SECOND DIVISION October 30, 1996
1-96-0628
ROBERT K. ANDERSON, ) APPEAL FROM THE CIRCUIT COURT ) OF COOK COUNTY, ILLINOIS, COUN- Plaintiff-Appellant, ) TY DEPARTMENT, COUNTY DIVISION. ) v. ) ) CHICAGO BOARD OF ELECTION ) THE HONORABLE COMMISSIONERS, et al., ) MICHAEL J. MURPHY, ) JUDGE PRESIDING. Defendants-Appellees. )
JUSTICE SCARIANO delivered the opinion of the Court: This is an appeal from a final order of the Circuit Court de- nying plaintiff Robert K. Anderson's challenge to the nominating petition of Arthur J. Fitzgerald as a candidate for Republican Ward Committeeman of the 47th Ward of the City of Chicago. Since this case was filed, the election was held and Mr. Fitzgerald was elect- ed to that party office. The sole issue on appeal is whether his nominating petition had the requisite number of signatures to be placed on the ballot. The contest focuses on a challenge to one signature, that of James Nurnberg. It is undisputed that Mr. Nurnberg was injured in a fire, and that as a result of that injury Mr. Nurnberg is confin- ed to a wheelchair and communicates "with his eyes and nodding his head up and down." His wife, Jacalyn Nurnberg, was appointed as his guardian by the Probate Court after the accident. Mr. Nurnberg is a registered voter in the 47th Ward. On the nominating petition at issue in this matter, Mr. Nurnberg's signature was executed at a proper time and place by his wife in his presence and in the pre- sence of the proper authority, following his nodded assent when asked if he wished to execute Mr. Fitzgerald's petition. Anderson challenges the signature, claiming that Mrs. Nurnberg's execution of her husband's signature violated 7-10 of the Election Code (10 ILCS 5/7-10; "the Code"). That challenge was rejected by a hearing examiner appointed by the Chicago Board of Elections ("the Board"), by the Board itself, and by the circuit court. Judicial review of an electoral board's decision is a check on unsupported or arbitrary decision-making. In the case at bar, we find that the question presented is one of statutory construction, and reviewable, therefore, de novo. "In cases involving an agen- cy's interpretation of a statute which the agency is charged with administering, the agency's interpretation is considered relevant but not binding on the court." (Branson v. Department of Revenue (1995), 168 Ill.2d 247, 254, 659 N.E.2d 961). The specific challenge brought by Mr. Anderson directly raises a constitutional issue: "We have recognized that, 'as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.' Storer v. Brown, 415 U.S. 724, 730 (1974). To achieve these necessary objectives, States have enacted comprehensive and sometimes complex elec- tion codes. Each provision of these schemes, whether it gov- erns the registration and qualifications of voters, the selec- tion and eligibility of candidates, or the voting process it- self, inevitably affects -- at least to some degree -- the in- dividual's right to vote and his right to associate with oth- ers for political ends." (Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). The core of Anderson's argument is that 7-10 mandates that petitions be signed personally by the voter, rather than with any form of assistance. The language of 7-10 can be read that way. That section, after defining the forms to be employed in nominating petitions, goes on to state: "Such petition shall be signed by qualified primary electors residing in the political division for which the nomination is sought in their own proper person only and opposite the signa- ture of each signer, his residence address shall be written or printed." (10 ILCS 5/7-10) Anderson claims that the clause "in his own proper person" preclud- ed Mrs. Nurnberg from executing the petition in her husband's name, even observing the proper safeguards as to where, when and before whom the petition is to be signed, an argument we equate with the requirement that James Nurnberg can participate in the petition pro- cess only by overcoming his disability and regaining the ability to sign his name. This reading of the Election Code is an intolerably procruste- an one, and results in a patently unconstitutional result: the dis- enfranchisement of Mr. Nurnberg. Our Supreme Court, in Tully v. Edgar (1996), 171 Ill.2d 297, 307, 664 N.E.2d 43, stated: "Our cases support the view that legislation that affects any stage of the election process implicates the right to vote. Thus, this court has determined that the right to vote is im- plicated by legislation that restricts a candidate's effort to gain access to the ballot *** It has also held that the right to vote is implicated by legislation that limits the people's right to nominate candidates *** and that prohibits the count- ing of legally cast ballots ***" (citations deleted, emphasis in original). In a democratic society, there are few rights as valuable as the right to vote. That right would be a barren one if the vote were to