Jackson-Hicks v. The East St. Louis Board of Election Commissioners

Illinois Official Reports

Supreme Court

Jackson-Hicks v. East St. Louis Board of Election Commissioners,

2015 IL 118929

Caption in Supreme EMEKA JACKSON-HICKS, Appellant, v. THE EAST ST. LOUIS

Court: BOARD OF ELECTION COMMISSIONERS et al., Appellees.

Docket No. 118929

Filed March 16, 2015

Decision Under Appeal from the Appellate Court for the Fifth District; heard in that

Review court on appeal from the Circuit Court of St. Clair County, the Hon.

Heinz M. Rudolf, Judge, presiding.

Judgment Election Board decision reversed.

Cause remanded to the circuit court with directions.

Mandate issued forthwith.

Counsel on Eric W. Evans and Dawn O’Leary, of Evans Blasi, of Granite City,

Appeal Burton S. Odelson, of Odelson & Sterk, of Evergreen Park, and

Michael J. Kasper and James P. Nally, both of Chicago, for appellant.

Garrett P. Hoerner, of Becker, Hoerner, Thompson & Ysursa, P.C., of

Belleville, for appellees.

Justices JUSTICE KARMEIER delivered the judgment of the court, with

opinion.

Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke,

and Theis concurred in the judgment and opinion.

OPINION

¶1 The question presented by this appeal is whether a candidate for municipal office is

entitled to have his or her name placed on the ballot if the governing election board has

properly calculated and announced the minimum number of valid signatures required by

statute to support the candidate’s nominating petition, but the candidate’s petition falls short

of that legally mandated threshold. The election board in this case determined that Illinois

law requires only substantial compliance with the numerical signature requirement and that

the candidate whose eligibility is being challenged here had come close enough to the

minimum requirement to permit his name to be placed before the voters. On judicial review

of the board’s decision, the circuit and appellate courts affirmed. 2015 IL App (5th) 150028.

We granted leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). For the reasons that follow,

we reverse the decision of the board and remand to the circuit court with directions.

¶2 BACKGROUND

¶3 Alvin L. Parks, Jr., incumbent mayor of the City of East St. Louis, is seeking reelection in

the April 7, 2015, municipal election. City officials in East St. Louis run for office on a

nonpartisan basis, and the first step in Mayor Parks’ reelection effort was to file nomination

petitions to be included on the ballot for the February 24, 2015, consolidated primary.

¶4 By law, Mayor Parks’ petitions were subject to the same rules set forth in section 10-3 of

the Election Code (10 ILCS 5/10-3 (West 2012)) governing petitions filed by independent

candidates. See 10 ILCS 5/10-3.1 (West 2012). Section 10-3 of the Election Code requires

that such petitions be signed by a minimum number of qualified voters of the relevant

political subdivision. A formula is specified for determining that number. 10 ILCS 5/10-3

(West 2012). Under that formula, nomination petitions for mayoral candidates in the

upcoming East St. Louis election were required to have a minimum of 136 valid signatures.

That figure was correctly calculated by election authorities and properly announced and

publicized.

¶5 Mayor Parks filed his nomination petitions with the East St. Louis Board of Election

Commissioners (Election Board), the governing election authority, in the time specified by

law. His petitions contained a total of 171 signatures, a figure which appeared to give him 35

more than the minimum required. Shortly thereafter, however, Emeka Jackson-Hicks, who is

also a candidate for mayor, filed an objection to Parks’ nomination papers pursuant to section

10-8 of the Election Code (10 ILCS 5/10-8 (West 2012)). Her objection challenged the

validity of some of the signatures and contended that Parks had not, in fact, submitted

sufficient valid signatures to permit his name to appear on the ballot.

¶6 A hearing on Jackson-Hicks’ objection was held by the Election Board on December 10,

2014. At that hearing, the attorney for the Election Board presented evidence that at least 48

of the signatures on Parks’ petitions were invalid, leaving him with no more than 123 valid

signatures. Twelve additional signatures were also questioned on the grounds that those

persons were not actually registered to vote at the time they signed the petition, a

circumstance that would render them ineligible to sign under section 3-1.2 of the Election

Code (10 ILCS 5/3-1.2 (West 2012)). No other objections to the petitions were advanced or

considered.

