Unintended ballot language could sink proposed amendment

By Jamey Dunn

Thousands of Illinois voters have already gone to the polls for early voting, but their choice on a proposed constitutional amendment could be set aside because of language  that lawmakers did not intend to appear on the ballot.

Last May, legislators approved House Joint Resolution Constitutional Amendment 49, which creates a higher threshold for approving increases in public employee pensions. Currently the legislature can approve such benefits with a simple majority. But if voters approve the amendment that appears on the general election ballot, then a three-fifths majority would be required to pass any pension sweeteners.

But a lawsuit that seeks to nullify the results of the vote on the amendment claims that the ballot instructions given to voters are confusing.

The language in question was approved as part of a piece of legislation that made news for another reason. Senate Bill 3277 allows contribution caps to be tossed out if outside groups spend large amounts to try to influence voters during a campaign. Gov. Pat Quinn signed the bill in July, and the provision has already been applied in a current legislative race where a political action committee spent more than $100,000. 

The new law also changed the so-called notice language, which appears on the ballot with the proposed amendment and seeks to explain to voters what their actions could mean in terms of changing the state’s Constitution. The new language says:

The failure to vote this ballot may be the equivalent of a negative vote, because a convention shall be called or the amendment shall become effective if approved by either three-fifths of those voting on the question or a majority of those voting in the election. (This is not to be construed as a direction that your vote is required to be cast either in favor of or in opposition to the proposition herein contained.) Whether you vote this ballot or not you must return it to the election judge when you leave the voting booth.

But voters are not deciding whether the state should hold a convention. Unless there is a push by the legislature for a constitutional convention, the question whether to hold one automatically appears before voters every 20 years. Voters opted not to have a convention when they were asked in 2008. “The language just makes no sense because they are two very different questions?” said John Bambenek, who filed the lawsuit to toss out the election results on the amendment question. “There is no way a convention is going to be called, no matter how you vote.” Bambenek, a Republican, is challenging Sen. Michael Frerichs, a Champaign Democrat, in the upcoming election. He said that he filed the suit, along with a dozen voters, when people started coming to him asking him about the confusing language. It is too late to get the question removed from the ballot, but Bambenek hopes to persuade a judge to set aside the results. “If you are going to ask the voters to do something, what they see on the ballot should be correct.”

“It is confusing. It is introducing right out in front of the voters the idea of a constitutional convention. I’m absolutely floored [that it was included in the ballot language],” said Ann Lousin, a law professor at the John Marshall Law School and a member of the research staff during the 1970 constitutional convention. “I think a mistake obviously occurred, and it could confuse voters.” She said the issue might have been caused by a drafting error when the legislation was written.

However, House Majority Leader Barbara Flynn Currie said lawmakers never intended for both the words “convention” and “amendment” to appear on the ballot. Instead, she said, legislators assumed that the amendment language would be used in situations such as the current one, when an amendment is up for consideration, and the convention language would be used when voters must decide whether a convention should be called. “If this is a call to convention, tell them this. If this is a proposal to amend the Constitution, put in this,” said Currie, who sponsored the bill. But instead, both scenarios made it on the ballot.

Ken Menzel, deputy general counsel for the Illinois State Board of Elections, said that the board signed off on the language sent to them by Secretary of State Jesse White's office. White spokesman David Druker said that the secretary of state's office serves as a pass through and simply takes the language approved by lawmakers and gives it to the election board. “The board of elections gets the question from us, which we get from the General Assembly," he said. Menzel noted that the language appears on the ballot exactly as it does in the new law. “It just got reproduced exactly like the statute says it shall be,” he said. “We don’t always know what [the legislators] intend.”

Currie said she has not read Bambenek’s lawsuit and would not speculate about the possible outcome of the case. However, she said lawmakers might have to revisit the ballot language in the future to avoid more confusion and potential legal challenges. She said that legislators made the changes to let voters know that if they simply skip the ballot questions, it could have the same result as voting “no.” “We thought we were clarifying it,” Currie said.

The notice language has nothing to do with the content of the underlying amendment and would have appeared on the ballot regardless of the subject matter of the amendment. Lousin, who has spoken out in opposition to the amendment itself because she said it leaves the door open to potentially unforeseen legal challenges, warns would-be conspiracy theorists not to read the problem with the notice language as anything more than a simple mistake. “You do not normally have to look for people to be venal. Just look for people to be stupid, and that usually explains things.”

Lousin said there were plenty of chances to catch the mistake. “The state of Illinois through its various agencies, the legislature, the secretary of state’s office, the State Board of Elections, has put some stuff on the ballot that the voters will be confronted with that could be confusing.” But now that it is on the ballot, she said, finger-pointing does little good. “‘Somebody should have said, ‘What convention?’” Lousin said. “It should have been caught. It should have been, but you know, what can we do now?”