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SHARON MERONI, Petitioner-Appellant, v. ILLINOIS STATE BOARD OF ELECTIONS, Respondent-Appellee.
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Appeal No. 4-10-0850 Appeal from Case No. 10-MR-501 Before the Circuit Court for the 7th Judicial District, Sangamon County, the Hon. Peter Cavanagh, Judge Presiding.
BRIEF OF PETITIONER-APPELLANT SHARON MERONI
Stephen F. Boulton, Esq. MCCARTHY DUFFY LLP 180 N. LaSalle Street, Suite 1400 Chicago, IL 60601 312-726-0355
NATURE OF THE ACTION This action was brought for Administrative Review of the Order of the Illinois State Board of Elections dismissing Petitioner‟s Complaints against a series of individual candidates, both on Motions brought by Respondents and by Motion sua sponte of the Board. QUESTION PRESENTED Whether the Illinois State Board of Elections, sitting as the State Officers Electoral Board, committed reversible error by dismissing the case below, without presentation of evidence, on the reasoning that Petitioner failed to adequately identify her grounds of objection. JURISDICTIONAL STATEMENT Petitioner‟s Objection was filed on. The Final Order of the Illinois State Board of Elections was issued on. Petitioner‟s Petition for Judicial Review was filed with the Circuit Court of Sangamon County on August 13, 2010. (C.1.) The final order of the Circuit Court denying review was filed on September 23, 2010 (C. 255.) Petitioner‟s Notice of Appeal to this Court was filed on October 22, 2010. (C. 251.)
STANDARD OF REVIEW Given that the rulings of the Hearing Officer and the Board of Elections were made on Motions to Strike and a request for dismissal sua sponte by the Hearing Officer based upon the Objection and without any evidentiary findings, the standard of review is de novo. Cook County Republican Party v. Illinois State Board of Elections, 232 Ill. 2d
231, 234, 902 N.E.2d 652 (2009). The principles of judicial review of an electoral board decision in Illinois are well known: We are required to review the Board's decision rather than the trial court's decision. We view an electoral board as an administrative agency and the standards of review are essentially identical An electoral board's findings of fact are deemed prima facie true and correct and will not be overturned on appeal unless they are against the manifest weight of the evidence. However, an electoral board's decisions on questions of law are not binding on a reviewing court, and a reviewing court will review de novo such questions An electoral board's rulings on mixed questions of law and fact-questions on which the historical facts are admitted, the rule of law is undisputed, and the only remaining issue is whether the facts satisfy a statutory standard-will not be disturbed on review unless clearly erroneous. Siegel v. Lake County Officers Electoral Board, 385 Ill. App. 3d 452,324 Ill. Dec. 69 (2nd Dist. 2008). In the case at bar, no evidentiary determinations were made, in that the case never even progressed to hearing. The cases were dismissed on Motions to Strike filed by two candidates, and a Motion sua sponte by the Board at the suggestion of the Hearing Officer, on ground that the contents of the Objection did not meet the standard of law. The standard of review is therefore de novo.
STATEMENT OF FACTS
Petitioner Sharon Meroni is a resident of McHenry County, Illinois.
individual Respondents (hereinafter “Candidates”) in proceedings before the Illinois State Board of Elections (hereinafter the “Board”) filed nomination petitions to be on the ballot for Illinois and federal offices for the November 2, 2010 General Election in Illinois. (R. 63). As part of the submission of nomination petitions, the Candidates were required by 3
the Illinois Election Code to submit a “Statement of Candidacy.” 10 ILCS 5/10-5. The Statement of Candidacy requires the candidate to state under oath in writing that: I, <NAME>, being first duly sworn, say that I reside at ___________ street, in the city (or village) of ______________, in the county of _______, State of Illinois; and that I am a qualified voter therein; that I am a candidate for election to the office of __________________ to be voted upon at the election to be held on the ____ day of _________, ______; and that I am legally qualified to hold such office and that I have filed (or will file before the close of the petition filing period) a statement of economic interests as required by the Illinois Governmental Ethics Act, and I hereby request that my name be printed upon the official ballot for election to such office. 10 ILCS 5/8-8, 10-5 (2009). Illinois uses a practice of “apparent conformity” under which :
Certificates of nomination and nomination papers, and petitions to submit public questions to a referendum, being filed as required by this Code, and being in apparent conformity with the provisions of this Act, shall be deemed to be valid unless objection thereto is duly made in writing within 5 business days after the last day for filing the certificate of nomination or nomination papers or petition for a public question . . .
