intervenors seriously dispute this. Because the tie-breaking
provision is rationally related to Illinois’ significant interest
in the reapportionment process, the court finds it does not
violate the substantive component of the Due Process Clause.

This is so despite Justice Bilandic’s dissenting opinion in
People ex rei. Burris v. Ryan, 588 N.E.2d 1033 (I1l.), cert.
denied, 504 U.S. 973 (1992). Justice Bilandic argued the tie-
breaking provision does not comply with due process because it
arbitrarily establishes legislative districts, which in turn
impacts “the rights of Illinois citizens to participate on a fair
and equal basis in the electoral process.” Burris, 588 N.E.2d at
1042 (Bilandic, J., dissenting). In reaching this conclusion, he

relied heavily on Walker v. State Board of Elections, 359 N.E.2d

113 (Ill. 1976), where the Illinois Supreme Court addressed a
section of the Illinois Election Code providing for the
disqualification of a single member of the State Board of
Elections in the case of a deadlock, with the member’s name drawn
by lot. The court struck down this section on two grounds: (1)
it violated due process because it caused decisions to be arrived
at in an arbitrary manner and left the ultimate outcome to
chance; and (2) it violated article III, § 5 of the Illinois
Constitution, which prohibits any political party from having a
majority on the Board. See id. at 123.

This court finds Justice Bilandic’s dissent in Burris

unpersuasive and the majority opinion in Walker distinguishable

-13-


members, no more than four of whom may be members of the same
political party. Should the eight-member Commission deadlock and
fail to approve a redistricting plan by majority vote before
August 10, a ninth, tie-breaking member is appointed. To choose
the ninth member, article IV, § 3(b) directs the Illinois Supreme
Court to submit the names of two persons, not of the same
political party, to the Secretary of State. The Secretary of
State is then called upon to publicly “draw by random selection”
the name of one of the two persons, who then becomes the ninth
Commission member.

It is this so-called “tie-breaking provision,” requiring the
ninth Commission member to be picked at random, that precipitated
the Winters plaintiffs and Barnow to file suit. They, along with
the Philip intervenors, urge the court to declare that the tie-
breaking provision of article IV, § 3(b) of the Illinois
Constitution violates the Due Process and Equal Protection
Clauses of the Fourteenth Amendment of the United States
Constitution. Opposing them are defendants and Tully, who seek
to uphold the constitutionality of the tie-breaking provision.

At the court’s request, all of the parties (except LULAC, which
affirmatively disclaimed any interest in doing so) submitted
cross-motions for judgment on the pleadings regarding this and
other specified issues, pursuant to Federal Rule of Civil
Procedure 12(c). As it turns out, only the question of whether

the tie-breaking provision violates the Fourteenth Amendment


political party and each candidate’s name is thrown into the hat
only once, so each party stands an equal chance of winning (or
losing) the drawing. As a result, the tie-breaking provision
does not fall disproportionately on any discrete political party
or otherwise afford unequal treatment to different political
parties. See Rodriguez, 457 U.S. at 10, 12; cf. Weisberg v.
Powell, 417 F.2d 388, 394 (7th Cir. 1969) (requiring selection by
lot to determine the order of placing names on a ballot to avoid
equal protection violation); Mann v. Powell, 333 F. Supp. 1261,

1267 (N.D. Ill. 1969) (same).

Iv. CONCLUSION

For the reasons stated above, the court finds the tie-
breaking provision of article IV, § 3(b) of the Illinois
Constitution does not violate the Due Process or Equal Protection
Clauses of the Fourteenth Amendment of the United States
Constitution. It accordingly grants the motions for judgment on
the pleadings by defendants in the Winters and Barnow cases and
defendant-intervenor Tully, and denies the motions for judgment
on the pleadings by the Winters plaintiffs and Philip intervenors
and Barnow. This also means, as noted in the court’s oral ruling
and previous minute orders, all other issues and claims raised by

the parties in these cases are rendered moot.

-17-


doing so”); Khan, 180 F.3d at 833-34 (fundamental right was not
the general or broad right to contract, but the “right to be free
from state officials tortiously interfering with one’s existing
contractual relationships”). The answer to that is obviously,
“Of course not,” and nobody suggests otherwise. As no other
fundamental right is arguably implicated, the court will apply
the “highly deferential” rational basis review. Turner, 207 F.3d
at 426.

