Druck v. Illinois State Bd. of Elections

• Decision Date: 26 November 2008
• Docket Number: No. 1-08-2440.,1-08-2440.
• Citation: 899 N.E.2d 437
• Parties: Dan DRUCK, Libertarian Party Candidate for United States Representative in the 14th Congressional District, Petitioner-Appellant, v. ILLINOIS STATE BOARD OF ELECTIONS, State Officers Electoral Board, and Albert Porter, Bryan Schneider, Patrick A. Brady, John R. Keith, Jessie Smart, Wanda Rednour, William M. McGuffage and Robert J. Walters, in their official capacities as members of the duly Constituted State Officers Electoral Board, and Brett Haase, the Objector, Respondents-Appellees.
• Court: United States Appellate Court of Illinois

899 N.E.2d 437

Dan DRUCK, Libertarian Party Candidate for United States Representative in the 14th Congressional District, Petitioner-Appellant, v. ILLINOIS STATE BOARD OF ELECTIONS, State Officers Electoral Board, and Albert Porter, Bryan Schneider, Patrick A. Brady, John R. Keith, Jessie Smart, Wanda Rednour, William M. McGuffage and Robert J. Walters, in their official capacities as members of the duly Constituted State Officers Electoral Board, and Brett Haase, the Objector, Respondents-Appellees.

No. 1-08-2440.

Appellate Court of Illinois, First District, Fourth Division.

November 26, 2008.

Andrew B. Spiegel, Lemont, IL, for Petitioner-Appellant.

Ancel, Glink, Diamond, Bush, DiCanni & Krafthefer, P.C., Chicago, IL, Jeffrey R. Jurgens, Keri-Lyn Krafthefer, of counsel, Lisa Madigan, Attorney General, Chicago, IL, James Lang, of counsel, for Respondents-Appellees.

Justice NEVILLE delivered the opinion of the court:

Dan Druck, the candidate, filed nomination papers to have his name placed on the ballot for the November 4, 2008, general election in the 14th Congressional District. Brett Hasse, the objector, filed objections that challenged Druck's nomination papers. The Illinois State Board of Elections (SBOE), sitting as the State Officers Electoral Board (SOEB) (1) found that it lacked the authority to address the constitutional issues raised by Druck, but (2) found that Druck failed to secure enough signatures on his nominating petitions to have his name placed on the ballot. Accordingly, the SOEB invalidated Druck's nomination papers and sustained the objections.

After Druck's name was removed from the ballot, he filed an expedited petition in the circuit court that challenged the SOEB's decision that his nomination petitions did not contain a sufficient number of signatures for him to be certified as a candidate entitled to have his name placed on the November 2008 ballot. Druck's petition also alleged that sections 10-2 and 10-8 of the Election Code, (10 ILCS 5/10-2, 10-8 (West 2006)) interfered with his right to ballot access and placed restrictions on his and on the voters in the district's first and fourteenth amendment right (U.S. Const.Amends. I, XIV). Druck and the state defendants filed cross-motions for summary judgment, and Hasse filed a response to Druck's motion for summary judgment. The circuit court granted the state defendants' motion for summary judgment and Druck filed this appeal.

Druck filed a memorandum in the appellate court and maintains that the circuit court erred when it entered an order that granted the SOEB's motion for summary judgment thereby affirming the SOEB's decision to remove Druck's name from the ballot. Druck presents the following issues for our review: (1) whether it is a violation of Druck's first and fourteenth amendment rights for section 10-2 of the Election Code, in elections subsequent to the first election following a redistricting, to impose a minimum signature requirement for ballot access of 5% of the voters who voted in the next preceding regular election in the district; (2) whether Druck's first and fourteenth amendments rights are violated if the signature requirements for ballot access in section 10-2 of the Election Code are only enforced when objections are filed pursuant to section 10-8 of the Election Code; and (3) whether the signature requirements for ballot access in section 10-2 of the Election Code for a new party formed in a district, which are different from the signature requirements for a new party formed in the entire state, violate Druck's first and fourteenth amendment constitutional rights and his rights under article I, sections 2, 4, and 5, of the Illinois Constitution (Ill. Const.1970, art. I, §§ 2, 4, 5). For the reasons that follow, we affirm the circuit court's September 4, 2008, order that affirmed the decision of the SOEB that removed Druck's name from the ballot.

BACKGROUND

Dan Druck filed nominating petitions containing 7,131 signatures in order to have his name placed on the ballot as the Libertarian candidate for the office of representative in the 14th Congressional District in the November 4, 2008, general election. On June 30, 2008, Brett Haase filed objections to Druck's nominating petitions that alleged that Druck failed to meet the minimum signature requirement to have his name appear on the ballot.

