Hossfeld v. Illinois State Board of Elections

Docket No. 109725.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

___________________

FREDERICK J. HOSSFELD, Appellant, v. THE ILLINOIS STATE

BOARD OF ELECTIONS et al., Appellees.

Opinion filed October 7, 2010.

CHIEF JUSTICE FITZGERALD delivered the judgment of the

court, with opinion.

Justices Freeman, Thomas, Kilbride, Garman, Karmeier, and

Burke concurred in the judgment and opinion.

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 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). 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 (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

1

Rauschenberger previously held the office of Republican Senator from

the 22nd Legislative District from 1992 to 2006, when he unsuccessfully ran

as the Republican candidate for Lieutenant Governor.

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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. 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. Although the dissenting justice would

have removed Rauschenberger from the ballot based on the Cullerton

opinion (398 Ill. App. 3d at 744-45 (Steele, J., dissenting)), the

appellate majority concluded that Cullerton is “notably different” from

the present case (398 Ill. App. 3d at 743). 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 (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.

An electoral board is viewed as an administrative agency. Cinkus v.

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Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d

200, 209 (2008). Thus, the standard of review is determined by the

type of question on review. Cinkus, 228 Ill. 2d at 210. 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.

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. 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.

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 Democratic primary voter until he voted in the 2010

general primary election. Cullerton, 384 Ill. App. 3d at 996. 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

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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, 38

L. Ed. 2d 260, 94 S. Ct. 303 (1973); Sperling v. County Officers

Electoral Board, 57 Ill. 2d 81 (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.

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. For

purposes of determining eligibility to sign a nomination petition or to

be a candidate, section 7–10 provided, in relevant part, that a

“qualified primary elector” of a party “is an elector who has not

requested a primary ballot of any other party at a primary election held

2

Under the Election Code, municipal and township offices are filled at an

election known as a “consolidated election,” which is held in odd-numbered

years. 10 ILCS 5/2A–1.1(b), 2A–1.2(c), (d) (West 2008). Certain federal,

state and county offices (including State Senator) are filled at an election

known as a “general election,” which is held in even-numbered years. 10

ILCS 5/2A–1.1(a), 2A–1.2(a), (b) (West 2008).

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within 2 years of the date on which the petition must be filed.” Ill.

Rev. Stat. 1971, ch. 46, par. 7–10.3

The restrictions on party-switching set forth in section 7–10 were

mirrored in article 8 of the Election Code, which governs nominations

of members of the General Assembly. Section 8–8 required a

candidate to swear, in his or her statement of candidacy, that he or she

is a “qualified primary voter of the party to which the petition relates.”

For purposes of determining eligibility to sign a nomination petition

or to be a candidate under article 8, a “qualified primary elector” was

defined in relevant part as “an elector who has not requested a primary

ballot of any other party at a primary election held within 2 years of

the date on which the petition must be filed.” Ill. Rev. Stat. 1971, ch.

46, par. 8–8.

In Kusper v. Pontikes, 414 U.S. 51, 38 L. Ed. 2d 260, 94 S. Ct.

303 (1973), the Supreme Court held that the restriction against party-

switching by voters contained in section 7–43(d) unconstitutionally

infringed on the right of free political association protected by the first

and fourteenth amendments. The Court explained that a voter who

wished to change his party affiliation must wait almost two years

before that choice will be given effect, and is forced to forgo

participation in any primary elections occurring within the 23-month

statutory hiatus. “The effect of the Illinois statute is thus to ‘lock’ the

voter into his pre-existing party affiliation for a substantial period of

time following participation in any primary election, and each

succeeding primary vote extends this period of confinement.” Kusper,

414 U.S. at 57, 38 L. Ed. 2d at 267, 94 S. Ct. at 308.

One year after the Kusper decision was entered, this court decided

the Sperling case. There we held that, based upon the reasoning in

Kusper, the two-year no-switch rule applicable to voters who wish to

sign primary nominating petitions, set forth in section 7–10, must fall.

Sperling, 57 Ill. 2d at 84. In Sperling, we also considered the

continuing viability of the two-year no-switch rule applicable to

candidates in primary elections. We observed that the “standards

3

Although the Election Code refers to both a “qualified primary elector”

and a “qualified primary voter,” the phrases have the same meaning.

Sperling, 57 Ill. 2d at 83.

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governing party changes by candidates should be more restrictive than

those relating to voters generally,” and that “the restriction on

candidates could be upheld against constitutional challenge.” Sperling,

57 Ill. 2d at 84, 86. We concluded, however, that because the party-

switching restrictions upon the three categories of voters are so

closely related, the General Assembly would not have enacted the

portion relating to candidates apart from some restrictions upon

voters generally, and upon voters who sign primary nomination

petitions. Sperling, 57 Ill. 2d at 86. “In these circumstances the

restrictions upon candidates cannot be considered independent and

severable from the invalid portions of the plan.” Sperling, 57 Ill. 2d

at 86. This court later clarified that, in the absence of amendatory

legislation, the effect of the decisions in Kusper and Sperling was to

“render inoperable” the two-year party-switching restrictions. Dooley

v. McGillicudy, 63 Ill. 2d 54, 60 (1976).

