The opinion
Illinois Official Reports
Appellate Court
Jackson-Hicks v. East St. Louis Board of Election Commissioners,
2015 IL App (5th) 150028
Appellate Court EMEKA JACKSON-HICKS, Petitioner-Appellant, v. THE EAST ST.
Caption LOUIS BOARD OF ELECTION COMMISSIONERS, and its
Members, ELMER D. JONES, Chairman, EDNA R. ALLEN,
Vice-Chairman, and JOSEPH McCASKILL, Secretary, and ALVIN
L. PARKS, JR., Candidate for Mayor, Respondents-Appellees.
District & No. Fifth District
Docket No. 5-15-0028
Filed February 17, 2015
Held Substantial compliance with the number of valid signatures required
(Note: This syllabus for an independent candidate’s nomination papers is sufficient to
constitutes no part of the retain his name on the ballot for an upcoming mayoral election.
opinion of the court but
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)
Decision Under Appeal from the Circuit Court of St. Clair County, No. 14-MR-496;
Review the Hon. Heinz M. Rudolf, Judge, presiding.
Judgment Affirmed.
Counsel on Eric W. Evans, of Roth Evans P.C., of Granite City, for appellant.
Appeal
Garrett P. Hoerner, of Becker, Paulson, Hoerner & Thompson, P.C.,
of Belleville, for appellee Alvin L. Parks, Jr.
Richard Sturgeon, of Belleville, for other appellees.
Panel JUSTICE SCHWARM delivered the judgment of the court, with
opinion.
Justices Welch and Moore concurred in the judgment and opinion.
OPINION
¶1 In this expedited appeal, we are asked to determine whether substantial compliance with
the signature requirement for an independent candidate’s nomination papers is sufficient to
retain his name on the ballot for an upcoming mayoral election. For the following reasons, we
conclude that it is.
¶2 BACKGROUND
¶3 The petitioner, Emeka Jackson-Hicks, a candidate for the office of mayor of East St. Louis,
filed an objector’s petition with the East St. Louis Board of Election Commissioners (the
Board) challenging the nomination papers of incumbent candidate Alvin Parks, Jr. (Parks). See
10 ILCS 5/10-8 (West 2012). The petitioner maintained that Parks’ name should be excluded
from the ballot for the February 24, 2015, consolidated primary election on the grounds that his
nomination papers failed to include the minimum number of voter signatures required by law.
¶4 On December 10, 2014, the Board held a hearing on the petitioner’s objection. See 10
ILCS 5/10-9 (West 2012). The evidence before the Board established that pursuant to section
10-3 of the Election Code (10 ILCS 5/10-3 (West 2012)), Parks’ nomination papers required a
minimum of 136 voter signatures. The evidence further established that although Parks had
garnered a total of 171 signatures, 48 had been deemed invalid. His nomination papers thus
included a total of 123 valid signatures, 13 short of the minimum required. Notably, when
arguing that the petitioner’s objection should be denied, the respondents cited Atkinson v.
Schelling, 2013 IL App (2d) 130140, as controlling precedent.
¶5 At the conclusion of the hearing, the Board unanimously voted to deny the petitioner’s
objection and subsequently issued a written statement of its findings and decision. See 10 ILCS
5/10-10 (West 2012). In its written statement, the Board held that although Parks had been
statutorily required to obtain 136 valid signatures on his nomination papers, he had
substantially complied with the requirement by obtaining 123. The Board thus ruled that
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Parks’ name would remain on the ballot for the February 24, 2015, consolidated primary
election.
¶6 On December 12, 2014, in the circuit court of St. Clair County, the petitioner filed a
petition for judicial review of the Board’s decision. See 10 ILCS 5/10-10.1 (West 2012). On
January 12, 2015, the cause proceeded to a hearing. At the hearing, citing Atkinson and Merz v.
