Chicago Board of Election Commissioners
Marisel Hernandez, chairwoman of the Chicago Board of Election Commissioners, speaks at the Loop Super Site on the first day of early voting for the presidential primary election, Thursday, Feb. 15, 2024. The board voted Tuesday to appeal a Cook County judge's decision to invalidate the Bring Chicago Home referendum. Pat Nabong / Chicago Sun-Times
Chicago Board of Election Commissioners
Marisel Hernandez, chairwoman of the Chicago Board of Election Commissioners, speaks at the Loop Super Site on the first day of early voting for the presidential primary election, Thursday, Feb. 15, 2024. The board voted Tuesday to appeal a Cook County judge's decision to invalidate the Bring Chicago Home referendum. Pat Nabong / Chicago Sun-Times

The legal fight over a referendum asking voters if Chicago should increase the real estate transfer tax on high-end properties to fund homelessness prevention will continue.

The Chicago Board of Election Commissioners decided Tuesday it will appeal a ruling invalidating a referendum question known as Bring Chicago Home. The proposal is one of Mayor Brandon Johnson’s top priorities and has been a longtime goal of progressive organizers.

In the meantime, the question remains on the ballot for people casting their ballots early or who are receiving it by mail. Both advocates and opponents to the ballot question encourage people to vote on the question, even though a Cook County judge ruled the question invalid on Friday.

Real estate industry groups who sued to block the proposal argue it violates state law by combining both a tax cut and a tax hike in the same question and that the language of “addressing homelessness” is too vague.

But supporters who have been trying for years to put the question before voters argue the city needs a dedicated funding source to address the rising number of people experiencing homelessness, and they estimate 93% of property sales will see a tax cut under the plan.

The Chicago Board of Election Commissioners reiterated at Tuesday’s meeting that they don’t believe they’re the proper defendant in the case.

“We’re simply, in a way, the messenger here printing the referendum on the ballot and that’s the extent of our work here with respect to this referendum,” the board’s chairwoman, Marisel Hernandez, said.

The board’s decision comes a day after the city’s Law Department filed an appeal of its own and asked for Cook County Judge Kathleen Burke’s ruling to be stayed.

Burke not only ruled the referendum question to be invalid, but also declined to dismiss the lawsuit and denied letting the city intervene as a party in the case. Burke provided little rationale for her decision in court Friday, and a written order Monday did not expound on the reasoning behind her decision.

It ordered the Chicago Board of Elections not to count any votes cast on the referendum question or make any votes on the matter public.

With the March 19 primary election less than a month away, time is ticking while the courtroom fights continue.

Here’s an overview of what voters need to know given the current situation.

If the referendum has been ruled invalid, why will I still see it on my ballot?

Burke ordered any votes cast for or against the referendum question to not be counted and for the results to not be publicly released. It’s a common directive in cases when a candidate has been removed from the ballot, and it’s done instead of stopping voting or recalling ballots, a Board of Elections spokesman previously said.

Some voters have also already weighed in on the question while early voting has been underway. Vote-by-mail ballots have been printed with the question, and it has appeared on ballots on voting machines during in-person early voting. Early voting and vote-by-mail aren’t being paused.

But a future order by a higher court could change this.

Should Chicagoans still vote on the ballot question?

Yes, voters can and should still vote on the question as it appears on the ballot, said Michael Forde, a managing partner of the Forde & O’Meara law firm who successfully defended former Mayor Rahm Emanuel over residency challenges in the 2011 mayoral election.

“Voters should absolutely treat this as if it were a live issue and a binding referendum because there’s no telling what the appellate court might end up doing,” Forde said. “And the appellate court might end up saying that, ‘We’re going to count the results.’ I think it’s unlikely, but it’s a possibility and not one that the voters can rule out.”

It’s a directive groups both for and against the referendum are also echoing.

“People can still go out and vote for the referendum. The referendum is still on the ballot. No one should stop voting for the referendum just because of (the judge’s) order,” said Ed Mullen, an election attorney representing the Bring Chicago Home campaign.

The Building Owners and Managers Association of Chicago is one of the real estate industry groups that sued to block the ballot question. Amy Masters, the group’s director of government and external affairs, said they will “continue to educate voters why this tax hike will hurt Chicago’s downtown and the entire city.”

Who’s appealing the case?

The Chicago Board of Elections is the named defendant in the lawsuit, but they argue they’re not the proper party. In filings, attorneys for the board wrote that the board’s duties are to administer elections — and that deciding whether referendum questions are legal or not is outside the scope of its authority.

Adam Lasker, an attorney for the board, said Tuesday that election code gives the board the authority to rule upon the legality of referendum questions created by petition — but not by a public body such as the City Council.

“It’s a bad precedent to say that the city of Chicago cannot defend its own referendum. I would therefore request that this board authorize the appeal,” Lasker said.

