2016 IL App (2d) 160649 No. 2-16-0649 Opinion filed August 31, 2016 ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THOMAS A. RUDD, ) Appeal from the Circuit Court ) of Lake County. Petitioner-Appellant, ) ) v. ) No. 16-MR-1339 ) THE LAKE COUNTY ELECTORAL ) BOARD and its Members, CARLA N. ) WYCKOFF, Lake County Clerk and Board ) Chairperson, MICHAEL G. NERHEIM, ) Lake County State’s Attorney and Board ) Member, and his designee KAREN D. FOX, ) KEITH S. BRIN, Lake County Circuit Court ) Clerk and Board Member, and his designee ) JENNIFER RATHUNDE; and MICHAEL P. ) DONNENWIRTH and KEITH E. TURNER, ) Objectors, ) Honorable ) Diane E. Winter, Respondents-Appellees. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Justices Birkett and Spence concurred in the judgment and opinion.
OPINION
¶1 Dr. Thomas Rudd appeals from an order of the circuit court refusing to grant him ballot
position as an independent candidate for the office of Lake County Coroner. Rudd sued to
overturn the decision of the Lake County Electoral Board, which found that Rudd was ineligible
to seek office as an independent candidate in the current election cycle. The parties tell us that 2016 IL App (2d) 160649
September 1, 2016, is the last day to print ballots and absentee ballots, so, with that date
looming, we expedited this appeal.
¶2 Rudd is the incumbent Lake County Coroner. In March 2012, he won the Democratic
primary, and, in November 2012, he defeated his Republican opponent in the general election to
win a four-year term as county coroner. In November 2015, Rudd filed his nominating papers for
the March 2016 primary for another term and for Democratic precinct committeeman for the area
near his home, in northern Lake Forest. In both of his candidacy statements, Rudd averred that
he was “a qualified Primary voter of the Democratic Party ***.” Rudd’s nominating
papers for the coroner’s race drew an objection for improper certification. Rudd did not contest
the objection, and instead withdrew from the Democratic primary for coroner. The following
month, Rudd also withdrew from the primary for Democratic precinct committeeman. As a
result, Rudd did not appear on the ballot in Lake County’s March 2016 primary.
¶3 For context, we note that in Illinois, a candidate may run for office with an established
political party, with a newly formed political party, as an independent, or as a write-in. Currently,
the only two established, statewide political parties are the Democratic and Republican parties
(see https://www.elections.il.gov/votinginformation/partyofficials.aspx (last visited Aug. 30,
2016, as were all other websites in this opinion)), and thus there are only two primary elections.
Established party candidates must file to run generally at the end of November before the March
primary (between 113 and 106 days before the primary (10 ILCS 5/7-12 (West 2012))), while
independents and new party candidates must file circa the end of June after the primary (between
141 and 134 days before the general election (10 ILCS 5/10-6 (West 2012))). Illinois has an open
primary system, which means that voters do not have to register with their party affiliation and
may vote in either party’s primary. Voters, however, must choose which party’s ballot they will
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vote in the primary, and whichever ballot they choose is a matter of public record because it is
considered a declaration of the voter’s current party affiliation.
¶4 Rudd ultimately did not vote in the March 2016 primary. Rudd’s former deputy coroner,
Michael Donnenwirth, won the Democratic primary (he was unopposed) and is now that party’s
nominee for county coroner.
¶5 On June 27, 2016, Rudd filed nominating papers to run as an independent candidate for
county coroner. Donnenwirth (and another individual, but we can refer to both collectively as
Donnenwirth) objected to Rudd’s nominating papers on two grounds. First, Donnenwirth
claimed that Rudd’s signature pages were not consecutively paginated. Cf. 10 ILCS 5/10-4 (West
2012); see also Wollan v. Jacoby, 274 Ill. App. 3d 388, 394 (1995) (noting that the consecutive
pagination requirement prevents tampering). The second basis for Donnenwirth’s objection was
that, because Rudd had originally filed nominating papers for the Democratic primary, he was
ineligible under section 7-43 of the Election Code (10 ILCS 5/7-43 (West 2012)) to run as an
independent candidate for any office in the November 2016 general election.
¶6 Enacted in 2012 (see Public Act 97-681, § 5 (eff. March 30, 2012)), section 7-43 sets
forth what is known as a no-party-switching rule, or as a disaffiliation/disqualification
requirement. It provides:
“A person (i) who filed a statement of candidacy for a partisan office as a
qualified primary voter of an established political party or (ii) who voted the ballot of an
established political party at a general primary election may not file a statement of
candidacy as a candidate of a different established political party or as an independent
candidate for a partisan office to be filled at the general election immediately following
the general primary for which the person filed the statement or voted the ballot. A person
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may file a statement of candidacy for a partisan office as a qualified primary voter of an
established political party regardless of any prior filing of candidacy for a partisan office
or voting the ballot of an established political party at any prior election.” 10 ILCS 5/7-43
(West 2012).
