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Schrage v. State Board of Elections

OPINION FILED NOVEMBER 25, 1981.

GEORGE E. SCHRAGE III, COUNTY CLERK, ET AL., PLAINTIFFS,

v.

THE STATE BOARD OF ELECTIONS ET AL., DEFENDANTS.



Original redistricting action.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

This is an original action for declaratory judgment concerning the 1981 legislative redistricting plan. The plan was filed with the Secretary of State pursuant to article IV, section 3(b), of the Illinois Constitution of 1970. That section of the Constitution also vests this court with original and exclusive jurisdiction over actions concerning redistricting of the Illinois House and Senate. Our Rule 382(a) governs the proceedings in such an action. (73 Ill.2d R. 382(a).) Plaintiffs, George E. Schrage III, county clerk of Adams County, and Samuel W. Wolf, candidate for election to the 83rd General Assembly, filed this action seeking a declaration of the constitutional validity of the decennial redistricting plan for the Illinois House and Senate districts filed with the Secretary of State on October 5, 1981, by the Legislative Redistricting Commission. Named as defendants were the State Board of Elections, the Attorney General, Tyrone C. Fahner, the Secretary of State, Jim Edgar, and Judith Koehler, a candidate for election to the 83rd General Assembly. Five members of the Legislative Redistricting Commission, Samuel H. Shapiro, James J. Donnewald, Martin Murphy, Corneal Davis, and Michael McClain sought and were granted leave to join as plaintiffs. The Commission-member plaintiffs then moved to implead the parties plaintiff in three actions pending in Federal District Court for the Northern District of Illinois concerning the 1981 redistricting plan as parties defendant in the present action. That motion was denied. Because of the statutory timetable for filing nominating documents by candidates seeking legislative office for the 83rd General Assembly, we expedited the hearing of this case.

The Illinois Constitution provides that, in the year following each Federal decennial census year, the General Assembly shall redistrict the legislative districts, and that if no redistricting plan becomes effective by June 30 of that year, then a Legislative Redistricting Commission must be constituted no later than July 10. (Ill. Const. 1970, art. IV, § 3(b).) (For a brief history of redistricting in Illinois, see Illinois Legislative Council, Redistricting in Illinois (1981).) The Illinois Constitution further provides that the eight-member Commission shall file with the Secretary of State not later than August 10 a redistricting plan approved by at least five members of the Commission. Failing this, this court submits the names of two persons not of the same political party to the Secretary of State, who must publicly draw, by random selection, the name of one of the two persons who will serve as a ninth member of the Commission. With the addition of the ninth tie-breaking member, the Commission is then required to file a redistricting plan approved by at least five of the members not later than October 5. (Ill. Const. 1970, art. IV, § 3(b).) This procedure was followed in Illinois this year. When the eight-member Commission could not agree on a plan, this court submitted to the Secretary of State the names of ex-Governor Richard B. Ogilvie, a Republican, and ex-Governor Samuel H. Shapiro, a Democrat. The Secretary of State drew, by random selection, the name of ex-Governor Shapiro, who served as the ninth member of the Commission. It is the constitutional validity of this 1981 redistricting plan, filed by five members of the Commission, which plaintiffs seek to have this court declare valid in this action.

The action by plaintiffs seeking a judgment declaring the validity of the reapportionment plan is unnecessary because of the constitutional presumption of validity which attaches upon filing of the plan. Specifically, the Illinois Constitution provides:

"An approved redistricting plan filed with the Secretary of State shall be presumed valid, [and] shall have the force and effect of law * * *." (Ill. Const. 1970, art. IV, § 3(b).)

In the instant case, with the exception of Representative Koehler's counterclaim, no specific attack on the redistricting plan has been filed with this court. Because of the constitutional presumption of validity, the reapportionment map is presumed valid absent a specific challenge. It should be noted, however, that, in addition to Representative Koehler's challenge, filed as a counterclaim in the present action, there are also three challenges to the 1981 reapportionment plan pending in the United States District Court for the Northern District of Illinois. (Rybicki v. State Board of Elections, No. 81-C-6030; De Valle v. State Board of Elections, No. 81-C-6052, and Crosby v. State Board of Elections, No. 81-C-6093.) All three are class actions. The issues involved in those cases are not before this court. We cannot therefore determine the validity of the challenges to the redistricting plan presented in those cases. In this case, we therefore are only concerned with Representative Koehler's challenge to the constitutionality of the 89th Representative District.

In November 1980 the voters approved a constitutional amendment reducing the size of the Illinois House from 177 to 118 members and eliminating the three-member districts and cumulative voting. The amendment requires that the State be divided into 59 legislative districts (from each of which one State Senator is elected) and that each legislative district be subdivided into two representative districts of approximately equal population (from each of which one State Representative is elected). (Ill. Const. 1970, art. IV, § 2 (1980).) (See generally Illinois Legislative Council, Redistricting in Illinois (1981).) It is with the subdivision of Legislative District 45 into Representative Districts 89 and 90 that Representative Judith Koehler's counterclaim is concerned.

Judith Koehler, a resident of Henry, Illinois, in Marshall County, has served in the House of Representatives since 1980. She first requested the Attorney General to challenge the plan pursuant to article IV, section 3(b), of the Illinois Constitution (Ill. Const. 1970, art. IV, § 3(b)). The Attorney General declined to act on her request. In the interim, the present action was filed naming Representative Koehler as a defendant. She responded by filing a counterclaim, seeking to have newly drawn Representative District 89 declared invalid as violative of the compactness requirement of the Illinois Constitution (Ill. Const. 1970, art. IV, § 3(a)).

