Horwitch v. The Chicago Board of Election Commissioners

2023 IL App (1st) 230203-U

• Court: Appellate Court of Illinois
• Decided: February 21, 2023
• Docket: 1-23-0203
• Status: Unpublished

Opinion

2023 IL App (1st) 230203, 23-0204, & 23-0205 (consolidated)-U

SECOND DIVISION February 21, 2023

Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________

DANIEL R. HORWITCH, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellant/Objector, ) ) v. ) ) Nos. 23COEL4, 23COEL5, 23COEL6 THE CHICAGO BOARD OF ELECTION ) (consolidated) COMMISSIONERS, as a duly constituted electoral ) board, and its Chair MARISEL A. HERNANDEZ, ) Commissioner WILLIAM J. KRESSE, and ) Commissioner JUNE A. BROWN; THE CHICAGO ) The Honorable BOARD OF ELECTION COMMISIONERS in its ) Rena Marie Van Tine, capacity as election authority for the City of ) Judge Presiding. Chicago; SAMUEL E. SCHOENBURG, ) MAURILLO GARCIA, and JENNIFER A. ) SCHAFFER, ) ) Defendants-Appellees. ) __________________________________________) TRACY NICOLE ARRIAGA, ) ) Plaintiff-Appellant/Objector, ) ) v. ) ) THE CHICAGO BOARD OF ELECTION ) COMMISSIONERS, as a duly constituted electoral ) board, and its Chair MARISEL A. HERNANDEZ, ) Commissioner WILLIAM J. KRESSE, and ) Commissioner JUNE A. BROWN; THE CHICAGO ) Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

BOARD OF ELECTION COMMISIONERS in its ) capacity as election authority for the City of ) Chicago; DARRELL DACRES, DEIDRE ) O’CONNER, and ANNA RUBIN, ) ) Defendants-Appellees. ) __________________________________________) MITCHELL D. ROSE, ) ) Plaintiff-Appellant/Objector, ) ) v. ) ) THE CHICAGO BOARD OF ELECTION ) COMMISSIONERS, as a duly constituted electoral ) board, and its Chair MARISEL A. HERNANDEZ, ) Commissioner WILLIAM J. KRESSE, and ) Commissioner JUNE A. BROWN; THE CHICAGO ) BOARD OF ELECTION COMMISIONERS in its ) capacity as election authority for the City of ) Chicago; VERONICA I. ARREOLA, EDVETTE ) W. JONES, and MARILYN PAGAN-BANKS, ) ) Defendants-Appellees. ) ____________________________________________________________________________

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Ellis concurred in the judgment.

ORDER

HELD: Board’s decision overruling objectors’ challenge and allowing candidates for member of police district council to remain on respective ballots is affirmed.

¶1 Plaintiffs-appellants Daniel R. Horwitch, Tracy Nicole Arriaga and Mitchell D. Rose

(objectors or as named) appeared before this court upon a motion for expedited briefing

schedule and decision related to the general municipal election for Member of Police District

2 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

Council for Chicago Police Districts 19, 20 and 24 to be held on February 28, 2023. This

court granted their motion. Upon review of this cause, we issue the instant decision.

¶2 For the first time, at said election, each of Chicago’s police districts will elect three

members to their police district councils, pursuant to the newly created Community

Commission for Public Safety and Accountability. Municipal Code of Chicago, §§ 20-80-

020, 20-80-070. Candidates Samuel E. Schoenburg, Maurilio Garcia and Jennifer A.

Schaffer filed joint nomination petitions with defendants-appellees the Chicago Board of

Election Commissioners (Board), running as a slate of candidates for the member positions

open with the Police District Council of the 19th Police District. Similarly, candidates

Darrell Dacres, Deirdre O’Connor and Anna Rubin filed joint nomination petitions with the

Board, running as a slate of candidates for the member positions open with the Police District

Council of the 20th Police District. And, candidates Veronica I. Arreola, Edvette W. Jones

and Marilyn Pagan-Banks filed joint nomination petitions with the Board, running as a slate

of candidates for the member positions open with the Police District Council of the 24th

Police District. Each of these groupings filed more than three times the minimum number of

signatures collectively necessary to be on the ballot.

