POLITICS

Partisanship on a judicial
map could lead to real change

by Charles N. Wheeler III

When lame-duck Republicans rammed a plan to redistrict the Illinois Supreme Court through the 89th General Assembly in its final hours, their intent was clear: * Draw new court boundaries to provide four districts that favored Republicans, thus reversing the 4-3 majority Democrats have held on the high court since 1964.

Despite its apparent simplicity, the GOP judicial map poses some immediate headaches, as well as possible long-term migraines.

* Give suburban voters a good shot at electing three of the seven justices.

* And as an added plus, make it harder for the state's most controversial jurist, Justice James D. Heiple, to be retained for a second term.

But what began as a straight-forward exercise in partisan one-upmanship could lead ultimately to fundamental changes in the state's court structure.

Crafting long-overdue new boundaries for the four downstate districts was no problem. The plan features two northern Illinois districts in which collar county Republicans are likely to be the major force, a GOP-dominated central Illinois district shared by Heiple and Justice Benjamin K. Miller, and a Democratic-leaning southern Illinois district that takes in the bottom half of the state.

To produce a fourth Republican justice, however, mapmakers needed to carve Cook County into three separate districts, one anchored in the heavily GOP suburbs. The division, though, runs counter to the state Constitution, which provides that Cook County is a single district from which three justices are elected. Hoping to overcome that obstacle. Republicans filed a federal lawsuit contending that at-large elections in Cook County violated federal voting rights provisions.

Despite its apparent simplicity, the GOP map poses some immediate headaches, as well as possible long-term migraines, for the state judiciary.

The most obvious difficulty is the plan's failure to adjust circuit court boundaries to reflect the new districts, from which appellate court justices also are elected. Currently, all the state's counties outside Cook are grouped into 20 circuits, each of which is wholly contained within one of the old map's four districts. That reflected more than cartographic neatness; it recognized the relationship between trial courts and courts of review. Until the Supreme Court rules on an issue, circuit courts must follow the precedents set by their local appellate courts. While the reviewing courts may differ among themselves on legal interpretations, it's no problem for trial judges as long as each circuit is entirely within one appellate district.

Under the new plan, however, seven downstate circuits are divided between two or more appellate districts, raising the possibility that trial judges might have to follow conflicting precedents on different days, depending on the county of the circuit in which they're presiding. In the worst case, a 14th Circuit judge could be bound by one appellate ruling in Morrison, another in Rock Island and a third in Aledo, because Whiteside, Rock Island and Mercer counties, while in the same circuit, are in three different districts under the GOP map.

Such mismatches can be remedied easily, of course, by realigning the circuits. A more intriguing question, however, may have been raised, albeit unintentionally, by the Republican lawsuit. On its merits, one would suspect the GOP would have a tough time invalidating the at-large requirement of the state Constitution. Challenges to at-large elections generally fall under two headings, those that allege violations of the one-person, one-vote guarantee of the U.S. Constitution and those that allege dilution of a minority group's voting strength in violation of the federal Voting Rights Act.

The U.S. Supreme Court has held that the one-person, one-vote rule is not applicable to judicial elections, which would seem to negate one GOP argument. Judicial elections do fall under the Voting Rights Act, the high court has said, but that legislation specifically refers to discrimination based on race, color or non-English speaking status, not one's party affiliation. So while Senate President James "Pate" Philip, a Wood Dale Republican, may lament that the 40 percent of Cook County voters who mark Repub-

46 / March 1997 Illinois Issues

Suppose, however, the same voting rights test were applied to appellate districts and judicial circuits outside Cook County, all of which elect jurists at large. Might one argue that a subdistrict built around Peoria or Macon counties would enhance the chances of electing a black appellate justice? Or that electing 10 or 12 trial judges at large in multicounty circuits dilutes the opportunity for African Americans in downstate cities to elect a judge of their choice?

No one seems to have raised such questions in the past, perhaps because no one thought seriously about judicial redistricting before the Republican move. Now that the issue has been raised, those questions ought to merit serious consideration.

Republicans probably won't prevail on the Cook County issue, but their suit could be the catalyst for closer scrutiny of the way judges are chosen. If so, crass partisanship for once will have served the public good.

Charles N. Wheeler III is director of the Public Affairs Reporting program at the University of Illinois at Springfield.

Illinois Issues March 1997 / 47