APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
BOARD OF ELECTIONS et al., Respondents-Appellees
518 N.E.2d 432, 164 Ill. App. 3d 990, 115 Ill. Dec. 907 1987.IL.1883
Appeal from the Circuit Court of Cook County; the Hon. Joseph Schneider, Judge, presiding.
JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
This consolidated appeal arises from separate actions which were filed in the trial court by two candidates for judicial office, as well as the Cook County Republican Party, challenging the results of the primary election held in Cook County on March 18, 1986, determining the Republican candidate for a judicial vacancy in the circuit court of Cook County. The trial court dismissed both causes of action, finding that the plaintiffs had failed to comply with the procedural guidelines for a statutory election contest. Plaintiffs appeal from the dismissal orders. *fn1
On March 18, 1986, a primary election was held in Cook County to determine the Republican nominee for the office of Judge of the circuit court of Cook County, as well as the nominees for other offices. The name of the judicial nominee would appear on the ballot for the general election to be held on November 4, 1986. No printed names appeared on the Republican primary ballot for the vacant judicial office since no candidate had filed the required nominating papers with the State Board of Elections. The Cook County Canvassing Board tabulated the results of the primary election and determined that James O'Connell had received five write-in votes and, on April 22, 1986, O'Connell was certified by the Illinois State Board of Elections as the nominee of the Republican party to run for the judicial vacancy in the general election.
On March 20, 1986, plaintiff Terrence Jordan sent a letter to Stanley Kusper, clerk of Cook County, stating that he believed certain write-in votes had been cast for him in the primary as the Republican nominee to fill the judicial vacancy, and, in the event such votes were cast, he accepted the nomination. Jordan received no response to his letter and, thereafter, filed the first lawsuit which is the subject of this appeal. On May 14, 1986, Jordan filed a petition seeking mandamus relief against the clerk of Cook County and the Chicago board of election commissioners and requesting that he be certified as the winner of the Republican primary election.
Subsequently, on May 19, 1986, the judicial managing committee of the Republican Party passed a resolution to nominate John Madden to fill the vacancy for the judicial nomination. On June 2, 1986, the Illinois State Board of Elections notified the judicial managing committee that the nomination of Madden would not be accepted since O'Connell had already been certified as the candidate. On July 11, 1986, the Cook County Republican Party and John Madden filed a second cause of action pertaining to the primary election seeking declaratory and injunctive relief against the State Board of Elections, the clerk of Cook County, the Chicago board of election commissioners, O'Connell and Jordan. Specifically, the relief sought in this action was that the State Board's certification of O'Connell as the winner of the Republican primary election be declared invalid and that a writ of mandamus issue to the State Board ordering it to certify Madden as the Republican candidate.
The trial court granted defendants' motions to dismiss in both causes of action, ruling that plaintiffs did not timely file their petitions pursuant to the primary election contest procedures set forth in section 7-63 of the Election Code. Ill. Rev. Stat. 1983, ch. 46, par. 7-63.
On appeal, plaintiff Jordan argues that section 7 -- 63 does not apply to write-in candidates and that the trial court erred when it denied his motion to file an amended petition. Plaintiffs Madden and the Cook County Republican Party contend that their action was not an election contest subject to the provisions of section 7 -- 63 since they did not challenge the result or conduct of the primary election. I
We first consider those arguments raised by plaintiff Jordan. Article 7 of the Election Code regulates the nomination and primary election process. (Ill. Rev. Stat. 1983, ch. 46, par. 7-1 et seq.) Section 7-63 contains the enabling language and procedural requirements to maintain an action challenging a candidate's nomination in a primary. (Ill. Rev. Stat. 1983, ch. 46, par. 7-63.) Section 7-63 provides that only "a candidate whose name appears upon the primary ballot of any political party may contest the election of the candidate or candidates nominated for the office for which he or she was a candidate by his or her political party." The statute further provides that "a petition in writing, setting forth the grounds of contest . . . shall be filed within 10 days after the completion of the canvass of the returns by the canvassing board making the final canvass of returns." Ill. Rev. Stat. 1983, ch. 46, par. 7-63.
In the instant case Jordan failed to file an election contest within the time limits provided by section 7-63 and now argues that a write-in candidate may contest an election pursuant to section 23-20 of the Election Code. (Ill. Rev. Stat. 1983, ch. 46, par. 23-20.) Section 23-20 sets forth the rules for contesting general elections and provides for a 30-day limit for filing an election contest. Jordan argues that his petition was timely filed within this 30-day time limitation and should not have been dismissed. From our reading of article 23 of the Election Code, and specifically section 23-20, we believe its provisions apply only to contest the results of general elections and do not apply to the nomination process and primaries, which are governed by article 7. Section 23-19, which immediately precedes section 23-20, provides "[the] election of any person declared elected to any office may be contested by any elector of the state." In reading sections 23-19 and 23-20 together, it is apparent that an election contest may not be brought unless section 23-19's requirement that "any person declared elected to any office" is first met. In the case before us, when ...