diversity of
the Commission. A vacancy on the Panel or Commission shall be filled within five
days by a potential Reviewer or potential Commissioner from among the applicants
remaining in the pool of potential Reviewers or potential Commissioners, respectively,
in the manner in which the office was previously filled.
(e) The Commission shall act in public meetings by affirmative vote of six
Commissioners, except that approval of any redistricting plan shall require the
affirmative vote of at least (1) seven Commissioners total, (2) two Commissioners
from each political party whose candidate for Governor received the most and
second[-]most votes cast in the last general election for Governor and (3) two
Commissioners not affiliated with either such political party. The Commission shall
elect its chairperson and vice chairperson, who shall not be affiliated with the same
political party. Six Commissioners shall constitute a quorum. All meetings of the
Commission attended by a quorum, except for meetings qualified under attorney-client
privilege, shall be open to the public and publicly noticed at least two days prior to the
meeting. All records of the Commission, including communications between
Commissioners regarding the Commission’s work, shall be open for public inspection,
except for records qualified under attorney-client privilege. The Commission shall
adopt rules governing its procedure, public hearings and the implementation of matters
under this Section. The Commission shall hold public hearings throughout the state
both before and after releasing the initial proposed redistricting plan. The Commission
may not adopt a final redistricting plan unless the plan to be adopted without further
amendment, and a report explaining its compliance with this Constitution, have been
publicly noticed at least seven days before the final vote on such plan.
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(f) If the Commission fails to adopt and file with the Secretary of State a
redistricting plan by June 30 of the year following a Federal decennial census, the Chief
Justice of the Supreme Court and the most senior Judge of the Supreme Court who is
not affiliated with the same political party as the Chief Justice shall appoint jointly by
July 31 a Special Commissioner for Redistricting. The Special Commissioner shall
adopt and file with the Secretary of State by August 31 a redistricting plan satisfying
the requirements set forth in subsection (a) of this Section and a report explaining its
compliance with this Constitution. The Special Commissioner shall hold at least one
public hearing in the State before releasing his or her initial proposed redistricting plan
and at least one public hearing in a different location in the State after releasing his or
her initial proposed redistricting plan and before filing the final redistricting plan with
the Secretary of State. All records of the Special Commissioner shall be open for public
inspection, except for records qualified under attorney-client privilege.
(g) An adopted redistricting plan filed with the Secretary of State shall be presumed
valid and shall be published promptly by the Secretary of State.
(h) The Supreme Court shall have original jurisdiction in cases relating to matters
under this Section.”
¶ 74 As noted earlier, the proponent of this amendment, Independent Maps, petitioned to bring
it before the voters for approval using the ballot initiative process in article XIV, section 3, of
the Illinois Constitution (Ill. Const. 1970, art. XIV, § 3). Article XIV, section 3, requires that
petitions to amend article IV be signed by “a number of electors equal in number to at least
eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial
election.” Ill. Const. 1970, art. XIV, § 3. In this case, that number was 290,216. Independent
Maps’ petition was signed by 563,974 people. The State Board of Elections determined that at
least 375,613 of those signatures were valid. The petition therefore surpassed the signature
requirement necessary for it to be placed before the voters.
¶ 75 On May 11, 2016, five days after Independent Maps submitted its petition to the State
Board of Elections, a “taxpayer’s suit” was filed in the circuit court of Cook County pursuant
to section 11-303 of the Code of Civil Procedure (735 ILCS 5/11-303 (West 2014)) to restrain
and enjoin the State Board of Elections and various other governmental agencies and officers
from disbursing public funds to determine whether the petition complies with the Election
Code (10 ILCS 5/1-1 et seq. (West 2014)) or to place the proposed amendment on the ballot for
consideration at the upcoming General Election in November 2016. Declaratory relief was also
requested.8
8
There is no dispute that a taxpayer action for declaratory and injunctive relief is an appropriate
vehicle for challenging the constitutionality of a proposed ballot initiative, nor is there any question that
the matter is ripe for consideration notwithstanding the fact that the State Board of Elections has not yet
officially declared Independent Maps’ petition valid nor certified the initiative for inclusion on the
ballot for the November election. Aside from the constitutional challenge mounted by plaintiffs, there
do not appear to be any impediments to placing the proposed amendment before the voters. Any
additional steps the Board of Elections must take to complete the process are purely administrative. See
Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 506-07 (1994), agreeing with the
dissent (id. at 515-16 (Harrison, J., dissenting, joined by Miller and Heiple, JJ.)).
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¶ 76 The action was brought in the name of a political committee called People’s Map; the
chairperson of People’s Map, John Hooker; Frank Clark, president and chairperson of an
organization known as the Business Leadership Council; various individual members of the
Business Leadership Council; and the leaders of four different ethnic, cultural, business and
community groups, all of whom were alleged to be Illinois residents and taxpayers. In addition
to the Board of Elections and its chairperson and members, the complaint named as defendants
Leslie Munger, the State Comptroller; Jesse White, the Secretary of State; Michael Frerichs,
the State Treasurer; David Orr, the County Clerk of Cook County; and the Board of Election
Commissioners for the City of Chicago, its chairperson, and members. By agreed order, Orr
and the Chicago Board of Election Commissioners, its chair and members were later dismissed
from the case without prejudice. They are no longer part of these proceedings.
¶ 77 Independent Maps was not included as a party. Shortly after the action was filed, however,
it sought and was granted leave to intervene. See 735 ILCS 5/2-408 (West 2014). The
organization’s intervention in support of its proposed ballot initiative has ample precedent in
our case law (see Chicago Bar Ass’n v. Illinois State Board of Elections, 161 Ill. 2d 502, 506
(1994) (per curiam) (hereinafter CBA II); Chicago Bar Ass’n v. State Board of Elections, 137
Ill. 2d 394, 396 (1990) (hereinafter CBA I); Coalition for Political Honesty v. State Board of
Elections, 65 Ill. 2d 453, 456 (1976) (per curiam) (hereinafter Coalition I)) and has not been
questioned.
¶ 78 Plaintiffs’ complaint contained 11 counts. Counts I through VI were directed against all
defendants, and all sought a declaratory judgment that the amendment to article IV, section 3,
of the Illinois Constitution (Ill. Const. 1970, art. IV, § 3) proposed by Independent Maps is
unconstitutional because it exceeds the scope of ballot initiatives permitted under article XIV,
section 3, of the Illinois Constitution (Ill. Const. 1970, art. XIV, § 3).
¶ 79 As noted earlier, article XIV, section 3, specifies that amendments using the ballot
initiative procedure “shall be limited to structural and procedural subjects contained in Article
IV [Ill. Const. 1970, art. IV, § 3],” the legislative article. Ill. Const. 1970, art. XIV, § 3. Count
V of plaintiffs’ complaint construed this provision as limiting the use of the ballot initiative
process to changes to the actual structure and procedure of the General Assembly itself.
Because Independent Maps’ proposal is addressed to redistricting and not how the General
Assembly is organized or “the process by which it adopts a law,” plaintiffs contended that it
falls outside the parameters of article XIV, section 3, and is impermissible.
¶ 80 Counts I through IV and VI alleged, in the alternative, that even if redistricting does qualify
as one of the “structural and procedural subjects contained in Article IV” within the meaning of
article XIV, section 3, the proposed ballot initiative is nevertheless invalid because it is not
“limited” to those subjects as article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3), requires.
According to count I, the initiative goes beyond the requisite limit by imposing additional
duties on the Auditor General beyond those specified in article VIII of the Illinois Constitution
(Ill. Const. 1970, art. VIII, § 3), which creates the office. Count II alleged that the initiative is
unconstitutional because it would alter the jurisdiction of the courts as specified in the judicial
article of the Illinois Constitution (Ill. Const. 1970, art. VI). Count III complained that the
initiative cannot proceed because, if adopted, it would impose new duties on the Chief Justice
of this court and the most senior Justice who is not affiliated with the same political party as the
Chief Justice. Count IV contended that the proposed initiative is fatally infirm because it would
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require members of this court to be affiliated with a political party when no such requirement
currently exists under the constitution. Count VI argued that the initiative goes beyond the
permissible limits of ballot initiatives by removing the power currently held by the Attorney
General to initiate actions concerning legislative redistricting.
¶ 81 Count VII also sought a declaratory judgment against all defendants. Unlike the previous
six counts, however, Count VII did not allege a violation of article XIV, section 3. Rather, it
called for rejection of Independent Maps’ ballot initiative on the grounds that it violates a
different provision of our state’s constitution, namely, article III, section 3 (Ill. Const. 1970,
art. III, § 3). Article III, section 3, provides that “[a]ll elections shall be free and equal.” Ill.
Const. 1970, art. III, § 3. Plaintiffs asserted that Independent Maps’ ballot initiative
contravenes that requirement by impermissibly combining separate and unrelated questions
into a single ballot proposition.
¶ 82 Counts VIII through XI advanced no additional substantive grounds for challenging the
validity of Independent Maps’ ballot initiative. They merely incorporated by reference the
allegations in the prior counts and, rather than seeking declaratory relief, requested a
permanent injunction to prevent the various defendant agencies and officials from disbursing
any more public funds to assess the sufficiency of Independent Maps’ petition or to place the
measure on the ballot for consideration by the voters at the November 8, 2016, general
election. Count VIII was directed against the State Board of Elections, its officers, and
members. Count IX was directed at the Board of Election Commissioners for the City of
Chicago and its officers and members as well as the County Clerk of Cook County. As noted
earlier, these defendants were later dismissed from the case. Correspondingly, count IX was
stricken and is no longer at issue. Count X was directed at the Comptroller and State Treasurer.