Representative Koehler alleges that the 1981 reapportionment plan would create the 89th Representative District as a loosely bound-together group of 60 townships measuring in excess of 125 miles in length connected at its center by a strip of land six miles wide. As presently drawn, the district would stretch through seven counties and more than 60 towns, and would cover parts of four congressional districts, two Illinois Appellate Court districts, and five (pre-1981 apportionment) Illinois House of Representative districts. The proposed district would not be served by either a single common television station, or a single common newspaper. The issue thus presented by Representative Koehler's counterclaim is whether this representative district is compact within the meaning of article IV, section 3(a), of the 1970 Illinois Constitution.

The 1970 Illinois Constitution provides a three-part test of constitutional validity for redistricting plans under article IV, section 3(a). Specifically, it requires that the districts formed must be "compact, contiguous and substantially equal in population."

The 1970 Constitution does not itself define compactness, nor does it provide explicit standards for its determination. Compactness was, however, a requirement also present in the 1870 Constitution. That constitution required that all senatorial and representative districts be formed of "contiguous and compact territory." (Ill. Const. 1870, art. IV, §§ 6, 7.) The continuing importance of the compactness requirement was reflected in the Report of the Legislative Committee which proposed the language adopted by the 1970 Convention. It stated:

"Perhaps no standards for drawing legislative district boundaries possess a longer history than the traditional standards of compactness and contiguity. In our present Constitution, these standards are found in both Sections 6 and 7. These standards directly reflect the objective of improving legislative representation through seeking to insure that districts are not gerrymandered." 6 Record of Proceedings, Sixth Illinois Constitutional Convention 1352-53 (hereafter cited as Proceedings).

While the word "compact" was not defined in the 1870 Constitution, this court was called on to give meaning to that term in a redistricting context as early as 1895. In People ex rel. Woodyatt v. Thompson (1895), 155 Ill. 451, this court ruled on a challenge to the constitutionality of an apportionment of the State into senatorial districts. It was argued that the districts were not formed of contiguous and compact territory. In Thompson, the court stated:

"[W]e are of the opinion that as used in the constitution, * * * the word `compact' means `closely united,' and that the provision that districts shall be formed of contiguous and compact territory means that the counties, or subdivisions of counties, * * * when combined to form a district, must not only touch each other, but must be closely united, territorially." (Emphasis added.) (People ex rel. Woodyatt v. Thompson (1895), 155 Ill. 451, 478.)

While the court upheld the apportionment of the senatorial districts in Thompson, it nonetheless gave meaning to the constitutional compactness requirement.

A more recent opinion of this court in People ex rel. Scott v. Grivetti (1971), 50 Ill.2d 156, is consistent with this standard. In Grivetti the court heard a challenge to the constitutional validity of the decennial redistricting plan for the Illinois House and Senate drawn by the Legislative Redistricting Commission under the 1970 Constitution. In Grivetti, as in Thompson, the court did not interpret the compactness standard to require perfect compactness as in a circle or a square. ((People ex rel. Scott v. Grivetti (1971), 50 Ill.2d 156, 166; People ex rel. Woodyatt v. Thompson (1895), 155 Ill. 451, 482.) Rather, it required that districts formed be "reasonably compact." People ex rel. Scott v. Grivetti (1971), 50 Ill.2d 156, 166.

The court's observation in Grivetti that "compactness, while an end to be sought in the redistricting process, is clearly subservient to the dominant requirement of equality of population among legislative districts" should not be read, as plaintiffs have urged, as a death knell to the compactness requirement. (People ex rel. Scott v. Grivetti (1971), 50 Ill.2d 156, 166.) Rather, the recognition in that case of the necessity to comply with the "one man - one vote" requirement (People ex rel. Scott v. Grivetti (1971), 50 Ill.2d 156, 167) simply emphasized the then-recent constraints which had been added to traditional considerations. The compactness standard is, after all, a constitutional requirement in Illinois (Ill. Const. 1970, art. IV, § 3(a)) and cannot be ignored in redistricting the State. It cannot be written out or replaced by another requirement short of redrafting or amending our present constitution.

Although the court has refused to require perfect compactness (Thompson, Grivetti), it has also refused to allow the constitutional requirement of compactness to be ignored. In Thompson the court unequivocally recognized the necessity to comply with the compactness standard. In that case it said:

"[I]f it clearly appeared that in the formation of any district the requirement of compactness of territory and equality in population had been wholly ignored, had not been considered or applied at all, to any extent, then the [result] would be clearly unconstitutional." (People ex rel. Woodyatt v. Thompson (1895), 155 Ill. 451, 477.)

In addition to the necessity for complying with the requirements of the Constitution, there are pragmatic reasons for taking cognizance of compactness. As recognized in both the 1870 and 1970 constitutions, requiring compactness prevents gerrymandering. In fact, compactness is "almost universally recognized" as an appropriate antigerrymandering standard. Edwards, The Gerrymander and "One Man, One Vote, 46 N.Y.U.L. Rev. 879, 893 (1971); Schwartzberg, Reapportionment, Gerrymanders, and ...


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