No.

121077
______________________________________________________________________________
IN THE
SUPREME COURT OF ILLINOIS
______________________________________________________________________________
JOHN HOOKER, et al.,
Plaintiffs-Appellees,
vs.
ILLINOIS STATE BOARD OF ELECTIONS,
et al.,
Defendants-Appellees,
and
SUPPORT INDEPENDENT MAPS,
Intervenor-DefendantAppellant.

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On Direct Appeal from the

Circuit Court of Cook County,
County Department, Chancery Division
No. 16 CH 06539
Hon. Diane J. Larsen,
Judge Presiding.

______________________________________________________________________________
PETITION FOR REHEARING OF APPELLANT
SUPPORT INDEPENDENT MAPS
______________________________________________________________________________

Michele Odorizzi
John A. Janicik
Lori E. Lightfoot
Chad M. Clamage
MAYER BROWN LLP
71 South Wacker Drive
Chicago, Illinois 60606-4637
312-782-0600
modorizzi@mayerbrown.com
Attorneys for Appellant Support Independent Maps
August 31, 2016

INTRODUCTION
Pursuant to Illinois Supreme Court Rule 367(b), defendant-appellant Support
Independent Maps (Independent Maps) respectfully petitions for rehearing of the
Courts 4-3 decision in Hooker v. Illinois State Board of Elections, 2016 IL 121077, on
three independent grounds.
First, Independent Maps urges the Court to reconsider its decision that the
Redistricting Initiative falls outside the scope of a permissible initiative under Article
XIV, 3 because it proposes giving the Auditor General a minor but important role in the
redistricting process. In reaching that decision, the majority overlooked Independent
Maps principal textual argumentthat the subject of each and every provision of the
Redistricting Initiative is redistricting, that redistricting is a structural and procedural
subject[] contained in Article IV, and that all of the provisions of the Redistricting
Initiative are therefore properly limited to structural and procedural subjects contained
in Article IV. At the very least, this argument creates enough ambiguity as to how the
subject of an initiative should be defined for purposes of Article XIV, 3 to require the
Court to go beyond a plain language analysis and to consider the extensive legislative
history of that provision. Doing so inevitably leads to the conclusion that the
Redistricting Initiative is precisely the kind of initiative that the framers had in mind
when they created a limited right to amend Article IV of the Constitution through the
initiative process.
Second, if the Court does not reconsider its ruling, Independent Maps urges it at
least to clarify its reasoning. On its face, the discussion in 42-43 of the opinion is
internally inconsistent: while 42 holds that an initiative cannot under any circumstances

assign any redistricting duties to the Auditor General, 43 strongly suggests that an
initiative could use a different non-legislative actor to fill the duties assigned to the
Auditor General in Independent Maps proposal. It is unclear how both of these
conclusions can be true. Clarifying that portion of the opinion would provide muchneeded guidance with respect to the scope of a proper initiative.
Third, and more broadly, Independent Maps urges the Court to reconsider its
decision to leave for another day the validity of plaintiffs other challenges to the
Redistricting Initiative. 2016 IL 121077, 45. The majority opinion leaves the citizens of
Illinois without any real guidance as to the scope of a permissible initiative. Indeed,
although the majority appears at various points in its opinion to assume that redistricting
is a structural and procedural subject[] contained in Article IV, it never says so
outright. Nor does the majority opinion provide any guidance as to how to draw the line
between permissible provisions and those that would result in an initiative being thrown
off the ballot. The majority may have intended to leave the door open to future
redistricting proposals. But the uncertainty created by its opinion is enough, in and of
itself, to sound the death knell for any future reform efforts. It takes an enormous amount
of time, effort, and money to formulate a proposal, obtain the half million or more
signatures necessary to get it on the ballot, and then to finance the inevitable emergency
litigation. No one will be willing to undertake such an effort in the future without
guidance from this Court as to what is permissible and what is not.
There is still time to rehear this case and to put the Redistricting Initiative on the
November 8 ballot. But regardless of whether a redistricting initiative appears on the
ballot in 2016, rehearing is desperately needed to ensure that a constitutional right the

Court seems to unanimously recognizeto use the initiative process to propose changes
to the legislative article regarding redistrictingdoes not become a dead letter.
ARGUMENT
The Courts rules of appellate procedure provide the nonprevailing party with
the opportunity for rehearing in order to apprise the court of points the party believes
were overlooked or misapprehended. Berg v. Allied Security, Inc., 193 Ill.2d 186, 191
(2000) (Freeman, J., specially concurring). [T]he filing of a petition for rehearing is not
a pro forma exercise in futility. Id. at 193. [T]he court takes seriously the rehearing
period as well as the issues sought to be heard therein. Id. Rehearing is essential because
it is better to reconsider these matters now, before [this Courts] opinion bec[omes]
final, than to use a later case to limit or overrule the previous decision. Id. at 192. Under
these standards, rehearing is warranted.
I.

