* The basic gist of the appeal…

In this case, Plaintiffs filed a complaint in the Circuit Court of Cook County alleging that a referendum question placed on the ballot by the Chicago City Council proposing to raise the real estate transfer tax on some properties, and in the same question, lower the tax on other properties, was constitutionally ineligible to appear on the ballot because the question violated both the free and equal elections clause and the applicable provisions of the Municipal Code. … As a result of this combination, a voter wishing to support the decrease portion alone must also support the increase with the same vote, and a voter wishing to support only the increase, must also support the decrease.

The Circuit Court agreed and enjoined the Defendant, the Chicago Board of Elections, from counting or releasing any votes cast on the question. The Appellate Court reversed that decision, concluding that Plaintiffs’ “complaint is premature” because the referendum “is a step in the legislative process.” The Appellate Court’s decision is incorrect and should be reversed because it fails to recognize the critical fact that the “free and equal elections” clause protects voting rights, and once a voter is forced to vote on an unconstitutional question, the violation of that right has occurred and the injury to that right cannot be subsequently remedied. Indeed that is why, nearly fifty years ago, this Court recognized that “the framers of our constitution intended this court alone to determine whether constitutional requirements for a proposed amendment were satisfied.” […]

The Appellate Court’s decision, if permitted to stand, eliminates any pre-election challenge to the constitutionality of a referendum question placed on the ballot by municipal alderpersons, regardless of how blatantly unconstitutional the question may be. The possibilities for ballot abuse by municipal councils across the state are endless.

The Appellate Court’s decision also stands in direct conflict to the same court’s most recent decision regarding municipal referenda. In Henyard v. Municipal Officers of Dolton, 2022 IL App (1st) 220898, the First District Court explicitly considered its jurisdiction over a pre-election complaint that two referendum questions placed on the ballot by municipal alderpersons violated Article III, Section 3. The Court concluded it had jurisdiction and then invalidated the questions as being “fatally vague and ambiguous” in violation of Article III, Section 3.

The Appellate Court’s decision also sets two up different standards for judicial review of municipal referenda questions. Under the Appellate Court’s decision, courts would have no jurisdiction to consider a pre-election constitutional challenge to a referendum placed on the ballot by municipal alderpersons, but courts would have jurisdiction over a question (even the same question) placed on the ballot by citizen initiative. Why questions initiated by citizens should get more judicial scrutiny than questions initiated by alderpersons, the Court does not say. The free and equal elections clause draws no such distinction. […]

In its decision, the Appellate Court attempts to distinguish Henyard by pointing out that in that case the Court issued its decision after the election, and not before. In both cases, however, the Article III, Section 3 challenge was filed before the election, not after. In fact, the Henyard Court enjoined the County Clerk (the election authority for suburban Cook County) from counting or publishing the results before the election, not after. The fact that the Henyard court waited until after the election to issue its final decision should not affect the court’s jurisdiction.

More at the link.