Bittle v. Saline County Electoral Board

JUSTICE KUEHN,

specially concurring:

A desire to allow Saline County voters a choice about who should be their chief law enforcement officer for the next four years is understandable. So is Todd Bittle’s desire to take advantage of the opportunity to seek public office under the Republican Party banner this fall. I wish that I could, in good conscience, concur with my friend who registers dissent in this case. A vote for ballot access, instead of blind adherence to the rules of electoral engagement, always feels like the right and fair thing to do when we are presented cases like the one at hand. After all, we know that Todd Bittle and the Saline County Republicans who wanted him on the Republican ticket were trying to comply with the election laws when they filed the resolution that they hoped would launch a Republican candidacy for State’s Attorney.

However, before anyone can seek public office, the mandatory requirements of the laws established to guide our electoral process must be met with strict compliance. “[Substantial compliance [in good faith] is no longer sufficient.” Knobeloch v. Electoral Board for the City of Granite City, 337 Ill. App. 3d 1137, 1140, 788 N.E.2d 130, 133 (2003).

Upon further reflection, perhaps a fairer thing to do in cases like the one at hand is to trust the wisdom and fairness reflected in our earlier decisions. If we follow our precedent and apply the law in the same manner for everyone, we should treat Todd Bittle no differently than we treated Debra Powell or Richard Fancher, when they substantially complied with the electoral law’s mandates. Perhaps it is wiser to adhere to the standard that our high court has told us to apply when deciding what to do in the face of election law violations.

A little over a year ago, we barred the mayor of East St. Louis from standing for reelection because she had not included a county clerk receipt evidencing the date on which she had filed her statement of economic interests when she filed nominating papers for reelection. Mayor Powell had a statement of economic interests on file, but she did not have the receipt that recorded the date of filing. We confronted an argument that the mayor had substantially complied with the election laws and that the date upon which her economic interest statement had been filed would contribute little, if anything, to the integrity of the selection process. We held:

“While we may agree with petitioners’ argument that they ‘substantially and in good faith complied with the applicable election laws,’ the argument that substantial compliance is sufficient was specifically rejected by the Illinois Supreme Court in DeFabio v. Gummersheimer [citation], Gummersheimer held that a mandatory provision of the Election Code must be enforced even where parties agree there is no knowledge or evidence of fraud or corruption. We are bound by the holding of Gummersheimer.” Powell v. East St. Louis Electoral Board, 337 Ill. App. 3d 334, 338, 785 N.E.2d 1014, 1017 (2003).

We denied ballot access to the sitting mayor of East St. Louis for fading to tell voters the date on which she filed her economic interest statement. Powell, 337 Ill. App. 3d at 338, 785 N.E.2d at 1017.

One month later, we decided a case where a Madison County judge permitted Richard Fancher, a would-be candidate for the office of Granite City superintendent of streets, to remain on the election ballot despite a technical flaw in his filing papers. We again confronted an argument that the office seeker had substantially, and in good faith, complied with the Election Code’s requirements.

We adhered to our earlier position in Powell and held that “substantial compliance is no longer sufficient.” Knobeloch, 337 Ill. App. 3d at 1140, 788 N.E.2d at 133. We held:

“Although we are sympathetic to Fancher’s situation, we cannot overlook petitioner’s statement that an opposing view ‘effectively permits a candidate’s ignorance of Illinois law to insulate himself or herself from the consequences of any and all violations of mandatory legal requirements.’ Here, even though the parties agree that there is no knowledge or evidence of fraud or corruption and that Fancher, at the time of his signing and oath, fully believed that he was certifying said papers before an authorized notary and therefore subjecting himself to the laws of perjury, we believe that we are bound by the supreme court’s decision in Gummersheimer.” (Emphasis added.) Knobeloch, 337 Ill. App. 3d at 1140, 788 N.E.2d at 133.

We ordered Fancher’s name stricken from the ballot.

None of the justices who unanimously decided the political fate of Debra Powell and Richard Fancher liked having to follow the supreme court’s edict. Nonetheless, we were duty-bound to do so.