Volberding, 94 Ill. App. 3d 1111 (1981), as directly on point, the respondents maintained that
the Board had rightfully determined that Parks’ name should remain on the ballot because he
had substantially complied with section 10-3. In response, noting that Atkinson had been
decided by the Second District Appellate Court and Merz had been decided by the First
District, the petitioner argued that the circuit court was bound to follow the Fifth District’s
decisions in Powell v. East St. Louis Electoral Board, 337 Ill. App. 3d 334 (2003), and
Knobeloch v. Electoral Board, 337 Ill. App. 3d 1137 (2003), both of which held that
substantial compliance with a mandatory provision of the Election Code is insufficient. The
respondents countered that Powell and Knobeloch did not involve section 10-3 and that both
cases predated Goodman v. Ward, 241 Ill. 2d 398 (2011), in which the supreme court
acknowledged that substantial compliance can satisfy a mandatory provision of the Election
Code. Agreeing with the respondents, the circuit court ultimately concluded that it was
“bound” to follow Atkinson and affirmed the Board’s decision.
¶7 On January 20, 2015, the petitioner filed a timely notice of appeal. On February 6, 2015,
we granted the petitioner’s motion to expedite her appeal pursuant to Illinois Supreme Court
Rule 311(b) (eff. Feb. 26, 2010).
¶8 DISCUSSION
¶9 On appeal, citing Powell and Knobeloch, the petitioner asserts that the Board erroneously
determined that substantial compliance with section 10-3’s signature requirement is
acceptable. The petitioner further suggests that Atkinson and Merz were wrongly decided and
established an amorphous and unworkable standard.
¶ 10 The respondents maintain that the provision at issue is directory rather than mandatory and
that even if it is mandatory, Atkinson, Merz, and Goodman support the Board’s decision. The
respondents further distinguish Powell and Knobeloch as “inapposite to this case.”
¶ 11 Standards of Review
¶ 12 There are three types of questions that a court may encounter when reviewing a decision of
an electoral board: questions of fact, questions of law, and mixed questions of fact and law.
Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 210 (2008).
“An administrative agency’s findings and conclusions on questions of fact are deemed prima
facie true and correct” and will not be disturbed unless they are against the manifest weight of
the evidence. Id. “[F]actual determinations are against the manifest weight of the evidence if
the opposite conclusion is clearly evident.” Id.
¶ 13 “[W]here the historical facts are admitted or established, but there is a dispute as to whether
the governing legal provisions were interpreted correctly by the administrative body, the case
presents a purely legal question for which our review is de novo.” Goodman, 241 Ill. 2d at 406.
Whether a statute is mandatory or directory is an issue of law that is also reviewed de novo.
O’Brien v. White, 219 Ill. 2d 86, 97 (2006).
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¶ 14 “A mixed question of law and fact asks the legal effect of a given set of facts.”
Comprehensive Community Solutions, Inc. v. Rockford School District No. 205, 216 Ill. 2d
455, 472 (2005). “[I]n resolving a mixed question of law and fact, a reviewing court must
determine whether established facts satisfy applicable legal rules.” Id. The “clearly erroneous”
standard of review applies to mixed questions of law and fact. Cinkus, 228 Ill. 2d at 211. A
decision is considered clearly erroneous when a reviewing court is left with a definite and firm
conviction that a mistake has been made. Id.
¶ 15 Because judicial review of an electoral board’s decision is considered administrative
review, we review the Board’s decision, not the decision of the circuit court. Jackson v. Board
of Election Commissioners, 2012 IL 111928, ¶ 46. Here, the Board’s determination that the
statutory provision at issue requires only substantial compliance is a question of law (see
O’Brien, 219 Ill. 2d at 97), while its determination that Parks substantially complied with the
statute presents a mixed question of law and fact (see Samuelson v. Cook County Officers
Electoral Board, 2012 IL App (1st) 120581, ¶ 11).
¶ 16 Powell and Knobeloch
¶ 17 In Powell, three mayoral candidates’ names were kept off the ballot for their failure to
comply with the statement-of-economic-interest requirement set forth in section 10-5 of the
Election Code (10 ILCS 5/10-5 (West 2000)). Powell, 337 Ill. App. 3d at 336. After noting that
in Bolger v. Electoral Board, 210 Ill. App. 3d 958, 959-60 (1991), the appellate court had
determined that the requirement’s use of the word “must” made the requirement mandatory,
the Powell court rejected the candidates’ contention that their good-faith substantial
compliance was sufficient. Powell, 337 Ill. App. 3d at 337. The court further noted that in
DeFabio v. Gummersheimer, 192 Ill. 2d 63, 66 (2000), the supreme court held that “a
mandatory provision of the Election Code” must be strictly enforced. Powell, 337 Ill. App. 3d
at 338.