The Court Overlooked Or Misapprehended Independent Maps Textual

Argument.
A.

Independent Maps Textual Argument Is The Only One That

Comports With The Plain Language Of Article XIV, 3.

The majority opinion suggests that the Court had no choice but to strike down the
Redistricting Initiative because the provisions relating to the Auditor General
unambiguously violate the strict limitations in article XIV, section 3 on citizen
initiatives. 2016 IL 121077, 44. Invoking the plain language of article XIV, section 3,
the majority concluded that the duties of the Auditor General have never been and are
not now a subject contained in Article IV as currently constituted, and [t]hus, that
provision is not a proper subject of the legislative article, in violation of the limitation in
article XIV, section 3. Id. 42. The majoritys reasoning, however, starts with the
flawed assumption that the only way to define the subject of the provision in question
3

is as relating to the Auditor Generals job duties. Id. Since article IV does not mention
the subject of the Auditor Generals office or its duties, even in passing, id., that
definitional choice is dispositive, leading inevitably to the conclusion that the
Redistricting Initiative is not limited to structural and procedural subjects contained in
Article IV.
In defining the subject of the provision, the majority did not even acknowledge,
much less address, Independent Maps competing plain meaning argument.1 As
Independent Maps explained, the crucial question is whether redistricting is a structural
and procedural subject[] contained in Article IV. Once that question is answered in the
affirmative (as it must be), it necessarily follows that the Redistricting Initiative is
limited to structural and procedural subjects in Article IV. Each and every provision of
the Redistricting Initiative is limited to redistricting in the sense that each provision
relates directly to and only to redistricting. Because redistricting is a structural and
procedural subject in Article IV, it necessarily follows that the entire Redistricting
Initiative is limited to structural and procedural subjects contained in Article IV, as
Article XIV, 3 requires. See Independent Maps Opening Brief (IM Br.) at 22, 24-27,
29-35; Independent Maps Reply Brief (IM Reply) at 3-7.
Looking at the Redistricting Initiative this way, it becomes clear that the
provisions relating to the Auditor General are properly limited to a structural and
procedural subjectredistricting. The new duties assigned to the Auditor General are all
directly and solely related to the new procedures created to redistrict the General
Assembly. See IM Br. at 30 (the new duties the Redistricting Initiative proposes to assign
1

The majority described Independent Maps as present[ing] three main arguments, but
neither listed nor addressed Independent Maps textual argument. 2016 IL 121077, 26.
4

to the Auditor General are inextricably intertwined with redistricting, which is

undeniably both a structural and procedural subject contained in Article IV); id. at 36
(the new tasks assigned to the Auditor General are all limited to the structural and
procedural subject of redistricting); IM Reply at 9 (it is undeniable that all of the
additional duties imposed on the Auditor General are limited to redistricting). The most
natural reading of Article XIV, 3 is that assigning redistricting duties to the Auditor
General (or anyone else) does not take the proposal outside the scope of a permissible
amendment. Indeed, it is the majoritys interpretation that is strained and unlikely: to
ignore the nature of the new duties the Redistricting Initiative assigns and treat the
initiative as if it addressed only the general subject of the Auditor Generals duties blinks
reality.
If the subject is redistricting, it does not matter that Article IV does not
currently mention the Auditor General or his duties. Article IV does address
redistricting at length, in section 3. Because the Redistricting Initiative is limited to
redistricting and does not purport to impose any duties on the Auditor General that are
unrelated to redistricting, it does not transgress the limitations imposed by Article XIV,
3.
B.

At The Very Least, Independent Maps Interpretation Is Reasonable,

Requiring The Court To Consider The Constitutional Debates
To Resolve Any Ambiguity.

