FILED

2/10/2020 5:17 PM
IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS DOROTHY BROWN
CIRCUIT CLERK
COUNTY DEPARTMENT, COUNTY DIVISION
COOK COUNTY, IL
Allison Harned, ) 2020COEL000005
)
Petitioner-Plaintiff, )
)
v. )
) Case No. 2020 COEL 000005
Evanston Municipal Officers Electoral Board, )
and its members Steve Hagerty, Devon Reid, Ann )
Rainey, in their official capacities, and objectors )
Jane Grover, Kent Swanson, and Betty Hayford, )
)
Respondents-Defendants. )
)

RESPONDENTS’ (EVANSTON MUNICIPAL OFFICERS ELECTORAL BOARD AND

ITS MEMBERS STEVE HAGERTY, DEVON REID AND ANN RAINEY)
MEMORANDUM OF LAW OPPOSING PETITION FOR JUDICIAL REVIEW

The Respondents, the Evanston Municipal Officers Electoral Board, and its members,

Steve Hagerty, Devon Reid and Ann Rainey in their official capacity, (hereinafter collectively

referred to as “the Electoral Board”) for their Memorandum of Law Opposing the Petition for

Judicial Review filed by Allison Harned (hereinafter “the Petitioner”), state as follows:

I. BACKGROUND FACTS

The Petitioner filed a petition of voters seeking to place a question for the next regular

election in the City of Evanston, purportedly under the exercise of voter initiative rights under the

Illinois constitution. (R. 027-R. 432).1 (Said petition is hereinafter referred to as “the Petition.”)

The question the Petition sought to put on the ballot, if passed, would establish a procedure by

which voters in Evanston could propose legislation which would then be required to go before the

Evanston City Council for a vote. Id. Jane Grover, Kent Swanson and Betty Hayford (hereinafter

1
All references to the administrative record are cited “R. ____” with a reference to the page number in the record.

1
 FILED
2/10/2020 5:17 PM
“the Objectors”) filed an objector’s petition challenging the Petition on the DOROTHY
grounds BROWN
that the
CIRCUIT CLERK
COOK COUNTY, IL
referendum was not permitted by law and was confusing. (See R. 447- 449). 2020COEL000005

The Petitioner filed a motion to dismiss the Objector’s Petition. After considering briefs

and arguments of the parties on the motion to dismiss and conducting a hearing on the merits of

the Objector’s Petition, the Board entered a decision denying the Petitioner’s Motion to Dismiss

and Granting the Objector’s Petition, which resulted in the Electoral Board’s issuance of a final

written order that the referendum would not appear on the ballot (R. 461 – R. 482).

The Petitioner filed a petition for judicial review of the Electoral Board’s decision, arguing

the Electoral Board does not have authority to decide constitutional or legal issues, their

referendum is authorized by the Illinois constitution, their question is clear, understandable and

self-executing and that the Electoral Board should have dismissed the Objectors’ Petition for

failure to state the Objectors’ interests. Each of these arguments is flawed for the reasons discussed

below. For the following reasons, the Electoral Board’s decision was correct and should be

upheld.

II. STANDARD OF REVIEW

The judicial review of an electoral board decision is governed by the same general

standards of review applicable to administrative decisions under the Administrative Review law.

Cinkus v. Village of Stickney Mun. Officers Electoral Board, 228 Ill.2d 200, 886 N.E.2d 1011,

1017 (2008). There are “three types of questions that a court may encounter on administrative

review of an agency decision: questions of fact, questions of law, and mixed questions of fact and

law.” Cinkus, 228 Ill. 2d at 210, 886 N.E.2d at 1018. Therefore, “[t]he applicable standard of

review depends upon whether the question presented is one of fact, one of law, or a mixed question

2
of fact and law.” Id., quoting American Federation of State, County & Municipal Employees,

Council 31 v. Illinois State Labor Relations Board, 216 Ill. 2d 569, 577, 839 N.E.2d 479 (2005).

Pure questions of law such as resolving the meaning of a statute are not binding on a

reviewing court and “the court's review is independent and not deferential” to the administrative

agency. Id. “Mixed questions of fact and law “are ‘questions in which the historical facts are

admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the

statutory standard, or to put it another way, whether the rule of law as applied to the established

facts is or is not violated.’ ” Id., quoting American Federation of State, County & Municipal

Employees, 216 Ill.2d at 577, 298 Ill.Dec. 156, 839 N.E.2d 479. Significantly, “an examination of

the legal effect of a given state of facts involves a mixed question of fact and law with a standard

of review of ‘clearly erroneous’” and an “administrative agency's decision is deemed ‘clearly

erroneous’ when the reviewing court is left with the ‘definite and firm conviction that a mistake

has been committed.’ ” Id. Factual findings should be left undisturbed unless they are against the

manifest weight of the evidence. Bergman v. Vachata, 347 Ill.App.3d 339 (2004).

The issues involved in this petition for judicial review both involve a combined issue of

fact and law. Therefore, the applicable standard of review is the “clearly erroneous” standard. The

issue raised in the Electoral Board’s decision related to the denial of the Motion to Dismiss was

purely factual, so the “manifest weight of the evidence” standard of review applies to that narrow

issue.

III. ARGUMENT

A. THE ELECTORAL BOARD PROPERLY FOUND THAT THE REFERENDUM

QUESTION IS NOT PERMITTED BY LAW.

The primary issue this Honorable Court is being asked to address is whether the Electoral

Board was clearly erroneous in finding that the question proposed by the Petition should not be

3
permitted to go on the ballot because the action proposed by the referendum, which would permit

voters to compel the Evanston City Council to enact legislation proposed by the voters, was not

permitted by law. For the following reasons, the Electoral Board’s decision was correct and should

stand.

i. This Case does not Involve an Allegation that a Statute or Law is

Unconstitutional.

First, let’s dispel the notion that this case involves a “constitutional issue” and that, therefore,

the Electoral Board cannot consider it – an argument Petitioner’s counsel has already repeated

several times before this Honorable Court attempting to create a red herring. Merely repeating a

position numerous times does not make it become true. The Electoral Board agrees that it cannot

rule upon issues regarding whether provisions of the Election Code (or any other statute) are

unconstitutional. In fact, there are no such issues in this case. This is apparent on the face of the

pleadings – both by review of the Objector’s Petition and by review of the Electoral Board’s

decision. There is no discussion at all regarding the constitutionality of a statute. Further, if the

Petitioner actually believed that there was a true “constitutional” issue involved, she would have

been obligated under Illinois Supreme Court Rule l9 to follow the correct notice procedure and to

serve the Illinois Attorney General – and Petitioner has not done so.

Instead, this gravamen of this case involves the issue of whether the referendum that the

Petitioner sought to put on the ballot was a suitable question permitted by the Illinois constitution.

There is no law prohibiting an electoral board from considering a case just because the word

“constitution” comes up in proceedings before it. The case cited by the Petitioner, The Coalition

for Political Honesty, et al, v. the State Board of Elections, et al., 65 Ill.2d 453 (1976) does not

state, anywhere, that an electoral board, when determining the validity of a petition, cannot

consider arguments that the substance of the petition is not permitted by law, which was what the

4
Electoral Board did in the case sub judice. Instead, the Coalition case involved a voter petition

that proposed amendments to the Illinois constitution. The Illinois supreme court stated, “The

determination of whether a proposed amendment meets the Constitution’s requirement for

amendment is a question for the courts, not for an agency.” Id. at 463. The case at bar did not

involve an attempt to change the Illinois constitution. It involved a local referendum, purportedly

brought pursuant to authority conferred by the Illinois constitution.

Electoral boards are charged with the responsibility of examining the sufficiency of the

referenda petitions, and that includes whether there is a lawful basis for the proceed to the ballot.

See, e.g., Fortas v. Dixon, 122 Ill.App.3d 697 (1st Dist. 1984). For example, presume of the sake

of argument that the referendum posed the question, “Shall the City of Evanston secede from the

United States of America and form an independent nation and expand its boundaries for twenty

miles beyond its current boundaries? If this referendum passes, it is binding.” Even if the petitions

were otherwise legally sufficient, the voters cannot, by initiative and referendum, effectuate a

result that is not permitted by law simply by putting a question on a ballot and declaring it to be

binding. Therefore, there is no issue in this case that involves the constitutionality of a law or

statute. The Electoral Board stayed in its lane and was simply performing its function of

determining whether the referendum petition was valid, as discussed below.

ii. The Electoral Board Properly found that the Petition Question was not
Permitted by Law.

The Objectors argued that, while the Illinois constitution permits voters to place certain

questions on the ballot, it does not permit them to put the question proposed by the Petitioner on

the ballot, which established a process by which the residents of Evanston can compel the Evanston

City Council to pass legislation. While the Petitioner implies that the underpinnings of democracy

are at stake if the voters cannot put her question on the ballot, that argument is simply not true.

5
 There is no right to direct democracy. See Jones v. Markiewicz-Qualkinbush, 892 F. 3d 935, 2018

U.S. App. LEXIS 15986. Accordingly, Petitioner must follow the rules established by the Illinois

law to be entitled to ballot access. The Petitioner argues that the Illinois Election Code allows

voters to place binding referenda on the ballot; the Electoral Board agrees. However, the electors

can do so only when the question they are advancing is permitted by law. That is where the

Petitioner’s argument crumbled in this case.

a. Five of the sections cited in the Petition do not confer referendum

authority.

