Raila v. The Cook County Officers Electoral Board and its Members

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

ANDREA RAILA,

Plaintiff, No. 19 C 7580

v. Judge Thomas M. Durkin

COOK COUNTY OFFICERS ELECTORAL

BOARD, et al.,

Defendants.

MEMORANDUM OPINION AND ORDER

Plaintiff Andrea Raila and seven of her supporters for the 2018 Democratic

primary election for Cook County Assessor bring this action against the Cook County

Officers Electoral Board, its members Karen Yarborough, Dorothy Brown, and

Kimberly Foxx, an unnamed Cook County Hearing Officer (the “Cook County

Defendants”), the Chicago Board of Election Commissioners, and its members

Marisel Hernandez, William Kresse, and Jonathan Swain (the “Chicago

Defendants”).1 Plaintiffs contend that Defendants violated their due process rights

(Count I) and rights to vote and of association (Count II) in the leadup to the primary.

The Cook County Defendants moved to dismiss Plaintiffs’ claims. R. 19. For the

following reasons, that motion is granted. The Court also sua sponte dismisses this

action against the Chicago Defendants.

1 Raila is the only plaintiff named in the case caption but the complaint states that

this action is also brought on behalf of seven voters. This is discussed in more detail

below.

Legal Standard

A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.

Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must

provide “a short and plain statement of the claim showing that the pleader is entitled

to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of

the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

This standard “demands more than an unadorned, the-defendant-unlawfully-

harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed

factual allegations” are not required, “labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

The complaint must “contain sufficient factual matter, accepted as true, to ‘state a

claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,

550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d

362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,

the Court accepts all well-pleaded facts as true and draws all reasonable inferences

in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).

Background

A. Facts

In December 2017, Plaintiff Andrea Raila filed her nominating petitions to be

placed on the Democratic primary ballot for the Office of the Cook County Assessor.

R. 27 ¶ 12.2 Raila submitted 23,357 signatures, far more the 8,236 required for ballot

placement. Id. ¶¶ 15-16. One week later, objectors challenged the validity of Raila’s

signatures, alleging improper circulator residency and fraud. Id. ¶¶ 13, 18. The Cook

County Officers Electoral Board assigned Christopher Agrella to hear Raila’s case.

Id. ¶ 14. Following a two-week records examination, the Cook County Clerk

determined that Raila had submitted 14,138 acceptable signatures. Id. ¶ 16. Raila’s

name was printed on paper and electronic ballots pending an ongoing evidentiary

hearing to address the remaining objections (this was necessary so that the ballots

would be ready for the election). Id.

The evidentiary hearing included 16 days of evidence and lasted intermittently

from December 19, 2017 to February 15, 2018. Id. ¶ 18. Raila alleges that the hearing

had multiple procedural irregularities. First, Agrella allowed the objectors unlimited

time to present their case while providing Raila only two days. Id. ¶ 19. Second, much

of the objectors’ case relied on an affidavit from Douglas Martin, a “prolific circulator”

for Raila, stating that he did not circulate signature sheets and did not sign his sheets

in front of a notary. Id. Raila introduced a second affidavit from Martin stating that

the objectors’ affidavit was false. Id. Agrella, however, refused Raila’s request to allow

Martin to testify to explain the discrepancy. Id. Agrella also denied Raila’s request to

have an objector testify who had told the Cook County Board of Elections that she

was unaware her name was on the objector list. Id. ¶ 20.

2 The complaint is disorganized and at points presents facts in a non-chronological

order. The facts included are the Court’s best attempt to discern the narrative set

forth.

Following the hearing, and based almost exclusively on the affidavits, Agrella

struck 8,471 of Raila’s signatures due to fraud, putting Raila below the 8,236-

signature requirement. Id. ¶ 23. This included striking every petition sheet notarized

by a notary who had notarized any of Martin’s sheets, which caused Raila to lose over

7,000 signatures. Id.

On February 15, 2018, the Cook County Officers Electoral Board adopted

Agrella’s report and recommendation and determined that votes for Raila would not

count. Id. ¶ 24. Five days later, Raila appealed the Board’s decision to the Circuit

Court of Cook County. Id. ¶ 25. Meanwhile, early voting began on February 21. Id.

On February 27, the Circuit Court upheld the Board’s ruling and approved the

distribution of green voter notices and wall posters at early voting locations stating

that votes for Raila would not be counted. Id. ¶ 26.

On March 1, the Illinois Appellate Court denied Raila’s motion to stay to

prevent the notices from being distributed pending its review. Id. ¶ 27. The Cook

County Board subsequently ordered 1 million of the green notices and mailed an

additional 40,000 absentee voter notices stating that votes for Raila would not count.

