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Cook v. Orr

Court of Appeals of Illinois, First District, Third Division

February 13, 2018

JOE COOK, Plaintiff-Appellant,
v.
DAVID ORR, in His Official Capacity as Cook County Clerk; and THE CHICAGO BOARD OF ELECTION COMMISSIONERS, Marisel A. Hernandez, Chairwoman, William J. Kresse, Commissioner/Secretary, Jonathan T. Swain, Commissioner, Defendants-Appellees.

         Appeal from the Circuit Court of Cook County. No. 18 COEL 7 Honorable Robert W. Bertucci, Judge Presiding.

          JUSTICE HOWSE delivered the judgment of the court, with opinion. Presiding Justice Cobbs and Justice Fitzgerald Smith concurred in the judgment and opinion.

          OPINION

          HOWSE JUSTICE

         ¶ 1 The plaintiff in this case sought to become a write-in candidate for the office of Commissioner of the Metropolitan Water Reclamation District of Greater Chicago in the Democratic primary election on March 20, 2018. Under section 17-16.1 of the Illinois Election Code, before an election authority is permitted to count a write-in vote, the candidate must file a notarized declaration of intent to become a write-in candidate with the proper "election authority or authorities." The Cook County Clerk and the Chicago Board of Election Commissioners are both election authorities for the Democratic primary election for the office of Commissioner of the Metropolitan Water Reclamation District of Greater Chicago. The plaintiff filed a notarized declaration of intent to become a write-in candidate with the County Clerk but did not file a declaration with the Chicago Board of Election Commissioners. The plaintiff was subsequently notified by the Chicago Board of Election Commissioners that they would not count his write-in votes because the board did not receive a notarized declaration of intent from the plaintiff. The plaintiff filed a complaint for a writ of mandamus and for a declaratory judgment alleging he complied with section 17-16.1 of the Election Code when he filed a declaration with the County Clerk. The circuit court of Cook County denied the plaintiff's complaint.

         ¶ 2 The issue presented in this appeal is whether a write-in candidate may serve a declaration of intent to become a write-in candidate with one of two existing election authorities for the election in which he seeks to become a candidate and have his write-in votes in that election counted by the election authority that was not served with a declaration of intent. We find that under Illinois law the Chicago Board of Election Commissioners is an election authority for the plaintiff's election and the board had to be served with the plaintiff's declaration of intent to become a write-in candidate before the board could lawfully count his write-in votes. Serving the County Clerk was not sufficient; therefore, we affirm the judgment of the circuit court denying the plaintiff's complaint.

         ¶ 3 BACKGROUND

         ¶ 4 Plaintiff, Joe Cook, filed an amended complaint for declaratory judgment and writ of mandamus against defendants, David Orr, in his official capacity as Clerk of Cook County, and the Chicago Board of Election Commissioners (hereinafter "Board"), seeking a declaration he properly filed a declaration of intent to be a write-in candidate for the office of Commissioner of the Metropolitan Water Reclamation District of Greater Chicago (MWRD) at the March 20, 2018 primary election ("primary election") and a writ of mandamus to the Board directing it to count all write-in votes for plaintiff in the primary election. Following a hearing the circuit court of Cook County denied plaintiff's complaint for declaratory judgment and writ of mandamus. For the following reasons, we affirm. The following is taken from plaintiff's amended complaint.

         ¶ 5 On January 12, 2018, plaintiff, who is registered to vote in Chicago, filed a document titled "Declaration of Intent To Be a Write-In Candidate" with defendant Orr, in his official capacity and Clerk of Cook County (hereinafter "Clerk"). The document, which is attached as an exhibit to plaintiff's amended complaint, lists the office for which plaintiff sought to be a write-in candidate. At the bottom of the form is a box containing the following text: "An original Declaration of Intent must be filed with each election authority [county clerk(s) or board(s) of election commissioners in the territory] not later than 61 days before the election." (Emphasis in original.) On January 19, 2018, the general counsel for the Board sent an email to multiple parties discussing the laws governing the filing of declarations of intent to be a write-in candidate. Plaintiff alleges the email followed a telephone conversation during which the Board's position that no write-in votes would be counted for any candidate who failed to file a notarized declaration of intent with the Board was discussed. The email, which is also attached to plaintiff's amended complaint, is dated January 19, 2018, and states, in pertinent part, as follows:

