Today we join the nation in celebrating the life and legacy of Dr. Martin Luther King, Jr. When we scheduled our Direct Democracy series, we did not intentionally plan to release the final installment today - but it is appropriate. Direct Democracy brings power to communities. It places the ability to shape policies that affect everyday life in the hands of the people.
The current, sporadic system of initiative and referendum favors those with the resources to know where Illinois’ limited opportunities exist and to navigate the labyrinth of ballot access.
As we have laid out over the last three weeks, Illinois law includes high barriers to the limited opportunities for initiative and referendum currently allowed by state law. Moreover, courts have invalidated attempts by citizens to create a local framework for direct democracy.
The Illinois Constitution establishes a right to initiative and referendum only where the General Assembly deems fit. During the half-century history of our current constitution, that has resulted in merely a few hundred opportunities for referendums, many applicable in limited times or places and long since outdated.
Illinois residents demand change, and lawmakers are beginning to respond. For the first time in over two decades, and only the second time in nearly forty years, Illinois has a new speaker of the house. Last week, the General Assembly sent bills on education reform and criminal justice reform to the governor’s desk. Now more than ever, Illinois residents demand accountability, transparency, and access to the decision-making process. Bringing direct democracy to Illinois will improve all three.
In Part 4 of this series, we contend that Illinois should enshrine a right to direct democracy through a combination of a constitutional amendment and state statute.
The first three parts of this series described a number of barriers to direct democracy in Illinois, including restraints on the existing initiative and referendum opportunities in state law. While the General Assembly could overcome many of these barriers through legislation, some provisions of the current constitution may hinder a broad right to direct democracy. Therefore, direct democracy in Illinois must begin with a constitutional amendment.
Illinois should amend the constitution to enshrine a right to direct democracy at the state and local levels
Amending the Illinois Constitution to include a right to initiative and referendum for Illinois residents would shelter the process from future attempts to limit it. It would also overcome several potential hurdles inherent in creating the right solely through changes to statutory law. The process for a constitutional amendment is straightforward: three-fifths of each house of the General Assembly must approve the amendment, then voters at the next general election must approve passage by either three-fifths of those voting on the question or a majority of voters participating in the election.
The Illinois Constitution currently contains provisions that could hinder an effort to legislate a right to direct democracy. “The legislative power is vested in [the] General Assembly,” which means a statewide initiative and referendum process could be challenged by a later General Assembly as an infringement on the body’s constitutional authority.
Furthermore, it remains unclear if the General Assembly could broadly grant an initiative and referendum process to non-home rule units. The constitution grants home rule units immense control. In fact, home rule unit ordinances trump state statutes unless the General Assembly has specifically restricted the home rule power over the area in question.
However, just the opposite is true of non-home rule units: with limited exceptions, non-home rule units “have only powers granted to them by law.” When the General Assembly does grant them power, it is specific and by subject matter; a grant of a broad process like initiative and referendum could face a challenge, and it is impossible to gauge how the courts would handle such a novel case.
Lawmakers can avoid concerns about the legislative power and limits on non-home rule entities by amending the state constitution to specifically provide a right to both state and local direct democracy.
Additionally, if Illinois passed the right to initiative and referendum only by statute, a later General Assembly could repeal the law by majority vote with the governor’s signature. Future lawmakers could also negate the right by passing impossible standards for petition gathering. By enshrining the right as an amendment, the General Assembly can set standards that will remain attainable.
Standards for Initiative and Referendum
A constitutional amendment and statutes may simultaneously define the rules governing the form of petitions and questions, time for gathering and submitting signatures, and thresholds for access to the ballot. Any constitutional provision could only be changed through further amendment, requiring three-fifths vote of each chamber of the General Assembly and statewide voter approval. Changes to state law would require only a majority of each house and the governor’s approval.
Thus, by setting minimum protections in the constitutional amendment, the General Assembly can provide baseline protection for direct democracy.
