Analysis of Illinois' Fair Map Amendment
Justin Levitt analyzes Illinois' Fair Map Amendment.
(Fair Map Amendment)
The proposed ballot initiative would not affect congressional districts. For state legislative districts, the proposal would establish a nine-person advisory commission selected largely by the legislative leadership. The commission would draw and submit plans for each chamber of the legislature, each of which would have two opportunities to vote its own plan up-or-down, by a supermajority, without modification; if a chamber rejects both offered commission plans, the commission would simply choose one of the two plans it submitted. If the commission fails to act, two Supreme Court judges of presumably opposing parties choose a Special Master to draw plans. Required criteria encourage minority rights, compactness, and plans that follow municipal boundaries, with restrictions on considering political data unless necessary.
The proposal would retain the current structure for congressional districts: drawn by the state legislature, and subject only to federal constitutional and statutory limitations. State legislative plans would be drawn by an nine-member commission; each legislative leader would select two commissioners, considering the diversity of the state, and those eight would choose a ninth. Neither commissioners nor immediate family may have been, within four years of appointment, state lobbyists, employees, or contractors; or candidates for an elected body of federal government, state government, local government, or political party entities. Commissioners are also not eligible for state legislative office or appointment to state office requiring state senate confirmation for the ten years after lines are drawn.
By May 16, 2011, the commission must adopt plans and submit them to the legislature for an up-or-down vote; districts for each state legislative house must be passed by a 2/3 vote of that house. If a plan fails to pass, the commission must submit a substitute within a month for a similar up-or-down 2/3 vote; if this plan is also rejected, the commission simply chooses one of the two submitted plans. If the commission misses a deadline at any point, the Chief Justice of the Illinois Supreme Court and a Supreme Court judge selected by judges of the opposite party choose a Special Master to draw plans.
- Independence from Legislators: Though eight of the nine commissioners are chosen by the legislative leadership, and though the legislature has a role in approving one of two choices of plan, the screening criteria for the commission would remove those likely to be most beholden to particular legislators, including the leadership.
- Partisan Balance: The structure of the commission provides a partisan balance among the commissioners.
- Minority Participation: The proposal requires that commissioners be selected considering the diversity of the state, though this requirement will be difficult to enforce by means other than political pressure.
- Public Input: Meetings of the commission are open to the public, and the commission is required to hold at least five hearings in different parts of the state before preliminary approval of a plan, and at least three hearings in different parts of the state before a final vote. The commission must also make census data and redistricting software available to the public, and must accept and make publicly available redistricting plans from the public.
- Timing: Existing state law has been construed to prohibit drawing state legislative districts more than once per decade. The proposal would retain some of the same language, but in different context; it is likely, but not certain, that the proposal would be construed to prohibit drawing state legislative more than once per decade. There is no similar prohibition on redrawing congressional districts.
(Fair Map Amendment)
Under the proposal, congressional districts would continue to be subject only to federal constitutional and statutory limitations.
The proposal would continue the existing requirement that state legislative districts be compact, contiguous, and “substantially equal” in population. It would also add a top-priority minority-rights requirement, require that geographic features and municipal boundaries be followed where practical, and would prohibit plans drawn to purposefully or significantly favor or discriminate against a political party. The proposal would also prohibit use of political data except where necessary to evaluate partisan bias and the assurance of minority rights.
- Population Equality: The proposal would continue to allow substantial population disparity; some residents’ votes may be more valuable than others, though the flexibility leaves room to keep municipalities or communities together. There is also no express provision to determine whether the state must rely on the count conducted by the federal census (which counts incarcerated persons where they are incarcerated, skewing representation).
- Minority Rights: Courts have suggested that the state constitutional requirement of free and equal elections may prohibit vote dilution on the basis of race, independent from the protections of federal law, but the suggestion has not been further explained. The proposed amendment creates notable additional protection of minority rights, also independent from federal law, though it is unclear precisely how this provision would be interpreted; if it is interpreted in lockstep with the federal Voting Rights Act, the proposal would preserve voting rights of larger minority populations, but the ban on political information may make it marginally more difficult to create districts where smaller minority populations effectively control the district outcome.
- Compactness: The proposal maintains the general mandate that districts be reasonably compact. Courts have suggested that obvious deviations from a reasonably compact standard should be justified by some neutral principle, but have not further enforced this suggestion.
- District Competition: There is no provision encouraging or discouraging competition within a district, though the ban on political information may make it marginally more difficult to create districts that are intentionally noncompetitive.
- Statewide Partisan Balance: There is no provision expressly encouraging or discouraging statewide partisan balance apart from the structure of the decisionmaking body (see above). Depending on how it is interpreted, the prohibition on plans drawn to significantly favor a political party may limit substantial statewide partisan imbalance.
- Preservation of Political Boundaries: The proposal requires following municipal boundaries where practical.
- Communities of Interest: There is no provision expressly concerning communities of interest.
- Nesting: The proposal would eliminate the existing nesting requirement that ties each house’s districts to the other. Eliminating the nesting requirement permits more flexibility in designing districts, but marginally increases the difficulty of election administration.
- Incumbent Residence: The proposal would prohibit those drawing the lines from considering the residences of incumbents, except where doing so would significantly favor one party. This reduces the likelihood of intentional harm (or benefit) to individual legislators, but also poses the potential for unintentional impact on incumbents.