Hossfeld v. the Ill. State Bd. of Elections

• Citation: 238 Ill.2d 418,345 Ill.Dec. 525,939 N.E.2d 368
• Decision Date: 07 October 2010
• Docket Number: No. 109725.,109725.
• Parties: Frederick J. HOSSFELD, Appellant,v.The ILLINOIS STATE BOARD OF ELECTIONS et al., Appellees.
• Court: Supreme Court of Illinois

238 Ill.2d 418

939 N.E.2d 368

345 Ill.Dec. 525

Frederick J. HOSSFELD, Appellant,

v.The ILLINOIS STATE BOARD OF ELECTIONS et al., Appellees.

No. 109725.

Supreme Court of Illinois.

Oct. 7, 2010.

OPINION TEXT STARTS HEREWest CodenotesPrior Version Recognized as UnconstitutionalS.H.A. 10 ILCS 5/7–10, 5/7–43, 5/8–8

Michael J. Kasper, Courtney C. Nottage, of Chicago, for appellant.Burton S. Odelson, Matthew M. Welch, of Odelson & Sterk, Ltd., of Evergreen Park, for appellee Steven J. Rauschenberger.

[345 Ill.Dec. 526 , 238 Ill.2d 420] OPINION

Chief Justice FITZGERALD delivered the judgment of the court, with opinion.

This appeal concerns the party-switching restrictions on political candidates for the General Assembly under section 8–8 of the Election Code (10 ILCS 5/8–8 (West 2008)). At issue is whether Steven J. Rauschenberger was ineligible to run as a Republican candidate in the February 2010 general primary election for the office of State Senator because he voted a Democratic

[345 Ill.Dec. 527 , 939 N.E.2d 370]

ballot in the February 2009 consolidated primary election in Elgin Township.

On September 22, 2010, following oral argument in this case, this court issued its oral ruling affirming the judgment of the appellate court, which held that Rauschenberger was eligible to run (398 Ill.App.3d 737, 338 Ill.Dec. 228, 924 N.E.2d 88). A written order to that effect was also entered on September 22, stating that an opinion from this court would follow. This is that opinion.

BACKGROUND

The relevant facts are not in dispute. In February 2009, Steven Rauschenberger, who had historically voted a Republican ballot in primary elections, voted a Democratic ballot in the consolidated primary election in Elgin Township. Rauschenberger's sister was running for Democratic township trustee. The general township election, for which that primary was held, took place in April 2009. Six months later, in October 2009, Rauschenberger filed nomination papers seeking the Republican nomination for the office of State Senator of the 22nd Legislative District for the February 2, 2010, general primary election.¹ Pursuant to section 8–8 of the Election Code ( 10 ILCS 5/8–8 (West 2008)), Rauschenberger's nomination papers included a sworn “statement of candidacy” which stated, in relevant part, that Rauschenberger was a “qualified primary voter of the Republican Party.”

Prior to the general primary election, Frederick J. Hossfeld, a registered voter of the 22nd Legislative District, filed an objector's petition challenging Rauschenberger's eligibility to run as a Republican candidate. Hossfeld argued that Rauschenberger's statement of candidacy falsely stated that he was a “qualified primary voter of the Republican Party.” Relying on Cullerton v. Du Page County Officers Electoral Board, 384 Ill.App.3d 989, 323 Ill.Dec. 748, 894 N.E.2d 774 (2008), Hossfeld maintained that because Rauschenberger had voted as a Democrat at the most recent primary election preceding the filing of his nomination papers, his status was “locked” as a Democratic primary voter until he voted in the February 2010 general primary election.

The State Board of Elections, sitting as the State Officers Electoral Board, appointed a hearing examiner who, relying on the Cullerton case, recommended that Hossfeld's objection be sustained. The Board's general counsel concurred. A subsequent vote by the eight-member Board, however, resulted in a tie vote. Because a majority vote is required to invalidate nomination papers (10 ILCS 5/10–10 (West 2008)), Rauschenberger's name remained on the ballot for the February 2010 general primary election pending judicial review in the circuit court of Cook County. The circuit court distinguished the Cullerton case and denied Hossfeld's petition. In an expedited appeal, the appellate court affirmed, over a dissent. 398 Ill.App.3d 737, 338 Ill.Dec. 228, 924 N.E.2d 88. The appellate majority held that the Election Code “no longer provides express time limitations on party-switching for candidates,” and that Rauschenberger is a qualified primary voter of the Republican Party. 398 Ill.App.3d at 743, 338 Ill.Dec. 228, 924 N.E.2d 88. Although the dissenting justice would have removed Rauschenberger from the ballot based on the Cullerton opinion (

[345 Ill.Dec. 528 , 939 N.E.2d 371]

398 Ill.App.3d at 744–45, 338 Ill.Dec. 228, 924 N.E.2d 88 (Steele, J., dissenting)), the appellate majority concluded that Cullerton is “notably different” from the present case (398 Ill.App.3d at 743, 338 Ill.Dec. 228, 924 N.E.2d 88). We allowed Hossfeld's petition for leave to appeal. 210 Ill.2d R. 315.

