A file photo of voting booths.

A Cook County judge on Friday sided with real estate and commercial groups that had sued the Chicago Board of Elections to keep the Bring Chicago Home referendum off the March 19 primary election ballot. While voters might still be able to vote on the ballot question, the results could be suppressed if a higher court does not reverse the decision on appeal.

The fight to raise the real estate transfer tax was supported by Mayor Brandon Johnson while he campaigned for office. In a statement Friday evening, the mayor’s office said the city was disappointed, believed in the referendum’s legality and was exploring “every legal option available” to ensure voters remain the final say on the question. 

The lawsuit, filed against the Chicago Board of Elections in January, alleged that the city lacks the authority to bundle a real estate transfer tax increase on high-end sales with a tax decrease on less expensive sales — coloring it as a case of prohibited logrolling. The suit also argued that the ballot question is unconstitutional because it is not specific enough about how the revenue raised will be used.

Additionally, plaintiffs argued the referendum question violates the Illinois Constitution because it violates voters’ right to vote on each of the portions of the question separately. 

Related: Lawsuit filed with Circuit Court in effort to stop Bring Chicago Home referendum 

While Cook County Circuit Court Judge Kathleen Burke did not cite which of the arguments swayed her during a hearing Friday, she sided with plaintiffs and granted them injunctive relief. 

Burke’s ruling “invalidated” the ballot question, according to Board of Elections spokesperson Max Bever, but what that exactly means for the referendum is unknown since the court has yet to enter an order. 

Therefore, early and mail-in voting will continue with as normal “until the Board is directed otherwise,” Bever said. “The Board awaits future direction from the Circuit Court of Cook County on this matter.” 

The ballot question asks voters to give the city consent to do three things. The question asks voters to OK a decrease of the real estate transfer tax to 0.6 percent for properties under $1 million, a rate hike to 2 percent for sales between $1 million and $1.5 million and a rate hike to 3 percent for property transfers above $1.5 million. 

The resolution (R2023-0004166) that placed Bring Chicago Home on the ballot says that the 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.”   

Burke approved the plaintiffs’ motion to expedite the case and judgment. Plaintiffs argued that time was of the essence since voting for the March 19 election is already underway.

The plaintiffs include the Building Owners and Managers Association of Chicago (BOMA), Chicagoland Apartment Association, Neighborhood Building Owners Alliance (NBOA), Women Construction Owners and Executives’ Chicago chapter, Southland Black Chamber of Commerce Foundation, Chicagoland Association of Shopping Center Owners and other groups. 

“We are gratified in the judge’s ruling, which underscores the necessity of presenting policy questions to the public with fairness, detail, and transparency,” BOMA Chicago Executive Director Farzin Parang said in a news release. “This referendum would be a backdoor property tax on all Chicagoans, and it is important that our elected officials not mislead voters otherwise.” 

Chicago Coalition for the Homeless Board President Maxica Williams said in a news release that Burke’s decision was “disappointing” but “not surprising.” 

“We are outraged by the fact that this small minority of wealthy real estate interests would rather spend thousands of dollars on legal fees to preserve a brutally unjust status quo than pay their fair share in taxes,” Williams said. 

But Bring Chicago Home advocates insist the fight isn’t over and plan to take the case to a higher court. 

“It is our understanding that this decision will be appealed and continue on to the higher court and that [the question] will remain on the ballot while that is underway,” Williams also said. “While today’s decision is not what we hoped it would be, we will continue to work tirelessly to encourage every person to vote yes on [Bring Chicago Home] and towards our broader goals of bringing every Chicagoan out of the cold and into a home.” 

Early voting began in full Wednesday after it was delayed on Feb. 16 following a different court order that allowed one candidate to be removed from the ballot.  

It’s possible that while voters may still be able to vote on the Bring Chicago Home question, the results may not be reportable, Bever said. But it is too soon to know. 

“The Circuit Court has not yet entered any written order based on the results of today's hearing,” Bever said in a statement. “As such, the Chicago Board of Election Commissioners has not yet moved to appeal this decision and is still evaluating its options.” 

But the city and other entities also have the power to appeal the decision. 

On Friday, Burke denied the city’s motion to intervene and become a party to the lawsuit. Plaintiffs argued the city took too long to intervene and initially tried to stay out of the suit when it was first filed. 

When the suit was filed in January, the board of elections argued it was not an appropriate defendant for the lawsuit and that the plaintiffs should be suing the city and City Council instead. But the city stated it was not a party and would remain on the sidelines. More than a month later, however, the city motioned to intervene. 

The city sought to intervene “to address the (lawsuit’s) claims” as it "believes the lawsuit" was "without merit," the city law department said in a statement last week. 

NBOA President Michael Glasser was grateful for the ruling, saying in a statement that the tax would have been a bad policy for increasing housing. 

“Financing housing investments is already challenging in today’s environment, especially when it comes to affordable housing,” Glasser said. “This measure would have amplified the cost of these types of investments without making housing more accessible, affordable, or improved in any way. It's difficult to understand how this increase would have helped the homelessness.” 

Crystal Gardner, a deputy political director with SEIU Local 73 who has been organizing on behalf of the referendum, said following the hearing “voters’ rights have just been disenfranchised by the real estate corporate elite, who will use their money and their attorneys and their judges and their power to disenfranchise Black and brown voters throughout the city of Chicago.”