10 ILCS 5/10-8 (2009). Accordingly, so long as the nomination papers are in compliance with statutory requirements, and the Statement of Candidacy is tendered, no other proof
of citizenship, residence or other qualification is required of candidates by the Illinois State Board of Elections. An objector bears the burden of disproving the statements made in the nomination petitions, and has five days in which to file an Objection. Ibid. On June 28, 2010, Petitioner filed verified Petitions with the Board against each of the Candidates. In each Objection, Petitioner made the same allegation: “The Candidate‟s nominating papers are insufficient because they fail to demonstrate and/or provide documentation that the candidate meets the constitutional requirements for office.” (R. 1-57). The few constitutional requirements of the respective Candidates were easily reviewable by reference to the Constitution of the United States and Illinois Constitution of 1970. Under Illinois Vital Records Act, copies of birth records cannot be issued to unrelated members of the general public without court order or authorization by or for the subject of the record. 435 ILCS 535/25(4) (2009). In July, 2010, seventeen candidates filed Motions directed to the Objections filed against them, styled either as Motions to Strike or Motions for Summary Judgment. (Cases Nos. 10 SOEB GE 524, 10 SOEB GE 525, 10 SOEB GE 526, 10 SOEB GE 527, 10 SOEB GE 528, 10 SOEB GE 529, 10 SOEB GE 530, 10 SOEB GE 532, 10 SOEB GE 533, 10 SOEB GE 534, 10 SOEB GE 535, 10 SOEB GE 537, 10 SOEB GE 541, 10 SOEB GE 543, 10 SOEB GE 544, 10 SOEB GE 550, 10 SOEB GE 553) (hereinafter occasionally referred to as the “Motion Cases”). In twelve cases, the Candidate either
did not appear or filed Appearances, but no substantive Motions. (Cases Nos. 10 SOEB GE 531, 10 SOEB GE 538, 10 SOEB GE 539, 10 SOEB GE 539, 10 SOEB GE 540, 10 5
SOEB GE 549, 10 SOEB GE 542, 10 SOEB GE 545, 10 SOEB GE 546, 10 SOEB GE 547, 10 SOEB GE 548, 10 SOEB GE 551, 10 SOEB GE 552) (hereinafter occasionally referred to as the “Non-Motion Cases”). In July, 2010, Plaintiff filed her Responses pro se on the subject of pending or expected Motions to Dismiss. (R. 120, R. 147, R. 163).1 In the Responses, Petitioner stated that her objections were based on the Election Code‟s requirement that candidates file a Statement of Candidacy. In her Response, Plaintiff made a number of concrete
statements that gave definition to her Objection: -“This Objection specifically refers to qualifications specifically mandated in the US and Illinois Constitution to be eligible for office or to register to vote. These include citizenship, age, residency requirements
and the Public Disclosure Act.” (R. 124). -“The Objector has a fundamental interest and right to a ballot that has constitutionally qualified contestants.” -“The Objector has a right to know by what definition Illinois uses to define legally qualified on the statement of Candidacy for all positions.” -“Without proof of citizenship, during the 5-day objection period, the electorate lacks sufficient information to judge the veracity of a candidate.” (R. 150, 166.) -“That During the 5-day period, the absence of any public documents establishing constitutional qualifications available to her, deprives the Objector the opportunity to challenge contestants on the
Because the Record elements supplied by the Illinois State Board of Elecotins and the Circuit Court each use separate numbering sequences, in this Brief the Board documents will be cited to as “R” and the Circuit Court record documents as “C.”
