After Rejection by Evanston’s Electoral Board, Quinn et al File for Judicial Review

By 2-1 votes on each objection filed by Evanston residents, the City’s Electoral Board on Jan. 15 sustained the two objections to a referendum question posed by other Evanston residents that would have altered the way City ordinances can be enacted.

The Electoral Board, composed of Mayor Stephen Hagerty, City Clerk Devon Reid and Alderman Ann Rainey, met on Jan. 15 to continue its Jan. 9 meeting. Mr. Reid cast the “no” vote each time.

The City hired attorney Daniel Bolin of the Chicago law firm Ancel Glink to assist the board.

The Electoral Board’s decision means that, absent a successful appeal through judicial review, the referendum question will not appear on the March 17 primary election ballot. On Jan. 17, former Governor Pat Quinn, who represented the Evanston Voter Initiative before the Electoral Board, filed  a petition in the Cook County Circuit Court for judicial review of the Electoral Board’s decision.

Background

On Dec. 16 of last year, members of the Evanston Voter Initiative, a movement spearheaded by Allison Harned, filed petitions with 3,871 signatures asking voters to approve a resident-led process for “consideration and passage of City ordinances.”

Should the referendum question make it to the March 17 ballot and should voters approve it, there would be a mechanism for resident-led initiatives to be placed on ballots as referendum questions and, if approved, become City ordinances. Twenty-five electors, that is, registered voters, may present a proposal for an ordinance to the City Clerk, who will draft the proposed ordinance. A larger number of electors – equal to 8% of the total votes cast in Evanston for candidates for Governor in the preceding gubernatorial election – would be able to present the ordinance to Council for consideration within 70 days. If Council does not take action on the proposed ordinance – or if Council denies it – then the question may appear on the next ballot for election for governor as a binding referendum question.

The full text of the proposed referendum question is in the sidebar to this story.

On Dec. 23, three Evanston residents – former Seventh Ward Alderperson Jane Grover, Kent Swanson and Elizabeth Hayford – filed two objections to the Evanston Voter Initiative’s referendum question.

Their objections stated that the referendum question “presents a binding referendum question in violation of state law” and “the question presented in the Petition will confuse voters.”

The objectors first pointed to the words in the preamble to the question: “[I]f approved, the question shall take effect immediately upon referendum approval of the question.” That is, City of Evanston government would be bound to follow the processes described in the question, should voters approve it.

In essence, the referendum question allows for additional binding referenda. Should the question appear on the March 17 ballot and should Evanston voters approve it, resident groups that followed the prescribed procedures would be able to place binding referendum questions on upcoming ballots.

Article VII, Section 1(a) of the Illinois Constitution provides that referendum questions must be placed on the ballot “in the manner provided by law.” The law to which that section of the Constitution refers, the objectors said, is the Illinois Election Code, and the code at 10 ILCS 5/28-6(c) states, “Local questions of public policy authorized by this Section and statewide questions of public policy authorized by Section 28-9 shall be advisory public questions, and no legal effects shall result from the adoption or rejection of such propositions.”

While referendum questions placed though citizen initiatives are advisory, the objectors said, this proposed citizen-led initiative is a binding referendum question.

The second objection – that language of the referendum would confuse the voters – was based on the length (383 words) and the multiple clauses.  

At the Jan. 9 meeting of the Electoral Board, former Illinois Governor Patrick Quinn, representing the Evanston Voter Initiative, presented a motion to dismiss the objections for lack of sufficiency.

To give the objectors time to reply to the motion to dismiss and the petitioners time to respond to the objectors’ reply, Mayor Hagerty, chair of the Electoral Board, continued the meeting to Jan. 15.

The Jan. 15 Meeting

            Petitioners’ Motion to Dismiss Objections

The Evanston Voter Initiative’s motion to dismiss the objections said the objectors had not stated their interest in the referendum question as prescribed by law.

Citing case law and also referring to the State Constitution, Gov. Quinn said simply stating that the objectors are registered Evanston voters and listing their names and addresses is not sufficient to state their interest in the question.