Id. ¶¶ 27, 28.3 The Cook County Clerk also posted a video to his public Facebook page

of him holding a green notice. Id. ¶ 17. Meanwhile, the Chicago Board of Election

Commissioners placed ads in two free weekly papers with large circulations stating

that votes for Raila would not be counted. Id. ¶ 29.

3 The complaint states that the “Board of Election Commissioners” ordered the voter

notifications and that the “Board of Elections” mailed the absentee notices. The Court

assumes that these are both references to the Cook County Officers Electoral Board.

On March 14, six days before the primary, the Illinois Appellate Court

unanimously overturned the Cook County Board’s decision, holding that Agrella

erred by not allowing Martin to testify and by giving inordinate weight to the

affidavits. Id. ¶ 30. The court concluded that the Board’s decision that the objectors

proved fraud by clear and convincing evidence was clearly erroneous and that votes

for Raila should count. Id. The next day, the Circuit Court denied Raila’s motion for

remedial measures in which she argued that she had been denied due process when

the notices and wall posters were sent to polling locations, when absentee voter

notices were mailed, and when ads had been placed in the weekly newspapers. Id. ¶

32.

Following the Appellate Court’s decision, the “Election Authorities”4 ordered

new notices without Raila’s name on the list of candidates for whom votes would not

count. Id. ¶ 31. However, there was an insufficient supply of these new notices,

instructions were not sent to election judges to remove the original green notices from

election supply boxes, and the Cook County Clerk did not post an updated message

on his Facebook page. Id. On the eve of the primary, an election judge told Raila that

the original green notices were still included in the election supply boxes. Id. ¶ 34.

Raila called the Cook County Clerk, who told her that emails would be sent to election

judges instructing them to hand out the updated notices, and that the Chicago

election boxes may have the same problem since they had worked together to

4 The Court assumes that “Election Authorities” refers jointly to the Cook County

Board and the Chicago Board.

assemble them. Id. Raila called the Chicago Board of Elections’ executive director and

communications director, who told her that a text message would be sent to all

election judges to distribute the updated notices. Id. At 6:00 a.m. on election day, the

Chicago Board sent text messages erroneously instructing election judges to give

voters the original green notices. Id. The Board did not send corrected text messages

until 11:00 a.m. and 1:00 p.m. Id. Following the primary, “Election Authorities” held

a press conference to announce that the election system had failed Raila as a result

of the error. Id. ¶ 36.

Plaintiffs filed this action for violations of their due process rights (Count I)

and their rights to vote and of association (Count II).5

Analysis

I. Due Process (Count I)

In Count I, Raila alleges that her due process rights were violated when the

Cook County Officers Electoral Board (1) struck entire signature sheets based on

notarial fraud without giving notice of this “irregular change in practice;” and (2) used

Douglas Martin’s affidavit to strike 7,000 signatures without allowing Raila to call

Martin as a witness. R. 27 ¶¶ 38-40.

5 In the response to the Defendants’ motion to dismiss, Plaintiffs withdrew their equal

protection claim. Plaintiffs also withdrew their claim against Agrella, replaced David

Orr with Karen Yarborough in her official capacity as Cook County Clerk, and

dropped their claim for money damages. Moreover, and as discussed in more detail

below, based on the response it appears that the remaining claims are only brought

on Raila’s behalf.

Although the parties do not raise the issue, the Court first considers whether

res judicata precludes Raila’s claim. See Muhammad v. Oliver, 547 F.3d 874, 878 (7th

Cir. 2008) (court may raise res judicata if basis for its application is disclosed in the

complaint). Claim preclusion has three requirements under Illinois law: “(1) a final

judgment on the merits rendered by a court of competent jurisdiction; (2) an identity

of the causes of action; and (3) an identity of the parties or their privies.” Rose v. Bd.

of Election Comm’rs for City of Chicago, 815 F.3d 372, 374 (7th Cir. 2016). The Court

must also consider whether plaintiff had a full and fair opportunity to litigate in the

prior proceeding. Id. at 376.

The Appellate Court’s reversal of the Cook County Board constitutes a final

judgment on the merits rendered by a court of competent jurisdiction and thus the

first element is satisfied. See Licari v. City of Chicago, 298 F.3d 664, 667 (7th Cir.

2002). The third element, identity of parties or their privies, is also met. Raila, the

Cook County Officers Electoral Board, and the Chicago Board of Election

Commissioners were all parties in the Appellate Court’s review.6 As to Raila’s

supporters, who were not parties in the state proceedings, it is unclear the extent to

which they are intended to be parties in this lawsuit. The case caption names only

Raila, and the complaint alleges a violation of only Raila’s due process rights. While

Count II alleges that “the right to vote of [Raila’s] supporters was injured,” id. ¶ 44,

6 See Raila v. Cook Cnty. Officers Electoral Bd., No. 1-18-0400 (Mar. 4, 2018)

(unpublished order under Illinois Supreme Court Rule 23). The Court may take

judicial notice of state court decisions in ruling on a motion to dismiss. 520 S.

