Cullerton v. Du Page County Officers Electoral Board

No. 2--08--0605 Filed: 8-7-08

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

THOMAS CULLERTON, ) Appeal from the Circuit Court

) of Du Page County.

Petitioner-Appellee, )

)

v. ) No. 08--MR--802

)

DU PAGE COUNTY OFFICERS )

ELECTORAL BOARD, CHARLOTTE )

MUSHOW, J.P. "RICK" CARNEY, )

JEANNE McNAMARA, and DONNA )

M. ROZYCKI, ) Honorable

) Paul M. Fullerton,

Respondents-Appellants. ) Judge, Presiding.

______________________________________________________________________________

JUSTICE O'MALLEY delivered the opinion of the court:

Respondents, Du Page County Officers Electoral Board (Board), Charlotte Mushow, J.P.

"Rick" Carney, Jeanne McNamara, and Donna M. Rozycki, appeal from the decision of the circuit

court reversing the decision of the Board to exclude petitioner, Thomas Cullerton, from the

November 2008 ballot as the Democratic candidate for Senator of the 23rd Legislative District of

Illinois. On appeal, respondents assert that the circuit court erred and that the Board correctly

excluded petitioner from the ballot, for two reasons. First, respondents argue that the resolution

nominating petitioner to fill the vacancy on the Democratic ballot was deficient for its failure to

include on its face the date on which the Democratic 23rd Legislative District Committee

(Committee) selected him as its nominee for the November 2008 general election. See 10 ILCS 5/7--

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61 (West 2006). Second, respondents argue that petitioner cannot run as a Democratic candidate

in the general election because he voted in the Republican primary election and thus does not meet

the statutory requirement that he be a "qualified primary voter" of the Democratic party. See 10

ILCS 5/7--10 (West 2006). Because we find the second argument dispositive, we confine our

discussion to that issue. For the reasons that follow, we reverse the judgment of the circuit court and

hold that petitioner is ineligible to be placed on the November 2008 ballot as the Democratic

candidate for Senator of the 23rd Legislative District of Illinois.

The parties do not dispute the relevant underlying facts. In February 2008, petitioner voted

in the Republican Party primary election in Du Page County, just as he had in 2004 and 2006. After

the 2008 primary election, the Democratic Party had no candidate for Senator of the 23rd Legislative

District. On April 1, petitioner filed a resolution from the Committee, nominating him as the

candidate to fill the Democratic vacancy on the general election ballot. On that same day, petitioner

filed a statement of candidacy stating that he was a "qualified primary voter of the Democratic Party."

Rozycki filed objections to petitioner's candidacy, and the Board sustained the objections. Petitioner

petitioned the circuit court for judicial review of the decision, and the circuit court thereafter reversed

the Board's decision and ruled that petitioner's name could appear on the November 2008 general

election ballot. The circuit court stayed enforcement of its order, pending this timely appeal.

The standards for review of an electoral board decision are essentially identical to those

applicable to review of an administrative agency decision. Cinkus v. Village of Stickney Municipal

Officers Electoral Board, 228 Ill. 2d 200, 209-10 (2008). An electoral board's findings of fact are

deemed prima facie true and correct and will not be overturned on appeal unless they are against the

manifest weight of the evidence. Cinkus, 228 Ill. 2d at 210. An electoral board's decisions on

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questions of law, however, are not binding on a reviewing court, which will instead review such

questions under the nondeferential de novo standard of review. Cinkus, 228 Ill. 2d at 210-11. An

electoral board's rulings on mixed questions of law and fact--questions on which the historical facts

are admitted, the rule of law is undisputed, and the only remaining issue is whether the facts satisfy

a statutory standard--will not be disturbed on review unless clearly erroneous. Cinkus, 228 Ill. 2d

at 211.

In their arguments on appeal, the parties dispute the import of section 7--10 of the Election

Code (Code) (10 ILCS 5/7--10 (West 2006)) in light of the Supreme Court's decision in Kusper v.

Pontikes, 414 U.S. 51, 38 L. Ed. 2d 260 , 94 S. Ct. 303 (1973), and our supreme court's subsequent

decision in Sperling v. County Officers Electoral Board, 57 Ill. 2d 81 (1974). We therefore begin by

discussing those two cases as they affect section 7--10 of the Code.

In 1971, the Code housed three relevant restrictions on changes in political party affiliation:

it restricted party changes by (1) voters; (2) signers of nominating petitions; and (3) candidates for

nomination in primary elections. Sperling, 57 Ill. 2d at 81-82.