¶3 In response, objectors, independently and separately, filed objections to each set of

candidates’ nominating papers: Horwitch to Schoenburg, Maurilio and Garcia; Arriaga to

Dacres, O’Connor and Rubin; and Rose to Arreola, Jones and Pagan-Banks. Objectors

lodged the identical objection, namely, that the candidates’ petitions were invalid because the

Illinois Election Code (Election Code) and the Chicago Municipal Code (Municipal Code) do

not allow for a slate of candidates to file a single set of petitions for nonpartisan offices,

3 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

including the nonpartisan offices of member of police district council. The matter proceeded

before a hearing officer, who found that the candidates could not run as a slate and, therefore,

recommended they be removed from the ballot.

¶4 Upon review, however, the Board rejected the hearing officer’s recommendation. The

Board noted that section 2-80-070(c) of the Municipal Code, which established the

nonpartisan police district council offices at issue, is silent as to whether candidates can file

slated petitions. (Chi. Muni. Code § 2-80-070(c)). Accordingly, it looked to section10-3 of

the Election Code, and McNamara v. Oak Lawn Mini. Officers Electoral Bd., 356 Ill. App.

3d 961 (2005), which similarly involved objections to a slate of candidates. McNamara

found that section 10-3 does not allow for independent candidates to file slated petitions, but,

because its language was directory and not mandatory, it would not be appropriate to remove

slated candidates from the ballot. The Board disagreed with McNamara’s reasoning, but

concluded its ultimate holding was correct and must be followed. First, the Board found,

unlike McNamara, that section 10-3’s language did allow for candidates to petition as a slate.

It examined the language of that section, which states, “nominations of independent

candidates for public office *** may be made by such nomination papers signed in the

aggregate for each candidate by qualified voters of such district.” (10 ILCS 5/10-3). By

stating that candidates “may” file nomination papers “signed in the aggregate for each

candidate,” the Board concluded section 10-3 establishes that candidates are not required to

file in the aggregate as a slate, but if they do, then they must each, in the aggregate, have a

sufficient number of signatures to qualify for the minimum requirement. In other words, they

are not prohibited from petitioning as a slate as long as each candidate in the slate has enough

4 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

signatures to meet the minimum. And, since each of the candidates in each of the three-

candidate slates at issue had more than three times the minimum number of required

signatures, the Board held they were entitled to be on the ballots. The Board further noted

that should its interpretation be incorrect and should section 10-3 prohibit slated petitions,

McNamara’ ultimate holding--that slated petitions are prohibited but their use does not

warrant removal from the ballot because the statutory language used is only directory and not

mandatory--still supports keeping the candidates at issue on the ballots.

¶5 Following the Board’s decision, objectors filed their petitions in the circuit court, which

consolidated their cases. After examining section 2-80-070 of the Municipal Code, section

10-3 of the Election Code, and McNamara, the court agreed with the Board’s decision.

Briefly, it, too, noted at the outset that section 2-80-070 does not speak to the issue of slates

and, therefore, section 10-3 governs, along with McNamara, which interpreted that section.

The trial court examined McNamara and the facts presented, concluding that, while section

10-3 technically prohibits independent candidates from filing slate petitions, they must be

allowed here, as in McNamara, because each candidate met the signature requirement if the

signature on the joint petitions were divided among them since, again, they filed more than

three times the minimum number of signatures collectively necessary. Therefore, the court

ordered the names of the candidates to appear on the respective ballots.

¶6 The parties agree that the issue upon review is whether candidates for Member of the

Police District Council can file joint nominating petitions, and that we are to employ a de

novo standard to review the decision of the Board. See McNamara, 356 Ill. App. 3d at 964

(where there is no factual dispute and court is left to determine whether governing legal

5 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

provisions were interpreted correctly, Board’s decision is reviewed de novo); accord Elam v.