¶ 18 In Knobeloch, we adhered to our holding in Powell when rejecting the candidate’s
argument that his substantial compliance with the notarization requirements of sections 10-4
and 10-5 of the Election Code (10 ILCS 5/10-4, 10-5 (West 2000)) was sufficient. Knobeloch,
337 Ill. App. 3d at 1139-40. We noted that both requirements used the word “shall” and that
there was “no dispute” that the provisions at issue were “mandatory.” Id. at 1139. We further
noted that a “mandatory provision is one that will describe the consequences of failing to
follow its provisions.” Id.
¶ 19 In pertinent part, section 10-3 provides as follows:
“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%, nor more than 8% (or 50 more than the
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 (West 2012).
¶ 20 Unlike the provisions addressed in Powell and Knobeloch, the pertinent provision of
section 10-3 “does not contain mandatory language.” McNamara v. Oak Lawn Municipal
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Officers Electoral Board, 356 Ill. App. 3d 961, 966 (2005). When enacting section 10-3, “[t]he
legislature used the word ‘may’ in describing how nominations may be made.” Id.
Additionally, “[t]he word ‘shall’ appears several times within section 10-3 but it does not
appear in the pertinent provision.” Id. As a matter of statutory construction, it has thus been
held that “the legislature did not intend that this provision be mandatory.” Id.; see also People
v. One 1998 GMC, 2011 IL 110236, ¶ 16 (noting that the “legislature’s use of the word ‘may’
generally indicates a permissive or directory reading, rather than a mandatory one”).
¶ 21 Moreover, unlike sections 10-4 and 10-5, both of which indicate that a candidate’s failure
to comply will invalidate his or her nominations papers (see 10 ILCS 5/10-4, 10-5 (West
2012)), “nothing in section 10-3 addresses what the remedy is for noncompliance with section
10-3” (Atkinson, 2013 IL App (2d) 130140, ¶ 20). “[N]or does it provide that compliance is
essential to effect a valid nomination.” McNamara, 356 Ill. App. 3d at 966. When a provision
of the Election Code does not provide a penalty for failure to comply, the provision is deemed
directory rather than mandatory. O’Brien, 219 Ill. 2d at 97. “By contrast, when an Election
Code provision specifies the consequences of noncompliance, the provision has been held to
be mandatory.” Id.
¶ 22 Because section 10-3’s signature requirement is directory rather than mandatory, the
petitioner’s reliance on Powell and Knobeloch is misplaced, and the Board correctly
determined that substantial compliance is sufficient. Directory provisions require only
substantial compliance. Schultz v. Performance Lighting, Inc., 2013 IL App (2d) 120405, ¶ 14;
see also People ex rel. Meyer v. Kerner, 35 Ill. 2d 33, 39 (1966). Moreover, as the respondents
observe, Powell and Knobeloch both predate the supreme court’s recognition that in some
instances, substantial compliance can satisfy even a mandatory provision of the Election Code.
See Goodman, 241 Ill. 2d at 409; Akin v. Smith, 2013 IL App (1st) 130441, ¶ 9.
¶ 23 Merz and Atkinson
¶ 24 In Merz, where three independent candidates’ nomination papers did not contain the
minimum number of voter signatures required by section 10-3, objections seeking to keep the
candidates’ names off the ballot for the impending municipal election were filed with the
electoral board. Merz, 94 Ill. App. 3d at 1113-14. Following a hearing, the board overruled the
objections and ordered that the candidates’ names be placed on the ballot. Id. at 1113. After the
circuit court affirmed the board’s ruling, the objectors brought an expedited appeal to the
appellate court. Id.