As the United States Supreme Court noted in Storer v. Brown, 415 U.S. 724 (1974):
“[A disqualification law] protects the direct primary process by refusing to
recognize independent candidates who do not make early plans to leave a party and take
the alternative course to the ballot. It works against independent candidacies prompted by
short-range political goals, pique, or personal quarrel. It is also a substantial barrier to a
party fielding an ‘independent’ candidate to capture and bleed off votes in the general
election that might well go to another party.” Id. at 735.
We will revisit the decision in Storer later in this opinion.
¶7 The Electoral Board held a hearing at which both Rudd and Donnenwirth presented
evidence and argument. The following day, the Board issued a 20-page written decision. As to
Donnenwirth’s first objection, Rudd’s “nominating petition contained in excess of 1,400 pages
[of signatures],” the Board wrote, “of which approximately 20 were not numbered precisely
and/or consecutively.” Accordingly, the Board found that Rudd’s nominating papers were
sufficient and overruled Donnenwirth’s first objection. See King v. Justice Party, 284 Ill. App.
3d 886, 890 (1996) (accepting substantial compliance with pagination requirements).
¶8 The Board however sustained Donnenwirth’s second objection. It found that, pursuant to
section 7-43, Rudd was ineligible to stand for office as an independent candidate in the
November 2016 election. Accordingly, the Board denied Rudd a position on the printed ballot.
Rudd had also argued to the Board that the disqualification statute was unconstitutional, but the
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Board (properly) refused to consider the issue. See Bryant v. Board of Elections Commissioners
of City of Chicago, 224 Ill. 2d 473, 476 (2007) (holding that electoral boards have no authority to
consider the constitutionality of a statute). Rudd promptly sought judicial review of the Board’s
administrative decision in the circuit court. See 735 ILCS 5/3-101, et seq. (West 2012). The
circuit court affirmed the Board’s decision, and Rudd has appealed to us. Since the facts are not
in dispute, we review the Board’s underlying decision de novo. Jackson-Hicks v. East St. Louis
Board of Election Commissioners, 2015 IL 118929, ¶ 20.
¶9 Rudd presses two contentions on appeal. The first is that section 7-43, the disqualification
statute (10 ILCS 5/7-43), does not apply because Rudd, in his own opinion, successfully
“disaffiliated” from the Democratic Party within the current election cycle. Rudd notes that
“[n]ot only did [he] take the affirmative step of withdrawing” his Democratic primary candidacy
for both coroner and precinct committeeman, “he also voluntarily chose not to vote in the 2016
March primary, and made it known publicly that he was going to run as an Independent prior to
the primary.” He directs us to a newspaper article entitled, “Rudd Plans Independent Run for
Coroner.” Daily North Shore (Jan. 12, 2016).
¶ 10 Rudd’s argument overlooks that his withdrawal from the Democratic primary is a
nonevent under section 7-43. The Election Code elsewhere provides that the names of withdrawn
candidates “shall [not] be certified or printed on the primary ballot” (10 ILCS 5/7-12(9) (West
2012)), but that section, as the Board noted, does not require election authorities to treat a
candidate as though he or she had never sought office as a member of an established political
party in the same election cycle. 1 It is true, as Rudd notes, that a venerable legal dictionary
1 In an argument raised for the first time on appeal, Rudd’s relies on a provision in the
Election Code for the cancellation of cumulative nominating papers (see 10 ILCS 5/7-12(11)
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defines of the word “withdraw” as “[t]o take back” and “[t]o retract” (BLACK’S LAW
DICTIONARY (10th ed. 2014)) and so, Rudd is correct (at least, in a sense) when he says that his
withdrawal from the March 2016 primary “nullified, ab initio” the effect of his nominating
papers. But Rudd means more by this. He argues that by withdrawing from the Democratic
primary, he effectively erased the fact that he ever filed as a Democratic candidate in the first
place. We disagree.
¶ 11 The fact of Rudd’s earlier established-party candidacy in this election cycle simply is not
Rudd’s to “take back.” Once Rudd filed his nominating papers, his sworn statement of candidacy
and his sworn statement of party affiliation were matters of public record, precisely because
Rudd had publicly expressed them. See generally People v. Perez, 2014 IL 115927, ¶ 23 (citing
People ex rel. Schwartz v. Fagerholm, 17 Ill. 2d 131, 137 (1959)); 735 ILCS 5/1-109 (West
2012); see also Morrison v. Colley, 467 F.3d 503, 510 (6th Cir. 2006) (stating that a “[candidate]
cannot complain if his own *** express statement of his party affiliation is considered and used
*** against him”). And even though Rudd did not receive campaign contributions as a
Democratic candidate in this election cycle (see https://www.elections.il.gov/Campaign
Disclosure/ContributionsSearchByCandidates.asp), it would not be unreasonable to think that
voters in the general election would come to Rudd’s name on the ballot—an incumbent
Democrat, no less—and think, “Wait, Rudd… Isn’t he a Democrat?” After all, see, e.g., “Lake
County Board, State Races Emerge on First Day of Filing.” The Daily Herald (Nov. 23, 2015)
(noting that Rudd, “a Democrat in his first term who is seeking re-election,” was “the first
(West 2012)), but Rudd’s reliance on that provision is unpersuasive because he never sought to
timely cancel his initial Democratic nominating papers; instead, he withdrew them (10 ILCS
5/7-12(9) (West 2012)).