No one seriously doubts the State of Illinois has a
legitimate interest in legislative redistricting. The Supreme
Court has repeatedly emphasized the primary responsibility for
legislative and congressional reapportionment lies with the
States. See Growe v. Emison, 507 U.S. 25, 33-34 (1993); Miller
v. Johnson, 515 U.S. 900, 915 (1995). And, in this court’s
opinion, the tie-breaking provision is rationally related to that
interest.

Given the politically sensitive nature of the ninth
Commission member’s position in Illinois’ redistricting scheme,
it would seem, at first blush anyway, picking that member’s name
out of a hat is anything but rational. But the delegates at the
1970 Illinois Constitutional Convention - whence the tie-breaking
provision came - had their reasons. Specifically, they believed
it would give both political parties an incentive to compromise
because neither side would want to risk losing the random

drawing. As one delegate explained:


cert. denied, 531 U.S. 1073 (2001); United States v. Wood, 925

F.2d 1580, 1582 (7th Cir. 1991). All other documents, exhibits,
and materials attached to the parties’ briefs and motions are

stricken.

B. Substantive Due Process

Although the Winters and Barnow complaints challenge the
tie-breaking provision on various grounds, the court believes the
proper analysis is based on substantive due process. The first
problem this poses is which standard of review the court should
apply - strict scrutiny, rational basis, or something in between?
All the parties seem to agree some form of rational basis review
is appropriate, but it is less clear why that is so.

Defendants believe the Supreme Court’s election law and
voting rights cases provide the proper framework for evaluating
the tie-breaking provision. In recent years, the Supreme Court
has backed off somewhat from its strict categorical approach to

the right to vote. Compare Reynolds v. Sims, 377 U.S. 533, 554-

55, 562 (1964) (right to vote is fundamental and any alleged
infringement on right to vote must be “carefully and meticulously

scrutinized”), and Illinois State Bd. of Elections v. Socialist

Workers Party, 440 U.S. 173, 184 (1979) (right to vote is a

fundamental right subject to strict scrutiny), with Rodriquez v.

Popular Democratic Party, 457 U.S. 1, 9 (1982) (right to vote per

se is not a constitutionally protected right), and Burdick v.

Takushi, 504 U.S. 428, 432-33 (1992) (right to vote in any manner

-6-


requires the court’s attention in this opinion.

III. ANALYSIS

A. Judgment on the Pleadings

A motion for judgment on the pleadings under Rule 12(c) is
treated the same as one to dismiss for failure to state a claim
under Rule 12(b) (6): the court accepts as true all well-pleaded
allegations in the complaint and draws all reasonable inferences

therefrom in favor of the plaintiffs. See Forseth v. Village of

Sussex, 199 F.3d 363, 368 & n.6 (7th Cir. 2000). A Rule 12(c)
motion will be granted only if it appears beyond doubt that the
plaintiffs cannot prove any facts that would support a claim for
relief. See id. at 368.

The Winters plaintiffs and Philip intervenors (who filed a
joint motion) suggest theirs is “essentially a motion for summary
judgment,” but this apparently assumes the court will consider
the voluminous exhibits they have attached to their motion and
response brief. However, the vast majority of materials they
have tried to introduce are simply irrelevant to the court’s
decision. Indeed, the court wishes to make clear the only
documents outside the pleadings it has considered are the
verbatim transcripts from the Sixth Illinois Constitutional
Convention - an item the court may properly take judicial notice
of as a matter of public record without converting the motions
for judgment on the pleadings into ones for summary judgment.

See Anderson v. Simon, 217 F.3d 472, 474-75 (7th Cir. 2000),

-5-


DATED:

NOV 20 2001

ENTER:

Mle—

MICHAEL’S. KANNE, CIRCULT JUDGE

QO preset vane

TERENCE T. EVANS, CIRCUIT JUDGE

PHILIP ’G. REINHARD, DISTRICT JUDGE

-18-


interest. See Washington v. Glucksberg, 521 U.S. 702, 728
(1997); Turner v. Glickman, 207 F.3d 419, 426 (7th Cir. 2000).
Whether a “fundamental right” is involved in the first place
demands a “careful description” or formulation of the asserted
fundamental liberty interest. Glucksberg, 521 U.S. at 721, 722.
This means the liberty interest at issue must be defined in
concrete, specific terms, not abstract generalizations. See id.
at 722; Khan v. Gallitano, 180 F.3d 829, 833-34 (7th Cir. 1999).