At the very least, Independent Maps plain-language argument shows that the
word subject in Article XIV, 3 is ambiguous because there is more than one way to
define the subject of an initiative proposal for purposes of deciding whether it is
limited to a structural or procedural subject in Article IV. Language is ambiguous if

it admits of more than one reasonable construction, People v. Eppinger, 2013 IL

114121, 21, fail[s] to lead to an inescapable answer, or is capable of being
understood by reasonably well-informed persons in two or more different senses. In re
E.B., 231 Ill.2d 459, 469 (2008). Language is also deemed ambiguous if neither of two
competing readings is clearly unreasonable. People v. Williams, 2016 IL 118375, 30;
see also Eppinger, 2013 IL 114121, 24 (divergent views as to the proper reading are
indicative of ambiguity).
In this case, a reasonably well-informed person could certainly accept
Independent Maps argument that redistricting is the subject of every provision in the
Redistricting Initiative, including the provisions relating to the Auditor General. Indeed,
three members of this Court did accept that argument. Because Independent Maps
textual argument is not clearly unreasonable (Williams, 2016 IL 118375, 30), this
case cannot be properly decided without considering the legislative history of Article
XIV, 3.
The majority acknowledged that if Article XIV, 3s language is ambiguous,
the Court has an obligation to consult the drafting history of the provision, including
the debates of the delegates to the constitutional convention, to determine the framers
true intent. 2016 IL 121077, 35. Indeed, not considering that history would be contrary
to the Courts long-standing practice, both in cases involving Article XIV, 3 and other
cases in which the Court has interpreted the 1970 Constitution. In all three of the cases in
which this Court interpreted Article XIV, 3, it discussed the debates and convention
reports at length. See Chicago Bar Assn v. Illinois State Bd. of Elections, 161 Ill. 2d 502,
508-09 (1994) (CBA II); Chicago Bar Assn v. State Bd. of Elections, 137 Ill. 2d 394,

401-04 (1990) (CBA I); Coalition for Political Honesty v. State Bd. of Elections, 65 Ill.
2d 453, 457-59, 462-63, 466-72 (1976) (Coalition I).
The same was true in a number of more recent cases involving other
constitutional provisions. For example, in Hope Clinic for Women, Ltd. v. Flores, 2013
IL 112673, 42-46, Justice Burke, writing for the Court, considered committee reports
and debates to determine how to interpret the privacy clause of the Illinois Constitution.
And in City of Chicago v. StubHub, Inc., 2011 IL 111127, 18-23, Justice Theis,
writing for the Court, considered the constitutional debates because the framers had left
the phrase pertaining to in Article VII, 6(a) intentionally imprecise, trusting this
Court to interpret that provision in light of its legislative history. Similarly, the framers
deliberately left the exact scope of Article XIV, 3 unclear, explaining what our
purposes are, and then . . . leav[ing] the question of abuse [of the initiative process] to the
courts. 4 Record of Proceedings, Sixth Illinois Constitutional Convention, 2712 (1970),
A076.
The majority here did not consider the constitutional debates in any detail in
striking down the Redistricting Initiative. But Justice Karmeier did, reaching the
unassailable conclusion that redistricting was specifically recognized by the drafters of
the constitution as not only a proper but a critical matter that would be subject to
amendment through article XIV, section 3s ballot initiative process. 2016 IL 121077,
129 (Karmeier, J., dissenting). Independent Maps briefs also outline in detail exactly
the kinds of abuses the framers were trying to prevent by providing that initiatives must
be limited to structural and procedural subjects in Article IVspecifically, the use of
the initiative process as a subterfuge to make substantive policy changes or to make

changes in other parts of the constitution that have nothing to do with the structural and
procedural subjects the initiative process was designed to address. IM Br. at 6-9, 24-25;
IM Reply at 7.2 Because redistricting is indisputably such a subject, however, an initiative
should pass muster so long as it is limitedas the Redistricting Initiative at issue here
isto redistricting.
Because the majoritys analysis fails to take into account either Independent
Maps textual argument or the legislative history of Article XIV, 3, it is at best,
incomplete. People v. Trzeciak, 2013 IL 114491, 76 (Theis, J., dissenting from denial
of rehearing). For that reason alone, the Court should grant rehearing and reconsider its
conclusion that the Redistricting Initiative goes beyond the scope of a permissible
initiative because it imposes new duties relating solely to redistricting on the Auditor
General.
II.

The Court Should Grant Rehearing To Clarify Its Opinion.

