Column: When out on a limb, be careful where to cut

What would you call a man who climbs high up into an oak tree, crawls out to the end of a long branch 35 feet above the ground, and proceeds to cut through the branch which really needs to be cut off — between himself and the trunk?

Do you see a problem? A possible "unintended consequence?"

What do you call a man so intent on fixing an immediate problem that he never considers a significant "unintended consequence?"

In Congress, we call these people Democrats.

Do you think, my characterization is unfair? Let me give you just two conclusive examples that Democrats rush in to fix dire problems while giving no consideration to equally or more dire consequences.


Remember Senator Harry Reid? He was the Democratic majority leader in the U.S. Senate. The Republicans, for partisan political purposes, were blocking President Obama's judicial nominations. So Reid got a brilliant idea. Get rid of the Senate rule requiring a super-majority of 60 votes before a nomination could be considered.

Harry Reid fashioned a rule that allowed for consideration of judicial nominations upon a simple majority vote (51). Obama got his district and appellate judges. But what was the unintended consequence?

President Trump and the Republican Senate have now used "Harry's Rule" to put Justices Neil Gorsuch and Brett Kavanaugh on the Supreme Court. In addition, the Republicans have now placed 51 new appellate judges on the bench (51 of 179). The once liberal 9th Circuit Court of Appeals is changing. Ten of the 29 judges on that bench are now Trump's appointees (with a lot of help from Mitch McConnell, the Republican Senate Majority Leader).

Which brings us to the second example.


In an all-out effort to keep Kavanaugh off the Supreme Court, the Democrats trotted out a number of women who accused the judge of sexual misconduct. Only one accusation against the judge had even a scent of credibility.

Democrats immediately "climbed the oak," crawled to limb's end and began sawing.

"The woman must be believed."

"The man cannot deny his way out of the accusation."

"A woman would never falsely claim she was sexually assaulted."

"The accused is presumed guilty."

"The man must prove his innocence!"

The tactic wasn't new. It had first been employed when Judge Clarence Thomas was nominated to the Supreme Court. But Republicans, slow on the uptake, made no use of any similar tactic when Judges Elena Kagan and Sonia Sotomayor were nominated by Obama to the Supreme Court.

But then when Kavanaugh was appointed by Trump, Democrats reverted to their playbook.

"A woman would never lie about being sexually assaulted."

"The denial of a man accused of sexual assault can't be believed."

Really?


The notion that a man must be presumed guilty because a woman has made an accusation is worse than stupid. It is unconstitutional and un-American. The Supreme Court long ago held that the presumption of innocence is a fundamental feature of American due process. The same for requiring the accuser to prove his case beyond a reasonable doubt (or at least some proof)!

The Democrats who spouted these insipidities voiced them because they saw an opportunity to fix an immediate problem — keep a conservative off the Supreme Court.

Now, they have an unanticipated problem. Their presidential candidate, Joe Biden, has become the target of Tara Reade's sexual misconduct allegations.

Tara Reade is a woman. Must she be believed simply because she's a woman?

That was the Democrat's rule when Christine Blasey Ford accused Kavanaugh.

"No woman would ever lie about being sexually assaulted."

Is it still the rule?

Democrats said Kavanaugh's word wasn't sufficient to clear him. Is that still the rule in Biden's case?

Democrats said the "presumption of innocence" had no application when a man was seeking appointment to the nation's highest court. How about when he seeks election to the nation's highest office? Democrats said, "the defendant had the burden of proof" in a judicial confirmation hearing. How about in an election on the candidate's fitness to be president?

There is no double-standard when Republicans and Democrats simply disagree. But there is a lamentable double standard when Democrats apply one set of rules to Republican candidates and then repudiate their own rules when a Democrat becomes the target.

Democrats climbed the tree, crawled to branch-end and cut in order to sink a Republican nomination without thought of the long-term consequences.

Let's hope the Republicans don't adopt the Democrats' shameful double standard. Even an inveterate flip-flopper like Joe Biden deserves due process and to have his accuser prove his guilt.