Municipal Officers Electoral Bd. for the Village of Riverdale, 2021 IL 127080, ¶ 13 (the

proceeding is in the nature of administrative review; it is the board’s decision, not that of the

trial court, that is to be reviewed). For the following reasons, we affirm the Board’s decision.

¶7 Section 2-80-070, which deals directly with the office of Member of the Police District

Council, states:

“Persons wishing to appear on the ballot as a candidate for District Council shall file

a statement of candidacy with the [Board] and submit petitions for nomination; the

signature requirements for the petitions for nomination of District Council candidates

shall be 0.5% of the total number of registered voters in the District, or a minimum of

25 registered voters in the District, whichever is greater.”

§ 2-80-070(c). This section specifies the number of signatures required by candidates to run

for the council, but it does not mention anything about whether candidates can run together

on a slated petition.

¶8 Because this is a nonpartisan race, we turn, in this silence, to the Election Code, since its

provisions “shall apply to nonpartisan petitions to the extent they are not inconsistent with

the requirements of such other statutes or ordinances.” 10 ILCS 5/10-3.1. Section 10-3

states:

“Nominations of independent candidates for public office within any district or

political subdivision less than the State, may be made by nomination papers signed in

the aggregate for each candidate by qualified voters of such district, or political

subdivision, equaling not less than 5%, norm more than 8% *** of the number of

6 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

persons, who voted at the next preceding regular election in such district or political

subdivision.” 10 ILCS 5/10-3.

¶9 Statutory construction’s primary rule mandates that courts give effect to the intent of the

legislature. See Gardner v. Mullins, 234 Ill. 2d 503, 511 (2009). The best indication of this

is the language used in the statute itself. See Gardner, 234 Ill. 2d at 511. Courts are to give

clear and unambiguous terms their plain and ordinary meaning, and are not to use extrinsic

aids. See Andrews v. Metropolitan Water Reclamation District of Greater Chicago, 2019 IL

124283, ¶24. Nor are court to read into statutes exceptions, conditions or limitations where

the legislature did not expressly provide them. See Andrews, 2019 IL 124283, ¶24 (we may,

however, “consider the purpose and necessity for the law, the evils sought to be remedied,

and the goals to be achieved”).

¶ 10 Critically, public policy favors ballot access and, particularly, voters’ rights to endorse

and nominate the candidates of their choice. See Lucas v. Lakin, 175 Ill. 2d 166, 176 (1997);

accord Sutton v. Cook Cty. Officers Electoral Bd., 2012 IL App (1st) 122528, ¶ 10. Where a

statute makes clear that an election shall be rendered void if those involved therein fail to

perform certain duties that are part of the election process, courts are to enforce it as

mandatory. People ex rel. Meyer v. Kerner, 35 Ill. 2d 33, 39 (1966). However, when a

statute does not expressly state that its election provisions are mandatory or compliance is

essential, “the failure to strictly comply, in the absence of fraud or a showing that the merits

of the election were affected thereby, is not fatal.” Meyer, 35 Ill. 2d at 39.

¶ 11 Similar to the instant cause, McNamara, wherein two prospective candidates filed joint

nomination petitions as independent candidates in a municipal election, analyzed whether

7 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

independent candidates could do so under section 10-3. The court determined that, under the

plain language of that section, they could not, and that each was required to file separate

papers. See McNamara, 356 Ill. App. 3d at 965. The court interpreted the term “signed in

the aggregate for each candidate” in section 10-3 to mean that the signed nomination papers

could be combined and viewed as a set to establish the required number of signatures for a

particular candidate, not that multiple candidates could be listed on a single set of nomination

papers. See McNamara, 356 Ill. App. 3d at 965. The court therefore concluded that the two

candidates who submitted joint nomination papers were not in compliance with section 10-3.

See McNamara, 356 Ill. App. 3d at 965.