The Petition, on its face, specified that it was advanced “pursuant to Section 5 of Article I

and Sections 6(a), 6(f), 6(i) and 6(m) and 11 of Article VII of the Illinois Constitution and Article

28 of the Illinois Election Code.” (See R. 027). Therefore, the Petition purported to be brought

pursuant to 6 sections of the Illinois constitution and an article of the Illinois Election Code. The

Electoral Board examined the following five constitutional provisions and concluded that these

sections did not confer with Petitioner with the ability to advance the proposed question:

Law Cited in Petition Heading What the Cited Law states

Article I, Section V of the Illinois Constitution
Article VII, Section 6(a) of the Illinois Constitution
Article VII, Section 6(i) of the Illinois Constitution
“The people have the right to assemble in a peaceable
manner, to consult for the common good, to make
known their opinions to their representatives and to
apply for redress of grievances.” Ill. Const., Art. I, § 5.
“Except as limited by this Section, a home rule unit
may exercise any power and perform any function
pertaining to its government and affairs including, but
not limited to, the power to regulate for the protection
of the public health, safety, morals and welfare; to
license; to tax; and to incur debt.” Ill. Const., art. VII,
§ 6(a).
“Home rule units may exercise and perform
concurrently with the State any power or function of a
home rule unit to the extent that the General Assembly
by law does not specifically limit the concurrent
exercise or specifically declare the State's exercise to
be exclusive.” Ill. Const., art. VII, § 6(i).

6
Law Cited in Petition Heading What the Cited Law states

Article VII, Section 6(m) of the Illinois Constitution “Powers and functions of home rule units shall be
construed liberally.” Ill. Const., art. VII, § 6(m).
Article VII, Section 11 of the Illinois Constitution “SECTION 11. INITIATIVE AND REFERENDUM

(a) Proposals for actions which are authorized by this

Article or by law and which require approval by
referendum may be initiated and submitted to the
electors by resolution of the governing board of a unit
of local government or by petition of electors in the
manner provided by law.

(b) Referenda required by this Article shall be held at

general elections, except as otherwise provided by
law. Questions submitted to referendum shall be
adopted if approved by a majority of those voting on
the question unless a different requirement is specified
in this Article.” Ill. Const., art. VII, § 11.

The Electoral Board reviewed each of these sections specified above and concluded that

none of them conferred the Petitioner with the authority to advance the question proposed by the

Petition. The Electoral Board recognized that Article VII, Section 11 standing alone does not

authorize a public question and that such section of the Illinois constitution does not authorize the

Petitioner’s public question. (R. 476).

b. The Question Proposed to Adopt a New Manner of Adopting

Legislation, not to Adopt, Alter or Repeal a Form of Government or to
Provide for Municipal Officers, their Manner of Selection or Terms of
Office.

With these five sections having been ruled out, two sections cited in the Petitioner’s

heading remain – Article VII, Section 6(f) of the Illinois constitution (which addresses the

substance of what may be accomplished by referendum) and Article 28 of the Election Code

(which establishes the procedures by which a referendum can be advanced). The portion of Article

VII, Section 6(f) that applies to municipalities states:

7
 A home rule unit shall have the power subject to approval by referendum to adopt,
alter or repeal a form of government provided by law, except that the form of
government of Cook County shall be subject to the provisions of Section 3 of this
Article. A home rule municipality shall have the power to provide for its officers,
their manner of selection and terms of office only as approved by referendum or as
otherwise authorized by law. A home rule county shall have the power to provide
for its officers, their manner of selection and terms of office in the manner set forth
in Section 4 of this Article.

Ill. Const. Art VII, Section 6(f).

To determine whether the proposed question falls within this grant of authority contained

within Section 6(f), the Electoral Board look at the proposed question, which was this:

Shall the people of the City of Evanston provide for a voter petition and referendum
process for the consideration and passage of city ordinances as follows:

The people of Evanston provide that the offices of City Clerk, Mayor and aldermen
of the City Council have the power and duty to determine the necessary and proper
procedural rules regarding the passage of city ordinances and the express duty to
assist the people of Evanston in exercising their right to petition and make known
their opinions regarding the consideration and passage of city ordinances. At the
request of at least 25 Evanston electors, the City Clerk shall promptly cause a
proposal to be drafted into ordinance form, including an official summary of the
proposed ordinance. The official summary of the proposed ordinance may be
introduced by a petition filed with the City Clerk and signed by a number of electors
equal to at least eight percent of the total votes case in Evanston for candidates for
Governor in the preceding gubernatorial election. The procedure for filing the
petition and determining its validity and sufficiency shall be established by the City
Clerk, who shall make the determination of validity and sufficiency within 21 days
of a petition filing.

Upon the determination of a valid and sufficient petition, the City Clerk shall within
one business day submit the ordinance proposed by the official petition summary
on the agenda of the next City Council meeting for its consideration. The City
Council shall take a record roll call vote on the proposed ordinance within 70 days
of submission by the City Clerk. If the City Council does not pass the proposed
ordinance within the 70 day period, the official summary of the proposed ordinance
shall be submitted by the City Clerk to the electors for their approval by referendum
at the next regularly scheduled election held in all precincts of the city and held at
least 70 days after referendum submission by the City Clerk. If the official summary
is approved by a majority of those voting on the question, the proposed ordinance
shall have the force and effect of passage by the corporate authorities of the City of
Evanston unless it is disapproved by a resolution of the City Council not more than
30 days after the election?

8
(See R. 027.)

The question proposed by the Petitioner is convoluted, so it is challenging to determine

what it is attempting to do. It ostensibly attempts to come up with a procedure by which 25

Evanston voters who come up with an idea for a new law in Evanston can get it passed into law

by the City Council after following a lengthy and cumbersome process. The question states, in

part, “At the request of at least 25 Evanston electors, the City Clerk shall promptly cause a proposal

to be drafted into ordinance form, including an official summary of the proposed ordinance.” The

question does not explain whether this requires one collective request of 25 voters, or 25 separate

requests which may be file at different times throughout the years, how the requests are made,

whether the request can be verbal or written, whether there is a timeline for the requests, etc.

However, “at the request of 25 voters,” the city clerk must then have an ordinance and “an official

summary” of the ordinance prepared. The question does not specify what an “official summary”

is, how the city clerk is going to cause an ordinance or the official summary to be prepared, nor

does it provide the city clerk with any resources for doing so. Then, it states, “the official summary

of the proposed ordinance may be introduced by a petition filed with the City Clerk” (who prepared

the official summary – but now it comes back to the City Clerk again with a petition?) and “signed

by a number of electors equal to at least eight percent of the total votes case in Evanston for

candidates for Governor in the preceding gubernatorial election.” The City Clerk must make up

procedures for the filing of the petition and must also make up a procedure for determining whether

the petition is valid and sufficient. (“The procedure for filing the petition and determining its

validity and sufficiency shall be established by the City Clerk, who shall make the determination

of validity and sufficiency within 21 days of a petition filing.”)

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 After this, if the City Clerk determines the petition is valid and sufficient, the Clerk must

(apparently without regard to the City Council’s usual timeline for agenda preparation) submit the

ordinance on the agenda for the City Council “within one business day.” The City Council must

then vote on the proposed ordinance within 70 days of submission by the City Clerk. If the City

Council “does not pass the proposed ordinance within the 70 day period, the official summary of

the proposed ordinance shall be submitted by the City Clerk to the electors for their approval by

referendum at the next regularly scheduled election held in all precincts of the city and held at least

70 days after referendum submission by the City Clerk.” The question then concludes by stating

that if the “official summary” is approved at a referendum, the underlying ordinance (which

apparently does not go before the voters for approval) shall become law unless disapproved by the

City Council within 30 days after the election.

From a municipal governance standpoint, there are clearly many problems with how this

procedure would operate if it passed. For example, what if the City Council passes the ordinance

within 70 days, but then it is vetoed by the Mayor pursuant to his authority? Leaving aside these

problems and the wisdom of approving this referendum, the questions before the Electoral Board

were a) what is this referendum proposing to do? and b) is it permitted by law to be adopted by

referendum? Distilled to its simplest essence, it appears to establish a procedure by which voters

in Evanston can turn themselves into the City’s legislators, compelling the Council to pass certain

laws.

As noted above, the Illinois constitution allows referenda “to adopt, alter or repeal a form

of government provided by law,” and “to provide for its officers, their manner of selection and

terms of office.” Ill. Const. art VII, §6(f). The Electoral Board correctly held that the question did

not seek to “adopt, alter or repeal a form of government provided by law.” (R. 474). The Illinois

10
Supreme Court has interpreted this section to mean that home rule units can alter and change their

form of government, but it must be changed into another legally recognized form of government

in Illinois. See Flowers v. City of Moline, 251 Ill.App.3d 348, 352 (3rd Dist. 1993). For example,

if a village has a village president/trustee form of government and they want to change to a village

manager form of government, they can do that by referendum. However, the Petitioner was unable

to articulate to the Electoral Board how the proposed question sought to adopt, alter or repeal of

government provided by law, other than to keep referring to a previous Arlington Heights

referendum, which was never provided to the Electoral Board or introduced into the record, which

apparently had been first approved by the Arlington Heights Village Board (potentially making it

“provided by law”) and which never been subjected to a legal challenge regarding its validity.

Further, the cases cited by the Petitioner before the Electoral Board were unconvincing, because

those cases only addressed situations where municipalities were attempting to change the form of

government to another legally recognized form. The Electoral Board held, “The Proponent does

not cite any law that authorizes the novel local initiative procedure proposed in the public

question.” (R. 474).

Because the question did not satisfy the first applicable clause in Art. VII, Section 6(f), the

Electoral Board considered the Petitioner’s argument that the question provided “for its officers,

their manner of selection and terms of office” as authorized by another clause of Section 6(f). The

Electoral Board considered the cases cited by the Petitioner which upheld voter-initiated referenda

to adopt term limits, authorize nonpartisan elections, changed officials from elected to appointed.