Count XI sought to enjoin the Secretary of State.
¶ 83 On May 20, 2016, following the requisite notice and hearing, the circuit court entered an
order allowing plaintiffs leave to file their complaint. Independent Maps promptly filed an
answer. A separate, joint answer was also filed by all of the defendant State agencies and their
members and the State officials. At the same time, plaintiffs moved for judgment on the
pleadings pursuant to section 2-615(e) of the Code of Civil Procedure (735 ILCS 5/2-615(e)
(West 2014)) asking that the court grant them the declaratory and injunctive relief requested in
their complaint. Independent Maps simultaneously filed a cross-motion for judgment on the
pleadings arguing that plaintiffs’ complaint should be dismissed with prejudice.
¶ 84 The circuit court conducted a hearing on the parties’ respective motions on June 30, 2016.
Approximately three weeks later, it granted plaintiffs’ motion with respect to counts I through
VII, which sought declaratory relief, and denied Independent Maps’ motion with respect to
those same seven counts, agreeing with plaintiffs that the proposed ballot initiative failed to
meet constitutional requirements. Because the parties had apparently not briefed the question
of whether injunctive relief should be entered, the court entered no judgment as to the three
remaining counts still left in the case, VIII, X, and XI, all of which had sought such relief. To
prevent the absence of a judgment as to those counts from impeding immediate review, the
court made an express written finding pursuant to Illinois Supreme Court Rule 304(a) that
there was no just reason for delaying enforcement or appeal of its judgment. Ill. S. Ct. R.
304(a) (eff. Mar. 8, 2016).
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¶ 85 Independent Maps filed an immediate appeal to the appellate court and requested that the
matter be placed on an accelerated docket. See Ill. S. Ct. R. 311(b) (eff. Mar. 8, 2016). It then
moved to transfer the case to this court pursuant to Illinois Supreme Court Rule 302(b) (eff.
Oct. 4, 2011), which provides for such transfers when the public interest requires prompt
adjudication of the matter by the Illinois Supreme Court. We allowed that motion on July 22,
2016, ordered that the appeal be taken directly to us, and set an expedited briefing schedule for
the parties. We also permitted a coalition consisting of the League of Women Voters and more
than two dozen other business, civic, and public interest groups to file an amicus brief in
support of Independent Maps. All briefs have now been received, and the matter has been
taken under submission without oral argument.
¶ 86 ANALYSIS
¶ 87 As grounds for its appeal, Independent Maps argues that the circuit court erred in granting
judgment on the pleadings in favor of plaintiffs pursuant to section 2-615(e) of the Code of
Civil Procedure (735 ILCS 5/2-615(e) (West 2014)) and that the court should instead have
allowed its cross-motion for judgment on the pleadings and dismissed plaintiffs’ complaint
with prejudice. The standards guiding our consideration of these arguments are well
established. Judgment on the pleadings is proper only where no genuine issue of material fact
exists and the moving party is entitled to judgment as a matter of law. Pekin Insurance Co. v.
Wilson, 237 Ill. 2d 446, 454 (2010). In ruling on a motion for judgment on the pleadings, a
court may consider only those facts apparent from the face of the pleadings, matters subject to
judicial notice, and judicial admissions in the record. All well-pleaded facts and all reasonable
inferences from those facts are taken as true. Gillen v. State Farm Mutual Automobile
Insurance Co., 215 Ill. 2d 381, 385 (2005); M.A.K. v. Rush-Presbyterian-St. Luke’s Medical
Center, 198 Ill. 2d 249, 255 (2001). We review the grant of judgment on the pleadings de novo.
Pekin Insurance Co. v. Wilson, 237 Ill. 2d at 454. De novo review is also appropriate here
because resolution of this case turns on the interpretation and application of the Illinois
Constitution, which is a question of law. Hawthorne v. Village of Olympia Fields, 204 Ill. 2d
243, 254-55 (2003).
¶ 88 As set forth earlier in this dissent, plaintiffs have advanced two basic lines of constitutional
attack against Independent Maps’ ballot initiative: (1) that it exceeds the scope of amendments
permitted through ballot initiative under article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3),
because it is not “limited to structural and procedural subjects contained in Article IV,” our
constitution’s legislative article (counts I through VI of plaintiffs’ complaint) and (2) that it
violates article III, section 3, of the constitution, which provides that “[a]ll elections shall be
free and equal” (Ill. Const. 1970, art. III, § 3), because it impermissibly combines into a single
ballot proposition separate and unrelated questions (count VII of plaintiffs’ complaint).
Contrary to the view taken by the circuit court and adopted by the majority, neither argument
can be sustained.
¶ 89 I will begin with plaintiffs’ challenge under article III, section 3 (Ill. Const. 1970, art. III,
§ 3), the so-called “free and equal” clause. This clause, which was also included in the Illinois
Constitution of 1870 (Ill. Const. 1870, art. II, § 18), has been construed by our court as
requiring, among other things, “that separate and independent questions may not be combined
in one [ballot] proposition in such a way as to place a voter in the position of having to vote for
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or against both questions when he [or she] might otherwise favor one but oppose the other.”
Village of Deerfield v. Rapka, 54 Ill. 2d 217, 223 (1973). When applying this clause in the
context of ballot initiatives, we have been careful to point out that the simple fact that a
proposition may touch on multiple issues will not render it improper for “free and equal”
purposes. Id. at 224. Nearly any proposition, after all, could be broken into simpler questions.
Coalition for Political Honesty v. State Board of Elections, 83 Ill. 2d 236, 258 (1980)
(per curiam) (hereinafter Coalition II). If inclusion of multiple components were sufficient, in
itself, to render a proposal fatally infirm under the “free and equal” clause, the ability of the
people of our State to exercise their right to change the law through ballot measures would
therefore be significantly compromised. That is therefore not the test. Rather, our precedent
makes clear that “free and equal” election concerns are triggered only if the ballot initiative
seeks to combine in a single proposition questions that are separate and unrelated. Id. at 254.
¶ 90 In evaluating whether or not ballot questions are “separate and unrelated,” we have held
that multiple questions “may be combined in a single proposition as long as they are
reasonably related to a common objective in a workable manner.” (Emphasis added.) Id. at
254, 256. If the various parts of the proposal have a reasonable, workable relationship to the
same subject, if they are germane to the accomplishment of a single objective, the proposal
may be submitted for approval or rejection by the voters. Id. at 257-58.
¶ 91 Independent Maps’ ballot initiative plainly meets this test. It proposes a single question
narrowly focused on a single objective: replacing the current system for redistricting set forth
in article IV, section 3, of the Illinois Constitution (Ill. Const. 1970, art. IV, § 3) with the new
redistricting system Independent Maps has proposed. All components of the proposition are
integrally related to that purpose and no other.
¶ 92 It is true, of course, that the proposed amendment at issue here does touch on a range of
matters, including the authority of various State officials and the jurisdiction of this court. As I
have just pointed out, however, the mere fact that a proposition may touch on multiple issues
does not render it infirm for “free and equal” purposes. The critical inquiry is whether the
various components are directed at accomplishing the same objective. In this case, they are.9
¶ 93 Indeed, the initiative’s components are not only all related to a single, unifying objective,
they are also integrally related to one another. They are essential pieces of an overall
framework designed to remedy the various problems perceived by the proponents with the
current redistricting system. This is an all-in-one, take-it-or-leave-it proposition. And because
9
In arguing for a contrary conclusion, plaintiffs note, for example, that the amendment proposed by
the initiative would eliminate an express reference to compactness when describing the criteria to be
followed in the redistricting process. Plaintiffs contend that this change has nothing to do with the
purpose of the initiative. That is manifestly incorrect. The purpose of the initiative is to change the
current redistricting system, and the criteria that guide how districts are to be determined—something
the current version of article IV expressly addresses—are fundamental to that process. Plaintiffs’
argument is also flawed because it fails to recognize that criteria (2) and (3) in subsection (a) of the
proposal, dealing with the geographic integrity of governmental units and communities sharing
common social and economic interests, reflect considerations similar to those underlying the current
compactness requirement. Plaintiffs have not cited and I have not found any authority that would
support the proposition that a free and equal clause problem is created simply because a ballot initiative
expresses a corresponding objective in a different way than the provision it seeks to change.
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the proposed new system would operate in a fundamentally different way than the system
presently in place, it simply does not lend itself to being implemented in steps. The voters can
choose to accept or reject it, but it would make no sense to require them to vote on it in
installments.
¶ 94 Putting aside the logistical challenges, which would be formidable, dividing up the
proposal’s constituent parts for separate consideration by the voters could be disastrous. As
Independent Maps has pointed out in its brief,
“[i]t would take numerous separate votes to consider just the procedural issues that
plaintiffs claimed *** were ‘separate and unrelated’—votes concerning the role of the
Auditor General, the role of the Supreme Court, the role of the Attorney General, and
the basic Independent Commission structure. If the provisions regarding the Auditor
General failed, there would be no coherent process for choosing the Independent
Redistricting Commission. And if the provisions regarding the Supreme Court failed,
there would be no back-up mechanism in the event the Commission could not agree.”
The result could well be a hybrid system that no one wanted, that no one had ever suggested,
and that could not possibly work. The confusion and uncertainty in the electoral process that
would follow from such a development is manifest.
¶ 95 Decades ago we held the combination of related questions in a single proposition is not
constitutionally prohibited where presentation of the questions separately might yield
incongruous results and create uncertainty and confusion through a “legislature in an
intermediate stage of development.” See Coalition II, 83 Ill. 2d at 255. For the reasons just
described, that would certainly be the case here.