¶ 12 Having found that the joint nominating petition did not comply with section 10-3, the

McNamara court then considered the appropriate remedy. In attempting to decipher what the

consequence for a failure to abide by the provisions of 10-3, absent any showing of fraud or

that the merits of the election would be affected, should be, the court stated it did not know

because the statute was silent in that regard. See McNamara, 356 Ill. App. 3d at 967. It then

reasoned that “[w]hile it seems clear to us that the statute anticipates that independent

candidates for various offices in an election will file separate nomination petitions, it may be

that the legislature simply did not anticipate what happened in this case. We will not read a

remedy into a statute that fails to provide for one, particularly a drastic remedy that deprives

a citizen of the right to run for office. [Citation].” McNamara, 356 Ill. App. 3d at 967.

Accordingly, the McNamara court acknowledged the policy favoring the rights of citizens to

endorse and nominate the candidate of their choice and cited multiple cases that declined to

penalize election law violators. See McNamara, 356 Ill. App. 3d at 965 (citing Lucas, 175

8 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

Ill. 2d at 176; Welch v. Johnson, 147 Ill. 2d 40, 56-57 (1992); and Anderson v. Schneider, 67

Ill. 2d 165 (1977)). Because section 10-3 did not specifically address a penalty for failing to

file individual nomination papers, the McNamara court refused to impose one. See

McNamara, 356 Ill. App. 3d at 966. Instead, the court concluded that, absent fraud or a

showing that the merits of the election were affected, the failure to strictly comply with the

nomination requirement was not fatal and it directed the electoral board to place the

candidates’ names on the ballot. See McNamara, 356 Ill. App. 3d at 965-66.

¶ 13 We agree with McNamara’s holding. Were we also to accept its reasoning, we must find

that the plain language of section 10-3 contemplates that each independent candidate will file

individual nomination papers. Admittedly, the candidates herein did not. But, the next, and

more critical, question is whether the candidates’ noncompliance with section 10-3 requires

removing their names from the ballot. It is this portion of McNamara’s reasoning that we

wholly adopt. Section 10-3 does not expressly state, anywhere, that an election will be

invalid if a candidate fails to submit an individual nominating petition. Moreover, nothing in

the statute indicates that individual nomination papers are an essential requirement. As

mentioned earlier, we will not read into the election statute limitations or conditions that the

legislature did not express. Again, we are particularly mindful to exercise restraint where, as

here, the proposed remedy adversely affects voters’ rights to participate in an election. See,

e.g., Lucas, 175 Ill. 2d at 176.

¶ 14 In the instant cause, the candidates filed joint nomination petitions that included the

names of all nine candidates, three petitions each with three-candidate slates. Pursuant to

McNamara, this was error. However, also pursuant to McNamara, the error was not fatal.

9 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

Objectors here do not allege fraud or that the merits of the election would be affected by the

failure to file individual petitions. Moreover, the record is clear that each of the three slated

petitions contained at least three times as many signatures as the minimum requirement, the

validity of which were never challenged, and that the statement above the list of candidates

on each of these petitions made clear to voters that their signatures stood for the candidates in

their slates. Those who signed knew they were endorsing each slate, and they

overwhelmingly used their voices as voters to choose to do so. Thus, the candidates met the

threshold requirements to be on the ballots.

¶ 15 Objectors insist that the Illinois Supreme Court’s decision in Jackson-Hicks v. E. St.