“It’s mandatory; it’s not directive,” Gov. Quinn said, “that each and every one of the requirements must be met. The objectors failed to state their interest.” He added, “This is a voting-rights case.”

The objectors, on the other hand, claimed that those two items together sufficed to show interest.

“This is a petition to change voting in Evanston,” Ms. Grover said. “It’s about the 49,333 voters in Evanston, including these three voters. The folks who have that interest are Evanston residents and Evanston registered voters. … We have satisfied all the requirements.”

Gov. Quinn said again, “They need to state their interest. There’s a purpose here … It’s not a trivial matter.”

Mayor Hagerty asked, “Does the law specifically say that you need to use the word ‘interest’?”

Gov. Quinn repeated, “The objectors must give their names, addresses and shall state their interest as objectors.”

Mayor Hagerty pressed, “Do they have to use the word ‘interest’?”

Gov. Quinn said, “With respect to the statute, the answer is ‘Yes.’ The [Illinois] Supreme Court has ruled that every word in a statute must be heeded – there is no surplusage.”

Ms. Grover responded, “There is nothing in the Election Code that requires the word ‘interest,’’ nothing in the Election Code that says being a voter and a resident cannot satisfy both the ‘name and address’ and the ‘interest’ [requirement].”

“Did you hire an election attorney?” Mayor Hagerty asked Ms. Grover.

“We did not,” she responded.

“Do you think that the objectors filed a frivolous suit?” Mayor Hagerty asked Gov. Quinn.

“It is without merit with respect to its content,” Gov. Quinn said, “but it is not frivolous.”

“So do you think they filed the objections in bad faith?” the Mayor asked.

“Because they filed objections using the wrong section – that’s serious,” Gov. Quinn said. He said the State Constitution rather than the Election Code dictated how the objections should be filed.

“In Evanston, you believe in ballot access,” he added. “Failure to meet any requirement … makes the objection invalid.”

Mr. Reid asked whether the objectors had a response to the case McQuillan v. Sullivan (regarding a case before the DuPage County Electoral Board).

Ms. Grover said they did not.

“The issue here is ‘Did they follow the rules?’” Gov. Quinn said.

Ald. Rainey asked, “Do you know of any Election Board that did not dismiss a case when ‘interest’ was not used?”

The Governor responded, “No.”

“Why do you think they filed it?” asked Ald. Rainey.

“I would guess they do not support the referendum,” said Gov. Quinn. “I would in good faith ask the objectors to withdraw their objections and have a robust campaign.”

Ms. Grover said, “I would argue that due process should govern here, that fairness should govern here – but so should common sense.”

Attorney Bolin discussed the cases the petitioners cited in the motion to dismiss and asked, “In this case, couldn’t you infer the interest from the four corners of the objections?”

Gov. Quinn remained firm that the objectors had not stated their interest.

On a motion by Ald. Rainey, the petitioners’ motion to dismiss was denied. She and Mayor Hagerty voted in favor of the denial; Mr. Reid voted against denying the motion to dismiss.

Objectors’ Case in Chief

Ms. Grover said, “We agree that this is an important issue of public plicy. We are not addressing the collection of signature. Our objections are based on the nature of the referendum. We offer two grounds.

“State law and the Illinois Constitution do not permit a binding referendum on questions of public policy.” The Constitution, she said, directs that referenda be placed on the ballot “in the manner prescribed by law,” and that law is the Election Code. Referenda dealing with public policy that are placed on the ballot by residents are advisory only. “This is sufficient grounds to deny the petition.”

The second objection is that the language of the referendum “will confuse voters.” (See sidebar for full text of the proposed referendum question.) She pointed to the 383-word length and the “multiple points that are not self-executing” and added, “In a lot of ways the language of this petition disenfranchises voters. Does the question explain the process in a way the voters can understand it on first seeing it in a voting booth?”

Gov. Quinn responded that Section VII of the Illinois Constitution allows more citizen action. Any referendum question on public policy “may be placed by a unit of government and by the citizens.

Mr. Bolin asked Gov. Quinn, “What law authorizes your petition?”

“Flowers v. City of Moline,” he responded.

Mr. Bolin said, “We’re looking for a source of law to authorize this.”