The majority opinion says that the decision is not intended to reflect in any way

on the viability of other possible redistricting reform initiatives, but rather is limited to
the Redistricting Initiative at issue here and, even more narrowly, to one provision of that
Initiative relating to the Auditor General. 2016 IL 121077, 44. With all due respect,
however, the majority opinion did much more than merely decide one narrow issue.
Blumenthal v. Brewer, 2016 IL 118781, 96 (Theis, J., concurring in part and dissenting

The majority opinion misapprehends Independent Maps argument on the legislative

history. Independent Maps was not arguing, as the majority suggests, that the
constitutionality of the Redistricting Initiative depends on its unexpressed underlying
intent. 2016 IL 121077, 32. The test is not subjective. Rather, it is objectivewhether
an initiative in fact makes substantive policy changes or strays into areas that do not fall
within the category of structural and procedural subjects in Article IV. Because
redistricting is squarely within the permitted zone, however, the only issue should be
whether the Redistricting Initiative is limited to redistrictingas it clearly is.
8

in part). In fact, whether the majority intended to do so or not, its opinion is likely to shut
the door on all future redistricting reform efforts in this State.
In order for mapmaking to be taken out of the self-interested hands of the General
Assembly, redistricting duties must be assigned to an individual or group that is
independent of the legislature. The majority suggested that, notwithstanding its ruling
with respect to the Auditor General, the initiative process could still be used to propose
meaningful procedural reforms. As the majority put it, [t]he Auditor General is not the
only potential nonlegislative actor capable of filling the duties outlined in [Independent
Maps] proposal. Certainly Illinois has other offices or individuals that are unencumbered
by the limitations expressed in Article XIV. 2016 IL 121077, 43. But if the majoritys
analysis in the immediately preceding paragraph is right, it is hard to see how it would be
possible to assign any role in the redistricting process to any nonlegislative actor.
In 42, the majority concluded that the particular duties the Redistricting
Initiative assigns to the Auditor General are out of bounds because adding them would
create[] changes that neither attack nor concern the actual structure or makeup of the
legislature itself. Id. 42 (internal quotation marks and ellipses omitted). If the duties
themselves cannot be viewed as addressing a structural and procedural subject,3 then it
does not matter who is proposed to perform those tasks.
On the other hand, if the identity of the nonlegislative actor designated to perform
the task does matter, it is hard to see who could possibly qualify given the other reasons

While that is apparently the majoritys view, it cannot be squared with either the plain
language or the intent of Article XIV, 3. Redistricting is a quintessential example of a
structural and procedural subject in Article IV and therefore any proposed changes to
the redistricting process necessarily fall within the scope of a permissible initiative under
Article XIV, 3.
9

the majority advanced in 42. If the nonlegislative actor is not already mentioned
somewhere in Article IV, a challenger would be able to cite 42 of the majority opinion
for the proposition that the duties of that actor have never been and are not now a
subject contained in Article IV as currently constituted and thus are not a proper
subject of the legislative article. And if a proposal used any of the three nonlegislative
actors currently mentioned in Article IV, 3the Secretary of State, the Supreme Court,
or the Attorney Generalto fulfill the duties the Redistricting Initiative assigns to the
Auditor General, challengers would be able to make the same arguments plaintiffs made
here. Because the offices of these actors are created in other articles (Article V, Article
VI, and Article V, respectively), challengers could argue (as plaintiffs did here) that any
such initiative greatly expands the duties of that [actors] office and has a material
effect on another section of our constitution. 2016 IL 121077, 27, 29.
The majoritys reasons for striking down the provisions relating to the Auditor
General create a Catch-22 that would seem to foreclose using any non-legislative actor
from undertaking any of the duties currently outlined in the Redistricting Initiative. Thus,
even if the majority intended to preserve the option to create a redistricting body free of
legislative influence, the reasoning it employed to strike down the Auditor General
provisions would seem to preclude any meaningful proposals along those lines in the
future. Even if the Court were to deny rehearing on the Auditor General provision, it
should at a minimum clarify its reasoning in 42-43.
III.

