Ghiles v. Municipal Officers Electoral Board

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Appellate Court Date: 2019.06.13

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Ghiles v. Municipal Officers Electoral Board, 2019 IL App (1st) 190117

Appellate Court SEBASTIAN CALVIN GHILES, Petitioner-Appellant, v. THE

Caption MUNICIPAL OFFICERS ELECTORAL BOARD OF THE CITY OF

CHICAGO HEIGHTS; WANDA ROGERS, in Her Official Capacity

as Substitute Chairman of the Municipal Officers Electoral Board of

the City of Chicago Heights; LORI WILCOX, in Her Official

Capacity as Member of the Municipal Officers Electoral Board of the

City of Chicago Heights; VINCENT ZARANTI, in His Official

Capacity as Member of the Municipal Officers Electoral Board of the

City of Chicago Heights; MICHAEL A. STEBEL, Objector; and

RUBEN REYNOSO, Objector, Respondents-Appellees.

District & No. First District, First Division

Docket No. 1-19-0117

Filed February 8, 2019

Decision Under Appeal from the Circuit Court of Cook County, No. 2018-

Review COEL-000034; the Hon. Carol Kipperman, Judge, presiding.

Judgment Affirmed.

Counsel on McStephen O.A. Solomon, of Hazel Crest, for appellant.

Appeal

Luciano Panici Jr., of Law Offices of Dennis G. Gianopolus, P.C., of

Lansing, for appellees Municipal Officers Electoral Board of the City

of Chicago Heights, Wanda Rodgers, Lori Wilcox, and Vincent

Zaranti.

Matthew M. Welch, Matthew T. Ingersoll, and Erin E. Blake, of

Montana Welch, LLC, of Palos Heights, for other appellees.

Panel PRESIDING JUSTICE MIKVA delivered the judgment of the court,

with opinion.

Justices Griffin and Walker concurred in the judgment and opinion.

OPINION

¶1 Petitioner, Sebastian Calvin Ghiles, filed nomination papers to be a nonpartisan candidate

for the office of mayor of Chicago Heights, Illinois. Objections were filed to Mr. Ghiles’s

nomination papers. After a hearing, the Municipal Officers Electoral Board of the City of

Chicago Heights (Board) invalidated Mr. Ghiles’s nomination papers because he did not have

the required minimum number of signatures. The circuit court affirmed the Board’s

determination. Mr. Ghiles now challenges the Board’s decision, arguing that the Board’s

chosen methodology used to invalidate his papers was “not fair, reasonable, or rational.” For

the following reasons, we affirm the decision of the Board.

¶2 I. BACKGOUND

¶3 Mr. Ghiles filed his nomination papers on November 20, 2018. These papers consisted of

81 pages of signatures—with a maximum of 10 signatures per page—in support of placing Mr.

Ghiles on the ballot for the consolidated mayoral primary to be held on February 26, 2019.

¶4 On December 3, 2018, Michael A. Stebel and Ruben Reynoso (collectively, the objectors)

jointly filed objections to Mr. Ghiles’s nomination papers on several grounds. They alleged

that some of the entries contained forged or duplicative signatures, referenced nonregistered

voters, and contained incomplete or inaccurate voter information. They also argued that the

signature pages as a whole “demonstrate[d] a pattern of fraud and disregard of the Election

Code” such that “every sheet circulated *** [was] invalid.” The objectors maintained that Mr.

Ghiles could not be listed on the ballot because his papers “contain[ed] less than 139 validly

collected signatures of qualified and duly registered legal voters of the City of Chicago

Heights.”

¶5 Section 10-9 of the Illinois Election Code (10 ILCS 5/10-9(3) (West 2016)) provides that a

municipal officers electoral board shall convene to hear objections to nomination papers for

municipal office and that the board consists of the mayor, the city clerk, and the member of the

city council with the longest tenure. Because Mr. Ghiles was running for mayor, the mayor did

not participate in consideration of these objections, and that Board position went to the

next-highest tenured city council member. The Board gave Mr. Ghiles and the objectors

written notice on December 6, 2018, that a hearing would be convened beginning on

December 11, 2018, to consider the objections to Mr. Ghiles’s signatures.

¶6 Pursuant to section 10-3 of the Election Code, Mr. Ghiles needed a minimum of 139 valid

signatures (5% of the voters in the last applicable election) to be placed on the ballot, and the

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Board was only to review a statutory maximum of 221 signatures (8% of voters in the last

election). Id. § 10-3. The statute provides in pertinent part as follows:

“Nominations *** 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.” Id.