This piece was published originally in the Moline Dispatch and Rock Island Argus on May 21, 2020

Copyright 2020, John Donald O'Shea

Biden is a modern-day McKinley

To win on the first ballot, a candidate for the Democratic Party's presidential nomination needs 1,991 delegates. As of earlier this week, Joe Biden has 1,435 delegates. Poor Bernie Sanders had only 984.

But candidate Biden has a problem, and it's not coronavirus. That's working to "Fairly Honest Joe's" advantage.

The problem is that Joe Biden is a walking gaffe machine. He didn't know Super-Tuesday from Super-Thursday. He doesn't know what state he's in. He's in favor of banning "AR-14s." He introduces his wife as his sister. Worse than that, he has snapped at voters, telling them they are "dog-faced pony soldiers", and "full of sh ..."

To protect Biden, the swamp-dwellers who run the Democratic Party have now convinced Sanders to take a hike. Commit political seppuku! But why?

It's simple. They can't afford to have candidate Biden "lose it" in a nationally televised debate. They were entirely aware that Sanders had the ability to run a verbal shiv deep between "Fairly Honest Joe's" ribs.

U.S. House Majority Whip Jim Clyburn, D-South Carolina, a key Biden supporter, has led the movement. In March, ahead of a half dozen primary contests, he said, "... if the night ends the way it has begun, I think it is time for us to shut this primary down, it is time for us to cancel the rest of these debates, because you don’t do anything but get yourself in trouble if you continue in this contest when it’s obvious that the numbers will not shake out for you."

Mr. Clyburn's message: Old Joe, you're only "going to get yourself in trouble."


Party strategist and former Clinton operative James Carville echoed Clyburn: "These voters want to shut this thing down ... I mean, you can just look all across the spectrum of the Democratic Party and people are saying, 'We've made our decision, this is who we're going with.' ... Let's shut this puppy down ... and worry about November. This thing is decided. There's no reason to keep it going not even a day longer. ... We've got to bring this party together; we've got to stop this. ...."


But there's a problem with this strategy. Are you also going to cancel the presidential debates with President Trump for fear of a Biden gaffe? If you were worried about Bernie administering the coup de grâce to old Joe, what's going to happen when Biden comes under Trump's cruise missile barrage?

Between now and the November election, will Joe's handlers continue to limit "old Joe" to seven-minute reads from teleprompters? Or is he going to be locked away in a safe house — or his basement — while his surrogates do his stump-speaking for him?

Impossible you say? If you haven't haven't heard it on CNN and MSNBC, "Fairly Honest Joe" has now been accused of sexual assault by Tara Reade, a former staffer in Biden's Senate office. And what are his surrogates doing? Take a guess.


Of course, there is the 1896 precedent for a candidate hunkering down at home and making all his sanitized speeches from his "front porch", tailored to the true-believers coming to worship at his shrine. Margaret Leech in her book, "In the Days of McKinley", tells how the Republican Party arranged for railroad excursions at reduced rates to Canton, Ohio, so the McKinley true-believers could travel to hear their beloved candidate's brief, scripted speeches.

"President William McKinley's conception of his candidacy was so passive that he at first gave the impression of intending to make no campaign at all. He had decided to stay at home and address only the people who cared to visit him there. Before his nomination, he had made only two speaking engagements, both nonpolitical. Except for three days absence to keep these appointments and one weekend of rest in August, McKinley remained in Canton from the date of his nomination until the election, available at all hours to the public on every day but Sunday.

"McKinley was no match for his younger opponent [William Jennings Bryan] in dramatic presence and oratorical power, and he refused ... to enter the competition. .... The idea of a 'front-porch campaign' seems to have been the natural outgrowth [of McKinley's preference] of ... desiring election without the need to seek it."

"In his campaign speeches [from his front porch], McKinley made no mistakes. He could ill have afforded to do so. A careless word or misplaced allusion would not only have alienated the prideful delegation on his lawn, but would have been spread before the newspaper readers of the country. Though McKinley's addresses seemed unstudied and spontaneous, they had been carefully prepared for him ... with material on background for each group. ..."

