Judge: Constitutional convention must be remedied before election

Published: 10/2/2008 12:06 AM

A Cook County Circuit Court Judge ruled Wednesday that the Illinois legislature, by playing with the wording of a referendum question, effectively denied voters the right to cast their ballots this Nov. 4 on whether they want a constitutional convention.

The ruling now throws 110 election boards across the state into uncertainty, as the parties to the suit try to figure out a way to remedy the problem.

Judge Nathaniel Roosevelt Howse Jr. said that by inserting language that gives voters the results of the last constitutional convention referendum, it "would have the effect of perhaps discouraging" voters who want to vote yes, or suggesting to all voters that it's an unimportant topic.

Further, the question as now worded incorrectly indicates that not voting on the question counts as a "no" vote. In fact, it does not. By abstaining from answering the question in large numbers - which typically happens with statewide referendums - voters simply trigger a requirement that the question must be answered affirmatively by 60% of those addressing the question, rather than a simple majority.

"I'm not persuaded at all that the notice language is accurate. In fact, it's downright misleading," said Howse.

The $64,000 question now - or more accurately, potentially millions-of-dollars question, is how to solve the problem. Howse seemed to accept the representation by Cook County and Chicago boards of election that there is not time to reprint the ballots. Nor can the offending language be blacked out or taped over. The first option, blacking out, might bleed through the ballot, said James Scanlon, an attorney for the city's board of election. Putting tape or stickers over the question might gum up sensitive optical-reader counting machines, he added.

Howse seemed to be leaning toward posting a notice in voting booths, and possibly even making a mailing to voters in advance, of the mistakes in the wording.

However, that would still leave available to voters the language about the last vote's results, which Howse indicated was unacceptable.

The judge scheduled another court hearing for Friday morning to determine what can be done to remedy the problem.