County clerks could face headaches if ballot revised

Ann Knef Sep. 25, 2008, 11:51am



A lawsuit filed against state agencies over a Constitutional Convention "Con-Con" referendum could cause major headaches for local officials if a Cook County judge agrees that the Nov. 4 ballot requires revision.

It could also cost taxpayers big bucks, a local official says.

But a lawyer involved in the lawsuit said it's better to clean up the "mess" now rather than have results of the referendum declared invalid after the election.

Attorney Steve Pflaum of Chicago, representing the Chicago Bar Association (CBA) as plaintiff in the suit, said the earliest Circuit Judge Nathaniel R. Howse, Jr. would rule on the matter is next Wednesday, following a hearing in Chicago.

Absentee ballots are beginning to be mailed from the state's 102 county clerk offices which oversee election activity. Early voting in the state is held from Oct. 14 through Oct. 30.

St. Clair County Clerk Bob Delaney, whose office is preparing to mail out absentee ballots beginning Friday, said the cost would be "astronomical" if he had to reprint and resend revised ballots.

The ballot referendum, which asks voters -- yes or no -- "do you believe the 1970 Illinois Constitution needs to be revised through the convention process?" has sparked controversy because of flawed wording and the process it went through to become certified.

On Monday the CBA filed suit in Cook County against Illinois Secretary of State Jesse White and the Illinois State Board of Elections saying that election code does not allow Con Con referenda to contain explanatory language.

The CBA also says that even if a Con-Con referendum ballot could contain an explanation the wording in this one includes statements "that go far beyond merely explaining the Con-Con Referendum and that are manifestly argumentative and biased."

The explanation for voters on the certified ballot reads:

This proposal deals with a call for a state constitutional convention. The last such convention was held in 1969-70, and a new Constitution was adopted in 1970. The 1970 Illinois Constitution requires that the question of calling a convention be placed before the voters every 20 years. In 1988, the electors rejected the call for a constitutional convention, with 75% voting against calling a convention and 25% voting in favor of calling a convention. If you believe the 1970 Illinois Constitution needs to be revised through the convention process, vote "YES" on the question of calling a constitutional convention. If you believe that a constitutional convention is not necessary, or that change can be accomplished through other means, vote "No" on the question of calling a constitutional convention.

Another point of contention is that the certified ballot, a sample of which was mailed to Illinois households within the last week, contains a notice which states in bold face type, "The failure to vote this ballot is the equivalent of a negative vote."

The CBA claims the notice as written is incorrect. It states that the referendum could pass if three-fifths of those who vote on the referendum approve it.

The CBA faults White for certifying a ballot prepared by the General Assembly, without change, even though he has "exclusive responsibility" for submitting the referendum to voters.

"The Secretary then compounded this problem by asking the State Board of Elections to certify that ballot," the CBA argues.

According to a brief filed Wednesday, the State Board of Elections took the ballot language prepared by the General Assembly, added the "inaccurate" notice, "misstating the effect of failing to vote on the referendum, and purported to certify the resulting ballot to Illinois' 102 county clerks," the CBA claims.

"It gets even worse," the CBA contends.

The form of the ballot White had published in newspapers in each of the state's 102 counties did not contain language added by the State Board of Elections. "Apparently because the Secretary was unaware that the Board had added the language to the ballot about the effect of not voting...," the CBA claims.

Assistant attorney general Thomas A. Ioppolo represents White and his office. The State Board of Elections is represented by Ken Menzel of Chicago.

Delaney said it would be a "disaster" if ballots had to be re-printed "over something people don't care about."

"You know what I mean," Delaney said. "This is a presidential election."

"It would be a disaster in terms of cost and in terms of work -- overtime," he said.

He estimated it could cost the county in the hundreds of thousands of dollars.

Delaney recalled that some years ago it cost a small village with eight precincts $10,000 to reprint ballots over revisions involving a fire referendum.

Illinois Civil Justice League President Ed Murnane, an outspoken critic of Con-Con, said Wednesday that even though the language of the referendum "seems prejudicial in favor of opponents" he doesn't like the way the measure is written.

"It's a question of what's right and wrong," he stated.

Murnane said the referendum, as written, "is certainly leading language that I have never seen on a referendum ballot before."

He said he is against Con-Con because there is "nothing wrong" with the Illinois Constitution. He said legislative problems can be fixed by amendment.

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