¶ 96 Finally, I note that to the extent the amendment proposed by Independent Maps may be
complex, it is because the very process the amendment seeks to change is itself complex. The
redistricting mechanism set forth in article IV, section 3 (Ill. Const. 1970, art. IV, § 3), is an
elaborate one containing multiple steps and involving members of all three branches of
government. Alternative redistricting measures cannot be substituted without touching on
these same areas, and the terms of the amendment are no more varied or wide-ranging than the
terms of the current redistricting rules set out in the version of article IV, section 3, presently in
force. To hold that the multifaceted nature of the proposal dooms it under the “fair and equal”
clause of the Illinois Constitution would, under these circumstances, be tantamount to holding
that the provisions of section 3 of the legislative article of our constitution (Ill. Const. 1970, art.
IV, § 3) are not subject to amendment through the ballot initiative notwithstanding the express
authorization to use the ballot initiative process to amend the legislative article, which the
people of Illinois reserved for themselves under article XIV, section 3 (Ill. Const. 1970, art.
XIV, § 3), when they ratified the 1970 Constitution. In effect, the constitution’s provisions for
amendment of the legislative article through the ballot initiative process would be nullified by
the constitution’s “free and equal” clause.
¶ 97 This is a construction of the law we cannot countenance. It is incumbent upon us to give
meaning to every section and clause of the constitution, and whenever different parts of the
constitution might appear to be in conflict, it is our obligation to harmonize them, if
practicable. One clause will not be allowed to defeat another if by any reasonable construction
the two can be made to stand together. Oak Park Federal Savings & Loan Ass’n v. Village of
Oak Park, 54 Ill. 2d 200, 203 (1973). I would therefore hold that the circuit court erred when it
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granted judgment for the pleadings in favor of plaintiffs and against Independent Maps on
count VII of plaintiff’s complaint alleging violation of the “free and equal” clause. That count
should have been dismissed.
¶ 98 I turn then to counts I through VI of plaintiffs’ complaint. Those counts, as described
earlier, were directed against all defendants, and all sought a declaratory judgment that the
amendment to article IV, section 3, of the Illinois Constitution (Ill. Const. 1970, art. IV, § 3)
proposed by Independent Maps in its ballot initiative is not valid and should not be placed
before the voters because it does not fall within the scope of initiative measures permitted by
article XIV, section 3, of the Illinois Constitution (Ill. Const. 1970, art. XIV, § 3).
¶ 99 Article XIV, section 3, specifies, in pertinent part:
“Amendments to Article IV of this Constitution may be proposed by a petition
signed by a number of electors equal in number to at least eight percent of the total
votes cast for candidates for Governor in the preceding gubernatorial election.
Amendments shall be limited to structural and procedural subjects contained in Article
IV. *** If the petition is valid and sufficient, the proposed amendment shall be
submitted to the electors at that general election and shall become effective if approved
by either three-fifths of those voting on the amendment or a majority of those voting in
the election.” Ill. Const. 1970, art. XIV, § 3.
¶ 100 The parties agree that the viability of counts I through VI of plaintiffs’ complaint turns
solely on the question of how the provisions of article XIV, section 3, should be construed. In
general, when construing the provisions of the Illinois Constitution, we apply the same
principles applicable to the construction of statutes. People ex rel. Chicago Bar Ass’n v. State
Board of Elections, 136 Ill. 2d 513, 526 (1990). Our objective when construing a constitutional
provision is to determine and effectuate the common understanding of the citizens who
adopted it. In doing so, we will look to the natural and popular meaning of the language used as
it was understood when the constitution was adopted, as well as “ ‘the object to be attained or
the evil to be remedied.’ ” Walker v. McGuire, 2015 IL 117138, ¶ 16 (quoting People ex rel.
Chicago Bar Ass’n, 136 Ill. 2d at 526). If the language of a constitutional provision is
unambiguous, we will give it effect without resort to other aids for construction. When the
meaning of a provision is not clear from its language, however, “we will consult the drafting
history of the provision, including the debates of the delegates to the constitutional
convention.” Id.
¶ 101 Illinois courts have grappled with the language of article XIV, section 3, on multiple
occasions since the 1970 Constitution was adopted. Unlike the majority here, they have not
found its meaning clear and unambiguous. To the contrary, in each instance, resort to the
history of the provision, including the debates at the constitutional convention regarding its
meaning and purpose, has been necessary. See Coalition I, 65 Ill. 2d 453; Coalition II, 83 Ill.
2d 236; Lousin v. State Board of Elections, 108 Ill. App. 3d 496 (1982); CBA I, 137 Ill. 2d 394
(1990); CBA II, 161 Ill. 2d 502. This case is no different.
¶ 102 Most lawmaking in the United States occurs through representative bodies elected by the
people. Direct lawmaking by the people themselves was virtually nonexistent at the time the
United States Constitution was drafted. It did not gain a foothold in our country until the turn of
the twentieth century. Since then, two principal forms of direct legislation have been adopted,
the initiative and the referendum. The referendum serves as a negative check on action by the
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legislature, allowing the voters to petition to refer legislative action to the voters for approval
or rejection at the polls. The initiative, by contrast, allows the voters to adopt positive
legislation independently of their state’s representative assemblies by petitioning to place
proposed statutes or constitutional amendments directly before their fellow voters for adoption
or rejection at the polls. It has been said that the referendum corrects sins of commission by
elected representative bodies, while the initiative corrects the sins of omission by such bodies.
Arizona State Legislature, 576 U.S. at ___, 135 S. Ct. at 2659-60.
¶ 103 For most of this state’s history, the initiative process could not be used to amend our
constitution. Originally, the only way the constitution could be changed was by convening a
constitutional convention. Ill. Const. 1818, art. IV, § 2. Eventually a second method was added
under which amendments could also be proposed by the General Assembly for approval by the
voters. Lawrence Schlam, State Constitutional Amending, Independent Interpretation, and
Political Culture: A Case Study in Constitutional Stagnation, 43 DePaul L. Rev. 269, 326
(1994). It was not until the Sixth Illinois Constitutional Convention in 1970 that amending the
constitution through a direct ballot initiative was proposed as a third alternative. CBA I, 137 Ill.
2d at 398.
¶ 104 Although the initiative does not have a counterpart in the federal constitution, the United
States Supreme Court has recognized that
“invention of the initiative was in full harmony with the Constitution’s conception of
the people as the font of governmental power. As Madison put it: ‘The genius of
republican liberty seems to demand . . . not only that all power should be derived from
the people, but that those intrusted with it should be kept in dependence on the people.’
[The Federalist], No. 37, at 223.
The people’s ultimate sovereignty had been expressed by John Locke in 1690, a
near century before the Constitution’s formation:
‘[T]he Legislative being only a Fiduciary Power to act for certain ends, there
remains still in the People a Supream [sic] Power to remove or alter the Legislative,
when they find the Legislative act contrary to the trust reposed in them. For all
Power given with trust for the attaining an end, being limited by that end, whenever
that end is manifestly neglected, or opposed, the trust must necessarily be forfeited,
and the Power devolve into the hands of those that gave it, who may place it anew
where they shall think best for their safety and security.’ Two Treatises of
Government § 149, p. 385 (P. Laslett ed. 1964).
Our Declaration of Independence, ¶2, drew from Locke in stating: ‘Governments are
instituted among Men, deriving their just powers from the consent of the governed.’
And our fundamental instrument of government derives its authority from ‘We the
People.’ U. S. Const., Preamble. As this Court stated, quoting Hamilton: ‘[T]he true
principle of a republic is, that the people should choose whom they please to govern
them.’ Powell v. McCormack, 395 U.S. 486, 540-541 (1969) (quoting 2 Debates on the
Federal Constitution 257 (J. Elliot ed. 1876)).” Arizona State Legislature, 576 U.S. at
___, 135 S. Ct. at 2674-75.
¶ 105 Our court recently addressed these principles in the context of Illinois government. In In re
Pension Reform Litigation, 2015 IL 118585, ¶¶ 77-78, we explained:
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“Unlike Great Britain, where the sovereignty of the nation resides in Parliament,
‘[u]nder our institutions this sovereignty or transcendent power of government resides
in or with the people.’ Hawthorn v. People, 109 Ill. 302, 305-06 (1883). See 33A Ill. L.
and Prac. State Government § 3 (2012). Sovereignty is lodged in the people (People ex
rel. Dickinson v. Board of Trade, 193 Ill. 577, 589 (1901)), and the people are the
sovereign power (Field v. People ex rel. McClernand, 3 Ill. 79, 110-11 (1839)). The
people therefore possess all power originally, including all legislative power. Harder’s
Fire Proof Storage & Van Co. v. City of Chicago, 235 Ill. 58, 68 (1908).
As the ultimate sovereign, the people can, ‘within constitutional restrictions
imposed by the Federal constitution, delegate the powers of government to whom and
as they please. They can withhold or [e]ntrust it, with such limitations as they choose.’
Hawthorn v. People, 109 Ill. at 306; accord City of Eastlake v. Forest City Enterprises,
Inc., 426 U.S. 668, 672 (1976) (‘all power derives from the people’ who can delegate it
to representative instruments which they create or reserve to themselves the power to
deal directly with matters which might otherwise be assigned to the legislature). ***
Munn v. Illinois, 94 U.S. 113, 124 (1876).”