The constitutional amendment should set limits to protect the right to direct democracy but allow future a General Assembly to ease requirements
Illinois law provides a wide range of signature and timing requirements for various initiative and referendum opportunities. For advisory questions of public policy, the Illinois Election Code requires “at least 8% of the total votes cast for candidates for Governor in the preceding gubernatorial election” in the political unit. As discussed in Part 3 of this series, Idaho requires twenty percent of the votes cast in the last election.
Illinois lawmakers should aim for an achievable standard that also requires a showing of significant public support to place a measure on the ballot. This balance may take some trial and error, and the criteria may need to shift depending on residents’ ability to meet standards. New processes elsewhere in the law, such as electronic signature gathering, could further impact the advocates’ ability to reach the ballot.
Illinois can balance the competing concerns of ballot access and ballot crowding by setting a maximum percentage of signatures via constitutional amendment while allowing the General Assembly to ease the requirement through legislation.
The General Assembly should include standards for clarity and understanding of referendum questions
To ensure public understanding and limit concerns about potential confusion, lawmakers should preserve standards for clarity in referendum questions. Part 2 of this series explored the standards set by the Illinois Supreme Court in Hoogasian v. Regional Transportation Authority, Leck v. Michaelson, and Lipinksi v. Chicago Board of Election Commissioners. The court later summarized the standard: “whether the referendum could stand on its own terms and was self-executing or left gaps to be filled by either the legislature or municipal body, creating uncertainty about what voters approved.”
As this remains the standard in Illinois, it would presumably apply to a newly created right to initiative and referendum; however, confirming this standard through legislation would help ensure continuity and clarity in the process.
The law could also require election authorities to send out ballot pamphlets with explanations of proposals, including simple arguments both for and against, similar in structure to what applies to proposed constitutional amendments now.
Illinois must pass a Direct Democracy Amendment to empower residents now and in the future
Illinois is changing. The General Assembly has begun to respond to voters’ concerns about accountability, transparency, and ethics in ways that advocates could barely dream about a few short years ago. It is time for Illinois to join over two dozen states that give residents a stake in the lawmaking process. By enshrining the right in the constitution, Illinois can give current and future generations the ability to adapt law to community and state needs.
Petition gathering is core political speech, protected by the First Amendment.
In Meyer v. Grant, the U.S. Supreme Court held that the act of circulating petitions for ballot initiatives is protected political speech under the First Amendment. Colorado provided a six-month petition process for either proposed legislation or proposed constitutional amendments. Colorado state law at the time also made it a felony for any proponents of one of these petitions to pay petition circulators. Proponents of any such statewide petition must submit signatures equal in number to at least five percent of all votes cast for candidates for the Office of Secretary of State in the preceding general election. Because the proponents concluded, based on their prior experience as circulators, that they would need paid circulators to succeed in their initiative campaign, they brought an action under 42 U.S.C. § 1983, seeking to have the ban on paid circulators ruled unconstitutional.
At trial, the district court judge found that the ban on paid circulators did not violate the petitioners’ First Amendment rights because it did not place any restraint on their individual expression. The court also found that this ban did not have a measurable impact on the petitioners’ ability to place their initiative on the ballot. The court found that even if the restriction burdened the petitioners’ speech, the state’s interest in ensuring every initiative has a sufficiently broad base to warrant placement on the ballot, as well as protecting the integrity of the initiative process, outweighed the petitioners’ First Amendment interest.
After a divided U.S. Court of Appeals for the Tenth Circuit upheld the district court, an en banc rehearing of the Tenth Circuit found that the record indicated that the petitioners were engaged in speech when obtaining signatures, and the available pool of circulators being smaller than if they could have paid circulators constituted a burden on their speech. The en banc rehearing also rejected the argument that, because ballot initiative is a state-created right, individual states are free to impose whatever condition they see fit.