The city also filed an appeal of its own, though it’s not a party to the case after Burke denied their attempt to intervene.

In a motion to stay Burke’s rulings, city attorneys argue the Board of Elections wasn’t authorized to speak to the substantive arguments, like whether the referendum question violates state law. Since the city wasn’t allowed to intervene, those arguments weren’t raised, city attorneys wrote.

“The Court’s injunction (granted at Plaintiffs’ request) interrupts and precludes the City’s legislative process. The City not only has an interest in seeing its legislative process continue unimpeded but has an interest in protecting its citizens’ right to vote as part of the process required by law,” the city’s motion for a stay read.

When could an appeal be decided?

Election day is less than a month away. Forde said the tight timeline could make it difficult for the appeals process to be completed before March 19.

“There’s just not much time to get effective review of any of these things,” Forde said.

Max Bever, a spokesman for the Board of Elections, said it’s their hope a decision will be reached quickly. “The next real big deadline” is April 9, the last day for the board to proclaim the official results of the election, Bever said.

“Ultimately, we’ll see what courts decide,” Bever said. “We’ll see what timelines they move upon.”

If a higher court were to reinstate the ballot question, Mullen said the votes could be counted and released even after the March 19 primary.

“Normally that happens before Election Day, but it doesn’t have to,” Mullen said.

Forde said it’s entirely possible a final decision on the referendum’s status and whether it is legally valid may not come until after the March 19 primary. But as a practical matter he said he believes it’s extremely unlikely a court would retroactively find the votes valid.

“It’s very hard for a court to say, ‘Well, there’s a fair way to treat this as if everybody assumed that this was a live referendum, even though the newspapers on the morning of Feb. 26 said it wasn’t.’ It’s very, very hard to put the genie back in the bottle,” Forde said. “I think that the best that the supporters of the referendum can hope for is that a court reaches a different ruling than the trial court … and then maybe it goes on the ballot in November.”

Why do voters need to approve this?

It’s required by state law. Illinois statute mandates that a majority of voters must authorize any increase to the real estate transfer tax or addition to the transactions the tax applies to. State law even mandates how the question must be worded and steps that have to be taken, such as holding a public hearing.

The City Council needs voters to approve the proposal for alderpersons to have the authority to actually enact it.

Tessa Weinberg covers Chicago government and politics for WBEZ.

Chicago Board of Election Commissioners
Marisel Hernandez, chairwoman of the Chicago Board of Election Commissioners, speaks at the Loop Super Site on the first day of early voting for the presidential primary election, Thursday, Feb. 15, 2024. The board voted Tuesday to appeal a Cook County judge's decision to invalidate the Bring Chicago Home referendum. Pat Nabong / Chicago Sun-Times
Chicago Board of Election Commissioners
Marisel Hernandez, chairwoman of the Chicago Board of Election Commissioners, speaks at the Loop Super Site on the first day of early voting for the presidential primary election, Thursday, Feb. 15, 2024. The board voted Tuesday to appeal a Cook County judge's decision to invalidate the Bring Chicago Home referendum. Pat Nabong / Chicago Sun-Times

The legal fight over a referendum asking voters if Chicago should increase the real estate transfer tax on high-end properties to fund homelessness prevention will continue.

The Chicago Board of Election Commissioners decided Tuesday it will appeal a ruling invalidating a referendum question known as Bring Chicago Home. The proposal is one of Mayor Brandon Johnson’s top priorities and has been a longtime goal of progressive organizers.

In the meantime, the question remains on the ballot for people casting their ballots early or who are receiving it by mail. Both advocates and opponents to the ballot question encourage people to vote on the question, even though a Cook County judge ruled the question invalid on Friday.

Real estate industry groups who sued to block the proposal argue it violates state law by combining both a tax cut and a tax hike in the same question and that the language of “addressing homelessness” is too vague.

But supporters who have been trying for years to put the question before voters argue the city needs a dedicated funding source to address the rising number of people experiencing homelessness, and they estimate 93% of property sales will see a tax cut under the plan.

The Chicago Board of Election Commissioners reiterated at Tuesday’s meeting that they don’t believe they’re the proper defendant in the case.

“We’re simply, in a way, the messenger here printing the referendum on the ballot and that’s the extent of our work here with respect to this referendum,” the board’s chairwoman, Marisel Hernandez, said.

The board’s decision comes a day after the city’s Law Department filed an appeal of its own and asked for Cook County Judge Kathleen Burke’s ruling to be stayed.

Burke not only ruled the referendum question to be invalid, but also declined to dismiss the lawsuit and denied letting the city intervene as a party in the case. Burke provided little rationale for her decision in court Friday, and a written order Monday did not expound on the reasoning behind her decision.