ballot based on evidence.” (R. 128). -“The Statement of Candidacy requires the signatory to affirm to „legally qualified’ to hold such office” without clear definitions or public records proving affirmations of legally qualified. These subjective
statements deny the voter the opportunity to assess the veracity of that claim.” (R.129). -“The Statement of Candidacy is subjective to the applicant‟s interpretation of what is legal. Illinois statute lacks specific language to define “legally qualified.” Federal statutes lack specific language to
define “legally qualified.” (R.129). -“While evidence of eligibility exists in the public record for other qualifications required for legally qualified, it does not for citizenship.” (R.129). -“Voter registration roll, that do not provide verified citizenship, are not of sufficient veracity to assure candidates are legally qualified to be on the ballot and no other public documents proving citizenship are required to be made available.” (R.131). -“Without public record, there is no remedy at law when a candidate lies on their application, Illinois and federal law is vague and ambiguous as to the meaning of “legally qualified to hold office”. Law enforcement generally does not get involved, There is no way for a citizen to find redress.” (R. 130). On July 16, 20010, the Hearing Officer assigned to the case recommended that the
Board grant all Motions to Strike and Dismiss. (R.62.) On July 20, 2010, the Hearing Officer entered a Recommendation that the Board act sua sponte to invoke Rule 4 of the Board‟s “Rules of Procedure” to strike all remaining Objections filed by Petitioner. The Hearing Officer concluded that the
Objections failed to comply with the standard of the Illinois Election Code in that they did not “state fully the nature of the objections” or “state what relief is requested of the Electoral Board.” The General Counsel of the Board concurred in the recommendations. On August 6, 2010, the Board convened. In the session, the Board addressed the cases now before this Court. (R. 74.). The Board granted the pending Motions to Strike and Dismiss filed by some of the Candidates, and acted sue sponte to dismiss all other pending objections against the remaining Candidates. (R. 70 - 73). On August 13, 2010, Petitioner filed pro se her Petition for Judicial Review and Common Law Writ of Certiorari with the Circuit Court for the Seventh Judicial Circuit, Sangamon County, Illinois. (C.1.) In her Petition, Petitioner raised three principal
objections. First, she asserted that in all cases the Objections were sufficient because they gave the Candidates “enough specificity so that the candidate is adequately apprised of the complaint against him as to be able to defend himself.” (C. 1., para, 49, 54.) Second, Petitioner asserted that dismissal under Rule 4 was beyond the scope of power granted to the Board in dismissing the Non-Motion Cases sua sponte without hearing. (C.1, paras, 43-46.) Third, Petitioner asserted that the requirement of her to obtain and present evidence within five days to challenge citizenship, when the State of Illinois statutes effectively blocked her from obtaining evidence of public records such as birth certificates was a denial of due process of law.
In the Brief in Support of Administrative Decision the Illinois Attorney General took the position that “[t]he Board ruled that the objections failed „to state fully the nature of the objections‟ as required by 10 ILCS 5/10-8 because the objection s did not point to any specific deficiencies in the nominating papers under either the Illinois Election Code or the state or federal Constitutions.” (C. 146, at C. 152.) The Attorney General further argued that Petitioner was attempting to amend the Election Code, and that the Board acted within its scope of powers by creating Rule 4 and dismissing Petitioner‟s Objections sua sponte. In an Order dated September 23, 2010 (C. 255.), the Circuit Court for the 7th Judicial District affirmed the decision of the Board, stating: “Plaintiff‟s objections do not meet the statutory standard in this case because they do not identify any specific deficiency in the nominating papers of a particular candidate.”
ARGUMENT I. PETITIONER’S OBJECTIONS ADEQUATELY IDENTIFIED HER GROUNDS OF OBJECTION UNDER THE DIRECTORY PROVISION OF SECTION 10-8 OF THE ILLINOIS ELECTION CODE.
Petitioner adequately stated her grounds of complaint, that the candidates did not meet the Constitutional requirements for candidacy set by Illinois law. Petitioner‟s
Objections properly stated that she attacked the constitutional qualifications of the candidates:
The Candidate‟s nomination papers are insufficient because they fail to demonstrate and or provide documentation that the candidate meets constitutional requirements. (C.1, 3,4,5,6,8,10,12,14,16,18,20, 22,24,26,28,30,32,34, 36,38,40,42, 44, 46, 48, 50, 52,54, 56). The central provision at issue is Section 10-8 of the Illinois Election Code, which states: The objector's petition shall give the objector's name and residence address, and shall state fully the nature of the objections to the certificate of nomination or nomination papers or petitions in question, and shall state the interest of the objector and shall state what relief is requested of the electoral board. 10 ILCS 5/10-8(2010). There are two key aspects of Section 10-8 that are central to resolving this appeal. First, Section 10-8 does not give any definition to the term “fully stated.” As noted by the Second District, “[t]he provisions of the Election Code are mandatory and require the objectors to „state fully‟ the nature of their objection, however, the Election Code does not address the degree of precision that constitutes compliance.” Siegel v. Lake County Officers Electoral Board, 385 Ill. App. 3d 452, 456-7, 324 Ill. Dec. 69, 73, 895 N.E.2d 69, 73 (2nd Dist 2008). Second, Section 10-8 does not contain any penalty for an Objection that fails to meet the vague standard contained within it. As this Court has noted:
