Two attempts to block the Nov. 8 referendum on whether or not to keep the Peoria County Auditor office failed in the last month as Judge James Mack denied requests by Peoria County Auditor Jessica Thomas and community advocate Karrie Alms for injunctions.
Mack on Sept. 30 denied the first motion, filed Sept. 21, and Thomas and Alms on Oct. 11 filed a second motion for an injunction, which Mack denied on Oct. 19.
“The plaintiffs have not prevailed,” Mack said after oral arguments Oct. 19.
On Sept. 15, Alms and Thomas originally sued the Peoria Election Commission (PEC) seeking to block the referendum entirely, and since then asked the court for injunctions to stop the Nov. 8 ballot question, the counting of its votes, or the canvassing or certifying results of the vote.
Thomas and Alms say the referendum question was improperly filed with the election commission since they say it missed a deadline for submitting it to the PEC.
“The resolution was untimely filed and the language of the referendum is manipulative and unfair,” Thomas/Alms’ lawyers say.
The County doesn’t dispute the date when the question’s correct language was delivered to the PEC.
Peoria County Clerk Rachael Parker sent the PEC an incorrect draft of the referendum on Aug. 19 and after realizing her mistake sent the correct version, marked nunc pro tunc (“now for then”), on Aug. 26.
However, since the referendum language was approved by ordinance, its deadline wasn’t the same as questions submitted by petitioners, and that was met, said Peoria County Assistant State’s Attorney Jennie Boswell, representing the PEC.
Ballot questions are treated differently, she said, noting that a “referendum petition … is fundamentally different than resolutions or ordinances passed by governmental bodies to place a question on a ballot.”
State law says resolutions or ordinances by governing bodies must be adopted not less than 79 days before an election, and the Peoria County Board did so 89 days before the Nov. 8 election, she said.
“Plaintiffs’ arguments that this referendum was filed late applies to referenda by petitions, not referenda adopted by governing boards,” Boswell said. “There … was no missed deadline.”
Further, Boswell added, “the public and the County Board members knew what referendum language was adopted by the County Board because only the referendum had ever been debated and voted upon.”
The language was published July 22, before the County Board Executive Committee met on July 26, when it was approved 11-2. It again was published Aug. 5 prior to a full County Board meeting Aug. 11, when it was adopted 15-2 “with Plaintiff Thomas in attendance,” Boswell said.
Thomas/Alms’ lawyers in their Oct. 11 filing conceded that “a ‘nunc pro tunc’ order is an entry now for something previously done, made to make the record speak now for what was actually done,” but they argued that ‘nunc pro tunc’ is a judicial power limited to incorporating into the record something which was actually done by the court but inadvertently omitted by clerical error.
In a sworn affidavit, Parker said she “personally announced and recorded the vote … but, mistakenly, I sent an incorrect draft version of the referendum to the election commission. The incorrect version was never a part of any Board meeting or committee packet, and was never read, voted on, or adopted by the Board.”
The delivery of the draft language was a clerical error, which can be corrected, Boswell said. “If … a clerical error like this can never be corrected, then any county employee could stop or change a ballot referendum by simply sending the wrong document, never allowing the public to vote on the correct matter,” she said.
Boswell argued that government bodies must adopt, not file, measures to appear on ballots, and the judge agreed.
The law “clearly says ‘adopted,’ ” Mack said.
Commenting on the second request for an injunction, Boswell said, “They’re throwing the kitchen sink to stop this election from happening. They want to take the decision from the electorate.”
Apart from the timeliness issue, Alms and Thomas’ lawyer, Andrew McCall, said the question has “loaded” language. “Voters should not be tricked by a misleading question.”
Boswell argued since wording was public for weeks, Thomas and Alms “could have lobbied for a change in the language.”
In remarks announcing his denial, Mack added, “Courts defer to legislatures’ language. That’s just the way it is.
“It doesn’t invalidate it.”
Peoria County in 2018 had a similar referendum with the decision to keep the County Auditor post earning 19 votes more than the 11,033 who favored eliminating the office.
A case-management hearing on Thomas’s initial lawsuit against Peoria County is set for Feb. 27.