Appeal from the Circuit Court of Cook County; the Hon. Harry
G. Comerford, Judge, presiding.
MR. JUSTICE DOOLEY DELIVERED THE OPINION OF THE COURT:
This is an election case wherein a new political party and its candidates for public office were removed from the ballot by a township electoral board, whose decision was affirmed by the circuit court of Cook County.
Plaintiffs, Charles N. Anderson, Edmund H. Kaufman, Arnold Abrams, Eleanor Flicht, Don R. Copeland, Carl L. Gubitz, Erna I. Gans, and Edward L. "Spike" McGrath, filed a petition in the circuit court of Cook County against defendants, Joseph Schneider, James A. Geroulis, and Earl H. Numrich, the members of the Niles Township Officers Electoral Board, seeking reversal of an order that plaintiffs' names not be printed on the ballot in a township election set for April 5, 1977. Louis L. Lang, upon whose objection the board's order was entered, was also made a defendant.
The circuit court of Cook County denied the petition, and plaintiffs prosecuted an expedited appeal to this court. On March 21, following oral argument, we reversed the judgment of the circuit court, and directed that plaintiffs' names appear on the ballot for the April 5, 1977, election, with our opinion to follow.
On January 31, 1977, plaintiffs filed their nomination papers with the township clerk, seeking to form a new political party called the Independent Township Caucus Party, pursuant to section 10-2 of the Election Code (Ill. Rev. Stat. 1975, ch. 46, par. 10-2). Plaintiffs proposed to run under that party label for the eight township offices to be filled at the April 5, 1977, election.
Section 10-2 is part of article 10 of the Election Code, which deals with the nomination of independent candidates and candidates of minor political parties for both State and local offices. The section provides in pertinent part as follows:
"[A]ny * * * group of persons hereafter desiring to form a new political party in any municipality or district less than a county shall file such petition with the clerk or Board of Election Commissioners of such municipality or district as the case may be. Any such petition * * * shall declare as concisely as may be the intention of the signers thereof to form such new political party * * * in such district or political subdivision; shall state in not more than 5 words the name of such new political party; shall contain a complete list of candidates of such party for all offices to be filled in * * * such district or political subdivision as the case may be, at the next ensuing election then to be held * * *." (Emphasis added.) Ill. Rev. Stat. 1975, ch. 46, par. 10-2.
The italicized portion of section 10-2 also applies to nominations for statewide offices. Plaintiff Carl L. Gubitz, a nominee for the office of township trustee, was ineligible, since he had not been a resident of the township for one year as required by statute. (Ill. Rev. Stat. 1975, ch. 139, par. 83.) The board agreed that Gubitz was ineligible, and it directed that his name not appear on the ballot. The parties have stipulated that Gubitz had not been a resident for one year, and the board's action with respect to him is not challenged. Plaintiffs also expressly disclaim any contention that the durational residency requirement is unconstitutional.
The board's order, however, directed that the name of the Independent Township Caucus Party and the names of the party's seven other candidates also be removed from the ballot. That order was based on the proposition that with Gubitz being disqualified, the petition to form a new party did not comply with the requirement of section 10-2 that the nomination papers contain a complete list of candidates for all offices to be filled. Plaintiffs contend that such a construction of section 10-2 is improper as a matter of statutory construction. Plaintiffs further urge that the conduct of the board and the circuit court is violative of the due process and equal protection clauses of the Federal and State constitutions.
Section 10-2 could well be construed as requiring no more than that a new political party disclose the names of the candidates for each office whom it plans to run, a requirement which would serve to obviate the possibility that a candidate might also run as an independent or as the candidate of some other party, a practice forbidden by section 10-7 of the Code (Ill. Rev. Stat. 1975, ch. 46, par. 10-7). (See People ex rel. Schnackenberg v. Czarnecki (1912), 256 Ill. 320; People ex rel. McCormick v. Czarnecki (1914), 266 Ill. 372.) Defendants contend, however, that section 10-2 requires any new political party to run a full slate, with one candidate nominated for every office which is to be filled. The present case makes manifest the difficulties such a construction of this statute would entail.
Plaintiffs assert, and defendants do not deny, that it was neither charged nor proved that any of them was aware of Gubitz's failure to meet the durational residence requirement. Plaintiffs also point out that Gubitz's statement of candidacy, circulated with the nominating petition, contained nothing on its face which would disclose his ineligibility. On the contrary, the statement represented that he was eligible. The consequence of defendant's position is to place upon each candidate the burden of verifying the continued residency, and other requirements of eligibility, for every other candidate. The imposition of that burden is not reasonable. Since what constitutes a person's place of residence turns in part upon his intention (see Stein v. Country Board of School Trustees (1968), 40 Ill.2d 477), the task is, at best, a difficult one. In the case of a statewide election, likewise controlled by section 10-2, it would be impossible. Under the circuit court order, one ineligible candidate would cause the entire slate to fall.
May the electoral board strike from the ballot the name of the Independent Township Caucus Party, as well as that of seven of its candidates, because the eighth candidate has not fulfilled the statutory residence requirement? The sanction imposed by the electoral board and the circuit court was a harsh one. It affects not only the rights of the candidates but those of the voters. Nor have the defendants suggested any reason why such a sanction is necessary to protect the integrity of the electoral process.
It is now well recognized that the power of the States in determining voter qualifications and 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. Williams v. Rhodes (1968), 393 U.S. 23, 21 L.Ed.2d 24, 89 S.Ct. 5; Evans v. Cornman (1970), 398 U.S. 419, 26 L.Ed.2d 370, 90 S.Ct. 1752; Bullock v. Carter (1972), 405 U.S. 134, 31 L.Ed.2d 92, 92 S.Ct. 849; Lubin v. Panish (1974), 415 U.S. 709, 39 L.Ed.2d 702, 94 S.Ct. 1315; Storer v. Brown (1974), 415 U.S. 724, 39 L.Ed.2d 714, 94 S.Ct. 1274; McCarthy v. Briscoe (1976), 429 U.S. 1316, 50 L.Ed.2d 49, 97 S.Ct. 10; Communist Party v. State Board of Elections (7th Cir. 1975), 518 F.2d 517.
It is obvious that voting is a fundamental right in our system of government. "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." ...