However, each of the cases cited by Petitioner fall squarely within the constitutional language of

providing for municipal officers, their manner of selection and terms of office. Petitioner was

unable to cite any case in which electors in a municipality assigned any municipal officers new

11
functions or directed the legislative functions of the city council, which is in part what Petitioner’s

question proposes to do. In Petitioner’s Memorandum of Law, she refers to an Arlington Heights

resolution which is attached as an Exhibit to the Memorandum, but the resolution was never

tendered to the Electoral Board and is not a part of the record on review, so it should not be

considered by the Court. It is true that the proposed question refers to the City Clerk and attempts

to assign the City Clerk more duties, and that it does require certain actions of the City Council,

but just mentioning an “officer” in the language of the referendum does not satisfy the

constitutional criteria. Accordingly, the Electoral Board correctly found that Section 6(f) did not

permit the question.

iii. Section 28-7 of the Election Code does not Authorize the Petitioner’s
Question

The final provision that the Petition cites that it is being brought pursuant to is Article 28

of the of the Illinois Election Code. While the Petition does not cite any specific section of Article

28 pursuant to which it was advance, the Petitioner argued that Section 28-7 authorized the voters

to bring forth their specific question. Section 28-7 merely states, “This Section is intended to

provide a method of submission to referendum in all cases of proposals for actions which are

authorized by Article VII of the Constitution by or subject to approval by referendum . . . .” 10

ILCS 5/28-7. However, for the reasons stated above, Article VII does not authorize this particular

question. Accordingly, the Section 28-7 of the Election Code does not give the voters the right to

advance this question.

The Electoral Board held, “None of the statutes or constitutional provisions cited in the

heading of the Proponent’s referendum petition sheets authorize the Proponent’s proposed

question of public policy.” (R. 472). Based upon the fact that the Petition did not possess lawful

12
authority to advance the referendum, the Electoral Board’s decision was not clearly erroneous and

should be upheld.

B. The Electoral Board properly found that the Proposed Question was Confusing

The second objection raised by the Objectors’ Petition was that the referendum question

was confusing. The Electoral Board considered arguments of the parties regarding different

elements of confusion. First, the Electoral Board looked at the language of the question and found:

As noted in paragraph two of the Objectors’ petition, the proposed voter initiative
procedure in the Proponent’s public question “will confuse voters, with perplexing
terminology involving various actors in a ‘proposal in ordinance form’, ‘official
summary of the proposed ordinance’, ‘official petition summary,’ ‘proposed
ordinance,’ and ‘official summary,’ which are then variously submitted, drafted,
considered, approved, or disapproved.” In this case, there is a real possibility that
the voters would not understand what they are voting for or against because “there
is nothing the voters can consult” to explain the public question’s various undefined
terms. Lipinski v. Chicago Bd. of Elec. Comm'rs, 114 Ill. 2d 95, 105 (1986);
compare with Hoogasian v. Regional Transportation, 58 Ill. 2d 117, 126 (1974)
(little possibility of confusion because voters could refer to the state statute
authorizing public question).

(R. 480).

The Electoral Board also found that a part of the confusion was that the question

was not self-executing. (R. 481). Among the problems noted by the Electoral Board were:

The public question does not explain where a petition-initiated ordinance is

“introduced” and offers no standards for the City Clerk to establish the “procedure
for filing the petition and determining its validity and sufficiency . . .” It remains
unclear whether an ordinance that is passed by the City Council, but is vetoed by
the Mayor, affects whether the City Council “does not pass” a petition-initiated
ordinance within the allowed time. 65 ILCS 5/3.1-40-45, 3.1-40-50.

The public question also does not explain how passage of an ordinance by a
majority of the voters at a referendum could “have the force and effect of passage
by the corporate authorities” in instances when the Municipal Code requires super-
majority approval or approval by a vote of aldermen then holding office. See, e.g.,
65 ILCS 5/11-15.1-3 (annexation agreement approval by vote of two-thirds of
corporate authorities then holding office); 65 ILCS 5/11-91-1 (street vacation by at
least three-fourths vote of aldermen then holding office).

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 (R. 481).

In the third part of its analysis regarding whether the question was confusing, the Electoral

Board found that the petition heading referred only to Article 28 of the Election Code, which

contains both references to advisory referenda (Section 28-6) and binding referenda (28-7).

Considering this, the Electoral Board found, “Paragraph two of the Objectors’ petition should be

sustained because it is unclear whether the proposed public question is advisory or binding.” (R.

480).

The Electoral Board’s finding that the question was confusing was not clearly erroneous.

Therefore, the Electoral Board’s decision should be upheld.

C. The Electoral Board Properly Denied the Motion to Dismiss the Objectors’ Petition

Petitioner also contends that she should be able to advance her question to the ballot

because the Objectors’ Petition allegedly did not sufficiently specify the Objectors’ interest in

objecting to the petition. Section 10-8 of the Election Code requires states, in part, that, “The

objector's petition shall state the interest of the objector...”. 10 ILCS 5/10-8. Compliance with

certain provisions of Section 10-8 of the Election Code, including this requirement, is not

mandatory on objectors because “section 10-8 does not include a penalty provision for the

objector’s noncompliance…” Wollan v. Jacoby, 274 Ill.App.3d 388 at 392 (1995). An objector

“need not prove his interest, which is irrelevant for purposes of determining the validity of

nominating petitions.” See Hagen v. Stone, 277 Ill.App.3d 388 (1995). The Chicago Board of

Election Commissioners has held that, “Even though an objector’s interest was set forth in an

incomplete sentence, the meaning can be inferred from the objector’s petition as a whole.” Fulton

v. Sanders, 91-EB-ALD-111 (Chicago Electoral Board 1991).

14
 The issue of whether the Objectors’ Petition stated the Objectors’ interests is a factual issue.

Factual findings of an electoral board are prima facie true and correct. King v. Justice Party, 284

Ill.App.3d 886, 888 (1996). The function of a court on judicial review is to ascertain whether

factual findings are against the manifest weight of the evidence. Id. A decision is against the

manifest weight of the evidence only if the opposite conclusion is clearly evident. Id. The fact

that an opposite conclusion is reasonable or that the reviewing court might have ruled differently

based upon the same evidence will not justify a reversal of the findings of an administrative

agency. Id. Where the findings of the agency are supported by competent evidence in the record,

its decision should be affirmed. Id.

The Objectors’ Petition stated that the objectors were “Evanston residents” and “registered

voters” and that they were objecting “because 1) it presents a binding referendum question in

violation of State law, and 2) the question presented in the Petition (the Referendum Question)

will confuse the voters.” (R. 433). From this statement, found in the first paragraph of the

Objectors’ Petition, it is easy to infer that the Objectors’ interest in objecting was that they were

Evanston residents and registered voters who were interested in making sure that only binding

referenda submitted in accordance with State law and that questions posed to voters would not be

confusing. This is very similar to the traditional language that is used in form objections where

objectors allege their interests “are to see that election laws are upheld….” See, e.g. Wollan v.

Jacoby, 274 Ill. App. 3d 388, 392 (1st Dist. 1995). The Electoral Board held:

Even though the word “interest” does not appear in the Objector’s petition, the
interest can be inferred from the filing as a whole, unlike in Pochie v. Cook Co.
Officers Elec. Board, 289 Ill. App. 3d 585, 586 (1st Dist. 1997), where the residence
address could not be inferred from face of petition. The Objectors’ stated interest is
particularly sufficient in light of Rule 9 of the Board’s Rules. Ex. 1, R.9 (“The
objector does not need to prove that the objector is a registered voter within the City
of Evanston. The original petitioner may raise the lack of the objector’s standing or
eligibility as an affirmative defense in his/her own case-in-chief. The objector’s

15
 motivation or personal knowledge of the factual basis for the objections is not
relevant to the Board and shall not be considered.”)

Because this ruling of the Electoral Board was a factual finding, and it was supported by

competent evidence in the record, the Electoral Board’s decision was not against the manifest

weight of the evidence, and its decision to deny the Petitioner’s Motion to Dismiss should not be

overturned.

WHEREFORE, the Respondents, Evanston Municipal Officers Electoral Board, and its

members Steve Hagerty, Devon Reid, Ann Rainey, in their official capacities, respectfully request

that the Electoral Board’s decision be upheld.

Respectfully submitted,
Keri-Lyn J. Krafthefer
Daniel J. Bolin Evanston Municipal Officers Electoral
ANCEL GLINK, P.C. Board, and its members Steve Hagerty,
140 South Dearborn Street, 6th Floor Devon Reid, Ann Rainey, in their official
Chicago, Illinois 60603 capacities
kkrafthefer@ancelglink.com
dbolin@ancelglink.com
T. (312) 604-9126
F. (312) 782-0943
Atty No. 42783 By:

16
 IN THE CIRCUIT COURT OF COOK COUNTY
COUNTY DEPARTMENT, COUNTY DIVISION

ALLISON HARNED, )
)
Petitioner-Plaintiff, )
)
v. ) Case No. 20 COEL 000005
)
EVANSTON MUNICIPAL OFFICERS ) Hon. Maureen Ward Kirby
ELECTORAL BOARD, and its members )
STEVE HAGERTY, DEVON REID, )
ANNE RAINEY, in their official )
capacities, and objectors JANE GROVER, )
KENT SWANSON, and BETTY )
HAYFORD, )
)
Respondents-Defendants. )

OBJECTORS’ RESPONSE BRIEF IN ADMINISTRATIVE REVIEW

Respondents-Defendants, Jane Grover, Kent Swanson, and Betty Hayford, the objectors to

the Petitioner-Plaintiff’s proposed referendum (collectively, “Objectors”), for their response to

Plaintiff’s Petition for Judicial Review and First Amended Complaint for Mandamus, and

Memorandum in Support of Petition for Judicial Review, state as follows:

I. INTRODUCTION.

This matter concerns the attempt by Petitioner-Plaintiff, Allison Harned (“Petitioner”), to

submit a binding referendum to the voters of the City of Evanston at the primary election on March

17, 2020. The proposed referendum purports to establish a scheme for the initiation, proposal, and

passage by Evanston voters of future City ordinances and laws. After Petitioner submitted her

proposed referendum to the City Clerk, the Objectors timely filed an objection to the referendum

with the City Clerk, in accordance with the Election Code. The City’s Municipal Officers Electoral

Board (“Electoral Board”) was duly convened in accordance with the Election Code, and after
hearing, the Electoral Board sustained the objection and ruled the proposed referendum to be

invalid. Petitioner now seeks to overturn the Electoral Board’s ruling.