[S]ection 10-8 does not include a penalty provision for the objector's noncompliance with the above stated provisions. Any implied penalty contained in section 10-8, such that “petitions * * * shall be deemed to be valid unless objection thereto is duly made,” pertains only to the failure to file objections within five business days after the last day for filing the nomination papers or petitions as provided by statute. Wollen v. Jacoby, 274 Ill. App. 3d 388, 210 Ill. Dec. 841, 653 N.E.2d 1303 (1 st Dist 1995). The lack of a penalty provision in Section 10-8 has caused courts to rule that: Although election officials, including objectors, are obligated to comply with all of the provisions of the Code, it does not follow that every noncompliance will invalidate a ballot or an objection as in the present case. Where the effect of failure to comply with a particular statutory requirement is not specified, however, courts must consider the nature and object of the statutory provision and the consequences which would result from construing it one way or another. Wollen 274 Ill. App. 3d 388, 210 Ill. Dec. at 843, 653 N.E.2d at 1305, citing Pullen v. Mulligan, 138 Ill. 2d 21, 47, 149 Ill. Dec. 215, 561 N.E.2d 585, 596 (1st Dist. 1990). See, Hester v. Kamykowski, 13 Ill. 2d 481, 485, 150 N.E.2d 196, 199 (1958). The requirements in Section 10-8 are directory rather than mandatory. The provisions of the Illinois Election Code are designed to protect the integrity of the electoral process. Welch v. Johnson, 147 Ill. 2d 40, 56, 167 Ill. Dec. 989, 588 N.E.2d 1119 (1992). The Wollen Court ruled that Section 10-8 is “designed to secure order, system and dispatch in proceedings.” Wollen, 274 Ill. App. 3d at 388, 210 Ill. Dec. at
843, 653 N.E.2d at 1305. Thus, the test applied by the Wollen court was that unless the defect complained of was either “essential to the validity of the election process” or else the basis “confusion or prejudice” based upon “proven concrete, factual evidence” from the Candidate, the Objection must stand. The Wollen court‟s conclusion is buttressed by the principle that “substantial compliance can satisfy even mandatory provisions of the Code.” On the other hand, in Pochie v. Cook County Officers Electoral Board, 289 Ill. App. 3d 585, 224 Ill. Dec. 697, 682 N.E.2d 258 (1st Dist. 1997), a panel of this Court ruled that the address requirement for an Objection under Section 10-8 was mandatory. But the rule in Pochie was based upon the fact that the lack of standing in the Objector was an affirmative defense required to be filed by the Candidate. An omitted street name in the listed address on the Objection substantially prevented the Candidate from reasonably ascertaining the Objector‟s address and in turn, determining whether an affirmative defense should be filed. No such burden rested upon the Candidates in the proceedings before the Board. Yet Pochie can easily be harmonized with Wollen, in that the omitted term created “confusion and prejudice” to the candidate, who could not ascertain the Objector‟s standing. To the extent that Pochie mandates a “mandatory “ application of Section 10-8, it is distinguishable. Other Illinois court addressing the issue tend towards the Wollen test. In Morton v. State Electoral Officers Board, 311 Ill. App. 3d 982, 244 Ill. Dec. 806, 726 N.E.2d 201 (4th Dist. 2000), the contention of the Candidate before the Board was that the omission of a “Jr.” from the stated legal name of the Objector on the Objection invalidated the Objection because strict compliance with Section 10-8 was required. The Morton court
noted that the use of the “Jr.” suffix is not required to create a valid legal document under Illinois law, but also noted that comparison of the Objector‟s signature on the Objection to the voter registration on file for the registered voter with the same name and address as the Objector disclosed a sharp similarity in the signatures. The Court ruled that the information on the face of the Objection, while technically defective, was sufficient to allow the Candidate to determine the identity of the Objector. In the case at bar, there cannot be any “prejudice or confusion,” as the constitutional requirements of the several candidates are plainly identified in the Illinois and United States Constitutions. To be a United States Senator the candidate must be over the age of thirty, a citizen for nine years, and a resident of Illinois. U.S. Const., Art. I, §3. (See, C. 20). A candidate for executive office in Illinois must be a United States citizen, at least 25 years old or older, and a resident of Illinois for the three years preceding the election. A candidate for the Illinois General Assembly must be a United States Citizen, at least 21 years old, and have lived in the district of his candidacy for at least two years prior to the election. Ill. Const. Art 4, §2. These requirements are of public record and are uncomplicated. They therefore are a proper basis of the Objection. The adequacy of the objection is strengthened by Petitioner‟s act of refining the stated grounds of the Objection without amendment. In Siegel v. Lake County Officers
Electoral Board, 385 Ill. App. 3d 452, 324 Ill. Dec. 69, 895 N.E.2d 69 (2 nd Dist 2008), the Appellate Court noted that the Objection before the Board contained the statement that a nominating committee meeting was never properly assembled and never occurred at all, but in response to the motion to strike filed by the Candidate, the objectors clarified
the allegation by stating that the certificate of the nominating committee did not state the actual date of the nominating committee. In upholding the objection, the Siegel court noted that the objectors “did not create a new objection but, rather, crafted a more precise argument regarding their objection.” Similarly, Petitioner in this case, pro se at the time of the proceedings before the Board and Circuit Court, responded to the Motion to Strike of some candidates by identifying her particular constitutional requirement to be U.S. citizenship. As in Siegel, Petitioner clarified her objection without amendment to bring in new terms, by stating that her primary constitutional concern was proof of citizenship. (See, e.g., C. 123.) Petitioner therefore did not seek to amend, but simply clarified, as permitted under Siegel. Petitioner‟s statement of objection referred the Candidates and the Board to specific, well known, and easily retrievable requirements of the United States and Illinois Constitutions. It therefore met the test of Section 10-8 of the Illinois Election Code. Reversal is required for further proceedings.