¶ 25 On appeal, the appellate court affirmed the board’s decision with respect to one of the three
candidates on the basis of estoppel, since the candidate had relied on information provided by
the city clerk as to the number of signatures that he needed. Id. at 1115-17. With respect to the
other two candidates who were unable to claim estoppel, the appellate court held that despite
the fact that they had failed to comply with the minimum statutory signature requirement, they
had “demonstrated at least a minimal appeal to the voters.” Id. at 1118. The court noted that
“[t]he primary purpose of the signature requirement is to reduce the electoral process to
manageable proportions by confining ballot positions to a relatively small number of
candidates who have demonstrated initiative and at least a minimal appeal to eligible voters”
and that removing the candidates’ names from the ballot would penalize “not only the
candidates themselves, but also the voters.” Id. Citing Illinois State Board of Elections v.
Socialist Workers Party, 440 U.S. 173 (1979), the court further stated, “While we recognize
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the State’s interest in regulating elections by setting such requirements, we also recognize the
right of qualified voters to cast their votes effectively.” Merz, 94 Ill. App. 3d at 1118. The court
thus determined that allowing all three candidates’ names to appear on the ballot best served
the interests of justice. Id. We note that the candidates in Merz were statutorily required to
obtain at least 778 signatures, but they only had “more than 550 signatures and less than 610.”
Id. at 1113-14.
¶ 26 In Atkinson, two mayoral candidates submitted nomination papers with less than the
statutorily required minimum of 123 voter signatures. Atkinson, 2013 IL App (2d) 130140,
¶¶ 3-4. One of the candidates submitted 110 signatures; the other submitted 105; and both had
been told by the village clerk that they needed a minimum of 80. Id. ¶¶ 3, 5. Asserting that their
failure to obtain 123 signatures rendered the candidates’ nomination papers invalid, the
petitioner filed objections arguing that the candidates’ names should not appear on the ballot.
Id. ¶ 4. After the electoral board overruled the objections and the circuit court affirmed the
board’s decision, the petitioner appealed. Id. ¶ 8.
¶ 27 On appeal, stating that the facts before it were “almost identical” to those in Merz, the
appellate court affirmed the board’s decision and adopted Merz’s holding. Id. ¶¶ 13, 19. The
court thus determined that the doctrine of estoppel was applicable and that, alternatively, the
candidates had “demonstrated at least a minimal appeal to the voters.” Id. ¶¶ 15, 21. The court
further stated that “[i]t is a fundamental principle that access to a place on the ballot is a
substantial right and not lightly to be denied” and that denying the candidates access to the
electoral ballot would penalize the voters as well as the candidates. Id. ¶ 21. The court also
noted that the disparities in the number of votes that the candidates needed were less than those
in Merz. Id.
¶ 28 Keeping in mind that we must balance competing interests (see Socialist Workers Party,
440 U.S. at 184-85; Huskey v. Municipal Officers Electoral Board, 156 Ill. App. 3d 201, 205
(1987)), we conclude that when determining whether a candidate has substantially complied
with section 10-3’s signature requirement, the “minimal appeal” standard employed in Merz
and Atkinson provides a reasoned approach that recognizes “Illinois courts favor ballot access
for candidates who wish to run for public office” (Forcade-Osborn v. Madison County
Electoral Board, 334 Ill. App. 3d 756, 760 (2002)). The standard is further consistent with the
notion that when determining whether substantial compliance has been achieved, courts may
consider “whether the deviation impairs the purpose of the specific statutory provision at
issue.” Atkinson v. Roddy, 2013 IL App (2d) 130139, ¶ 17. As noted, “the primary purpose of
the signature requirement is to reduce the electoral process to manageable proportions by
confining ballot positions to a relatively small number of candidates who have demonstrated
initiative and at least a minimal appeal to eligible voters.” Heabler v. Municipal Officers
Electoral Board, 338 Ill. App. 3d 1059, 1062 (2003); Merz, 94 Ill. App. 3d at 1118. We believe
that this purpose will not be frustrated where the name of a candidate who has substantially
complied with section 10-3 in good faith is allowed to appear on a ballot. We further believe
that denying such a candidate his or her right to run for office would be a drastic remedy that
would not best serve the interests of justice. See Atkinson, 2013 IL App (2d) 130140, ¶ 20;
McNamara, 356 Ill. App. 3d at 967; Merz, 94 Ill. App. 3d at 1118.