As explained below, the proposed referendum is unconstitutional because it is vague and

ambiguous, and because neither the State Constitution nor state law permits a question like that

presented by the Petitioner to be a binding referendum. Petitioner’s claims to the contrary are

without merit, and her attack on the form of the Objectors’ objection is inaccurate. This Court

should deny the Petitioner’s Petition for Judicial Review and Complaint, and uphold the decision

and ruling of the Electoral Board.

II. STATEMENT OF FACTS AND SUMMARY OF PROPOSED REFERENDUM.

A. Statement of Facts.

The facts pertinent to this matter are not in dispute. On or about December 16, 2019,

Petitioner filed her proposed referendum in the office of the Evanston City Clerk. R478; Pet. Brief,

at 2. One week later, the Objectors filed their written objection to the proposed referendum, on

two grounds: first, that Illinois law does not permit a binding referendum on local questions of

public policy; and second, that the proposed referendum was impermissibly confusing

(“Objection”). R433-435. The City then convened its Electoral Board as required by the Illinois

Election Code. Pet. Brief, at 3. The Electoral Board first met on January 9, 2020, to consider the

proposed referendum and the Objection. R461, at ¶4. At that first meeting, Petitioner presented

her Motion to Dismiss the Objection, arguing that the Objection did not comply with the

requirements of Section 10-8 of the Election Code. R462, at ¶ 6. The Electoral Board continued

its proceedings to January 15, 2020, on which date it heard arguments on the Motion to Dismiss

and on the objection. Pet. Brief, at 3. Following those arguments, the Electoral Board: (1) denied

the Motion to Dismiss; and (2) sustained the Objection on both grounds advanced by the Objectors.

R461-R482. This lawsuit followed.

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B. Summary of Proposed Referendum.

To properly adjudicate the constitutionality of Petitioner’s proposed 383-word referendum,

it is important and helpful to attempt to summarize its several requirements. First, the text of the

proposed referendum is as follows:

“Shall the people of the City of Evanston provide for a voter petition and
referendum process for the consideration and passage of city ordinances as
follows:

The people of Evanston provide that the offices of City Clerk, Mayor and aldermen
of the City Council have the power and duty to determine the necessary and proper
procedural rules regarding the passage of city ordinances and the express duty to
assist the people of Evanston in exercising their right to petition and make known
their opinions regarding the consideration and passage of city ordinances. At the
request of at least 25 Evanston electors, the City Clerk shall promptly cause a
proposal to be drafted into ordinance form, including an official summary of the
proposed ordinance. The official summary of the proposed ordinance may be
introduced by a petition filed with the City Clerk and signed by a number of electors
equal to at least eight percent of the total votes cast in Evanston for candidates for
Governor in the preceding gubernatorial election. The procedure for filing the
petition and determining its validity and sufficiency shall be established by the City
Clerk, who shall make the determination of validity and sufficiency within 21 days
of a petition filing.

Upon the determination of a valid and sufficient petition, the City Clerk shall within
one business day submit the ordinance proposed by the official petition summary
on the agenda of the next City Council meeting for its consideration. The City
Council shall take a record roll call vote on the proposed ordinance within 70 days
of submission by the City Clerk. If the City Council does not pass the proposed
ordinance within the 70 day period, the official summary of the proposed ordinance
shall be submitted by the City Clerk to the electors for their approval by referendum
at the next regularly scheduled election held in all precincts of the city and held at
least 70 days after referendum submission by the City Clerk. If the official summary
is approved by a majority of those voting on the question, the proposed ordinance
shall have the force and effect of passage by the corporate authorities of the City of
Evanston unless it is disapproved by a resolution of the City Council not more than
30 days after the election?”

This scheme, if approved by referendum, contemplates 10 independent steps:

1. At least 25 electors in Evanston file a “request” with the City Clerk concerning a
proposal (presumably, a proposal for a new ordinance, though the referendum
language does not specify).

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 2. The Clerk then drafts the proposal into the form of an ordinance (the “Proposed
Ordinance”), along with a summary of that Proposed Ordinance (the “Official
Summary”).

3. Evanston electors then file a petition with the Clerk, introducing the Official
Summary (but not the Proposed Ordinance).

4. The Clerk determines if the petition is valid and sufficient, in accordance with
procedures established by the Clerk.

5. If the petition is valid and sufficient, then within one business day, the Clerk must
submit the Proposed Ordinance (but not the Official Summary) to the City Council.

6. The City Council must consider the Proposed Ordinance at its next City Council
meeting.

7. Within 70 days of submission by the Clerk of the Proposed Ordinance, the City
Council must take a roll call vote on the Proposed Ordinance.

8. If the City Council does not pass the Proposed Ordinance within that 70-day period,
then the Clerk submits the Official Summary (but not the Proposed Ordinance) for
a referendum of Evanston electors at the next regularly-scheduled election that
occurs at least 70 days after submittal.

9. If the electors approve that referendum on the Official Summary, then the Proposed
Ordinance (but not the Official Summary thereof) becomes effective.

10. Notwithstanding the referendum approval, the Proposed Ordinance can be nullified
if it is “disapproved” by the City Council within 30 days after the election, by
resolution.

III. STANDARD OF REVIEW.

Electoral board decisions are subject to administrative review by the Circuit Court. See

Jackson v. Bd. of Election Com'rs of City of Chicago, 2012 IL 111928, at ¶46; Cinkus v. Village

of Stickney, 228 Ill. 2d 200, 209-210 (2008). On administrative review, “the findings and

conclusions of the administrative agency on questions of fact shall be held to be prima facie true

and correct.” 735 ILCS 5/3-110. This court’s review of a question of law is de novo. Cinkus, 228

Ill. 2d at 210-211 (2008). Mixed questions of law and fact are reviewed according to the “clearly

erroneous” standard. Id. at 211-212. Under that standard, the reviewing court is not to disrupt the

agency’s decision unless it has a “definite and firm conviction that a mistake has been committed.”

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Id. at 211 (internal citation omitted). The Electoral Board’s findings of fact are to be upheld unless

against the manifest weight of the evidence. Bergman v. Vachata, 347 Ill. App. 3d 339, 348 (1st

Dist. 2004).

Under each of these standards, Plaintiffs bear the burden of proof. Shachter v. City of

Chicago, 2011 IL App (1st) 103582, ¶ 34 (quoting Marconi v. Chicago Heights Police Pension

Bd., 225 Ill. 2d 497, 532-33 (2006)).

IV. ARGUMENT.

A. The Proposed Referendum is Unconstitutionally Vague and Ambiguous.

In two opinions in 1986, the Illinois Supreme Court established standards for determining

the constitutionality of Section 6(f) referenda. First, in Leck v. Michaelson, the Supreme Court

reviewed a voter-approved referendum in the Village of Lansing concerning runoff elections for

the office of Village trustee. 111 Ill. 2d 523 (1986). The Supreme Court invalidated the

referendum, finding that it was “vague and ambiguous”. Id. at 530. Specifically, the Court found

that the referendum did not clarify when the runoff would be triggered, or how it would be

conducted. Id. at 529, 530. The Court then declared that “[b]ecause the referendum could not stand

on its own terms, however, the voters of Lansing cannot be said to have approved a coherent

scheme for altering the election of their officials, which is what section 6(f) requires.” Id. at 530.

The Court therefore held that the referendum “was fatally defective under article VII, section 6(f),

of the 1970 Illinois Constitution because of its vagueness and ambiguity.” Id. at 531.

Seven months later, the Supreme Court issued its Lipinski v. Chicago Bd. of Election

Commissioners opinion, concerning a referendum for nonpartisan elections in the City of Chicago.

114 Ill. 2d 95 (1986). Relying on Leck, the Supreme Court ruled the referendum to be

unconstitutional, because it did not include enough specifics about how it was to be implemented.

The Court determined that, as in Leck, the referendum at issue “required additional provisions not

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clearly contemplated by the terms of the referendum proposition.” Id. at 100 (internal citations

omitted). It also found that the referendum “would have to be interpreted, supplemented, and

modified in order to be implemented.” Thus, as in Leck, the referendum was unconstitutional

because it was not self-executing, and, accordingly, “too vague and ambiguous.” Id. at 104-105.

The lessons of Leck and Lipinski are clear: a referendum proposed under Section 6(f) must

be self-executing; that is, “if the referendum submitted to voters is not self-executing – leaving

gaps to be filled by either the legislature or municipal body” – then it is unconstitutional. Lipinski,

114 Ill. 2d at 99-100. In this case, there are at least 10 components of the proposed referendum

that are incoherent, full of gaps, or require an illegal act, as follows:

1. “Validity and Sufficiency” of the Petition.

The referendum requires that upon request of 25 electors of the City, the City Clerk is to

draft the Proposed Ordinance and the Official Summary. That Official Summary can then become

the subject of a petition to be filed with the Clerk by “a number of electors equal to at least eight

percent” of the votes cast in the City in the last gubernatorial election. The Clerk is then to “make

a determination of validity and sufficiency” concerning that petition. But what makes a petition

“valid” or “sufficient”? The proposed referendum provides no guidance. It does contemplate that

the Clerk will “establish” a “procedure” for making this determination, but there is no context

provided for how the procedure is to be established.