DISMISSALS OF CASES BY ELECTORAL BOARD MOTION UNDER RULE 4 OF THE ELECTORAL BOARD RULES ARE INVALID BY EXCEEDING THE POWERS GRANTED TO THE BOARD BY THE LEGISLATURE IN THE ILLINOIS ELECTION CODE.
The dismissals entered sua sponte under Board Rule 4 must be vacated on the simple ground that the Board acted outside of the scope of its powers in dismissing them at an early stage. Under the Election Code, an election board is to adopt rules of proceedings:
The electoral board on the first day of its meeting shall adopt rules of procedure for the introduction of evidence and the presentation of arguments and may, in its discretion, provide for the filing of briefs by the parties to the objection or by other interested persons. 10 ILCS 5/10-10 (2010). Nothing in the legislative grant of Section 10-10 provides for early dismissal sua sponte of cases on motion of the Board. Nevertheless in adopting the rules for objections to the General Election of 2010, the Electoral Board adopted a rule quite central to this proceeding:
The Board may on its own motion, strike any objection if it determines that the objection does not meet the requirements set forth in 10 ILCS 5/10-8. In addition, the Board on its own motion may strike any portion of an objection that it determines to be not well grounded in fact and/or law.
Rules of Procedure Adopted by the State Board Of Elections As The Duly Constituted State Officers Electoral Board for the Hearing and Passing upon Objections to Nominating Papers Seeking to Place New Political Party And Independent Candidates on the Ballot For The November 2nd, 2010 General Election, Rule 4.
While purportedly enacted pursuant to Section 10-10, the above-quoted provision of Rule 4 is invalid because it exceeds the powers granted to an electoral board under the Election Code. Any action or decision taken by an administrative agency in excess of or
contrary to its authority is void. Alvarado v. Industrial Commission, 216 Ill. 2d 547, 55354, 297 Ill. Dec. 458, 837 N.E.2d 909 (2005). Section 10-10 states that the Board is to
adopt “rules of procedure” for “the introduction of evidence,” and “the presentation of arguments” but may provide for “the filing of briefs by the parties to the objection or other
interested persons. “ 10 ILCS 5/10-10 (2010). Simply put, no language in Section 10-10 authorizes early dismissals sua sponte. Rule 4 is therefore invalid, and cannot be the basis
of a dismissal in this case. The Non-Motion Cases must be remanded for further hearing
upon the Objections.
PETITIONER SUFFERED A CONSTITUTIONAL DEPRIVATION OF DUE PROCESS OF LAW BECAUSE THE STATE IMPOSED A REQUIREMENT THAT PETITIONER CHALLENGE THE “APPARENT COMPLIANCE” OF NOMINATING PETITIONS IN FIVE DAYS WHILE STATE STATUTES BLOCKED PETITIONER’S ACCESS TO EVIDENCE OF CITIZENSHIP IN THE PUBLIC RECORD. Petitioner‟s position is that the combination of the short period of time allowed
for filing of objections, the practice (at best) of “apparent compliance” by election authorities, and the legal barriers now in existence to bar a potential Objector from investigation of the citizenship of a candidate create a constitutional deprivation as to Petitioner and all similarly situated citizens of Illinois. This deprivation was only worsened by the Board‟s act of dismissal of cases by Rule 4, without opportunity by Petitioner to remedy the lack of access to records through Board subpoena. Petitioner asserts a violation of “due process of law” under the federal and state constitutions. Ill. Const., Art. I, Sec. 2. Petitioner also makes claim under her right to vote, and her right to a “free and fair election” specifically recognized in the Illinois Constitution of 1970. Ill. Const., Art. III, Sec. 1, Art. III, Sec. 3. A. The Issue of Constitutional Deprivation was Properly Before the Circuit Court and is Reviewable by This Court.