Rehearing Should Be Granted To Consider All Of Plaintiffs Challenges To

The Redistricting Initiative.
Finally, Independent Maps respectfully urges the Court to grant rehearing in order

to provide a reasoned decision on the validity of all of the challenges plaintiffs made to
10

the Redistricting Initiative. Had the circuit court granted plaintiffs requests for injunctive
relief in Counts VIII-XI of their complaint, the Court could have affirmed the issuance of
an injunction on any one of a variety of grounds without reaching all of plaintiffs legal
theories. But the circuit court did not rule on plaintiffs request for injunctive relief.
Instead, it entered declaratory judgment for plaintiffs on each of the seven different legal
theories alleged in the complaint.4 By affirm[ing] the judgment of the circuit court
(2016 IL 121077, 1), the Court necessarily affirmed not only the circuit courts decision
to grant a declaratory judgment on Count I with respect to the Auditor General provision,
but also the circuit courts rulings on Counts II-VII of the complaint. The Court should
not allow the circuit courts decision to stand without considering the merits of each of
those rulings.
To be clear, Independent Maps is not asking this Court to determine whether any
hypothetical ballot initiative addressing the redistricting process could be constitutional.
2016 IL 121077, 45 (underlining added). Rather, we are asking the Court to determine
whether this particular ballot initiative, the Redistricting Initiative, is constitutional based
on the specific objections plaintiffs have raised. The circuit court ruled on each of these
issues, and the parties briefed them to this Court. Only one step remains: constru[ing]
the relevant constitutional provisions, a purely legal question. 2016 IL 121077, 35.
That is a task that this Court not only can but should undertake.

The circuit court granted plaintiffs motion for judgment on the pleadings on Counts IVII, each of which sought a declaratory judgment that the Redistricting Initiative did not
comply with either Article XIV, 3 or Article III, 3 for the reasons set forth in that
Count. R. C383-403, A017-37. The circuit court made that judgment final and appealable
by making a Rule 304(a) finding. R. C403, A037.
11

Not addressing the other issues now would effectively bar any future efforts to
use the initiative process to propose redistricting reforms. Putting an initiative on the
ballot is an expensive, time-consuming project. A proponent must first select language
that can achieve real reform and yet be well-positioned to survive judicial review. Article
XIV, 3 then requires the proponent to collect the signatures of a number of electors
equal in number to at least eight percent of the total votes cast for candidates for
Governor in the preceding gubernatorial election. Currently, that number is 290,216.
2016 IL 121077, 74 (Karmeier, J., dissenting). And because signatures may fail for
many reasons, a proponent must collect hundreds of thousands of signatures above that
threshold to ensure that the signatures will survive review by the Illinois State Board of
Elections.
The proponent then must defend the constitutionality of the proposed initiative in
an inevitable court challenge and a likely appeal. Indeed, eight proposed citizen
initiatives have been challenged in the courts, and no initiative has made its way to the
ballot without first undergoing judicial review. Finally, if the proposal survives judicial
review, the proponent must then attempt to convince voters that the proposal is a good
idea, so that either three-fifths of those voting on the amendment or a majority of those
voting in the election approve it. Ill. Const, Art. XIV, 3. All told, a multi-million
dollar, multiyear campaign is required, along with untold hours of employee, volunteer,
and attorney time.
The Redistricting Initiative illustrates the difficulty in placing an Article XIV, 3
initiative on the ballot. As the amicus brief explains (at 9), the League of Women Voters
gathered tens of thousands of signatures in 2008 seeking to put a question on the ballot

12

asking voters to change the Constitution to institute an Independent Redistricting

Commission. Gathering tens of thousands of signatures is a tremendous feat in its own
right. But it fell hundreds of thousands of signatures short of Article XIV, 3s
requirements. Id. Six years later, a broader coalition of good government and civil rights
organizations attempted to place another proposal for an [Independent Redistricting
Commission] on the ballot. Id. But the proponent of that initiative also failed to gather
the signatures necessary to warrant an appeal from Judge Mikvas 2014 decision. See IM
Br. at 17. Only now, eight years after the League of Women Voters first proposed
redistricting reform, has a redistricting reform effort managed to overcome all (but one)
of the hurdles necessary to place a redistricting initiative on the ballot. Independent Maps
gathered 563,974 signatures and spent more than $4 million to support that massive,
multiyear effort.
All of these campaigns occurred when there was no Supreme Court or Appellate
Court decision addressing redistricting and the initiatives proponents could take comfort
in the framers statements at the Constitutional Convention that redistricting is one of the
critical subjects that Article XIV, 3 was created to address. But with this Courts
opinion, the calculus has changed dramatically.
Although the majority opinion seems to assume that redistricting is a structural
and procedural subject in Article IV (see 2016 IL 121077, 43-44), it does not say so
explicitly. Thus, supporters of a redistricting initiative would still have to battle
arguments like those made in Count V of plaintiffs complaint here, that any redistricting
initiative fails at the outset, regardless of what kinds of provisions it contains, because
redistricting is neither a structural nor a procedural subject.