The Supreme Court upheld the Tenth Circuit’s en banc opinion, ruling that this content-neutral limitation on political speech required exacting, or intermediate, scrutiny. Following the Court’s seminal Buckley v. Valeo, which addressed a litany of campaign finance provisions, content-neutral limitations must be substantially related to an important government interest.
The Meyer Court found that “[a]ppellees seek by petition to achieve political change in Colorado; their right to freely engage in discussions concerning the need for change is guarded by the First Amendment.” The kind of discussions required to convince someone that a proposal is worthy of public scrutiny and debate is clearly “core political speech.” A restriction like prohibiting paid circulators restricts the number of voices who will speak on an issue, limiting the number of people proponents can reach and lowering the likelihood of a proposal earning a position on the ballot.
The Court also rejected the state’s argument that the ban on paid circulators was not a burden because alternative means of communication were available. “The First Amendment protects appellees’ right not only to advocate their cause but also to select what they believe to be the most effective means for doing so.” In summary, First Amendment protection for initiative petition circulation is “at its zenith.” The Court likewise rejected the state’s arguments on the need for the prohibition, as all of the interests presented were adequately accomplished by other ballot access requirements.
Signing an initiative petition is also core political speech.
In John Doe No. 1 v. Reed, the Supreme Court stated that the act of signing an initiative petition was also political speech. The Court applied a framework for the analysis of First Amendment protection for petition signers, which remains the current test.
The petition at the center of Doe would have extended certain benefits in Washington to same-sex couples. Respondent intervenors in the case sought to obtain copies of the petitions, including names and addresses of the signers. The petition sponsor and some signers contested this effort, arguing that disclosure would violate their First Amendment rights.
The Court stated that “[a]n individual expresses a view on a political matter when he signs a petition under Washington’s referendum procedure… In either case, the expression of a political view implicates a First Amendment right.” They went on to state that “[p]etition signing remains expressive even when it has a legal effect in the electoral process.”
In other words, just because something has a legal effect on either the outcome of an election for a candidate or, in this case, the future of potential legislation, does not make the activity any less political speech. The Supreme Court was unequivocal in identifying petition signing as an expressive act of political speech. Thus the Court applied the same level of “exacting scrutiny” to this disclosure requirement as they did to other disclosure requirements on speech. The Court found a substantial relation between an important government interest and the disclosure requirement. However, the case provides a framework for the privacy of future potential petition signers.
Idaho provides a model for state and local direct democracy.
Idaho provides more opportunities for binding questions of statewide or local policy through citizen-initiated referendums. The Idaho Constitution provides a general right to initiative and referendum, but the process is defined by statute.
Idaho law includes a full chapter dedicated to referendum procedures, laying out requirements for the form of the question, signature requirements, filing procedures, and other pertinent details. While the chapter directly addresses requirements for statewide initiatives, subsections define parallel processes for city and county referendums. These subsections substitute respective officeholders and duties in place of their statewide counterparts. They also define the threshold as “at least twenty percent (20%) of the total number of qualified electors voting in the last general county [or city] election in November of an even-numbered year.”
To reach the ballot with a statewide initiative, proponents must collect signatures equaling at least six percent of all qualified electors at the last general election, both statewide and in each of at least eighteen legislative districts.
The form of petitions is also set by statute, which notably contains the following subject-matter restriction: “PETITION. (1) An initiative petition shall embrace only one (1) subject and matters properly connected with it.” While Illinois law does not currently contain a parallel provision, case law governing the form and clarity of questions, covered in last week’s installment, serves a similar purpose.
The Illinois Constitution might include a substantial barrier to a similarly broad, statewide initiative and referendum process; the text specifies that “[t]he legislative power is vested in [the] General Assembly. Though Illinois courts have not definitively answered whether this constitutes a bar to a broad delegation of authority to the people, a purely legislative change may evoke such a challenge.
