dissenting:
I respectfully dissent from the majority. I agree that striking a candidate from the ballot is a grave and most serious step. It follows that it is best for the legislature to provide clearer guidance enabling the Board to take such an action. While perfect clarity on this issue may be lacking from the legislature, I believe that the removal of the candidate by the Board would have been an appropriate response to McGrath’s active disregard for the law in all the nominating petitions she touched as well as her statement of candidacy. I believe that striking her candidacy would have been supported by the Election Code (Code) (10 ILCS 5/1 — 1 et seq. (West 2006)) and associated case law. Further, validation of such an action would be a short and simple step, but, effectively, a giant leap for the protection of the electoral process and the integrity of the system.
The majority opinion correctly states the law as it has been ruled upon by our courts. I suggest that neither these reported cases nor the Code limits the Board from taking action in the instant scenario in order to protect the integrity of the electoral process. Unlike many of the cases discussed by the majority, the misconduct at issue here was that of the candidate — McGrath herself — not that of a circulator, volunteer, or member of the candidate’s committee. Based on the evidence before the Board, it determined that it was proper and well within its power to strike the nomination sheets circulated by McGrath and/or notarized by Browning. I do not disagree with that conclusion; I simply believe that the Board could have, and should have, gone as far as it believed was supported by the facts before it.
In reaching its decision, the Board voiced its frustration that it believed it could not go further in striking McGrath’s candidacy. As set forth by the majority, the Board found the evidence in direct contravention with the requirements of the Code. The Board concluded that McGrath’s behavior amounted to “intolerable duplicity,” and continued on to say “for this to be done by a candidate for judicial office is particularly shocking.” While the Board and majority exhibit particular shock based on the office sought, I believe that the behavior would be shocking regardless of what public office was sought. Additionally, while the trial court affirmed the findings of the Board, it also opined that, if not for waiver of the issue, it would have stricken McGrath’s statement of candidacy, thereby removing her from the ballot.
Mitchell maintains that regardless of the sufficiency of the signatures that were not stricken, McGrath’s name should have been removed from the ballot. The Board and the majority both voiced concern over the disenfranchisement of the numerous voters who signed the valid petition sheets. They opine that the ultimate resolution of this matter is best suited for other agencies with farther-reaching powers. I would suggest that these voters would be no less disenfranchised if the candidate was ultimately found unfit for office following action regarding her license to practice law or criminal proceedings. McGrath’s actions put her in a position similar to that of a nonlawyer or a disbarred lawyer attempting to run for judicial office. Such candidates are not qualified to run for such office under Supreme Court Rule 67 (155 Ill. 2d R. 67(A)(3)(a), (A)(3)(b), (A)(3)(c)).
Despite the finding supporting McGrath’s remaining on the ballot, the Board made interesting observations in forming its conclusion, stating that, in allowing the candidacy to stand, it was not excusing or minimizing the misconduct it labeled “intolerable duplicity.” As highlighted by the majority, the Board stated, “we have done everything that we believe we are empowered by law to do.” The Board, believing it was powerless to go further, observed that “those organs of government with farther-reaching power than ours may choose to terminate the candidacy, or to instruct us that we have the power to do so. *** We fully expect that the matter will be pursued by those permanent agencies empowered to do so.”
The frustration of the Board is patently clear from the verbiage it used in its decision. That frustration must have been compounded by the solemn realization that none of the “permanent agencies” would be capable of acting prior to the election. That realization is further evidenced by this court’s action. We issued an order keeping the candidate on the ballot, but delayed in writing this opinion.
In support of their conclusions, the Board and the majority both rely on cases in which the number of valid signatures surviving a challenge was sufficient to keep the candidate on the ballot. They then note that after striking the signatures notarized by Browning, McGrath maintained a sufficient number of signatures to support her candidacy. While this may be true, none of these cases specifically limits the permissible actions of the Board to the striking of the signatures. Just as important, these cases also do not forbid the Board from striking the candidate as a result of her intolerable duplicity.
The majority cites to the language of section 10 — 10 of the Code (10 ILCS 5/10 — 10 (West 2006)) and focuses on the case law to date that examines that language and the issue of the sufficiency of nominating papers. I believe that the majority reads the Code and these cases too narrowly. Section 10 — 10 requires the Board to examine to determine if the petitions are in proper form, whether they were timely filed and “in general shall decide whether or not the certificate of nomination or nominating papers or petitions on file are valid or whether the objections thereto should be sustained.” (Emphasis added.) 10 ILCS 5/10 — 10 (West 2006).
