also dissenting:
The procedure set forth in the Illinois Constitution of 1970 for adopting a redistricting plan violates due process as guaranteed by the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV). Therefore, I respectfully dissent.
Article IV, section 3(b), of the Illinois Constitution of 1970 provides, in pertinent part:
“In the year following each Federal decennial census year, the General Assembly by law shall re district the Legislative Districts ***.
If no redistricting plan becomes effective by June 30 of that year, a Legislative Re districting Commission shall be constituted not later than July 10. The Commission shall consist of eight members, no more than four of whom shall be members of the same political party.
The Speaker and Minority Leader of the House of Representatives shall each appoint to the Commission one Representative and one person who is not a member of the General Assembly. The President and Minority Leader of the Senate shall each appoint to the Commission one Senator and one person who is not a member of the General Assembly.
* * *
Not later than August 10, the Commission shall file with the Secretary of State a redistricting plan approved by at least five members.
If the Commission fails to file an approved redistricting plan, the Supreme Court shall submit the names of two persons, not of the same political party, to the Secretary of State not later than September 1.
Not later than September 5, the Secretary of State publicly shall draw by random selection the name of one of the two persons to serve as the ninth member of the Commission.
Not later than October 5, the Commission shall file with the Secretary of State a redistricting plan approved by at least five members.” (Emphasis added.) Ill. Const. 1970, art. IV, §3(b).
As set forth above, when the Redistricting Commission has reached a deadlock in the redistricting process, the Secretary of State must draw the name of the tie-breaking Commission member by “random selection.” (Ill. Const. 1970, art. IV, §3(b).) Only once since the adoption of the Illinois Constitution of 1970 has redistricting been accomplished without a ninth tie-breaking member being chosen by random selection to become a member of the Legislative Redistricting Commission. In 1971, after the General Assembly failed to redistrict itself prior to June 30, the Legislative Redistricting Commission adopted a redistricting plan and submitted it to the Secretary of State without the need for the appointment of a ninth tie-breaking member. (See People ex rel. Scott v. Grivetti (1971), 50 Ill. 2d 156, 158.) However, the tie-breaking procedure has since been utilized in both the 1981 and the 1991 redistricting processes. See Schrage v. State Board of Elections (1981), 88 Ill. 2d 87, 92.
It is the procedure outlined above for the resolution of a deadlocked Commission vote by the random selection of a tie-breaking ninth member that violates the constitutional guarantee of due process. The fourteenth amendment to the United States Constitution provides that no person shall be deprived of “life, liberty, or property” without due process of law. (U.S. Const., amend. XIV.) Due process preserves an individual’s personal and property rights from the arbitrary action of public officials. (People v. Belcastro (1934), 356 Ill. 144, 147.) The essence of due process is “fundamental fairness.” (Lassiter v. Department of Social Services (1981), 452 U.S. 18, 24, 68 L. Ed. 2d 640, 648, 101 S. Ct. 2153, 2158.) When a governmental procedure fails to comport with fundamental fairness, but is instead arbitrary and unreasonable, it violates the fourteenth amendment. (Walker v. State Board of Elections (1976), 65 Ill. 2d 543, 563; Magnuson v. City of Hickory Hills (N.D. Ill. 1990), 730 F. Supp. 1439, 1444.) The guarantee of due process of law is not limited to judicial proceedings. Brown v. Air Pollution Control Board (1967), 37 Ill. 2d 450, 454.
“Liberty,” as that term is used in the fourteenth amendment, includes the right of every citizen to vote, both in State elections and Federal elections. (Reynolds v. Sims (1964), 377 U.S. 533, 554-55, 12 L. Ed. 2d 506, 523, 84 S. Ct. 1362, 1378; Rudisill v. Flynn (N.D. Ill. 1979), 470 F. Supp. 1269, 1274.) The due process clause of the fourteenth amendment guarantees to every citizen the right to participate on a fair and equal basis in the electoral process. (Duncan v. Poythress (N.D. Ga. 1981), 515 F. Supp. 327, 336.) The United States Supreme Court has recognized the preeminence of this right, stating:
“The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. * * *
* * *
*** To the extent that a citizen’s right to vote is debased, he is that much less a citizen.” (Reynolds, 377 U.S. at 555, 567, 12 L. Ed. 2d at 523, 530, 84 S. Ct. at 1378, 1384.)
