The McHenry County Clerk (acting as the local election official for the township) recently made the determination that a referendum question to dissolve the township initiated by the board of township trustees and filed with the County could not lawfully be certified and placed on the ballot for the November 2020 general election. The same referendum question to dissolve township had just been voted on at the March 2020 primary election and Section 28-7 of the Election Code provides that where a public question is defeated at the ballot box it cannot be placed on the ballot again for at least 23 months following its rejection. The 2nd District Appellate Court found the Clerk’s action to be beyond his authority under the Election Code, noting the Illinois Supreme Court has made it clear that a ministerial officer such as the County Clerk acting as local election official may not look beyond the face of the documents filed to determine whether a public proposition complies with the law. Relying on the fact that the same public question had just been defeated at the prior election, in the opinion of the appellate court, went beyond an examination of the face of the referendum petition and was therefore beyond the authority of a local election official.
McHenry Township v. County of McHenry, 2021 IL App (2d) 200478
A full copy of the Court’s decision is available at the following link:
A more detailed discussion of the decision of the court is set forth hereinafter.
SUMMARY OF DECISION
McHenry Township v. County of McHenry, 2021 IL App (2d) 200478
In early 2020, the township’s electors submitted a referendum proposition for placement on the March primary ballot asking voters whether they wanted to dissolve the township. The question of dissolving the township was defeated at the March election. Following that vote result, the township board of trustees approved a resolution to place the same referendum proposition on the November 2020 general election ballot. The question was filed with the County Clerk for placement on the November 2020 ballot. Under Illinois law, the County Clerk was the gatekeeper of the election process for this petition filing and was charged with certain basic duties in determining whether the filing met certain, fundamental legal requirements. The County Clerk objected to the filing on the basis that it was the same referendum that was already defeated at the March 2020 election and the Election Code prohibits more than one referendum on “the same proposition” in any 23-month period. 10 ILCS 5/28-7
Illinois law requires that when the local election official receives a filing of a public question for an election and the public question is not to be placed on the ballot, the election official must notify the person filing the question. The County Clerk did so by notifying the township board that the referendum proposition could not be certified for the ballot because the Election Code prohibits the placement of a defeated referendum on the ballot again within 23 months after the election at which the question was rejected. The township board sued the County Clerk contending the County Clerk exceeded his authority as county clerk when he looked past the face of the filings to make his determination to not certify the question. The Clerk’s office asserted the Clerk did not look past the face of the referendum petition due to the Clerk’s public knowledge of past ballot content as the local election official, including the fact that the same question had just been placed on the March 2020 ballot and was rejected by voters. The County Clerk contended that his determination that both propositions were identical required no investigation. The trial court found that the Clerk did look outside the four corners of the petition filing to reach his decision but found that section 28-5 of the Election Code granted the Clerk the authority to do so:
“[the Election Code] clearly contemplates a determination by someone as to whether the public question violates any section of the Election Code, including [section] 28-7.” … “if the local election official or authority is not charged with rendering that determination, who is? The logical answer is the same election official or authority. No provision in the Election Code suggests any other public official would have the standing or authority to do so.” McHenry Township v. County of McHenry, 2021 IL App (2d) 200478
The trial court concluded that literal, strict enforcement of a rule that a local election official is limited to a facial examination of all filings would lead to an absurd result, emphasizing that the Election Code expressly provides that public questions must comply with all provisions of the Election Code, including the 23 month limitation of public questions. The trial court noted that if the local election official cannot determine that a public question violates the Election Code prohibition on placing the same referendum on the ballot within a 23 month period, that public questions which violate the Election Code would have to be placed on the ballot. The trial court emphasized that the Election Code expressly states that all public questions must comply with the all provisions of the Election Code.
ANALYSIS AND DECISION OF THE COURT
The Court found the trial court improperly found the County Clerk acted within his authority to decide not to place the public question on the ballot because his decision necessarily required him to look beyond the face of the township’s July 2020 filings, noting the Illinois Supreme Court has made it clear that a ministerial officer such as the County Clerk acting as local election official may not look beyond the face of the filings to determine whether a public proposition complies with the law. The Court here specifically relied on the prior appellate decision in Haymore v Orr to support its conclusions. Haymore v. Orr, 385 Ill. App. 3d 915 (2008) (holding that village clerk had authority to withdraw certification of a binding referendum question for lack of sufficient signatures to put the question on the ballot; election law provided that questions were to be placed on ballot if they were in “apparent conformity” with the law). However, arguably the local election official in Haymore did rely on information beyond the face of the petitions in that case; the Haymore court found that a clerk could look beyond the face of petitions by resorting to voter registration data and records to determine the minimum number of signatures required to place a referendum question on the ballot. Here, the County Clerk resorted to its own, available public records to determine that this referendum question had just been defeated at the prior March 2020 election.
In relying on Haymore, the Court here concluded that “[c]ounting signatures and ascertaining whether required documents were filed are clearly ministerial tasks within the scope of a clerk’s duties.” The clerk in Haymore did not just count signatures however; she had to make a separate determination beyond the face of the petitions to calculate the number of signatures required for a referendum petition to be filed. The Haymore court rejected any claim that nominating papers are valid unless objected to, and found that the role of the election official is separate from the hearing of objections by electoral boards stating: “Clearly, section 10-8 contemplates that the question of whether papers were duly filed and in apparent conformity with the law when filed is a threshold question that will be answered through a procedure other than statutory objection. Otherwise, the qualification, “being filed as required by this Code, and being in apparent conformity with the provisions of this Act,” (10 ILCS 5/10-8(West 2004)) aside from making no sense, would be wholly superfluous [emphasis added]. Haymore v. Orr, 385 Ill. App. 3d 915, 919-20 (1st Dist. 2008).
The Court here concluded that the McHenry County Clerk is not charged with knowledge of the content of prior ballots and such knowledge was beyond the face of the referendum petition itself. It is unclear therefore, how the clerk’s examination of the number of votes required for the referendum petition in Haymore was lawful, although it appears to be beyond the face of the petition. We presume therefore that the “legal” or mathematical determination of the number of signatures required for an election from the available public records falls within the authority of a local election official in the exercise of their ministerial duties while the determination of whether a prior identical referendum took place from the available public records, is not.
The Court went on here to reason that the determination of the McHenry County Clerk in this matter would have also necessarily required his “evaluation” of the content of the township’s referendum proposition and concluded that such an evaluation of the content would be an exercise of powers beyond his ministerial powers.
NOTE: The Court in this matter did not reference or analyze certain recent, relevant caselaw on related issues that potentially bears on the Court analysis here. See e.g. Harned v. Evanston Electoral Board, 2020 IL App (1st) 200314 at ¶ 33 (binding referenda may be submitted only if expressly authorized by law or by the Illinois Constitution, citing to Section 28-1 of the Election Code); Pate v. Wiseman, 2019 IL App (1st) 190449 (plaintiffs argued the determination of who has the authority to fill vacancies in nomination where there is no primary is a matter of judicial exercise that is not ‘apparent’ on the face of the documents filed with the clerk and therefore the clerk lacked the authority to determine that their documents “were not in compliance with the Illinois Election Code and was required to “perform his ministerial obligation and duty of certifying plaintiffs’ names to the ballot; the appellate court disagreed and affirmed the authority and role of the election official in certifying nominating papers: “the nominating papers filed with the clerk were facially defective because they contained resolutions purporting to fill the vacancies of withdrawn candidates by the remaining candidate, who had no authority to do so, noting that in such circumstances, the village clerk had the authority to make a determination and refuse to certify plaintiffs’ names, even if no objection to the purported nomination papers was filed.)