State of the State: The tie-breaker provision has become the start of state redistricting
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.”
It's been invoked in three out of four legislative remaps since 1970, the year the new Illinois Constitution was implemented.
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