This Court and the Court have jurisdiction to rule on Petitioner‟s claim of constitutional depravation arising from proceedings before the Electoral Board. In Phelan v. County Officers Electoral Board, 240 Ill. App. 3d 368, 181 Ill. Dec. 142, 608 N.E.2d 215 (1st Dist 1992), objectors claimed before an Electoral Board that judicial candidates were ineligible for placement on the ballot, claiming in part that the procedures employed to nominate the candidates under the Illinois Election Code were unconstitutional. Noting that Illinois law that an administrative agency has no power to rule on the constitutionality of a statute, the Phelan court properly ruled that the constitutionality of the provisions in question could be tested by judicial review before the Circuit Court and appellate courts, quoting Troutman v. Keys 156 Ill. App. 3d 247, 253, 108 Ill. Dec. 757, 762, 509 N.E.2d 453, 458 (1st Dist 1987): [W]here the administrative agency's decision gives rise to pleaded issues which could not have been considered by the agency, but the record presented to the circuit court permits a fair determination of such issues, then the scope of review by a court of original jurisdiction extends to all questions of law and fact presented under the pleadings by that record. Plaintiff constitutional complaints are properly before this Court. B. The Acts of the State of Illinois and the Board in this Case constitute “State Action” for Constitutional Analysis Purposes. The actions of the Board were “state action.” Action taken pursuant to a State election regulatory scheme constitutes “state action‟ for constitutional purposes. Gray v. Sauders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963). C. The Regulatory Scheme at Issue in this Case Demands Strict Scrutiny to Protect the Fundamental Right to Vote. 17
The analytical framework for this case has been set down by the United States Supreme Court: Constitutional challenges to specific provisions of a State's election laws therefore cannot be resolved by any “litmus-paper test” that will separate valid from invalid restrictions. Instead, a court must resolve such a
challenge by an analytical process that parallels its work in ordinary litigation. In deciding a challenge first consider the character and
magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional. Anderson v. Celebrezze, 460 U. S. 780, 789, 103 S. Ct. 1564, 1570, 75 L. Ed. 2d 547 (1983). Under the above standard, the rigorousness of the inquiry depends upon the extent to which a challenged regulation burdens constitutional rights. When rights are
subjected to severe restrictions, the Supreme Court has held that the regulation must be “narrowly drawn to advance a state interest of compelling importance.” Norman v. Reed, 502 U.S. 279, 289, 112 S. Ct. 698, 705, 116 L. Ed. 2d 711 (1992) But when a state
election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State's important regulatory interests are generally sufficient to justify” the restrictions. Anderson, supra, 460 U. S. at 788, 103 S. Ct. at 1569-1570. Strict scrutiny is required because the right to vote is recognized as a cornerstone of American democracy. “No right is more precious in a free country than that of
having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined.” Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535, 11 L. Ed. 2d 481, 492 (1964). Accordingly, because the right to vote is at risk, a much stricter level of scrutiny is imposed upon any interference imposed by the State: Where challenged legislation implicates a fundamental constitutional right, however, such as the right to vote, the presumption of constitutionality is lessened and a far more demanding scrutiny is required. When the means used by a legislature to achieve a legislative
goal impinge upon a fundamental right, the court will examine the statute under the strict scrutiny standard. Under a standard of strict scrutiny, the court must conclude that the means employed by the legislature to achieve a stated goal were necessary to advance a compelling state interest. In addition, the statute must be narrowly tailored, that is, the legislature must use the least restrictive means consistent with the attainment of the legislative goal.