"Section 7-5(b) of the Illinois Election Code required the declaration to be filed with the 'local election official' in the same office in which the nomination papers for the office were to be filed (for MWRD candidates, this means the Cook County clerk's office)
* * *
Section 17-16.1 of the Election Code mandates that write-in votes shall not be counted by any 'election authority or authorities' unless they have received a timely filed declaration of intent from the candidate. Thus, for MWRD offices, this requires write-ins to file with both of the proper election authorities, which are the Cook County Clerk's office and the Chicago Board of Election Commissioners[.]"

(Emphases omitted.)

         The email also references this court's decision in Lewis v. Orr, 2013 IL App (1st) 130357, ¶ 9, where this court wrote "construing sections 7-5(d) and 17-16.1 together, we must conclude that a primary need only be held when a write-in candidate files the proper paperwork with both the relevant election authority and election official."

         ¶ 6 On January 22, 2018, plaintiff filed his original complaint for declaratory judgment and writ of mandamus and an emergency motion for expedited consideration of the complaint. On January 24, 2018, plaintiff filed an amended complaint. Plaintiff's amended complaint alleges he satisfied the requirements of section 7-5(b) of the Election Code by filing his declaration with the Clerk, who is the "local election official." Plaintiff further alleged he satisfied the requirements of section 17-16.1 of the Election Code by filing his declaration with the Clerk, who is the "election authority" "for a county-wide office." Plaintiff's complaint asserts "[t]he Cook County Clerk is the 'election official' and the 'election authority' for county-wide offices in the County of Cook." Plaintiff argued the general counsel relied on the language "election authority or authorities" in section 17-16.1 for his conclusion and responded "[t]here are, in fact, offices which would require a candidate to file his declaration with multiple election authorities." Plaintiff cited as an example an office which straddles multiple counties and stated "[a] write-in candidate for that office would need to file a declaration with the county clerk of each of those counties as they would be the election authority for counting votes for that office." Plaintiff argued the Election Code does not grant the Board "the authority to deny a candidate ballot access for a county wide office." Rather, the Clerk is "the election authority" for candidates for county-wide offices in Cook County.

         ¶ 7 On January 24, 2018, the trial court granted plaintiff's emergency motion for expedited consideration of his complaint, entered a briefing schedule for plaintiff to file a memorandum in support of his complaint and for defendants to respond, and set January 31, 2018 as the date for hearing. On January 26, 2018, plaintiff served the court and defendants with his memorandum in support of plaintiff's amended complaint for declaratory judgment and writ of mandamus. On January 29, 2018, defendant Board of Elections served plaintiff, the court, and the other defendants with their memorandum in opposition to the amended complaint.

         ¶ 8 The Board's memorandum begins by stating that pursuant to section 17-16.1 of the Election Code, "no election authority is authorized to count votes for any write-in candidate unless that candidate has timely filed a notarized declaration of intent to be a write-in candidate with that election authority." The Board's memorandum argued the Clerk and the Board are election authorities "for two entirely different statutory 'election jurisdictions.' " Specifically, under section 1-3(9) of the Election Code, the Board is the election authority within the corporate limits of the City of Chicago, and the Clerk is the election authority for the territory in Cook County that lies outside of Chicago ("suburban Cook County"). The Board argued the election district for MWRD Commissioner overlaps two different election jurisdictions governed by two different election authorities (the Board for the City of Chicago and the Clerk for suburban Cook County), and the Election Code requires a write-in candidate to file a declaration with both. Therefore, the Board argued, it is not authorized to count any of plaintiff's write-in votes in the City of Chicago; thus, plaintiff has no legal right to the relief he seeks and the Board has no clear legal duty to comply with the requested writ.

         ¶ 9 Following a hearing, the trial court entered a written order denying plaintiff's ...


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