Safeguard in recall amendment could be its downfall

By Jamey Dunn

A provision to require statewide voter support to unseat a governor, which legislators viewed as a safeguard in a proposed recall amendment to the Illinois Constitution, has raised questions of constitutionality days before voters will consider it.

The American Civil Liberties Union (ACLU) of Illinois claims that requiring any effort to recall the governor from office to get at least 100 signatures from 20 different counties violates the equal protection clause of the U.S. Constitution by running counter to the “one person, one vote” principle.

Harvey Grossman, ACLU of Illinois’ legal director, said the requirement gives individual voters in smaller counties more power. In a large county, such as Cook, it would theoretically be easier to find 100 voters to sign a petition, while in a much smaller county it might be more difficult. Grossman said this would mean signatures from voters in smaller counties would be in greater demand, and the voice of a voter in larger county would be diluted.

Grossman said one alternative that would ensure statewide support would be to require signatures from a certain number of legislative districts, which are drawn up to contain the same number of voters. He said such a plan would prevent the problem that using counties, with varying populations, presents.

Rep. Jack Franks, a sponsor of the amendment, said legislators, working with Gov. Pat Quinn’s office, tried to ease the fears of those who were concerned that a governor could be recalled too easily or that recall power could be used as a political cudgel to threaten a sitting governor and sway his or her decisions. The requirement that a recall campaign collect signatures from multiple counties was meant to prevent a more populous county from single-handedly initiating a process, which would affect residents throughout the state.

Those seeking to recall a sitting governor would have to collect signatures from citizens equal to 15 percent of votes cast in the last gubernatorial election. A bipartisan group of 20 House members and 10 Senate members also have to sign off on a recall effort.

Franks, a lawyer, said he does not know if the ACLU’s argument would hold up in court, but he said the organization should have raised concerns earlier in the process instead of days before the election. He is encouraging voters to approve the amendment, saying that if it is struck down, previous voter support would make it easier to pass a new version through the legislature.

Grossman, who wrote an opinion piece on the topic for the Chicago Tribune, said that his organization was responding to recent complaints from voters. “We felt we had a duty, once it was brought to our attention, to inform the voters.”

While the ACLU does not take a stance on recall, the organization is encouraging voters to reject the amendment because it is unconstitutional. He said the ACLU does not have any immediate plans to stage a legal challenge of the amendment if it receives the required support from 60 percent of individuals who vote in the general election next Tuesday. However, he thinks if it does pass, “the most likely result would be a court would strike down recall altogether.” He said the legislature should "go back to the drawing board" and create an amendment that would not face such legal challenges.

Kent Redfield, an emeritus professor at the University of Illinois Springfield and director of the Sunshine Project, a nonprofit campaign contribution database connected to the Illinois Campaign for Political Reform, described finding the right balance of safeguards against abuse while still making a recall process feasible for voters as a “three bears kind of problem.” He added the Quinn and the legislature could have taken more time if they wanted to get the amendment just right. “I don’t know that there as a lot of thought about these issues. … They could have found better mechanisms to protect against the things they wanted to protect against. … Could we have spent six months and got a better provision that would have been on the ballot two years from now? Sure.”

Redfield said although Quinn has historically supported recall, the impeachment and removal from office of his predecessor, former Gov. Rod Blagojevich, added political pressure to get an amendment on the ballot this November. “The governor wanted that skin up on the wall as he was running for election.”

Redfield said he is not convinced by the ACLU’s case against the amendment. “I think the argument is a stretch, and I think it’s one of the reasons [they] didn’t raise it sooner.” He thinks it will do little to sway voters one way or another. “If you’re for recall, you’re for recall. If you’re against it, then you’re against it.”