Illinois Supreme Court got it wrong on term limits in ‘94

May 15, 2014
By Jacob Huebert

The following opinion piece by Jacob Huebert was featured in the State Journal Register on Thursday May 15, 2014

Illinoisans want term limits. Polls consistently show it, and a petition drive to put a term-limits measure on the ballot this November collected nearly double the amount of signatures the law requires.

But a few people in the state want to stop the people from getting what they’re demanding.

A lawsuit filed by attorney Michael Kasper, a longtime associate of House Speaker Mike Madigan, claims voters are not allowed to put term limits on the ballot, this year or ever.

The suit relies on an Illinois Supreme Court decision that kept a term-limits measure off the ballot in 1994. But that decision shouldn’t stand in the way of voters getting to decide on term limits now.

Under the Illinois Constitution, voters only can amend the portion of the Constitution that concerns the legislature, and even there, a ballot initiative only can propose an amendment related to “structural and procedural subjects.” A narrow majority of the Supreme Court ruled that this means proposed amendments must be both structural and procedural and that term limits are neither.

The court, however, got it wrong. There’s a reason why the framers empowered voters to change this particular aspect of the Constitution: Voters need to be able to enact reforms affecting the legislature because the legislature never is going to reform itself.

Term limits are exactly the sort of reform that most Illinois politicians, who do everything they can to keep themselves in power as long as possible, never would impose on themselves. The only way term limits ever happen is if the people can make the change at the ballot box.

In other words, term limits are exactly the type of provision the Constitution’s framers thought citizens should be allowed to propose and vote on.

What the framers intended to prohibit were amendments that would make substantive changes to the law — for example, amendments that would prevent the General Assembly from making laws on certain subjects or allow it to make laws on new subjects.

They also didn’t want Illinois’ Constitution to be cluttered, as some states’ constitutions are, with minor matters that should be addressed through ordinary legislation.

This isn’t just a common-sense reading of what the Illinois Constitution says; it’s also what its framers said explicitly when they included this provision.

Even if we accept the court’s reading of the Constitution from 1994, that shouldn’t keep the new proposal off the ballot now. The earlier measure only involved term limits. The new one, however, would make more, deeper changes. It would increase the number of House districts, reduce the number of Senate seats and increase the percentage of votes needed to override a governor’s veto.

If those changes, taken together, are not “structural and procedural,” then nothing is.

The current lawsuit against term limits — which also challenges another proposed ballot measure that seeks to end partisan redistricting — is not actually motivated by concern for what the Constitution requires but by a desire to protect the political status quo against citizens who have had enough of it.

Fortunately, the Illinois Supreme Court does not have to stick with its mistaken decision of two decades ago. The justices’ duty is to uphold the Constitution, not what a handful of other judges have said. (Only one justice from the 1994 remains on the bench.)

They can look at what the Constitution actually requires, they can rule that the earlier decision was incorrect and they can — and should — let the people decide whether Illinois will have term limits.

Read more here.