On July 21, 2008, the SBOE, sitting as the SOEB, considered Haase's objections to Druck's nomination petitions. The SOEB found that Druck was required to file nominating petitions that contained no fewer than 9,995 signatures. The SOEB also found that Druck's nominating petitions only contained 7,131 signatures. The SOEB further found (1) that Druck's nominating petitions did not contain the number of signatures required to place his name on the ballot; and (2) that the SOEB lacked the authority to rule on any of the Druck's constitutional issues. Accordingly, the SOEB sustained Brett Haase's objections to Druck's nominating petition and removed Druck's name from the ballot.

On July 30, 2008, Druck filed an expedited petition in the circuit court for judicial review of the SOEB's decision (10 ILCS 5/10-10.1(West 2006)(section 10.1 provides for judicial review of the decisions of an electoral board)), and he argued that sections 10-2 and 10-8 of the Election Code (10 ILCS 5/10-2, 10-8 (West 2006)), individually or collectively, violated the state and federal constitutions (1) because the number of signatures required was so high that it violated constitutional principles promoting access to the ballot; (2) because it is unfair for him to be removed from the ballot for having collected too few signatures when other candidates who do likewise but whose eligibility is unchallenged remain on the ballot; and (3) because Illinois has determined that 5,000 signatures are a sufficient showing of support to merit ballot access and, thus, it is a violation to ever require a greater number of signatures.

On August 13, 2008, Druck filed a motion for summary judgment in which he argued that sections 10-2 and 10-8 of the Election Code, when taken together, result in an unconstitutional denial of ballot access in the 14th Congressional District. Druck's summary judgment motion maintained that "the issue [before the circuit court was] whether the disparity in treatment of new versus established party candidates has any rational basis in view of the detrimental impact such ballot access restrictions place on the first and fourteenth amendment rights of the candidate." Druck also maintained that if 5,000 signatures are a sufficient showing of a modicum of support after redistricting, then there is no rational basis for a different number of signatures (5% of the voters voting in the district) in the elections subsequent to the first election following a redistricting. Finally, Druck maintained that section 10-8 of the Election Code virtually eliminates the signature requirement if no one files a challenge.¹

On August 19, 2008, the SOEB filed a cross-motion for summary judgment and argued that the issues raised by Druck have been addressed by the Seventh Circuit in Libertarian Party of Illinois v. Rednour, 108 F.3d 768 (7th Cir.1997). The SOEB argued, based upon Rednour, that, although the rights to vote and to associate are fundamental, those rights are not absolute because the State is permitted to impose reasonable restrictions on access to the ballot and has a duty to ensure the electoral process is orderly.

The circuit court found that, although established party candidates are required to collect a smaller number of signatures in order to secure a position on the ballot, they have a requirement that Druck does not, namely, that they must also prevail in a primary election. The circuit court also found (1) that the decision of the SOEB was not against the manifest weight of the evidence; and (2) that the decision of the SOEB was not contrary to the applicable statute. Finally, Druck appeals from the circuit court's September 4, 2008, order that granted the SOEB's motion for summary judgment thereby affirming the SOEB's decision that removed Druck's name from the November 4, 2008 ballot.

ANALYSIS

Standard of Review

This court views electoral boards, such as the SOEB, as administrative agencies. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill.2d 200, 209, 319 Ill.Dec. 887, 886 N.E.2d 1011 (2008)(citing Kozel v. State Board of Elections, 126 Ill.2d 58, 68, 127 Ill.Dec. 714, 533 N.E.2d 796 (1988) ("`As an administrative agency established by statute, an electoral board may exercise only the powers conferred upon it by the legislature'")). Because the legislature vested electoral boards, and not the circuit court, with original jurisdiction over objections to nomination petitions (Cinkus, 228 Ill.2d at 209, 319 Ill.Dec. 887, 886 N.E.2d 1011 (citing Geer v. Kadera, 173 Ill.2d 398, 407, 219 Ill.Dec. 525, 671 N.E.2d 692 (1996), and 10 ILCS 5/10-9 (West 2006))), this court reviews the decisions of the electoral board, herein the SOEB, rather than the circuit court. Siegel v. Lake County Officers Electoral Board, 385 Ill.App.3d 452, 455, 324 Ill.Dec. 69, 895 N.E.2d 69 (2008) (citing Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill.2d 200, 212, 319 Ill.Dec. 887, 886 N.E.2d 1011 (2008), and Bergman v. Vachata, 347 Ill. App.3d 339, 344, 282 Ill.Dec. 934, 807 N.E.2d 558 (2004) (citing Lockhart v. Cook County Officers Electoral Board, 328 Ill. App.3d 838, 841, 262 Ill.Dec. 968, 767 N.E.2d 428 (2002))).

Moreover, because this court views electoral boards as administrative agencies (Kozel v. 126 Ill.2d at 69, 127 Ill.Dec. 714, 533 N.E.2d 796), the standards of review are essentially identical. Siegel, 385 Ill.App.3d at 455, 324 Ill.Dec. 69, 895 N.E.2d 69, citing Cullerton v. Du Page County Officers Electoral Board, No. 2-08-0605, 384 Ill.App.3d 989, 990, 323 Ill. Dec. 748, 894...