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SEIFFE:  Bruno vs. Clout

Wednesday, September 24, 2008 

By Ralf Seiffe

Here’s a quick civics quiz. True or False: On November 4th, the voters of Illinois will be asked if they would like to call a Constitutional Convention. If only one hundred voters vote on the question and 61 vote “Yes,” Illinois will call a Constitutional Convention. The answer is true.

Now, consider this language the Secretary of State has attached to the ballot question: “NOTICE: The failure to vote on this question is the equivalent of a negative vote. (This is not to be construed as a direction that your vote is required to be cast in favor or in opposition of the question herein contained.)”  If you will be one of millions of Illinois voters who read that notice in the voting booth, believe it and refrain from answering the question, will you be surprised when you learn that 61 voters have authorized a Constitutional Convention? The answer is also true.  If you notice a logical problem here, you’ll begin to understand how the political system dysfunctions in Illinois.

Our friend Bruno Behrend, probably the most energetic advocate of voting Yes on the Constitutional Convention also noticed this anomaly and filed suit to enjoin the Secretary from putting this evidently false instruction to the voters.  A hearing was held this morning to start the legal process and I attended. What went on is something every Illinoisan who cares about the rule of law--at least rules that average voters can understand--should be aware and demand better.

Behrend’s case is very narrowly focused; it only concerns the adequacy of the instructions and to a layman, the complaint is easily understood.  The instructions are contrary to fact and changing them to comport with law and common sense should be an easy and correct thing to do. 

The Secretary’s representative made the argument that ballots had already been printed and are beginning to be distributed.  He made the case that it would be difficult to even get the specialty paper to print new ballots and that electronic voting machines have already been programmed.  He argued that the “balance of equities” favored going forward with the ballot, as is.

After a perfunctory comment on the merits of the controversy, there came these two whoppers.  First, the court was told the mission of the Board of Elections is to run elections “smoothly and without havoc.”  Although the representative holds the untenable position that the Constitutional Convention instructions are adequate, he seemed unconcerned with the notion that there might be a flaw in the actual ballot.  The defendant’s position, as we heard it, was that the verity of the instructions didn’t matter.

The second was defendant’s suggestion that the plaintiffs be required to put up a bond to reimburse the cost the State might incur in reprinting.  This self-serving argument could be unnecessary if the State were willing to actually try the issues in Behrend’s complaint with dispatch.  After all the election is just weeks away.  But, by asking for a bond, they signal a long appeals process, too.  To this layman, the State’s tactic appears to be nothing more than bullying. 

Behrend’s case will resume on Thursday after consultation with lawyers representing The Chicago Bar Association as they have filed a much broader lawsuit against the ballot.  These proceedings will interest lawyers and we’ll eventually hear how the case develops.

What’s most interesting to this observer is not the process so much as the actual equity of the situation with which the State’s representative was so powerfully concerned.  From this vantage, I see two State constitutional officers, The Secretary of State and the Attorney General arguing that it is acceptable to disenfranchise voters by issuing faulty instructions.  Where is the news media?  Where are the civil rights organizations?  Where are the Republicans?

One also must wonder what mischief the political class must be plotting.  It appears that the politicians and their clients are against any change in the Illinois Constitution because they like it, as is.  So, could it be that this convoluted language is a method to force an outcome the political class prefers?  If, for example, only 20% of voters actually answer the question but of those, 60% approve, one would think the Constitutional Convention should be called.  But, could the forces of the status quo then go to court and point to the Secretary’s language and say that the majority of voters--the 80% that didn’t vote--had expressed a negative vote?  The argument would be that the 80% took the Secretary at his word and by not voting, thought they were essentially casting a negative vote.  The conclusion would be that a Constitutional Convention would disenfranchise the 80%. 

Ralf Seiffe advises business start-ups and product launches from Chicago, Illinois and is a political analyst and columnist for the Illinois Leader and Illinois Review.

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