One possibility here is to define the liberty interest at
stake more broadly so as to implicate the right to vote. By
determining who becomes the ninth Commission member, who in turn
will likely cast the deciding vote on which reapportionment map
the Commission will approve, the tie-breaking provision
undeniably has some indirect effect, down the road at least, on a
person’s right to vote. But interpreting the tie-breaking
provision as falling under the umbrella of the right to vote in
this way is premised on a much more abstract notion of that right
than the Supreme Court’s substantive due process jurisprudence
allows. Rather, the specific question before the court in the
present cases is more narrowly framed as: “Is there a
fundamental right to have the tie-breaking member of a
redistricting commission chosen by some means other than by lot?”
Cf. Glucksberg, 521 U.S. at 722-23 (issue was not whether there
is fundamental right to die, but whether there is “right to

commit suicide which itself includes a right to assistance in


Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge Michael S. Kanne Sitting Judge if Other
or Magistrate Judge Terence T. Evans than Assigned Judge
Philip G. Reinhard
CASE NUMBER 01 C 6566 DATE 11/20/2001
CASE Barnow vs. Ryan, et al.
TITLE

{In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

nature of the motion being presented.]

MOTION:
Cross-motions for judgment on the pleadings by plaintiff and defendants
DOCKET ENTRY:
(1) im Filed motion of [ use listing in “Motion” box above.]
(2) a Brief in support of motion due
@) a Answer brief to motion due___. Reply to answer brief due__.
(4) o Ruling/Hearing on setfor at.
(5) a Status hearing[held/continued to] [set for/re-set for] on setfor_ at.
(6) a Pretrial conference[held/continued to] [set for/re-set for} on setfor_ at
(7) Oo Trial[set for/re-set for]on saat.
(8) o [Bench/Jury trial] [Hearing] held/continued to_ at
(9) Qo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
CFRCP4(m) (General Rule 21 OO FRCP41(a\1) O FRCP41(a)(2).
do) soil [Other docket entry] For the reasons stated on the attached Memorandum Opinion and Order,

the motion for judgment on the pleadings by defendants is granted, and the motion for judgment on the
pleadings by plaintiff is denied. All other issues and claims raised by these parties in this case are
rendered moot. This case is consolidated with Case No. 01 C 50229 for purposes of this Memorandum

(ayy

Opinion and Order.

o [For further detail see order (on reverse side of/attached to) the original minute order.]

xX

No notices required, advised in open court.
No notices required.

Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.

Mail AO 450 form.

Copy to judge/magistrate judge. 85 3]

Hd 02 Aon igo

courtroom Mg pees
deputy’s Gii- Ua yf.
initials El uid
Date/time received in
central Clerk's Office

ALC

‘mailing deputy initials



can safely assume the tie-breaker will end up in their favor.

The delegates of the 1970 Illinois Constitutional Convention
reasonably thought they could avoid this problem with the use of
a random drawing. Unfortunately, as it turned out, they were
wrong, and the Winters plaintiffs and Philip intervenors spend a
great deal of time trying to prove just how wrong they were by
recounting the rather ignominious past of the tie-breaking
provision and the sharp criticism it has received over the years.
History proves it has had just the opposite of its desired
effect. Rather than forcing the parties to find common ground
for fear of losing the random drawing, they are apparently
willing to dig in their heels with the hope of winning the
drawing. In fact, the Commission has resorted to the tie-
breaking provision in each of the last three rounds of
reapportionment in Illinois. (Winters Am. Compl. I9 32-34;
Barnow Compl. &9 49-59) Accepting them as true, these arguments
illustrate well that the tie-breaking provision has not done what
it was supposed to do: prevent deadlock in the Commission. The
Winters plaintiffs and Philip intervenors also point out that
Illinois, in choosing the tie-breaking member by lot, is unique
among states with redistricting commissions. (Winters Pls. &
Philip Intervenors Mem. in Supp. of Mot. for J. on the Pleadings,
Exh. E) So what does all this mean? In terms of substantive due
process analysis, not much.