Michigan Ave. Assocs., Ltd. v. Shannon, 549 F.3d 1119, 1137 n.14 (7th Cir. 2008).

the response to the motion to dismiss does not mention the voters even once. The

Court thus assumes that Plaintiffs have waived Count II to the extent it relates to

the voters’ constitutional rights, if a claim was ever intended at all.

But even assuming the claim is also brought on the voters’ behalf, under

Illinois law “privity exists between ‘parties who adequately represent the same legal

interests.’” Lawrence v. Bd. of Election Comm’rs of City of Chicago, 524 F. Supp. 2d

1011, 1022 (N.D. Ill. 2007) (quoting Burris v. Progressive Land Developers, Inc., 602

N.E.2d 820, 825 (Ill. 1992)). “It is the identity of interest that controls in determining

privity, not the nominal identity of the parties.” Id. (quoting Burris, 602 N.E.2d at

826). The Court sees no reason why Raila did not adequately represent her voters’

legal interests in challenging the Board’s decision to remove her from the ballot and

seeking relief from the distribution of the relevant information in state court. See id.

(finding candidate adequately protected his supporters’ interests in state court review

of Board of Election Commissioners’ decision for purposes of claim preclusion in

subsequent federal suit). Indeed, as the candidate, Raila had an even greater interest

in raising these issues. Id. That Raila adequately represented the voters’ legal

interests in state court is evidenced by the fact that the response to the motion to

dismiss in this case makes no distinction between Raila’s and the voters’ claims

(again, to the extent the voters are intended to be included in this lawsuit).

That leaves only the second element, identity of the causes of action. In

rendering judgment for Raila, the Appellate Court held that Agrella abused his

discretion by not allowing Martin to testify and by placing inordinate weight on the

affidavits. R. 27 ¶ 30. The court further concluded that the Board’s finding of notarial

fraud by clear and convincing evidence was clearly erroneous. Id. This is the exact

subject matter on which Raila now bases her due process claim. Id. ¶¶ 38-40. That

Raila seeks different relief in this action is of no matter. “Illinois law does not test the

identity of claims by looking for a unity of objectives and interests between the claims

asserted. Instead, the court only considers whether or not the claims arise out of a

single group of operative facts.” Girot v. Mun. Officers Electoral Bd. of City of

Braidwood, 2006 WL 59393, at *5 (N.D. Ill. Jan. 5, 2006) (citing River Park, Inc. v.

City of Highland Park, 703 N.E.2d 883, 893 (Ill. 1998)); see also Rose, 815 F.3d at 375

(“[Plaintiff’s] addition of a § 1983 claim in his federal action does not change the

analysis; it is merely a different theory of recovery arising from the same facts and

circumstances that gave rise to the state action.”). Because Raila’s claim concerns the

same facts considered in the state court review, identity of the causes of action exists.

However, even if the elements of claim preclusion are met, federal courts

“accord preclusive effect to a state court judgment only if the plaintiff had a ‘full and

fair opportunity’ to litigate his claims in the prior action.” Rose, 815 F.3d at 376. “So

long as [Plaintiff] could have joined [her] federal claims with the administrative

appeal of the Board’s decision, then [she] had a full and fair opportunity to litigate.”

Garcia, 360 F.3d at 639. Here, Raila could have asserted her due process challenge

during the administrative appeal. See Rose, 815 F.3d at 375 (“state courts may

consider constitutional challenges when reviewing election board decisions.”); Garcia,

360 F.3d at 637, 644. Because Raila had a full and fair opportunity to litigate and the

elements of res judicata are otherwise satisfied, her due process claim is barred.

II. First and Fourteenth Amendment Right to Vote and Right of

Association

In Count II, Plaintiffs allege that their rights to vote and freely associate were

violated when the Cook County Board and the Chicago Board of Commissioners

mailed notices, hung wall posters, posted a Facebook video, bought newspaper

advertisements, and sent text messages to election judges stating that votes for Raila

would not count. Id. ¶¶ 42-44.