ANALYSIS

I

Although the Board failed to render a decision by a majority vote, and thus took no action on Hossfeld's objection, the Board's decision is nonetheless subject to judicial review. See 10 ILCS 5/10–10.1 (West 2008) (providing that an “objector aggrieved by the decision of an electoral board may secure judicial review”). While the Board's order does not set forth the reasons the members voted to sustain or deny Hossfeld's objection, the general counsel's recommendation, as well as the hearing examiner's report and recommended decision, both contain a detailed explanation for sustaining Hossfeld's objection. Thus, judicial review may be accomplished by reviewing these documents. See Cook County Republican Party v. Illinois State Board of Elections, 232 Ill.2d 231, 241–43, 327 Ill.Dec. 531, 902 N.E.2d 652 (2009) (holding that tie-vote dismissals of Election Code complaints were subject to judicial review on the merits, based on the detailed explanation set forth in the general counsel's recommendation).

As to the appropriate standard of review, we agree with the appellate court that de novo review applies. 398 Ill.App.3d at 740, 338 Ill.Dec. 228, 924 N.E.2d 88. An electoral board is viewed as an administrative agency. Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill.2d 200, 209, 319 Ill.Dec. 887, 886 N.E.2d 1011 (2008). Thus, the standard of review is determined by the type of question on review. Cinkus, 228 Ill.2d at 210, 319 Ill.Dec. 887, 886 N.E.2d 1011. Here, the historical facts are not in dispute, and the question is a purely legal one: whether, based on our interpretation of section 8–8 of the Election Code, Rauschenberger is a “qualified primary voter of the Republican Party.” Our review is “independent and not deferential.” Cinkus, 228 Ill.2d at 210, 319 Ill.Dec. 887, 886 N.E.2d 1011.

II

Before considering the merits, we note that Rauschenberger has since won the Republican nomination for State Senator of the 22nd Legislative District. Hossfeld maintains, and we agree, that this event has not rendered this appeal moot. A case on appeal is moot where the issues raised below no longer exist because events subsequent to the filing of the appeal make it impossible for the reviewing court to grant the complaining party effectual relief. Cinkus, 228 Ill.2d at 207–08, 319 Ill.Dec. 887, 886 N.E.2d 1011. Though the primary election at which Rauschenberger's candidacy was challenged has passed, the November 2, 2010, general election at which the Senate seat he seeks will be decided has yet to occur. Moreover, and in any event, this appeal raises an issue of election law which “inherently is a matter of public concern” and reviewable under the public interest exception to the mootness doctrine. Cinkus, 228 Ill.2d at 208, 319 Ill.Dec. 887, 886 N.E.2d 1011.

III

Hossfeld argues, pursuant to Cullerton, that Rauschenberger was not a “qualified primary voter of the Republican Party” because he voted a Democratic ballot in “the most recent primary election preceding the filing of [his] statement of candidacy,” and he was thus “locked” as a

[345 Ill.Dec. 529 , 939 N.E.2d 372]

Democratic primary voter until he voted in the 2010 general primary election. Cullerton, 384 Ill.App.3d at 996, 323 Ill.Dec. 748, 894 N.E.2d 774. Hossfeld maintains that no significance attaches to the fact that the Democratic ballot he voted was in a consolidated or local election, which was completed prior to Rauschenberger filing his nomination papers for a statewide office.² Rauschenberger responds that the General Assembly has eliminated the “lock out” provisions in the Election Code, which were held unconstitutional (see Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Sperling v. County Officers Electoral Board, 57 Ill.2d 81, 309 N.E.2d 589 (1974)), and that under the current Election Code, Rauschenberger properly declared himself a qualified primary voter of the Republican Party. Rauschenberger further responds that Cullerton is limited by its facts and stands only for the proposition that a candidate is precluded from switching parties during an election cycle. Accordingly, Rauschenberger maintains that his Democratic vote in the 2009 consolidated election in Elgin Township did not preclude him from declaring himself a qualified primary voter of the Republican Party in his nomination papers for the 2010 general primary election. We agree with Rauschenberger.

Historically, the Election Code contained a two-year restriction on party-switching applicable to voters, signers of nomination petitions, and candidates. See generally Sperling, 57 Ill.2d at 81–82, 309 N.E.2d 589. Specifically, under section 7–43(d), a person was not entitled to vote at a primary election if he had voted at the primary election of another political party within the preceding 23 months. Ill.Rev.Stat.1971, ch. 46, par. 7–43(d). Section 7–10 contained a similar restriction applicable to signers of nominating petitions for primary elections and candidates for nomination in such primary elections. Section 7–10 required that nominating petitions shall be signed by “qualified primary electors,” and that candidates, in their nomination petitions, must swear that he or she “is a qualified primary voter of the party to which the petition relates.” Ill.Rev.Stat.1971, ch. 46, par. 7–10....