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Bowe v. City of Chicago Electoral Bd.

OPINION FILED FEBRUARY 29, 1980.

WILLIAM J. BOWE, PETITIONER-APPELLANT,

v.

THE CITY OF CHICAGO ELECTORAL BOARD ET AL., RESPONDENTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. JOSEPH SCHNEIDER, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Petitioner, William J. Bowe, appeals from an order of the circuit court of Cook County which excluded him from placement on the ballot as a candidate for Democratic ward committeeman of the 43d ward of the city of Chicago in the primary election to be held on March 18, 1980. The order affirmed the decision of respondent city of Chicago electoral board sustaining certain objections filed by respondent Thomas J. Fitzgerald to petitioner's nominating petition.

To appear on the ballot as a candidate for ward committeeman, petitioner was required to submit a minimum of 1,295 signatures on his nominating petition, representing 10% of the qualified primary electors in the ward. (Ill. Rev. Stat. 1977, ch. 46, par. 7-10(i).) On December 17, 1979, petitioner filed 1,663 signatures. Fitzgerald filed objections alleging several irregularities in the nominating petition. At a hearing on these objections, the electoral board sustained objections to 359 signatures. This came after an examination of the precinct binder cards revealed that signers were not registered or did not reside in the ward. Petitioner withdrew a nominating sheet containing seven signatures which had been circulated by a person who allegedly had not appeared before a notary public.

Fitzgerald also objected to 37 signatures on the sole ground that Robert Hernquist, the circulator of the two nominating sheets containing those signatures, did not appear personally before the notary public who notarized the documents.

Hernquist testified that on the evening of December 9, 1979, he brought the sheets he had circulated to petitioner's campaign headquarters. There he signed the certification at the bottom of sheets 19 and 20, and handed them to a campaign worker with whom he was acquainted. During cross-examination, Hernquist stated that he read the certification statement before he signed and that he considered himself under oath at the time. James Karpiak, a notary public, testified that on December 9, he was present at petitioner's campaign headquarters from approximately 10 a.m. to 11 p.m. He did not recall whether he was present when Hernquist signed the nominating sheets. Karpiak indicated that he was familiar with and recognized Hernquist's signature when, on December 9, 1979, he notarized Hernquist's signature.

After considering the testimony and arguments of counsel, the electoral board sustained Fitzgerald's objections. It held that the circulator failed to appear before the notary public and therefore did not comply with section 7-10 of the Election Code. (Ill. Rev. Stat. 1977, ch. 46, par. 7-10.) Accordingly, the 37 signatures on sheets 19 and 20 were invalidated, thereby reducing the number of valid signatures to 1,260. Finding that the number of valid signatures on the nominating petition fell below the requisite statutory minimum, the electoral board ruled that petitioner's name would not be printed on the ballot for the primary election.

Petitioner sought judicial review in the circuit court of Cook County asking for reversal of the electoral board's ruling (Ill. Rev. Stat. 1977, ch. 46, par. 10-10.1). On February 1, 1980, the trial court affirmed the decision of the electoral board. After the Illinois Supreme Court denied petitioner's motion for direct appeal, this court allowed an expedited appeal.

Petitioner also filed suit in the United States District Court challenging the constitutionality of the minimum signature requirement for the office of ward committeeman as compared to the minimum requirement for other offices, and seeking preliminary injunctive relief requiring the electoral board to include his name on the ballot. The District Court denied preliminary injunctive relief prior to a hearing on the merits and, on February 13, 1980, the United States Court of Appeals affirmed that denial. Bowe v. Election Commissioners of City of Chicago (7th Cir. 1980, No. 80-1129).

• 1 The sole issue presented on appeal is whether signatures on a nominating petition should be invalidated and petitioner should be disqualified from a ballot position because the circulator failed to appear personally before the notary public. The statute, which prescribes the necessary elements of a nominating petition, provides in relevant part:

"At the bottom of each sheet of such petition shall be added a statement signed by an adult resident of the political division for which the candidate is seeking a nomination, stating his residence address * * *, certifying that the signatures on that sheet of the petition were signed in his presence, and are genuine, and that to the best of his knowledge and belief the persons so signing were at the time of signing the petitions qualified voters of the political party for which a nomination is sought. Such statement shall be sworn to before some officer authorized to administer oaths in this State." (Ill. Rev. Stat. 1977, ch. 46, par. 7-10.)