“It is one of the happy incidents of the federal system that

-11-


The object of the reapportionment plan... is to
reduce both political parties to a state of
equivalency. We believe we achieve this by utilizing
the random selection method of achieving a tie-breaker,
whereby neither party could look ahead with certainty
as to a potentional [sic] tie-breaker being more in
line with their opinions than with the other party’s
opinions.

* * *

(W]e believe we have adopted the most sensible [tie-

breaker reapportionment scheme] in that it does not at

any stage give the impetus to one party or the other to

stalemate, because it can look to the tie-breaker

system and figure out that it might have a better

advantage further down the road.

IV RECORDS OF PROCEEDINGS, SIXTH ILLINOIS CONSTITUTIONAL CONVENTION, at
2955, 2956 (July 21, 1970) (statements of Del. Sommerschield).
This justification for the random selection of the tie-breaking
Commission member - to act as a catalyst for bipartisan
cooperation during reapportionment - is perfectly reasonable, or
at least not so totally unreasonable that it fails the rational
basis test.

In some respects, it may even be more rational than the
procedures found in other states. For example, in four states
where a redistricting commission is used, the tie-breaking member
is chosen by either a majority of the state’s Supreme Court or
the Chief Justice of the state Supreme Court. See Alaska Const.
art. VI, § 8; Mont. Const. art. V, § 14(2); N.d. Const. art. Iv,
§ 3, 7 2; Pa. Const. art. II, § 17(b). As a result, the
commission members in these states who may be affiliated with the

same political party as the state Supreme Court’s majority or its

Chief Justice may have no incentive to compromise because they

-10-


through the ballot is not absolute and law imposing burden on
right to vote is not necessarily subject to strict scrutiny). It
now uses a “more flexible standard” when a state election law
impacts the right to vote, adjusting the rigorousness of the
inquiry depending on the extent to which the challenged
regulation burdens Fourteenth Amendment rights. See Burdick, 504
U.S. at 434. Under Burdick, defendants suggest strict scrutiny
is inappropriate because Illinois’ tie-breaking provision does
not subject the rights of Illinois voters to “severe” voting
restrictions. See id. In fact, according to defendants, the
tie-breaking provision does not affect a voter’s access to the
ballot, access to the polls, or burden a person’s voting rights
in any other way. If anything, they say, the random selection of
a ninth Commission member imposes nothing more than a
“reasonable, nondiscriminatory restriction” on the right to vote,
thus calling for rational basis review. See id.

The court, however, need not ultimately decide how the tie-
breaking provision would fare under Burdick, as it will instead
apply the Supreme Court’s more generic substantive due process
analysis. This too, it should be noted, points to a rational
basis test.

If a piece of legislation does not burden a fundamental
right, substantive due process requires only that it be
rationally related - in other words, that it not be completely

arbitrary and lacking any connection - to a legitimate government


Ryan, in his official capacity as the Illinois Attorney General,
Jesse White, in his official capacity as the Illinois Secretary
of State, the State Board of Elections and its members, all in
their official capacities, and the Illinois Legislative
Redistricting Commission and its members, all in their official
capacities, with the Illinois Supreme Court on August 17, 2001.
The Attorney General, acting on behalf of the Barnow defendants,
subsequently removed the Barnow case to the Northern District of
Illinois under 28 U.S.C. § 1441(a), on the basis of federal

question jurisdiction, see id. § 1331.

Because the Winters and Barnow complaints each challenge the
constitutionality of Illinois’ reapportionment and legislative
redistricting process, this three-judge court was convened
pursuant to 28 U.S.C. § 2284 and assigned to both cases.
Jurisdiction and venue for the cases are proper in this district

and division under 28 U.S.C. §§ 1331, 1367, 1391.

II. BACKGROUND
Article IV, § 3(b) of the Illinois Constitution sets forth
the manner in which the State of Illinois reapportions its
legislative and representative districts. If the Illinois
General Assembly is unable to agree on a redistricting plan, the
task is charged to a Legislative Redistricting Commission (“the

Commission”). The Commission is initially composed of eight

cases as, simply, “defendants.”

