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8/7/2019 Meroni V 32 Candidates and Illinois State Board of Elections - Appellate Brief
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IN THE
ILLINOIS APPELLATE COURT
FOURTH DISTRICT
SHARON MERONI, ) Appeal No. 4-10-0850
)
Petitioner-Appellant, ) Appeal from Case No. 10-MR-501
) Before the Circuit Court for the 7th
v. ) Judicial District, Sangamon County,
) the Hon. Peter Cavanagh, Judge
ILLINOIS STATE BOARD OF ) Presiding.
ELECTIONS, )
)
Respondent-Appellee. )
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
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NATURE OF THE ACTION
This action was brought for Administrative Review of the Order of the Illinois
State Board of Elections dismissing Petitioners Complaints against a series of individua l
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
Petitioners Objection was filed on. The Final Order of the Illinois State Board of
Elections was issued on. Petitioners 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.) Petitioners
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
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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 deemedprima 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 astatutory 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. The
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
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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, , 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
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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 Candidates 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
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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 Codes 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 qualifiedon 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
1Because 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.
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ballot based on evidence. (R. 128).
-The Statement of Candidacy requires the signatory to affirm to
legally qualifiedto 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 applicants
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
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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 Boards 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 objectionsor 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.
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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 Petitioners
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:
Plaintiffs 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. PETITIONERS 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. Petitioners
Objections properly stated that she attacked the constitutional qualifications of the
candidates:
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The Candidates 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 statefully 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:
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[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 (1st
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 ElectionCode 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
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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 courts 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 Objectors 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 Objectors standing. To the extent that Pochiemandates a mandatory
application of Section 10-8, it is distinguishable.
Other Illinois court addressing the issue tend towards the Wollen test. InMorton
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. TheMorton court
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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 Objectors 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 Petitioners act ofrefining 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 (2nd
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
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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.
Petitioners 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.
II. 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:
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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, 553-
54, 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
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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.
III. 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
PETITIONERS ACCESS TO EVIDENCE OF CITIZENSHIP IN
THE PUBLIC RECORD.
Petitioners 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 Boards 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.
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This Court and the Court have jurisdiction to rule on Petitioners 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.
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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
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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.
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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
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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 rightto 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 righttovote 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). Petitioners attempt to protect her right to vote by objection to
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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
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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
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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 Petitioners 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.
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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 ofquo 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 objectors inaction can be held to constitute waiver ofquo 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 Petitioners 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 ofapparent conformity to the short period of time
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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
CERTIFICATION
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