The establishment of legislative districts impacts the rights of Illinois citizens to participate on a fair and equal basis in the electoral process. 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 conclusion that the tie-breaking scheme set forth in article IV, section 3(b), of the Illinois Constitution of 1970 violates the requirement of due process is supported by this court’s opinion in Walker v. State Board of Elections (1976), 65 Ill. 2d 543. In that case, this court held that the lottery-type of tie-breaking procedure provided for in section 1A — 7.1 of the Election Code (Ill. Rev. Stat. 1973, ch. 46, par. 1A — 7.1) was unconstitutional. That section stated:
“In the event there is a tie vote of the membership of the State Board of Elections with respect to proposed action of the Board or with respect to any issue requiring a vote by the Board, the clerk of the Board upon the direction of any 2 members who certify that there is a deadlock, shall select by lot the name of one of the members of the Board. The member so selected shall be disqualified from voting on the particular proposition and the remaining qualified members shall proceed to decide the proposition.” (Emphasis added.) Ill. Rev. Stat. 1973, ch. 46, par. 1A— 7.1.
This court found that the tie-breaker provision was unconstitutional in that it violated due process of law because it caused decisions of the State Board of Elections to be made by lot or by chance in some cases. (Walker, 65 Ill. 2d at 563; see also Kandalepas v. Economou (1989), 191 Ill. App. 3d 51, 54 (the trial court’s flipping of a coin to determine an issue in dispute was improper because an act of chance determined the outcome rather than a balancing of the equities in the case).) The Walker court stated:
“Necessarily included within the tie breaker’s scope are those actions and issues upon which rights of individual parties depend. As a result, if the tie breaker, when utilized, causes decisions to be arrived at in an arbitrary manner, the statute must then be considered violative of due process.
In our estimation, the tie-breaker scheme does cause decisions to rest upon an arbitrary basis. Operation of the tie breaker results in the disqualification of one Board member whose name is selected by lot. The remaining members then ‘proceed to decide the proposition,’ the logical expectation being that each member will adhere to his former position, with two of the three members now constituting a majority. Since the resolution of the controversy depends upon the identity of the member eliminated by the lottery, the ultimate outcome rests not upon reasoned deliberation, but upon chance. * * *
We realize that the remaining members are not inflexibly precluded from altering their prior views upon the disqualification of their colleague. Nevertheless, it strains credulity to suggest that any shift of position would be likely to occur, given the fact that the tie breaker comes into operation only when the inability to reach agreement produces a deadlock. We also concur with defendants that the tie breaker does not overtly cause decisions to be made through chance, as would be the case, for example, if the matter at issue were der cided by the flip of a coin. However, since the ultimate outcome, as we have seen, is dependent upon the identity of the member whose name is selected by lot, and who is thereby disqualified from voting upon the proposition at issue, defendants urge upon us a distinction without a difference.” (Emphasis added.) Walker, 65 Ill. 2d at 563-64.
I believe that the reasoning of the Walker court applies in this case. The tie-breaking scheme in article IV, section 3(b), is fundamentally no different from the tie-breaking scheme found to be unconstitutional in Walker. The tie-breaking provision at issue in Walker provided for removing by random selection one member of the decisionmaking body in the event of a deadlock. Article IV, section 3(b), provides for the addition of a new member in the event of a deadlock.
I recognize that this court, in People ex rel. Scott v. Grivetti (1972), 50 Ill. 2d 156, stated that article IV, section 3(b), “does not infringe upon any constitutionally protected interests.” (Scott, 50 Ill. 2d at 160.) However, in that case, article IV, section 3(b), was challenged only on the grounds that it was violative of the first amendment and the equal protection clause of the fourteenth amendment. The Scott court was not presented with a due process argument, and therefore Scott is not controlling.
I note that the fundamental unfairness of the tie-breaking procedure set forth in article IV, section 3(b), was addressed by defendant Ryan just prior to the September 5, 1991, drawing to select the name of the tie-breaker. Defendant Ryan stated:
“I think everyone is aware that this random drawing, which is charged to me by the Constitution, will affect how the people of Illinois are governed and who their representatives will be and probably which party’s philosophy will prevail in the State of Illinois, or in the next ten years, at least.
I believe this is a bad process and bad government. The People of Illinois deserve better, and they deserve representation that’s not by lottery. I don’t think this process really serves the people well. But 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. So, let me say that I hope that we really don’t have to do this in another ten years.” (Emphasis added.)
For the reasons stated above, I believe that the tie-breaking procedure set forth in article IV, section 3(b), of the Illinois Constitution of 1970 violates the due process clause of the fourteenth amendment to the United States Constitution. Any redistricting plan produced as a result of the tie-breaking procedure is therefore unconstitutional and invalid.
There is no need to delay the primary election. The candidates can run in the existing legislative districts and serve until a constitutional map is adopted. This procedure was recently approved by the United States Supreme Court for elections in the State of Mississippi. Watkins v. Mabus (1991),_U.S._, 116 L. Ed. 2d 433, 112 S. Ct. 412.
We should not hasten to gamble away the government “of the People, by the People, and for the People” on the turn of a card, roll of the dice, or even random selection.
JUSTICES CLARK and FREEMAN join in this dissent.