be protected but the nomination process were to be vastly more restrictive than the voting process itself, especially in an age that advances more vigorously then ever the rights of disabled persons to become, rightfully, full participants in the mainstream of American life. Thus, strong First Amendment principles are ac- tivated by any statute which purports to bar registered voters from participating in the nomination process. Mr. Anderson character- izes Mr. Nurnberg's position as "unfortunate" and opines that the Election Code simply does not present any mechanism that would al- low him to sign nomination petitions except by his own hand. We cannot agree. With regard to elections themselves, the Election Code evinces a strong public policy protecting the rights of those unable to physically participate due to some disability. For example, the Election Code Provides: "Any primary elector who may declare upon oath, properly wit- nessed and with his or her signature or mark affixed, that he or she requires assistance to vote by reason of blindness, physical disability or inability to read, write or speak the English language, shall, upon request, be assisted in marking his or her primary ballot in the same manner as provided by this Act for general elections." (10 ILCS 5/7-48). (See also 10 ILCS 5/17-14). We regard these provisions as strong evidence of the important public policies underlying free and open elections and access to the ballot, which weigh heavily in our con- sideration of the issue sub judice. Section 3-1.2 of the Elections Code (10 ILCS 5/3-1.2
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SECOND DIVISION October 30, 1996
1-96-0628
ROBERT K. ANDERSON, ) APPEAL FROM THE CIRCUIT COURT ) OF COOK COUNTY, ILLINOIS, COUN- Plaintiff-Appellant, ) TY DEPARTMENT, COUNTY DIVISION. ) v. ) ) CHICAGO BOARD OF ELECTION ) THE HONORABLE COMMISSIONERS, et al., ) MICHAEL J. MURPHY, ) JUDGE PRESIDING. Defendants-Appellees. )
JUSTICE SCARIANO delivered the opinion of the Court: This is an appeal from a final order of the Circuit Court de- nying plaintiff Robert K. Anderson's challenge to the nominating petition of Arthur J. Fitzgerald as a candidate for Republican Ward Committeeman of the 47th Ward of the City of Chicago. Since this case was filed, the election was held and Mr. Fitzgerald was elect- ed to that party office. The sole issue on appeal is whether his nominating petition had the requisite number of signatures to be placed on the ballot. The contest focuses on a challenge to one signature, that of James Nurnberg. It is undisputed that Mr. Nurnberg was injured in a fire, and that as a result of that injury Mr. Nurnberg is confin- ed to a wheelchair and communicates "with his eyes and nodding his head up and down." His wife, Jacalyn Nurnberg, was appointed as his guardian by the Probate Court after the accident. Mr. Nurnberg is a registered voter in the 47th Ward. On the nominating petition at issue in this matter, Mr. Nurnberg's signature was executed at a proper time and place by his wife in his presence and in the pre- sence of the proper authority, following his nodded assent when asked if he wished to execute Mr. Fitzgerald's petition. Anderson challenges the signature, claiming that Mrs. Nurnberg's execution of her husband's signature violated 7-10 of the Election Code (10 ILCS 5/7-10; "the Code"). That challenge was rejected by a hearing examiner appointed by the Chicago Board of Elections ("the Board"), by the Board itself, and by the circuit court. Judicial review of an electoral board's decision is a check on unsupported or arbitrary decision-making. In the case at bar, we find that the question presented is one of statutory construction, and reviewable, therefore, de novo. "In cases involving an agen- cy's interpretation of a statute which the agency is charged with administering, the agency's interpretation is considered relevant but not binding on the court." (Branson v. Department of Revenue (1995), 168 Ill.2d 247, 254, 659 N.E.2d 961). The specific challenge brought by Mr. Anderson directly raises a constitutional issue: "We have recognized that, 'as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process.' Storer v. Brown, 415 U.S. 724, 730 (1974). To achieve these necessary objectives, States have enacted comprehensive and sometimes complex elec- tion codes. Each provision of these schemes, whether it gov- erns the registration and qualifications of voters, the selec- tion and eligibility of candidates, or the voting process it- self, inevitably affects -- at least to some degree -- the in- dividual's right to vote and his right to associate with oth- ers for political ends." (Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). The core of Anderson's argument is that 7-10 mandates that petitions be signed personally by the voter, rather than with any form of assistance. The language of 7-10 can be read that way. That section, after defining the forms