The Bring Chicago Home ballot measure just survived a legal challenge — and unless the Illinois Supreme Court orders otherwise, the question will remain on the ballot and the Chicago Board of Elections will count each vote cast on March 19.
The measure itself is straightforward, if wordy. It restructures the real estate transfer tax from a flat tax to a progressive tax in order to raise funds to address homelessness. And because part of that restructuring involves increasing the transfer tax on high-priced real estate, the Illinois Municipal Code requires voter approval, which is what Bring Chicago Home is seeking.
Opponents of the measure want to make Bring Chicago Home sound both confusing and nefarious. The now-dismissed lawsuit brought by the Building Owners and Management Association and other real estate interests claimed that the ballot measure is improper “logrolling” because the measure would not only increase the tax rate on some properties but also would reduce the tax rate on the first $1 million of any real estate sale. Without a clear legal basis for this claim, they gesture to a variety of different statutes, constitutional provisions and cases, but none of those says what they claim.
On Wednesday, the Illinois Appellate Court refused to engage with the merits of these arguments and dismissed this lawsuit outright as an improper attempt to pass on the measure before it is enacted into law.
BOMA has now appealed this decision to the Illinois Supreme Court, and it, or others, may decide to revive the challenges if the measure passes. But in my view, whether considered now or after the referendum, BOMA’s complaints about the ballot measure are entirely misguided. The state Supreme Court has made clear that a piece of legislation that combines seemingly unrelated provisions is not improper “logrolling” if those provisions all relate to the primary subject of the legislation.
Consider the 2011 case Wirtz v. Quinn, one of the cases that BOMA points to. Although the constitutional provision at issue in Wirtz does not even apply to ballot measures, the case actually shows why the Bring Chicago Home ballot measure is lawfully drafted. In Wirtz, the court upheld a statute that was designed to raise money to fund capital projects around the state. To accomplish that goal, the legislature included all kinds of disparate provisions, including legalizing, regulating and taxing video gaming; changing vehicle weight limits on highways and increasing fines for overweight vehicles; and authorizing and evaluating a pilot program for running the state lottery on the internet.
Because all of these and many other provisions were part of the legislature’s effort to do a big and complicated thing — raise money for capital projects — the Illinois Supreme Court upheld the law.
The Bring Chicago Home ballot measure is a substantially simpler version of the law at issue in Wirtz v. Quinn. The city is trying to address a public policy problem and needs to raise additional revenue to do so. Restructuring the real estate transfer tax does that. The current real estate transfer tax is $3.75 for every $500 of the transfer price. The Bring Chicago Home measure, if passed, would replace that flat rate with a progressive tax. The tax would be lower than it currently is for the first $1 million of any real estate sale — only $3 per every $500. But for larger sales, the portion of the price above $1 million would be subject to a higher rate.
Supporters of the measure estimate that this restructured tax would raise at least an additional $100 million of revenue annually, beyond what the current flat tax brings in, and the ballot measure provides that this additional revenue “is to be used for the purpose of addressing homelessness, including providing permanent affordable housing and the services necessary to obtain and maintain permanent housing in the City of Chicago.”
In any tax restructuring, some taxpayers may benefit and some may not. That fact does not make such a ballot measure improper, unfair or illegal, but that is the crux of the opponents’ argument. Even the Illinois Municipal Code, which does require voter approval for real estate transfer tax increases, does not say that a restructuring containing increases and decreases is improper for a ballot measure.
Nothing in Illinois law precludes Chicago voters from deciding whether Bring Chicago Home is a good idea. In the words of the Illinois Appellate Court: Bring Chicago Home is “a question wisely entrusted not to judges but to the people of the city of Chicago.”
Carolyn Shapiro is associate dean for academic administration and strategic initiatives at the Illinois Institute of Technology’s Chicago-Kent College of Law, as well as co-director of the college’s Institute on the Supreme Court of the United States.