13

Even if that hurdle can be cleared, the majority opinion gives no clear guidance as
to what a proponent must do to appropriately limit a redistricting proposal. The majority
opinion suggests that one problem with the provisions regarding the Auditor General is
that the Auditor General is not currently mentioned in Article IV. 2016 IL 121077, 42.
But it does not say whether the analysis would be different with respect to nonlegislative
actors who are currently mentioned in Article IV, 3, such as this Court, the Secretary of
State, and the Attorney General. Without the benefit of the views of a majority of this
Court with respect to the validity of the back-up provisions set forth in the Redistricting
Initiative or the proposal to alter the provisions regarding judicial review of redistricting
decisions, supporters of any new redistricting initiative would have to guess as to whether
these or similar provisions would pass muster.
The Redistricting Initiatives omission of the Attorney General from the provision
regarding judicial review illustrates the dilemma anyone contemplating another initiative
campaign would face. In 2014, Judge Mikva concluded that an initiative that changed the
Attorney Generals role did not run afoul of Article XIV, 3. Clark v. Illinois State Bd.
of Elections, No. 14 CH 07356 (June 27, 2014), at 10, A052. In 2016, Judge Larsen
disagreed. R. C399, A033. Three members of this Court would have reversed Judge
Larsens ruling on that issue. 2016 IL 121077, 140 (Karmeier, J., dissenting). But
without a ruling by the majority of this Court, Illinois citizens planning an initiative
would have no way of telling whether such a provision was permissible or not.
Independent Maps is not asking the Court to give it an advisory opinion as to how
an initiative could be rewritten to make it conform to Article XIV, 3. Rather, it is asking
the Court to do what it normally doesto decide whether the circuit court properly

14

entered declaratory judgments for plaintiffs and to articulate the reasons why the circuit
court was right or wrong. Even if the outcome here did not change, deciding those issues
would provide guidance as to whether and how future redistricting initiatives could be
crafted. As it stands now, however, the majoritys discussion of only one of plaintiffs
challenges is internally inconsistent and fails to provide the citizens of Illinois or the
lower courts with any principled basis for drawing a line between permissible and
impermissible initiatives. That uncertainty will kill any future reform efforts through the
initiative process just as surely as would a definitive ruling that redistricting is not a
structural or procedural subject and thus is not fair game for any initiative.
Without clear guidance from the Court, proponents of any new reform efforts
would be forced to play a high-stakes game of whack-a-mole as their opponents find
new ways of challenging any initiative they might propose. This case illustrates the point.
The 2014 initiative had virtually the same provisions as the Redistricting Initiative with
respect to the Auditor General, the Supreme Court, the Attorney General and this Courts
jurisdiction over redistricting plans. See R. C187-89. Yet the same plaintiffs, represented
by the same counsel, did not challenge any of those provisions in 2014, focusing instead
on other aspects of that initiative. Independent Maps crafted the Redistricting Initiative to
eliminate any provisions that could be found wanting in light of Judge Mikvas 2014
ruling. After Independent Maps did the work of gathering almost 600,000 signatures on
its petitions, plaintiffs attacked the initiative based on challenges they could have made in
2014.
We have no doubt that the same scenario would be repeated if supporters of a new
redistricting initiative were to rewrite it yet again to delete the one provision this Court

15

struck down, with respect to the Auditor General, and even to eliminate all of the
provisions plaintiffs challenged in this case. Even then, new challenges would be made or
old challenges would be revived. The proponents of that hypothetical new initiative
would have no way of predicting, based on this Courts opinion, the likelihood that their
proposal would pass muster. Given that uncertainty, no one in their right mind would be
willing to expend the time, effort, and money it would take to replicate what Independent
Maps did in this case.
The majority strongly suggested that it did not intend to shut the door on any
future redistricting initiatives. But as a practical matter, the majoritys refusal to decide
all of the issues raised in this case would not only slam the door, but would securely lock
it by discouraging anyone from undertaking the kind of campaign necessary to return to
this Court for additional guidance.
IV.

The Petition For Rehearing Is Not Moot.