“You cannot amend the objections,” Gov. Quinn said.

“The objections say this type of referendum is ‘not allowed by law.’ So we are asking, ‘How is it allowed by law?’”

“You have a fundamental right to petition – it’s in the Bill of Rights,” Gov. Quinn said. He added, “Voters have the same rights as a unit of government. We have the same authority as City Council.”

Mr. Reid said he was “slightly uncomfortable with the attorney. It’s almost as if we’ve hired an attorney for the objectors.”

“I represent the board,” Mr. Bolin said. “By asking these questions, I’m helping the petitioners.”

“You’re amending the objections,” said Gov. Quinn.

Mayor Hagerty asked, “How many citizen-driven referenda – binding referenda – have been on the ballot?”

Gov. Quinn said, “Most of 25 referenda for term limits. … What the Evanston Voter Initiative is doing is modifying the process for ordinances in Evanston.”

Mr. Reid said to Ms. Grover, “You mentioned in the objections that the referendum would require amendments to the City Code.”

“The referendum question is not self-executing,” Ms. Grover said. “It will be in conflict with existing ordinances … [and] requires changes to existing law.”

Gov. Quinn said, “This is an amendment, and the voters have a right to vote on it.”

Referring to the part of the referendum question that would allow 25 registered voters to propose an ordinance to City Council, Ald. Rainey said that if 25 resdients asked for something, “Council would roll over.”

Derisive laughter from the back of the room, where several supporters of the initiative sat, followed her comment.

The Vote

After two recesses, the Electoral Board members addressed the objections, taking each separately. Ald. Rainey and Mayor Hagerty voted to sustain each objection.

A third vote, which was unanimous, accepted the written findings of the board, which Mr. Bolin had prepared before the meeting. Mr. Reid said he was voting only on the findings because they were written but he did not agree with them.

The Fallout

Gov. Quinn objected to the fact that Mr. Bolin had prepared the findings in advance.

Mr. Bolin said he had prepared findings for different scenarios, including one in which the objections failed.

Mr. Reid said, “My discomfort is with the fact the counsel did prepare a number of decisions, and the only one that was fleshed out was this one.”

Gov. Quinn demanded to see what Mr. Bolin had prepared. Mayor Hagerty declined to do so, citing attorney-client privilege. Mr. Reid said the Electoral Board members, as clients, could waive the privilege. He moved that the papers be given to Gov. Quinn and the Evanston Voter Initiative.

After all the votes were taken, Mayor Hagerty opened the meeting up for public comment.

All the speakers said they were dissatisfied with the outcome or the process or both.

Mary Rosinski said, “I felt, watching this, that it was sad for the City of Evanston. … It was clear that the opponents didn’t have to defend themselves, because the City attorney was doing it. … I think this was just a very easy way for the City not to have to defend this case. … I think we need to have our Electoral Board be more independent.”

Carolyn Murray said, “With all three of you members of this board, I would have hoped to see something a little more independent. I will tell you that the body language showed tension. I wish it had been more objective. This was not a board that was interested in getting to the issues.”

Ray Friedman said, “It seems the City Council is consistently voting against the interests of residents.” He gave as an example the Council’s voting to allow alcohol sales and commercial entertainment in Welsh-Ryan arena, despite the objections of residents and local businesses.

“We’re advocating for a referendum,” Mr. Friedman continued, “and the Council has the authority to say no. I don’t understand why you keep voting against the residents.”

Yvi Russell accused Mayor Hagerty and Alderman Rainey of “voting against the law. … I think that some of you should know that the law of what goes around, comes around and eventually it will bite you in the a**.”

Allison Harned, one of the leaders of the Evanston Voter Initiative, told the RoundTable, “I did feel like we had an unfair hearing. I had hoped for an impartial board and an impartial hearing, but neither of them felt impartial. … What happened on Wednesday night [Jan. 15] is far beyond what an Electoral Board is supposed to do. … The burden of proof was on the objectors but the City’s attorney made their case for them.”

She said she felt the objectors should have stated their interest separately. For the 3,871 petitioners and the 49, 333 registered voters of Evanston, “their interest is that [the question be] on the ballot.