Appellate Law

?Downright Misleading? Constitutional Convention Referendum Ballot Prevails

By Steven R. Merican

The Illinois Constitutional Convention Referendum Case has been resolved ? for the moment. An Illinois appellate court affirmed the trial court?s remedy for the ?downright misleading? and unconstitutional ballot: hand out a flyer to voters telling them to disregard the referendum ?Explanation? and ?Notice? that are printed right on the ballot. (The two blog entries directly below give the lawsuit background and the legal problem.)

The bottom line is that citizens will vote on a ballot that a court has ruled is unconstitutional. This is a disaster for the Illinois referendum process. It is shameful testimony that the process for amending and formulating the core document that gives life to the government is not safe in the hands of politicians and their bureaucratic apparatus. It was folly ever to think otherwise.

Here?s what happened in the appellate courts last week.

On Thursday October 9, the voter group of plaintiffs, later joined by the Chicago Bar Association and Lt. Governor Patrick Quinn, asked for a direct appeal to the Supreme Court of Illinois ? that is, without going to the intermediate court of appeals. On Tuesday October 14 the supreme court denied the request in a 6-1 vote.

That killed any chance of reaching the supreme court in time for it to make a meaningful ruling before the November 4 election. The supreme court did not issue an opinion or otherwise state a reason for its decision not to take the case. Unless one of the justices talks about it publicly, we?ll probably never know why the court refused the case.

Minutes after being informed by the supreme court clerk that the motion for a direct appeal had been denied, I got a fax from the Illinois First District Court of Appeals. The appellate court ordered all parties to file memoranda the following morning justifying appellate jurisdiction. If the appellate court were to rule that it did not have jurisdiction, it would not rule on the propriety of the ?flyer remedy.? This raised the possibility that neither the supreme court nor the appellate would rule at all.

The previously scheduled hearing in the Illinois First District Court of Appeals went forward on Wednesday the 15th. The court had scheduled the hearing for argument on the Bar Association?s motion to expedite briefing and ruling, and to prevent absentee, military, and early voting on the unconstitutional ballots while the appeal was pending. Instead, there were about two and one-half hours of argument on the appellate court?s jurisdiction and the substantive merits of the case.

First thing on Thursday October 16 the appellate court faxed its ruling. The request to prevent voting the unconstitutional ballot was denied. The trial court?s ?flyer remedy? was affirmed.

The result was about as bad as could be for voters. Coming on the heels of the supreme court refusing to take the case, the voters are left with a ruling that allows voting on an unconstitutional ballot. That?s a tailor-made lawsuit that could question the fairness and legality of the referendum.

The government-engineered ballot brings more disgrace to a state government that has overabundant corruption. And for now, the government?s ballot, that improperly steers voters away from a constitutional convention, has prevailed in court.

Full post as published by Illinois Appellate Lawyer Blog on October 21, 2008 (boomark / email).