-2-

¶7 The following day, December 11, 2014, the Election Board issued a written decision

denying Jackson-Hicks’ objection. The decision stated that the objection petition was in the

proper form, that it had been timely filed, and that all required notices had been issued and

served in accordance with statutory requirements. It also concluded that, as Jackson-Hicks

had charged, Parks’ nominating papers had “insufficient signatures as required by law.”

Despite this deficiency, the Election Board held “that there has been substantial compliance

in that 136 signatures are required and [Parks’] nominating papers contain 123 valid

signatures.” Based on this “substantial compliance” theory, the Election Board ordered that

Parks’ name “shall appear on the ballot for election to the office of Mayor of the city of East

St. Louis” at the upcoming consolidated primary election.

¶8 Jackson-Hicks promptly filed a petition for judicial review of the Election Board’s

decision in the circuit court of St. Clair County (10 ILCS 5/10-10.1 (West 2012)), arguing

that because Mayor Parks had failed to submit the minimum number of valid signatures

required by the Election Code, the Election Board should have sustained her objection and

prevented Parks’ name from appearing on the ballot. Following a hearing, the circuit court

rejected Jackson-Hicks’ argument and upheld the Election Board’s decision. In doing so, it

relied on the same theory as the Election Board, namely, that Parks had “substantially

complied” with the statutory signature requirement.

¶9 Jackson-Hicks next sought review from the appellate court. Again she was unsuccessful.

The appellate court agreed that the Election Board had properly denied Jackson-Hicks’

objection to Mayor Parks’ nomination papers, notwithstanding the fact that Parks’ petitions

lacked the minimum number of signatures required by the Election Code, based on the theory

of “substantial compliance.” It therefore affirmed. 2015 IL App (5th) 150028.

¶ 10 The week after the appellate court filed its opinion, as corrected, Jackson-Hicks

petitioned this court for leave to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R.

315 (eff. Jan. 1, 2015)). She also moved that we consider her petition on an expedited basis

and, if we allowed it, that we set an expedited briefing schedule so that the matter could be

resolved prior to the April 7 election. Jackson-Hicks’ motion was granted. We allowed her

petition for leave to appeal, ruled that her petition for leave to appeal would stand as her brief

and set an expedited timetable for filing of the appellees’ brief, a reply brief (if any), and the

record. We also ordered that the case would be heard on the briefs without oral argument.

The appellees’ brief and reply briefs have now been filed, and the matter is ready for a

decision on the merits.

¶ 11 ANALYSIS

¶ 12 As a preliminary matter, Mayor Parks contends we should not reach the merits of

Jackson-Hicks’ appeal because the matter is now moot. This argument is without merit. A

case on appeal becomes moot where the issues presented in the trial court no longer exist

because events subsequent to the filing of the appeal render it impossible for the reviewing

court to grant the complaining party effectual relief. Cinkus v. Village of Stickney Municipal

Officers Electoral Board, 228 Ill. 2d 200, 207-08 (2008). This is not such a case. Although

the time for the scheduled February 24 primary has come and gone and materials submitted

by Mayor Parks indicate that ballots have been printed and absentee voting has begun for the

-3-

April 7 consolidated general election, it remains possible for us to grant effectual relief to

Jackson-Hicks.

¶ 13 East St. Louis operates under the managerial form of municipal government (see 65 ILCS

5/5-1-1 et seq. (West 2012)). In such municipalities, the elections for mayor are nonpartisan.

The primary elections therefore do not determine nominees for particular political parties.

Their purpose, instead, is to pare down the pool of mayoral candidates to a group of four,

with the top four vote-getters remaining in contention and moving on to the general or

consolidated election.1 65 ILCS 5/5-2-18.5 (West 2012).

¶ 14 Including Parks, only three candidates ended up filing nominating petitions for the office

of mayor. There was therefore no need to reduce the number of mayoral candidates through

the primary process. Accordingly, the actual primary for that office did not have to be

conducted and was not held. See 65 ILCS 5/3.1-20-45 (West 2012). Whether Parks’

nomination papers were proper remains significant, however, because one cannot appear on

the ballot as a candidate for municipal office in municipalities operated under the managerial

form of government unless one has first been a candidate for the office at the primary

election. 65 ILCS 5/5-2-18.5 (West 2012). If we determine that Parks’ nominating papers

were insufficient and he did not qualify as a candidate at the primary election stage, his

eligibility to be a candidate at the general election would fail as well.