Building direct democracy in Illinois requires nuanced understanding of state constitutional constraints.
The Illinois Constitution provides a right to initiative and referendum. However, this may not be open-ended enough to provide for both statewide and local direct democracy processes. Furthermore, a statutory process would always be subject to later legislative bodies’ whims, leaving the right susceptible to curtailment.
Next week’s installment will consider this dynamic in proposing a path towards an inclusive, accessible direct democracy in Illinois.
Direct Democracy Series Week 2: The Courts
As last week's installment showed, the Illinois Constitution and statutes provide only limited opportunities for initiative and referendum. State law defines only a few hundred opportunities for direct democracy, with many of these inapplicable or unhelpful to most Illinois residents.
Over the ensuing decades since the passage of the 1970 state constitution and the creation of the current initiative and referendum process, courts have confirmed the text's narrowness and enforced strict procedural barriers to ballot access. Arguments invoking constitutional rights, public policy benefits, and fairness have fallen flat, as courts have held to a rigid, four-corners reading of the limited sections in the Illinois Constitution. Efforts to creatively expand direct democracy, such as creating a local process for initiative and referendum, face high hurdles.
The bottom line is that improvements to direct democracy in Illinois, from subject matter opportunities to ballot access, will not come from the courts. This week's installment in the CAC Direct Democracy series explores the court cases that shape the current understanding of Illinois law surrounding the local initiative and referendum process. These cases provide lessons that advocates must use to successfully use the existing limited system and issues to address during future legislative efforts to improve direct democracy in Illinois.
Over the next two weeks, this series will provide the lessons we can learn from other states, changes that could be made to Illinois law, and a proposal to bring better, broader, more inclusive direct democracy to Illinois.
Direct Democracy Part 2: How Courts Address Initiatives and Referendums
Illinois law includes three types of referendums: binding local initiatives, binding statewide constitutional amendments, and advisory questions of public policy. This series's focus is the first category, a limited avenue of direct democracy granted in the Illinois State Constitution. According to Article VII, Section 11:
Proposals for actions that are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the electors [...] by petition of electors in the manner provided by law.
This passage grants power to the people of Illinois to change the law, but only where authorized by a provision in the Constitution or statute passed by the General Assembly. In practice, this leaves very few useful opportunities for direct democracy.
In the subsequent fifty years since the Constitutional Convention, advocates have initiated or attempted to initiate referendums on a wide range of subjects across the state. Many of these attempts fell short in the face of challenges and judicial scrutiny, creating a history of case law that displays the few protections for initiatives explicitly or implicitly guaranteed by the law and where significant barriers exist to direct democracy in Illinois.
The following cases represent a chronological framework of cases leading to the current understanding of the state's narrow, restrictive initiative and referendum process.
Home Rule Municipalities Enjoy Broad Power
Clarke v. Village of Arlington Heights was the first case to test any provisions of the Article VII initiative power created by the 1970 Illinois Constitution. Section (6) states that a home rule municipality has the power, subject to approval by referendum, to adopt, alter, or repeal a form of government provided by law, and to "provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law."
In Clarke, the plaintiff brought an action contending that provisions of the Arlington Heights Code which designated an appointed village clerk, and another requiring eight trustees to be elected at each election, were in conflict with state statutes mandating both an elected village clerk and only six trustees and that state law must prevail. The Illinois Supreme Court interpreted the question on appeal to whether a home rule municipality such as Arlington Heights may, by referendum approval as outlined in Section 6(f), make these changes contrary to the Illinois Municipal Code, which had been enacted before the 1970 Illinois Constitution. Citing precedent, the court held that the power of home rule units of government must be read broadly under this new constitution. It noted that home rule was added to the state constitution to remedy the issue that municipal actions were too limited by only what had been explicitly authorized by state action. In short, the home-rule powers set out in Article VII must be read as authority to effect structural changes according to that text, even if such changes conflict with state law. The court noted that the form of government clause does not require municipalities to pick between certain forms of government that have already been approved by the legislature. It found that this novel modification was entirely in line with the plain meaning of the language.