The fact that the State Board did not certify the Redistricting Initiative for the

November 8, 2016 ballot on August 26, 2016 does not moot Independent Maps petition
for rehearing. Despite the expiration of that deadline, the Court can still grant
Independent Maps effectual relief by ordering the Redistricting Initiative to appear on the
2016 ballot. And even if that relief becomes impossible to achieve, the Court should still
decide Independent Maps petition for rehearing under the public interest exception to the
mootness doctrine.
Just last year in Jackson-Hicks v. E. St. Louis Bd. of Election Commrs, 2015 IL
118929, 16, this Court unanimously held that an election challenge was not moot when
it issued its decision on March 16, 2015, even though ballots had been printed and

16

absentee voting had begun for an election that was scheduled to occur just 22 days later,
on April 7, 2015. The Court held that it could still provide the challenger with effectual
relief because [a]lthough we cannot turn back the clock, the April 7 election has yet to
occur, so it remains possible, theoretically at least, for ballots to be reprinted and
electronic voting machines, if there are any, to be reprogrammed. Id. 12, 15. While
the Court recognized that absentee ballots may already have been cast in favor of the
candidate whose appearance on the ballot was being challenged, that was not an
impediment to granting relief: absentee voting and difficulty in notifying voters of ballot
changes are common and unavoidable consequences of the narrow time frame in which
election contests must be prosecuted. . . . If such circumstances were sufficient, in
themselves, to render an appeal moot, meaningful judicial oversight of the electoral
process would be all but impossible. Id. 16.
The same analysis applies here. The Constitution gives this Court broad
mandamus power to order governmental actors to act. Ill. Const., Art. VI, 4(a). That
power would enable the Court to order the State Board to amend its certification of the
November 2016 ballot to include the Redistricting Initiative even though the August 26
deadline has passed. Cf. Coalition for Political Honesty v. State Bd. of Elections, 83 Ill.2d
236, 260 (1980) (ordering that a writ of mandamus issue directing the State Board of
Elections to certify the [Cutback Amendment] for submission at the November 4
election).
Here, the November 8 general election is still more than two months away and
therefore it is more than theoretically possible to put the Redistricting Initiative on the
ballot. See Jackson-Hicks, 2015 IL 118929, 15. As in Jackson-Hicks, that would

17

continue to be true even if some deadlines were to pass and some voters were unable to
cast a vote on the Redistricting Initiative. In any event, the first absentee ballots do not
have to be sent out until 45 days before the election (on September 23, 2016), when the
State must transmit a validly requested absentee ballot to an absent uniformed services
voter or overseas voter. 52 U.S.C. 20302(a)(8). The statutory period for early voting at
limited locations does not begin until September 29; in fact, the website of at least one
election authority (the Cook County Clerk) warns that ballots will not be available at the
beginning of this period but should be available no later than October 12 . . . by which
time most challenges seeking to remove candidates from the ballot should have been
decided

and

we

have

been

able

to

prepare

voting

http://www.cookcountyclerk.com/elections/earlyvoting/Pages/default.aspx.

equipment.
Traditional

Early Voting at numerous locations does not begin until October 24, 2016. Thus, while
time is of the essence, there is still a window during which the Court could grant
effectual relief by granting Independent Maps petition for rehearing and ordering the
Redistricting Initiative to be included on the November ballot.
Even if the Court could not grant Independent Maps any effectual relief, however,
it should still grant rehearing and decide the important constitutional issues raised by this
appeal. In Bettis v. Marsaglia, 2014 IL 117050, 8, the Court applied the public interest
exception to the mootness doctrine in a case involving a failed attempt to put a
proposition on the ballot even though the election had long since passed. As the Court
explained, the criteria for invoking the public interest exception are that: (1) the question
presented is of a public nature; (2) an authoritative resolution of the question is desirable
for the purpose of guiding public officers; and (3) the question is likely to recur. Id. 9.

18

In Bettis, the Court recognized that the first criteria is almost always met in election cases
because questions relating to election law are inherently a matter of public concern. Id.
11. That is certainly true here. Indeed, the very fact that this Court granted direct review
of Independent Maps appeal under Rule 302(b) demonstrates the public importance of
the issues raised in this case. Furthermore, for all of the reasons outlined above, this is
clearly a situation where an authoritative decision from this court to guide the lower
courts is desirable. Bettis, 2014 IL 117050, 9.
Finally, there is no doubt that interest in redistricting reform remains high and that
the important constitutional issues raised by Independent Maps appeal are therefore
likely to recur. See People v. Holt, 2014 IL 116989, 48 (the issue was likely to recur
because, as a matter of common sense, this cannot be the only instance where a troubled
defendant and defense counsel are at odds over the question of defendants fitness to
stand trial). The prohibitive cost of bringing an initiative to the point where it is ripe for
judicial review means that those constitutional questions are likely to evade review,
leaving the scope of a permissible redistricting initiative under Article XIV, 3 forever in
limbo. That is precisely the kind of situation in which the public interest demands that the
Court consider the issues even if the case itself has become moot because of the passage
of time. See People ex rel. Bernardi v. City of Highland Park, 121 Ill.2d 1, 8 (1988)
(considering whether a home rule municipality was required to conform to the Prevailing
Wage Act because that was an issue capable of repetition, yet evading review).
CONCLUSION
The framers of the 1970 Constitution created Article XIV, 3 so that the People
can reform the General Assembly when legislative self-interest stands in the way. Article

