Con Con ballot ruling may put voters on notice

Circuit Court Judge Nathaniel R. Howse, Jr. ruled late this afternoon that Illinois election officials won't have to reprint new ballots, but both the "explanation" and "notice" provisions of the Con Con ballot proposition are misleading and unconstitutional. (For more about these provisions, read this post.)

Judge Howse's decision came at the end of a four hour hearing at the Daley Center on suits brought by the Chicago Bar Association and individuals Robert Costello, et al.

The court directed the parties to discuss and, if possible, reach agreement before the next hearing on the wording of a curative notice that could be handed to voters when they enter the polling place. Judge Howse has set that next hearing for Friday morning at 9:00 a.m.

Today's hearing was conducted in Judge Alfred Paul's larger courtroom in order to handle the overflow crowd. In addition to the many attorneys, and some of the individual plaintiffs in case no. 08 CO EL 11, there were a number of reporters and several worried employees of the Chicago Board of Elections and the Cook County Clerk's office. Clerk David Orr arrived in person late in the afternoon.

Counsel for the Chicago Board of Elections, James M. Scanlon; Orr's attorney, Assistant State's Attorney Donna M. Lach; and Assistant Attorney General Thomas A. Ioppolo, on behalf of the State Board of Elections and Illinois Secretary of State Jesse White, tried to explain to the court why the election officials were nervous.

"Voting technology," Scanlon told the court, "has outstripped the law." With the old punch card system, a last minute change in the ballot could be accommodated by taping over lines in the ballot booklet, or pasting a new page on top of an old one, but these techniques would not work with optical scan ballots, the voting method used by over 80% of Cook County voters. Election laws, which allow for last minute changes, have not been revised to accommodate these new realities.

Lead CBA counsel Steve Pflaum charged that the election authorities were simply "digging in their heels" and "saying no, no, no," to all proposed corrective measures. He tried to strike a conciliatory note: It was understandable, he said, that the election officials "are reluctant to clean up a mess" made by others. The CBA doesn't see itself as being adverse to the election authorities; it wants to work with them to provide a fair election that won't be subject to challenge because of unconstitutional ballot language. "We can salvage this election," Pflaum told the court.

But Tom Ioppolo warned that challenges to the election would probably arise from whichever side loses the November election. In the meantime, he insisted, there are "no good alternatives" to moving forward with the ballot as already designed.

But the Con Con ballot was designed in stages. The language of HJR 137, adopted by the Secretary of State, did not contain the "notice" language that incorrectly tells voters that a failure to vote on the Con Con proposition is equivalent to a "no" vote. Bruno Behrend, counsel for the Costello Plaintiffs and a co-founder of the Illinois Citizens Coalition, stressed how the "notice" language was added on by the State Board of Elections -- and how his group was told that this language would not be included for a couple of weeks after it actually was added.

Pflaum noted that the State and the election authorities focused their arguments today on the remedy that should be given for the constitutional violations. However, Pflaum argued, altogether too much emphasis was placed on why ballots could not be reprinted at this late date and not nearly enough on other possible corrective measures. Scanlon did lay out for the court an elaborate explanation as to what would be involved in reprinting the ballots, from the problems in getting the right kind of paper for the sensitive scanners, to the time necessary to test the new ballot with each individual scanner before they could be delivered to the polling places. And Scanlon cautioned the court that a solution that might work for Chicago or Cook County might not work for election officials elsewhere in the State: Many different vote counting systems are in use.

Lt. Gov. Pat Quinn, who intervened on the Plaintiffs' side, forcefully advocated the use of a separate paper ballot. Paper ballots, he noted, were used in the 1968 vote that resulted in the call for the 1970 Constitutional Convention. Paper was used for the ballots by which the new Constitution was ratified. But Donna Lach worried that there would be a huge burden placed on polling place officials in issuing and keeping track of a separate paper ballot. Also, she noted, forcing a second, separate Con Con ballot on voters might force people to vote on the proposition who did not want to or else disclose their intention to bypass the proposition to all others present. The scan card and the paper ballot would not be deposited in the same box so it would be obvious if the paper ballot were not returned.

In ruling that the 75-25 language in the "explanation" was improper and in finding the "notice" language "downright misleading," Judge Howse expressly rejected the laches arguments raised by the named Defendants and the Cook County Clerk. However, Judge Howse also rejected the CBA's argument that the participation of the legislature and the State Board of Elections in getting the Con Con call on the ballot was itself improper. True, he said, the Constitution did say that the Secretary of State was the proper authority to certify this question to the ballot -- but the Constitution did not say how this must be done or lay out every step. The Secretary of State was set up as an authority of last resort in case the legislature failed to put the question to the voters on its own.

Will a separate explanatory notice, trying to correct the misleading statements supplied by both the General Assembly and the State Board of Elections, really make this election fair? Or will it only compound voter confusion?