Con Con ballot wording suit back in court on Wednesday

Separate suits filed by the Chicago Bar Association and Robert Costello et al. have been consolidated and are set for "hearing on the merits" on Wednesday, October 1, according to a copy of a September 25 order provided to For What It's Worth by Steven F. Pflaum, Chicago Bar Association General Counsel and a partner at McDermott Will & Emery.

Stephanie Potter wrote about the CBA's suit in the September 23 edition of the Chicago Daily Law Bulletin. Her story emphasized that the CBA has not taken a position for or against the calling of a new Illinois Constitutional Convention. Potter wrote, "The group says it brought the suit only to ensure that the referendum is fair and comports with the Constitution and Illinois law."

The CBA has raised two primary objections to the ballot language. The first of these concerns the "explanation" that will, pending the outcome of these suits, precede the actual "yes" or "no" question about calling the convention. Although the explanatory language may be found on the Secretary of State's website, the language actually comes from House Joint Resolution 137. Here is the controversial language:

Explanation of Proposed Call
This proposal deals with a call for a state constitutional convention. The last such convention was held in 1969-70, and a new Constitution was adopted in 1970. The 1970 Illinois Constitution requires that the question of calling a convention be placed before the voters every 20 years. In 1988 the electors rejected the call for a constitutional convention, with 75% voting against calling a convention and 25% voting in favor of calling a convention. If you believe the 1970 Illinois Constitution needs to be revised through the convention process, vote “YES” on the question of calling a constitutional convention. If you believe that a constitutional convention is not necessary, or that changes can be accomplished through other means, vote “NO” on the calling of a constitutional convention.

There was also an "explanation" on the 1988 ballot, but it was significantly different... and shorter (click to enlarge):

(This image comes from the Champaign County Clerk's blog, found at the indispensable Capitol Fax Blog.)

The CBA's second objection is to the "Notice" that would accompany the Con Con ballot question. Pursuant to statute (10 ILCS 5/16-6), the Notice would read (the caps being in the statute itself):

THE FAILURE TO VOTE THIS BALLOT IS THE EQUIVALENT OF A NEGATIVE VOTE. (THIS IS NOT TO BE CONSTRUED AS A DIRECTION THAT YOUR VOTE IS REQUIRED TO BE CAST EITHER IN FAVOR OF OR OPPOSITION TO THE PROPOSITION HEREIN CONTAINED.)

WHETHER YOU VOTE THIS BALLOT OR NOT YOU MUST RETURN IT TO THE ELECTION JUDGE WHEN YOU LEAVE THE VOTING BOOTH.

The objection to the "explanation" is that it is not authorized by statue. Here, though, the "notice" is prescribed by statute. However, the CBA alleges, that the statement is nevertheless incorrect because "Article XIV, Section 1(c) of the Illinois Consitituion provides that one of the ways in which a Constitutional Convention can be held pursuant to an automatic call if it is 'approved by three-fifths of those voting on the question.'" The CBA contends that a failure to vote is "not equivalent to a negative vote for purposes of determining three-fifths of those voting on the question."

Many people will enter the polling booth on November 4 just to vote in the presidential contest. People will stop voting at various points down the ballot; if history is any guide, the dropoff from the top of the ballot (the presidential election) to the bottom of the ballot (the Con Con question) will be very significant.

Just by way of illustration, the judge who will conduct the hearing in the Con Con ballot suit on Wednesday is Judge Nathaniel R. Howse, Jr. He was on the retention ballot in 2004. He easily won retention at the time, getting 77.3% of the votes cast: 886,859 "yes" votes and only 260,655 "no" votes. That's a total of 1,147,514 voters who exercised their right to vote on Judge Howse's retention. But just over two million voters made selections in the presidential race at the other end of that 2004 ballot.

If non-votes in a judicial retention race were counted as "no" votes then Judge Howse would have received no better than a 43.3% "yes" vote -- far short of the 60% required for retention. (I assume in these calculations that the total number of votes cast is equal to the total number of votes cast for president. That's not necessarily so: In any given election, some people will return ballots that are entirely blank. Others may bypass that race but vote in other contests. But these numbers are not large.)

Why would there be a different rule for calculating 60% on the question of calling, or not calling, a constitutional convention? The "notice" language prescribed by §16-6 of the Illinois Election Code would provide the reason... except that does seem at odds with Article XIV, §1(c) of the Illinois Constitution:

(c) The vote on whether to call a Convention shall be on a separate ballot. A Convention shall be called if approved by three-fifths of those voting on the question or a majority of those voting in the election.

One of the things that the Secretary of State and the Board of Elections will presumably attempt to explain, in their papers, is why the notice language of §16-6 is in harmony with the constitutional provision. The defendants' responses are scheduled to be filed and served by Monday afternoon.