This case presents a useful lesson on the benefit of open-ended language, such as allowing local governing units to "adopt, alter, or repeal" a form of government in the manner provided by law. The drafters of the 1970 Constitution wanted to allow for free creative usage of this Article VII power. They wanted local governments to have the authority to tailor their structures to fit local needs, acknowledging different municipalities would have different needs. Other cases make clear this flexibility does not extend to citizen-initiated measures, regardless of the drafters’ intent.
Courts Should Consider the Totality of the Circumstances in Judging the Sufficiency of Ballot Referendum Language
In Hoogasian v. Regional Transp. Authority, the Illinois Supreme Court set out a test for lack of clarity in a ballot initiative. This case dealt with a special public referendum in the six counties that were to be affected by the Regional Transportation Authority Act's passage. In that March 19, 1974 election, a majority of voters marked ballots in favor of creating the Regional Transportation Authority. The Regional Transportation Authority Act was quite comprehensive, laying out in detail the powers, authority, and limitations of the new agency. The question presented to the voters was the precise language as was mandated by the statute; nonetheless, the Plaintiffs claimed the proposition was "so vague, indefinite, uncertain, unclear, uninformative and broad as to deprive them of property without due process of law." This can be restated as a contention that, because of the vague language of the referendum question, "the voter had no idea what he was being asked to vote for or against when confronted with the referendum ballot in the polling place."
In responding to this assertion, the court identified that "[t]he sufficiency of the proposition cannot be totally divorced from the circumstances in which it was submitted." Notably, many other transport authorities in the areas affected by this referendum had been in existence "for years." Hence, it is likely that many of the voters would have known their function. Although the legislature did not fully summarize any of the specifics of the act in the referendum question, the court believed that it was reasonably apparent to the average citizen where they would go to obtain more information before election day. The court took judicial notice of the extensive discussion and attention, in particular the extensive media coverage which had been generated by this question, and used that as an additional basis for its conclusion that the voters would have well understood on what issue they were voting. To put the holding of this case another way, courts may not judge the sufficiency of the language used in a referendum question solely on the text which will appear on the ballot. Instead, they must look at the totality of the circumstances surrounding the question to determine whether or not the voters will understand what they are being called to vote yes or no on.
Ballot Referendums Require a Coherent Scheme and Must Stand On Their Own Terms
Lipinksi v. Chicago Bd. of Election Com'rs clarified and expanded on Hoogasian in examining the sufficiency of a referendum, which would have created a nonpartisan election process, including runoffs, for the mayor, treasurer, and clerk of the City of Chicago. The referendum read:
Shall the mayor, the treasurer and the clerk of the City of Chicago be elected on a nonpartisan ballot, by at least a 50% majority vote, but if no candidate receives at least 50% of the votes cast for the respective office, then in a runoff election between the two candidates for the office who received the greatest number of votes for that office at the initial election?
This referendum was challenged both because it had failed to get the requisite number of signatures to qualify for the ballot and that it was fatally vague and ambiguous.
In addressing the issue of vagueness and ambiguity, the Illinois Supreme Court began by stating that Article VII, Section 6(f) of the Illinois Constitution required that voters approve "'a coherent scheme for altering the election of their officials.'" The court emphasized that a referendum submitted under Article VII, Section 6(f) of the Illinois Constitution must be able to "stand on its own terms"; if it is not self-executing and leaves gaps that must be filled in by a legislative body, the question presented to voters is "uncertain." This is not to say that a referendum question must supply the answer to every possible sequence of events itself; local ordinances or state statutes may be able to fill the gap, and in that situation, a referendum would still be considered self-executing. In this case, however, the court found that the Election Code could not "fill the gap." Specifically, suppose this referendum had been adopted in the November elections. In that case, candidates for this new form of the consolidated primary could not begin to circulate petitions until, at most, 40 days before the statutory deadline, in contradiction of the statutorily mandated 90 day petitioning period."