¶ 106 The drafters of the 1970 Illinois Constitution acted in accordance with these principles
when they formulated the initiative provision set forth in article XIV, section 3. In some
jurisdictions, the initiative power is broad. Under the Arizona Constitution, for example, any
law that may be enacted by the legislature may be enacted by the people directly through the
initiative process. Arizona State Legislature, 576 U.S. at ___, 135 S. Ct. at 2660-61. Article
XIV, section 3, which was ratified by the people of our state, is more focused. It pertains
specifically to changes to the constitution’s legislative article, article IV. The reason for this, as
we noted more than 30 years ago, is that “[t]he majority of delegates [to the Convention]
appear to have believed that legislative reform presented unique problems and required a
special provision.” Coalition II, 88 Ill. 2d at 244.
¶ 107 In the course of the convention’s debate regarding the desirability and scope of ballot
initiatives, Delegate Perona elaborated:
“[O]ne important area in which I think [initiatives] would be very beneficial would be
in regard to the legislative article. I am convinced, from serving on the Legislative
Committee, that neither by the process of legislative amendments or by the process of
Constitutional Convention are we going to get any substantial change in our present
legislative article. Now whether we need change or not, I am not arguing that point. But
sometime, possibly, in the next 100 years, we may need some change in the legislative
article; and if we are dependent upon an amendment suggested by the legislature to
reduce its size or to abolish cumulative voting or possibly to change to a unicameral
legislature, I don’t think we are going to get it done. I would also feel that it is unlikely
that the Constitutional Convention—because of its ties, in many cases, or obligations to
members of the legislature and in saying these things, I am not being critical of the
legislature or of any of its members; I just think we have to recognize that all of us are
affected by our point of view, and that this is a necessary and inherent ingredient in
human nature. And so if we are to leave open the possibility of effective change in the
legislative article, I think we have to have something like the initiative ***.” 2 Record
of Proceedings, Sixth Illinois Constitutional Convention 583 (hereinafter Proceedings).
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¶ 108 During the same discussion, Delegate Garrison followed the foregoing observations with
similar points bearing even more directly on the issue at hand in this case. He stated:
“The initiative would provide a safety valve through which the people may act
directly if sufficiently aroused. It would furnish a salutary effect on the legislature. For
example, we could hardly expect the legislature ever to propose a Constitutional
amendment to reduce the size of its membership, to establish a reapportionment
commission comprised entirely of nonlegislative members, or perhaps even to
establish single-member districts.” (Italics in original, bold added for emphasis.) 2
Proceedings 584.
¶ 109 The specific provision which would ultimately become article XIV, section 3, was
addressed by Delegate Perona later in the convention. He stated that the purpose of this
provision, which he described as providing for “initiatives limited to the legislative article,”
were as follows:
“One, to give the people an opportunity to participate in government, but on a limited
basis in an attempt to prevent some of the abuses that have occurred in some areas. ***
This provision has been structured to apply only to the legislative article and to be
limited to the area of government which it is most likely will not be changed in the
constitution by amendment. The legislature, being composed of human beings, will be
reluctant to change the provisions of the constitution that govern its structure and
makeup ***.
*** [A]nd also I think the General Assembly will be more—have its ear tuned to a
greater degree as to what the people desire, because they will know that if they do not
suggest amendments that the people would desire, that it can be done in another manner
***.” 4 Proceedings 2911.
¶ 110 When the convention’s Committee on the Legislature subsequently made its report on
what became article XIV, section 3, it echoed those sentiments. The report explained:
“The primary reason for offering a limited constitutional initiative proposal for the
Legislative Article is quite simple: members of the General Assembly have a greater
vested interest in the legislative branch of government than any other branch or phase
of governmental activity.
Cognizant of this fundamental fact of life, the Legislative Committee proposes that
the people of the State of Illinois reserve the right to propose amendments by the
initiative process to the Legislative Article. ***
In addition to this primary reason for proposing a limited form of Constitutional
initiative, the Legislative Committee believes:
—(1) the greatest virtue in having this provision rests in the potential for keeping
the General Assembly more responsive on matters directly and vitally affecting them;
—(2) voters can better decide on the merits of proposals suggesting changes in the
Legislative Article since they are not directly and personally involved; and
—(3) this is a method to circumvent a legislature which might be dominated by
interests opposing legislative changes.” 6 Proceedings 1399-1400 (quoted in Coalition
II, 83 Ill. 2d at 245).
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¶ 111 In sum, article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3), “was drafted and adopted as
a check on the legislature’s self-interest” (Coalition II, 83 Ill. 2d at 247) and a means by which
the people could overcome “ ‘a reluctance on the part of the General Assembly to propose
changes in its own domain’ ” (id. at 246 (quoting 7 Proceedings 2677-78)). Our forefathers
emphasized the importance of structuring the legislative branch of government so as to support
in the members “ ‘an habitual recollection of their dependence on the people.’ ” Arizona State
Legislature, 576 U.S. at ___, 135 S. Ct. at 2677 (quoting James Madison, The Federalist No.
57, at 350). Article IV, section 3, of the Illinois Constitution and article XIV, section 3, through
which article IV may be amended, directly serve that critical goal.
¶ 112 When courts are called upon to intervene in the initiative process, as we have been here,
“they must act with restraint, trepidation and a healthy suspicion of the partisan who would use
the judiciary to prevent the initiative process from taking its course.” Committee for a Healthy
Future, Inc. v. Carnahan, 201 S.W.3d 503, 507 (Mo. 2006) (en banc). The need for caution
and restraint may be especially compelling in cases such as this one, challenging an initiative
related to legislative redistricting, for it is a core principle of republican government “ ‘that the
voters should choose their representatives, not the other way around.’ ” Arizona State
Legislature, 576 U.S. at ___, 135 S. Ct. at 2677 (quoting Mitchell N. Berman, Managing
Gerrymandering, 83 Tex. L. Rev. 781 (2005)).
¶ 113 Consistent with the foregoing principles, our court has previously held that when
interpreting and applying articles IV, section 3, and XIV, section 3, of the Illinois Constitution
(Ill. Const. 1970, art. IV, § 3; art. XIV, § 3), we must avoid unduly technical and/or restrictive
constructions that would tend to defeat their purpose. Rather, those provisions “are to be
construed so as to effectuate the basic purpose of article XIV, section 3, to provide a workable
initiative scheme unfettered by restraints which unnecessarily inhibit the rights which article
XIV confers.” Coalition II, 83 Ill. 2d at 247.
¶ 114 When the court first adopted this standard in 1980, we noted that the initiative procedure
was then relatively new to Illinois and that there were no Illinois cases directly on point. We
therefore looked to relevant authority from sister states, as we frequently do in such
circumstances. In developing the standard, we cited, with approval, decisions from other
jurisdictions that had “carefully protected constitutionally provided initiative plans from
unnecessarily burdensome legislative restrictions.” Id. at 248. Our decision quoted at length an
earlier opinion from the Supreme Court of Oklahoma, In re Initiative Petition No. 23, State
Question No. 38, 127 P. 862, 866 (Okla. 1912), which admonished “ ‘[t]he right of direct
legislation in the people must be administered by the officers charged with that duty in such
manner as to make it operative. If technical restrictive constructions are placed upon the laws
governing the initiation and submission of these measures, the purpose and policy of the
people in establishing the same will be entirely defeated ***.’ ” Coalition II, 83 Ill. 2d at 249.
Decisions from Nebraska and Arizona to similar effect were also invoked. Id. at 248-50.
¶ 115 The standard is a liberal one. Courts from Maine to Michigan to Hawaii have so recognized
when interpreting constitutional provisions applicable to the initiative process in their
respective states. League of Women Voters v. Secretary of State, 683 A.2d 769, 771 (Me. 1996)
(“[w]hen the people enact legislation by popular vote, we construe the citizen initiative
provisions of the Maine Constitution liberally in order to facilitate the people’s exercise of
their sovereign power to legislate”); Welch Foods, Inc. v. Attorney General, 540 N.W.2d 693,
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695 (Mich. Ct. App. 1995) (“[i]nitiative provisions are liberally construed to effectuate their
purposes and facilitate rather than hamper the exercise of reserved rights by the people”);
Ruggles v. Yagong, 353 P.3d 953, 969 (Haw. 2015) (“direct democracy and the initiative
process have had considerable influence on public policy, and they remain as one of the most
precious rights of our democratic process. In order to protect this fundamental democratic
right, ‘courts are required to liberally construe [the initiative process] and accord it
extraordinarily broad deference’ ”). Other decisions to the same effect are legion. See, e.g.,
Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999); Blocker v. Sewell, 75 S.W.2d 658, 660
(Ark. 1934); Pedersen v. Bennett, 288 P.3d 760, 762 (Ariz. 2012); Marblehead v. City of San
Clemente, 277 Cal. Rptr. 550, 553 (Ct. App. 1991); In re Statement of Sufficiency for 1997-98
# 40 (Medical Use of Marijuana), 968 P.2d 112, 118-19 (Colo. 1998) (en banc); Billings v.
Buchanan, 555 P.2d 176, 178 (Colo. 1976) (en banc); Chouteau County v. Grossman, 563
P.2d 1125, 1128 (Mont. 1977); Rothenberg v. Husted, 129 Ohio St. 3d 447, 2011-Ohio-4003,
953 N.E.2d 327, ¶ 5; State ex rel. Carson v. Kozer, 217 P. 827, 829 (Or. 1923). Plaintiffs have
not cited and I have not found any authority from Illinois or elsewhere holding otherwise.
