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So You Want To Dissolve An Election Commission …

Voter at a precinct
Carleigh Gray
A voter at an Illinois State University polling place in the March 2018 primary.

Republicans and Libertarians are trying to kill the Bloomington Election Commission (BEC).

It’s not the first time someone’s wanted to do that. After all, it’s a little odd that Bloomington has its own election authority when everyone else in the county votes through the county clerk’s office.

Barring a successful challenge by Denise Williams (backed by McLean County Democrats), the 1,300 signatures collected by Republicans and Libertarians will be enough to put a question on November’s ballot. It will ask Bloomington voters if they want to dissolve the BEC. That would fold its election duties into the county clerk, currently Republican Kathy Michael.

A hearing is set for Monday on Williams’ challenge; the judge’s final decision on whether it makes the ballot is required by Aug. 30. Until then, GLT spoke to a half-dozen election lawyers from around the state, plus local officials, to clear up confusion about how it might work.

Why Do It?

The argument from those who want to dissolve the BEC is that it’s inefficient—i.e., wasting money—to have two separate election authorities with two staffs, two sets of equipment, two websites, etc. They also say it’s potentially confusing to voters who have to figure out which election authority to go to for questions or other needs.

Who Opposes It?

Several local Democrats, including McLean County Board members Erik Rankin (also Democratic Party chair) and Carlo Robustelli, say they don’t want the BEC to be dissolved without also moving to a countywide election commission to replace it. They don’t want election duties folded into the county clerk’s office because it’s partisan, meaning the office-holder is a Republican, Democrat, or from another party. They say a nonpartisan, professionally managed (i.e., not elected) countywide election commission would better serve voters.

Carlo Robustelli
Credit Judith Valente / WGLT
McLean County Board member Carlo Robustelli, a Democrat.

Robustelli said it’s not about current County Clerk Kathy Michael, a Republican. He said he’d feel the same way if Democratic challenger Nikita Richards beats Michael in November.

“For me, the most important thing is to maintain a professionally and independently run election commission,” said Robustelli. “That’s one of the things I’m worried most about, is the perception that somehow a partisan in office—whether that’s a Democrat, Republican, Libertarian, whatever—would somehow not represent or not administer an election fairly, transparently, or openly.”

In addition to Bloomington, there are a handful of city election commissions across Illinois, including Chicago, Rockford, and Galesburg. But there are only two county election commissions—Peoria and DuPage. And DuPage’s will be dissolved Jan. 1, with duties folding into the county clerk’s office. It’s expected to save $300,000 annually. County clerks do it everywhere else.

Kathy Michael, the county clerk, supports asking voters to dissolve the BEC.

“I hope this referendum gets on the ballot for voters to decide,” Michael wrote on Facebook recently. “Then, even more answers will be provided as needed. DuPage County just dissolved their commission and placed duties into the county clerk's office. That's a big county; big decision. If the commission was working, wouldn't the decision have gone the other way? Voters should decide. It's a great concept.”

How Do You Create A Countywide Election Commission?

This is where it gets tricky.

Those who collected the 1,300 signatures for the referendum that might kill the BEC aren’t doing it specifically to create a countywide election commission later.

Libertarians, at least, are not ruling out the possibility, though they don’t currently hold any seats on the McLean County Board.

“I have heard some Democrat friends say that they would prefer a countywide independent authority over the Clerk administering elections,” McLean County Libertarian Party chair Steve Suess said on Facebook. “Assuming that would be cost neutral, I do not disagree; however, the only way to proceed in that direction is to first pass this referendum and then propose and pass a second measure to establish the countywide authority.”

Kathy Michael and Nikita Richards
McLean County Clerk Kathy Michael, left, and Democratic candidate for clerk Nikita Richards.

Suess is basically right. Six lawyers interviewed by GLT this month say state law doesn’t provide much flexibility. For counties that have a city election commission somewhere within it, you need to dissolve that first before you go countywide with a new one.

“My review of the election code suggests that only counties that do not have a city with an election commission—unless the legislature has specifically authorized them to do that—can create a countywide election commission,” said Rick Veenstra, lawyer for the City of Aurora. Voters decided in March to dissolve the Aurora Election Commission.

Who Can Create A Countywide Election Commission?

