dissenting:
I respectfully dissent to the majority opinion in this case. The standard for judicial review of an Electoral Board decision as to legal issues is to review the findings of the board de novo. Maske v. Kane County Officers Electoral Board, 234 Ill. App. 3d 508 (1992).
The record indicates that the hearing examiner on January 12, 2007, read into evidence the official results of the record examination: Number of signatures on petition 258, objections overruled 49, objections sustained 114, total number of valid signatures 133. The parties then stipulated to or agreed with that finding and the plaintiff objector worked from that figure and presented evidence to support the objector’s position that the candidate did not have the minimum signature requirement of 109 valid signatures. At the conclusion of the evidentiary hearing on January 17, 2007, the hearing officer found that the candidate had a total of 108 valid signatures, one less than the required 109 minimum. The findings of the hearing officer then went to the Board of Election Commissioners of the City of Chicago (Board) recommending that the candidate’s name be removed from the ballot.
The Board received a motion from the candidate alleging various irregularities in the hearing officer’s final figures. Without determining the merits of the motion, the Board credited the candidate with 14 additional signatures so she could be a valid candidate in the aldermanic election, claiming it did not have the time to make a fair determination.
The hearing officer had reserved deciding 13 affidavits filed against the candidate which challenged the “presence” of the candidate as a circulator in signing certain nominating petitions as an affiant to place her candidacy on the ballot. Section 10— 4 of the Election Code provides that the circulator must at the bottom of each nominating petition certify that the signatures on that sheet were signed in his or her presence; that the signatures are genuine; and indicate either: (1) the dates on which that sheet was circulated, or (2) the first and last dates on which the sheet was circulated, or (3) that none of the signatures on the sheet were signed more than 90 days preceding the last day for the filing of the petition. The circulator must also certify that to the best of his or her knowledge and belief the persons so signing were at the time of signing the petition duly registered voters of the political subdivision or district for which the candidate or candidates shall be nominated, and that their respective residences are correctly stated therein. The statement is an affidavit that “must be sworn to before some officer authorized to administer oaths in this State.” 10 ILCS 5/10—4 (West 2004).
The evidence in this case showed that the candidate signed as the petition circulator on sheet 4 of her nominating petitions while she was sitting in a car or driving the car while two other people circulated the petition and gathered signatures door-to-door.
The petition circulator is required to swear to five separate things: (1) that the signatures were signed in his or her presence; (2) that the signatures are genuine; (3) that the signatures were gathered during the circulation period; (4) that the signers were, to the best of his or her knowledge, registered voters eligible to sign; and (5) that the signers’ addresses were accurately reflected on the petition. The “presence” requirement is not only the first of these items, but it is also the only one that ensures that the remaining four requirements are also satisfied.
A circulator who is not present cannot determine whether a signature is genuine. For example, how could a person waiting in the car be sure that a signer did not sign two, three or even four names of absent relatives? Likewise, an absent circulator cannot inquire, much less verify, that the signers are registered voters eligible to sign. The person in the car cannot ask the signers if they are registered to vote. At best, the car-seated circulator could attest only to the date of circulation and, perhaps, the residence addresses of the signers.
A person who waits in the car while others canvas petition signatures by going door-to-door cannot properly attest to the five matters required by section 10—4. The five elements of the circulator’s affidavit are important tools that election authorities and courts can use to prevent fraud and protect the integrity of the election process.
The “presence” requirement was strictly enforced by this court in Moscardini v. County Officers Electoral Board, 224 Ill. App. 3d 1059, 1061 (1992), citing Fortas v. Dixon, 122 Ill. App. 3d 697 (1984). In Moscardini, the person who executed the circulator’s affidavit went door-to-door with her son and a friend but would sometimes wait at the bottom of the stairs because she had a degenerative bone disease that made walking painful. But, she was never more than 20 feet from any signer and was able to see each person sign. Moscardini, 224 Ill. App. 3d at 1060. In addition, in Moscardini the people who accompanied the circulator provided corroborating evidence to support that the circulator was never more than 20 feet from any signer and was able to see each person sign. Moscardini, 224 Ill. App. 3d at 1061. As a result of that evidence, this court concluded that the circulator satisfied the “presence” requirement.
In the case at bar, the candidate stayed in the car, either parked or driving, and could not be close enough to witness signatures being signed at the front door of people’s homes, nor could she verify the other important elements of the circulator’s affidavit. Unlike Moscardini, there was not a single witness or affidavit stating that the candidate was present when the signatures were gathered. Our Illinois Supreme Court held in Walker v. Walker, 342 Ill. 376 (1930), that witnesses to a will did not sign the will in the “presence” of the testatrix when the witness was sitting in a car while the documents were executed in a house, but visible through a window. Walker, 342 Ill. at 379. The result would be the same under the evidence in this case.
When the Board met on January 29, 2007, it heard no evidence, but the candidate filed a motion pursuant to Rule 20 of the Board’s rules of procedure alleging that an error had been made by the Board when tabulating the results of the records examination and the Board credited the candidate with 11 more valid signatures, overruled the hearing examiner concerning 3 more signatures that were “printed names,” both without determining the truth of the matter and disregarded the stipulation previously agreed to by the parties on January 12, 2007. Commissioner Cowen stated:
“[T]his case comes to us at a very unfortunate time with no good choices, no answer that seems to meet the fairness of all the parties concerned and no time to do much of anything about it, I have to fall back simply on my preference for ballot access which is a poor way to have to decide these cases, but if it’s a choice because of our mistake to say the candidate is off or because of our mistake the candidate is on, I simply can’t penalize a candidate when it’s our mistake.”
The Board had no legal authority to disregard the stipulation of the parties that the starting point before certain objections were heard showed 133 valid signatures and had no authority to award the candidate with 14 additional valid signatures when its decision was not decided on the merits.
Giving 14 additional signatures to the candidate without any evidence of their validity was an abuse of the electoral process. Both the candidate and the objectors are entitled to the equal protection of the laws as made and provided. Although this matter is now moot, this writer would have remanded this case to the Board to make an accurate determination of the valid signatures of the candidate in order to protect the integrity of the election process. By awarding the candidate the 14 additional signatures, the Board assured the candidate a valid spot on the ballot. If the 13 objections to the “presence” of the circulator were sustained, the candidate would thus have the minimum number of signatures to remain as a viable candidate. The decision of the circuit court should be affirmed, and the decision of the Board of Election Commissioners should be reversed with instructions.