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09/26/96 DAVID ORR v. JIM EDGAR

September 26, 1996

DAVID ORR, INDIVIDUALLY; THE ILLINOIS FEDERATION OF LABOR AND CONGRESS OF INDUSTRIAL ORGANIZATIONS; AND MONICA CHAVEZ-SILVA, PLAINTIFFS-APPELLEES, AND THE LEAGUE OF WOMEN VOTERS OF ILLINOIS, PLAINTIFF-APPELLEE, AND CITY OF CHICAGO, A MUNICIPAL CORPORATION; LORRAINE DIXON, ALDERMAN OF THE 8TH WARD IN HER OFFICIAL AND INDIVIDUAL CAPACITIES; AND VILMA COLOM, ALDERMAN OF THE 35TH WARD IN HER OFFICIAL AND INDIVIDUAL CAPACITIES, INTERVENING PLAINTIFFS-APPELLEES,
v.
JIM EDGAR, GOVERNOR OF THE STATE OF ILLINOIS; GEORGE H. RYAN, SECRETARY OF STATE OF THE STATE OF ILLINOIS; RONALD D. MICHAELSON, EXECUTIVE DIRECTOR OF ILLINOIS STATE BOARD OF ELECTIONS; AND WANDA L. REDNOUR; HANNELORE HUISMAN; KENNETH R. BOYLE; JUDITH A. JONES; MITCHELL P. KOBELINSKI; DAVID E. MURRAY; LANGDON D. NEAL; AND THERESA M. PETRONE, AS MEMBERS OF THE ILLINOIS STATE BOARD OF ELECTIONS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Nos. 95 CO 0246, 95 CO 0268, Consolidated. The Honorable Francis Barth, Judge Presiding.

As Corrected October 22, 1996. Released for Publication October 22, 1996.

Presiding Justice Zwick delivered the opinion of the court: McNAMARA, J., and Rakowski, J., concur.

The opinion of the court was delivered by: Zwick

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

In these consolidated appeals, we are called upon to review the validity of the two-tier system of voter registration implemented by defendants. For the reasons that follow, we hold that this two-tier system, as implemented by defendants, is violative of state law and infringes upon fundamental constitutional rights.

In granting summary judgment in favor of the plaintiffs, the circuit court held that the two-tier system, which implemented the National Voter Registration Act of 1993 (NVRA), violated certain provisions of both the Illinois Vehicle Code and the State Mandates Act. The court also held that the two-tier system of registration violated both the equal protection clause and article III, section 3 of the Illinois Constitution of 1970, which provides for free and equal elections. In addition, the court ordered local election authorities to treat voters who are registered pursuant to NVRA as properly registered to vote in state and local elections in Illinois.

BACKGROUND

Before embarking upon an analysis of the issues presented, it is necessary to review the background of voter registration in Illinois. Under the Illinois Constitution of 1970, the qualifications for voting include United States citizenship, attainment of age 18, permanent residency, and registration. Ill. Const. 1970, art. III, § 1. The General Assembly is vested with the authority to establish registration requirements. Ill. Const. 1970, art. III, § 1. The Illinois State Board of Elections is charged with powers of general supervision over the administration of registration and election laws in Illinois. Ill. Const. 1970, art. III, § 5.

The Illinois Election Code provides that United States citizens who are over the age of 18 years and have been Illinois residents for at least 30 days may register to vote. 10 ILCS 5/4-2, 5/5-2, 5/6-27 (West 1994). The Election Code establishes a unitary registration system for voting in all elections, i.e., registration with the local election authority qualifies a voter to vote in all state, federal and local elections. 10 ILCS 5/1-1 et seq. (West 1994). Implementation of this unitary system is the responsibility of local election authorities, such as county clerks or commissioners of local boards of election. 10 ILCS 5/4-4, 5/5-4, 5/6-21 (West 1994). Among the duties of local election authorities are the appointment, training, certification and supervision of deputy registrars, who conduct voter registration. 10 ILCS 5/4-6.2(b), 5/5-16.2(b), 5/6-50.2(b) (West 1994).

The Election Code provides that eligible citizens may register to vote by personally appearing before a deputy registrar by presenting proof of identity, and by signing, under oath, a form stating their legal age, residency, and citizenship. Registration may be accomplished by mail in limited circumstances. See 10 ILCS 5/4-4, 5-4-6.1, 5/4-6.2, 5/4-8, 5/4-10, 5/5-4, 5/5-5, 5/5-6, 5/5-9, 5/5-16.1, 5/5-16.2, 5/6-29, 5/6-35, 5/6-50.1, 5/6-50.2 (West 1994).

The Election Code requires that the Secretary of State designate a reasonable number of employees at each driver's license facility to serve as deputy registrars. 10 ILCS 5/4-6.2 (West 1994). It also requires that employees of the Department of Public Aid and of certain civic and labor organizations must be appointed on written request. 10 ILCS 5/4-6.2 (West 1994).

In 1990, the Illinois legislature passed an amendment to the Illinois Vehicle Code, which required that "each person" applying for a new or corrected driver's license, identification card, or permit "shall be notified" of the opportunity to register to vote; such notification may be made in writing or verbally by an employee of the Secretary of State. 625 ILCS 5/2-105 (West 1994). In addition, the Secretary of State was obligated to promulgate such rules as may be necessary for the efficient execution of the duties imposed under this amendment. 625 ILCS 5/2-105 (West 1994). Although explicitly required by statute to do so, the Secretary of State failed to issue rules implementing this statute.