Tully v. Edgar, 171 Ill. 2d 297, 304-5, 215 Ill. Dec. 646, 651-2, 664 N.E.2d 43, 48-9 (1996). It is not contested that a state government, such as that of Illinois, indisputably has an interest in preserving the integrity of its election process to ensure that elections are fair and honest. Rosario v. Rockefeller, 410 U.S. 752, 761, 93 S. Ct. 1245, 36 L. Ed. 2d 1 (1973). But is its equally well recognized that the power of the States in determining the conduct of elections must be exercised in a manner consistent with the equal protection and due process clauses of the Fourteenth Amendment and with the interrelated right to associate for political purposes which is guaranteed by the First Amendment. Anderson v. Schneider, 67 Ill. 2d 165, 171, 8 Ill. Dec. 514, 516, 365 N.E.2d 900, 902 (1977). D. The Statutory Scheme of the Illinois Election Code, Combined with the Actions of the Board, Deprived Petitioner of Due Process of Law.
The action of the State of Illinois deprived Petitioner of any meaningful ability to question the citizenship of the Candidates in defense of her right to cast an effective vote. As stated by the United States Supreme Court, “the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. . . rank[s] among our most precious freedoms.” Williams v. Rhodes, 393 U.S. 23, 30, 89 S. Ct 5, 10, 21 L. Ed. 2d 24 (1968). The right to vote is created under the federal constitution and is therefore applicable to the State of Illinois though the Fourteenth Amendment. The right of the people to choose, whatever its appropriate constitutional limitations, where in other respects it is defined, and the mode of its exercise is prescribed by state action in conformity to the Constitution, is a
right established and guaranteed by the Constitution and hence is one secured by it to those citizens and inhabitants of the state entitled to exercise the right. U.S. v. Classic, 313 U.S. 299, 314, 61 S. Ct. 1031, 1037, 61 S. Ct. 1031 (1941). Under the Illinois Constitution of 1970, Article III, section 1 states the principle that all qualified citizens have a constitutionally protected right to vote and to have their votes counted. Ill. Const., Art III, Sec. 1; Craig v. Peterson, 39 Ill. 2d 191, 195, 233 N.E.2d 345 (1968). Further, Illinois citizens are entitled to a free and fair election. Ill. Const., Art. III, Sec. 3. The Illinois courts take a broad view of the scope of the “right to vote” as implicated by restrictions in legislative and administrative action in enforcing election codes: Our cases support the view that legislation that affects any stage of the election process implicates the right to vote. Thus, this court has determined that the right to vote is implicated by legislation that restricts a candidate's effort to gain access to the ballot. It has also held that the right to vote is implicated by legislation that limits the people's right to nominate candidates (and that prohibits the counting of legally cast ballots More recently, this court held that the constitutional right to vote is implicated by legislation that gives some votes cast greater or lesser weight than others. Tully v. Edgar, 171 Ill. 2d 297, 307, 215 Ill. Dec. 646, 651-2, 664 N.E.2d 43, 48-9 (1996) (citations omitted). Petitioner‟s attempt to protect her right to vote by objection to
candidates on constitutional grounds is part of the right to vote under Illinois law because the legislative scheme affects a “stage of the election” of candidates for office. The Illinois statutory scheme unconstitutionally burdens the ability of citizens to test the constitutional qualification of candidates in circumstances where the State of Illinois affirmatively refuses to make inquiry. Illinois nominally practices “apparent conformity,” which means that no independent check or proof of citizenship status is required: Certificates of nomination and nomination papers, and petitions to submit public questions to a referendum, being filed as required by this Code, and being in apparent conformity with the provisions of this Act, shall be deemed to be valid unless objection thereto is duly made in writing within 5 business days after the last day for filing the certificate of nomination or nomination papers or petition for a public question . . .
10 ILCS 5/10-8 (2009). Quite obviously, the electoral system relies upon objections to test the propriety of facially sufficient nomination papers. As the above language demonstrates, upon objection the powers of the Board are not limited to mere “apparent conformity” in resolving the Objection:
The electoral board shall take up the question as to whether or not the certificate of nomination or nomination papers or petitions are in proper form, and whether or not they were filed within the time and under the conditions required by law, and whether or not they are the genuine certificate of nomination or nomination papers or petitions which they
purport to be, and whether or not in the case of the certificate of nomination in question it represents accurately the decision of the caucus or convention issuing it, and in general shall decide whether or not the certificate of nomination or nominating papers or petitions on file are valid or whether the objections thereto should be sustained and the decision of a majority of the electoral board shall be final subject to judicial review as provided in Section 10-10.