So there seems to be a precedent, the model, for the Democrats' campaign plan: Stuff a sock in "old Joe's" mouth.



John Donald O'Shea is a retired circuit court judge and a regular columnist.

This piece was published originally in the Moline Dispatch and Rock Island Argus on May 8, 2020

Copyright 2020, John Donald O'Shea

What's the harm in marijuana? After all, we need the money

The State of Illinois is broke. Its pensions are grossly underfunded, and it's months behind on paying its service providers. So, where does Illinois find more money?

Democrats in the Illinois Legislature and the governor, a Democrat, came up with a "brilliant idea." Legalize and tax marijuana.

The Illinois Cannabis Regulation and Tax Act was signed into law by Gov. J. B. Pritzker on June 25, 2019. It was amended on December 6, 2019. Illinois thus became the 11th state to legalize the limited use of marijuana.

On January 1, 2020, it became legal in Illinois for adults over 21 to legally purchase cannabis for recreational use from licensed dispensaries across the state. That possession is limited to not more than (a) 30 grams of cannabis flower; (b) 5 grams of cannabis concentrate; or (c) 500 milligrams of THC contained in a cannabis-infused product.

But when you are the 11th state to legalize the "personal use" of "pot," wouldn't reasonable and conscientious legislators and a reasonable and conscientious governor look at federal law under which sale and possession of cannabis still remain illegal?

And wouldn't you look at the experience of Colorado, the first state to legalize it? I recently took a continuing legal education course. One of the presenters was Tim Thoelecke, Jr., a 1986 graduate from Duke University. Thoelecke is the founder and CEO of InOut Labs, based in Morton Grove, Ill. That company is a national provider of employee drug testing and wellness testing services. His company securely processes and delivers thousands of drug tests under private sector and state contracts. He is an active member of many professional associations related to drug testing. I refer to his materials with his consent.


During his presentation, he referenced the following facts:

• Since recreational marijuana was legalized in Colorado, traffic deaths in Colorado in which drivers tested positive for marijuana increased 109%, while all traffic deaths increased 31%.

• Since recreational marijuana was legalized in Colorado, traffic deaths involving drivers who tested positive for marijuana more than doubled from 55 in 2013 to 115 killed in 2018.

According to the National Safety Council:

• Employees who tested positive for marijuana had 55% more industrial accidents, 85% more injuries and 75% greater absenteeism compared to those who tested negative.


According to the 2018 National Survey on Drug Use and Health:

• 11% of full-time employed Americans used illicit drugs in the past 30 days.

• 9.5% of full-time employed Americans used marijuana in the past 30 days.


The two best known cannabinoids in marijuana are delta-9-tetrahydrocannabinol (THC), and cannabidiol (CBD). THC is psychoactive, CBD is thought not to be.

Legally dispensed cannabis products are labeled to show the CBD and THC content. A product labeled as containing 100% CBD and 0% THC should not trigger a positive drug test for marijuana. But though labeled, a test of such products often does trigger a positive test for marijuana.

Conclusion: As much as 70% of CBD products understate THC content.


In Colorado there are now more marijuana dispensaries than Starbucks, McDonald's and Subway outlets combined.

According to an October 21, 2015, article in Science Daily, 30% of marijuana users suffer from a "Use Disorder," which is defined as, "A problematic pattern of cannabis use leading to clinically significant impairment or distress. Typically includes a strong desire to take the drug, difficulties in controlling its use, persisting in its use despite harmful consequences, a higher priority given to drug use than to other activities and obligations, increased tolerance, and sometimes a physical withdrawal state." In short, users can't stay away from it. Almost sounds like "addiction."

Between 1995 and 2018, samples taken from cannabis seized by Drug Enforcement Agents, show a rising percentage of THC content. In 1995: 3.6% In 2002: 7.2%. In 2010: 10.36%. In 2018: 15.61%.

But quite apart from safety concerns, a reputable study shows that substance abusers are 33% less productive and cost their employers $7,000 annually.


So, if you really think marijuana use has no costs, you belong in the Illinois Legislature or behind the governor's desk.

