Trial Court Rules Illinois Constitutional Convention Referendum Allowed To Proceed With An Unconstitutional Ballot. Case Moves To Appellate Courts

Voters in Illinois will have a referendum at the November 2008 election on whether to hold a constitutional convention. The referendum, which comes up automatically every 20 years, is required by the Illinois Constitution.

Several days ago, the Illinois Secretary of State published a copy of the referendum ballot that will be presented to voters. Three groups realized there was inaccurate and inappropriate information on the ballot, making it unconstitutional. They sued in the Circuit Court of Cook County, Illinois to have the unconstitutional language removed.

The plaintiffs in the case are: The Chicago Bar Association, Illinois Lt. Governor Patrick Quinn, and a group of Illinois voters. [Full disclosure here: I am one of the lawyers representing the voters in the appellate court proceedings.] The defendants are: Illinois Secretary of State Jesse White; the Illinois State Board of Elections; David Orr, as the Clerk of Cook County, Illinois; and the Chicago Board of Election Commissioners.

The plaintiffs filed their lawsuits last week. After a motion by the plaintiffs for a preliminary injunction the trial court agreed that parts of the ballot were “inaccurate” and “downright misleading.” On October 1, 2008, the trial court ordered a stay that stopped election boards throughout the entire state from mailing absentee and military ballots.

The court then heard legal argument and factual evidence about how the problem feasibly could be fixed. The plaintiffs argued that the unconstitutional statements should be eliminated from the ballots. They asserted that the optical scan and touchscreen ballots should be rewritten to comply with constitutional standards. The government defendants in essence argued that short of delaying the election, it was too late to do anything about it.

The trial court formulated a compromise remedy on October 6, 2008. A single-page flyer was devised that tells voters: “You will vote a ballot that includes a referendum asking whether Illinois should hold a state Constitutional Convention. The ballot contains a “Notice” and an “Explanation of Proposed Call” that a court has ruled is inaccurate and incorrect and should be ignored.” So the ballot that several million voters will see in the voting booth and on the absentee and military ballots still will contain the “downright misleading” and unconstitutional statements. In addition, the trial court lifted the stay, so more than 100 election boards throughout Illinois have begun mailing the absentee and military ballots.

All of the plaintiffs appealed immediately. Plaintiffs recognize that the passage of time works to the voters’ detriment − the closer we get to the election without an adequate remedy, the more inevitable the inadequate remedy and an unconstitutional referendum becomes. But the government attorneys would not agree to a sufficiently fast-moving briefing schedule. A day after filing the appeal, the plaintiffs filed an emergency motion in the Illinois Court of Appeals for expedited briefing and hearing, and to reinstate the stay against distributing the unconstitutional ballots. Yesterday the appellate court ruled that (1) the government defendants must respond to the emergency motion by October 14, 2008, and (2) oral argument on the motion will be taken on October 15, 2008.

The order is extraordinary. Letting a week pass before even considering a briefing schedule and the stay, the order endangers plaintiffs request to revise the referendum ballot. As of the moment, the government defendants do not have a date by which they must file a brief.

It appears the appellate court will not rule on the merits of plaintiffs’ appeal for at least another week to 10 days. Assuming the losing party then appeals to the Illinois Supreme Court, and that the court accepts the case, we really do get too close to the election for a timely fix to be put in place.

So today the voter group of defendants filed a motion to the Supreme Court of Illinois [Full disclosure here: I drafted the motion.] asking the court to take the case without benefit of an appellate court’s review. The general rule in Illinois requires most cases to go to the court of appeals before an appeal to the supreme court is allowed. But there is an exception for “cases in which the public interest requires expeditious determination.” The plaintiffs’ motion argues that the integrity of the Illinois Constitution and the referendum process are at stake, and that time the time for resolving the problem is dangerously short.

Plaintiffs hope the supreme court will accept direct review of the case. I’ll keep you posted on how the court rules and what happens as this case works through the appellate courts. I’ll link to the motion for direct review by the supreme court with a forthcoming post.