Additionally, the court expressed concern that, as the referendum was silent on the number of signatures required to get on a nonpartisan ballot, the requirement would default to the Election Code rule for third party candidates. In the case of the mayor of Chicago, that would have made the requirement to qualify for the ballot 25,000 signatures, an approximately 500% increase over the number required at the time of the lawsuit. The court expressed additional concern at the contradiction of the term "50% majority," as a majority is by definition greater than 50%.
The court held that any referendum that has to be "interpreted, supplemented and modified in order to be implemented" is constitutionally defective, as voters cannot be said to have approved a coherent scheme for altering the election of their officials. The court determined that the referendum, in this case, was equally constitutionally defective, as it left questions regarding implementation unanswered and provided details that conflicted with the Election Code.
To distinguish this case from Hoogasian, the court noted that voters had no outside information they could consult for additional clarity on the referendum's effect. As a final matter, referenda brought under Article VII are specifically meant to be binding. Therefore any question which is specifically brought under those provisions may not be added to the ballot as an advisory question. Therefore, the court found the contested referendum fatally vague and ambiguous and unfit for a spot on any future election ballot.
From Hoogasian, Leck, and Lipinski, the central test regarding clarity arose: whether or not a referendum is genuinely "self-executing." Any future ballot questions must conform to this test.
Ballot Referenda Need Not Be Written in Optimal Form to Be Judged Sufficient
Johnson v. Ames revisited the clarity and specificity rules of Leck, Lipinski, and Hoogasian in 2016. The plaintiff in Johnson sought to place a question on the ballot about imposing term limits on the Village of Broadview's elected president. Despite a strong dissent from the Village of Broadview Electoral Board Chair claiming that all the constituents she had talked to said they understood the question, the board held that the question could not appear on the ballot. On judicial review, both the Circuit Court and the Court of Appeals agreed with the board's chair that the question was not vague or ambiguous and should be placed on the ballot. Though the Illinois Supreme Court initially denied a petition for leave to appeal, this case reached came before it on a Rule 316 certificate of importance solely on the issue of whether the referendum was vague, which the Supreme Court accepted and took the case on the briefs which had been filed in the appellate court.
The referendum at issue stated:
Shall the terms of office for those persons elected to the office of Village President in the Village of Broadview, at the April 4, 2017 consolidated election, and at each election for said office thereafter, be limited such that no person shall be eligible to seek election to or hold the office of Village President where that person has been previously elected to the office of Village President of the Village of Broadview for two (2) consecutive full four (4) year terms.
Both parties to this case cited Leck and Lipinski as their primary authorities but disagreed as to how the cases should be applied. The Illinois Supreme Court restated the test to whether a referendum could "stand on its own terms" or whether it would have gaps that would need to be filled by some legislative body. In this case, the plaintiff contended that Leck and Lipinski required "clear, unequivocal language identifying [its] temporal reach." The court found the fact that the referendum did not specifically identify when the consecutive four-year terms needed to begin was not fatally vague, as it could be determined that this referendum targeted individuals who wished to run for the office of Village President, starting with the 2017 election, who had been previously elected to that office. In other words, reading the referendum in full answered all the questions as to that part of its applicability.
The plaintiff also contended that there were provisions in the referendum which were contradictory and that it was thus fatally vague on those grounds. The contention was that the clause identifying when the referendum would begin would imply that the two-term limit would not apply to anybody running in the April 2017 election and that this contradicts the clause that prohibits anybody who has been previously elected to the office of village president for two terms to run again. The Illinois Supreme Court disagreed, finding the plain meaning of those two clauses simply identified when the new requirements would be applied, as well as determining what the new requirements were. Most importantly, the Illinois Supreme Court held that a valid referendum need not necessarily be presented in optimal form. The court determined that Leck and Lipinski simply require that it be clear what voters approved. If the voters approved this question, the effect would be sufficiently clear.