2. Content of the Proposed Ordinance and Official Summary.

The referendum requires the Clerk to draft the Proposed Ordinance and Official Summary

in response to a 25-elector request. But who determines whether the drafts are properly reflective

of the request? Must the drafts strictly conform to the content of the request, or is “substantial

compliance” (whatever that may mean in each case) acceptable? Can the Clerk add provisions to

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the drafts that he or she believes to be consistent with the request, and if so, to what end? Or is the

Clerk bound to follow only the four corners of the request, no matter how sparse it may be? And

what if the requesters do not agree with the drafts produced by the Clerk – what is their remedy?

Must all of the requesters concur with the drafts in order for the referendum’s scheme to be allowed

to proceed? If not, how many must concur, and who makes that determination?

3. The Proposed Ordinance vs. the Official Summary.

The referendum states that it is the Official Summary that “may be introduced by a petition

filed with the City Clerk” – but not the Proposed Ordinance. And yet it is the Proposed Ordinance

that must be reviewed and voted upon by the City Council. What if the Proposed Ordinance is not

100% consistent with the Official Summary? Can the City Council take action on the Proposed

Ordinance in that instance? How will anyone know if the electors who sign the Petition actually

support the Proposed Ordinance; what if they only support the Official Summary?

A similar gap exists with respect to the ultimate referendum to be held if the Council does

not approve the Proposed Ordinance. The proposed referendum states that the future referendum

will concern “the official summary of the proposed ordinance” – not the Proposed Ordinance itself.

Again, if there is anything less than absolute conformance between the Proposed Ordinance and

the Official Summary, what happens? Who decides how much conformance is required, and

whether a particular Proposed Ordinance meets that to-be-determined test?

4. Pre-Adoption Amendments by the City Council.

Suppose that the Proposed Ordinance and Official Summary are acceptable to whoever

gets to accept them, and that enough electors sign the Petition to require presentment of the

Proposed Ordinance to the City Council. What if the City Council desires to amend the Proposed

Ordinance before adoption? Can it do that? What are the bounds of such hypothetical

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amendments? Do the petitioners have to concur with the pre-adoption amendments, and if so, how

many? And how would the City tally that vote? Do the initial requesters have any say, and if so,

how would that process work?

And if the City Council adopted a Proposed Ordinance that is not quite what the Clerk

drafted, or what was in the Official Summary: how much of an amendment is too much? That is,

how does the Clerk determine whether the Proposed Ordinance was actually “adopted”, or if he or

she is then bound to submit the Official Summary to a referendum itself?

5. Ballot Access.

If the City Council does not adopt the Proposed Ordinance, then “the proposed ordinance

shall be submitted by the City Clerk to the electors for their approval by referendum at the next

regularly scheduled election.” But what authority does the Clerk have to submit any kind of

referendum? Section 28-7 of the Election Code allows the initiation of a referendum under Article

VII of the State Constitution only by either a resolution of the local government’s governing body,

or by “petition signed by a number of qualified electors equal to or greater than at least 8% of the

total votes cast for candidates for Governor in the preceding gubernatorial election.” 10 ILCS 5/28-

7. There is no provision of the Constitution or statute that allows the Clerk to initiate a binding

referendum under Article VII. And there is no provision of the Constitution or statute that allows

for a binding referendum to have the effect of amending the Constitution or Election Code to

authorize such a referendum initiation process.

Petitioner will likely argue that the Clerk can submit the referendum because the petition

initiating the Proposed Ordinance will have been executed by the same 8% of electors. That is a

bait-and-switch argument: the petition contemplated by the proposed referendum is not for a ballot

referendum; it is for an ordinance to be approved by the City Council. There will be no petition

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filed with the Clerk for a ballot referendum. And, therefore, the Clerk will have no authority under

Illinois law to submit the previously-submitted ordinance petition to a popular vote. To convert

that petition into a form that properly initiates a referendum will require further action by either

the City Council or the electorate – an action not provided in the proposed referendum.

6. The Disapproval Resolution.

According to the proposed referendum, if a referendum on a Proposed Ordinance is

approved by the voters of Evanston, the City Council may still defeat it by, in essence, repealing

it through passage of a resolution within 30 days after the referendum election. But this violates

the doctrine of like dignity for legislative enactments. An ordinance can only be repealed by

another ordinance, and cannot be repealed by a resolution. Naperville Police Union, Local 2233

et al. v. City of Naperville, 97 Ill. App. 3d 153, 156 (2nd Dist. 1981). The proposed referendum’s

scheme includes a step that is not allowed under Illinois law. Can the City Council instead

disapprove an approved referendum by ordinance? Can it establish some alternate procedure to fill

the gap left by the illegality inherent in the proposed referendum? Or will it be stuck with a

referendum-approved Proposed Ordinance, despite the clear intent of the Petitioner to provide

otherwise?

7. Special Statutory Requirements.

Certain types of municipal legislative action require a supermajority vote. See, e.g., 65

ILCS 5/8-2-9.10 (abandonment of the budget officer system requires a 2/3 vote); 65 ILCS 5/8-9-

1 (approval of a bid without advertising requires 2/3 vote); 65 ILCS 5/11-76.2-3 (exchange of real

estate requires a 3/4 vote); 65 ILCS 5/11-91-1 (vacation of right-of-way requires 3/4 vote). If the

Proposed Ordinance relates to a subject that would otherwise require a supermajority vote under

Illinois law, must the City Council’s vote match the statutory requirement, or does the proposed

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referendum somehow contemplate a simple majority vote in all instances? If the Council vote is

in excess of a simple majority but does not reach the supermajority plateau, does that trigger the

referendum requirement? And if the Proposed Ordinance makes it to a referendum, is the electoral

tally subject to the normal supermajority requirement, or a simple majority?

Or what if the Proposed Ordinance concerns a matter that normally requires notice and

hearing, like an amendment to the City’s zoning map (see 65 ILCS 5/11-13-14) or enactment of a

tax-increment-financing district (see 65 ILCS 5/11-74.4-5)? How would the City process the

Proposed Ordinance, within the timeline stated, while also complying with the required statutory

procedures? Or does Petitioner propose that those procedures would not apply?

8. Unconstitutional or Illegal Questions.

What if the Proposed Ordinance is of a substance that is inherently unconstitutional or

otherwise prohibited by law? Can the City Council refuse to take action on that basis? For that

matter, can the Clerk flatly reject a 25-elector request that is unconstitutional or illegal? Or can the

Clerk modify the request however the Clerk deems appropriate to make it permissible? Or will the

City be stuck with a patently-illegal Proposed Ordinance on the books because it somehow gets

all the way through a referendum?

9. Post-Approval Amendments to the Proposed Ordinance.

Suppose that the voters in Evanston approve a referendum concerning a particular

Proposed Ordinance. And suppose that the City Council does not pass a disapproval resolution

within the 30-day period. But then, sometime in the future, the City Council desires to amend the

Proposed Ordinance. Can it do that? What type of amendments are permitted? Must the City

Council wait some designated amount of time before it can amend a referendum-approved

Proposed Ordinance? Who determines what type of amendments are going to be allowed, and

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when they can be enacted? Or must any amendments to a referendum-approved Proposed

Ordinance also be approved by future referendum? And how would that process work?

10. Repeal of Proposed Ordinance.

Take the prior example one step further: what if the City Council desires to entirely repeal

a Proposed Ordinance approved by referendum? Suppose, some years into the future, the Proposed

Ordinance has become obsolete in the wake of technological developments and societal change.

Is the City nevertheless stuck with the Proposed Ordinance? Or is there some length of time that

can pass, after which repeal is allowed? Or must repeal be approved by referendum – and how

would that work?

Neither the Petitioner, nor the proposed referendum, has any cogent answer for any of these

questions. There are, then, several gaps in the scheme directed by the referendum that must be

filled by a municipal officer, and it is not self-executing – assuming all of these questions can be

resolved (some of them cannot), that resolution can only come through further action by the City

or its officials. Under the Supreme Court’s clear guidance in Leck and Lipinski, that renders the

referendum unconstitutional. See Lipinski, 114 Ill. 2d at 99-100.

B. The Evanston Voter Initiative is Not Authorized Under Either Section 6(f) or
Section 11 of the Illinois Constitution.

Article VII of the Illinois Constitution provides a home rule municipality the power to

adopt, alter, or repeal a form of government provided for by law, subject to approval by

referendum. Ill. Const. 1970, art. VII, sec. 6(f). Illinois law provides a closed-set list of forms of

government that a municipality may adopt, and thereafter alter. As provided by Articles 3.1

through 6 of the Illinois Municipal Code, these forms of government are: (i) Aldermanic or Trustee

(Article 3.1); (ii) Commission (Article 4); (iii) Managerial (Article 5); or (iv) Strong Mayor

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(Article 6). See 65 ILCS 5/3.1-5-5 et seq. But while the municipality and its electors can choose

from among the forms provided by statute, the power to create forms of government is the

exclusive prerogative of the General Assembly. See Flowers v. City of Moline, 251 Ill. App. 3d

348, 351 (1993); 7 Record of Proceedings, Sixth Illinois Constitutional Convention, p. 1667. There

is no basis in law for a municipality itself to create its own form of government. Moreover, leaving

questions of public policy to the people at large is an arbitrary use of governmental power, the

delegation of which violates State and Federal guarantees of due process of law. See City of

Eastlake v. Forest City Enterprises, Inc., 426 U.S. 668, 673 (1976)(Stevens, J., dissenting).

Accordingly, even if the proposed referendum was not unconstitutionally vague and ambiguous,

the Electoral Board’s decision should be upheld because the referendum is substantively

unconstitutional.

1. Petitioner Improperly Seeks to Create a New Form of Municipal Government.

Municipal corporations are not sovereign states created in “laboratories of democracy”.

