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10/30/96 ROBERT K. ANDERSON v. CHICAGO BOARD

October 30, 1996

ROBERT K. ANDERSON, PLAINTIFF-APPELLANT,
v.
CHICAGO BOARD OF ELECTION COMMISSIONERS, ET AL., DEFENDANTS-APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS, COUNTY DEPARTMENT, COUNTY DIVISION. THE HONORABLE MICHAEL J. MURPHY, JUDGE PRESIDING.

Released for Publication December 10, 1996.

The Honorable Justice Scariano delivered the opinion of the Court. DiVITO and Burke, JJ., concur.

The opinion of the court was delivered by: Scariano

The Honorable Justice SCARIANO delivered the opinion of the Court:

This is an appeal from a final order of the Circuit Court denying plaintiff Robert K. Anderson's challenge to the nominating petition of Arthur J. Fitzgerald as a candidate for Republican Ward Committeeman of the 47th Ward of the City of Chicago. Since this case was filed, the election was held and Mr. Fitzgerald was elected to that party office. *fn1 The sole issue on appeal is whether his nominating petition had the requisite number of signatures to be placed on the ballot.

The contest focuses on a challenge to one signature, that of James Nurnberg. It is undisputed that Mr. Nurnberg was injured in a fire, and that as a result of that injury Mr. Nurnberg is confined to a wheelchair and communicates "with his eyes and nodding his head up and down." His wife, Jacalyn Nurnberg, was appointed as his guardian by the Probate Court after the accident. Mr. Nurnberg is a registered voter in the 47th Ward. On the nominating petition at issue in this matter, Mr. Nurnberg's signature was executed at a proper time and place by his wife in his presence and in the presence of the proper authority, following his nodded assent when asked if he wished to execute Mr. Fitzgerald's petition. Anderson challenges the signature, claiming that Mrs. Nurnberg's execution of her husband's signature violated § 7-10 of the Election Code (10 ILCS 5/7-10; "the Code"). That challenge was rejected by a hearing examiner appointed by the Chicago Board of Elections ("the Board"), by the Board itself, and by the circuit court.

Judicial review of an electoral board's decision is a check on unsupported or arbitrary decision-making. In the case at bar, we find that the question presented is one of statutory construction, and reviewable, therefore, de novo. "In cases involving an agency's interpretation of a statute which the agency is charged with administering, the agency's interpretation is considered relevant but not binding on the court." ( Branson v. Department of Revenue (1995), 168 Ill. 2d 247, 254, 659 N.E.2d 961, 213 Ill. Dec. 615).

The specific challenge brought by Mr. Anderson directly raises a constitutional issue:

"We have recognized that, 'as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.' Storer v. Brown, 415 U.S. 724, 730, 39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974). To achieve these necessary objectives, States have enacted comprehensive and sometimes complex election codes. Each provision of these schemes, whether it governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself, inevitably affects -- at least to some degree -- the individual's right to vote and his right to associate with others for political ends." ( Anderson v. Celebrezze, 460 U.S. 780, 788, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1983)).

The core of Anderson's argument is that § 7-10 mandates that petitions be signed personally by the voter, rather than with any form of assistance. The language of § 7-10 can be read that way. That section, after defining the forms to be employed in nominating petitions, goes on to state:

"Such petition shall be signed by qualified primary electors residing in the political division for which the nomination is sought in their own proper person only and opposite the signature of each signer, his residence address shall be written or printed." (10 ILCS 5/7-10)

Anderson claims that the clause "in his own proper person" precluded Mrs. Nurnberg from executing the petition in her husband's name, even observing the proper safeguards as to where, when and before whom the petition is to be signed, an argument we equate with the requirement that James Nurnberg can participate in the petition process only by overcoming his disability and regaining the ability to sign his name.

This reading of the Election Code is an intolerably procrustean one, and results in a patently unconstitutional result: the dis-enfranchisement of Mr. Nurnberg. Our Supreme Court, in Tully v. Edgar (1996), 171 Ill. 2d 297, 307, 664 N.E.2d 43, 215 Ill. Dec. 646, stated:

"Our cases support the view that legislation that affects any stage of the election process implicates the right to vote. Thus, this court has determined that the right to vote is implicated by legislation that restricts a candidate's effort to gain access to the ballot *** It has also held that the right to vote is implicated by legislation that limits the people's right to nominate candidates *** ...


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