It would seem as though res judicata also precludes a significant portion of this

claim. The notices and posters were mailed with the Circuit Court’s express approval,

and the Appellate Court denied Raila’s motion to prevent their distribution. The

Circuit Court then denied Raila’s motion for remedial relief based on the Defendants’

actions to inform voters that she had been removed from the ballot after the Appellate

Court’s reversal. It thus appears that a final judgment was rendered on the same

group of facts at issue in Count II. And for the same reasons discussed as to Count I,

the identity of the parties’ element is also met. Nevertheless, based solely on the

allegations in the complaint, and in the absence of briefing, the Court cannot fully

discern whether Raila had a full and fair opportunity to litigate her federal claims

asserted in Count II in the underlying proceedings. And at least some of the conduct

alleged in Count II occurred after the rulings of the Circuit Court and Appellate Court

and thus could not have been litigated. As such, the Court declines to decide Count

II on the grounds of claim preclusion.

However, Count II (and Count I for that matter) still fails because Plaintiffs do

not state a claim upon which relief may be granted. In response to Defendants’ motion

to dismiss, Plaintiffs rely exclusively on Briscoe v. Kusper, 435 F.2d 1046 (7th Cir.

1970). In Briscoe, the Seventh Circuit held that the Chicago Board of Election

Commissioners violated the due process rights of candidates and voters who signed

their nominating petitions when it decided for the first time to enforce a statutory

anti-duplication rule and to require a signer’s signature to include his or her middle

initial in order to be counted. 435 F.2d at 1055. In so holding, the court explained that

“[a]n agency may be bound by its own established custom and practice as well as by

its formal regulations. The Board may not deviate from such prior rules of decision

on the applicability of a fundamental directive without announcing in advance its

change in policy.” Id. Or put another way, “the Constitution prohibits agency

deviations so great that individuals cannot anticipate them.” Johnson v. Cook Cnty.

Officers Electoral Bd., 680 F. Supp. 1229, 1236 (N.D. Ill. 1988) (citing Briscoe).

Drawing on this language, Plaintiffs contend that “there were profound agency

deviations that Plaintiff could not have reasonably anticipated.” R. 24 at 7. But in

Briscoe, the plaintiffs challenged specific provisions of the Illinois Election Code.

Briscoe, 435 F.2d at 1054 (“At the center of the controversy lies the Board’s

interpretation and application of two basic provisions of the Illinois Election Code.”).

Here, Plaintiffs fail to identify a single statute, protocol, or rule from which the

Defendants deviated. The conclusory statement that “agency deviations befell the

Plaintiff” is insufficient to state a plausible claim that a constitutional violated

occurred. R. 24 at 7.

Moreover, to the extent Count II concerns Defendants’ failure to abide by the

Appellate Court’s decision, the claim also fails. The complaint alleges that the wrong

notices were sent to polling locations, that election authorities failed to remove them

from election supply boxes, and that the Chicago Board’s text message gave erroneous

instructions to the election judges. But election irregularities only implicate section

1983 “when there ‘is ‘willful conduct which undermines the organic processes by

which candidates are elected.’” Bodine v. Elkhart Cnty. Election Bd., 788 F.2d 1270,

1272 (7th Cir. 1986) (quoting Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir. 1975)).

The complaint contains no allegations that Defendants willfully ignored the

Appellate Court’s decision to undermine the election; rather, it appears the Appellate

Court’s reversal just six days before the election triggered the resultant confusion and

errors. Indeed, the complaint states that election officials acknowledged these

mistakes, and Plaintiffs do not contest Defendants’ contention that these actions were

inadvertent. R. 20 at 12. Therefore, Plaintiffs have failed to state a claim under

section 1983.

For the same reasons stated above, the Court also sua sponte dismisses the

complaint against the Chicago Defendants. Ledford v. Sullivan, 105 F.3d 354, 356

(7th Cir. 1997) (“Sua sponte 12(b)(6) dismissals are permitted, provided that a

sufficient basis for the court’s action is evident from the plaintiff’s pleading.”).

Because the parties did not address res judicata, and in an abundance of

caution, the Court dismisses both Counts I and II without prejudice. If Plaintiffs

believe they can cure the deficiencies identified consistent with Rule 11 obligations,

they may move for leave to file an amended complaint by July 8, 2020. The motion

should attach a redlined comparison between the current complaint and the proposed

amended complaint, and it should be supported by a brief of no more than five pages

describing how the proposed amended complaint cures the deficiencies. Should

Plaintiffs choose to file an amended complaint, they must clearly describe the parties

and the nature of their claims, and identify the specific statutes and/or protocols from

which they allege the Defendants deviated.

Conclusion

For the reasons stated above, the Court grants the Cook County Defendants’

motion to dismiss. R. 19. The claims against the Cook County Defendants are

dismissed without prejudice. The Court also sua sponte dismisses the complaint

against the Chicago Defendants without prejudice.

ENTERED:

ones M Suchen

Honorable Thomas M. Durkin

United States District Judge

Dated: June 8, 2020

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