Pet. Brief, at 18. Rather, municipal corporations are mere political subdivisions of the state, as that

phrase is used in Article I of the Illinois Constitution. See Ill. Const. 1970, art. I. The State of

Illinois has provided a distinct set of alternative forms of government to be selected by a municipal

corporation. The goal of greater flexibility, as noted by the 1970 Constitutional Convention’s Local

Government Committee and cited by Petitioner, is attained not by allowing voters to create a form

of government from their own imagination, but rather by the ability to alter those forms provided

by the Municipal Code to suit the unique needs and challenges of that municipality. As the

Appellate Court has noted, voters have “the right to be governed in a manner provided by statute

and altered only according to law…”. Flowers v. City of Moline, 251 Ill. App. 3d 348, 351 (3rd

Dist. 1993). Moreover, the creation of municipalities remains the prerogative of the state

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legislature, unfettered by any consideration of home rule authority or otherwise. See Town of

Godfrey v. City of Alton, 33 Ill. App. 3d 978, 983 (1975).

The commentary from the 1970 Constitutional Convention reveals a clear intent that a

home rule unit may not “create” its own form of government; rather, it may only “…adopt, alter,

and repeal alternative forms of government provided by general law.” 7 Record of Proceedings,

Sixth Illinois Constitutional Convention, p. 1579. The use of the phrase “forms of government”

contemplates that various plans for the election of municipal governing boards and for the

relationship of legislative and executive branches of government within municipalities will be

provided by the General Assembly for selection by various municipalities through referendum. 7

Record of Proceedings, Sixth Illinois Constitutional Convention, p. 1667 (emphasis added).

Although Section 6(f) grants robust power for a home rule unit to decide matters of local concern,

the grant of home rule power does not abrogate the State’s exclusive power to decide how local

governments are formed.

Each case cited by Petitioner relates to alterations in government, a distinct power within

Section 6(f) which is not contested in the present matter. That power, in the simplest sense, is to

take a form provided by the General Assembly and tweak it to suit the needs of a particular

municipality. As Petitioner correctly notes, there is no question that changing to a nonpartisan

election is an alteration in government. See Boytor v. City of Aurora, 81 Ill. 2d 308 (1980). Nor is

changing to an appointed clerk or changing the number of elected trustees. See Clarke v. Arlington

Heights, 57 Ill. 2d 50, 62 (1974). Petitioner, however, does not seek to merely adopt partisan

elections or change from an appointed to elected clerk. Petitioner seeks to create an entirely new,

novel manner for adopting local laws - a role which, according to all established precedent, and

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the commentary to the 1970 Constitutional Convention, is the exclusive prerogative of the General

Assembly.

The notable differences in the forms of government provided by the Municipal Code are

in the varying powers of the legislative and executive arms of the municipal corporation, which

implicates referendum when such powers are shifted between legislative and executive functions.

See Pechous v. Slawko, 64 Ill. 2d 576, 582 (1976). But no matter the form of government, the

Municipal Code provides that the “corporate authorities of each municipality may pass all

ordinances and make all rules and regulations proper and necessary, to carry into effect the powers

granted to municipalities…” 65 ILCS 5/1-2-1. In Evanston, the province of legislation is

exclusively that of the City Council, and nobody else. Further, delegation of legislative power is

forbidden, as necessarily involving a discretion as to what the law shall be. People ex rel.

Adamowski v. Chicago Land Clearance Commission, 14 Ill. 2d 74, 80 (1958); City of Chicago v

Stratton, 162 Ill. 494, 505 (1896).

In the present case, the referendum question creates a new form of legislative body that is

empowered to develop and pass legislation through petitions and referendum, leaving the City

Council only the power to veto the outcome of that referendum. Granting the public at-large the

power and authority to initiate, propose, and pass ordinances is not an “alteration” of a form of

government provided by law; it is a fundamental creation of a brand-new form of government, and

no matter how well intentioned, the proposed system is practically and legally unworkable under

the Illinois constitution. There is no form of government provided by Illinois law that is remotely

like the structure proposed by the referendum. The characteristics of Petitioner’s proposed scheme

are so fundamentally different than the forms of government provided by the General Assembly

that the referendum is inherently impermissible under Section 6(f) of the Illinois Constitution.

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 2. The Subsequent Referenda Contemplated by Petitioner’s Proposal Would Be
Inherently Unconstitutional.

Petitioner’s referendum is in fact a petition for two separate sets of referenda. The first is

the binding referendum that is under immediate consideration (i.e. creation of a new form of

government). The second and subsequent referenda are those that will come later, upon a refusal

of the City Council to act on any legislative proposal petitioned by 25 electors. To allow legislative

action to be carried out by subsequent, binding referenda is not permitted by either the Illinois

Constitution or the Election Code. Accordingly, the question posed is inherently unconstitutional

and in improper form.

Despite the revered quality Petitioner assigns to referenda, voters have no inherent or

constitutional right to require the governing body of the municipality to submit any legislation to

a referendum. See Boytor v. City of Aurora, 81 Ill. 2d 308 (1980); City of Mt. Olive v. Braje, 366

Ill. 132 (1937). To do so usurps the authority of the General Assembly to “provide by law” for the

creation of municipalities, as expressly stated in Article VII of the Constitution.

There is nothing at present that precludes Petitioner from introducing a proposed ordinance

to the City Council. Her right to petition the City is protected pursuant to Article I of the Illinois

Constitution and the First and Fourteenth Amendments to the Constitution of the United States.

However, Petitioner does not seek to petition her government; she is looking to bind her

government to adopt a particular piece of legislation. Questions of public policy that have a binding

legal effect shall be submitted to referendum only as authorized by statute or by the Illinois

Constitution. 10 ILCS 5/28-1. The proposed referendum question conceives a scheme whereby all

subsequent matters of public policy which the corporate authorities of the City refuse to consider

will be presented as referenda with binding legal effect on the City. Neither the Constitution nor

statute allow for such binding referenda.

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 To illustrate: under Petitioner’s inventive form of government, if 25 electors desire to adopt

a budget for the City, and the City refuses to consider their budget, the successful passage of that

budget by referendum will bind the City to its adoption unless some illusory veto power is

exercised. Neither the Constitution nor statute provides for a referendum question on the subject

of passage of a budget. Yet, under Petitioner’s proposal, this is the precise situation that results.

The exact same dilemma exists with a myriad of other corporate functions of the city: passing a

tax levy, approval of a zoning amendment, revision of fines for City Code violations, approval of

a particular public works contract, and so on. It would be absolutely implausible, and entirely

unconstitutional, to submit any of these questions to a binding referendum without some provision

for such referenda in law. There is no power provided in Illinois law to adopt corporate affairs of

the City by binding referendum. Thus, there is no set of circumstances under which the present

referendum question could actually be implemented in a constitutional manner. Accordingly, this

court should uphold the Electoral Board’s ruling because, in substance, the proposed referendum

is unconstitutional.

3. The Electoral Board is Empowered to Review the Constitutionality of the Proposal.

The fundamental role of the Electoral Board under the Election Code is to ensure that the

petition under consideration is in the proper form. See 10 ILCS 5/10-10. A plain reading of Section

10-10 illustrates that a petition cannot be in proper form if its wording calls for an unconstitutional

result. Petitioner argues, however, that the power of the Electoral Board is limited to ensuring

compliance with procedural requirements. There is no such limitation in the Election Code. To

support their misinterpretation of Section 10-10, Petitioner cites Coalition for Political Honesty,

65 Ill. 2d 453 (1976). However, Coalition for Political Honesty stands for a completely different

proposition: in that case, the Supreme Court held that it was the intention of the constitutional

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convention that the courts were to determine whether constitutional requirements for a proposed

constitutional amendment are satisfied. Id. at 457. The present case relates to a petition for a public

policy referendum – a subject not at all addressed by Coalition for Political Honesty. Moreover,

under the plain language of the Election Code, the Objection squarely falls within the authority of

the Electoral Board to decide. Petitioner cites no other case to challenge this, and indeed, several

court opinions relate to constitutional challenges to ballot propositions. See, e.g., Leck, 111 Ill. 2d

523 (1986). Accordingly, determining whether the form of question presented in a referendum

petition is constitutional is within the Electoral Board’s authority.

C. The Objectors Sufficiently Stated Their Interest.

In an apparent attempt to avoid the substantive fatal flaws in the proposed referendum

question, Petitioner claims that the referendum should be approved because the Objectors’

objection should have been dismissed by the Electoral Board. The sole basis for this argument is

that the Objectors allegedly did not “state the interest of the objector.” Pet. Brief, at 4-11; 10 ILCS

5/10-8. Section 10-8 of the Election Code requires that: “[t]he objector's petition shall give the

objector's name and residence address, and shall state fully the nature of the objections to the

certificate of nomination or nomination papers or petitions in question, and shall state the interest

of the objector and shall state what relief is requested of the electoral board.” 10 ILCS 5/10-8.

Petitioner apparently believes that an objection must actually use the word “interest” to be valid

under the Election Code, and lobbies this court to dismiss the objection solely because that one

word does not appear in the Objectors’ papers.

Petitioner argues that “Objectors do not state any interest at all.” Pet. Brief, at 5. Petitioner

is wrong: the Objection clearly sets out the interest of the Objectors. They state that they are

“Evanston residents and registered voters,” and identify their concern that the proposed

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#72912192_v1
referendum will violate State law and confuse Evanston voters. R433. It is true that the Objectors

never explicitly used the word “interest” to reflect their concern about the constitutionality and

legality of the referendum, or about possible confusion over the text of the referendum, or their

status as registered Evanston voters. But it is also plainly obvious from the four corners of the

Objection what their interest is.