¶ 29 We are not unsympathetic to the petitioner’s position, but we are constrained to interpret
section 10-3’s signature requirement as being directory rather than mandatory. “We will not
read words or meanings into a statute when the legislature has chosen not to include them.”
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People v. Johnson, 2013 IL 114639, ¶ 12. “Therefore, any remedy lies with the legislature, not
the courts, if the legislature may be so inclined.” Id.
¶ 30 The Board’s Decision
¶ 31 The evidence before the Board established that Parks was statutorily required to have at
least 136 voter signatures on his nomination papers. The evidence further established that he
submitted a total of 171 signatures. For reasons not entirely apparent from the record, however,
48 of those signatures were deemed invalid. His nomination papers thus included a total of 123
valid signatures, 13 less than the requisite minimum.
¶ 32 Under these circumstances, we cannot conclude that the Board’s finding that Parks
substantially complied with section 10-3 is clearly erroneous. Had all of the signatures that
Parks submitted been valid, he would have had 35 more than he needed, but he ultimately fell
13 signatures short. He nevertheless demonstrated initiative and “at least a minimal appeal” to
the eligible voters. Atkinson, 2013 IL App (2d) 130140, ¶ 21; Merz, 94 Ill. App. 3d at 1118; cf.
Samuelson, 2012 IL App (1st) 120581, ¶ 36 (“A candidate is deemed not to be in substantial
compliance with the Election Code when he ‘completely ignores one of the statutory
elements.’ ” (quoting Jones v. Dodendorf, 190 Ill. App. 3d 557, 561 (1989))). Furthermore,
removing Parks’ name from the ballot would deprive him of his right to run for office and
would prevent the voters of East St. Louis from reelecting their incumbent mayor if they desire
to do so. See Atkinson, 2013 IL App (2d) 130140, ¶ 21; Merz, 94 Ill. App. 3d at 1118. Because
we are not left with a definite and firm conviction that a mistake has been made, we
accordingly affirm the circuit court’s judgment affirming the Board’s decision.
¶ 33 We lastly address the petitioner’s contention that allowing electoral boards to employ the
minimal-appeal standard will result in confusion and random results. In Merz, for instance, the
candidates obtained less than 80% of the required signatures. In Atkinson, the candidates
obtained less than 90%. In the present case, after the invalid signatures were discounted, the
candidate obtained 90%. Understandably, the petitioner thus asks, “Where does an electoral
board or court draw the line?” We cannot answer that question, however, even if we were
inclined to do so.
“It is the duty of this court to decide actual controversies which can be carried into
effect, and not to give opinions upon moot questions or abstract propositions, or to
declare principles or rules of law which cannot affect the matter in issue in the case
before it [citation], as decisions of this nature could have an advisory effect only.”
South Stickney Park District v. Village of Bedford Park, 131 Ill. App. 3d 205, 209
(1985).
¶ 34 Moreover, it is an electoral board’s duty to decide whether a candidate’s nomination papers
“are valid or whether the objections thereto should be sustained” (10 ILCS 5/10-10 (West
2012); People ex rel. Martin v. White, 329 Ill. App. 81, 91 (1946)), and as noted, we review an
electoral board’s determination as to whether a candidate has substantially complied with the
signature requirement of section 10-3 as a mixed question of law and fact (see Samuelson,
2012 IL App (1st) 120581, ¶ 11). “Such review is significantly deferential to an agency’s
experience in construing and applying the statutes that it administers.” Comprehensive
Community Solutions, Inc., 216 Ill. 2d at 472. Affording such deference, we trust that an
electoral board employing the minimal-appeal standard will exercise its judgment judiciously
and will consider all relevant facts and circumstances when deciding whether a candidate has
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substantially complied with section 10-3’s signature requirement. Rather than solely focusing
on a specific percentage, such decisions should be made on a case-by-case basis giving due
consideration to the requirement’s primary purpose. We lastly note that a candidate would be
ill-advised to view the standard as a safety net.
¶ 35 CONCLUSION
¶ 36 For the foregoing reasons, we hereby affirm the circuit court’s judgment affirming the
Board’s denial of the petitioner’s objection.
¶ 37 Affirmed.
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