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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.

The City’s Electoral Board denied all those objections on Jan. 11, so it looks like five candidates will be on the ballot for the Feb. 28 Primary Election. Mr. Smith has not yet decided whether to seek review in the courts.

We support the result: keeping all candidates on the ballot and holding a primary election. The decision, though, was based on general principles of  “ballot access and equity,” and the Board declined to consider many of the legal and factual legal issues raised by Mr. Smith, and which have caused confusion in this election cycle. These questions include  what are the proper filing dates for nominating petitions, are the City’s elections to be conducted on a “partisan” or “nonpartisan” basis, and what is the impact and status of the 1992 Referendum.

In a Dec. 14 editorial, we urged City Council to look into why this election cycle has resulted in so much confusion and to take whatever action to ensure that it does not happen again. Candidates should know what they need to do to run for office in Evanston. People should not be required to hire lawyers to advise them on the proper filing dates for nominating petitions.

On Jan. 11, Mayor Tisdahl said, “I believe the Electoral Board should ask the Law Department to work with the City and to work with the City Clerk to answer all questions about the need for a primary and the Referendum, etc. No candidate should need to hire a lawyer or need to be a lawyer to run for public office in the City of Evanston.” We agree with that.

We are going to weigh in on one issue raised during the hearings on Mr. Smith’s objections, which was not resolved by the Electoral Board. It relates to 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 must be honored and given effect.

In 1992, voters answered “yes” to the following referendum question that was put on the ballot by City Council:

“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.” (Emphasis Added).

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).

An issue often debated is whether a City’s ordinance or referendum is preempted by State law. The Illinois Supreme Court has “repeatedly held that a ‘home rule’ unit’s exercise of its power will supersede any conflicting pre-1970 Constitution legislation.” Sommer v. Village of Glenview, 79 Ill. 2d 383, 403 (1980).

If a State statute was enacted after the 1970 Constitution went into effect, the statute will preempt a conflicting home rule referendum or ordinance only if the statute contains language “specifically stating home rule authority is limited.” Palm v. 2800 Lake Shore Drive Corp. (2013), Ill. Const. Art. VII, Sections 6(h) and (i).

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 people seek to run for that office. And significantly, the 1992 Referendum does not change the time of primaries, the time to file nomination petitions for primaries, or the time of the general election. 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 general 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 a general election. 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 urge that the 1992 Referendum be honored and given effect. This may be important in determining how to apply the results of the  Feb. 28 primary. It will be important for future elections.