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Rudd v. The Lake County Electoral Board

Court of Appeals of Illinois, Second District

August 31, 2016

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.

         Appeal 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 election.

         ¶ 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.

         We will revisit the decision in Storer later in this opinion.

         ¶ 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 Board's ...

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