This piece was published originally in the Moline Dispatch and Rock Island Argus on April 25, 2020

Copyright 2020, John Donald O'Shea

Lessons from the Great Depression

Illinois Gov. J.B. Pritzker's executive order requires us to "stay at home" and "to close non-essential businesses." So how is the coronavirus going to affect the tax collections and revenues of Illinois and its political subdivisions?

We can look at what happened to state and local revenues during the Great Depression for a parallel. The National Conference of State Legislatures, in a paper titled "State Finance in the Great Depression" (Ronald Snell, 2009), tells what happened to state revenues then.

The Depression quickly affected state and local revenues. Unlike now, in 1927, two-thirds of all state and local government revenues came from property taxes: 20% of state revenues; 82% of local government revenue. For states then, the only comparable revenue source was the motor fuel tax.

Nationwide, the "assessed valuations" of real estate fell from 1929 through 1936. They then began to rise — slowly. Nationwide, assessments dropped 20%; in Illinois, 40%. Property tax collections fell. Local government property tax collections did not reach 1927 levels until 1944. For states, not until 1952.

Consequently, property tax collections fell for state and local governments. State collections in 1932 were 11% below the 1927 level. They fell another 30% by 1936. Local tax collections fell less abruptly, but 1934 collections were 13% below the 1927 level. State collections fell more sharply because of their base in corporate and utility properties.

Initially, the state and local government response was to continue spending at approximately the level of spending in previous years. Shortfalls were balanced by a small increase in federal aid to the states, continued growth in motor fuel taxes and borrowing. In 1932, gross revenues from all sources and spending were similar in amount and purpose to what they had been in 1927 — for both state and local governments.

Then came the deluge. Rapid growth in unemployment posed new demands for public assistance that state and local governments were unprepared to meet. In 1927, the states' direct spending on public welfare ("relief") was $40 million, or about 3% of their general spending. Local governments spent $111 million, less than 2% of general expenditures. Prior to the Depression, assistance to low income and destitute people was not a governmental priority. That was largely left to private charities. But simultaneous agricultural and urban industrial unemployment soon overwhelmed both private and public sources of public assistance.

State and local governments increased spending on public assistance programs during the Hoover administration (1929-1933). State spending grew to $74 million in 1932. Local spending more than tripled from 1927 to 1932, rising to $370 million. (This was nearly 6% of general spending). But these efforts were insufficient.

That being so, an early initiative of the Roosevelt administration was enactment of the Federal Emergency Relief Act in May 1933. The act provided for $500 million in grants to state governments (at a time when a million dollars was still a lot of money), in order to "aid in meeting the costs of furnishing relief and work relief and in relieving the hardship and suffering caused by unemployment in the form of money, service, materials, and/or commodities to provide the necessities of life to persons in need as a result of the present emergency..."

During the Great Depression two-thirds of all state and local revenues came from property taxes. Today, 56% of the revenue collected by Illinois comes from income taxes, 34% from sales taxes and the remaining 10% from other sources, such as excise taxes.


So what happens when all "non-essential businesses" shut down? Closed businesses collect no sales taxes. And if they are corporations and have no income, they pay no corporate income taxes.

This week it was reported that almost 17 million Americans had filed jobless claims over the past few weeks, including nearly 500,000 Illinois residents. If people have no income, they pay no individual state income tax.

For fiscal year 2020, Illinois is spending $18 billion on healthcare, $15 billion on pensions, $9 billion on education, $7 billion on welfare and $5 billion on interest. During this shut down, those costs aren't decreasing. Expect healthcare and welfare to increase. No income and no sales means no taxes. And Illinois, unlike the federal government, cannot print money.

If 500,000 people earning a minimum wage of $600 per week are out of work for a week, that's $300 million of lost taxable income. At 5%, that's a $15 million weekly loss to Illinois. Add to that weekly corporate income tax and sales tax losses.

Illinois, as of March 22, had a $7.5 billion backlog of unpaid bills and additional underfunded pension obligations. Diminished tax revenues will make things worse.

It's not hard to see why President Trump aspires to re-open businesses.

