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Judge orders state to scrap ballot wording month before vote

by Jen Thomas
Oct 01, 2008

In an unprecedented move just 34 days before the election, a Cook County judge on Wednesday ordered the language of a statewide referendum on the constitutional convention modified, calling aspects of the current proposal misleading and false.

Circuit Judge Nathaniel R. Howse said he was not persuaded that the language in the call for a constitutional convention was accurate and ordered the state to draft notices informing voters of the change to the original ballot question by Friday.

“What I’m trying to do is do the right thing by the people of Illinois,” Howse said during a hearing that featured testimony in lawsuits filed against Secretary of State Jesse White and the Illinois State Board of Elections on the referendum’s wording.

The 1970 Illinois Constitution requires voters decide every 20 years whether to convene a convention to revise or rewrite the state constitution. Plantiffs, including the Chicago Bar Association and Lt. Gov. Pat Quinn, claimed the language of the referendum was partisan and inaccurate.

“This ballot is obviously defective,” said Steven Pflaum, a member of the bar association’s legal team.

The ballot question was crafted by a committee of the General Assembly, certified by the board of elections and submitted and distributed by White. The lawsuit focused primarily on a segment in the ballot question that states the results of the last constitutional convention vote, a line they say was biased and violated the election code by offering an explanation of the automatic call for a constitutional convention.

“In 1988, the electors rejected the call for a constitutional convention, with 75 percent voting against calling a convention and 25 percent voting in favor of calling a convention,” the ballot question reads.

Pflaum said the state acted illegally by having a legislative committee draft the wording of the question; the law stipulates that the secretary of state is solely responsible for preparing Con-Con referenda.

The second objectionable phrasing, opponents contend, is the portion of the question that reads “the failure to vote on this question is the equivalent of a negative vote.” The suit notes that the election code says three-fifths of those voting on the question – not just a majority of those voting in the election – would result in calling a convention.

Though the state argued that it was too close to Election Day to print new ballots and reprogram touch-screen voting machines, Howse gave both parties until Friday morning to reach a compromise on the wording of the new referendum and the means of notifying voters.
Quinn was pleased by Howse’s decision.

“The judge saw right away that there was unfairness in the question,” Quinn said after the hearing. “Anybody looking at the language would know right away that it was biased and unfair.”

One other point Quinn noted is that two other states, Hawaii and Connecticut, are also asking voters about a constitutional convention this November. Both states have short questions without explanations, Quinn said.

Cook County Clerk David Orr said he was sure the two sides could agree on new wording by Friday morning, when Howse will hear the revisions.

“We can reach a reasonable compromise if we stick together,” Orr said.