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The
tie-breaker provision
has become the start of state redistricting
by
Aaron Chambers
The game had just begun. Secretary of State
Jesse White reached into a stovepipe hat, a replica of one
worn by Abraham Lincoln, and pulled out Michael Bilandic’s
name, giving the Democrats an upper hand in shaping the boundaries
of the state’s senator-ial and representative districts
for the next 10 years.
Democrats, who gained a fifth member on the
special commission convened to redraw those districts, cheered.
Republicans, left with four members, solemnly made their way
out the doors of the Old State Capitol in Springfield.
This tie-breaking procedure, mandated by the
state Constitution when both the legislature and the commission
fail to strike a deal on a map, was supposed to be an incentive
for bipartisan agreement. The Constitution’s drafters
figured lawmakers wouldn’t want to risk losing the whole
game in a lottery.
But in the three decades that have passed since
the Constitutional Convention, the tie-breaker has become,
for all practical purposes, the start of decennial redistricting.
Rather than negotiate a map that could be adverse to their
wishes, lawmakers wait to see which party wins the lottery.
Then they go to court and fashion their arguments for or against
that outcome.
“[The tie-breaker] has not achieved what
delegates thought it would achieve,” says Dawn Clark
Netsch, a Chicago Democrat and delegate to the convention.
A great deal is at stake. Whichever party controls
the process can design district boundaries to its advantage.
Basically, mapmakers try to create as many “safe”
districts as possible in an effort to preserve or win a majority
in the legislature. At the same time, they try to destabilize
areas of the state controlled by the other party, creating
“battlefield” districts where incumbents are forced
to run against each other, move or drop out.
The Democrats, who control the House, will try
to preserve their majority and, presumably, try to take over
the Senate in the next election. The Republicans, who control
the Senate, will try to preserve their majority and may attempt
to gain seats in the House.
The Democrats still face obstacles this year.
At this writing, representatives of both major political parties
were in federal court arguing over whether the tie-breaker
provision is even constitutional. And Republicans were expected
to challenge in court the map proposed last month by the Democrat-controlled
commission. Still, as far as lawmakers at last month’s
ceremony were concerned, the Democrats won the first round.
The state Constitution requires lawmakers to
redesign the districts in the year following each decennial
census to account for shifts in population. If they can’t
decide on a map, a special commission must take a crack. And
if commission members can’t agree, then the secretary
of state must conduct a lottery to select one of two individuals,
not of the same political party, to serve as the commission’s
ninth member. One party then has enough votes to end the stalemate.
The tie-breaker provision has been invoked in
three of four legislative remaps since the new Constitution
was implemented in 1970. Only the 1971 remap was accomplished
without it. This year, the Republican and Democratic legislative
leaders didn’t bother trying to agree on a map. Nor did
the remap commission’s initial eight members, who are
appointed, two each, by the four leaders. Instead, both parties
waited for Secretary of State White to pick between Bilandic,
a Democrat, and Republican Benjamin Miller, both of whom are
retired Illinois Supreme Court justices. Apparently, winning
the upper hand in a lottery is worth the risk.
“The problem [with compromise],” says
Steve Brown, spokesman for House Speaker Michael Madigan,
a Chicago Democrat, “is trying to find agreement, first
among yourselves and then with the opposite political party,
on a proposal where there are going to be some significant
changes.
“Nobody seems to really get it yet that,
even with a Democratic majority on the commission, trying
to develop a map that will satisfy a lot of Demo-crats and
all the other court-related issues is not an easy task.”
Still, criticism of the tie-breaker provision,
and the legislature’s increased reliance on it, appears
to be growing. State officials, including White, a Democrat,
and some lawmakers attacked the provision before and after
this year’s drawing, arguing it’s bad policy for
control of the commission to hinge on a lottery.
Gov. George Ryan, who stood in White’s
shoes as secretary of state, has called the lottery “bad
process and bad government” that doesn’t serve the
state’s citizens well. Ten years ago, as Ryan prepared
to draw one of two names, the Republican and former legislator
reminded the legislature that “the whole point of the
legislative process is to achieve compromise.”
“Legislators can’t just flip a coin
or pull an answer out of a hat anytime they’re forced
to face a tough decision,” he said. “So, let me
say that I hope that we really don’t have to do this
in another 10 years.”