to be employed in nominating petitions, goes on to state: "Such petition shall be signed by qualified primary electors residing in the political division for which the nomination is sought in their own proper person only and opposite the signa- ture of each signer, his residence address shall be written or printed." (10 ILCS 5/7-10) Anderson claims that the clause "in his own proper person" preclud- ed Mrs. Nurnberg from executing the petition in her husband's name, even observing the proper safeguards as to where, when and before whom the petition is to be signed, an argument we equate with the requirement that James Nurnberg can participate in the petition pro- cess only by overcoming his disability and regaining the ability to sign his name. This reading of the Election Code is an intolerably procruste- an one, and results in a patently unconstitutional result: the dis- enfranchisement of Mr. Nurnberg. Our Supreme Court, in Tully v. Edgar (1996), 171 Ill.2d 297, 307, 664 N.E.2d 43, stated: "Our cases support the view that legislation that affects any stage of the election process implicates the right to vote. Thus, this court has determined that the right to vote is im- plicated by legislation that restricts a candidate's effort to gain access to the ballot *** It has also held that the right to vote is implicated by legislation that limits the people's right to nominate candidates *** and that prohibits the count- ing of legally cast ballots ***" (citations deleted, emphasis in original). In a democratic society, there are few rights as valuable as the right to vote. That right would be a barren one if the vote were to be protected but the nomination process were to be vastly more restrictive than the voting process itself, especially in an age that advances more vigorously then ever the rights of disabled persons to become, rightfully, full participants in the mainstream of American life. Thus, strong First Amendment principles are ac- tivated by any statute which purports to bar registered voters from participating in the nomination process. Mr. Anderson character- izes Mr. Nurnberg's position as "unfortunate" and opines that the Election Code simply does not present any mechanism that would al- low him to sign nomination petitions except by his own hand. We cannot agree. With regard to elections themselves, the Election Code evinces a strong public policy protecting the rights of those unable to physically participate due to some disability. For example, the Election Code Provides: "Any primary elector who may declare upon oath, properly wit- nessed and with his or her signature or mark affixed, that he or she requires assistance to vote by reason of blindness, physical disability or inability to read, write or speak the English language, shall, upon request, be assisted in marking his or her primary ballot in the same manner as provided by this Act for general elections." (10 ILCS 5/7-48). (See also 10 ILCS 5/17-14). We regard these provisions as strong evidence of the important public policies underlying free and open elections and access to the ballot, which weigh heavily in our con- sideration of the issue sub judice. Section 3-1.2 of the Elections Code (10 ILCS 5/3-1.2) provides as follows: "For purposes of determining eligibility to sign a nominating petition or a petition proposing a public question, the terms 'voter', 'registered voter', 'qualified voter', 'legal vot- er', 'elector', 'qualified elector', 'primary elector', and 'qualified primary elector' as used in this Code or in another statute shall mean a person who is registered to vote at the address shown opposite his signature on the petition or was registered to vote at such address when he signed the peti- tion." (10 ILCS 5/3-1.2). While this provision does not define the meaning of the term "his own proper person" as used in 7-10, it is indicative of the broad sweep of the intent underlying the Election Code: if you are a vot- er, you may execute a petition. Where two statutory provisions address the same subject mat- ter, it is well-established that those statutes should be construed as in pari materia, and that an interpretation which gives effect to both provisions must be adopted (In Re Application For Judgment Of Delinquent Properties, 167 Ill.2d 161, 168-69 (1995)). Here, 3-1.2 plainly contemplates that all voters may participate in the nominating process. The First Amendment requires nothing less. In order to achieve that goal, 7-10 must be construed to mean that a voter who is otherwise eligible but who, because of illness or dis- ability, cannot physically execute a petition, may be granted as- sistance in that process. The Board's construction of the Election Code achieved that result, and honored both the letter and the spi- rit of the Election Code. We do not perceive any error in that construction. Accordingly, the judgment of the Circuit Court is affirmed. Affirmed. DiVITO and BURKE, JJ. concurring.