Petitioner argues that the Objectors cannot “use their status as ‘registered voters’ to satisfy

both requirements of legal standing and the statement of interest in Section 10-8,” and that

Objectors cannot have “‘the basis of their objection’…perform double duty for the Objectors to

serve as their ‘statement of interest.’” Pet. Brief, at 8. But why not? In a case involving a challenge

to a Section 6(f) referendum, our Appellate Court declared that “the right to be governed in a

manner provided by statute and altered only according to law is shared equally by all residents and

voters” of the municipality. Flowers v. City of Moline, 251 Ill. App. 3d 348, 351 (3rd Dist. 1993).

Indeed, in a referendum challenge, “[n]o one could bring a keener interest to the controversy or

sharpen the issues better than the plaintiff” – a resident and voter of the municipality in question.

Id. Thus, the mere fact that the objector to a Section 6(f) referendum is a registered voter of the

municipality does indeed double as the declaration of interest. Petitioner cites no case that requires

an objector to actually state, for example: “I have standing because I am a registered voter of the

City, and my interest is that I am a registered voter of the City.” Surely, the statute does not demand

such slavish, hyper-technical writing, particularly in a case in which the Objectors have an obvious

“keen” interest in the referendum because they are Evanston residents and voters.

Finally, Petitioner worries that if this Court allowed the Objectors’ statements of standing

and the basis of their objection to “double” as their statement of interest, then such a ruling “would

render the statement of interest requirement superfluous.” Pet. Brief, at 8. This supposition is

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#72912192_v1
misplaced. In this case, the Objectors’ status as residents and registered voters, and the nature of

their objections, validly demonstrate their interest in pursuing the Objection, for all the reasons

stated above. It may be that the statement of interest for a different objection to a different ballot

proposition may require more, or something different, than the Objectors’ standing or rationale.

But this Court need not consider such a facial approach to Section 10-8. The only question before

this Court is whether these Objectors have stated an interest in the Objection – and clearly, they

have.

Petitioner’s argument concerning the statement of interest of Objectors is without merit,

and provides no basis for this Court to overturn the decision of the Electoral Board.

V. CONCLUSION.

WHEREFORE, for the reasons set forth above, Objectors respectfully request that this

Court affirm the decision and ruling of the Electoral Board, and enter judgment in their favor.

Dated: February 10, 2020 Respectfully submitted,

JANE GROVER, KENT SWANSON, and

BETTY HAYFORD

By: /s/ Hart M. Passman

One of Their Attorneys

Peter M. Friedman
Hart M. Passman
Jeffrey N. Monteleone
HOLLAND & KNIGHT LLP
150 N. Riverside Plaza, Suite 2700
Chicago, IL 60606
Phone: (312) 263-3600
Attorneys for Objector-Defendants
Firm No. 37472

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#72912192_v1
 IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS
COUNTY DIVISION, COUNTY DEPARTMENT

Allison Harned, )
)
Petitioner-Plaintiff, )
) Case No.: 2020-COEL-000005
v. )
)
)
Evanston Municipal Officers Electoral Board, and )
its members Steve Hagerty, Devon Reid, Anne )
Rainey, in their official capacities, and objectors )
Jane Grover, Kent Swanson, and Betty Hayford, )
)
Respondents-Defendants. )

REPLY OF THE PETITIONER

The Evanston Voter Initiative (“EVI”) is one of constitutional importance 1 that intertwines

the voting rights of the initiative proponents, the 3,871 signers of the initiative petition, and the

49,933 Evanston voters who have a constitutional right to vote on the referendum pursuant to

Sections 6(f) and 11 of Article VII of the 1970 Constitution and Section 28-7 of the Illinois

Election Code.

In proposing the EVI, Evanston voters are seeking to alter their managerial form of

government and give additional powers and duties to their elected officers regarding the

consideration and adoption of city ordinances. By proposing these modifications, Evanston

voters are not seeking to repeal their current form of government or adopt a new one. Instead,

Evanston voters seek to “tailor their existing form of government to its own special needs.”

Flowers v City of Moline, 251 Ill. App. 3d 348, 353 (3rd Dist. 1993). In so doing, Evanston voters

are acting squarely within the parameters of Article VII, Section 6(f) and Section 11 and

1
This case impacts not just electoral rights but also, inter alia, the rights of the freedom of speech, freedom of
association, and the right to petition the government for redress of grievances.

1
pursuing local government reform as envisioned by the Framers and Illinois voters 50 years ago

when the constitution was ratified

In order to fully realize the reform opportunities which the Local Government Article

offered, the Framers included the right of voter initiative and referendum in Section 11 of the

Article. The initiative was intended “as a form of insurance, to guarantee that the flexibility and

adaptability offered by the Article would not be foreclosed by unduly limited opportunities to

invoke its provisions.” Record of Proceedings, Committee Proposals, 1753-54 (1970).

Regrettably, opponents of reform have frequently attempted to invalidate Article VII

initiatives and referendums or keep them off the ballot altogether as in the instant case.

Fortunately, time and again, Illinois courts have protected Article VII referendums from attack.

See Clarke v Arlington Heights, 57 Ill. 2d 50 (1974); Johnson v Ames, 2016 IL App (1st) 162770

aff’d 2016 IL 121563; Flowers v City of Moline, 251 Ill. App 3d 348 (3rd Dist. 1993); In re

Objection of Cook to Referendum, 462 N.E. 2d 577 (1984); Boytor v City of Aurora, 81 Ill. 2d

308 (1980); Hunt/Henyard v MOEB of Dolton, 2018 CONC 27; and Burns v MOEB of Elk Grove

Village and Benjamin Lee, 2019 COEL 37.

The Article VII initiative and referendum right is a constitutional right – reserved to the

people – not given to the people by elected officials. This voting right gives voters “plenary

control over the number, nature and duties” of their local government officers. Id at 1667.

In the instant case, the Objectors and the Evanston Electoral Board are attempting to take

away this constitutional voting right away from Evanston voters. The Petitioner asks this Court

to protect her Article VII initiative and referendum right to reform her city government and allow

Evanston voters to decide the EVI referendum at the ballot box.

2
I. PETITIONER’S MOTION TO DISMISS THE OBJECTIONS SHOULD HAVE
BEEN GRANTED.

In their effort to disenfranchise Evanston voters from voting on the EVI referendum, the

Objectors filed a flawed Objection which did not state the “interest of the objector” as required

by Section 10-8 of the Illinois Election Code. From the beginning of the electoral hearing

process, the Objectors have steadfastly maintained that merely being “Evanston residents and

registered voters” is enough to state their interest.

In the Objectors’ Response Brief, the Objectors admit that “the facts pertinent to this matter

are not in dispute.” See Objectors’ Brief at p. 2. Petitioner agrees that there are no factual

disputes, but rather solely legal issues regarding the interpretation of the language of Section 10-

8 of Illinois election law. The standard of review for resolving this matter of law and statutory

construction, therefore, is a de novo review by this Court. See Pochie v Cook Cty. Officers

Electoral Bd, 289 Ill. App 3d, 585 (1st District 1997); Daniel v Daly, 2015 IL App (1st) 150544,

31 N.E. 3d 379.

The Objectors’ cavalier view of their duty to specifically state their interest flies in face of

our Supreme Court’s recent decision and reasoning in Jackson-Hicks v East ST. Louis Board of

Election Commissioners, 2015 IL 118929, where the Court emphasized that strict compliance

with the mandatory language of the Election Code is the rule. The Court warned against a

subjective approach to interpreting Election Code language with “exceptions, conditions, or

limitations that the legislature did not express.” Id. at 21.

In spite of the Supreme Court’s warning against a “laissez-faire, anything goes” approach to

interpreting Election Code mandatory language, the Objectors went right ahead and said “why

not” in using their status as registered voters to satisfy both the requirement of legal standing and

statement of interest in Section 108- of the election law. See Objectors’ Brief at p. 18.

3
 But “why not” is not an acceptable rationale because a “statement of interest” is a separate

and independent requirement in the election law as written by the General Assembly. Objectors

may call this language “slavish, hyper-technical writing” (Id.), but it is the specific language

used by the General Assembly and the Objectors must strictly comply.

If this Court finds the Objectors’ designation as “Evanston residents and registered voters”

does “double duty” for the Objectors and satisfies the “statement of interest” requirements as

well, then the words “shall state the interest of the objector” in the election statute will be

rendered superfluous. Our Supreme Court warned in Hirshfield v Barret, 40 Ill. 2d 224, 230

(1968) against such an interpretation stating, “the presence of surplusage is not to be presumed in

statutory or constitutional construction, and the fundamental rule is that each word, clause, or

sentence must, if possible, be given some reasonable meaning.”

The Objectors confess that “the statement of interest for a different objection to a different

ballot proposition may require more, or something different than the Objectors’ standing or

rationale.” See Objectors’ Brief at p. 19. But Objectors’ flexible approach to complying with the

mandatory language set out by the General Assembly in our election laws is exactly the

subjective approach that the Supreme Court ruled against in Jackson-Hicks. Such an ad hoc,

uncertain, and changeable approach on a case-by-case basis will result in an unworkable and

unfair election system that would be contrary to the law. There would be “no way to insure

consistency from one election jurisdiction to another, from one election to another, or even from

one race to another.” Id.

Simply put, the Objectors here failed to specifically state their interest in their Objection

which is a mandatory requirement and independent from merely being Evanston residents and

4
registered voters. Objectors’ failure to strictly comply with legal requirement requires that their

Objection be dismissed.

In failing to dismiss the Objection of the Objectors, the Evanston Electoral Board did not

faithfully follow the clear mandates and legal requirements for a valid objection contained in

Section 10-8 of the Illinois Election Code. The Illinois Supreme Court made it clear that the

power to set election standards is vested in the General Assembly, not in local electoral boards.

Jackson-Hicks v East St. Louis Board of Election Commissioners, 2015 IL 118929, 9132.