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candidate in line” to file his nominating papers at the clerk’s office) (available at: http://www.
dailyherald.com/article/20151123/news/151129646/). The disqualification statute is designed to,
among other things, prevent such confusion. See Storer, 415 U.S. at 735.
¶ 12 That Rudd withdrew from and ultimately did not vote in the March 2016 primary is of no
significance under section 7-43. The relevant portion of the statute makes this plain enough:
“A person *** who filed a statement of candidacy for a partisan office as a qualified
primary voter of an established political party *** may not file a statement of candidacy
*** as an independent candidate for a partisan office to be filled at the [upcoming]
general election ***.” (Emphases added.) 10 ILCS 5/7-43 (West 2012).
Essentially, Rudd asks us to read (or to force the Board to read) an exception into section 7-43
for established-party candidates who have withdrawn from the primaries. This we cannot do. Our
task is to apply the statute as it is written (Jackson-Hicks, 2015 IL 118929, ¶ 21; Maksym v.
Board of Election Commissioners, 242 Ill. 2d 303, 318 (2011)), and it currently contains no such
exception, regardless of whether the former established-party candidate voted in the primary.
Similarly, we have no trouble rejecting Rudd’s reliance on dicta in Fleming v. State Board of
Elections, 40 Ill. App. 3d 695 (1976), dicta that merely speculated in the most general terms
about whether a candidate’s withdrawal from a party primary was tantamount to complete
disaffiliation. Fleming was based on a version of the Election Code that was significantly
different, and some 36 years older, than the one we have considered today. The Board correctly
considered and applied the Election Code when it held that section 7-43 disqualified Rudd’s
independent candidacy.
¶ 13 Rudd’s second contention is that section 7-43 violates his rights to equal protection under
the law and to free speech under the federal and state constitutions. U.S. Const., amends. I, XIV;
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1970 Ill. Const., art. I, §§ 2, 4. We apply the same standards under both constitutions. Nevitt v.
Langfelder, 157 Ill. 2d 116, 124 (1993). All statutes carry a strong presumption of
constitutionality, and to overcome the presumption, the party challenging the statute must clearly
establish that it violates the constitution. Bridges v. State Board of Elections, 222 Ill. 2d 482, 489
(2006).
¶ 14 With respect to equal protection, Rudd notes that while section 7-43 bars him from
running as an independent or as a candidate of another established party in the current election
cycle, the statute draws no similar prohibition against the candidates of a “new political party.”
(Both independents and new-party candidates file within the same time frame, in June, after the
primaries. See 10 ILCS 5/10-6 (West 2012).) Accordingly, Rudd argues that, because section
7-43 bars his independent candidacy but not his theoretical new-party candidacy, an equal
protection violation is manifest.
¶ 15 The argument need not detain us for long. Equal protection requires that the law treat
similarly situated individuals in a similar fashion, but in order for individuals to be similarly
situated, they must be alike in all relevant respects. In re Derrico G., 2014 IL 114463, ¶ 92
(quoting Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). Can it be said that the candidate of a new
political party, which is a fundamentally partisan endeavor, is similarly situated with an
independent candidate? In a word, no. Though Rudd’s argument suggests the two are fungible,
“the political party and the independent candidate approaches to political activity are entirely
different ***.” Storer, 415 U.S. at 745; see also Stevenson v. State Board of Elections, 638 F.
Supp. 547, 554 (N.D. Ill. 1986). A new political party generally “contemplates [an] ongoing
[political] organization ***.” Storer, 415 U.S. at 745. Under the Election Code, for example, a
new party must have officers, who are authorized to fill vacancies (10 ILCS 5/10-5 (West
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2012)), and must slate candidates “for all offices” in its geographic area of operation (10 ILCS
5/10-2 (West 2012))—though one court recently found the latter requirement unconstitutional.
See Libertarian Party of Illinois v. Illinois State Board of Elections, 2016 WL 723076 (N.D. Ill.