The restriction on party changes by voters appeared in section 7--43 of the Code, which

provided as follows:

"No person shall be entitled to vote at a primary:

***

(d) If he has voted at a primary *** of another political party within a period

of 23 calendar months next preceding the calendar month in which such primary is

held ***." Ill. Rev. Stat. 1971, ch. 46, par. 7--43(d).

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The last paragraph of section 7--10 of the Code contained a restriction both on signers of

nominating petitions and on candidates:

"For the purpose of determining eligibility to sign a petition for nomination or

eligibility to be a candidate ***, a 'qualified primary elector' of a party (1) is 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. 7--10.

In another, preceding portion of section 7--10, the Code placed an additional restriction on

candidates by requiring that a candidate file a statement of candidacy that attests, among other things,

that the candidate "is a qualified primary voter of the party to which the [nominating petition] relates."

Ill. Rev. Stat. 1971, ch. 46, par. 7--10. (Although petitioner does not seek to be a primary candidate

but instead a general election candidate, he was still statutorily required to meet this requirement.

See 10 ILCS 5/7--61 (West 2006) (any resolution to fill a vacancy after a primary "shall be

accompanied by a Statement of Candidacy, as prescribed in Section 7--10").) As the Code was

written in 1971, the definition of the term "qualified primary voter of [a] party" (as the phrase

appeared in the statement-of-candidacy requirement) was provided in the above-quoted last

paragraph of section 7--10, and it required that the voter not have requested a primary ballot of any

other party within two years.

Thus, in 1971, the Code barred voters, signers of primary petitions, and candidates from

participating in primaries of one political party if they had participated in the primary of another

political party within two years.

In Kusper, the Supreme Court held that the restriction on voters changing parties was

unconstitutional on the ground that it violated voters' first and fourteenth amendment freedom to

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associate. Kusper, 414 U.S. at 57-61, 38 L. Ed. 2d at 266-69, 94 S. Ct. at 307-10. The Supreme

Court explained its holding as follows:

"There can be little doubt that § 7--43(d) substantially restricts an Illinois voter's

freedom to change his political party affiliation. One who wishes to change his party

registration must wait almost two years before his choice will be given effect. Moreover, he

is forced to forgo participation in any primary elections occurring within the statutory 23-

month 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.

Though it has been declared unconstitutional and thus cannot be enforced, section 7--43(d) remains

a part of the Code today. See 10 ILCS 5/7--43(d) (West 2006).

In Sperling, our supreme court faced the question of whether the remaining two types of

restrictions--the restriction on party changes by signers of petitions and the restrictions on

candidates--were constitutional in light of Kusper. See Sperling, 57 Ill. 2d at 81-82 (summarizing

types and sources of restrictions and quoting both the last paragraph of section 7--10 and the

statement-of-candidacy portion of section 7--10). The supreme court held that "[t]he same reasoning

which moved the Kusper court to hold invalid the 23-month restriction upon voter changes of

political parties is *** applicable to the 2-year restriction upon those voters who wish to sign primary

nominating petitions, and that restriction, too, must fall." Sperling, 57 Ill. 2d at 84. On the issue of

whether a restriction on candidates' party changes could pass constitutional muster, the supreme court

found it "clear that the State's interest in preserving the integrity of the political process will support

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a reasonable restriction upon party-switching by candidates," and it noted case law indicating that a

two-year restriction on candidate party-switching is constitutional. See Sperling, 57 Ill. 2d at 84-85.

However, even so, the supreme court concluded its discussion as follows:

"That the restriction on candidates could be upheld against constitutional challenge

is, however, of little help here. Such restrictions and establishment of the period of time

involved are, within constitutional limitations, matters for legislative determination. We have

here a legislatively designed plan for the preservation of the integrity of the political process

which provided substantially similar restrictions for all three categories: voters, voters who

sign primary nominating petitions, and voters who wish to be candidates. That plan has now

been held to be constitutionally impermissible as to two of those three categories. The

legislature has had no real opportunity since Kusper was announced last November to

respond, and we cannot say absence of action by it indicates acquiescence. Likewise, our

decision in this case may prompt legislative action. In short, it seems to us that the restrictive

provisions upon the several categories of voters are so closely related that the General

Assembly would not have enacted the portion relating to candidates apart from some

restrictions upon voters generally and, more particularly, those voters who desire to sign

primary petitions. [Citation.] 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.