¶7 Section 10-10 of the Election Code (id. § 10-10) requires an electoral board, on the first

day of its convening, to “adopt rules of procedure for the introduction of evidence and the

presentation of arguments.” The Board proposed such draft rules of procedure in its notice to

the parties, including Rule 8, which establishes a procedure for considering a prospective

candidate’s papers when, as Mr. Ghiles did, the candidate has submitted more than the

statutory maximum. Rule 8 provides, in pertinent part:

“In case a candidate *** files a petition or petitions in excess of the maximum number

of signatures and an objection is filed pursuant to Section 10-8 of the Election Code, for

efficiency and administrative convenience, the Electoral Board shall disregard that

number of signatures presented as are in excess of the statutory maximum beginning by

counting from the first signature of the first page of the filing. Thus, if a candidate ***

files petitions subject to a statutory maximum of 500 signatures but they present 700,

the first 200 signatures presented on their nomination papers shall be disregarded and

the Electoral Board shall examine the last 500 signatures presented.”

¶8 The Board met on December 11, 2018, with Mr. Ghiles present, and it acknowledged and

adopted the draft rules of procedure, including Rule 8. The Board then submitted Mr. Ghiles’s

nomination papers to a records examination by the Cook County Clerk, which issued its report

on December 18, 2018. The clerk’s report details the total signatures submitted by Mr. Ghiles,

the challenges to those signatures made by the objectors, which challenges were overruled and

which were sustained, and the number of remaining valid signatures. Mr. Ghiles submitted 81

pages containing 736 signatures, 434 of which remained valid after the clerk’s examination.

The valid signatures were spread throughout the pages; on some pages there were no valid

signatures and on others all 10 signatures were counted as valid.

¶9 The Board reconvened on December 21, 2018, for a hearing on the objections to Mr.

Ghiles’s petition. At that hearing, Mr. Ghiles first argued that the Board’s method under Rule

8—of removing signatures submitted in excess of the statutory maximum from consideration

by essentially taking those signatures off the top of the stack rather than from the bottom of the

stack—was “sua sponte,” “ultra vires,” and unreasonable.

¶ 10 On December 28, 2018, the Board issued its written decision invalidating Mr. Ghiles’s

nomination papers. The Board noted that under Rule 8, “the relevant 8% [of signatures] to be

reviewed by the Board would be the signatures from Sheet 52, Line 9, to the end of the

Candidate’s Petitions.” After “accounting for the factual findings of the Cook County Clerk as

it pertains to” those 221 signatures, the Board found that only 112 signatures were valid. The

Board rejected the objectors’ claim that the signatures revealed a “pattern of fraud” but

nevertheless determined that, because Mr. Ghiles had failed to reach the statutory minimum of

139 valid signatures, his name should be stricken from the ballot for the February 26, 2019,

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primary election.

¶ 11 II. JURISDICTION

¶ 12 Mr. Ghiles sought judicial review, and the circuit court affirmed the Board’s decision on

January 17, 2019. Mr. Ghiles timely filed his notice of appeal on the same day. We have

jurisdiction over this matter pursuant to section 3-112 of the Code of Civil Procedure (735

ILCS 5/3-112 (West 2016)), making final orders in administrative review cases reviewable by

appeal as in other civil cases, and Illinois Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303

(eff. July 1, 2017), governing appeals from final judgments entered by the circuit court in civil

cases.

¶ 13 III. ANALYSIS

¶ 14 The sole issue in this case is whether the Board’s method of removing from consideration

those signatures in excess of the statutory minimum was rationally related to its interest in

providing an orderly election procedure, when the Board disregarded the excess signatures at

the front on the petition and reviewed the maximum number of signatures it could review from

the back of the stack.

¶ 15 With respect to appeals in administrative cases, “we review the decision of the board, not

the [circuit] court” (Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill.

2d 200, 212 (2008)) and “may affirm an electoral board’s decision on any basis that appears in

the record, even though the electoral board may have relied on another basis to support its

decision” (Cunningham v. Schaeflein, 2012 IL App (1st) 120529, ¶ 34). “An electoral board is

viewed as an administrative agency” and “[t]hus, the standard of review is determined by the

type of question on review.” Hossfeld v. Illinois State Board of Elections, 238 Ill. 2d 418, 423

(2010). Findings and conclusions on questions of fact are deemed prima facie true and correct

and will not be overturned unless they are against the manifest weight of the evidence, findings

on mixed questions of law and fact will not be disturbed unless clearly erroneous, and

questions of law are reviewed de novo. Wilson v. Municipal Officers Electoral Board, 2013 IL

App (1st) 130957, ¶ 10.