The preceding four cases lay out an important ballot initiative protection: the ability for existing law to "fill the gap" when a ballot question does not explicitly provide the answer, as long as the question is as clear and thorough as necessary to be understood by the voter and implemented by the government. This is an important protection since many issues of local policy are not straightforward. Furthermore, few citizens could craft a ballot question that would have an answer for every possible series of events, regardless of whether answers could be found somewhere in the law, while still making the question as understandable as Hoogasian and its progeny require. The point of the ballot initiative as articulated by the Constitutional Convention delegates and others around the country who have granted this right, is that it allows the voters to be creative. The Hoogasian protection preserves the creativity of the ballot initiative, though it has been inconsistently applied. To ensure this protection is maintained, the holdings of Hoogasian and its progeny should be codified.
Home Rule Municipalities May Pass Ordinances Altering Their Form of Government and Place a Referendum on the Ballot Under the Ordinance
In Flowers v. City of Moline, the Illinois Appellate Court analyzed Article VII's scope and interpreted what makes a referendum question legally sufficient to be presented to the voters. In this case, the plaintiff challenged the City of Moline's authority to alter its form of government by altering appointment procedures for multiple city offices. The city passed an ordinance making all of these changes and, on the same day, passed a resolution calling for submitting the ordinance in question form to the public through a referendum. The plaintiff sought to both keep the referendum off the ballot and to enjoin the city from enforcing the ordinance. As a brief initial matter, the court confirmed that, because the City of Moline was a home-rule unit, it was free to supersede the state statute which had previously defined how a city may adopt a managerial form of government.
The court held that the term "by law" in Article VII does not mean that the forms of government must be explicitly provided by statute, as city ordinance is also "law" within the city. Most importantly, the court noted that the form of government clause includes three words: adopt, alter, or repeal. The interpretation of the form of government clause advanced by the plaintiff would essentially mean that home-rule municipalities would only have the authority to adopt a different form of government as provided by statute or to repeal their current form of government. In other words, this interpretation renders the word "alter" completely meaningless. The use of the word "alter" necessarily means that home-rule units have the authority to tailor their form of government to their own, specific needs. Therefore, the city did not exceed its authority in making these novel changes to its form of government.
Without State Law or Municipal Ordinance Underlying It, Citizen-Initiated Referendum Altering the Form of Government Fails
The above cases set out cohesive interpretations of the processes in Article VII of the Illinois Constitution for citizens to propose changes through referendum and for local government to alter form. In 2020, Harned v. Evanston Municipal Officers Electoral Board dealt with questions involving both processes: an initiative for referendum to alter the form of Evanston government.
The case surrounded a comprehensive ballot question known as the “Evanston Voter Initiative,” or “EVI.” The EVI question stated:
"Shall the people of the City of Evanston provide for a voter petition and referendum process for the consideration and passage of city ordinances as follows: The people of Evanston provide that the offices of City Clerk, Mayor, and aldermen of the City Council have the power and duty to determine the necessary and proper procedural rules regarding the passage of city ordinances and the express duty to assist the people of Evanston in exercising their right to petition and make known their opinions regarding the consideration and passage of city ordinances. At the request of at least 25 Evanston electors, the City Clerk shall promptly cause a proposal to be drafted into ordinance form, including an official summary of the proposed ordinance. The official summary of the proposed ordinance may be introduced by a petition filed with the city clerk and signed by many electors equal to at least eight percent of the total votes cast in Evanston for candidates for Governor in the preceding gubernatorial election. The procedure for filing the petition and determining its validity and sufficiency shall be established by the City Clerk, who shall make the determination of validity and sufficiency within 21 days of a petition filing.