In the instant case, the Evanston Electoral Board relied on one of its own rules of procedure,

Rule 9, to justify denying Petitioner’s Motion to Dismiss. This rule was not referred to in any

way in Objectors’ Response to the Motion to Dismiss or in the course of the hearing on the

motion. Additionally, a rule of a local Electoral Board is not permitted to overrule a mandatory

statutory requirement as written by the General Assembly in the Election Code.

The Evanston Electoral Board recited Jackson-Hicks as support for its decision on the

Motion to Dismiss, but the Jackson-Hicks decision and opinion strongly supports the Petitioner’s

position, not the Objectors’. The “inference approach” to stating an interest from the mere

statement that the Objectors are “Evanston residents and registered voters” cannot stand under

the strict compliance rules laid down by our Supreme Court in Jackson-Hicks.

II. THE EVANSTON ELECTORAL BOARD DOES NOT HAVE THE AUTHORITY
OR JURISDICTION TO DECIDE CONSTITUTIONAL OR LEGAL ISSUES.

In Coalition for Political Honesty v State Board of Elections I 65 Ill. 2d 453 (1976), the

Illinois Supreme Court plainly declared that courts, not electoral boards like the Evanston

Electoral Board, are to make legal and constitutional determinations such as whether the EVI is

within the scope of Section 6(f) and Section 11 of Article VII of the Illinois Constitution.

5
 In the instant case, two Board members – Mayor Hagerty and Alderman Rainey – had

interest inimical to the policy proposed by the EVI and nevertheless took it upon themselves to

make judicial decisions on constitutional and legal subjects that they had no authority or legal

expertise to make. In addition, Board members Hagerty and Rainey continually asked questions

pertaining to the wisdom and merits of the EVI, exceeding the purview and authority of the

Board.

By exceeding their authority and violating their ethical duty of fairness and impartiality,

these two Board members greatly impeded, impaired, and frustrated full participation in the

electoral process by the Petitioner and the 3,871 Evanston voters who signed the EVI petition.

See Orr v Edgar, 283 Ill. App 3d 1088 (1st Dist. 1996).

Indeed, one member of the Board – Member Rainey – moved to sustain the two paragraphs

of the Objection before any discussion on the merits of the Objection took place in the hearing.

In addition, Board members Hagerty and Rainey repeatedly asked questions of the Petitioner’s

attorney that were beyond the scope of the argument stated in the Objectors’ Petition.

The Petitioner was denied due process and a fair hearing by the biased conduct of Board

members Hagerty and Rainey who had interests hostile to the guarantee of a fair and impartial

tribunal. The Framers of our 1970 Constitution and the Illinois voters who ratified it would be

aghast at the conduct of Board members Hagerty and Rainey in considering the Article VII

initiative submitted by the Petitioner. Delegate Joan Anderson referred to this section of the

Constitution as a “trust the people” section, (Record of Proceedings, Vol IV, p. 3226), but the

people of Evanston were subjected to a biased tribunal which had an interest in seeing the EVI

excluded from the ballot.

6
 In light of the conduct exhibited by Members Hagerty and Rainey during the course of the

Evanston Electoral Board proceedings, the Petitioner asks this Court to disregard their rulings

and establish a reconstituted electoral board to provide due process and fairness as established by

the courts in Anderson v McHenry Township, 289 Ill. App 3d 830 (1997) and Zurek v Franklin

Park Officer Electoral Bd., 2014 IL App (1st) 142618.

III. THE EVANSTON VOTER INITIATIVE IS AUTHORIZED BY ARTICLE VII

SECTIONS 6(f) AND 11(a) OF THE ILLINOIS CONSTITUTION.

The Article VII initiative referendum power authorized by Sections 6(f) and 11 of the Local

Government Article gives local voters in municipalities like Evanston “plenary control over the

number, nature, and duties of their local government officers.” Record of Proceedings, Vol. VII

at 1667. Neither the Evanston Electoral Board nor the Objectors in their two responding

memorandums of law addressed the subject of Evanston voters’ plenary control over the nature,

powers, and duties of their Evanston elected officials.

In proposing the EVI, everyday voters in Evanston are seeking to alter their existing

managerial form of government and provide additional powers and duties to their elected officers

regarding the consideration and adoption of proposed city ordinances. The voters are not seeking

to repeal their current form of government or adopt a new form of government. Evanston voters

are seeking to alter their current managerial form of government. In Flowers v City of Moline,

251 Ill. App. 3d 348 (3rd Dist. 1993), voters used an Article VII referendum to modify the

powers and duties of the Mayor, City Administrator, and City Council. The Flowers court held

the word “alter” was meaningful in Article VII, 6(f) and allowed Moline voters to make these

modifications in their city government and adopt provisions not found in the Illinois Municipal

Code.

7
 In the instant case, both the Objectors and the Evanston Electoral Board overlook the key

word “alter” in Article VII, Section 6(f). Like plaintiff Flowers in Moline, they argue that a city

must choose among various forms of government provided by statute without changing these

forms. As the Flowers court pointed out, “if the plaintiff is correct in his interpretation, then the

city may only ‘adopt’ or ‘repeal’ a form of government. Id. But the Flowers court said the word

“alter” must have meaning too and it means a city may tailor or modify its existing form of

government. Thus, Moline voters did not exceed their authority under Article VII, 6(f) by

modifying their current form of government by referendum.

The Moline referendum asked: “Shall certain power of the Mayor, City administrator, and

City Council of the City of Moline be reassigned and transferred so that the City Council

appoints and removes the City Administrator, the Mayor appoints members of the Board and

Commissions, with the advice and consent of the City Council; and the City Administrator

appoints and removes the Department Heads of the City?” Id. The Flowers court said the

proposition clearly sets out the changes to be made in city government. It informs the voter of

which functions are to be transferred and the party who will subsequently be responsible for

those functions. Id. (emphasis added).

Similar to the Article VII referendum alterations in the Moline city government, the EVI

envisions a change or alteration in the relative powers and duties of local government officers

within Evanston’s current form of government whereby the City Clerk and City Council would

be given new powers and duties to consider an ordinance proposal submitted on a voter petition

signed by a percentage of the city’s voters.

Contrary to the assertions of the Evanston Electoral Board, the EVI does not compel the

members of the City Council to enact certain ordinances. The EVI allows Evanston voters to

8
propose ordinances to the City Council members for their consideration, but at all times the City

Council retains a “legislative veto” over any voter-initiated ordinance. See Quinn v Donnewald,

107 Ill. 2d 179, 483 N.E. 2d 216 (1985). Under the EVI, City Council members have the power

to disapprove any ordinance approved by voter referendum by means of a majority vote of the

City Council.

The EVI is a 21st century reform to allow Evanston voters to make known their opinions to

their representatives and to apply for redress of grievances. Using their power authorized by

Article VII, 6(f) of the Illinois Constitution, Evanston voters have proposed the EVI, a

mechanism to make the Mayor and City Council squarely address municipal issues and be

accountable and responsive. The very act of petitioning under the EVI process will educate

Evanston voters and elected officials about important issues facing their city and its government.

The “officer clause” of Article VII, Section 6(f) is invoked by the provisions of EVI which

provide specific new powers and duties to the City Clerk in the Executive branch of city

government and to the City Council in the legislative branch. The Constitutional Convention

intended the right of initiative and referendum under Article VII to be “plenary control over the

number, nature and duties of its officers.” Record of Proceedings, Vol. VII at 1667. The

Objectors and Evanston Electoral Board fail to address the words and meaning of the “officer

clause” in their memorandums. The EVI fits within the parameters of the officer clause of Article

VII by providing additional powers and duties to the elected officers of Evanston in keeping with

Evanston voters’ plenary control over their officers.

IV. THE EVANSTON VOTER INITIATIVE REFERENDUM PROVIDES A CLEAR

AND UNDERSTANDABLE CHOICE FOR EVANSTON VOTERS.

Objectors to Article VII referendums typically attack the ballot language of the referendum

proposition as part of their campaign to invalidate the referendum and the Objectors and

9
Evanston Electoral Board in the instant case are no different. Both memorandums launch a

barrage of attacks on the EVI language, but these attacks are camouflage for their opposition to

the policy proposed by the referendum.

The provisions of the EVI are precise, detailed, specific, and written in plain language. They

are no more perplexing than the Arlington Heights Initiative provisions which have been law for

39 years. Moreover, the EVI provisions are very similar to municipal initiative provisions in

Wisconsin, Michigan, and Ohio, which have been in place for more than a century. It should be

noted that 3,871 Evanston voters understood the clear provisions of the EVI, the most petition

signatures ever collected in Evanston history.

Using a specious attack on ballot language as a weapon to deny ballot access to a

constitutionally authorized Article VII local referendum undermines the intentions of the Illinois

voters who ratified Article VII of our Constitution 50 years ago. This Court should consider the

case of Kanerva v Weems, 2014 IL 115811, 9155, in deciding this voter rights case which held

that “doubts about the scope of constitutional rights should be in favor of the people granted

rights.”

CONCLUSION

For the reasons set forth above, the Petitioner asks this Court to grant the Petition for Judicial

Review, reverse the decision of the Electoral Board granting Objectors’ Petition, rule that the

Evanston Voter Initiative shall appear on the March 17, 2020 election ballot, and grant any other

just relief.

Dated: February 11, 2020 Respectfully Submitted

ALLISON HARNED

By: /s/ Pat Quinn

One of Her Attorneys

10
Pat Quinn (No. 14090) Ed Mullen (No. 44423) Sorin Leahu (No. 38012)
216 N. Jefferson #200 601 S. California Ave. 1 N. LaSalle #600
Chicago, IL 60661 Chicago, IL 60612 Chicago, IL 60602
312/485-1852 312/508-9433 312/977-0478
ltg.patquinn@gmail.com ed_mullen@mac.com sleahu@mauckbaker.com

11