Clearly, McGrath’s nominating papers were not “under the conditions required by law” or “genuine certificate of nomination or nomination papers or petitions which they purport to be” as required by section 10 — 10. 10 ILCS 5/10 — 10 (West 2006). The Board properly struck the improperly notarized petitions and I agree with the majority in affirming that decision. However, I stray from the majority’s decision to stop there. I place extra importance on the use of “in general” in the next clause, as quoted above. The use of this phrase is far from limiting and invites a consideration of what other possible obligation the Board may have in completing its review to preserve the integrity of the electoral system.
Furthermore, the line of cases cited by the objector supports the premise that the Board, or trial court, must not “ ‘close its eyes and ears if evidence is relevant to the protection of the electoral process.’ ” Fortas v. Dixon, 122 I. App. 3d 697, 701 (1984); Huskey v. Municipal Officers Electoral Board, 156 Ill. App. 3d 201, 204 (1987); Canter v. Cook County Officers Electoral Board, 170 Ill. App. 3d 364, 368 (1988). It is true that these cases were distinguished by this court in Delay v. Board of Election Commissioners, 312 Ill. App. 3d 206, 208-10 (2000). However, the Delay court rested on the lack of authorization in section 10 — 8 of the Code (10 ILCS 5/10 — 8 (West 2006)) for any amendments to objections and the Board was presented with two wholly separate issues at hearing. Here, the issues of the nomination sheets, the statement of candidacy and McGrath’s actions are all intertwined and part of the same overall issue.
The majority contends that these cases support the Board’s decision that it was limited to the remedy of only striking the identified signatures tainted by the improper notarizations. I disagree with the majority’s limited view. The improper notarizations in this case tainted both the signature sheets and the statement of candidacy. It clearly flows from the testimony at the hearing on the objections to the petition that the statement of candidacy was tainted. By extension, the candidate’s own testimony supports extending the taint to her candidacy itself. Accordingly, the inherent nature of both expedited electoral challenges and fraud support following, or extending, the Fortas, Huskey and Canter line of cases in order to serve the interests of justice and preserve the integrity of the system and rebuke McGrath’s personal actions.
Cases that have considered the issue of fraud with respect to ballots cast, while not directly on point, also support the notion that, where fraud is involved, a harsher remedy is required. See Qualkinbush v. Skubisz, 357 Ill. App. 3d 594, 623 (2005). The majority correctly cites cases where the result of errors or a pattern of fraud was simply the striking of signatures, signature sheets or ballots. I maintain that there is one key distinguishing factor in those cases and the instant matter — the direct involvement of the candidate. There is some merit to McGrath’s argument that the technical administration of an oath or notary requirements is not reason alone for removal from the ballot. However, safeguards such as these technical requirements take on added importance when a pattern of fraud develops and the veracity of a candidate is in question. The Board is charged with protecting the integrity of the electoral system, and as even McGrath acknowledged at the hearing, the notary requirement was created to carry out that goal as well.
I realize that this court is provided more latitude to consider certain issues and arguments than the Board and circuit court. I also realize that there is a lack of precise authority to strike the candidate from the ballot on this issue. I believe this case presents the precise situation to provide authority to the Board to take such an action to preserve the integrity of the electoral system. My reasoning and decision are based purely on the Code, case law, and the mandate to protect the integrity of the electoral system. Where a candidate takes such an active part in a fraudulent scheme, it rises far above the situation where a volunteer, a circulator, or other person involved in a campaign undertakes acts in violation of the Code.
Finally, the organs of government with farther reaching powers that might act in response to the instant scenario — the ARDC, Attorney General, State’s Attorney, or the Judicial Inquiry Board — are not equipped to timely act to protect the integrity of the electoral system. Whether one of these agencies, or an individual under a mandamus action, investigates this matter, seeks redress in the courts, or imposes some penalty is not of import. None of these proposed proceedings could properly serve the important purpose of the Code and protect the electorate. McGrath’s knowing actions in direct contravention of the Code while still being placed on the ballot calls into question the integrity of the system. The bottom line is that the Board is not only charged with protecting the system, but it also has the inherent power to protect its own integrity and impartiality from abuse by duplicitous actors. Accordingly, while moot now, I would have remanded this matter for consideration of whether McGrath’s intolerable duplicity merited removal from the ballot.