UPDATE, POSTED FEB. 28: A state appeals court has refused, for now, to put a hold on a Cook County judge's order invalidating the so-called Bring Chicago Home real estate sale tax hike referendum.
On Feb. 28, the Illinois First District Appellate Court issued an order referring the city of Chicago's request to stay the order of Judge Kathleen Burke to the three-justice appellate panel that will actually hear arguments in the case. The city had sought a quick stay of Burke's order blocking the city from intervening to defend the referendum, along with the Chicago Board of Elections, which is not a city department.
The appeals court set up an expedited schedule for arguments, directing all parties to file their appellate briefs from March 1-March 5, after which the court may issue a decision on the various questions presented.
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PREVIOUS ARTICLE, PUBLISHED FEB. 27: The Chicago Board of Elections has sided with Chicago Mayor Brandon Johnson, and will ask a state appeals court to determine the fate of the so-called Bring Chicago Home real estate sale tax hike referendum.
On Feb. 27, the Chicago Board of Elections announced they have appealed the decision of Cook County Circuit Judge Kathleen Burke, who had found the referendum was illegally placed on the ballot.
The judge also had ordered the elections board not to count any votes cast in the election. She did not order the referendum question to be removed from the ballot for the March 19 primary election.
Early voting has begun for that election, and a pause in voting would be required to remove the question from the ballot.
The Chicago Board of Elections' three commissioners are appointed by the Cook County Circuit Court, and are independent from the city of Chicago.
In appealing, the Chicago Elections Board will continue to assert that it should not have been the defendant in the legal action challenging the controversial ballot question, and that Judge Burke was wrong to deny the city of Chicago and Mayor Brandon Johnson's request to intervene in the action to defend the referendum.
In a statement issued by Chicago Elections Board spokesman Max Bever, the organization said it "will request an expedited review by the Illinois Appellate Court."
The Elections Board's appeal follows a notice of appeal filed Feb. 26 by the city of Chicago, seeking review of Judge Burke's decision to block the city from defending the referendum in court.
Since Burke issued her decision Friday, supporters of the referendum and of Mayor Johnson have blasted Judge Burke and opponents of the referendum. They have accused referendum opponents of racism and asserted the decision amounts to "voter suppression," by denying voters the chance to secure passage of the referendum, whether or not it was legally drafted and placed on the ballot.
The referendum would have empowered the Chicago City Council to restructure the city's real estate transfer tax, which is levied on properties when they are sold.
Under the referendum, the city could sharply increased RETT taxes on all properties sold for more than $1 million.
The referendum question, at the same time, asserted the city would decrease the RETT assessed on properties sold for less than $1 million.
The referendum was strongly backed by Mayor Johnson and his democratic socialist allies on the Chicago City Council and other far left-wing organizations, including the Chicago Teachers Union and others.
They asserted the referendum would result in at least $100 million in new tax revenue for the city, which Johnson and others claimed would be put toward funding programs to help alleviate homelessness in Chicago.
And they asserted the tax would only apply to about 4% of all homes sold in the city.
Opponents of the referendum, however, noted the ballot measure included no language that would commit the city to actually using the money for the homeless, or any specified purpose. Rather, it would be left to Mayor Johnson and the City Council to determine how to spend the proposed new millions in tax revenue.
Opponents also asserted the measure would not just apply to the "mansions" of wealthy Chicagoans, but would apply to a wide swathe of properties, including storefronts and small apartment buildings, among others. They said this would place an even heavier tax burden on small businesses in the city, while further suppressing the development of new homes and pushing prices up, endangering housing affordability in the city.
After the City Council voted late last year to place the "Bring Chicago Home" referendum on the ballot for the March 19 primary, that decision was challenged in court by a coalition of business interests, who claimed the ballot question was illegal and violated rules governing such referendums spelled out in the state constitution.
Particularly, they noted the measure improperly asked voters two different questions at the same time: Whether to increase the RETT on certain properties, and then to decrease the tax on other properties. They asserted this would improperly encourage voters to vote for the referendum, thinking they would be guaranteed a tax decrease.
The lawsuit was filed against the Chicago Board of Elections. The city and Elections Board have argued the city should have been named as a defendant in the case, since it was Mayor Johnson and the City Council which placed the measure on the ballot.
The city had requested to intervene in the case, but were denied by Judge Burke.
Lawyers for referendum opponents, including prominent Illinois elections lawyer Michael J. Kasper, had argued the city waited too long after the referendum was challenged to attempt to intervene. The city's motion to intervene did not come until 35 days after referendum opponents had sued.
The ruling and subsequent written order don't clearly state Judge Burke's legal reasoning for invalidating the referendum question.
However, based on proceedings in court last Friday, Burke was understood to have agreed that the ballot measure improperly asked voters two questions, instead of one, essentially promising most voters a tax cut in exchange for a vote to authorize Johnson and his allies to hike the real estate sales tax on other properties.
The question remains on the ballot. However, any votes on the referendum are not being counted, unless an appellate court or the Illinois state Supreme Court rules otherwise.
Judge Burke is a Democrat and has served on the Cook County Circuit Court bench since 2004. She was last elected in 2022, when she received 77% of the vote to retain her judgeship. Her current term will end in 2028.
According to evaluations by legal organizations, Judge Burke has been described as "fair to all" and effective, and as a judge who "takes her job seriously."