The question on the ballot regarding whether we should hold a new Constitutional Convention has become a tragedy of errors.

The timeline seems to have gone as follows.  The General Assembly passed HJR 111 which created a House-Senate committee of eight members which crafted language for the submission of the question of a Constitutional Convention to the voters.  This was followed by HJR 137 which was the actual ballot language as well as explanation of the reasons to vote for and against the ballot issue.  The Secretary of State then submitted the question as passed by the legislature to the State Board of Elections on July 1st.  The State Board of Elections then certified the ballot question on August 29th, adding Notice language that was not in the White certification but was in the the State Statutes.

On September 19th and September 22nd, two lawsuits were filed in Cook County Circuit Court challenging the constitutionality and legality of pretty much all the various actions above.  These are to be heard on Wednesday and hopefully decided at that time.

The issue poses a multitude of questions, some of which are addressed in the court filings, others which are not.

First is the question of which provision of the Constitution this question was submitted under.  Section 1(a) deals with legislative submission of the Con Con question.  Section 1(b) deals with submission when the legislature fails to act.  We know that the legislature acted under 5 ILCS 25.  HJR 137 references the language of 1(b), without specifically citing it.  It could be read that the citation of 1(b) was preliminary to the General Assembly acting under 1(a).  In any case, this submission is at the very least a hybrid of these two sections of the statute.

If the legislature was acting on 1(a) though, the question of timeliness will have to be addressed.  A submission under 1(a) must be passed at least 6 months prior to the election.  So if the GA was acting under 1(a), this question would then appear on the 2010 ballot.

But what if the legislature had acted in a timely fashion?  What if they had passed a Con Con submission in March?  It seems that the question would have to appear on the November ballot this year.  As such, logic would say that the SOS would not have to submit the question.  So could the passage of the HJR in May satisfy the 20 year requirement, but result in the question actually being placed on the 2010 ballot?

Presuming, as most do, that this submission is under 1(b), the next question is whether the General Assembly can, by statute, tell the Secretary of State how to handle his Constitutional duty to submit this question.  This relates to 5 ILCS 25, the Constitutionality of which is being challenged in one of these suits.  I’m pretty convinced that the legislature can’t instruct the SOS in this regard, although there is nothing to preclude the SOS from taking their “advice” as laid out in the HJR.  So the language itself, while incorporated in HJR 137 is really ultimately the responsibility of Jesse White.

White’s submission on July 1st does not include the Notice language of 10 ILCS 16/6 that is factually incorrect.  For some reason, which may be explained further at the court hearing, the State Board of Election added that language.  It’s fairly irregular to add such a statement when not included in the certification, and the fact that the statement, while in the statute, is clearly wrong makes it highly irregular.  In one of the court cases it is suggested that the SBE had no discretion here and was merely following the law and that it would have been necessary for the law to be changed or for a court to order them not to follow the law.  Unfortunately, this is far from the only instance in Illinois law where a law has been nullified by other statutes but still is in the statutes.  In fact, interestingly, the “separate” ballot provision in 16/6 is being totally ignored due to the new voting equipment.

I think the plaintiffs here have a difficult time getting around the laches defense from White and the SBE.  The language was in the HJR that passed in May and no one challenged it until September.  While there was less time to respond to the SBE certification on August 29th, there is still a strong argument that a challenge to that certification should have happened prior to September 19th.  For example, if this had been a referendum filing by citizens, the challenge to that petition would have to have been filed within five days after the last day to file the petition.

Nevertheless, the presence of factually incorrect language on the ballot as well as highly biased language demands attention by someone.  The question is who will address it and what will be the remedy.

As to who will address the issue, it seems pretty clear that it can’t be left up to the discretion of the three entities with the original responsibility.  I’m not sure they could clean up the mess, and I don’t think they should be trusted to do so.  As such, it’s going to fall on a court to order something.

Here are the possible remedies I can see.

First, order that new ballots be printed with neutral and factually correct language.  The cost of this would be about $2 million for ballots alone.  The additional cost of staff time would be difficult to measure.  New ballots would have to be sent out to voters who have already received them.  Further, much equipment has already been tested, so there would more testing required, and with the shortened time frame to make adjustments to the programs, there’s greater likelihood of errors being made.

Second, order that the ballots have the objectionable language crossed out with a marker.   This would be an invitation to delays on election day and also might create problems with ink bleeding through ballots and creating phantom votes on the other side of the ballot.

Third, put a sticker over the language on the ballot.  I’m not sure if a ballot with a sticker on it would go through our machines, and quite frankly, I’m not sure I’d want to test it on a machine that costs $5,000.  Once again, the stickering process would likely happen on election day and create delays.

Of course, for a price, we could find temporary workers to do stickering or lining out prior to election day if it was ordered to do either.

Fourth, we could distribute an additional piece of paper to voters explaining the problems with the language.  It’s likely that the plaintiffs in the lawsuit wouldn’t think too well of that solution because the original prejudicial  language would remain on the ballot.

Fifth, the judge could order Jesse White to certify a new Con Con for 2010 and invalidate the present question while allowing the question to remain on the ballot.  Signs could be put up informing the voters that votes on the question will not be tabulated.  The plaintiffs here might be inclined to accept such a solution, but with some reluctance.  With Springfield in shambles and the feds breathing down the necks of various polticians, there has never been a better time to campaign on a reform message.  Although only the most optimistic people think that state government will look appreciably better in 2010.

Personally, I’d like to see this question pitched for this election, but not reprint ballots.  The General Assembly, Secretary White, and the State Board of Elections all share some culpability here.  The plaintiffs even have some because of the lateness of their lawsuit.  It seems that this would be a good time to have a do-over.  The voters deserve an unbiased up and down vote on this important issue.  At this stage, there really is no way to do that without moving the vote to 2010.

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