McHenry Township, McHenry County clerk lawyers clash over ballot question

McHenry County Clerk and Recorder Joe Tirio erred by declining to certify a question on dissolving McHenry Township for the November ballot, a lawyer for the township argued in court Friday.

Attorney Robert Hanlon, hired by the township for the lawsuit against the clerk’s office, contends that Tirio had no authority to enforce a statute prohibiting the same question from appearing twice on the ballot in any 23-month period.

A majority of township trustees this summer voted to again ask voters whether to dissolve the township after a March referendum asking voters to abolish the local government failed in a landslide. The initial question had been placed on the ballot through a petition, not the township’s Board of Trustees.

Tirio rejected the trustees’ bid for the November ballot, citing the timing as too soon because of a 23-month provision laid out in the Illinois Election Code.

“I understand there is a faction within this county, and perhaps other counties, that would like townships abolished, but that doesn’t necessarily mean that that question can be referred any time that those people want to be referred, regardless of [the 23-month statute],” said 22nd Judicial Circuit Associate Judge Kevin G. Costello, who presided over Friday’s hearing.

Costello said he expects to make a ruling Monday morning on whether to grant Tirio’s motion to dismiss the case.

If Costello denies that request, he then would need to make a ruling on whether the question should appear on the November ballot. If that happens, the McHenry County Clerk’s Office would have the option to appeal.

Wednesday is the deadline for certifying ballot content for November’s election.

Friday’s arguments centered on what the clerk is allowed to consider when deciding whether to certify a ballot question and whether the 23-month rule applies.

Hanlon argued that because the question to dissolve a township must, by law, be asked a certain way, it’s impossible for the question to be asked in a different way that would not trigger the 23-month prohibition. As a result, he said, the 23-month rule should not apply to these types of ballot questions.

The only difference between the March referendum and the one proposed for November is when the dissolution would become effective.

In a letter to the township rejecting the measure for this fall’s vote, Tirio pointed to the township code stating that referenda on dissolving townships must be conducted in accordance with the general election law, which means the provision would apply in this case.

Hanlon argued that the clerk went beyond “four corners of the document” in deciding not to certify it because he had to compare the language to the March question in order to reject the proposed referendum.

Attorneys from the McHenry County State’s Attorney’s Office representing Tirio pushed back against that logic, asserting it is a clerk’s duty to ensure election law is properly applied to what can and cannot appear on the ballot. That includes using personal knowledge of statute and recent ballot content to make decisions, according to the county’s lawyers, Norman Vinton and Carla Wyckoff of the McHenry County State’s Attorney’s Office.

The public does not have a way to object to questions referred to the county clerk by a legislative body, Vinton and Wyckoff said.

That’s in contrast to measures sent to the clerk for ballot certification via petition. In those cases, the public can challenge whether a petition should be certified after the petition and the collected signatures are filed with the clerk but before it is certified for the ballot.

Hanlon argued that the public does have a way to object – through the courts.

“It’s not necessarily [a clerk’s] duty to remember” what was on the ballot for elections within the past 23 months, Costello said at one point while questioning Wyckoff on Friday after Wyckoff, a former Lake County clerk, said it is the clerk’s job to print the ballot.

“It’s pretty hard to forget what’s on your ballot,” Wyckoff said.