¶ 116 It is true, of course, that when assessing ballot initiatives, we must keep in mind that if the
constitution has placed limitations on the initiative power, such limitations are also an
expression of the people’s sovereign power and must likewise be obeyed. See Committee for a
Healthy Future, Inc. v. Carnahan, 201 S.W.3d at 507. Reservation of the right to propose an
initiative regarding eligibility to serve as Governor, for example, could scarcely be interpreted
as contemplating the right to bring an initiative regarding income tax. With respect to whatever
particular sphere or spheres of power the people have chosen to reserve for themselves,
however, courts must act with deference and restraint to insure that such power may be
exercised as the people intended. A contrary view, i.e., that a provision reserving sovereign
authority to amend the constitution through initiative must be read in a narrow, technical, and
restrictive fashion, would require us to assume that when they reserved their sovereign powers,
it was the hope of the people that the courts would prevent them from actually exercising those
powers except in the most limited possible way. Such a view is incompatible with the very
concept of popular sovereignty under the American constitutional order. It has no foundation
in the history or text of the Illinois Constitution of 1970. It is why we have held that the
provisions of article XIV, section 3, “are to be construed so as to effectuate the basic purpose
of [those provisions], to provide a workable initiative scheme unfettered by restraints which
unnecessarily inhibit the rights which article XIV confers.” Coalition II, 83 Ill. 2d at 247.
¶ 117 Applying the standards our court has established for construing article XIV, section 3 (Ill.
Const. 1970, art. XIV, § 3), to the present case, I agree with Independent Maps that the circuit
court erred when it concluded that plaintiffs were entitled to judgment on the pleadings on
counts I through VI of their complaint, which sought a declaratory judgment that the
amendment to article IV, section 3 (Ill. Const. 1970, art. IV, § 3), proposed by Independent
Maps is unconstitutional because it exceeds the scope of ballot initiatives that article XIV,
section 3 (Ill. Const. 1970, art. XIV, § 3), permits. Contrary to plaintiffs’ contentions,
Independent Maps’ proposed ballot initiative does conform to article XIV, section 3. Judgment
on the pleadings should therefore have been granted in favor of Independent Maps as to counts
I through VI of plaintiffs’ complaint, just as it should have been granted in favor of
Independent Maps with respect to count VII.
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¶ 118 The objection asserted in count V of plaintiffs’ complaint as to why Independent Maps’
proposed ballot initiative fails to meet the requirements of article XIV, section 3, was different
from and more basic than the theory they advanced in counts I through IV and VI. I shall
therefore consider the viability of that count separately and first.
¶ 119 Count V was premised on the notion that when article XIV, section 3, states that
amendments through the initiative process “shall be limited to structural and procedural
subjects contained in Article IV,” what it really means is that such amendments must pertain to
changes to section 1 of Article IV, which specifies that “[t]he legislative power is vested in a
General Assembly consisting of a Senate and a House of Representatives, elected by the
electors from 59 Legislative Districts and 118 Representative Districts” (Ill. Const. 1970, art.
IV, § 3). There is no question that Independent Maps’ initiative, if approved, would not alter
anything contained in section 1. The power of the General Assembly and how that body is
organized by houses and districts would remain unchanged. Plaintiffs asserted that the
initiative therefore falls completely outside the scope of article XIV, section 3. Plaintiffs
similarly contended in count V of their complaint that to qualify under article XIV, section 3,
an initiative must address “the process by which [the legislature] adopts a law.” Because
Independent Maps’ proposal does not do that either, plaintiffs asserted that it is unauthorized
for that reason as well.
¶ 120 There is no support for plaintiffs’ contentions in either the language or the history of article
XIV, section 3 (Ill. Const. 1970, art. XIV, § 3). Article XIV authorizes use of ballot initiatives
to amend article IV, the legislative article, with the sole proviso that such initiatives “shall be
limited to structural and procedural subjects contained in Article IV.” Ill. Const. 1970, art.
XIV, § 3. Article IV contains no fewer than fifteen different sections: (1) legislative power and
structure, (2) legislative composition, (3) legislative redistricting, (4) election, (5) sessions,
(6) organization, (7) transaction of business, (8) passage of bills, (9) veto procedure,
(10) effective date of laws, (11) compensation and allowances, (12) legislative immunity,
(13) special legislation, (14) impeachment, and (15) adjournment. Under a straightforward
reading of article XIV, section 3, any structural and procedural subject contained in article IV
is eligible for change through a ballot initiative. Article XIV contains no qualifying language
that would restrict its applicability only to matters contained in section 1, the provision on
which plaintiffs rest their argument, or to the process by which the legislature enacts a law. To
so limit it would therefore require us to rewrite article XIV, section 3, to add restrictions that
the drafters did not include and the citizens did not approve when the 1970 Constitution was
ratified. That, of course, is something we may not do. In re Pension Reform Litigation, 2015 IL
118585, ¶ 75.
¶ 121 Plaintiffs seek support for their argument in the title of section 1, which includes the word
“structure.” I note, however, that if use of the word structure in the title of section 1 meant that
section 1 is the sole “structural” subject in article IV, as plaintiffs contend, it would likewise
follow that use of the word “procedure” in section 9 (veto procedure) would make the contents
of that provision the article’s sole “procedural” subject. Plaintiffs, however, make no such
argument. To the contrary, and as I have pointed out, they think article XIV, section 3’s
reference to “procedural” is limited to “the process by which the legislature adopts a law.” That
subject is covered primarily by section 8 of article IV (Ill. Const. 1970, art. IV, § 8), not section
9. Plaintiffs’ position is therefore inconsistent.
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¶ 122 More than that, it overlooks basic principles of statutory construction. While an
enactment’s title can sometimes provide guidance in resolving ambiguities (see Home Star
Bank & Financial Services v. Emergency Care & Health Organization, Ltd., 2014 IL 115526,
¶ 40), our interpretation cannot turn on particular words or phrases viewed in isolation. We
must construe the enactment as a whole. In re E.B., 231 Ill. 2d 459, 466 (2008).
¶ 123 Even a cursory review of article IV’s fifteen sections reveals that structural and procedural
matters are not the exclusive province of sections 1 and 9. To the contrary, a full range of
matters, from the purely procedural (e.g., the number of times a bill must be read before it may
be enacted) to the purely structural (legislative composition), may be found throughout the
various provisions of article IV. To limit the reach of article XIV, section 3, in the manner
suggested by plaintiffs therefore has no support in the language of the constitution itself.
¶ 124 It is also completely unsupported by the record of the debates at the convention that led to
article XIV, section 3’s adoption. As presented to the Convention by the Committee on the
Legislative Article, article XIV, section 3, addressed “subject matter specifically contained in
the Legislative Article [art. IV]” and was targeted at “the basic qualities of the legislative
branch—namely, structure, size, organization, procedures, etc.” 6 Proceedings 1401. It was not
limited to any particular section or sections of the legislative article.
¶ 125 This was intentional. As Delegate Perona explained,
“[W]e intend to limit this to the sections—to the sections presently—the type of
sections presently in the legislative article. We toyed with the idea or considered the
idea of naming the specific sections and limiting it to those; but you run into problems
with that, also. *** I think the courts could iron out those questions and protect against
abuse.” (Emphasis added.) 4 Proceedings 2711.
¶ 126 In response to Perona’s remarks, Delegate Tomei stated: “I take it it is not the intention of
the committee to limit the initiative just to those things presently contained in the legislative
article.” Id. Delegate Perona answered:
“Yes. That’s correct. We—that’s the problem. If you get too specific with the
limitation, you inhibit the possibility of change within the legislative setup. *** So
we’ve attempted to do it by the explanation as to what our purposes are, and then to
leave the question of abuse to the courts.” Id. at 2711-12.
¶ 127 The delegates then explored the scope of changes that could be accomplished through the
initiative process under article XIV, section 3. Adoption of a unicameral legislature was the
first example given. Such a change was recognized as falling within the scope of the provision
even though it would introduce a new form of organization entirely different from the one in
the current legislative article and affect many of the things addressed by the article. Moreover,
the scope of the change was identified by Delegate Perona as “the major reason that we could
not limit [article XIV, section 3] to certain sections [of the legislative article].” Id. at 2712.
¶ 128 Delegate Tomei then asked if the same would be true with a range of other matters,
including “apportionment,” which was the term initially used in article IV, section 3, to refer to
legislative redistricting, and whether those matters would likewise “be subject to initiative
under [proposed article XIV, section 3]. 10 Id. Delegate Perona not only responded in the
10
The term was changed from apportionment to redistricting at the recommendation of the
Committee on Style, Drafting and Submission. 6 Proceedings 1540-44.
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affirmative but stated “[t]hose are the critical areas, actually.” (Emphasis added.) Id. In light
of this, there can be no serious question that the drafters of our constitution regarded the
redistricting provision of the legislative article to be an altogether proper subject of change
through the ballot initiative process.
¶ 129 In urging us to reach a contrary conclusion, plaintiffs invoke this court’s prior decision in
CBA II, 161 Ill. 2d 502. Plaintiffs assert, as they did in the circuit court, that under that
decision, redistricting cannot qualify as a structural and procedural subject of article IV and
that Independent Maps’ proposal does not meet the subject-matter requirement for a ballot
initiative set forth in article XIV, section 3, of the Illinois Constitution (Ill. Const. 1970, art.
XIV, § 3). The circuit court rejected this contention, and so do I. The initiative at issue in CBA
II concerned term limits, not redistricting. As I have just discussed, redistricting was
specifically recognized by the drafters of the constitution as not only a proper but a critical
matter that would be subject to amendment through article XIV, section 3’s ballot initiative
process. No analogous circumstance was noted or considered by this court when dealing with
the term limit question in CBA II. For that reason alone, CBA II is distinguishable.