No one failed to see how a statutorily required date could substantially contribute to the selection process’s integrity when we decided that the voters of East St. Louis would not have the right to decide whether to keep their mayor in office for another term. We cannot now turn a blind eye to the importance of a statutorily required date that is absolutely critical to the integrity of the selection process. There is no way for the certifying authority to properly certify the election ballot without the required date. The certifying authority’s choice of what should appear upon the ballot depends upon the required date of selection to fill the vacancy.

The Election Code reads, in pertinent part:

“The resolution to fill a vacancy in nomination shall *** include, upon its face, the following information:
(c) the name and address of the nominee selected to fill the vacancy and the date of selection.” 10 ILCS 5/7 — 61(c) (West 2002).

There is absolutely no question that a statement of the date on which a candidate was selected to fill a vacancy in the nomination process is a mandatory requirement of the Election Code — as necessary to a valid resolution to fill a vacancy in nomination as the name of the selected nominee and the address of the selected nominee. See 10 ILCS 5/7—61(c) (West 2002).

Since it is undisputed that the resolution seeking to nominate Todd Bittle did not state the date upon which he had been selected to fill the vacancy, a piece of information that Bittle and his Republican cohorts were legally obligated to supply, our decision here is an easy one. When the law requires strict compliance, noncompliance cannot be tolerated. The only thing peculiar about today’s decision is that, unlike our earlier decisions, it is not unanimous. Unfortunately, we are divided in a way that will suggest that political party affiliation, rather than the law, guides our decisionmaking in cases like this.

Why should we disagree over Judge Spomer’s ruling in light of the well-settled standard that we set forth and employed last year when we decided the political fate of Debra Powell and Richard Fancher? The answer to this question appears to be found in the use of a form provided to the Saline County Republican Party and its would-be candidate for State’s Attorney by the Saline County election authority. The resolution-to-fill-vacancy-in-nomination form provided to Todd Bittle had been sent to Saline County’s election authority by the Illinois State Board of Elections, the agency that presumably drafted it. It had no specific blank in which to fill in the date on which Todd Bittle had been selected to fill the vacancy in nomination.

If the form was provided to be used by political parties trying to fill vacancies in nomination, it should have provided appropriate fill-in blanks for all the information necessary to comply with the Election Code. Because the form did not do so, our dissenting colleague believes that Todd Bittle exercised good faith and substantially complied with the Election Code. I respectfully disagree. Even though substantial compliance is no longer sufficient, a position of this court that controls the inquiry, I will explain my disagreement.

I recognize a simple truth in Todd Bittle’s argument — a truth that no one doubts. Had the State Board of Elections drafted a better form, one that made it easier to comply with the law, Bittle would have complied with the law. Here is the argument that the dissent is willing to accept.

Todd Bittle’s failure to comply with the law rests upon the fact that the State Board of Elections failed to provide him with a form that contained a space designated “date of selection.” The form provided did not contain an easy, ready, and complete guide to election law compliance. Because the form did not have an obvious fill-in blank for the selection date, Bittle was not apprised of the fact that his date of selection was mandated. Bittle tried, but failed, to comply with the law’s mandatory requirements. His compliance was substantial and his efforts were in good faith because he relied upon a shabbily drafted form.

Alas, the statutory provision requiring a statement of the date of selection was not met due to, none other than, sheer ignorance of the law.

I am reminded of a passage from the Knobeloch decision, a passage that I earlier placed in italics. Although I am sympathetic to Bittle’s plight, we cannot overlook the fact that taking an opposing view would “ ‘effectively permití ] a candidate’s ignorance of Illinois law to insulate himself or herself from the consequences of any and all violations of mandatory legal requirements.’ ” (Emphasis added.) Knobeloch, 337 Ill. App. 3d at 1140, 788 N.E.2d at 133.

Todd Bittle’s argument boils down to this — an effort to insulate himself from the consequences of the law’s violation by professing ignorance of the law. Debra Powell and Richard Fancher would have welcomed a receptive ear when they tendered similar pleas for ballot access. However, we unanimously dispatched their arguments in recognition of the fact that acceptance of such a position would vitiate the need to comply with any of the election law’s mandatory requirements.