Petitioner does not challenge the validity or constitutionality of the oath or certification requirement. Rather, petitioner urges that he has substantially complied with the requirements of this section of the Election Code. Accordingly, he argues the electoral board's decision to exclude his name from the ballot was against the manifest weight of the evidence. We note initially that the decision of the electoral board will not be reversed unless it is against the manifest weight of the evidence. See Williams v. Butler (1976), 35 Ill. App.3d 532, 341 N.E.2d 394.

• 2 In ruling on this matter, we are guided by several general principles. Restrictions on access to the ballot burden not only the right of individuals to associate for the advancement of political beliefs but also the right of qualified voters to cast their votes effectively. (Illinois State Board of Elections v. Socialist Workers Party (1979), 440 U.S. 173, 59 L.Ed.2d 230, 99 S.Ct. 983.) Accordingly, the right of access to the ballot should not be impeded by unreasonable or unnecessarily burdensome requirements. (See Lubin v. Panish (1974), 415 U.S. 709, 39 L.Ed.2d 702, 94 S.Ct. 1315; Jenness v. Fortson (1971), 403 U.S. 431, 29 L.Ed.2d 554, 91 S.Ct. 1970.) A statutory notarization requirement, however, is not necessarily impracticable or unduly burdensome. American Party of Texas v. White (1974), 415 U.S. 767, 39 L.Ed.2d 744, 94 S.Ct. 1296.

While petitioner concedes the validity of the oath provision, he nevertheless challenges respondents' contention that actual personal appearance of the circulator before the notary public is a mandatory requirement of the Election Code. Citing Lawlor v. Municipal Officer Electoral Board (1975), 28 Ill. App.3d 823, 329 N.E.2d 436, respondents argue that the requirements of a nominating petition listed in section 7-10 are mandatory. In subsequent cases, however, Illinois courts> have not demanded strict conformity, inquiring instead whether there has been "substantial compliance" with the requirements of the Election Code. (See, e.g., Lewis v. Dunne (1976), 63 Ill.2d 48, 344 N.E.2d 443; Stevenson v. County Officers Electoral Board (1978), 58 Ill. App.3d 24, 373 N.E.2d 1043.) Among the omissions or errors which did not render nominating petitions invalid or disqualify candidates from a ballot position despite Election Code requirements are the following: failure to specify the vacancy sought in the statement of candidacy (Lewis v. Dunne); failure to number the petitions consecutively (Stevenson v. County Officers Electoral Board; Williams v. Butler); incorrectly stating the name of the office sought (Stevenson v. County Officers Electoral Board); failure to list the city of residence opposite the signature and residence address (Madison v. Sims (1972), 6 Ill. App.3d 795, 286 N.E.2d 592); and failure to contain a statement that persons signing were qualified primary electors of, members of, or affiliated with a specific political party (Dooley v. McGillicuddy (1976), 63 Ill.2d 54, 345 N.E.2d 102). In determining whether there was substantial compliance, these courts> examined the particular function a specific requirement was designed to accomplish and considered whether the petition satisfied that purpose.

In Lewis v. Dunne (1976), 63 Ill.2d 48, 52, 344 N.E.2d 443, the court noted that the general purpose of section 7-10 and related provisions is "to provide an orderly procedure whereby qualified persons seeking public office may enter primary elections." The circulator's oath requirement was discussed in Williams v. Butler (1976), 35 Ill. App.3d 532, 341 N.E.2d 394. There, the court reasoned that requiring the circulator of a petition to certify that he circulated the petition, that signatures were placed thereon in his presence, that they were genuine, and that by his sworn statement he would subject himself to prosecution for perjury was a meaningful and realistic requirement designed to eliminate fraudulent signatures or the signing of many names by only a few people. The court also observed that the requirement was valid and substantial and was designed to preserve the integrity of the electoral ...


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