On Dec. 27, Jeffrey Smith, who has filed nominating petitions to run for Mayor in the April 4 election, filed objections to the nominating petitions of the four other candidates for Mayor: Alderman Brian Miller, Alderman Mark Tendam, Gary Gaspard, and Steve Hagerty.

We are going to weigh in on the objections because they challenge the validity of a Referendum approved by voters in 1992. In some respects a referendum is a higher law than a City ordinance, which is passed by City Council. A referendum is a law passed by the people of Evanston. We think it should be honored and given effect.

The referendum question which was put on the ballot by City Council and passed by voters in 1992 provides as follows:

“Shall the Mayor of the City of Evanston be elected in the following manner commencing with the election to be held in 1993 and thereafter: If more than two candidates for Mayor shall have filed for election, a primary shall be held and the two candidates receiving the highest number of votes shall stand for election in the Regular Election, Except if one candidate shall receive more than fifty percent (50%) of the votes cast at the primary, that candidate shall have been elected Mayor for a term commencing the first City Council meeting after the Regular Election?”

The referendum is simple and clear. If more than two people have filed nominating petitions for Mayor, there shall be a primary and the top two move onto the general election, unless one candidate receives 50% of the votes, in which case that person is the winner.

The Illinois Constitution, Art. VII Section 6(f), empowered the people of Evanston to adopt the 1992 Referendum. That section provides in broad terms, “A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law.” 

Home rule municipalities have broad powers to provide how their officers are elected under this provision. See e.g., Boytor v. City of Aurora, 81 Ill. 2d 308 (1980)(right to have nonpartisan elections); Clarke v. Village of Arlington Heights, 57 III. 2d 50 (1974)(right to change the number of village trustees and make the office of village clerk appointive, rather than elective); Davis v. Welch, 2014 IL App (1st Dist.2014) 14-2998-U (right to impose term limits); Ill. Attorney General Opinion No. 05-007 (right to choose to elect officers through cumulative voting or by instant run-off voting).

While the State may preempt Evanston’s home rule powers under Art. VII, Sections 6(h) and (i), the Illinois Supreme Court squarely held in Palm v 2800 Lake Shore Drive Corp. (2013), if the State chooses to do so, the State’s law must contain language “specifically stating home rule authority is limited.”

We are not aware of any statutory provision that specifically limits the power of home rule municipalities to require primaries for the office of mayor if three persons seek to run for that office. In our view the 1992 Referendum is not preempted.

Mr. Smith says in his objections that the 1992 Referendum is vague, unclear and not self-executing. We disagree. The referendum question is stated in simple and clear terms. If more than two candidates file to run for Mayor, a primary must be held and the top two vote-getters move on to the regular election, unless one candidate has received 50% of the vote. This could not be stated in more clear and simple terms. There is no uncertainty.

In addition, the referendum must be read in the context of election laws. Election laws provide for primaries, the time for filing nomination papers for primaries, and elections following the primaries. Except for requiring a primary for Mayoral elections if more than two candidates file to run, the Referendum fits in the general election scheme. See e.g., Hoogasian v. Regional Transportation Authority, 58 Ill. 2d (1974)(Court rejected a claim that a referendum question, “Shall a Regional Transportation Authority be created for Cook, DuPage, Kane, Lake, McHenry and Will Counties, Illinois? was vague and uncertain, holding it had to be considered in context.)

Mr. Smith also argues that the 1992 referendum potentially deprives a political party of a right to field a candidate. The simple answer is that home rule municipalities have the right, through a referendum, to prohibit partisan elections. See Boytor, supra.

We are not going to comment on whether Mr. Smith’s objections were filed on a timely basis, or on other issues raised in the objections.

We do urge that the 1992 Referendum be honored and given effect. This is important not only for this election but for future elections.

In addition, since nobody has challenged Mr. Smith’s petitions, we support Clerk Rodney Greene’s decision to certify the five candidates to be on the ballot for Mayor and the five candidates to be on the ballot for Fifth Ward Alderman in the Feb. 28 election.