¶ 130 I note, moreover, that the focus of the court’s discussion in CBA II was whether the
provisions of the term limit initiative challenged there could be considered both “structural and
procedural” or even either of those things within the meaning of article XIV, section 3. In
resolving that question, the court simply followed its prior decision in Coalition I, 65 Ill. 2d
453, which concluded that to pass muster under article XIV, section 3, an initiative must
propose changes that are both structural and procedural in nature, something the initiative
challenged in Coalition I did not do and did not purport to do. Id. at 466-72.
¶ 131 In the course of its discussion in Coalition I, this court gave as examples of initiatives that
would qualify as both structural and procedural ones involving the conversion from a
bicameral to a unicameral legislature or for the conversion from multiple- to single-member
legislative districts. Id. at 466 (quoted in CBA II, 161 Ill. 2d at 529). Nothing in Coalition I
suggests, however, that the subject matter of the two examples are the only things that may be
the sole topics of initiative authorized by article XIV, section 3. So restrictive a construction of
that provision would, moreover, be incompatible with the history of the provision, with the
intention of the drafters, and with the language they used and that the voters approved. It would
also directly conflict with our obligation to construe constitutional provisions authorizing
ballot initiatives so as to effectuate rather than defeat the people’s exercise of their sovereign
power to legislate. The circuit court therefore erred when it granted judgment on the pleadings
in favor of plaintiffs and against Independent Maps on count V of plaintiff’s complaint. As
with count VII, that count should have been dismissed.
¶ 132 I turn then to the remaining counts of plaintiffs’ complaint, I through IV and VI. Those
counts alleged, in the alternative, that even if redistricting qualifies as one of the “structural and
procedural subjects contained in Article IV” within the meaning of article XIV, section 3, the
proposed ballot initiative is nevertheless invalid because it is not “limited” to those subjects, as
article XIV, section 3 (Ill. Const. 1970, art. XIV, § 3), requires. As set forth earlier in this
dissent, count I alleged that the initiative goes beyond the requisite limits by imposing
additional duties on the Auditor General beyond those specified in article VIII of the
constitution (Ill. Const. 1970, art. VIII), which creates the office. Count II alleged that the
initiative is unconstitutional because it would alter the jurisdiction of the courts as specified in
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the judicial article of the constitution (Ill. Const. 1970, art. VI, § 9). Count III complained that
the initiative cannot proceed because, if adopted, it would impose new duties on the Chief
Justice of this court and the most senior Justice who is not affiliated with the same political
party as the Chief Justice. Count IV contended that the proposed initiative is fatally infirm
because it would require members of this court to be affiliated with a political party when no
such requirement currently exists under the constitution. Finally, count VI argued that the
initiative goes beyond the permissible limits of ballot initiatives by removing the power
currently held by the Attorney General to initiate actions concerning legislative redistricting.
None of these contentions withstands scrutiny.
¶ 133 As a preliminary matter, a number of plaintiffs’ assertions regarding the effect of the
proposed ballot initiative are simply incorrect. For example, contrary to the claim made in
count II of plaintiffs’ complaint, the ballot initiative, if adopted, would not impact the
jurisdictional provisions of the judicial article (Ill. Const. 1970, art. VI) at all. The provision of
the constitution specifying this court’s current jurisdiction over actions concerning
redistricting, which is original and exclusive, is not the judicial article but rather is a subject of
the legislative article. To the extent there is any mention of jurisdiction over redistricting in the
judicial article, it is in the context of the jurisdiction of circuit courts, and the provision
defining circuit court jurisdiction simply states that those courts have original jurisdiction of all
justiciable matters “except when the Supreme Court has original and exclusive jurisdiction
relating to redistricting.” Ill. Const. 1970, art. VI, § 9.
¶ 134 By its terms, this jurisdictional grant is entirely conditional. If Independent Maps’ ballot
initiative were to be approved by the voters and this court’s jurisdiction over redistricting was
thereby changed from “original and exclusive” to simply “original” in article IV, there would
therefore be no conflict at all with article VI, section 9, of the Illinois Constitution. The
contingency necessary to trigger the exception noted above would simply be removed. Article
VI, section 9 would still make complete sense and be fully operative precisely as currently
written.
¶ 135 That such is the case reflects, we think, how carefully and thoughtfully the 1970
Constitution was crafted. By placing the Illinois Supreme Court’s jurisdiction over
redistricting in the legislative article and thereby making it among the matters subject to
amendment through the ballot initiative process under article XIV, section 3, the drafters
understood that the scope of this court’s jurisdiction over such matters, and by extension, the
jurisdiction of the lower courts, might change. The conditional nature of the circuit court’s
jurisdiction as set forth in the judicial article is an expression of that awareness and a means for
insuring that the process for amending the legislative article could be given full effect without
the need to revise the judicial article at the same time.
¶ 136 Also erroneous is the claim made by plaintiffs in count IV of the complaint that the ballot
initiative is fatally defective because the part of the proposed process that would require
participation by two members of this court in the event the redistricting commission failed to
adopt a redistricting plan would impermissibly impose a political affiliation requirement on
supreme court judges. Contrary to plaintiffs’ view, the proposal would not alter current judicial
eligibility requirements in any way. One does not need to be affiliated with a political party to
serve as a judge of the supreme court. Ill. Const. 1970, art. VI, § 11. Supreme, appellate, and
circuit judges are, however, selected for office through partisan elections. Ill. Const. 1970, art.
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VI, § 12. While it is theoretically possible for a judge to run and be elected to the supreme court
as an independent, we know of no instance in the history of our court where that has occurred.
It has certainly not happened since adoption of the judicial article of 1964, the precursor of the
judicial article in the 1970 Constitution. Accordingly, while political affiliation is not required,
every member of this court in modern times has, in fact, had one.
¶ 137 It is true that judges who seek to remain on the bench following expiration of their terms
may seek retention through an election process in which their names appear on the ballot
“without party designation” (Ill. Const. 1970, art. VI, § 12(d)). Their original party affiliation,
however, remains a matter of public record. And while some judges join this court through
assignments or appointments to fill vacancies that occur between elections, those
appointments are temporary and relatively brief. Ill. Const. 1970, art. VI, § 12(c). Because the
Chief Justice is determined, by custom, through seniority, and because the proposed initiative
would involve only the Chief Justice and the next most senior Justice not affiliated with the
same political party as the Chief Justice, it would be all but impossible for those two positions
to be occupied by temporary appointees. And even those appointees would have an
ascertainable party affiliation if they had been elected to lower judicial office prior to joining
this court. But even if they did not, and even if it were somehow possible for the most senior
members of this court to have risen to their positions without any prior political affiliation, it
still would not matter. The only requirement under the proposed ballot initiative is that the
member of the court who acts with the Chief Justice in carrying out the terms of the procedure
when the redistricting commission fails to adopt a plan “not be affiliated with same political
party as the Chief Justice.” If the Chief Justice were an independent, or if the next most senior
member of the court were an independent, or even if all the members of the court were
independents and therefore had no party affiliation, the proposed system would still work. That
is so because the members of the court who would be participating could not be said to be
affiliated with the same political party, and that is all the amendment proposed by the initiative
would require. The initiative therefore cannot be assailed on the grounds that it would
improperly impose a political affiliation requirement on members of the supreme court.
¶ 138 In reaching this conclusion, I am mindful that difficulties in application of the proposed
amendment could arise if it were somehow to happen that all seven members of the court
ended up belonging to the same political party. In light of modern Illinois history and politics,
such an alignment seems so unlikely as to be impossible. But even if there were a theoretical
possibility that the process proposed by plaintiffs’ initiative could one day prove problematic
in practice, that is an entirely separate question from the one before us, which is simply
whether the initiative meets the requirements of article XIV, section 3. So long as the proposal
is legally valid, its wisdom and flaws are a matter for the voters to decide. They are not a
legitimate basis for us to prevent the voters from even considering the matter. Count IV of
plaintiffs’ complaint therefore fails as a matter of law as well.
¶ 139 In count III of their complaint, plaintiffs protested that the very act of involving the Chief
Justice and another member of this court in the process when the redistricting commission fails
to adopt a plan also crosses an impermissible constitutional line in that it imposes additional
responsibilities on members of this court beyond those specified in the judicial article (Ill.
Const. 1970, art. VI) and the rules of this court. As is clear from the text of the current version
of article IV, section 3 (Ill. Const. 1970, art. IV, § 3), however, this court already plays an
integral role in the redistricting process when the redistricting commission fails to file a plan.
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The authority for our involvement in that process emanates entirely from article IV, section 3,
itself. It is unrelated to anything in the judicial article or our rules. The proposed initiative
would therefore have no spillover effects on any other provisions of the constitution. Its effect
would be confined to the court’s role under section 3 of article IV. While the nature of that role
would be different, the change is therefore not subject to challenge on the grounds that it is not
“limited to structural and procedural subjects contained in Article IV” as article XIV, section 3,
requires. To hold otherwise would mean that the provisions of the legislative article could
never be altered unless the supreme court’s role in redistricting remain fixed precisely as it is
today. That is not what article XIV, section 3, says, and it is incompatible with what the
drafters intended when article XIV, section 3, was placed before the voters for ratification.
Count III of plaintiffs’ complaint is therefore meritless as a matter of law and should also have
been dismissed on the pleadings.
¶ 140 Count VI of plaintiffs’ complaint, which challenged the ballot initiative based on its
removal of an express reference to the Attorney General, is similarly flawed. Article V, section
15, of the Illinois Constitution (Ill. Const. 1970, art. V, § 15) addresses the office of Attorney
General. It specifies that the Attorney General is the legal officer of the State and “shall have
the duties and powers that may be prescribed by law.” The current version of article IV, section
3 (Ill. Const. 1970, art. IV, § 3), confers on the Attorney General one such duty, namely,
responsibility for initiating actions concerning redistricting, and specifies how the action is to
be brought (in the name of the People of the State of Illinois) and where it is to be filed (in the
supreme court). The ballot initiative proposed by Independent Maps eliminates the reference to
the Attorney General and the related instruction regarding how the action is to be styled, along
with removing language giving the supreme court exclusive jurisdiction over such actions.