¶ 15 Preventing Parks’ name from being placed before the voters as a candidate for mayor was

and remains the fundamental purpose of Jackson-Hicks’ challenge. Although we cannot turn

back the clock, the April 7 election has yet to occur, so it remains possible, theoretically at

least, for ballots to be reprinted and electronic voting machines, if there are any, to be

reprogrammed. Moreover, as we have recognized on prior occasions when confronted with

similar time constraints, if it is too late for election officials to remove the name of an

ineligible candidate prior to election day, a court may order election officials to disregard

votes cast for that candidate. See, e.g., Delgado v. Board of Election Commissioners, 224 Ill.

2d 481, 489 (2007); Bryant v. Board of Election Commissioners, 224 Ill. 2d 473, 480 (2007).

¶ 16 That absentee ballots may already have been cast in favor of Mayor Parks is unfortunate,

but absentee voting and difficulty in notifying voters of ballot changes are common and

unavoidable consequences of the narrow time frame in which election contests must be

prosecuted. Mayor Parks has not cited any authority from Illinois or any other jurisdiction

which has held that such considerations are sufficient, standing alone, to foreclose further

judicial review of a timely and procedurally proper election challenge which concludes

before the election cycle has ended. That is hardly surprising. If such circumstances were

sufficient, in themselves, to render an appeal moot, meaningful judicial oversight of the

electoral process would be all but impossible, and we would be powerless to prevent the

election of candidates who failed to meet the requirements of the law.

¶ 17 Mayor Parks makes an alternative argument that:

“[t]o the extent that this Court invokes the public interest exception to the mootness

doctrine [citation], *** any legislative remedy by way of future amendment to

Section 10-3 of the Illinois Election Code would warrant dismissal under the

1

In even-numbered years, the election is called the general election. In odd-numbered years, it is

referred to as the “consolidated election.” 10 ILCS 5/2A-1.1 (West 2012).

-4-

mootness doctrine because such amendment would foreclose the possibility that the

issues presented in the appeal will recur in a future case. Indeed, this Supreme Court

has explained that an appeal is rendered moot, and not falling within the public

interest exception to the mootness doctrine by an amendment to the subject matter

during the pendency of an appeal that forecloses the possibility that the issues

presented in the pendency of the appeal will recur in a future case.”

¶ 18 We dispose of this argument with two brief observations. First, for the reasons we have

just explained, the appeal is not moot. There is therefore no need for us to consider whether

the public interest exception to the mootness doctrine should be invoked. Second, if there is,

in fact, any impending legislation that bears on this appeal, Mayor Parks’ brief gives no

hint—none at all—as to what that legislation is, what it says, or when it might take effect.

Absent such legislation, the point Mayor Parks tries to make is irrelevant.

¶ 19 We turn, then, to the merits of the case. Where, as here, an electoral board’s decision is

challenged in court pursuant to section 10-10.1 of the Election Code (10 ILCS 5/10-10.1

(West 2012)), the proceeding is in the nature of administrative review. When such

proceedings reach our court on appeal, it is the election board’s decision, not the decision of

the circuit or the appellate court, that is before us. Jackson v. Board of Election

Commissioners, 2012 IL 111928, ¶ 46; Goodman v. Ward, 241 Ill. 2d 398, 405 (2011).

¶ 20 The standard of review we apply to an election board’s decision depends on what is in

dispute: the facts, the law, or a mixed question of fact and law. Jackson v. Board of Election

Commissioners, 2012 IL 111928, ¶ 47. In this case, there is no issue as to the facts. The

dispositive question is whether the Election Board was correct when it interpreted the

Election Code to permit the minimum signature requirement for nominating petitions to be

judged based on a theory of “substantial compliance.” Where, as here, historical facts are

admitted or established and the only dispute concerns whether the governing legal provisions

were interpreted correctly by election officials, the case presents a purely legal question for

which our review is de novo, a standard we have characterized as “independent and not

deferential.” (Internal quotation marks omitted.) Goodman v. Ward, 241 Ill. 2d at 406.