Powell and Fancher were not schooled in the law. They lacked training in how to open, read, and understand a statute book in order to comply with the law’s requirements. We expect nonlawyers to know what the law requires and to strictly comply with those requirements. Why then should we not expect lawyers to know what the law requires? Should we really carve an exception for lawyers who rely upon Illinois bureaucrats to tell them what the law is and how its requirements can be met?

Justice Donovan did not deem it necessary to address a second problem with Todd Bittle’s selection as the Republican nominee for Saline County State’s Attorney. The dissent comments upon it, and I again disagree with the dissent.

Bittle professes that he has always voted Republican — that he has always been, and remains today, a Republican Party faithful. While I have no doubt that he speaks the truth, that is not what makes him a qualified primary voter of the Republican Party under the provisions of the Election Code.

Todd Bittle is not a “qualified primary voter of the Republican Party.” He cannot meet a requirement necessary to the postprimary selection process by which a vacancy in the Republican nomination for State’s Attorney is filled. His beliefs to the contrary, Bittle is a qualified primary voter of the Democratic Party because he chose to vote a Democratic primary ballot on March 16, 2004. He will remain a qualified primary voter of the Democratic Party until the next primary, when he will again choose what kind of qualified primary voter he is.

According to Bittle, he wanted to play a role in who would be the Democratic nominee for State’s Attorney in Saline County. He wanted to vote for one of the two candidates seeking that nomination because he practices criminal law in the county. We are told that his vote in the Democratic primary was not a calculated prelude to his own candidacy as the Republican nominee for the same office. Bittle claims that he was not approached by Republican Party operatives until after the primary election.

Despite his professed affiliation with the Republican Party, and his loyalty to it, Bittle did not want to have a say in who would be the Republican nominee for the United States Senate this year. For that matter, he did not care to help shape the Republican ticket at all, by voting from a ballot that selected Republican Party hopefuls for candidacy in the general election. Instead, he wanted to help pick the Democratic nominee for Saline County State’s Attorney.

I take Todd Bittle at his word. His choice of a Democratic ballot, and subsequent vote for one of the two Democratic candidates for State’s Attorney, was not an effort to select a weaker opponent for himself but an effort to elect the person who he thought would best serve the public interest as a holder of that office. While that is the case here, it might not always be the case.

A less honorable and more devious band of Republican loyalists might attempt to corrupt the electoral process, in an effort to defraud Democrats out of an honest primary election of their nominees, by taking Democratic primary ballots and voting for the weakest candidates. While nothing in the law could prevent such chicanery, the law would prevent any one of those loyalists from being caucused onto the ballot in the same election cycle. After taking Democratic primary ballots, none of them would be qualified primary voters of the Republican Party.

Bittle may have voted Republican in the past, but he took a Democratic ballot and voted in the Democratic primary this year. He can become a qualified primary voter of the Republican Party by taking a Republican primary ballot and voting for Republican nominees in the next primary election. Until that time, he can do everything expected of a Grand Old Party faithful, including seeking his party’s nomination as a candidate through the primary election process, but he cannot call himself a qualified primary voter of the Republican Party.

This view of the phrase “qualified primary voter” is entirely consistent with the public policy that underlies the party-switching statutory provisions mentioned by the dissent. I believe that the law does prohibit someone from voting in one political party’s primary election and, thereafter, being selected to fill a vacancy in the other party’s selection process, because only qualified primary voters of that party can fill such vacancies.

If a “qualified primary voter” is not someone who most recently voted in a particular political party’s primary, who is a qualified primary voter? Legislators do not have to single out only qualified primary voters for the selection process, if their understanding of what constitutes a qualified primary voter is no more than a person registered to vote in the next primary election. The term “qualified primary voter” would be meaningless if everyone registered to vote can become a qualified primary voter of either party by a statement of future intention rather than a commitment to a past deed.

The legislature used the phrase “qualified primary voter” for a reason. We must give it meaning. The only reasonable interpretation of the term disqualifies Bittle from the postprimary selection process for Republican Party nominees. Bittle cannot be slated as a Republican candidate, nominated by party caucus after the primary election, because he is not a qualified primary voter of the Republican Party. Saying that he will, in all likelihood, vote in the next Republican primary election does not make him a qualified primary voter of the Republican Party.

For the reasons stated, I specially concur.