Challengers to the city of Chicago's real estate sales tax referendum have asked the Illinois Supreme Court to step in, saying an appellate court's decision, if allowed to stand, would unconstitutionally allow lawmakers free rein to all but force voters to vote on otherwise unconstitutional ballot measures, with little fear of intervention from the courts until after the election.
On March 11, a coalition of Chicago business advocates, led by the Building Owners and Managers Association of Chicago, filed a petition with the state Supreme Court, asking the court to take up their appeal of a decision last week from a state appeals panel, directing Chicago election officials to count votes cast over the so-called Bring Chicago Home referendum.
That decision had, in turn, overruled a decision from a Cook County judge, who had invalidated the referendum, and ordered election officials not to count ballots cast in the question, because the judge determined city officials had violated the state constitution in how they drafted the ballot question.
Chicago Mayor Brandon Johnson
| Mayor Brandon Johnson/Twitter
In the petition for leave to appeal filed with the Illinois Supreme Court, BOMA and its fellow challengers argued the state high court must step in to protect voters' rights by declaring the appellate court was wrong to rule that courts have no say over whether lawmakers have abided by the constitution when placing referendum questions before voters on the ballot.
"The Appellate Court's decision is incorrect and should be reversed because it fails to recognize the critical fact that the 'free and equal elections' clause protects voting rights, and once a voter is forced to vote on an unconstitutional question, the violation of that right has occurred and the injury to that right cannot be subsequently remedied," BOMA's lawyers argued.
"... The Appellate Court's decision, if permitted to stand, eliminates any pre-election challenge to the constitutionality of a referendum question placed on the ballot by municipal alderpersons, regardless of how blatantly unconstitutional the question may be.
"The possibilities for ballot abuse by municipal councils across the state are endless."
The challengers also asked the state high court to expedite its review of the petition for leave to appeal, as they noted the election is March 19, and early voting is underway.
The petition came five days after a three-justice panel of the Illinois First District Appellate Court resuscitated the so-called Bring Chicago Home referendum.
The petition is the latest step in a court fight that has continued since January, when BOMA and their coalition partners first filed suit in Cook County Circuit Court seeking a court order blocking the BCH referendum from being voted upon during the March 19 primary election.
If successful, the referendum would empower the Chicago City Council to restructure the city's real estate transfer tax, which is levied on properties when they are sold.
The new RETT would sharply increase the taxes on all properties sold for more than $1 million. At the same time, supporters say the city would decrease the RETT assessed on properties sold for less than $1 million.
The referendum is strongly backed by Mayor Brandon Johnson and his far-left political allies, including the Chicago Teachers Union and others. They have claimed the referendum would result in at least $100 million in new tax revenue for the city, which Johnson and his allies have claimed would be put toward funding programs to alleviate homelessness in Chicago.
The referendum, however, does not include any language requiring the city to spend the money on homelessness prevention efforts or for any other specific purpose. Rather, it would be left to the mayor and City Council to determine how to spend the new millions of dollars in new tax revenue.
Opponents have noted the Chicago Teachers Union is already maneuvering to claim much of the money to fund a long list of new demands planned to be placed before the administration of Mayor Johnson, a former CTU member and political organizer whose mayoral campaign was most strongly supported by the CTU.
In recent days, for instance, the Illinois Policy Institute revealed documents indicating the Chicago Teachers Union intends to use proceeds from the referendum to help fund housing assistance payments for Chicago Public Schools teachers.
Opponents have also asserted the measure would hammer the city's economy, hitting the owners of storefronts and small apartment buildings, among others, resulting in higher taxes for them and higher rents and home prices for residents of the city.
The Illinois Policy Institute has also noted the referendum will likely only generate a fraction of the revenue that referendum supporters have claimed will be raised. They pointed to the city of Los Angeles, where a similar tax hike referendum only brought in about 15% of the revenue city officials had promised.
In Cook County court, Judge Kathleen Burke had sided with the business groups. While her ruling did not include detailed explanations of her reasoning, observers understood that Burke had invalidated the referendum on the grounds that it unconstitutionally asked voters two questions in one referendum, namely, whether taxes should be increased on some properties, while decreased on others.
On appeal, however, First District Appellate Justice Raymond Mitchell and his colleagues said Burke had improperly ruled on the matter altogether, because they said they believed legal precedent do not allow courts to hear pre-election challenges to referendums placed on the ballot by lawmaking bodies, like the Chicago City Council.
They said such court challenges would amount to interference by courts in the so-called "legislative process." They ruled courts can only hear constitutional challenges to the validity of referendums after they have been approved and have become law.
In the petition to the Illinois Supreme Court, the business groups' attorneys said Mitchell and his colleagues said that ruling would empower the Chicago City Council and other city councils, village boards and county boards across Illinois to use the referendum process to abuse the constitution at will, with no oversight.
They noted in this case, the BCH referendum appears to easily violate the state constitution's "free and equal elections" clause by allowing the city to confuse voters with two different questions in one ballot measure.
"As a result of this combination, a voter wishing to support the (tax) decrease portion alone must also support the increase with the same vote, and a voter wishing to support only the increase, must also support the decrease," they said.
They further noted the appellate decision conflicts with the Illinois Supreme Court's own recent ruling, in which the state high court in 2022 took on a pre-election challenge to referendums placed on the ballot by the village board in suburban Dolton, and ruled those referendums were illegally put before voters because they were "fatally vague and ambiguous," in violation of the "free and equal elections" clause.
And the challengers said the appellate decision, if allowed to stand, would set up a system under which referendums placed on the ballot by voters themselves can be challenged in court and invalidated before an election, but not referendums placed on the ballot by lawmakers.
"Why questions initiated by citizens should get more judicial scrutiny than questions initiated by alderpersons, the Court does not say," the challengers wrote in their petition. "The free and equal elections clause draws no such distinction."
The city of Chicago has not yet responded to the petition for leave to appeal.
And the Illinois Supreme Court has not yet ruled on the petition, or the request to speed up consideration.
BOMA and its coalition partners are represented on the appeal by attorneys Michael J. Kasper, of Chicago, and Michael T. Del Galdo and Cynthia S. Grandfield, of the Del Galdo Law Group, of Berwyn.
Kasper has developed a reputation of one of Illinois' top election lawyers, having served as former general counsel for the Illinois Democratic Party. He has represented former Illinois House Speaker Michael Madigan and former presidents Barack Obama and Bill Clinton in Illinois.
Kasper notably represented Madigan allies in knocking from the ballot a citizen-initiated referendum that would have allowed Illinois voters to decide whether to amend the state constitution to strip from Madigan and his political successors the power to draw state legislative district boundaries.
Illinois Democrats have repeatedly used that power to boost their supermajority in the Illinois General Assembly, and to redraw Illinois Supreme Court district boundaries in 2021, allowing them to increase their partisan majority on the state Supreme Court.
Kasper has also notably helped current Illinois House Speaker Emanuel "Chris" Welch and other state officials, including Gov. JB Pritzker, to defend the so-called SAFE-T Act against constitutional challenges, including before the Illinois Supreme Court. That law abolished cash bail in Illinois.