There is nothing constitutionally suspect about that. Assigning responsibility for who is to
bring an action and specifying how it is to be styled and where it should be filed are
quintessentially procedural aspects of the redistricting process and therefore place the changes
squarely within the bounds authorized by article XIV, section 3, for ballot initiatives. The
changes, moreover, have no purpose and would have no effect beyond redistricting. Article V,
section 15, would not be not altered in any way. Its provision that the Attorney General shall
have the duties prescribed by law would remain fully intact. The only thing changing would be
what the law prescribes. That is in no way problematic as a constitutional matter. If a
procedure-related duty may be conferred by article IV, section 3, it necessarily follows that it
can be removed through an amendment to that provision. To hold otherwise would mean that
the right to amend the legislative article through the ballot initiative process reserved to the
people under article XIV, section 3, could not be fully realized.
¶ 141 That leaves only count I of plaintiffs’ complaint, which alleged that the initiative cannot be
said to be limited to procedural and structural subjects contained in article IV because, if
adopted, it would confer on the Auditor General additional duties not presently assigned to that
office, namely, responsibility for assisting in selection of the new Applicant Review Panel that
would be established under the proposed amendment.11 This contention, as with the others I
have just discussed, must be rejected.
11
Under the amendment, the Auditor General would also be involved in requesting and accepting
applications to serve as commissioner of the new Independent Redistricting Commission. Count I of
plaintiffs’ complaint does not challenge this aspect of the Auditor General’s participation.
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¶ 142 It is true that, unlike this court and the Attorney General, the Auditor General is not
presently involved in the redistricting process. The constitution references the Auditor General
only in article VIII, section 3 (Ill. Const. 1970, art. VIII, § 3), which mandates that the Auditor
General “shall conduct the audit of the public funds of the State” and “shall make additional
reports and investigations as directed by the General Assembly.” Involving the Auditor
General in the redistricting process in the matter contemplated by Independent Maps’ proposal
would not fall within this charge. Because action by constitutional officers that is not
(1) authorized by constitutional provisions creating the position or defining the officer’s duties
or (2) by legislation promulgated under authority of such constitutional provisions is
impermissible (City of Chicago v. Holland, 206 Ill. 2d 480, 489-90 (2003)), the constitution
must therefore be changed before the Auditor General could perform the responsibilities that
would be assigned to him or her under the new system for redistricting.
¶ 143 The amendment proposed by Independent Maps would supply the requisite authority for
the Auditor General’s participation in the process. That the additional authorization would
appear in a different constitutional provision than the one in which the Auditor General’s basic
duties are defined poses no constitutional problem. Nothing in the 1970 Constitution requires
that all of a constitutional officer’s responsibilities be set out in a single article, and such is
certainly not the case with respect to the redistricting-related duties of this court and the
Attorney General under the current redistricting mechanism.
¶ 144 Moreover, the additional duties the Auditor General would assume under the amendment
would not alter any of the responsibilities the Auditor General already possesses under article
VIII. To the extent the Auditor General’s duties would change, the change would pertain solely
and exclusively to the redistricting process, which, as set forth earlier, is a structural and
procedural subject of article IV and therefore subject to amendment under article XIV, section
3 (Ill. Const. 1970, art. XIV, § 3). The change would have no effect at all beyond that limited
sphere.
¶ 145 When the delegates to the 1970 Constitution drafted article XIV, section 3, as they did,
they were mindful that attempts could be made to circumvent their intention and use the
initiative process as a substitute for legislative action by the General Assembly or to make
substantive changes to the constitution unrelated to legislative article. See Coalition I, 65 Ill.
2d at 468; CBA I, 137 Ill. 2d at 401-04. That is why they made clear that any amendment
proposed under article XIV, section 3, “would be required to be limited to subjects contained in
the Legislative Article, namely matters of structure and procedure and not matters of
substantive policy.” 6 Proceedings 1400. In no sense would inclusion of the Auditor General in
the redistricting process run afoul of these concerns. It is not an attempt to bypass the General
Assembly’s authority to enact legislation, nor is it a subterfuge to alter 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.
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¶ 146 I close my discussion with a few additional observations. As noted earlier in this dissent,
the drafters of article XIV, section 3, and the citizens of this state who adopted it acted with a
clear and unmistakable appreciation of two things: (1) that the structural and procedural
subjects set forth in the legislative article, including the structure of the redistricting
commission and the procedure for implementing redistricting as set forth in article IV, section
3, might one day need revision and (2) that the General Assembly could not be counted on to
overcome its self-interest and propose the necessary changes itself. Under plaintiffs’ reading of
article IV, section 3, however, the promise of any real change to the present redistricting
system would be rendered illusory. Because all of the current actors in the process also have
roles outside of the redistricting process, any proposed change in the cast of characters or any
significant alteration of their responsibilities would, by plaintiffs’ logic, mean that the proposal
was not limited to a structural and procedural subject of article IV and was therefore beyond
the constitutionally authorized scope of the ballot initiative process. The potential for a
redistricting commission comprised entirely of nonlegislative members, first expressed during
the constitutional convention (2 Proceedings 584), would be lost. The only changes that would
be permissible would be those of the most limited and inconsequential type, and the only tools
available for revision of the redistricting provisions in article VI, section 3, would be those
already present in those provisions. If all that can be done is rearrange the pieces, it is difficult
to see how meaningful reform could ever be accomplished.
¶ 147 There can be no serious dispute that the drafters and adopters of article XIV, section 3,
intended for that provision to allow citizens to actually accomplish something through ballot
initiatives. Plaintiffs’ reading of the law, however, would allow them to accomplish nothing.
Ballot initiatives would be pointless. To adopt plaintiffs’ interpretation would therefore offend
one of the most basic precepts of construction, namely, that whenever possible, the
constitution and statutes of this state should be construed so that no part of them is rendered
meaningless and every word and phrase is given effect. Solon v. Midwest Medical Records
Ass’n, 236 Ill. 2d 433, 440-41 (2010); City of Springfield v. Edwards, 84 Ill. 626, 640 (1877)
(Dickey, J., dissenting). More importantly, and as indicated throughout this dissent, it would
require us to abandon our responsibility to construe article XIV, section 3, so as to effectuate
that provision’s basic purpose and “provide a workable initiative scheme unfettered by
restraints which unnecessarily inhibit the rights which article XIV confers.” Coalition II, 83 Ill.
2d at 247.
¶ 148 As an attempt to refute the conclusion that plaintiffs’ construction of article IV, section 3,
would make impossible any meaningful ballot initiative regarding redistricting, an argument
has been made that a ballot initiative that simply repealed the existing redistricting scheme and
replaced it with instructions for the General Assembly to formulate and implement a new
redistricting mechanism could pass muster under article XIV, section 3. That argument,
however, is also untenable.
¶ 149 First, it would have the effect of stripping away powers and duties of officials who have
responsibilities defined in other parts of the constitution. As I have just pointed out, that is a
consequence which, under plaintiffs’ logic, would doom the proposal on the grounds that it
was not limited to a structural and procedural subject of article IV and was therefore beyond
the constitutionally authorized scope of the ballot initiative process.
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¶ 150 Second, as discussed earlier, article XIV, section 3, was born of the recognition that there
were certain changes to the constitution that the legislature, through self-interest, simply could
not be counted on to propose itself. Redistricting was one such area. If the only valid ballot
initiative regarding redistricting were one which placed responsibility for redistricting back in
the hands of the General Assembly, eliminating direct citizen participation in the redistricting
process, the entire point of article XIV, section 3, would be defeated. Such a scheme could,
moreover, mean the end of redistricting altogether, for once the existing system was repealed
and the General Assembly was left with responsibility for implementing a new redistricting
system through legislation, it might elect to simply do nothing. If that were to happen, this
court would have no authority to compel the General Assembly to act. The only remedy, apart
from another constitutional amendment, would be election of a new General Assembly willing
to carry out its constitutional duties. Fergus v. Kinney, 333 Ill. 437, 440-41 (1928).
¶ 151 In its opinion, the majority states that “we trust that the constitutional confines of article
XIV, section 3, are sufficiently broad to encompass more than one potential redistricting
scheme.” Supra ¶ 43. This observation is unquestionably true. The confines are broad enough
to include a range of possible systems for carrying out redistricting. The problem is that under
the contorted and restrictive approach urged by the majority, none of these potential
redistricting schemes could possibly pass constitutional muster. All would fail just as this one
has failed and for the same reasons. If that were not so, someone, at some point in this
litigation, would surely have been able to come up with an example of a redistricting initiative
that would actually meet the test the majority has set. No one, including and especially the
majority, has been able to do so. The promise my colleagues offer is therefore an empty one.
¶ 152 In Cole-Randazzo v. Ryan, 198 Ill. 2d at 244, Justice Thomas warned in his dissent that
“gone forever is the Illinois voter’s confidence that *** the highest court of this State will
ensure that the process of approving and adopting [new legislative maps] will be equitable,
balanced, and fair.” Id. (Thomas, J., dissenting, joined by Garman, J.). If that was not true then,
it will certainly be true once the majority’s opinion is filed. If we do not permit this ballot
initiative to go forward in accordance with the law, our authority over the redistricting process
and, indeed, our status as an institution, will forever be suspect.