19

XIV, 3 was meant to be a vital part of the checks and balances on the General
Assemblys powers, much like this Court checks the General Assembly when it enacts
unconstitutional laws. For all of the reasons outlined above and in Independent Maps
briefs on appeal, this Courts decision effectively neutralizes Article XIV, 3, depriving
Illinois voters of a critical constitutional right to propose and vote on redistricting
reforms.
That this result comes in a decision described in every media report as being made
along party lines is particularly unfortunate, because it lend[s] credence to the most
cynical appraisal of the work of judges in Illinois and so threatens the confidence in the
men and women who administer the judicial system that is the true backbone of the rule
of law. Bush v. Gore, 531 U.S. 98, 128 (2000) (Stevens, J., dissenting).
For the foregoing reasons, the Court should recall its mandate, grant rehearing,
reverse the decision of the circuit court, and order the State Board of Elections to certify
the Redistricting Initiative for inclusion on the November ballot.
Respectfully submitted,

Dated: August 31, 2016

s/

Michele Odorizzi

One of the attorneys for DefendantAppellant Support Independent Maps

Michele Odorizzi
John A. Janicik
Lori E. Lightfoot
Chad M. Clamage
MAYER BROWN LLP
71 South Wacker Drive
Chicago, Illinois 60606-4637
Telephone: (312) 782-0600
modorizzi@mayerbrown.com

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CERTIFICATE OF COMPLIANCE
I certify that this petition for rehearing conforms to the requirements of Rules
341(a) and 367(a). The length of this petition, excluding the words on the Rule 341(d)
cover, the Rule 341(c) certificate of compliance, and the certificate of service is 6,070
words.

s/

Michele Odorizzi

CERTIFICATE OF SERVICE
The undersigned hereby certifies that she is one of the attorneys for DefendantAppellant Support Independent Maps and that she electronically filed the foregoing
Petition for Rehearing with the Clerk of the Illinois Supreme Court on August 31, 2016
and served all counsel of record by causing a copy thereof to be sent via email on August
31, 2016 to counsel at the email addresses below:
Michael J. Kasper
222 North LaSalle, Suite 300
Chicago, IL 60601
mjkasper60@mac.com
Robert T. Shannon
Adam R. Vaught
Hinshaw & Cullbertson LLP
222 North LaSalle Street, Suite 300
Chicago, IL 60601-1081
rshannon@hinshawlaw.com
avaught@hinshawlaw.com
Eric M. Madiar
217 S. Third Street, Suite 101
Springfield, IL 62701
emadiar@madiar.com
Marie D. Spicuzza
Assistant States Attorney
Municipal Litigation
500 Daley Center
Chicago, Illinois 60602
marie.spicuzza@cookcountyil.gov
Constantine L. Trela, Jr.
Tracy F. Flint
Neil H. Conrad
Sidley Austin LLP
1 S. Dearborn St.
Chicago, IL 60603
ctrela@sidley.com
tflint@sidley.com
nconrad@sidley.com

Richard J. Prendergast
Michael T. Layden
Richard J. Prendergast, Ltd.
111 West Washington, Suite 1100
Chicago, IL 60602
rprendergast@rjpltd.com
mlayden@rjpltd.com
James M. Scanlon
James M. Scanlon & Associates
27 North Wacker Dr. #502
Chicago, Illinois 60606
james.scanlon@jmsalaw.com
Thomas A. Ioppolo
Assistant Attorney General
Office of the Illinois Attorney General
100 W. Randolph Street, 13th Floor
Chicago, Illinois 60601
tioppolo@atg.state.il.us
Ruth Greenwood
Annabelle Harless
Campaign Legal Center
73 W. Monroe St., Suite 322
Chicago, IL 60603
rgreenwood@campaignlegalcenter.org
aharless@campaignlegalcenter.org

s/

Michele Odorizzi