¶ 21 When determining how the Election Code should be construed, we employ the same

basic principles of statutory construction applicable to statutes generally. Our primary

objective is to ascertain and give effect to the intent of the legislature. The best indication of

legislative intent is the language employed by the General Assembly. When statutory

language is plain and unambiguous, the statute must be applied as written without resort to

aids of statutory construction (id. at 408), and the court will not read into it exceptions,

conditions, or limitations that the legislature did not express (Maksym v. Board of Election

Commissioners, 242 Ill. 2d 303, 318 (2011)).

¶ 22 As he has throughout these proceedings, Mayor Parks contends that the Election Board

was within its authority to allow his name on the ballot, notwithstanding his failure to obtain

the statutorily required minimum number of signatures, because the statutory signature

requirement is merely directory and not mandatory and substantial compliance with the law’s

requirements will therefore suffice. In addressing this argument, we begin with familiar

principles. The mandatory-directory dichotomy concerns the consequences of failure to

fulfill an obligation, i.e., whether “ ‘the failure to comply with a particular procedural step

will or will not have the effect of invalidating the governmental action to which the

-5-

procedural requirement relates.’ ” (Internal quotation marks omitted.) O’Brien v. White, 219

Ill. 2d 86, 96 (2006) (quoting People v. Robinson, 217 Ill. 2d 43, 51-52 (2005)). Whether a

statute governing elections is mandatory or directory “does not depend upon its form but

upon the legislative intention to be ascertained from a consideration of the entire act, its

nature, its object, and the consequences which would result from construing it one way or the

other. [Citation.]” (Internal quotation marks omitted.) Id. at 96-97. If a statute prescribes a

consequence for failing to obey its provisions, that is a strong indication that the legislature

intended it to be mandatory. Id. at 96.

¶ 23 Generally speaking, requirements of the Illinois Election Code are mandatory, not

directory (Purnell v. Municipal Officers Electoral Board, 275 Ill. App. 3d 1038, 1039 (1995);

Kellogg v. Cook County Illinois Officers Electoral Board, 347 Ill. App. 3d 666, 670 (2004)).

Consistent with the principles governing the mandatory-directory dichotomy, a candidate’s

failure to comply with mandatory provisions of the Election Code governing nomination

papers will therefore render the nomination papers invalid (Powell v. East St. Louis Electoral

Board, 337 Ill. App. 3d 334, 338 (2003)), and require that the candidate’s name be removed

from the ballot (Knobeloch v. Electoral Board, 337 Ill. App. 3d 1137, 1141 (2003)).

¶ 24 Statutory provisions such as those contained in our Election Code specifying numerical

signature requirements are among those that are regarded as mandatory. See In re Contest of

the Des Moines Municipal Primary Election & General Election, Filed by Wingert, 250

N.W.2d 731, 733 (Iowa 1977). Under the standards articulated in O’Brien, 219 Ill. 2d 86, we

believe that the statutory signature requirements governing this election must likewise be

given a mandatory reading.

¶ 25 The statute governing petitions for nomination of nonpartisan candidates is section 10-3.1

of the Election Code (10 ILCS 5/10-3.1 (West 2012)). It provides, in part, that nonpartisan

petitions are subject to the same provisions of article 10 of the Election Code as those

“relating to independent candidate petition requirements” to the extent those provisions are

“not inconsistent with the requirements of such other statutes or ordinances [creating the

political subdivision or providing the form of government thereof].” 10 ILCS 5/10-3.1 (West

2012). Article 10’s independent candidate petition requirements, in turn, are set forth in

section 10-3 of the Election Code (10 ILCS 5/10-3 (West 2012)).

¶ 26 Section 10-3 begins by stating that “[n]ominations of independent candidates for public

office within any district or political subdivision less than the State, may be made by

nomination papers.” Id. The text of the law then continues by setting out the signature

requirements for such petitions. Specifically, it specifies that the petitions are to be:

“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. However, whenever the minimum signature requirement

for an independent candidate petition for a district or political subdivision office shall

exceed the minimum number of signatures for an independent candidate petition for

an office to be filled by the voters of the State at large at the next preceding

State-wide general election, such State-wide petition signature requirement shall be

-6-

the minimum for an independent candidate petition for such district or political

subdivision office.” Id.