¶ 153 Finally, nothing in what I have written here should be construed as an expression of
support for the proposed ballot initiative. Whether the initiative should be adopted is a question
for the voters and the voters alone to decide. Our role is here is limited to determining whether
Independent Maps’ otherwise valid initiative meets the requirements of article XIV, section 3,
and is therefore eligible for inclusion on the ballot at the November 8, 2016, general election.
In the exercise of that responsibility, I would hold that it does.
¶ 154 CONCLUSION
¶ 155 For the foregoing reasons, the circuit court erred when it granted judgment on the pleadings
in favor of plaintiffs on counts I through VII of their complaint and denied the cross-motion for
judgment on the pleadings filed by Independent Maps. Counts I through VII should have been
dismissed with prejudice. The judgment of the circuit court should therefore be reversed.
Because the remaining counts of plaintiffs’ complaint all depend on the viability of the claims
asserted in counts I through VII, there would be no need for remand. Those counts also fail as
a matter of law. Pursuant to the power conferred on us by Illinois Supreme Court Rule 366(a)
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(eff. Feb. 1, 1994) “to make any other and further orders and grant any relief *** that the case
may require,” we should dismiss those counts with prejudice as well. I therefore dissent.
¶ 156 CHIEF JUSTICE GARMAN and JUSTICE THOMAS join in this dissent.
DISSENT UPON DENIAL OF REHEARING
¶ 157 JUSTICE KARMEIER, dissenting:
¶ 158 Independent Maps moved to recall the mandate in order to permit it to seek rehearing
pursuant to Illinois Supreme Court Rule 367 (eff. Aug. 15, 2016). Although our court granted
Independent Maps leave to file its petition for rehearing, the majority then summarily denied
the petition without further comment or consideration. Independent Maps’ petition set forth
many reasons why reconsideration should have been allowed. I will mention only a few.
¶ 159 First, the majority’s opinion all but ignored the substantive discussion of plaintiffs’ various
claims and Independent Maps’ response. It based its entire judgment on a single
argument—involvement of the Auditor General—and left every other point unaddressed. This
was so notwithstanding the fact that I addressed every objection in my lengthy dissent.
¶ 160 The dissent laid out why Independent Maps’ proposal passed constitutional muster in
accordance with the intent of the drafters of the Illinois Constitution of 1970, setting out in
detail not only the rationale but the words of the delegates supporting the dissent’s position.
Rehearing would give the majority the opportunity to rebut the dissent’s rationale.
¶ 161 I believe the majority would have considerable difficulty doing so, for long before the
constitutional convention at which article XIV, section 3, was adopted, our court actually
considered and rejected the very interpretive approach on which the majority’s decision here is
based. Distilled to its essence, the majority’s position is that Independent Maps’ initiative fails
to meet the article XIV, section 3, requirement that proposed amendments “be limited to
structural and procedural subjects contained in Article IV” (Ill. Const. 1970, art. XIV, § 3)
because it assigns additional duties to the Auditor General, whose current responsibilities are
set forth in a different part of the constitution, namely article VIII, section 3 (Ill. Const. 1970,
art. VIII, § 3). The majority’s notion that the proposed amendment was doomed because it also
impacted a different section of the constitution is nearly identical to one advanced more than a
hundred years earlier in a case challenging the validity of a constitutional amendment placed
before the voters pursuant to article XIV of the 1870 Illinois Constitution (Ill. Const. 1870, art.
XIV), the predecessor to article XIV of the 1970 Constitution, which is at issue here. The case
was City of Chicago v. Reeves, 220 Ill. 274 (1906), and the amendment challenged there
changed article IV, the legislative article, to confer legislative power on the General Assembly
to establish local municipal government in the city of Chicago. Included in that change were,
among other things, provisions that would authorize creation of new judicial offices and
abolition of existing ones, matters which would affect article VI of the 1870 Constitution, the
counterpart to the present judicial article, and an additional provision that would permit the city
to accrue indebtedness, thus altering a provision of article IX of the 1870 Constitution, dealing
with revenue. Id. at 283.
¶ 162 When an attempt was made to establish a municipal court in Chicago as the amendment
permitted, a taxpayer action was brought to challenge the legislation on the grounds that the
constitutional amendment, which provided authorization for the legislation, exceeded the
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bounds for amendments permitted by the 1870 Constitution because it was not limited to
article IV, the legislative article, but also changed articles VI and IX. Surveying numerous
decisions from sister states as well as prior case law from Illinois, we found it “obvious” that
while amendments to a particular article of the constitution “must relate to and be germane to
the subject-matter of the article proposed to be amended,” if
“the effect of the amendment of a particular article is to change other articles of the
constitution, and such changes are germane and only incidental to the object sought to
be accomplished by the express amendment, then the fact that articles of the
constitution other than the article expressly amended are changed does not render the
express amendment invalid by reason of the fact that other articles of the constitution
are changed to bring the constitution into a harmonious whole, after an amendment has
been incorporated into the constitution as a part of a particular article thereof.”
(Emphasis added.) Id. at 290.
¶ 163 It could not be otherwise, this court reasoned, because “[a]ny other view would be so
narrow as to prohibit *** in many, if not in all, cases” amendments to the constitution,
“as the several articles of the constitution are so far connected and dependent upon each
other that a change in any article, generally, if not universally, has the effect to produce
changes of more or less importance in one or more of the articles of the constitution
other than that which is expressly amended.” Id. at 284.
¶ 164 We made clear, of course, that
“if the effect of the amendment of a particular article of the constitution is to work
changes in other articles of the constitution, and there is no connection between the
object sought to be accomplished by the express amendment to a particular article and
the changes wrought in other articles of the constitution,—that is, the changes worked,
by implication, in other articles than that expressly amended are entirely foreign to the
object sought to be accomplished by the express amendment,—a different result would
follow.” Id. at 290.
¶ 165 We also cautioned, however, that when assessing whether a proposed amendment satisfies
constitutional requirements governing such amendments, courts should proceed with
deference and restraint. Proposed amendments should not be invalidated “unless it clearly
appear[s] that the limitations imposed [by the constitution] upon the grant of the power *** to
propose amendments to the constitution had been abused, [for] the limitations imposed upon
the power *** to propose amendments should not be so construed as to defeat the power itself,
except in a case falling clearly within the terms of the limitation.” Id. at 290-91. In accordance
with these principles, the court held that the challenged amendment was, in fact, valid.
¶ 166 Drafters of constitutional provisions are presumed to know existing law and constitutional
provisions and to have drafted their provisions accordingly. Kanerva v. Weems, 2014 IL
115811, ¶ 41. Although Reeves was decided 64 years before the constitutional convention at
which article XIV, section 3, was proposed, the case was frequently cited throughout the
intervening period and remained good law when the convention convened. See, e.g., People
ex rel. Engle v. Kerner, 32 Ill. 2d 212, 218 (1965). To interpret article XIV, section 3, without
reference to the reasoning and result in Reeves would therefore require that we either remove
that provision from its historical context or else rewrite history itself. Neither is a permissible
mode of constitutional interpretation.
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¶ 167 While the challenge in Reeves involved a different mechanism for amending the
constitution and arose in a different posture than the controversy before us, the reasoning and
analysis are fully applicable to this case. The object sought to be accomplished by Independent
Maps’ proposed amendment is an overhaul of the current mechanism for carrying out
redistricting, which is unquestionably a structural and procedural subject of article IV. None of
the proposed changes, including inclusion of the Auditor General, can possibly be dismissed as
“unconnected” or “entirely foreign” to that objective. To the contrary, to the extent the
initiative, if adopted, would result in a change to the Auditor General’s duties or affect any
other provision of the constitution, implicitly or directly, the change would pertain solely to the
redistricting process and have no purpose except as it relates to redistricting. Put another way,
those other matters, including the duties of the Auditor General, are in no sense the subject of
the proposed amendment. The “subject” for purposes of article XIV, section 2, is the
mechanism for redistricting. The assignment of responsibilities to the Auditor General and the
other changes that would result from adoption of the amendment are merely ancillary to and
supportive of the amendment’s core purpose, changing article IV, section 3 (Ill. Const. 1970,
art. IV, § 3). Accordingly, here as in Reeves, the fact that “articles of the constitution other than
the article expressly amended are changed does not render the express amendment invalid.”
Reeves, 220 Ill. at 290.
¶ 168 Rather than taking the opportunity to speak up and explain why it believes the initiative
proposed by Independent Maps here must nevertheless be rejected, the majority simply said,
without comment, “denied.”
¶ 169 Second, the majority suggested that some alternative plan involving a nonlegislative actor
other than the Auditor General could be formulated that would meet the requirements of article
XIV, section 3. But Independent Maps, in its petition for rehearing, succinctly and correctly
points out that the majority’s approach would preclude the assignment of any new role in the
redistricting process to any nonlegislative actor, not just the Auditor General, because any such
changes would be barred by precisely the same barriers erected by the majority to rationalize
invalidation of the proposal advanced here. If the majority believes that such is not the case, it
should take this opportunity on rehearing to explain why.
¶ 170 Finally, Independent Maps urges the court to reconsider its refusal to consider the other
substantive points in the case because it believes that we should, at a minimum, provide some
guidance for formulation of future initiatives. I agree, particularly in light of the importance of
the rights at stake. Without the critical clarification that rehearing would provide, the
majority’s disposition not only fails to provide a road map, it erects a roadblock that seems
insurmountable.
¶ 171 For all of the foregoing reasons and for the reasons set forth in my original dissent,
rehearing should have been granted. I therefore dissent from the denial of rehearing.
¶ 172 CHIEF JUSTICE GARMAN and JUSTICE THOMAS join in this dissent.
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