Louis Bd of Election Comm’rs, 2015 IL 118929, overturned McNamara and that the

prohibition against slates is mandatory, not merely directory. We disagree. First, contrary to

their insistence, Jackson-Hicks does not expressly overturn McNamara at all; it does not state

as much in any way shape or form, and the two cases stand side by side as good law to this

day. Second, their reliance on Jackson-Hicks is unavailing. That case did not even involve

joint nomination petitions or slates of candidates; rather, it involved a mayoral candidate who

filed a nomination petition short of the number of valid signatures required to be placed on

the ballot. The crux of our supreme court’s decision was its determination that the

requirement of having a sufficient number of signatures as specified by statute on the

nomination papers was mandatory (not merely directive) and, by failing to meet this

mandatory requirement, the candidate wholly failed to meet a threshold requirement. See

Jackson-Hicks, 2015 IL 118929, ¶¶ 6-7, 37, 42. In turn, because “the clear and unambiguous

standard adopted by the General Assembly requires compliance with a specific numerical

10 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

threshold determined according to a specific mathematical formula *** [a] candidate either

meets that minimum threshold or does not. There is no close enough.” Jackson-Hicks, 2015

IL 118929, ¶ 37.

¶ 16 The issue here is distinguishable. We have been asked to consider whether candidates

can file joint nomination petitions and be slated together. Unlike the candidate in Jackson-

Hicks, the candidates here filed joint nomination papers that met the specific numerical

threshold of required signatures—the only mandatory component at play here. The failure to

submit individual nominating petitions, while error, does not violate a threshold or statutory

requirement that would disqualify them.

¶ 17 Accordingly, we follow McNamara, as it is the only similar precedent in existence at this

time. Notwithstanding that, however, and even were our interpretation of McNamara and/or

our application of it to the instant cause somehow incorrect, it is of no matter. That is

because, more importantly, we further conclude that the Election Code as applied to the

candidates here does not prohibit slate petitions. Clearly and plainly stated, neither the

language of the Municipal Code nor the language of the Election Code expressly disallows

slates.

¶ 18 Again, section 2-80-070 of the Municipal Code is silent with respect to slate petitions in

relation to these new police board council positions. However, and again, these member

positions are nonpartisan. Section 10-4 of the Election Code governs the form of petitions

for candidate for nonpartisan positions. Admittedly, it does not expressly allow for slates.

But, it does provide:

“Such petitions shall consist of sheets of uniform size and each sheet shall contain,

11 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

above the space for signature, an appropriate heading, giving the information as to

name of candidate or candidates in whose behalf such petition is signed ***.” 10

ILCS 5/10-4. (Emphasis added.)

In conjunction, the subsequent section of the Election Code, section 10-5, which also governs

nonpartisan positions, states:

“All petitions for nomination shall, besides containing the names of candidates,

specify as to each:

1. The office or offices to which such candidate or candidates shall be

nominated.” 10 ILCS 5/10-5. (Emphasis added.)

¶ 19 As the cardinal rule of statutory interpretation is to give the words chosen by our

legislature their plain and ordinary meaning, these applicable provisions make clear to us that

the Election Code does, indeed, contemplate the filing of the names of “candidates” for

“offices,” in the plural, to appear on a single petition sheet for nonpartisan positions. If it did

not, it certainly would have been sure to use only singular language. The fact remains, it did

not.

¶ 20 The only statutory language, then, that any court has found to technically prohibit

candidates from filing joint petitions is, as McNamara concluded, in section 10-3 of the

Election Code which, as we set out earlier, provides:

“Nominations of independent candidates for public office within any district or

political subdivision less than the State, may be made by nomination papers signed in

the aggregate for each candidate by qualified voters of such district, or political

subdivision, equaling not less than 5%, norm more than 8% (or 50 more than the

12 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

minimum, whichever is greater) of the number of persons, who voted at the next

preceding regular election in such district or political subdivision in which such

district or political subdivision voted as a unit for the election of officers to serve its

respective territorial area.” 10 ILCS 5/10-3.

As we discussed, the reasoning of McNamara turned on the phrase “by nominating papers

signed in the aggregate for each candidate,” as the court found this is what prohibited

independent candidates from being permitted to file nominating petitions as a slate. See

McNamara, 356 Ill. App. 3d at 965.

