Illinois Supreme Court to weigh in on whether McHenry County clerk overstepped his authority

The Illinois Supreme Court heard oral arguments Wednesday in a case about whether the McHenry County clerk had the power to throw a question off the November 2020 election ballot.

The referendum would have asked voters whether they wanted to abolish McHenry Township and its road district. But Clerk Joe Tirio decided not to put the question on the ballot, pointing to state law that prohibits identical ballot questions from appearing in elections within 23 months.

McHenry Township voters in spring 2020 overwhelmingly voted down a referendum to eliminate the local government in a test of a law sponsored by former state Rep. David McSweeney, a Republican from Barrington Hills, that created a new path to getting rid of a township and a road district.

Tirio appealed to the state's highest court after a panel of appellate judges last year found he erred by striking the question from the ballot.

The election proceeded without voters being asked whether they wanted to get rid of McHenry Township again, though, because the McHenry County judge who first weighed in ruled in Tirio's favor and found he had the right to block the referendum from appearing again before the 23-month period had lapsed.

A three-judge panel for the Illinois 2nd District Appellate Court last year decided to consider the case even after the election wrapped up at the request of former McHenry Township trustees and longtime critics of township government like Steve Verr and Bob Anderson.

The appellate court reversed the McHenry County court ruling in favor of Tirio, finding he was wrong to keep the question off the ballot because he had to rely on his own knowledge of state law and past elections.

"It's all about power," said Robert Hanlon, the Woodstock attorney who represented the township trustees who challenged Tirio's decision to strike the measure from the ballot. "Who has the power to make these decisions?"

The appellate court found it wasn't for Tirio to decide whether the question complied with the state law, with the appellate court agreeing with Hanlon the clerk is not allowed to use knowledge "outside the four corners" of the page holding a resolution to strike a measure from the ballot.

Instead, Hanlon argued, an "informed citizen" could have filed a lawsuit to block the ballot measure from appearing in November 2020, and the judicial system could have enforced the state law on the 23 months if it decided it applied.

McHenry Township's Board of Trustees in 2020 was held by a three-seat majority who were critics of township government. They insisted on passing a resolution to ask voters again in the presidential election because they said they felt the spring election was a low-turnout affair.

The board has since shifted politically after none of those three trustees - Anderson, Verr and Mike Rakestraw - sought new terms in last year's McHenry Township election.

The new board members instructed Hanlon to withdraw his brief to the Supreme Court and to not argue in court Wednesday.

That meant the court only heard oral arguments from Tirio's lawyers with the McHenry County state's attorney's office, Carla Wyckoff and Norm Vinton.

On Thursday, Hanlon said he was glad that Justice Michael J. Burke asked Wyckoff about whether the authority asserted by the county clerk could also be wielded by clerks of circuit courts, who handle criminal and civil case filings.

"If we adopt your approach and say the clerk could look beyond the four corners, based upon their knowledge of the law and what happened in the past, could a circuit court clerk take that opinion and say, 'This filing is against the statute of limitations. I'm giving it back to you, I'm not filing'?" Burke asked.

Wyckoff contended that a county clerk, as an election authority, has must apply his or her knowledge of the law in determining the validity of filings from other local elections officials to ensure fairness.

Hanlon said he thinks the power of county clerks and circuit court clerks are similar in that they are ministerial, meaning they can only reject documents for reasons like forgotten signatures or incorrect dates. It should be up to the courts to enforce the law on whether the filings are otherwise valid.

Voters have fewer ways to stop a ballot question filed by a governing body like McHenry Township's board than one filed through a public petition, Wyckoff said. Outside of Tirio taking action, the only other way to block this question would have been, perhaps, by a voter filing a lawsuit.

Ensuring voters are not asked the same thing within 23 months is one of the very few regulations the clerk is allowed to enforce by prohibiting a ballot measure from going to voters, Wyckoff said.

The Supreme Court will issue a decision at an unknown time in the future.