¶ 27 In arguing that the minimum signature requirements of section 10-3 are merely directory,

Mayor Parks relies heavily on the legislature’s use of the word “may” when addressing the

utilization of nomination papers to nominate independent candidates. This reliance is

misplaced. It is true that use of the word “may” is generally regarded as indicating a

permissive or directory reading. Robinson, 217 Ill. 2d at 53. It is also true, however, that

when interpreting a statute, a court must view the statute as a whole, construing words and

phrases in light of other relevant statutory provisions and not in isolation. People v. Perez,

2014 IL 115927, ¶ 9. Applying that principle, it is apparent that “may” does not apply to the

signature requirement, but rather to the more basic question of whether the nomination

process may be utilized by independent candidates to appear on the ballot.

¶ 28 Article 7 of the Election Code (10 ILCS 5/7-1 et seq. (West 2012)), addresses “THE

MAKING OF NOMINATIONS BY POLITICAL PARTIES” and provides a mechanism for

selecting candidates belonging to those parties through petitions for nomination. Article 10,

under which section 10-3 falls, addresses the “MAKING OF NOMINATIONS IN CERTAIN

OTHER CASES,” including minor political parties, independent candidates and nonpartisan

candidates. 10 ILCS 5/10-1 et seq. (West 2012). Specifically, section 10-1 authorizes the use

of a convention, caucus, or meeting to make nominations in certain cases. Section 10-2 sets

up a petition process for forming new political parties and selecting their candidates, a

process which includes the use of petitions. 10 ILCS 5/10-2 (West 2012).2 Section 10-3,

which immediately follows and is the statute involved here, provides that nomination of

independent candidates “may also be made by nomination papers.” 10 ILCS 5/10-3 (West

2012).

¶ 29 When one steps back and views these various provisions together and in sequence, a

statutory framework emerges. Certain procedures to select candidates are available to certain

groups and individuals under specified circumstances. By using the term “may” in section

10-3, the General Assembly was simply indicating that nomination using nomination papers

is a mechanism available with respect to independent candidates.3

¶ 30 That nominations may be made through nominating papers is one thing. The sufficiency

of those nomination papers is quite another. While section 10-3 (10 ILCS 5/10-3 (West

2012)) provides that nominations “may also be made by nomination papers,” it does not say,

and cannot be fairly read to mean, that the minimum number of signatures needed to support

such nomination papers is anything but fixed and definite. Under the statute, the requisite

number is determined according to a mathematical formula. The threshold number computed

2

Portions of this statute have been invalidated by the United States Supreme Court. Norman v.

Reed, 502 U.S. 279, 293 (1992).

3

That aspect of section 10-3 is, of course, irrelevant to the matter at hand. This case involves

nonpartisan candidates for municipal office. There is no need to clarify that those candidates may be

nominated using nomination papers because section 10-3.1 (10 ILCS 5/10-3.1 (West 2012)) mandates

it. It specifically provides that the substantive provisions of section 10-3 “shall apply to nonpartisan

petitions to the extent that they are not inconsistent with the requirements of *** other statutes or

ordinances [creating the municipality or providing the form of government thereof].” 10 ILCS 5/10-3.1

(West 2012).

-7-

using the specified formula is described as a “minimum signature requirement,’ and in order

for candidates to avail themselves of the statutory nomination procedure contained in the

statute, the law specifies that their nominating papers contain valid signatures equal in

number to “not less than” the minimum signature requirement. (Emphases added.) 10 ILCS

5/10-3 (West 2012).

¶ 31 Implicit in the law’s provision that nominations may be made through nomination papers

containing “not less than” the required minimum numbers of signatures is that nominations

may not be made through nomination papers containing a number of signatures which is less

than the minimum required by law. The latter proposition is a corollary of the former. It was

no more necessary for the legislature to explicitly state the consequence of failing to meet its

fixed numerical threshold than it would be in the case of the final election returns. When the

law provides that a certain threshold is required in order to win an election, it is understood

that if one fails to attain the threshold, one loses. Runners-up have no claim to office on a

theory that they came close enough. So it has always been in American electoral politics. So

it remains.

¶ 32 It is beyond dispute that access to a place on the ballot is a substantial right not lightly to

be denied. Bettis v. Marsaglia, 2014 IL 117050, ¶ 28. We must also keep in mind, however,

that the regulation of elections is within the power of the legislature, within constitutional

limitations (People ex rel. Schnackenberg v. Czarnecki, 256 Ill. 320, 326 (1912)), for as the

United States Supreme Court has recognized, “it is beyond question ‘that States may, and

inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce

election- and campaign-related disorder.’ [Citation.]” Clingman v. Beaver, 544 U.S. 581, 593

(2005). If an argument exists that the minimum signature requirements at issue in the case

fail to serve a valid purpose and are beyond the constitutional authority of the legislature to

regulate elections and prevent election- and campaign-related disorder, that argument has not

been advanced in this case. The validity of the law, as written, is unchallenged.