¶ 21 Yet, section 10-3 applies to independent candidates; again, as we noted at the outset of

this decision, it only applies to nonpartisan candidates through section 10-3.1, which states:

“The provisions of this Article 10 relating to independent candidate petition

requirements shall apply to nonpartisan petitions to the extent they are not

inconsistent with the requirements of such other statutes or ordinances.” 10

ILCS 5/3.1. (Emphasis added.)

It also states, which is most applicable herein, that:

“Petitions for nomination of nonpartisan candidates for municipal offices where the

statute creating the municipality or providing the form of government thereof, or the

ordinance so providing, pursuant to Article VII of the Constitution, requires election

to such office on a nonpartisan basis and does not permit political party nominations

(including without limitation Articles 4 and 5 of the Municipal Code) shall be in

conformity with any requirements as to contents and number of signatures

specified in such statute or ordinance.” 10 ILCS 5/10-3.1. (Emphasis added.)

13 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

¶ 22 This inherently brings us back, full circle, to section 2-80-070 of the Municipal Code,

which encapsulates the signature requirements for nonpartisan candidates seeking the office

of member of the police district council. Again, that section requires that signatures “for the

petitions for nomination of District Council candidates shall be 0.5% of the total number of

registered votes in the District, or a minimum of 25 registered voters in the District,

whichever is greater.” Obviously, this provision does not contain the “in the aggregate for

each candidate” language that is present in section 10-3 of the Election Code—the section

that McNamara held disallowed joint petitions. Accordingly, section 10-3 of the Election

Code’s method of calculating the minimum number of signatures is inconsistent with section

2-80-070 of the Municipal Code’s method of calculating the minimum number of signatures.

If, then, section 10-3 of the Election Code, which applies to independent candidates, were

applied to the nonpartisan candidates here running for police district council, that would

create a different minimum number of signatures required than if section 2-80-070 of the

Municipal Code were applied.

¶ 23 Ultimately, this cannot be. By the terms of section 10-3.1, section 10-3 of the Election

Code can only apply to nonpartisan petitions “to the extent they are not inconsistent with the

requirements of such other statutes or ordinances.” 10 ILCS 5/3.1. Section 10-3’s “in the

aggregate for each candidate” signature requirement language would be inconsistent with

section 2-80-070’s “0.5% of the total number of registered votes in the District, or a

minimum of 25 registered voters in the District, whichever is greater” signature requirement

language. Therefore, section 10-3 of the Election Code cannot apply to these candidates,

who are required to meet their own particular signature requirements pursuant to section 2-

14 Nos. 1-23-0203, 1-23-0204, & 1-23-0205 (cons.)

80-070 of the Municipal Code. And, if it is not applicable, then this means that the only

statutory language in the Election Code that any court, namely, McNamara, has found to

prohibit slate petitions would, likewise, not be applicable.

¶ 24 To conclude, we reiterate that public policy favors ballot access, and we “tread

cautiously” when construing statutory language that impacts voters’ rights to endorse and

nominate the candidates of their choice. See Lucas, 175 Ill. 2d at 176. Significantly, “[w]e

are not in favor of whittling away at this policy by elevating form over substance.” Sutton,

2012 IL App (1st) 122528, ¶ 10. Barring the printing of these candidates’ names on the

respective ballots at issue would do precisely that. Ultimately, whichever reasoning is

applied—that of McNamara or the conclusion that section 10-3 of the Election Code really

does not apply here—each candidate here obtained the requisite minimum signatures to run

for Member of Police District Council in their districts pursuant to the main requirement of

section 2-80-070 of the Municipal Code. They satisfied the purpose underlying the

requirement for obtaining signatures, and each proposed slate filed more than three times the

minimum number of signatures collectively necessary to be on their respective ballots. With

no express provision in the applicable Municipal Code nor in the Election Code prohibiting

joint petitions, we hold that the candidates should remain on the ballot.

¶ 25 The decision of the Board allowing the candidates’ names to appear on the ballot for the

general municipal election for Member of Police District Council for Chicago Police

Districts 19, 20 and 24 to be held on February 28, 2023 is affirmed.

¶ 26 Affirmed.