Imagine that a state had two congressional districts in 1960, which contained an equal number of voters. Imagine further that, owing to the state legislature's failure to redistrict over the ensuing 60 years, population growth and population shifts, that first district has 300,000 voters and the second has a million voters. Do you see a problem?
Does it bother you that the district with 300,000 voters gets one congressman, while the district with a million voters only gets one congressman, too?
In Baker v. Carr (1962), the U.S. Supreme Court ruled that a complaint alleging failure of the Tennessee Legislature to redraw legislative districts for a period of 60 years, which diminished the value of the vote in more populous districts, stated a "justiciable" cause of action for a denial of equal protection, as guaranteed by the 14th Amendment. Baker v. Carr was followed by two related decisions.
In Reynolds v. Sims (1964), the Court ruled that the electoral districts of state legislative chambers must be roughly equal in population. In Wesberry v. Sanders (1964), the Court ruled that electoral districts for the U.S. House of Representatives must also be roughly equal in population.
The rule that emerged from this trio of cases was "one man-one vote!" State legislative and U.S. House districts must be roughly equal in population as a matter of equal protection. (Districts disenfranchising minorities have been barred by a second line of cases).
But "one man-one vote" does nothing to prevent gerrymandering. Gerrymandered districts have roughly equal populations, but with district lines drawn to include or exclude Republicans or Democrats in order to favor the party in power.
To prevent gerrymandering, Article IV of the Illinois Constitution provides that "Legislative Districts shall be compact ...."
It also provides that, "In the year following each Federal decennial census year, the General Assembly by law shall redistrict the Legislative and Representative Districts" by June 30. If it fails to do so, an 8-person commission is appointed by the Illinois House and Senate leaders. If that commission fails to get the job done, the Supreme Court nominates two persons, not of the same political party; one is drawn by lot by the Secretary of State to be the ninth member of the commission.
The official comments to Article IV, show that in 1971, 1981, 1991 and 2001, those procedures have failed.
Why? Because of the human element, the political element. Republicans want legislative districts that give them power; Democrats want the same. Therefore, since 1812, the gerrymander.
The solution is to remove the human element. Let the map be drawn by computers, programed (a) to make each district equal in population to within 1%, and (b) to draw no district with more than four sides, with all four sides joined at right angles.
In other words, make each district truly "compact" as is also required by the state constitution.
Why? As stated by the Illinois Supreme Court, in Schrage v. State Board of Elections (1981), "In addition to the necessity for complying with the requirements of the Constitution, there are pragmatic reasons for taking cognizance of compactness. As recognized in both the 1870 and 1970 constitutions, requiring compactness prevents gerrymandering. In fact, compactness is 'almost universally recognized' as an appropriate anti-gerrymandering standard."
So what's the problem? Simply this: We can't trust the Illinois Supreme Court to insist that districts be compact. History shows that rather than giving the word "compact" its common, ordinary meaning, the Illinois high court since 1870 has opted to be political and define the word "compact" to mean "not really compact." For example, in 1895, it defined "compact" to mean "closely united, territorially" — whatever that means. In 1971, the court held that "compactness" didn't require "perfect compactness." "Reasonable compactness" would be sufficient. This was a license to gerrymander. See the maps for Illinois' congressional districts from 1970 through 2010 for proof.
Can you sue in federal court to stop gerrymandering? Not really.
In 2019, the U.S. Supreme Court in Rucho v. Common Cause ruled that while partisan gerrymandering may be "incompatible with democratic principles," that the federal courts lack jurisdiction to consider such claims, because they present nonjusticiable, political questions.
The U.S. Constitution vests the states and Congress, and not the courts, with power or jurisdiction to decide "political questions" and to pass laws to curb excessive partisan gerrymandering.
So if you wish to stop gerrymandering in Illinois, it appears you have two options: (a) elect holy angels; or (b) amend the Illinois Constitution to provide:
All districts shall be compact squares, rectangles or triangles. No district shall have more than four sides. All sides shall be straight lines. No arcs, no curves, no squiggles. The only factor, beyond shape, that may be considered in drawing the district's lines is population equality.
This piece was published originally in the Moline Dispatch and Rock Island Argus on March 5, 2020
Copyright 2020, John Donald O'Shea
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