THOMAS A. RUDD, Petitioner-Appellant,
THE LAKE COUNTY ELECTORAL BOARD and its Members, CARLA N. WYCKOFF, Lake County Clerk and Board Chairperson, MICHAEL G. NERHEIM, Lake County State's Attorney and Board Member, and his designee KAREN D. FOX, KEITH S. BRIN, Lake County Circuit Court Clerk and Board Member, and his designee JENNIFER RATHUNDE; and MICHAEL P. DONNENWIRTH and KEITH E. TURNER, Objectors, Respondents-Appellees.
from the Circuit Court of Lake County. No. 16-MR-1339
Honorable Diane E. Winter, Judge, Presiding.
JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion. Justices Birkett and Spence concurred in the
judgment and opinion.
1 Dr. Thomas Rudd appeals from an order of the circuit court
refusing to grant him ballot position as an independent
candidate for the office of Lake County Coroner. Rudd sued to
overturn the decision of the Lake County Electoral Board,
which found that Rudd was ineligible to seek office as an
independent candidate in the current election cycle. The
parties tell us that September 1, 2016, is the last day to
print ballots and absentee ballots, so, with that date
looming, we expedited this appeal.
2 Rudd is the incumbent Lake County Coroner. In March 2012,
he won the Democratic primary, and, in November 2012, he
defeated his Republican opponent in the general election to
win a four-year term as county coroner. In November 2015,
Rudd filed his nominating papers for the March 2016 primary
for another term and for Democratic precinct committeeman for
the area near his home, in northern Lake Forest. In both of
his candidacy statements, Rudd averred that he was "a
qualified Primary voter of the Democratic Party
***." Rudd's nominating papers for the coroner's
race drew an objection for improper certification. Rudd did
not contest the objection, and instead withdrew from the
Democratic primary for coroner. The following month, Rudd
also withdrew from the primary for Democratic precinct
committeeman. As a result, Rudd did not appear on the ballot
in Lake County's March 2016 primary.
3 For context, we note that in Illinois, a candidate may run
for office with an established political party, with a newly
formed political party, as an independent, or as a write-in.
Currently, the only two established, statewide political
parties are the Democratic and Republican parties (see
(last visited Aug. 30, 2016, as were all other websites in
this opinion)), and thus there are only two primary
elections. Established party candidates must file to run
generally at the end of November before the March primary
(between 113 and 106 days before the primary (10 ILCS 5/7-12
(West 2012))), while independents and new party candidates
must file circa the end of June after the primary (between
141 and 134 days before the general election (10 ILCS 5/10-6
(West 2012))). Illinois has an open primary system, which
means that voters do not have to register with their party
affiliation and may vote in either party's primary.
Voters, however, must choose which party's ballot they
will vote in the primary, and whichever ballot they choose is
a matter of public record because it is considered a
declaration of the voter's current party affiliation.
4 Rudd ultimately did not vote in the March 2016 primary.
Rudd's former deputy coroner, Michael Donnenwirth, won
the Democratic primary (he was unopposed) and is now that
party's nominee for county coroner.
5 On June 27, 2016, Rudd filed nominating papers to run as an
independent candidate for county coroner. Donnenwirth (and
another individual, but we can refer to both collectively as
Donnenwirth) objected to Rudd's nominating papers on two
grounds. First, Donnenwirth claimed that Rudd's signature
pages were not consecutively paginated. Cf. 10 ILCS
5/10-4 (West 2012); see also Wollan v. Jacoby, 274
Ill.App.3d 388, 394 (1995) (noting that the consecutive
pagination requirement prevents tampering). The second basis
for Donnenwirth's objection was that, because Rudd had
originally filed nominating papers for the Democratic
primary, he was ineligible under section 7-43 of the Election
Code (10 ILCS 5/7-43 (West 2012)) to run as an independent
candidate for any office in the November 2016 general
6 Enacted in 2012 (see Public Act 97-681, § 5 (eff.
March 30, 2012)), section 7-43 sets forth what is known as a
no-party-switching rule, or as a
disaffiliation/disqualification requirement. It provides:
"A person (i) who filed a statement of candidacy for a
partisan office as a qualified primary voter of an
established political party or (ii) who voted the ballot of
an established political party at a general primary election
may not file a statement of candidacy as a candidate of a
different established political party or as an independent
candidate for a partisan office to be filled at the general
election immediately following the general primary for which
the person filed the statement or voted the ballot. A person
may file a statement of candidacy for a partisan office as a
qualified primary voter of an established political party
regardless of any prior filing of candidacy for a partisan
office or voting the ballot of an established political party
at any prior election." 10 ILCS 5/7-43 (West 2012). As
the United States Supreme Court noted in Storer v.
Brown, 415 U.S. 724 (1974):
"[A disqualification law] protects the direct primary
process by refusing to recognize independent candidates who
do not make early plans to leave a party and take the
alternative course to the ballot. It works against
independent candidacies prompted by short-range political
goals, pique, or personal quarrel. It is also a substantial
barrier to a party fielding an 'independent'
candidate to capture and bleed off votes in the general
election that might well go to another party."
Id. at 735.
revisit the decision in Storer later in this
7 The Electoral Board held a hearing at which both Rudd and
Donnenwirth presented evidence and argument. The following
day, the Board issued a 20-page written decision. As to
Donnenwirth's first objection, Rudd's
"nominating petition contained in excess of 1, 400 pages
[of signatures], " the Board wrote, "of which
approximately 20 were not numbered precisely and/or
consecutively." Accordingly, the Board found that
Rudd's nominating papers were sufficient and overruled
Donnenwirth's first objection. See King v. Justice
Party, 284 Ill.App.3d 886, 890 (1996) (accepting
substantial compliance with pagination requirements).
8 The Board however sustained Donnenwirth's second
objection. It found that, pursuant to section 7-43, Rudd was
ineligible to stand for office as an independent candidate in
the November 2016 election. Accordingly, the Board denied
Rudd a position on the printed ballot. Rudd had also argued
to the Board that the disqualification statute was
unconstitutional, but the Board (properly) refused to
consider the issue. See Bryant v. Board of Elections
Commissioners of City of Chicago, 224 Ill.2d 473, 476
(2007) (holding that electoral boards have no authority to
consider the constitutionality of a statute). Rudd promptly
sought judicial review of the Board's administrative
decision in the circuit court. See 735 ILCS 5/3-101, et
seq. (West 2012). The circuit court affirmed the