It ordered the Chicago Board of Elections not to count any votes cast on the referendum question or make any votes on the matter public.

With the March 19 primary election less than a month away, time is ticking while the courtroom fights continue.

Here’s an overview of what voters need to know given the current situation.

If the referendum has been ruled invalid, why will I still see it on my ballot?

Burke ordered any votes cast for or against the referendum question to not be counted and for the results to not be publicly released. It’s a common directive in cases when a candidate has been removed from the ballot, and it’s done instead of stopping voting or recalling ballots, a Board of Elections spokesman previously said.

Some voters have also already weighed in on the question while early voting has been underway. Vote-by-mail ballots have been printed with the question, and it has appeared on ballots on voting machines during in-person early voting. Early voting and vote-by-mail aren’t being paused.

But a future order by a higher court could change this.

Should Chicagoans still vote on the ballot question?

Yes, voters can and should still vote on the question as it appears on the ballot, said Michael Forde, a managing partner of the Forde & O’Meara law firm who successfully defended former Mayor Rahm Emanuel over residency challenges in the 2011 mayoral election.

“Voters should absolutely treat this as if it were a live issue and a binding referendum because there’s no telling what the appellate court might end up doing,” Forde said. “And the appellate court might end up saying that, ‘We’re going to count the results.’ I think it’s unlikely, but it’s a possibility and not one that the voters can rule out.”

It’s a directive groups both for and against the referendum are also echoing.

“People can still go out and vote for the referendum. The referendum is still on the ballot. No one should stop voting for the referendum just because of (the judge’s) order,” said Ed Mullen, an election attorney representing the Bring Chicago Home campaign.

The Building Owners and Managers Association of Chicago is one of the real estate industry groups that sued to block the ballot question. Amy Masters, the group’s director of government and external affairs, said they will “continue to educate voters why this tax hike will hurt Chicago’s downtown and the entire city.”

Who’s appealing the case?

The Chicago Board of Elections is the named defendant in the lawsuit, but they argue they’re not the proper party. In filings, attorneys for the board wrote that the board’s duties are to administer elections — and that deciding whether referendum questions are legal or not is outside the scope of its authority.

Adam Lasker, an attorney for the board, said Tuesday that election code gives the board the authority to rule upon the legality of referendum questions created by petition — but not by a public body such as the City Council.

“It’s a bad precedent to say that the city of Chicago cannot defend its own referendum. I would therefore request that this board authorize the appeal,” Lasker said.

The city also filed an appeal of its own, though it’s not a party to the case after Burke denied their attempt to intervene.

In a motion to stay Burke’s rulings, city attorneys argue the Board of Elections wasn’t authorized to speak to the substantive arguments, like whether the referendum question violates state law. Since the city wasn’t allowed to intervene, those arguments weren’t raised, city attorneys wrote.

“The Court’s injunction (granted at Plaintiffs’ request) interrupts and precludes the City’s legislative process. The City not only has an interest in seeing its legislative process continue unimpeded but has an interest in protecting its citizens’ right to vote as part of the process required by law,” the city’s motion for a stay read.

When could an appeal be decided?

Election day is less than a month away. Forde said the tight timeline could make it difficult for the appeals process to be completed before March 19.

“There’s just not much time to get effective review of any of these things,” Forde said.

Max Bever, a spokesman for the Board of Elections, said it’s their hope a decision will be reached quickly. “The next real big deadline” is April 9, the last day for the board to proclaim the official results of the election, Bever said.

“Ultimately, we’ll see what courts decide,” Bever said. “We’ll see what timelines they move upon.”

If a higher court were to reinstate the ballot question, Mullen said the votes could be counted and released even after the March 19 primary.

“Normally that happens before Election Day, but it doesn’t have to,” Mullen said.

Forde said it’s entirely possible a final decision on the referendum’s status and whether it is legally valid may not come until after the March 19 primary. But as a practical matter he said he believes it’s extremely unlikely a court would retroactively find the votes valid.

“It’s very hard for a court to say, ‘Well, there’s a fair way to treat this as if everybody assumed that this was a live referendum, even though the newspapers on the morning of Feb. 26 said it wasn’t.’ It’s very, very hard to put the genie back in the bottle,” Forde said. “I think that the best that the supporters of the referendum can hope for is that a court reaches a different ruling than the trial court … and then maybe it goes on the ballot in November.”

Why do voters need to approve this?

It’s required by state law. Illinois statute mandates that a majority of voters must authorize any increase to the real estate transfer tax or addition to the transactions the tax applies to. State law even mandates how the question must be worded and steps that have to be taken, such as holding a public hearing.

The City Council needs voters to approve the proposal for alderpersons to have the authority to actually enact it.

Tessa Weinberg covers Chicago government and politics for WBEZ.