This piece was published originally in the Moline Dispatch and Rock Island Argus on April 10, 2020

Copyright 2020, John Donald O'Shea

FLU EPIDEMICS TODAY AND YESTERDAY

I have been asked to write on two questions:

First, by what authority did Gov. J.B. Ptitzker issue his "Stay at Home" and "Close all Non-Essential Businesses" Coronavirus Executive Order?

Second, were quarantine and isolation used by public authorities during the 1918-19 Spanish Flu Epidemic?

(1) Governor's Powers

As early as 1824, the Supreme Court in Gibbons v. Ogden referred to a state’s authority to quarantine under its "police powers." Each State has "police powers" to protect the health, safety and welfare of those people in the State. Then, In 1902, the Court in Compagnie Francaise v. Louisiana State Board of Health, directly addressed a state’s power to quarantine an entire geographic area. In that case, both the State law and its implementation were upheld as valid exercises of the State’s "police powers."

So, where exactly does Gov. Pritzker get power to issue his Coronavirus Executive Orders?

The Illinois Legislature has "conferred upon the Governor" specific powers to deal with emergencies and disasters in the Illinois Emergency Management Act. That Act defines "disasters" to include "epidemics or public health emergencies." It authorizes the Governor by "proclamation to declare that a disaster exists."

Once he so declares, the Act gives him power to "To control ingress or egress to and from a disaster area, the movement of persons within the area, and the occupancy of premises therein."
It further give him power to "Control or restrict the sale or distribution of food, materials, goods or services; and to exercise ... any other powers ... as may be necessary to promote and secure safety and protection of the civilian population.

Clearly under these two grants of power, the Governor has power to order people to "stay at home," to "close non-essential business," and to order quarantine or isolation.

(2) Spanish Flu Quarentines

So what did Chicago authorities do when the Spanish Flu struck in 1918?

By 1918, Chicago had 2.7 million residents. The Flu arrived on September 18. It seemingly first showed at Great Lakes Naval Training Station when a few sailors got sick. Naval officials acted quickly in an attempt to contain the disease there by instituting isolation and quarantine of some 50,000 sailors.

By late-September, it appeared that the epidemic at Great Lakes station had crested. New cases were decreasing.

In Chicago, Health Commissioner Dr. John Dill Robertson announced that officials had “the Spanish influenza situation well in hand now.” To monitor the situation, Robertson made influenza a "reportable disease" on September 16, but took no further action.

Robertson guessed wrong. Chicago's epidemic was just beginning. By September 21, Chicago experienced a sudden marked rise in the number of deaths due to acute respiratory diseases. By September 30, there were 260 cases in the city. Robertson told residents to prepare to isolate themselves should they become sick. “Every victim of the disease is commanded to go to his home and stay there.” And he did ask the Chief of Police to have his officers stop all persistent sneezers and coughers who did not cover their faces with handkerchiefs. Churches, schools, theaters, restaurants, streetcars, and other places where people congregated were were allowed to remain open, but ordered to maintain proper ventilation.

As the flu worsened, Illinois Influenza Advisory Commission intervened. Its first step was to pass a binding resolution on October 11 banning public dancing in all clubs, cabarets, and halls and to prohibit all public funerals across the state. By then, Chicago physicians were reporting as many as 1200 new cases a day, and climbing.

On October 15, the IIAC closed all theaters, movie houses, night schools, and “all other places of public amusement.” Public schools were not closed, but attendance dropped 50%.

By October 29, new cases in Illinois were on the decline. The epidemic was abating.

The Spanish Flu Epidemic of 1918-19 is thought to be the third worst pandemic in recorded history. It took between 40 and 50 million lives. The New World Smallpox Pandemic of 1520 is estimated to have killed 56 million. The Black Death from 1347-51 killed 200 million. https://www.visualcapitalist.com/history-of-pandemics-deadliest/


The Spanish Flu affected by my family. My grandmother died in 1919 in a rural area of Canada of complications from the Flu. Her obituary notice reads,

"One of the saddest deaths which has occurred for a long time, happened, on Wednesday, from the effects of influenza followed by pneumonia, when Mary L. died in her 41st year. ... The news of her death has cast a gloom over the countryside. A very sad feature in connection with her illness was that twin babies were born on Monday, and lived only long enough to be baptized. Besides her husband, 12 children, 5 girls and 7 boys are left motherless ...."