10 ILCS 10-10(2010). In the case at bar, the Objection is directed squarely at the requirements of the Nominating Petitions, namely the veracity of the claim of validity as a candidate. Simply put, if a candidate has lied under oath in stating that he is a registered voter or otherwise engaged in falsehood in representing his citizenship, a basic requirement of candidacy under the Illinois Constitution, the nomination papers cannot in any way be considered “valid.” In granting Petitioner a mere five days to file objections based upon the constitutional requirement of citizenship, the State of Illinois has created substantial and unreasonable barriers. Under Illinois Vital Records Act, copies of birth records cannot be issued to unrelated members of the general public without court order or authorization by or for the subject of the record. 435 ILCS 535/25(4) (2009). Immigration and naturalization records are not among those listed in the federal Freedom of Information Act as required to be available from federal agencies for public review without a formal request 5 U.S.C. §552 (2010). Moreover, the Illinois Freedom of Information Act (hereinafter Illinois FOIA”) specifically bars unwarranted invasion of personal privacy, unless consented to by the subject of the records. 5 ILCS 140/7(b) (2010). The Illinois 23
FOIA also specifically reiterates the privacy rationale creates an exemption for records of any administrated proceeding. 5 ILCS 140/7(c)(vi) (2010). The federal Freedom of Information Act (“Federal FOIA”) also contains express exemptions on information collected on individuals, or information. 5 U.S.C. §552b (2010) Given that, at minimum a request under either the Illinois FOIA or Federal FOIA would be required, and subject to contest under exclusions for privacy, It is a practical impossibility that any request of governmental agencies can be effectuated within the five day period for objection set by the Illinois Election Code, as both the Illinois and federal FOIA provisions allow government agencies a period longer than five days in which to make even a initial response. See, 5 ILCS 140/3 (2010) and 5 U.S.C. §552(6)(A)(i)(2010). The deprivation towards Petitioner is made more plain upon review of the discovery powers available to the Board in acting upon Petitioner‟s Objection. An electoral board has the power to administer oaths and to subpoena and examine witnesses and at the request of either party the chairman may issue subpoenas requiring the attendance of witnesses and subpoenas duces tecum requiring the production of such books, papers, records and documents as may be evidence of any matter under inquiry before it. 10 ILCS 5/10-10 (2010). Subpoenas issued by the Board in this matter would quickly dispatch the issue, assuming that the Candidates did not come forward with proof on their own. The action of the Board in dismissing her Objection by a rule not authorized by Illinois law, thereby depriving her of the ability to employ the discovery tools created by Illinois law, compounds the blatant deprivation of constitutional rights in this case.
The actions of the state cannot be upheld on ground that the Petitioner has some supposed right to engage in litigation after the election. To the contrary, Illinois public policy of finality in elections is “that in the interest of finality mistakes should be corrected before rather than after an election.” People ex rel. Goldberg v. Delaney, 39 Ill. 2d 474, 481, 236 N.E.2d 689, 693 (1968). Further, common law writs such as quo warranto are not a reliable substitute for due process of law in objection proceedings. Acquiescence to the election without complaint while harboring concerns over the propriety of the election is a ground for denial of writ of quo warranto on ground of waiver. People ex rel. Lewis v. Waite, 70 Ill. 25 (1873). Thus, citizens such as Petitioner are placed in an untenable position: on the one hand the State blocks the ability to engage in meaningful challenge based on citizenship, yet the objector‟s inaction can be held to constitute waiver of quo warranto proceedings after the election. In sum, the State of Illinois, while granting a period in which to object on grounds that the Illinois State Board of Elections will not and cannot independently make inquiry or engage in any sort of verification, has effectively blocked Petitioner‟s avenues of investigation of the citizenship of a candidate.
CONCLUSION Petitioner has asked for no more than to challenge the constitutional qualifications of the Candidates before the Election Board. The denial of that proceeding by action of the Election Board now puts in to question the entire scheme of the Illinois Election Code in this area, from the practice of “apparent conformity” to the short period of time
allowed a voter even to investigate the citizenship of a candidate, while be limited by state statutes that prevent her from obtaining crucial evidence. Petitioner asks for reversal of the decision of the Electoral Board and remand for further proceedings on ground that her petition stated the grounds of her challenge, or alternatively that the rule employed by the Board to dismiss her Non-Motion Candidates was invalid, or an the second alternative ground that the legislative scheme employed by the State of Illinois has deprived her of her constitutional rights. Respectfully Submitted, SHARON MERONI
By: Stephen F, Boulton
I certify that this Brief conforms to the requirement s of Rules 341(a) and (b). The length of this Brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1) statement of points and authorities and the Rule 341(c) certificate of compliance the certificate of service and those matters to be appended to the brief under Rule 342(a) is _____ pages.
Stephen F. Boulton
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