Aurora referendum questions still uncertain as Illinois early voting nears

AURORA - The fight over a proposed recall system in Aurora is moving forward, but questions remain about whether two referendum questions seeking to give voters the power to recall elected officials can legally appear on the November ballot.

Aurora referendum questions

What we know:

The Aurora Electoral Board heard oral arguments from attorneys representing both the objectors and supporters of the petitions. Opponents argued the proposed recall system conflicts with Illinois election law and would create a special election process that does not currently exist.

The board ultimately did not remove the questions based on those constitutional and statutory arguments, but the issue is not settled. One of the central arguments from opponents is that Aurora cannot simply create a new special election through a referendum.

Attorney John Fogarty, representing the proponents, argued the Illinois Constitution gives home-rule municipalities the authority to establish the manner of selection and terms of their officers through referendum.

'If you read the question, it's a yes or no question, but it is, 'shall the city of Aurora adopt the following electoral system' it's a yes or it's a no," said Fogarty. "If you like everything don't like something so much that you don't want it then it's a no."

The objectors disputed that interpretation, pointing to a 1970 Illinois constitutional provision involving home-rule powers and arguing that no municipality in Illinois has successfully enacted a recall referendum that has been upheld by a court.

"There's nothing in the election code that talks about the procedures we follow for a non-partisan election," said Ed Mullen, lawyer for objectors. "What they're trying to do is create a special election for a non-partisan candidate on a date that is not an existing election and that is something that has never been done and part of the reason for that is because there is nothing in the code to refer to determine how to run this particular special election."

Under the proposed system, a special election would be needed to replace the recalled official. But opponents questioned what rules would govern that election, including how candidates would file, whether a primary would be required and how the election would fit within existing state election law. Mullen argued the referendum leaves too many unanswered questions.

"How do we answer those questions? We can't. It's all speculation, it's all interpretation, it is not set forth in the statute, it's not set forth in the referendum and therefore the referendum is not self-executing, because it is not self-executing it is not a valid referendum," said Mullen. 

Fogarty pushed back, arguing that while there would inevitably be details election officials would have to work out, those details are not material to the underlying question of whether voters should have the constitutional authority to establish a recall process.

"There will need to be things that have to happen to hold the next election, but we argue that any of those items are not the material items. Material items are set forth plainly in the referendum question," said Fogarty.

He also pointed to Mount Prospect as another municipality that has a recall process on its books. Fogarty argued thousands of Aurora residents signed the petitions because they want a way to hold elected officials accountable between elections.

"Waiting until the next election is a long time and so this movement, as such as it is, has been brought forth and with some alacrity," said Fogarty. "When the people are saying we want some of that authority back we would suggest now is the time to say yes, you may."

Signature challenges:

The board also heard arguments over the validity of individual petition signatures. Objectors challenged signatures where the petition did not include the signer's county of residence. The proponents argued courts have found that omission alone does not necessarily invalidate a signature if there has been substantial compliance with the petition requirements.

There were also questions about addresses provided by petition circulators, including an allegation that one circulator used a police station address. The objectors argued the petition sheet should be rejected. The proponents countered that Illinois courts have previously found that an incorrect circulator address, by itself, is not enough to invalidate an entire petition sheet.

The board has not yet completed its examination of all of the signatures. Kane County's portion of the review is complete, while DuPage County was expected to finish its examination sometime the following week. Signatures from Will and Kendall counties also remain part of the review. The objectors and proponents disagree over how many valid signatures are ultimately required, including questions about split precincts and which Aurora voters live in portions of townships outside the city. The city tells Fox Chicago the answer about the number of signatures will be decided next Tuesday.

What we don't know:

The biggest unresolved question is whether the two referendum questions will ultimately qualify for the November ballot. The board still has to consider the remaining signature challenges and the broader legal arguments. 

The board also heard arguments about whether the two questions can appear on the ballot at the same time.

Mullen cited the previous Dolton recall effort, arguing that the courts found problems with attempting to establish the recall procedure and use it simultaneously. 

The proponents, however, maintain the proposed recall and vacancy procedures are adequately laid out in the referendum language. 

The board also questioned whether Aurora's existing municipal code provisions concerning vacancies could conflict with the proposed recall system. At one point during the hearing, a board member acknowledged the confusion surrounding the term "special election" and whether the referendum and existing election code are using the term in the same way.

What's next:

The Electoral Board continued the case to Friday, Sept. 11 at 8:30 a.m. The next hearing is expected to include an evidentiary hearing and arguments based on briefs submitted by the parties. 

The parties are expected to submit briefs addressing the statutory and constitutional issues by Sept. 8. The deadline was extended during the hearing to 10 p.m. The board is also waiting for the remaining county signature examinations to be completed. 

Officials said they hope to have the record examination finished before the Sept. 11 hearing.