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McHenry County clerk erred in township ballot issue, Illinois Supreme Court rules

Despite being rejected in March, a similar ballot proposition on dissolving McHenry Township should have been on the November ballot, the court upholds

McHenry County State's Attorney's Office lawyer Norm Vinton argues in front of the Illinois Supreme Court on Jan. 19, 2022, on behalf of McHenry County Clerk Joe Tirio, who is challenging an appellate court ruling that he erred by keeping a McHenry Township ballot question that sought to abolish the local government from being decided by voters in the November 2020 election. He struck the referendum from the ballot because state law prohibits identical ballot questions from being asked in the same 23-month period, and McHenry Township voters turned down an effort to dissolve the agency just months before the fall 2020 election.

The McHenry County clerk did not have the authority to throw out a McHenry Township ballot question, even if it was almost identical to a question rejected months earlier, the Illinois Supreme Court said in a decision Wednesday.

The legal battle centered on whether a referendum question put forth by McHenry Township trustees asking voters if they wanted to dissolve the township should have remained on the November 2020 ballot.

The Supreme Court’s decision was unanimous and upholds a similar ruling by the Illinois 2nd District Appellate Court last year.

“When a township board of trustees in McHenry County adopts a resolution to initiate and submit to the voters a public question to dissolve the township, the proposition must adhere to Article 28 of the Election Code,” the opinion, which was written by Justice Michael Burke, concluded. “The relevant section did not authorize the county clerk to prohibit the dissolution proposition from appearing on the ballot.”

McHenry County Clerk Joe Tirio had removed the question from the ballot because it was similar to another referendum, on the ballot through voter petition in March 2020, that failed. Tirio pointed to a section of election law that states identical ballot initiatives cannot appear within 23 months of one another.

The Supreme Court decision said another part of the law makes it so that the clerk is not authorized to make that determination.

“Statute specifically says that if presented with something that is prohibited, I’m supposed to turn it back, in this case to the township clerk,” Tirio said at the time of the appellate court decision.

McHenry County Clerk Joe Tirio works in his office the morning of Thursday, Jan. 20, 2022, in Woodstock, the day after the Illinois Supreme Court heard oral arguments in McHenry Township's court case against the Clerk's Office over the township's 2020 abolition attempt.

Originally, the McHenry County court had ruled that Tirio’s decision was valid, a ruling that then was overturned by the appellate court. The Supreme Court’s decision means the appellate court’s ruling stands.

The township trustees argued that not only was the clerk’s office unauthorized to remove the ballot question, but that the different dates meant that the ballots were not identical. The Supreme Court did not rule on whether the questions were identical.

The court had heard oral arguments on the case in January, but not from the attorney who filed the lawsuit on behalf of the township.

By the time oral arguments occurred, the McHenry Township Board of Trustees was controlled by more pro-township elements and no longer included members who had pushed the initial proposition, including Bob Anderson and Steve Verr.

Anderson, a retired barber shop owner from Wonder Lake, praised the court’s ruling and said he would work to try to get the question of dissolving McHenry Township back on future ballots.

“All along I thought that Tirio was wrong,” Anderson said. “He took the law into his own hands when he refused to put the question on the ballot. This is a victory for the voters and is a good precedent for the future.”

The state Legislature currently is weighing a repeal of the state law that allows voters in McHenry County to dissolve their local townships. The law has faced criticism from county officials who have said it offers no guidance on what should happen if a township actually is dissolved and questioned why it applies only to McHenry County.

Anderson said that although he does not support a repeal of the law, he agreed that the law should apply to all Illinois counties.

The current McHenry Township Board of Trustees no longer wishes to pursue dissolution, the Supreme Court noted in its opinion.

“Both parties’ positions are aligned against the result,” Burke wrote in the opinion.

Attempts to reach Tirio or current McHenry Township trustees Friday afternoon were unsuccessful.