I have determined that the County Board’s action to place a referendum on the ballot eliminating the elected County Auditor’s office does not conform to the requirements of Illinois Election law and will thus not be on the November Ballot.

This is a difficult decision because refusing to certify a question or candidate is an extraordinary remedy.  However, no other one exists.

The certification to the Election Authority (my office) of questions by public bodies is required under the law to include “the form of the public question to be placed on the ballot, the date on which the public question was initiated by either the filing of a petition or the adoption of a resolution or ordinance by a governing body,” (10 ILCS 5/28-5).  That the certification is statutorily required to contain these elements strongly suggests that the Election Authority is to examine the certification to ensure that the elements are present and that they are in apparent conformity with the relevant statutes.  The Election Code requires that public questions be passed by governing bodies no more than a year before the election.  It is reasonable to assume that it is my statutory obligation to make sure that every filing of a public question by a governing body conforms to this requirement.

It is important to note that there would be no other statutory means to prevent the placement of a referendum on the ballot that was passed illegally by a governing body.  Unlike public questions resulting from petition drives, there is no mechanism for citizens to challenge the validity of a referendum passed by resolution of a governing body.  In fact, the Election Authority is the sole individual in a position to prevent an illegal question from appearing on the ballot.

I have written in the past about the principle of apparent conformity.  This decision I am making today comports well with what I have written in the past.  Of particular interest here would be People ex rel Giese v. Dillon in 1914.  (266 Ill. 272).

“The town clerk is a ministerial officer. It was his duty to examine the petition, and if upon its face it appeared that it was not in compliance with the requirements of the statute he was not required to submit the question for a vote at the ensuing election.”

The Dillon case is cited in virtually every case regarding apparent conformity.  In the 2008 Haymore decision, the Appellate Court once again reaffirmed that Dillon is “sensible and relevant.”
In the case at hand, the resolution of the County Board was passed on August 20, 2009, over 14 months before the November 2, 2010 election.  The Election Code is clear however that no question can be submitted more than a year before the election.

“However, no petition, resolution or ordinance initiating the submission of a public question, other than a legislative resolution initiating an amendment to the Constitution, may specify such submission at an election more than one year, or 15 months in the case of a back door referendum as defined in subsection (f), after the date on which it is filed or adopted, as the case may be. A petition, resolution or ordinance initiating a public question which specifies a particular election at which the question is to be submitted shall be so limited, and shall not be valid as to any other election, other than an emergency referendum ordered pursuant to Section 2A-1.4.  (10 ILCS 5/28-2)

As I noted above, refusing to certify a question is an extraordinary remedy that I don’t take lightly.  I have never done it before and hope it never happens again.  I also want to make it clear that I take this action as the Election Authority for Champaign County and not as Clerk of the County Board.

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