In 1990, the General Assembly amended sections 7–10 and 8–8 of

the Election Code. See Pub. Act 86–1348, §2, eff. September 7, 1990.

Though retaining the requirement that a candidate must swear that he

or she is a “qualified primary voter of the party to which the

nomination petition relates,” the General Assembly deleted the

definition of “qualified primary elector.” In so doing, the General

Assembly deleted the two-year no-switch rule. After amendment,

sections 7–10 and 8–8 stated simply that “[a] ‘qualified primary

elector’ of a party may not sign petitions for or be a candidate in the

primary of more than one party.” Pub. Act 86–1348, §2, eff.

September 7, 1990. Since 1990, the General Assembly has not

adopted any time restrictions on party-switching by candidates or

other definition of “qualified primary elector.” More recently, the

General Assembly deleted the no-switch rule applicable to voters set

forth in section 7–43(d), which the Kusper opinion found

unconstitutional. See Pub. Act 95–699, §5, eff. November 9, 2007.

Thus, no vestige of the former party-switching rule remains in the

statute.

Against this backdrop, the appellate court decided the Cullerton

case in 2008. At issue was whether Thomas Cullerton was a “qualified

primary voter of the Democratic Party” for purposes of section 7–10

of the Election Code. Cullerton had voted a Republican ballot in the

February 2008 general primary election in Du Page County. Following

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that primary, the Democratic Party, who had no candidate for State

Senator of the 23rd Legislative District, nominated Cullerton as its

candidate for the November 2008 general election. The Du Page

County Electoral Board sustained an objection to Cullerton’s

candidacy, which the circuit court reversed. On appeal, the appellate

court held that Cullerton was ineligible to run as a Democratic

candidate in the general primary election. Cullerton, 384 Ill. App. 3d

at 990. After reviewing the history of the party-switching provisions

in the Election Code, the appellate court concluded:

“The plain and ordinary meaning of the requirement that a

candidate be a qualified primary voter of the party for which

he seeks a nomination mandates, if nothing else, that the

candidate have been eligible to vote in the primary for that

party in the most recent primary election preceding the

candidates’ filing the statement of candidacy.” Cullerton, 384

Ill. App. 3d at 996.

The appellate court explained that when Cullerton chose to vote in the

Republican and not the Democratic primary in 2008, he was “locked”

as a Republican primary voter until the next primary, then scheduled

for 2010. Thus, at the time Cullerton submitted his statement of

candidacy, he was not a qualified primary voter of the Democratic

Party. Cullerton, 384 Ill. App. 3d at 996.

Though Hossfeld argues that the same result should obtain here,

the situation addressed in Cullerton is not the situation we address

here. In Cullerton, the candidate attempted to switch parties within

one election cycle or season, i.e., Cullerton voted a Republican ballot

at the primary, but then sought to run as a Democratic candidate at

the general election for which that primary was held. In contrast, the

election cycle or season during which Rauschenberger voted a

Democratic ballot–the 2009 consolidated election in Elgin

Township–was completed with the general township election in April

2009, prior to Rauschenberger aligning himself with the Republican

Party in his October 2009 nomination papers for purposes of the 2010

general primary. Rauschenberger has not attempted to switch parties

during this new election cycle which will be completed with the

November 2010 general election. Thus, Hossfeld’s reliance on

Cullerton is misplaced.

Moreover, we find nothing in the language of section 7–10 or 8–8

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of the Election Code to support Hossfeld’s argument that

Rauschenberger’s nomination papers falsely state that he is a

“qualified primary voter of the Republic Party.” As the appellate court

here correctly observed, the Election Code no longer contains express

time limitations on party-switching, and Rauschenberger did not run

afoul of the only remaining restriction, set forth in both sections 7–10

and 8–8, that a “ ‘qualified primary elector’ of a party may not sign

petitions for or be a candidate in the primary of more than one party.”

See 398 Ill. App. 3d at 744. Further, no claim has been made that

Rauschenberger did not meet the qualifications for primary voters

generally which are set forth in section 7–43. See 10 ILCS 5/7–43

(West 2008) (setting forth residency and age restrictions for primary

voters).

Though we agree with Hossfeld that party-switching restrictions

on candidates for public office are an important protection in the

electoral process, “[s]uch restrictions and establishment of the periods

of time involved are, within constitutional limitations, matters for

legislative determination.” Sperling, 57 Ill. 2d at 86. After deleting the

two-year no-switch rule, the General Assembly has not seen fit to

enact any further time restrictions. Accordingly, under the present

Election Code, Rauschenberger’s nominating papers are valid.

CONCLUSION

For the reasons stated, we affirm the judgment of the appellate

court affirming the judgment of the circuit court of Cook County that

denied Hossfeld relief.

Affirmed.

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