Indeed, the party-switching restrictions, especially the restrictions on petition signers and candidates,

were very interrelated in the 1971 version of the Code. Both the signer and the candidate restrictions

were located in section 7--10. The candidate restriction requiring candidates to attest to being a

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"qualified primary voter of the party [whose nomination the candidate sought]" appeared to

incorporate the " 'qualified primary voter' of a party" definition found in the last paragraph of section

7--10 (Ill. Rev. Stat. 1971, ch. 46, par. 7--10), and that last paragraph contained a restriction both

on signers and on candidates. (As noted above, this candidate restriction in the last paragraph was

in addition to the restriction on candidates in the statement-of-candidacy portion of section 7--10 of

the Code.) Thus, the supreme court held that, absent some indication from the legislature that one

of the types of restrictions on party-changing could survive independent of the others, the court could

not sever the restrictions on candidates from the unconstitutional restrictions on voters and signers

of petitions.

After Sperling, the relevant portions of the Code persisted unchanged until 1990, when the

General Assembly enacted Public Act 86--1348 (Pub. Act 86--1348, eff. September 7, 1990), which

removed the restriction that had been stricken in Sperling regarding signers of petitions. As relevant

here, Public Act 86--1348 changed section 7--10 as follows (with strikeout used to show deletions

and bold used to show additions):

"For the purpose of determining eligibility to sign a petition for nomination or

eligibility to be a candidate under this Article, A 'qualified primary elector' of a party (1) is 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 or (2) is a first-time voter in this

State registered since the last primary of an even-numbered year preceding the date on which

the petition must be filed, but no such person may not sign petitions for or be a candidate in

the primary of more than one party." Pub. Act 86--1348, eff. September 7, 1990.

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The legislature did not, and to date has not, removed the statement-of-candidacy restriction in a

preceding portion of section 7--10. See 10 ILCS 5/7--10 (West 2006) (candidate's statement of

candidacy "shall state that the candidate is a qualified primary voter of the party to which the petition

relates").

Against that backdrop, we return to the instant case. As noted, respondents argue that

petitioner was not a "qualified primary voter" of the Democratic Party, as required under section 7--

10 of the Code. Petitioner offers two rebuttals. Because both of these rebuttals present questions

of law, our review is de novo. Cinkus, 228 Ill. 2d at 211.

First, petitioner argues that he need not have voted in the Democratic primary election in

order to be considered a "qualified primary voter" of the Democratic Party. To support his argument,

petitioner resorts initially to the statutory definition of a "qualified voter." See 10 ILCS 5/3--1 (West

2006). Because petitioner meets the qualifications contained in that definition--he is a United States

citizen of voting age--he argues that he is "[b]y definition under the Code *** a 'qualified primary

voter.' " We disagree. It may very well be true that petitioner is a "qualified voter," but the relevant

inquiry in this case is whether he is a "qualified primary voter" of the Democratic Party, as required

under section 7--10. Petitioner also cites the definition of "qualified primary elector" found in section

3--1.2 of the Code, which provides that, "[f]or the purpose of determining eligibility to sign a

nominating petition," the term " 'qualified primary elector' " means "a person who is registered to vote

at the address shown opposite his signature on the petition or was registered to vote at such address

when he signed the petition." 10 ILCS 5/3--1.2 (West 2006); see also Sperling, 57 Ill. 2d at 83

(holding that there is no substantive difference between the phrases "qualified primary elector" and

"qualified primary voter" as used in the Code). Again, petitioner invokes an incomplete test. The

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question here is not whether petitioner is a "qualified primary voter" but, rather, whether he is a

"qualified primary voter" of the Democratic Party, as required under section 7--10. Petitioner makes

no argument that he meets the party affiliation requirement of section 7--10.

We agree with respondents that petitioner, who voted in the Republican and not the

Democratic primary in at least the three primaries preceding the upcoming general election, cannot

be considered a "qualified primary voter" of the Democratic Party under section 7--10. The primary

goal for a court interpreting a statute is to give effect to the intention of the legislature. Cinkus, 228

Ill. 2d at 216. "It is well established that when a statute defines the terms it uses, those terms must

be construed according to the definitions contained in the [statute]." State Farm Mutual Automobile

Insurance Co. v. Universal Underwriters Group, 182 Ill. 2d 240, 244 (1998). However, without such

a statutory definition, courts must look to the remaining language of the statute to find evidence of

legislative intent. "The best evidence of legislative intent is the language used in the statute itself,

which must be given its plain and ordinary meaning." Cinkus, 228 Ill. 2d at 216.