-3-


for various reasons. First, Justice Bilandic seemed to assume
without discussion the tie-breaking provision of article IV, §
3(b) could be subsumed under the broader fundamental right to
vote for substantive due process analysis - a notion this court
has explicitly rejected earlier in this opinion. More
importantly, he did not analyze the crucial question of whether
the rationale behind that provision could save it from a due
process attack. As for Walker, the tie-breaking provision in
that case involved the random disqualification of a board member,
so as to prevent a duly-appointed state constitutional officer
from casting his or her vote. In contrast, the tie-breaking
provision at issue here calls for the random addition of another
Commission member, so it does not affect the ability of the other
eight. Commission members to cast their votes. The holding in
Walker also depended in part on a separate section in the
Illinois Constitution that specifically prohibited a political
party from having a majority on the State Board of Elections. No
similar provision exists with respect to the composition of the
Legislative Redistricting Commission. Finally, and, once again,
most critically, the majority in Walker never considered any
redeeming, legitimate legislative purpose for the Election Code’s
tie-breaking provision. Perhaps its silence on the issue is
meant to imply it could find no such purpose. In any event, the
justification for the tie-breaking provision of article IV,

§ 3(b), as articulated in the debates of the 1970 Illinois

-14-


over the Republican minority and ignored all sorts of procedural
requirements and internal rules, leading to a final
reapportionment map that is the product of a hurried and one-
sided decision-making process. However, this is not what the
Winters and Barnow complaints allege and is not what these cases
are about. The Winters plaintiffs and Philip intervenors proved
this very point when they moved to amend the Winters complaint to
add these new allegations on the day of oral argument (a motion
the court has already denied). In fact, similar allegations form
part of an entirely new law suit filed in this court on October
12, 2001, in which the plaintiffs are represented by the same
attorneys representing the Winters plaintiffs and Philip

intervenors. ee Campuzano v. Illinois State Board of Elections,

No. 01 C 50376. Therefore, the court considers the procedural

due process argument a non-issue and need address it no further.

D. Equal Protection

In rather summary fashion, the Winters plaintiffs and Philip
intervenors challenge the tie-breaking provision on equal
protection grounds. This argument also merits little discussion.
Put simply, the Equal Protection Clause does not apply in the
first instance because the tie-breaking provision does not create
any sort of classification whatsoever. Instead, it treats both
political parties exactly the same and singles neither party out
for disparate treatment. The two candidates chosen by the

Supreme Court to be used in the drawing may not be of the same

-16-


MEMORANDUM OPINION AND ORDER

On September 28, 2001, this court heard consolidated oral
argument in the above two cases. That same day, due to impending
deadlines imposed by the Illinois Constitution and the necessity
of an immediate decision, the court announced its decision from
the bench and entered orders disposing of both cases with a

written opinion to follow in due course. This is that opinion.+

I. INTRODUCTION

On August 20, 2001, plaintiffs in Case No. 01 C 50229
{collectively referred to as “the Winters plaintiffs”) filed a
first-amended complaint against defendants, the Illinois State
Board of Elections and Ronald D. Michaelson, in his capacity as
the Executive Director of the Illinois State Board of Elections.
The court has since granted leave to the following parties to
intervene in the Winters action: John Tully, intervening as a
defendant, James “Pate” Philip and Lee A. Daniels (collectively
referred to as “the Philip intervenors”), intervening as
plaintiffs, and the League of United Latin American Citizens
(“LULAC”), intervening as a plaintiff.

Meanwhile, plaintiff in Case No. 01 C 6566, Ben Barnow,

originally filed his two-count complaint against defendants,? Jim

1 Just as it did for oral argument, the court has

consolidated these nearly identical cases for purposes of this
opinion.

