specially concurring:
I concur with the decision of the majority to reverse the order dismissing the complaint. I agree that it does state a cause of action.
I further agree that sections 11 — 1 and 11 — 2 of the Election Code must be considered together. The mandatory requirement of section 11 — 2 to change boundaries when a precinct has a voter population exceeding a certain number (now 800) is consistent with a general discretionary power to do so arising from section 11 — 1. However, the provision of section 11 — 2 authorizing but not requiring boundary changes when a precinct has a voter population in excess of a certain number (now 600) would be totally useless if section 11 — 1 already gave that power. Moreover, the self-sufficiency of section 11 — 1 is further suspect because of its failure to make any express grant of power to change precinct lines to governing boards in counties under township organization. Thus, I agree with the majority’s determination to follow the dictum of Rexroth that section 11 — 2 controls both the time and manner of making these changes.
The complaint here alleges that no precinct altered had a voter population in excess of 600 voters. As section 11 — 2 gives no authority to change boundaries in the absence of a precinct of that size, the majority correctly holds that the complaint stated a cause of action. I deem the existence of such a precinct to be the necessary element to trigger the power to remap. I do not agree with the breadth of the majority opinion which states that consolidation of precincts is impermissible and seems to indicate that the only action a governing board can take is to divide an existing precinct into one or more precincts. At the time of Rexroth, as now, the predecessor to section 11 — 2 spoke of the board dividing or readjusting the precincts. This would imply that portions of an existing precinct may be added to an existing precinct or even that precincts may be totally consolidated if done pursuant to a scheme to reduce one or more excessively large precincts.
In Stroud, several precincts in a township had a population of more than 800 voters, so the county board made a readjustment of precincts creating several more. One of the original precincts had only 211 voters. The board made no change in the boundaries of that precinct. Answering a contention that the failure to enlarge the precinct was improper, the supreme court stated that absent evidence that the board was arbitrary or unreasonable in failing to do so, no impropriety was shown. Had the supreme court thought the board lacked power to consolidate a portion of another precinct with that precinct, it would have so stated.
The majority wisely notes that many counties have probably redrawn precinct lines in violation of its holding and properly follows Stroud to state that such a violation will not vitiate an election. Nevertheless, substantial difficulty may arise in these counties from merely being required to remap their precincts. The statutory language is confusing and, as stated, urgently requires legislative clarification. In the meantime, I would not interpret it as narrowly as the majority. I would permit additions of all or part of one precinct to another if done in conjunction with the reduction of a precinct with over 600 voters.