opened the door for judicial review of some types of cases involving constitutional judgment.171
Decided just a few years before Baker, the Donovan court drew roughly the same conclusion as
the United States Supreme Court—that there is a difference between “political questions” and
“political cases.”172 The court believed that Donovan, involving a disputed reapportionment plan,
was firmly in the latter category, merely requiring it to judge whether the legislature’s
reapportionment effort was constitutional, rather than take the quasi-legislative action of
formulating its own plan.173 Later, in Kluk v. Lang (1988), the court formally adopted the Baker
test.174 Since Kluk, the Illinois Supreme Court has never dismissed a case under its political
question doctrine—except for the education cases.175
As discussed above, the court’s adherence to the doctrine is questionable; however, even
under the Baker test the current court should be able to rule on education issues.176 Contrary to
the Edgar court’s finding that it did not have the resources to judge educational adequacy, at the
time there were several academic standards with which it could judge the relative educational
equality of Illinois schools, including the Illinois Goal Assessment Program test, a state-level
standardized academic assessment exam, national academic assessments such as the American
College Testing (“ACT”) exam, and graduation, daily attendance, and drop-out rates.177 Since
Edgar and Lewis E., the Illinois State Board of Education has also instituted two comprehensive
elections. Id. In Daly, the court refused to rule on the case because it found it had no power to halt an election. Daly, 38 N.E.2d at 163-
171 Donovan, 132 N.E.2d at 502-03. The Donovan plaintiff initiated a taxpayer suit seeking a declaratory judgment that reapportioned
state senate and representative districts were constitutionally invalid. Id. The plaintiff’s prayer for relief was key—rather than ask the
court to halt elections (as in Daly) or redraw districts themselves, he merely sought the court’s judgment on the constitutionality of the
172 See id. at 506 (citing Marbury v. Madison, 5 U.S. ( 1 Cranch) 137 (1803)) (“The mere fact that political rights and questions are
involved does not create immunity from judicial review.”); Baker v. Carr, 369 U.S. 186, 217 (1962).
173 Donovan, 132 N.E.2d at 506. As the court emphasized:
There is a vast difference between determining whether the principle of compactness of territory has been
applied at all or not, and whether or not the nearest practical approximation to perfect compactness has been
attained. The first is a question which the courts may finally determine; the latter is for the legislature.
Id. Drawing this distinction was a matter of degree—there was no bright line between political questions and political cases—and
could only be settled by examining the plaintiff’s complaint and the evidence in the record. Id. The legislation would be given a
presumption of constitutionality, however the court would still conduct some degree of independent judicial review. Id. at 506-07.
Although the court generally deferred to the legislative record, it did note that it had not been presented with “any other of the vast
spectrum of factors that might militate against” laying out the districts as they had been drawn. Id. at 506. Presumably, if presented
with other forms of evidence besides the legislative record, the court would have taken this into consideration. Id. Turning to the
record, the court found nothing in the legislative record or in the contours of the districts themselves that suggested they had been
drawn to favor specific populations or political groups. Id. The apportionment scheme was upheld. Id. at 507.
174 Kluk, 531 N.E.2d at 797. The court also firmly reiterated its authority to judge the constitutionality of legislative action, even those
involving political issues:
We are of the opinion that a determination by a court that if an integral part of the legislative branch of
government is permitted to proceed in a particular manner the result will be a deprivation of a constitutional
right of an individual, does not constitute a lack of respect due a coordinate branch of the government, but it is
an exercise of one of the duties committed to the judiciary.
Id. at 796-97.
175 O’Neill, supra note 27, at 562.
176 In Edgar the court focused on the second prong of the Baker standard, that “a lack of judicially discoverable and manageable
standards for resolving” suggests an issue is a non-justiciable political question, and found it lacked standards for determining what
constitutes a “high quality” education. Comm. for Educ. Rights v. Edgar, 672 N.E.2d 1178, 1191 (Ill. 1996) (“The constitution
provides no principled basis for a judicial definition of high quality. It would be a transparent conceit to suggest that whatever
standards of quality courts might develop would actually be derived from the constitution in any meaningful sense.”).
177 See State Board of Education Approves Comprehensive Changes in System of Support for Academically Struggling Schools, ILL.
STATE BOARD OF EDUC. (May 13, 2003), http://www.isbe.net/news/2003/may13a-03.htm [hereinafter Comprehensive Changes]
(noting that the IGAP test was replaced by the Illinois Standards Achievement Test and Prairie State Achievement Test in 1999 and
2001, respectively). The ACT has been in existence since 1959. See generally ACT: THE FIRST FIFTY YEARS, 1959—2009 (2009),
available at http://media.act.org/documents/ACT_History.pdf.