If the BEC were dissolved in November, the McLean County Board could then move to create a countywide election commission. (There are no signs it plans to do so.)

Alternatively, voters themselves could do it by referendum. They’d need at least 1,000 voter signatures, similar to the process by which the BEC referendum was pursued.

Can You Kill the BEC and Create a Countywide Commission Simultaneously?

Again, this is a gray area. Most election lawyers interviewed by GLT say no, or at least it’s not advisable.

“The debate is whether you can even put it on the ballot when there is still a city election commission, assuming that there is a simultaneous ballot question to dissolve the BEC,” said Jessica Woods, McLean County first assistant state’s attorney in the civil division. “(New McLean County State’s Attorney) Don Knapp thinks you can, I think you can’t. But neither of us really feel like we know for sure.”

Others are similarly skeptical.

“The challenge with that is, what if you have people vote no to dissolve the BEC but yes to create the countywide election commission? Then you have a conflict,” said Keri-Lyn J. Krafthefer, a lawyer and election law expert with Ancel Glink based in Naperville. Her firm has represented BEC previously but is not involved in Williams’ case.

"What if you have people vote no to dissolve the BEC but yes to create the countywide election commission? Then you have a conflict."

“The county wouldn’t have the authority to put it on the ballot as long as the city one exists. I don’t think they could put both of them on at the same time,” she said.

Seriously? No Other Options?

Local officials could ask lawmakers in Springfield to change state law to make it easier to simultaneously kill the BEC and create a new countywide commission, without election duties ever being handed over to the county clerk’s office.

Other communities have done it, winning carveouts in the notoriously vague 73-line, 1,400-word slice of state statute that governs how election commissions are birthed and die.

That’s what DuPage County did. That bill was signed by the governor July 23. That’s what Peoria did, allowing them to eliminate the Peoria Election Commission and immediately establish a Peoria County Election Commission in its place. The relic of Peoria’s change still exists in state law, with a not-so-subtle carveout for “any county with a population of less than 200,000 but more than 175,000 persons as of the 2010 federal decennial census.” (McLean County’s 2010 population was 169,572. So close.)

Robustelli, the Democratic county board member, said this legislative-carveout approach should be seriously considered.

“We haven’t done enough to explore our options,” Robustelli said. “We have never added that to our legislative agenda. I just want Bloomington voters to know that there isn’t support by those that are elected—historically and currently—and by those passing this petition, to create a McLean County Election Commission.”

At this point, if you’re thinking, “Boy, state election law is confusing,” that’s because it is.

“It’s definitely a difficult, vague area that hasn’t been updated too much, especially the municipal board of election commissioners section of the code. There’s some holes that need to be filled,” said Ross Secler, lawyer and election law expert with Odelson Sterk near Chicago who worked on the Aurora case. “It’s an odd, very often untouched area of election law.”

Could a Countywide Commission Really Be Nonpartisan?

Another tricky question.

The DuPage Election Commission—the one that’s being killed Jan. 1—had its three members appointed by the DuPage County Board chairman (a partisan). Two of the three had to be from DuPage County’s two majority political parties, the Democrats and the Republicans.

Chicago’s Board of Election Commissioners and the Peoria County Election Commission work differently. The circuit court picks those commissioners. But again, judges are generally elected.

Bloomington’s three election commissioners are appointed by the court too. Two are Republicans, one is a Democrat. The Democrat is Williams, though she filed her challenge as a voter.

“I don’t know how you achieve something where there are no political connections to the entity at all. Since it would have to be created by politicians,” said Scott Uhler, a lawyer and election law expert with Klein, Thorpe and Jenkins, Ltd. in Chicago.

Robustelli said he didn’t have a strong opinion yet about how commissioners would be appointed to the hypothetical McLean County Election Commission. So how can they be nonpartisan?

“Each individual person, of course, can have their own political beliefs and opinions,” he said. “This is as much about perception as it is reality. The county clerks of Illinois have a lot of responsibility. They’re the keeper of county records. They’re the clerk of the county board. They’re the registrar of vital records. They’re the tax extender. They have a lot of responsibility. And then they have this election component. That’s a very different priority than it would be for an administrator who was every single day waking up thinking about, how do we best administer our elections?”

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Ryan Denham is the digital content director for WGLT.