Appeal from the Circuit Court of Sangamon County; the Hon. J.
Waldo Ackerman, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
The circuit court in Sangamon County held unconstitutional a regulation of the State Board of Elections dealing with the order in which the names of candidates are to be arranged upon the primary ballot, and directed that the ballot positions of the candidates be determined instead in a manner prescribed by the court. The appeal from this order was transferred to this court pursuant to Rule 302(b). An accelerated briefing schedule was fixed, and at the conclusion of oral argument the judgment of the circuit court was reversed. This opinion explains the reasons for that determination.
Sections 7-12 and 7-14 of the Election Code direct the Board to certify to the county clerks the list of candidates for nomination for elective offices by established political parties at primary elections. Certification consists of listing the candidates and the order in which the offices and the candidates for each office are to appear on the primary ballot. Section 7-12(6) provides:
"* * * Petitions filed by mail and received after midnight and on hand upon the opening of the office involved, shall be deemed as filed as of 8:00 a.m. of that day or as of the normal opening hour of such day, as the case may be, and all petitions received thereafter shall be deemed as filed in the order of actual receipt. Where 2 or more petitions are received simultaneously, the State Board of Elections or the various clerks with whom such petitions are filed shall break ties and determine the order of filing, and such determination shall be conclusive." Ill. Rev. Stat., ch. 46, par. 7-12.
Section 7-14 requires the Board to certify the candidates for each office in the order in which nominating petitions were filed. It provides:
"The State Board of Elections shall, in its certificate to the county clerk, certify the names of the offices, and the names of the candidates in the order in which the offices and names (except the names of candidates for State offices), shall appear upon the primary ballot; such names (except the names of candidates for State offices), to appear in the order in which petitions have been filed in the office of the State Board of Elections except as otherwise provided in this Article." (Ill. Rev. Stat., ch. 46, par. 7-14.)
The exceptions relate to the nomination of candidates whose ballot positions are rotated throughout the State by legislative districts.
The challenged regulation of the Board prescribes a lottery system to determine the order in which simultaneously filed petitions are deemed to have been filed. The circumstances that gave rise to this regulation are described in Huff v. State Board of Elections (1974), 57 Ill.2d 74. The regulation provides:
"The lottery system to be used to break ties resulting from the simultaneous filing with the State Board of Elections of petitions for the same office shall be as follows:
1. The names of all candidates who filed simultaneously for the same office shall be listed alphabetically and shall be numbered consecutively commencing with the number one which shall be assigned to the candidate whose name is listed first on the alphabetical list; provided, however, that candidates filing a group petition for the same office shall be treated as one in the alphabetical listing using the name of the first candidate for such office to appear on the petitions as the name to be included in the alphabetical list. * * *
4. All candidates shall be certified in the order in which petitions have been filed with the State Board of Elections. In cases where candidates have filed simultaneously, they shall be certified (in the order determined by the lottery procedure outlined above) prior to candidates who filed for the same office who filed their petitions at a later time, except in those situations where the law requires rotation on a district-by-district basis."
The complaint is in two counts. The plaintiffs in count I are seven candidates, each of whom, at 8 a.m. on the first day of filing, filed an individual nominating petition for the Democratic nomination for the office of judge of the circuit court, Cook County judicial circuit, to fill additional judgeships elected countywide. Fifteen candidates are to be nominated for this office, and the 15 who receive the highest number of votes will be nominated. Individual nominating petitions were also filed by ten other candidates at 8 a.m. Two "group petitions" were also filed at 8 a.m. One contained the names of two candidates, and the other contained the names of 15 candidates. Other candidates filed nominating petitions for this office after 8 a.m. on the first day of filing.
The plaintiffs in count II are two candidates, each of whom, at 8 a.m. on the first day of filing, filed an individual nominating petition for the Democratic nomination for the office of judge of the circuit court for the Cook County judicial circuit to fill additional judgeships to be elected by voters inside the city of Chicago. Ten candidates are to be nominated for this office, and the ten who receive the highest number of votes will be nominated. Individual petitions were also filed by two other candidates at 8 a.m. A "group petition" which contained the names of ten candidates was also filed at 8 a.m. Other candidates filed nominating petitions after 8 a.m. on the first day of filing.
The defendants are the members of the State Board of Elections. The 15 group candidates in count I and the 10 group candidates in count II sought and were granted leave in the trial court to intervene as defendants. With the exception of the two candidates in count I who had filed a group petition, none of the other candidates involved in these contests was notified of the action or made a party to it. Petitions seeking leave to intervene were filed in this court, but because of the sharply curtailed schedule which was required in order to allow time to certify candidates and print ballots, ...