In 1993, Congress enacted the National Voter Registration Act (NVRA), which established procedures designed to increase the number of eligible citizens who register to vote in federal elections and to protect the integrity of the electoral process. 42 U.S.C. §§ 1973gg(b)(1), (3). The provisions of NVRA required that citizens be given the opportunity to register to vote in federal elections simultaneously with their application for a driver's license. NVRA also mandated that each state include a voter registration application form for federal elections as part of an application for a driver's license. 42 U.S.C. §§ 1973gg-2, §§ 1973gg-3. In addition, NVRA permitted registration by mail (42 U.S.C. §§ 1973gg-4) and at offices that provide public assistance or state-funded programs primarily engaged in providing services to persons with disabilities (42 U.S.C. §§ 1973gg-5(a)(2)), as well as at certain other governmental offices, as designated by the state (42 U.S.C. § 1973gg-5(a)(3)).

In registering under NVRA, applicants are required to sign, under penalty of perjury, a form setting forth their eligibility to vote, which includes an affirmation as to their age, residency, and citizenship. 42 U.S.C. § 1973gg-3(b). NVRA permits deputy registrars who are dissatisfied with an applicant's qualifications to forward that applicant's registration card to local election authorities for further verification. A knowing failure to notify authorities of a suspect registration constitutes a federal crime. 42 U.S.C. § 1973gg-10(2)(A). Although application for NVRA registration may be accomplished by mail, states are authorized to require that first-time voters appear in person to cast their ballot. 42 U.S.C. § 1973gg-4(c).

The State of Illinois failed to implement procedures to facilitate compliance with the terms of NVRA by the statutory deadline of January 1, 1995. Thereafter, several plaintiffs, including the Association of Community Organizations for Reform Now (ACORN), brought suit against defendants in the Northern District of Illinois for their failure to comply with the terms of NVRA (ACORN litigation). Defendants claimed that NVRA unconstitutionally infringed upon the State's power to govern state and local elections. In August 1995, the United States Court of Appeals for the 7th Circuit rejected defendants' claim, holding that the passage of NVRA was a proper exercise of Congressional power to regulate federal elections. The court issued an injunction commanding defendants to comply with the provisions of NVRA, but ruled that the State may maintain a separate voting registration record for its state and local elections. See Association of Community Organizations for Reform Now (ACORN). et al. v. Edgar. et al., 880 F. Supp. 1215 (N.D. Ill. 1995), modified and affirmed, 56 F.3d 791 (7th Cir. 1995).

Defendants subsequently implemented a two-tier system of voter registration, creating dual and separate electorates for state and federal elections. Under this system, persons who register under NVRA provisions are registered to vote in federal elections only. Unless those persons also register a second time to vote in state and local elections, they are restricted on election day to casting ballots for federal offices only.

THE CIRCUIT COURT LITIGATION

David Orr, the Illinois Federation of Labor and Congress of Industrial Organizations, and Monica Chavez-Silva (collectively, the Orr plaintiffs) challenged the two-tier system claiming that it violated the notification requirements of the Vehicle Code. 625 ILCS 5/2-105 (West 1994). The Orr plaintiffs also alleged that the two-tier system constituted an unfunded service mandate, in violation of the State Mandates Act. 30 ILCS 805/1 et seq. (West 1994).

The League of Women Voters of Illinois (the League) then filed a similar action, asserting, inter alia, that the two-tier system violated the equal protection clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 2), as well as the guarantee of free and equal elections (Ill. Const. 1970, art. III, § 3). These two actions were consolidated by the trial court.

Subsequently, the City of Chicago and two of its aldermen, Lorraine Dixon and Vilma Colom, were permitted to file a complaint as intervening plaintiffs in the consolidated lawsuits. The City and the aldermen joined in the constitutional claims asserted by the League, as well as the Orr plaintiffs' claim that the two-tier system violated the State Mandates Act.

Following denial of defendants' motions to dismiss the complaints, plaintiffs moved for summary judgment on the above claims. On May 1, 1996, after consideration of the pleadings, memoranda of law, arguments of counsel, and admissible portions of several affidavits, the trial court entered summary judgment on each of the above claims in favor of the Orr plaintiffs and the League.

In its order, the trial court held that the Secretary of State violated the notice provisions contained in the Vehicle Code (625 ILCS 5/2-105 (West 1994)) by failing to specifically notify each applicant for a new or renewed driver's license or identification card of his or her right to register to vote in all elections. The Court found that the posting of a sign in the driver's license facilities was insufficient and did not satisfy the statute's requirement that "each" applicant be notified. The Court also found that the implementation of the two-tier system of registration exacerbated this violation, frustrating the purpose of the Vehicle Code's notice requirement. In ruling, the court specifically noted that "few, if any persons would knowingly limit their voting options at the point of registration." Accordingly, the court ordered the Secretary of State to institute procedures designed to ensure compliance with the notice provision of the Vehicle Code. Specifically, the court found that section 2-105 of the Vehicle Code required the Secretary to provide actual notice to each individual applicant, either orally or in writing, of the opportunity to register to vote in all elections.

In addition, the court held that defendants' adoption of a two-tier system of registration and voting constituted an unfunded mandate in violation of the State Mandates Act. 30 ILCS 805/1 et. seq. (West 1994). The court observed that the "state government was left to its own judgment as to the mode of implementation" of NVRA and that defendants had selected a form of compliance that was "most costly, most burdensome, [and resulted in the] most disenfranchisement." Consequently, the court determined that unless and until the General Assembly provided the necessary funding, local election authorities had no obligation to implement the two-tier system and could, instead, continue to operate a unitary registration and voting system.

The court also held that defendants' adoption of the two-tier system was a "manifest" classification of the Illinois voting population and violated the "free and equal elections" clause, as well as the equal protection clause of the Illinois Constitution. The court found registration and voting to be fundamental rights and determined that the two-tier system constituted the most restrictive means available of complying with NVRA. The court ordered that all voters registered under NVRA were to be treated in the same ...


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