Challenges to nominating papers are a brutal reality in Illinois politics.  Hundreds of decisions have been rendered around the State either removing people from the ballot or sustaining their right to be on the ballot.  The primary vehicle for removing someone from the ballot is through the objection process.  This is where an interested voter objects to the nominating papers of a candidate or a public question.

A less known course, and far less taken, is for an Election Official to refuse to file or certify a candidate.  The justification for this is found in the Illinois Election Code.

Certificates of nomination and nomination papers, and petitions to submit public questions to a referendum, being filed as required by this Code, and being in apparent conformity [emphasis added] with the provisions of this Act, shall be deemed to be valid unless objection thereto is duly made in writing within 5 business days after the last day for filing the certificate of nomination or nomination papers or petition for a public question  (10 ILCS 5/10-8)

A 1914 Illinois Supreme Court case, Giese v. Dillon, also provides some guidance on this concept.

The statute imposes the absolute duty on the clerk to submit the question to be voted upon when a petition is filed in compliance with the statute. He is given no discretionary power when a petition proper on its face is filed. His only function is to determine whether, upon the face of the petition, it is in compliance with the law.  (Giese v. Dillon, 266 Ill. 272)

Around the State, Election Authorities have been loathe to play the “apparent conformity card”.  It has been subject to substantial debate because the definition of apparent conformity is not, well, apparent.  In one case, the court conceded that there is substantial grey area in the matter, while ruling that on the particular issue apparent conformity had not been met.  Election Authorities have often asked that this be better clarified in the Election Code.

In Champaign County, we likewise have been reluctant to refuse a filing based on apparent conformity.  I consider it to be an extraordinary remedy and one that should not be used when others are available and when, in the absence of employing the remedy, no harm will be done to the election process.  The one time we rejected nominating papers based on the lack of apparent conformity was in 2003 when the Green Party was trying to claim established political party status in Champaign based on Carl Estabrook’s race for Congress in 2002.  At the time, there was some idea that our office might accept the nominating papers and allow the objection process to play out.  I decided against that because I realized there could be harm to the election process (we would have been required to print Green Party ballots for every precinct in the County for the March 2004 Primary election).  While the objection process might have resolved the issue, there was no guarantee that it would.  I was sued over the decision and the Circuit Court agreed with my actions.

Shortly thereafter, we established our own guidelines as to what apparent conformity is.  We also created an extensive information sheet to guide candidates through the requirements.  Here is what we look for in order to accept a filing.  First, the nomination papers must contain a signed and notarized statement of candidacy and at least one petition.  Second, the statement of candidacy must have an office that is on the ballot and the party (for the primary filing period) must be one that is established (Green, Democratic, and Republican).  Notable is the fact that in the past we have not counted signatures in Champaign County prior to filing.  This is probably the most contentious element in the apparent conformity debate.

Our reason for not counting signatures was two fold.  First, if the nominating papers conform as above, there is really no injury to the process by allowing a candidate on the ballot who falls short of the signature requirements.  Second, there is a suitable remedy available for others to remove the person from the ballot.  Third, while the statutes define the signature requirements, they have been subject to much review by the courts and in fact some signature requirements were struck down in 2006 by a Federal Court.  Fourth, there is a potential for an arbitrary element to be applied in counting the signatures.  (Unregistered voters, incomplete or missing addresses, invalid signatures, etc.)

However, a number of Appellate Court decisions (none in our own 4th District) have been issued in the last decade that have a less strict interpretation of apparent conformity.  In my eyes, rejecting a filing is an extraordinary remedy, like an injunction or restraining order.  I think the recent apparent conformity cases consider it to be a less serious and more ministerial matter.  Of interest might be these cases.

Nomination petitions that on their face lack the number of signatures required for ballot access in section 10-2 are not in conformity of the Election Code.  (Druck v. State Board of Elections, 326 Ill. Dec. 220)

For example, by examining the face of the petition, a clerk can determine whether it contains the requisite number of signatures.  (Dillon, 266 Ill. at 276.)  If it does not, the petition is not in apparent conformity with the election statutes and the clerk has no duty to certify the question for the ballot.  (North v. Hinkle, 295 Ill. App. 3d 84)

In light of these and other cases, we will be counting the number of signature lines filled on petitions to make sure they meet the minimum published guidelines and to reject those petitions that don’t meet that threshold.  We will not be checking the validity of those signatures.

At the State Board of Elections level there was an interesting filing for the 2002 election.  Marisellis Brown filed to run for Governor as an Independent candidate in December 2001 with a statement of candidacy and a single petition sheet with a single signature.  The requirement at that time was for 25,000 signatures.  The State Board accepted the filing, no one objected, and Brown appeared on the November 2002 ballot.  If you apply the past standards for Champaign County above you’ll see that our office would have handled it the same way.  Under the new standards, we would refuse the filing.

More dubious I feel was the State Board of Elections’ handling of the Alan Keyes Presidential filing in November 2007 for the February 2008 Primary.  The filing for Keyes included just five petition sheets and no statement of candidacy.  No valid objection was filed and Keyes remained on the ballot, absent any written notice from him that he wanted to be on the ballot.  We would not have accepted the filing under our standard in Champaign County.  Once again, we would be looking at the potential injury.  Without a sworn statement of candidacy, it would be possible for someone to put a person on the ballot without their knowledge or consent.

Like many areas of election law, there is a lack of clarity in the statute that occasionally gets settled in court, only to find the matter once more in dispute in future elections.  Anyone wanting more background on this issue can read some of the cases below.

Jenkins v. McIlvain, 338 Ill. App. 3d 113

Welch v. Educational Officers Electoral Board for Proviso High School District 209, 255 Ill. Dec 641

Haymore v. Orr, et. al 2008, 325 Ill Dec. 89

Bruns v. Kuntz, Unpublished Iroquois County case

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