Upon the determination of a valid and sufficient petition, the City Clerk shall within one business day submit the ordinance proposed by the official petition summary on the agenda of the next City Council meeting for its consideration. The City Council shall take a record roll call vote on the proposed ordinance within 70 days of submission by the City Clerk. If the City Council does not pass the proposed ordinance within the 70 day period, the official summary of the proposed ordinance shall be submitted by the City Clerk to the electors for their approval by referendum at the next regularly scheduled election held in all precincts of the city and held at least 70 days after referendum submission by the City Clerk. If the official summary is approved by a majority of those voting on the question, the proposed ordinance shall have the force and effect of passage by the corporate authorities of the City of Evanston unless it is disapproved by a resolution of the City Council not more than 30 days after the election?"
The objections to this question were that it: (1) presented a binding referendum question, in violation of state law; and (2) that the question as presented would confuse voters.
The appellate court began by affirming that Article VII, Section 11 only provides for voter-initiated referenda for "[p] for actions which are authorized by [article VII] or by law and which require approval by referendum." The court also noted that Section 28 of the Election Code clarifies that, to qualify for the ballot, a referendum must be authorized independently by either statute or the state constitution.
Evanston, by nature of its size, is automatically a home-rule unit. Much of the case analyzed Section 6(f) of Article VII, which defines the powers of home rule units to “adopt, alter or repeal a form of government provided by law,” and “to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law.”
Petitioner argued that the second clause was an appropriate vehicle for the petitioners' proposed change because it altered the duties which certain officers had: specifically by limiting a portion of the duties allocated to the City Council and the Mayor, and by increasing the duties of the City Clerk. The Court found that this second clause was only invoked when providing for new or different offices, changing the manner of selection of officers, or terms of office.
As to the first clause of Section 6(f), the court found that the EVI would not adopt or repeal any preexisting form of government. The form of government clause does, of course, allow for alterations to a form of government, and the court stated that a proposal implicates that part of the clause when it "substantially change[s] the inherent powers belonging to one part of government." However, the court declared that the EVI fails under the form of government clause because the novel "form of government" provided for by the proposal would not be one "provided for by law."
The court distinguished this case from Flowers by stating that the city government in Flowers had passed an ordinance creating the form of government before submitting the proposal to the voters. Because the EVI was initiated by the voters and the Evanston City Council had not acted beforehand, there was no law providing for this form of government.
Though the court could have disposed of the case following analysis under Section 6(f), it chose to rule on the issue of vagueness and confusion as well, drawing on the tests from Leck, Lipinski, and Ames. The court held that Johnson v. Ames was distinguishable from the case in front of it because the referendum at issue was significantly simpler: it created term limits, and the missing piece of the referendum could be easily inferred. The court read the EVI as requiring the city to decide, at some later date, the procedures for filing the voter-initiated petitions contemplated by the question, as well as the methods for determining validity and sufficiency. The court was also concerned with potential situations the question was silent on, such as what happens if a voter-driven initiative is passed by the city council but vetoed by the mayor. Applying these facts to the Leck and Lipinski test, the court found that the EVI was not sufficiently self-executing.
Enhancing Direct Democracy in Illinois Requires Changing the Law
As these cases show, the right to initiative and referendum enshrined in the Illinois Constitution remains constrained to the point that direct democracy in Illinois is nearly nonexistent. Would-be proponents must find narrow openings in the law and leap high hurdles to have an opportunity to change local law through a referendum. Though the record of proceedings at the constitutional convention point to the drafters' intent that local government remain flexible, the decades since have shown that flexibility exists only in the hands of home rule authorities
However, these cases also show opportunity: the need for home rule power has a corollary need in people power. Where the General Assembly has opened up limited opportunities for direct democracy, advocates have often taken advantage.
Next week, we will look to other states for models Illinois may follow in expanding direct democracy. In two weeks, finally, we will present a path forward to a broader and more inclusive initiative and referendum process.