This piece was published originally in the Moline Dispatch and Rock Island Argus on March 31, 2020

Copyright 2020, John Donald O'Shea

How We Live our Lives

Around the the beginning of the second century, an unknown teacher penned the Didache, a tract teaching Christians how they should live their lives.

It begins ...

"There are two ways, one of life and one of death, and there is a great difference between the two ways.

"The way of life is this. First of all, you shall love the God who made you. Second, love your neighbor as yourself. And all things you would not want done to you, do not do to another person."

It then explains what "loving your neighbor as yourself" entails:

"Do not murder," do not murder a child by abortion or kill a newborn infant, do not bear false witness, do not slander, do not plot against your neighbor. Do not be a liar.


My ethical training began with my mother. "Do unto others as you would have them to unto you." "If Tommy eats worms, are you going to eat worms?" "Always tell the truth, or you will be forced to cover your lies with more lies."

My dad taught by words, and by the way he lived his life. "We don't use the "N- word;" it's meant to hurt. At the country club, when a a gentile member verbally publicly abused a new Jewish member, my dad intervened, "Stan, cut it out. He has as much right to be here as you do."

I first learned of the Didache from my second grade nun. The nuns continued to build on the foundation my parents were laying. They taught us from the old Baltimore Catechism. "Who is God?" Why did God make you?" "Why did Christ suffer and die?"

Then came my days in high school. The priests and lay teachers reinforced the gospel message that I had been given by my parents and the nuns, and provided the future tools needed for my entry and success at the University of Notre Dame, and its law school.

If I have succeeded in my profession, it is because I was carefully taught and was given the ethical and intellectual tools to succeed by my parents, and my teachers.

But today, almost everything I was taught by my parents, the nuns and the priests has come, or is coming, under assault in our country. I was consistently taught that we are not permitted to employ evil "means" to achieve a good "end." Today that principle is scoffed at by an ever-increasing segment of the American people and their elected officials. Today, if the "means" will work to achieve the "end," then they are acceptable and "good."

Libel, slander and character assassination have become an everyday political "means" choice. If a lie will achieve the political "end," then lie. And pander. Say, "I am personally opposed to abortion, but I believe that a woman has an absolute right to choose for whatever reason, even if that choice entails directing her doctor to kill the new-born child (a U.S. citizen) after a botched abortion."

Such things are permissible if "the ends indeed justify the means." Read what Saul Alinsky, the apostle of Radical Social Change, has written:

"Life and how you live it is the story of 'means' and 'ends.' The 'end' is what you want, and the 'means' is how you get it. ... The man of action views the issue of 'means' and 'ends' in pragmatic and strategic terms. He has no other problem; ... He asks of 'ends' only whether they are achievable and worth the cost; of 'means,' only whether they will work."

"We live in a world where 'good' is a value dependent on whether we want it. ... The Haves want to keep; the Have-Nots want to get."

For Alinsky, "good" is subjective. Whatever each of us wants becomes "good." But if each of us decide what is "good" and what is "evil," are we not all Gods? With the right to eat the fruit we desire from any tree in the garden? A good "end" is whatever we want. As to "means," the only question is "whether they will work."

But I was taught that "good" is objective. God is good. Therefore, his commands are good. They include that we love him, and that we love our neighbor as ourself.

When we compare Alinsky's way, and the way of the Didache, we find "a great difference between the two ways."

An election is coming. If a political party is willing to lie, and to falsely destroy reputations to

achieve its political ends, how can anybody trust them? How can you? Lies and character assassination extinguish political civility.

A jury can only guess at the proper verdict where all the witnesses are liars. The same is true of voters in a democracy beset by liars.

This piece was published originally in the Moline Dispatch and Rock Island Argus on March 27, 2020

Copyright 2020, John Donald O'Shea

Getting rid of Gerrymandering isn't easy

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