To that end, Ryan in 1992 formed a commission
to study redistricting procedures. It’s mission: to find
a better process for redrawing legislative boundaries. In
1999, that commission, headed by Jeffrey Ladd, recommended
that each chamber of the legislature draw its own map. Under
those guidelines, each chamber would need agreement from three-fifths
of its members, meaning proposed Senate and House maps would
need bipart-isan support. If lawmakers in either chamber couldn’t
agree on a map, the commission recommended officials use “an
impartial computer program” to draw a map for them.
“The members of the commission believe
this may constitute a ‘tie-breaker’ which will prove
to be a real incentive for bipartisan agreement,” the
commission wrote in its report. The legislature did not act
on that proposal.
This year, the tie-breaker also is at issue
in federal court. Democratic and Republican plaintiffs have
challenged the state Constitution’s provision, claiming
it violates the due process guarantees of the U.S. Constitution.
The state Constitution gives the state Supreme
Court “original and exclusive” jurisdiction over
litigation related to redistricting. But attorneys for the
Republicans want the federal courts to toss the provision
and draw the map. The federal courts, which are packed with
appointees from the Reagan and senior Bush administrations,
are regarded as more Republican-friendly. Meanwhile, attorneys
for the Democrats want the Illinois Supreme Court to hear
the dispute. The state’s high court has five Democratic
and two Republican justices.
According to attorneys involved with the lawsuits,
the Illinois tie-breaker provision has never before been directly
challenged in court. But that’s not to say that judges
haven’t weighed in. In 1992, then-Justice Bilandic and
two of his Democratic colleagues dissented from a decision
that upheld a map drawn by Republicans.
“The establishment of legislative districts
impacts the rights of Illinois citizens to participate on
a fair and equal basis in the electoral process,” Bilandic
wrote. “Consequently, when the establishment of legislative
districts is accomplished in an arbitrary manner, the right
of Illinois citizens to due process of law is violated.”
The tie-breaker procedure wasn’t supposed
to be central to the remap process. When delegates at the
Constitutional Convention inserted the provision, they hoped
it would force lawmakers to make a deal, or risk it all in
a lottery. The provision also was designed to ensure the state
would get a new map every 10 years. That’s because in
1964 candidates for the House had to run at-large when lawmakers
failed to agree on a map — the old Constitution’s
version of an incentive for bipartisan compromise. The 1964
ballot was known as the “bed sheet ballot” because
of its length.
“The object of the reapportionment plan,
after the General Assembly has been given the first chance
to reapportion, is to reduce both political parties to a state
of equivalency,” William A. Sommerschield, a Republican
delegate and chief architect of the Constitution’s remap
section, argued during the convention. “We believe we
achieve this by utilizing the random selection method of achieving
a tie-breaker, whereby neither party could look ahead with
certainty as to a potential tie-breaker being more in line
with their opinions than with the other party’s opinions.”
Indeed, in 1971, lawmakers managed to draw a
map without resorting to the lottery. A special commission,
formed after the legislature failed to make a deal during
its spring session, agreed to a map. The state Supreme Court
took issue with the composition of the commission, but adopted
the map as “provisional.” The legislature in 1973
enacted an identical map for the rest of the decade.
In 1981, neither the legislature nor the commission
could agree on a map. Republican Jim Edgar, the secretary
of state, pulled the name of a Democrat, and the Democrats
drew the map. The state Supreme Court and a federal court
adjusted that map in response to challenges.
And in 1991, the legislature passed a map, but
then-Gov. Edgar vetoed it and lawmakers failed to override.
The commission could not agree. Ryan, then secretary of state,
picked a Republican and the GOP drew the map. The state Supreme
Court, which had four Democratic and three Republican justices,
at first rejected it. The court remanded the map to the commission,
ordering that it be redrawn. The commission’s revised
plan was then approved. Justice Joseph Cunningham, a Democrat,
voted with the court’s Republicans.
So the mechanism designed to motivate early
action and compromise on representational maps has become
the equivalent of a coin toss to decide which team has the
home field advantage.
“It’s beyond the home field advantage,”
says Rep. Tom Cross, an Oswego Republican and former chair
of this year’s commission. “When you talk about
a home field advantage, at least you still have a shot at
winning the game. This ends up becoming an all-or-nothing
and, depending on what the federal courts do, it’s pretty
much over.”
Illinois
Issues, October 2001
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