Feb. 24, 2016), appeal pending No. 16-1775 (7th Cir.); cf. Stevenson v. State Board of Elections,
794 F.2d 1176, 1179-80 (7th Cir. 1986) (Easterbrook, J., concurring). An independent candidate
on the other hand is, by definition, unaffiliated and non-partisan, and can “campaign alone
without the necessity of establishing a new political organization.” See Stevenson, 638 F. Supp.
at 554.
¶ 16 Overall, the distinction between the necessarily affiliated and the necessarily unaffiliated,
suffices for us to determine that independent and new-political-party candidates are not similarly
situated. See id. That section 7-43 does not disqualify new-party candidates on the same basis as
independents can be seen as encouraging the post-primary formation of alternative political
parties by voters and candidates who may be either dissatisfied with the status quo or
disappointed with the results of the primary. In any case, Rudd cites no authority that would
compel the General Assembly to confer that same benefit on dissimilarly situated independent
candidates, and thus, his equal protection claim fails.
¶ 17 We also reject Rudd’s contention that section 7-43 violates his associational and free
speech rights. The disqualification statute is, to be sure, a restriction on Rudd’s right to access
the ballot, but it is not a severe one. Only those laws that make ballot access “virtually
impossible” (Williams v. Rhodes, 393 U.S. 23, 24 (1968)), or condition ballot access on an
arbitrary factor (e.g., Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173,
186-87 (1979) (disproportionate signature requirement); Bullock v. Carter, 405 U.S. 134, 143
(1972) (filing fees of up to 15% of candidate’s salary)), or otherwise “prevent[] persons who
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wish to be independent candidates from entering the *** political arena” (Anderson v.
Celebrezze, 460 U.S. 780, 790 (1983)), will be invalidated on constitutional grounds.
¶ 18 The United States Supreme Court, as noted earlier, and the Illinois Supreme Court have
reviewed similar voter and candidate disqualification laws to the one at issue here. A prior
version of section 7-43, which prevented voters from switching party affiliations for 23 months
prior to the election, was held unconstitutional in Kusper v. Pontikes, 414 U.S. 51 (1973).
Likewise, a similar two-year restriction on party-switching by petition circulators was struck
down in Sperling v. County Officers Electoral Board, 57 Ill. 2d 81 (1974). But an 11-month
restriction on voters switching parties in New York was upheld in Rosario v. Rockefeller, 410
U.S. 752, 760 (1973), as was a complete ban on write-in candidates in Hawaii (see Burdick v.
Takushi, 504 U.S. 428, 439 (1992)).
¶ 19 In Storer v. Brown, 415 U.S. 724, the Court approved of a one-year disqualification law
in California’s election code. The Court held that such laws are justified by virtue of the states’
interest in robust election regulation to “prevent splintered parties and unrestrained factionalism
[that] may do significant damage to the fabric of government. See The Federalist, No. 10
(Madison).” Storer, 415 U.S. at 736. Further, the Court said:
“It appears obvious to us that the one-year disaffiliation provision furthers the State’s
interest in the stability of its political system. We also consider that interest as not only
permissible, but compelling and as outweighing the interest the candidate and his
supporters may have in making a late rather than an early decision to seek independent
ballot status.” Id.
¶ 20 The party-switching restriction in section 7-43 is virtually identical to the one upheld in
Storer. See id. at 752. We find that section 7-43 is not excessively—and therefore not
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unconstitutionally—burdensome. All Rudd needed to do to appear on the ballot in the general
election as an independent candidate was to not file in November 2015 as a candidate in the
primary, and then to not vote in the March 2016 primary. “Storer held that a potential candidate
was not significantly burdened by a statute that forced him to think ahead one full year before
becoming an independent candidate” (McClure v. Galvin, 386 F.3d 36, 42 (1st Cir. 2004)
(upholding Massachusetts’s disqualification statute)), and we see no reason why the same logic
should not apply here. See also Hossfeld v. Illinois State Board of Elections, 238 Ill. 2d 418,
429-30 (2010) (“party-switching restrictions on candidates for public office are an important
protection in the electoral process, [and] ‘[s]uch restrictions and establishment of periods of time
involved are, within constitutional limitations, matters for legislative determination.’ Sperling, 57
Ill. 2d at 86”); Bendinger v. Ogilvie, 335 F. Supp. 572, 576 (N.D. Ill. 1971) (“The state’s interest
in limiting candidates from switching parties *** is greater than its interest in limiting voters from
switching parties”); accord Morrison, 467 F.3d 503 (upholding Ohio’s disqualification statute);
Thournir v. Meyer, 909 F.2d 408 (10th Cir. 1990) (upholding Colorado’s disqualification statute).
¶ 21 In sum, the Board correctly found Rudd ineligible to appear on the ballot as an independent
candidate in the current general election cycle. In addition, we have determined that section 7-43
of the Election Code, which kept Rudd off the ballot, is constitutional as applied to him. We
therefore affirm the judgment of the circuit court of Lake County.
¶ 22 Affirmed.
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