¶ 33 In urging us to uphold the Election Board’s decision, notwithstanding his failure to

comply with the minimum signature requirements specified in the statute, Mayor Parks

contends his nomination papers contained enough valid signatures to serve the underlying

purpose of the law which, he contends, is simply to demonstrate that a candidate has

“initiative and at least a minimal appeal to the voters.” In Parks’ view, that should be enough.

¶ 34 The Mayor’s position is unprecedented, unworkable and contrary to law. Gauging

candidate initiative and voter appeal were no doubt among the policy factors which gave rise

to the legislature’s decision to adopt a minimum signature requirement. What Mayor Parks

fails to properly appreciate is that the power to set the standards for accomplishing those

policy considerations is vested in the General Assembly, not the local election boards or the

courts.

¶ 35 More than a century ago, this court held that “[e]very person has a right to be a candidate

for any office for which he is legally qualified, but if every man might have his name on the

official ballot great inconvenience might result. Therefore no person may have his name

printed on the official ballot unless he has been nominated by a party or by a certain number

of voters.” People ex rel. Schnackenberg v. Czarnecki, 256 Ill. 320, 327 (1912). Through the

clear language of sections 10-3 and 10-3.1 of the Election Code, the General Assembly has

told us precisely what that certain number of voters must be in nonpartisan municipal

-8-

elections. In marked contrast to the standard urged by Parks, which is subjective, uncertain

and changeable on a case-by-case basis, the General Assembly has opted for a mathematical

formula which is precise and definite in its meaning, clear and certain in its application, and

by its nature, excludes any possibility of impermissible political bias. That is the standard the

Election Board was bound to follow. It is the standard we are required to enforce. To adopt

the Mayor’s position instead would require us to disregard the clear, unambiguous and

mandatory language of the statute and graft onto it exceptions and limitations the legislature

did not express. As noted at the outset of this opinion and confirmed by our election law

jurisprudence, that is something the courts may not do.

¶ 36 To be sure, our appellate court has recognized that, in certain circumstances, substantial

compliance can satisfy even a mandatory provision of the Election Code. See, e.g., Akin v.

Smith, 2013 IL App (1st) 130441, ¶ 3 (missing language in notarial jurats on statements of

candidacy did not warrant exclusion of candidates from ballot); Atkinson v. Roddy, 2013 IL

App (2d) 130139 (objection to nominating papers properly rejected even though candidate

filed statement of economic interest in wrong county); Samuelson v. Cook County Officers

Electoral Board, 2012 IL App (1st) 120581 (single nonconforming page of petition did not

result in disqualification of candidacy); Siegel v. Lake County Officers Electoral Board, 385

Ill. App. 3d 452, 461 (2008) (good faith error in date listed by candidate in statement of

candidacy and resolution to fill vacancy not sufficient to warrant removal of candidate from

ballot). That precedent, however, is of no relevance here.

¶ 37 Unlike the foregoing authority, the case before us does not involve a situation where the

candidate met the basic requirements of the Election Code, but did so in a technically

deficient manner. Here, the candidate failed to meet a threshold requirement completely.

While the signature requirement may have been aimed at showing candidate initiative and

minimum voter appeal, showing candidate initiative and minimum voter appeal is not, itself,

the standard. As we have explained, the clear and unambiguous standard adopted by the

General Assembly requires compliance with a specific numerical threshold determined

according to a specific mathematical formula. A candidate either meets that minimum

threshold or does not. There is no close enough.

¶ 38 On two occasions our appellate court has confronted situations where the candidates in an

election cycle have complied with the minimum signature threshold as computed by local

election authorities, only to discover too late that election authorities had miscalculated and

set the requisite number too low. In both cases, Merz v. Volberding, 94 Ill. App. 3d 1111

(1981), and Atkinson v. Schelling, 2013 IL App (2d) 130140, the appellate court determined

that under the circumstances, the candidates should be permitted to remain on the ballot. In

both cases, the appellate court relied on principles of estoppel and/or considerations of

substantial compliance to justify their result.

