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Kilbride ‘maps’ opinion siding with former ComEd executive-plaintiffs allowed Madigan power to continue unchecked

Madison County Record

Wednesday, September 9, 2020  |  Article  |  By Steve Korris

Candidates--Judicial (27b) , Redistricting (78) Madigan, Michael--State House, 22

SPRINGFIELD – Illinois Supreme Court Justice Thomas Kilbride, standing for his second retention in the Third District, protected the redistricting power of House Speaker Mike Madigan after Madigan clinched Kilbride’s first retention.

In 2016, Kilbride and three other Justices blocked a ballot initiative that would have authorized a citizen commission to draw legislative district maps.

The majority sided with eight Madigan-allied plaintiffs who sued in Cook County on behalf of “Peoples Map,” challenging “Independent Maps” on behalf of more than a half million Illinois voters demanding reform to the way legislative maps are drawn – a process in its current form that allows Madigan to effectively remain in control of state government.

Lead plaintiff John Hooker formerly directed governmental relations for Commonwealth Edison and second plaintiff Frank Clark ran the utility. 

The two executives retired together in 2012, after securing a statewide tax increase to improve nuclear power plants at Clinton and Byron. 

Last month, Com Ed admitted the utility provided favors to Madigan in exchange for support on the tax

In 2016, Hooker sued the election board in Cook County as chair of People’s Map, and Clark identified himself as president of the Business Leadership Council. 

Six other citizens added their names.

For Kilbride’s retention campaign in 2010, the Democratic Party of Illinois – headed by Madigan – contributed $1.23 million, almost half his total. 

Kilbride’s campaign bought media messages from Kankakee to Moline and 65 percent of voters favored retention, five percent above the minimum. 

In his original campaign in 2000, the Democratic Party contributed about $686,000 while all other sources supplied about $208,000. 

A year later he and four other Justices rejected a claim that the Constitution required districts more compact than the ones legislators drew. 

No one challenged the maps of 2011, but four years ago Independent Maps challenged the legislature’s grip on maps for 2021 and beyond. 

They proposed to amend the state constitution so the auditor general would select seven redistricting commissioners and legislative leaders would pick four. 

First, the auditor general would identify 30 persons who could review applications for the commission. 

The auditor general would randomly pick three reviewers, who would identify a pool of 100 possible commissioners. The auditor general would then randomly draw from the pool two Republicans, two Democrats, and three persons with no affiliation. 

Finally, the four leaders of the legislature would pick commissioners. 

Independent Maps submitted 563,974 signatures for a ballot initiative in 2016, and the state election board validated 375,613. 

That exceeded the necessary number, and exceeded Madigan’s toleration. 

His party needed plaintiffs to keep it off the ballot and found them in the retired Com Ed executives, and others. 

The Peoples Map lawsuit asserted seven counts claiming the initiative would affect constitutional offices in violation of the constitution. 

Cook County Circuit Judge Diane Larsen allowed Independent Maps to intervene as the party in interest, and she denied them ballot status. 

The Supreme Court granted direct appeal and accepted a friendly brief from the League of Women Voters in support of ballot access. 

Groups from the Farm Bureau to the Chicago Southside NAACP to Common Cause and five chambers of commerce joined the brief. 

The Court affirmed Larsen on Aug. 25, 2016. 

Kilbride authored the majority opinion.

“While the auditor general plays no part in the current redistricting process, under the proposed ballot initiative, that office would be responsible for multiple tasks critical to the success of the new redistricting plan,” he wrote.

“While it is unclear from the record exactly how great a burden the additional duties imposed by the proposed initiative would create, two points appear certain.” 

First, he wrote, the auditor general would evaluate ethical conduct and partisan leanings of applicants for reviewers of the pool. 

“Secondly, and more importantly, the parties do not explain how the auditor general’s hypothetical ability to perform the newly designed redistricting tasks affects the constitutionality of the proposal.” 

He wrote that the state constitution limited initiatives to structural and procedural subjects, and delegates rejected initiatives affecting a broader range of subjects. 

Kilbride disagreed with an argument of Independent Maps that Larsen’s ruling made it largely impossible to reform the redistricting process.

“The auditor general is not the only potential nonlegislative actor capable of filling the duties outlined in its proposal,” he wrote. 

He wrote that the instant proposal wasn’t the only model that could be imagined. 

Justices Thomas Freeman, Mary Jane Theis, and Anne Burke concurred. 

Dissenting Justice Lloyd Karmeier wrote that the majority read the initiative provision “in a narrow, technical, and restrictive fashion.” 

“The amendment proposed by Independent Maps would supply the requisite authority for the auditor general’s participation in the process,” Karmeier wrote.

“Moreover, the additional duties the auditor general would assume under the amendment would not alter any of the responsibilities the auditor general already possesses.” 

He wrote that drafters of the initiative provision intended to allow citizens to accomplish something. 

“Plaintiffs’ reading of the law, however would allow them to accomplish nothing,” he wrote. “Ballot initiatives would be pointless.” 

He wrote that none of the redistricting schemes Kilbride imagined would pass muster under the majority’s approach. 

“All would fail just as this one has failed and for the same reasons,” he wrote.

“If we do not permit this ballot initiative to go forward in accordance with the law, our authority over the redistricting process and indeed our status as an institution will forever be suspect.” 

Justices Rita Garman and Robert Thomas joined him and dissented on their own. 

Garman wrote that the initiative provision gave people “power to act in situations where it is against the legislature’s self interest to do so.” 

“Those elected have an incentive to draw maps that will help them remain in office,” she wrote. 

Thomas wrote that the majority nullified a critical component of the constitution. 

He wrote that drafters created it to enable later generations to use their sovereign authority as a check against self interest by the legislature. 

“In Illinois, as throughout the United States, there is a palpable sense of frustration by voters of every political affiliation that self perpetuating institutions of government have excluded them from meaningful participation in the political process,” Thomas wrote.

“The Illinois Constitution is meant to prevent tyranny, not to enshrine it.” 

So far this year Kilbride has campaigned without Madigan’s money. 

On Aug. 25, the laborers union in Burr Ridge gave him $57,800, the American Federation of Teachers in Crest Hill gave him $20,000, and carpenters in Chicago gave him $5,000. 

Operating engineers in Peoria gave him $10,000 on Sept. 2.