Though the Code at one time contained a definition of a "qualified primary voter" of the

Democratic Party, that definition was deleted via Public Act 86--1348. Thus, we resort to the plain

language to determine the meaning of the phrase. 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 candidate's filing the statement of candidacy. Because

petitioner voted in the 2006 Republican primary, he was prohibited under the Code from voting in

the Democratic primary that same year. See 10 ILCS 5/7--44 (West 2006) (a voter is to be given the

primary ballot for the political party with which he declares himself affiliated, and "no person

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declaring his affiliation with a statewide established political party may vote in the primary of any

other statewide political party on the same election day"). Consistent with Kusper, he could have

switched his party allegiance in the next primary. However, until that next primary, his status was

"locked" as a Republican primary voter. (The time between primaries, and thus the time a voter's

party status is "locked," is typically two years, but that is not always so. In fact, the time between

the 2008 primary and the 2006 primary was less than two years. See Public Act 95--6, eff. June 20,

2007 (changing primary date from third Tuesday in March to first Tuesday in February).) Therefore,

at all times between the 2006 primary and the next primary, in 2008, petitioner was a qualified

primary voter of the Republican Party, and he was not a qualified primary voter of the Democratic

Party. Likewise, when petitioner chose to vote in the Republican and not the Democratic primary

in 2008, he was barred by statute from voting in the Democratic primary that same year.

Accordingly, at all times since the 2008 primary (and until the next primary, now scheduled for 2010),

including the time at which petitioner submitted his statement of candidacy pursuant to section 7--10,

he was not a qualified primary voter of the Democratic Party. We therefore reject petitioner's

argument that he met the requirement, from section 7--10 of the Code, that he be a qualified primary

voter of the Democratic party at the time of his nomination.

Second, petitioner asserts that, in light of Sperling, "there are no current restrictions on the

right of a candidate in Illinois" to change parties. In his appellate brief, petitioner appears to rely on

the above-quoted passage from Sperling, which states that, because the court could not assume that

the restrictions on candidates could exist independently of the restrictions found to be

unconstitutional, the court was left to conclude that none of the three restrictions on party-switching

remained viable. See also Dooley v. McGillicudy, 63 Ill. 2d 54 (1976) (noting that legislature had

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not changed the Code in response to Sperling and thus applying the holding from Sperling).

However, since Sperling, the legislature has amended the Code in a manner that speaks to the point

raised in Sperling. When it enacted Public Act 86--1348, the legislature excised all of the portions

of section 7--10 that seemed, when Sperling was decided, to be inextricably linked to the statement-

of-candidacy restriction on candidates. The legislature deleted: (1) the statutory definition of the

phrase "qualified primary voter for a party" (which was referenced in the statement-of-candidacy

portion of section 7--10); (2) the restriction on petition signers; and (3) one of the two restrictions

on candidate party-switching then found in section 7--10. However, the legislature left intact the

restriction on party-changing in the statement-of-candidacy portion of section 7--10. The legislature

thus demonstrated that that candidate restriction could exist independently. Put another way, after

the supreme court in Sperling held that it could not conclude that the unconstitutional restrictions on

party-switching could be severed from the statement-of-candidacy restriction on candidates, the

legislature severed the unconstitutional restriction on petition signers from the statement-of-candidacy

restriction on candidates. Accordingly, contrary to petitioner's argument, the legislature has spoken

on this issue--the Code provides that a candidate must be a qualified primary voter of the political

party for which he seeks a nomination.

Because the parties did not refer to Public Act 86--1348 in their written arguments on appeal,

we issued an order in advance of oral argument instructing them to be prepared to address the issue.

At oral argument, petitioner asserted that Public Act 86--1348 removed all candidate restrictions from

the Code. Petitioner misperceives the relevant portion of the Code. While it is true that Public Act

86--1348 removed the candidate restriction that had appeared in the last paragraph of section 7--10,

the public act did not remove the candidate restriction appearing in the statement-of-candidacy

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portion of section 7--10. It is that restriction that is relevant to this appeal. In asserting at oral

argument that Public Act 86--1348 removed from the Code restrictions on candidate party-switching,

petitioner overlooks the statutory language that forms the basis of our decision today.

For the reasons stated, we conclude that the limitation on candidate party-switching found

in the statement-of-candidacy portion of section 7--10 of the Code, which requires that a candidate

attest to being a "qualified primary voter" of the party whose nomination the candidate seeks, is now

viable even in light of Sperling. Because petitioner fails that statutory requirement, we agree with

the Board that he is not eligible to be placed on the November 2008 general election ballot as the

Democratic candidate for Senator of the 23rd Legislative District of Illinois.

For the foregoing reasons, we reverse the decision of the circuit court of Du Page County.

Reversed.

HUTCHINSON and ZENOFF, JJ., concur.

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