Appeal from the Circuit Court of Cook County; the Hon. Harry
Comerford, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
This case involves the sequential order in which candidates are to be listed on the ballot in Illinois elections. This issue has created problems which have heretofore been litigated; and the chronology of this litigation and of subsequent legislative enactments and administrative rulings are essential to an understanding of the problem here under consideration.
Prior to 1969, it was the unwritten practice of the Illinois Secretary of State to give preference in ballot position to candidates who presented petitions by mail on the weekend before a filing date.
In Weisberg v. Powell (7th Cir. 1969), 417 F.2d 388, in considering this circumstance the court stated at page 390:
"The secretary's office had made special arrangements with the Springfield post office for delivery of mail on Sunday, July 6. Petitions received in that mail were treated as if presented at 8:00 a.m. Monday. Where petitions for several candidates in one district were received on Sunday, the Secretary of State considered them tied for first filing, and decided the order of filing according to his own preference among those several candidates."
Petitions presented personally by candidates or their representatives, who were waiting in line when the Secretary's office opened at 8:00 A.M. on Monday, were received and filed in order, but after those received by mail on Sunday. And at page 391 the court stated:
"Mr. Powell testified: `I gave preference to people that I knew, where there was a tie; and I had no communication from the regular Democratic Organization of Cook County. I did not have to have it.' And: `After thirty years in the legislature and five years in the Secretary of State's office, I think names are familiar to me, both Democrats and as Republicans, as to people that have been in State government and people active in their government.'
We think there can be no real question but that Mr. Powell employed the device of the Sunday mail pickup to give top ballot position to people he preferred to have elected and that he saw to it that the people he wanted to prefer were informed that they should file by mail on Sunday."
Prior to 1969, the Election Code of the State of Illinois provided no guidance for determining the sequential order for listing of candidates on the ballot. The Secretary of State used his discretion in determining the order of listing of candidates. This procedure was declared unconstitutional in Weisberg v. Powell, at pages 393 and 394, where the court stated:
"We conclude that there was an intentional and purposeful discrimination which, to a significant extent, deprived the plaintiff and other members of his class of equal protection of the laws in this nonpartisan election."
The problem of determining ballot order when petitions were simultaneously received was the next circumstance which received court determination. This issue was decided in Mann v. Powell (N.D. Ill. 1969), 314 F. Supp. 677, aff'd (1970), 398 U.S. 955, 26 L.Ed.2d 539, 90 S.Ct. 2169, 2170.
In Mann v. Powell, the court enjoined the certification of the sequential order of candidate's names on the ballot by any means other than by lot or other nondiscriminatory method. 314 F. Supp. 677, 679.
In January of 1972, the General Assembly enacted, over the Governor's veto, House, Bill 2485, also known as Public Act 77-1804, which provided for ordering the ballot lists based on the candidate's seniority and incumbency. This statute, effective January 13, 1972, was struck down in Netsch v. Lewis (N.D. Ill. 1972), 344 F. Supp. 1280, as contrary to the order of the court in Weisberg v. Powell, 417 F.2d 388, and Mann v. Powell, 333 F. Supp. 1261.
The General Assembly amended paragraph 6 of section 7-12 of the Election Code, effective September 27, 1971, to provide that candidates were to be listed in the order in which their nominating ...