dissenting:
The last time a challenge to the validity of the redistricting plan approved by the Illinois Legislative Redistricting Commission (Commission) was raised in this court, this court initially remanded the matter to the Commission for further proceedings because the Commission did not hold a hearing on the approved map. See People ex rel. Burris v. Ryan, 147 Ill. 2d 270, 284 (1991). We noted that both sides in the case had submitted their plans and amendments on the last two days, “thereby thwarting any type of hearing, whether for expert testimony or public criticism.” Burris, 147 Ill. 2d at 284-85. We recognized that, although there is a presumption that an approved redistricting plan filed with the Secretary of State is valid, the presumption of validity does not attach to any process which is completely at variance with the constitutional mandate. Burris, 147 Ill. 2d at 284. Finally, in remanding the matter to the Commission for further proceedings, we directed that the Commission’s hearing address questions with regard to certain enumerated districts that did not appear to meet the constitutionally mandated requirements of compactness and of free and equal elections. Burris, 147 Ill. 2d at 285-86. It was only after the matter was returned to this court following remand that this court accorded the map a presumption of validity and reviewed the map under a manifest weight of the evidence standard. Burris, 147 Ill. 2d at 296.
Here, the majority does not address the process that led to the adoption of the map at issue. Rather, the majority notes the presumption of validity accorded a redistricting plan approved and filed by the Commission. The majority then concludes that the plaintiffs and intervening plaintiffs have failed to establish that the map is against the manifest weight of the evidence. I do not agree with this analysis. I find this case to be indistinguishable from Burris. Consequently, I believe this matter must be remanded to the Commission for further proceedings before this court can address the validity of this map.
The process through which the redistricting map in this case was approved was at variance with the constitutional mandate. As in Burris, the map in this case was presented in the last few days, thereby thwarting any type of hearing that would ensure that constitutional requirements were met. As intervening plaintiffs Philip and Daniels observe, the Democratic Commission members filed a map styled Currie I on September 17, 2001, and set a hearing for September 18, 2001. At the September 18 hearing, the Republican Commission members proposed certain amendments to the Commission’s rules, including allowing public comment on any redistricting proposal for at least seven days after its submission, requiring the Commission to state its reason for approving or not approving each redistricting proposal, and including findings on compactness, contiguity and population equality. The Commission rejected the proposed amendments. Also on September 18, the Democratic Commission members called a series of expert witnesses to testify concerning the Currie I map. Plaintiffs allege that the Republican Commission members had no advance notice that expert witnesses would testify. The Democratic Commission members rejected a request made by the Republican Commission members for a 24-hour recess to prepare to cross-examine the expert witnesses. The Commission also declined a request to disclose their timetable to pass a map. The next day, September 19, 2001, the Democratic Commission members proposed that votes on all maps be taken by September 21, 2001, including votes on Currie I, which had been introduced on September 17, and a vote on the Alternate Plan that was to be proposed by the Republican Commission members on September 20, 2001.
No vote was taken on September 21, 2001. On September 24, 2001, the Democratic Commission members proposed an amendment to Currie I, known as the Bilandic amendment, which was filed with the Commission clerk. The next day, September 25, the Currie I map was amended pursuant to the Bilandic amendment, thereby creating the map at issue in this case, known as Currie II. The intervening plaintiffs contend that the Democratic commission members refused to call witnesses or allow analysis or debate on Currie II. On September 24, 2001, the Republican Commission members’ expert witness, Richard Niemi, Ph.D., was allowed to testify that Currie II was less compact than the map approved in 1991 and also was less compact than the Alternate Plan. Niemi further testified that the Alternate Plan was more compact than Currie II as well as the 1991 plan. Nonetheless, on September 25, 2001, the Commission adopted the Currie II map by a 5-4 vote, and forwarded the Currie II map to the Secretary of State.
Intervening defendant John Tully responds that the Currie II map is the result of “the most extensive, deliberative and accommodating process that this State has seen in the redistricting of the Illinois House and Senate.” Tully contends that the record of proceedings is 10,557 pages and that the General Assembly redistricting committees heard more than 500 live witness presentations. The majority of the record of proceedings and the 500 live witness presentations, however, do not address the constitutional validity of the specific map at issue in this case. With regard to Currie I, Tully asserts that the Commission met for more than six hours and heard testimony, including testimony from two expert witnesses, Dr. Allan J. Lichtman and Dr. Janet BoxSteffensmeier. As noted, however, the intervening plaintiffs argue that the expert witnesses were presented without any advance notice and without affording the Republican Commission members a 24-hour recess to prepare to cross-examine those witnesses. Notably, although there was testimony concerning the compactness of Currie I and Currie II, that testimony concerned the compactness of the maps as a whole, not the compactness of individual districts.
As in Burris, the process through which the Currie II map was adopted does not present sufficient facts for this court to determine with certainty whether the district lines in Currie II meet legal guidelines. Absent those facts, I believe this case must be remanded to the Commission for further proceedings. Further, I believe that the Commission should be directed to address the questions raised by the plaintiffs and the intervening plaintiffs concerning the compactness of the specified districts: Legislative districts 29, 38, 51 and 55 and Representative districts 15, 18, 35, 36, 75, 99, 100, 113 and 114.
In Burris, this court found that certain districts did not appear to meet the constitutionally mandated requirements. Burris, 147 Ill. 2d at 285. Here too, the specified districts do not appear to meet the constitutionally mandated requirements. Those districts certainly do not appear compact based upon a visual inspection, and do not appear compact based upon the mathematic calculations testified to by Richard Niemi, Ph.D. Defendants and intervening defendants respond that any shapes departing from a compactness norm are justified by the influence of other neutral redistricting criteria, including the irregular state, county and municipal boundaries within the State of Illinois, adherence to natural boundaries such as rivers, the preservation of political subdivision and precinct lines and the cores of existing districts, protecting incumbencies, and maintaining communities of interest.
While it is true that departures from the constitutional requirement of compactness possibly may be justified (see Schrage v. State Board of Elections, 88 Ill. 2d 87, 98 (1981)), there is no evidence that any such “neutral” criteria were presented to, considered, or accepted by the Commission with regard to those districts in Currie II that do not appear compact. Such evidence must be presented to and considered by the Commission before this court can presume that departures from the constitutional requirement of compactness are valid.
The voters of this state deserve — indeed, demand— fair play. Gone forever are the procedural safeguards, such as notice and cross-examination, that were so strictly enforced in Burris. And gone forever is the Illinois voter’s confidence that, while a coin toss might decide which party will draw the map, the highest court of this State will ensure that the process of approving and adopting that map will be equitable, balanced, and fair. We all should expect the party who wins the coin toss to be constrained by basic notions of due process and fundamental fairness, so that a democratically devised compromise does not deteriorate into partisan tyranny.
I respectfully dissent.
JUSTICE GARMAN joins in this dissent.