¶ 39 The appellate court in the case before us found this authority highly persuasive. 2015 IL

App (5th) 150028, ¶¶ 24-28. We do not. First, as just discussed, substantial compliance is not

a valid justification for deviating from the clear and unambiguous minimum signature

threshold set by the legislature. Second, putting aside the question of whether estoppel was

even properly invoked against election authorities in those cases (see Vestrup v. Du Page

County Election Comm’n, 335 Ill. App. 3d 156, 166 (2002) (expressly declining to follow

Merz in part because “it failed altogether to acknowledge the specific rules regarding

-9-

estoppel against the State”)), we note that no possible claim of estoppel can be raised in this

case. The minimum signature requirement applicable to the mayoral race here was accurately

computed and properly conveyed to all candidates by the Election Board. Finally, while

Atkinson followed Merz, both the Atkinson court and the appellate court here overlooked that

the Merz court limited its holding to the case at hand, expressly holding that “[f]or future

reference, *** the minimum statutory signature requirement is mandatory and should be

strictly followed.” Merz v. Volberding, 94 Ill. App. 3d at 1118.

¶ 40 We do not see how the law could be otherwise. If the approach urged by Mayor Parks

and adopted by the Election Board were accepted, there would be no way to insure

consistency from one electoral jurisdiction to another, from one election to another, or even

from one race to another. Local election officials could establish how many signatures are

sufficient on a case-by-case basis according to a standard that is not only subjective and

variable, but which lacks any obvious limits. Will 90% of the statutory minimum turn out to

be enough? 75%? Less than that? Candidates will be left to speculate, and significant delay

and uncertainty will inevitably result as objectors seek redress from the courts to review

whether the signature cutoff was fairly and properly set by local election officials in

particular cases.

¶ 41 The appellate court refused to consider these implications on the grounds that it was

prohibited from expressing views on matters having only advisory effect. 2015 IL App (5th)

150028, ¶ 33. While it is the decision of the Election Board, not the appellate court, which is

under review, we feel compelled to observe that the appellate court’s analysis is flawed.

Under the circumstances present here, consideration of the consequences flowing from one

interpretation of the law or another is not inappropriate speculation on an abstract or

hypothetical proposition. Rather, it is an important factor under the analytical rubric

established by this court for assessing whether a provision of the Election Code is mandatory

or directory. See O’Brien, 219 Ill. 2d at 97.

¶ 42 Under that rubric, and for all of the reasons set forth above, the minimum signature

requirement imposed by section 10-3 of the Election Code (10 ILCS 5/10-3 (West 2012)) is

mandatory and must be followed. In this case, the law required a minimum of 136 valid

signatures. The other candidates met that threshold. Mayor Parks did not. The Election Board

should therefore have granted Jackson-Hicks’ objection, and ruled that Mayor Parks was

ineligible to appear on the ballot for the upcoming East St. Louis municipal election. In light

of this holding, we need not address Jackson-Hicks’ additional argument that the Election

Board’s decision violated the equal protection clause of the Illinois Constitution (Ill. Const.

1970, art. I, § 2). See, e.g., Davis v. City of Chicago, 59 Ill. 2d 439, 443 (1974) (court will

refrain from reaching constitutional question when resolution of that question is not

necessary to the disposition).

¶ 43 CONCLUSION

¶ 44 For the foregoing reasons, the decision of the Election Board denying Jackson-Hicks’

objection to the nominating petitions filed by Parks is reversed, and this cause is remanded to

the circuit court of St. Clair County with instructions to enter judgment: (1) declaring that

Parks’ nominating petitions do not contain the minimum number of valid signatures required

by law, (2) holding that Parks has not qualified to have his name appear on the ballot as a

- 10 -

candidate for the office of mayor in the April 7, 2015, municipal election, and (3) ordering

that Parks’ name be immediately removed from the ballot for that election. The court’s

judgment shall further provide that if the Election Board receives any ballots cast prior to

removal of Parks’ name, the Election Board shall be required to disregard any votes cast for

Parks when determining the winner of the election for the office of mayor. Our mandate shall

issue forthwith.

¶ 45 Election Board decision reversed.

¶ 46 Cause remanded to the circuit court with directions.

¶ 47 Mandate issued forthwith.

- 11 -