2 Unless otherwise noted, the court will collectively refer
to all of the original defendants in both the Winters and Barnow

-2-


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS

WESTERN DIVISION

DAVID WINTERS, PATRICIA REID LINDNER,

J. BRADLEY BURZYNSKI, YOLANDA CAMPUZANO,
ARMANDO CARDENAS, GUADALUPE GARCIA, and
WILLIE JORDAN, JR., registered voters-
and Illinois citizens,

Plaintiffs,
v.
ILLINOIS STATE BOARD OF ELECTIONS and
RONALD D. MICHAELSON, in his capacity
as Executive Director of the Illinois

State Board of Elections,

Defendants.

BEN BARNOW, individually as a registered
voter,

Plaintiff,
Vv.

JIM RYAN, in his official capacity as the
Illinois Attorney General, JESSE WHITE,
in his official capacity as the Illinois
Secretary of State, the STATE BOARD OF
ELECTIONS and its members, JOHN R. KEITH,
WILLIAM M. MCGUFFAGE, DAVID E. MURRAY,
PHILIP R. O’CONNOR, ALBERT PORTER, ELAINE
ROUPAS, WANDA L. REDNOUR, and JESSE SMART,
all named in their official capacities,
the ILLINOIS LEGISLATIVE REDISTRICTING
COMMISSION and its members, TOM CROSS,
BARBARA FLYNN CURRIE, VINCE DEMUZIO,
WALTER DUDYCZ, RAYMOND EWELL, THOMAS
MARCUCCI, THOMAS MCCRACKEN, and JORGE
RAMIREZ, all named in their official
capacities,

Defendants.

No.

No.

01 c 50229

01 C 6566


a single courageous state may, if its citizens choose, serve as a

laboratory,” Reeves, Inc. v. Stake, 447 U.S. 429, 441 (1980)

{quoting New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

(Brandeis, J., dissenting)}, to conduct novel experiments in the
“science of government” and test solutions to difficult problems
of policy; such a state is given broad latitude, its decisions
subject only to the minimum requirements of the Fourteenth
Amendment that they not be arbitrary, capricious, or

unreasonable. See Smith v. Robbins, 528 U.S. 259, 273-75 (2000);

Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 546

(1985) (quoting Anderson v. Dunn, 5 L. Ed. 242, 247 (1821));
Chandler v. Florida, 449 U.S. 560, 579 (1981) (quoting Liebmann,
285 U.S. at 311 (Brandeis, J., dissenting)); Whalen v. Roe, 429
U.S. 589, 597 (1977). Perhaps the Winters plaintiffs and Philip
intervenors are right that Illinois’ experiment to choose the
tie-breaking Commission member by chance has been a real-world
failure. But that need not concern this court. Reapportionment
is, without question, a thorny issue of public policy, one where
a state deserves plenty of leeway to experiment and, sometimes,

make mistakes. See Growe, 507 U.S. at 34; cf. Rodriguez, 457

U.S. at 8 (methods used by Puerto Rico to structure its electoral
system given “substantial deference”). What matters for present
purposes is whether the idea behind the tie-breaking-by-lot
experiment makes a reasonable amount of sense. As explained

above, it does, and not even the Winters plaintiffs and Philip

-12-


Constitutional Convention, is more than sufficient to pass

rational basis review.

C. Procedural Due Process

In their joint response brief, the Winters plaintiffs and
Philip intervenors try to frame the constitutionality of the tie-
breaking provision in terms of procedural due process. When a
state deprives an individual of a protected liberty or property
interest, procedural due process generally guarantees the right
to fair procedures, such as adequate notice, an opportunity to be

heard, and an impartial decision maker. See Head v. Chicago Sch.

Reform Bd. of Tr., 225 F.3d 794, 803-04 (7th Cir. 2000). The
court fails to see how the tie-breaking provision implicates
these concerns. In the first place, the Winters plaintiffs and
Philip intervenors have never suggested what liberty or property
interest the tie-breaking provision supposedly deprived them of.
And while the manner of selecting the ninth Commission member may
indeed be arbitrary, based as it is on chance (although the court
stresses again the idea behind it is not arbitrary), this is a
separate and distinct issue from whether the procedures used and
decisions reached by the Commission are themselves arbitrary or
unfair. Procedural due process is concerned with the latter, not
the former.

Apparently recognizing this, the Winters plaintiffs and
Philip intervenors claim the Commission, with the Democrats

gaining control after this year’s tie-breaker, has rode roughshod

-15-