People Ex Rel. Burris v. Ryan

JUSTICE HEIPLE, also concurring:

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

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

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

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

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

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

The simple facts of the instant case are that reapportionment failed in the General Assembly which caused the case to be referred to the Illinois Legislative Redistricting Commission. When the Commission, which was evenly divided between Republicans and Democrats, failed to agree, a tie-breaker additional member was drawn and added to the Commission. The Republicans won the draw. The Commission then adopted a Republican-sponsored map which was challenged by the Attorney General, et al., in this lawsuit. The Constitution provides that the supreme court shall have original and exclusive jurisdiction over actions concerning redistricting the House and Senate, which shall be initiated in the name of the People of the State by the Attorney General. Ill. Const. 1970, art. IV, §3(b).

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

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

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

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

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

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

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

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