Chicago election officials argued Tuesday they are “simply, in a way, the messenger” in the battle over Mayor Brandon Johnson’s controversial referendum designed to help the unhoused, but that didn’t stop them from pushing back on a ruling against the “Bring Chicago Home” ballot question.
The Chicago Board of Election Commissioners decided Tuesday it will appeal a ruling invalidating the referendum asking voters if Chicago should increase the real estate transfer tax on high-end properties to fund homeless prevention. The proposal is one of Johnson’s top priorities and a longtime goal of progressive organizers.
In the meantime, the question remains on the ballot for people voting early or receiving ballots by mail. Both advocates and opponents of the measure continue to encourage people to vote on the question, even though a Cook County judge ruled the question invalid on Friday. With the March 19 primary less than a month away, time is ticking while the courtroom fights continue.
Real estate industry groups who sued to block the proposal argue it violates state law by combining a tax cut and a tax hike in the same question, and that the language of “addressing homelessness” is too vague.
But supporters who have tried for years to put the question before voters argue the city needs a dedicated funding source to address the rising number of people experiencing homelessness, and they estimate 93% of property sales will see a tax cut under the plan.
The Chicago Board of Election Commissioners reiterated at Tuesday’s meeting that they don’t believe they are the proper defendant in the case.
“We’re simply, in a way, the messenger here printing the referendum on the ballot and that’s the extent of our work here with respect to this referendum,” said board chairwoman Marisel Hernandez.
The board’s decision comes a day after the city’s law department filed an appeal of its own, asking for Cook County Judge Kathleen Burke’s ruling to be stayed.
Burke not only ruled the referendum question invalid, but also declined to dismiss the lawsuit and denied letting the city intervene as a party in the case. Burke provided little rationale for her decision in court Friday, and a written order Monday did not expound on her reasoning.
It ordered the Chicago Board of Elections to not count any votes cast on the referendum question or make any votes on the matter public.
Some voters already have weighed in on the question in early voting. Early voting and vote-by-mail aren’t being paused.
But a future order by a higher court could change that.
With that in mind, voters should still vote on the question, said Michael Forde, a managing partner of the Forde & O’Meara law firm who successfully defended former Mayor Rahm Emanuel over residency challenges in the 2011 mayoral election.
“The appellate court might end up saying that, ‘We’re going to count the results,’ I think it’s unlikely, but it’s a possibility, and not one that the voters can rule out,” Forde said.
It’s a directive groups both for and against the referendum are also echoing.
“People can still go out and vote for the referendum. The referendum is still on the ballot. No one should stop voting for the referendum just because of (the judge’s) order,” said Ed Mullen, an election attorney representing the Bring Chicago Home campaign.
The Chicago Board of Elections is the named defendant in the lawsuit, but they argue they’re not the proper party. In filings, attorneys for the board wrote that the board’s duties are to administer elections — and that deciding whether referendum questions are legal is outside the scope of its authority.
The city also filed an appeal of its own, although it’s not a party to the case; Burke denied their attempt to intervene.
“It’s a bad precedent to say that the city of Chicago cannot defend its own referendum,” Adam Lasker, an attorney for the board, said Tuesday.
Max Bever, a spokesman for the Board of Elections, said it’ hopes for a quick decision. “The next real big deadline” is April 9, the last day for the board to proclaim the official results of the election, Bever said.
If a higher court were to reinstate the ballot question, Mullen said the votes could be counted and released even after the March 19 primary.
“Normally that happens before election day, but it doesn’t have to,” Mullen said.
But as a practical matter, Forde said he believes it’s extremely unlikely a court would retroactively find the votes valid.
“It’s very hard for a court to say, ‘Well, there’s a fair way to treat this as if everybody assumed that this was a live referendum, even though the newspapers on the morning of February 26th said it wasn’t.’” Forde said. “It’s very, very hard to put the genie back in the bottle.”
Tessa Weinberg covers Chicago government and politics for WBEZ.