¶ 16 “Administrative regulations, for purposes of determining their validity, are presumed to be

valid” and will not be set aside unless “clearly arbitrary, unreasonable or capricious.” Begg v.

Board of Fire & Police Commissioners, 99 Ill. 2d 324, 331-32 (1984). “[T]he person

questioning the validity of the administrative regulation bears the burden of establishing its

invalidity.” Id. at 332. We review the Board’s method of removing excess signatures under this

standard—whether it was arbitrary, unreasonable or capricious.

¶ 17 In any case involving the right to run for elected office, we must bear in mind certain

principles. “[V]oting is of the most fundamental significance under our constitutional

structure.” Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 184

(1979). “Restrictions on access to the ballot burden two distinct and fundamental rights, the

right of individuals to associate for the advancement of political beliefs, and the right of

qualified voters, regardless of their political persuasion, to cast their votes effectively.”

(Internal quotation marks omitted.) Id. In veneration of these intertwined rights, Illinois treats

“access to a place on the ballot [as] a substantial right not lightly to be denied.” Bettis v.

Marsaglia, 2014 IL 117050, ¶ 28.

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¶ 18 As noted above, section 10-3 of the Election Code requires that Mr. Ghiles present a

nominating petition that includes valid signatures from at least 5% of the people that voted in

the last election for the mayoral office he was seeking. That statute also limits, to 8% of those

who voted in that last election, the number of signatures Mr. Ghiles can submit to the Board in

the effort to achieve this necessary quota of valid signatures.

¶ 19 Both parties in this case rely on the same two cases that have examined this limitation on

the number of signatures a candidate is allowed to submit to the Board: Richards v. Lavelle,

620 F.2d 144, 147 (7th Cir. 1980), and Wilson, 2013 IL App (1st) 130957.

¶ 20 In Richards, the Seventh Circuit recognized that an electoral board’s enforcement of a

statutory maximum limitation of signatures “imposes no significant burden on anyone”

because it simply requires the candidate offering nominating signatures to count. Richards,

620 F.2d at 147. However, that court held that the sanction of removing the candidate from the

ballot because he submitted more than the maximum number of signatures was an irrational,

and therefore unconstitutional, means of enforcing that limitation. Id. at 148.

¶ 21 In Wilson, this court also recognized that limiting the maximum number of signatures was

a limitation that “served a legitimate state interest.” Wilson, 2013 IL App (1st) 130957, ¶ 14. In

that case, we found that election board’s rule of considering signatures—starting at the top of

the nominating petitions and continuing only until it had examined the statutory

maximum—was “a rational means of enforcing the statutory maximum imposed.” Id.

¶ 22 Mr. Ghiles asks us to reverse the Board’s decision here and order his name be placed on the

ballot because “the Board’s action and method in this case [invalidating] his nomination papers

*** was not fair, reasonable, or rational.” He makes several arguments.

¶ 23 He first argues the Board acted beyond its authority by relying on paragraph 12 of the

objector’s petition, in which they stated that “[t]he Nomination Papers contain petition sheets

which contain signatures of voters well in excess of that number provided for by law” and were

therefore invalid. Mr. Ghiles correctly notes that, under Richards, 620 F.2d at 148, an electoral

board cannot invalidate a candidate’s nomination papers simply because they exceeded the

maximum signature requirement. He insists that “[t]he inquiry and prosecution of this

allegation should have ended there” but that the Board “acted sua sponte, and ultra vires, by

counting out signatures” after the Cook County Clerk’s records examination to find that, of the

221 signatures that the Board examined, only 112 were valid.

¶ 24 However, there was nothing sua sponte or ultra vires about the Board’s actions. Under

section 10-3 of the Election Code (10 ILCS 5/10-3 (West 2016)), the Board is empowered to

limit its review to 8% of persons “who voted at the next preceding regular election” for that

office, and under Richards and Wilson, it is vested with discretion to craft a rational way of

separating that 8% from the total number of signatures a candidate has submitted. That is what

the Board did here.

¶ 25 Mr. Ghiles also challenges the Board’s method of complying with the statute, arguing both

that Rule 8 is inherently contradictory and that, as interpreted by the Board, Rule 8 is arbitrary

and capricious.

¶ 26 Mr. Ghiles does not disagree that the hypothetical posed in Rule 8 clearly anticipates that

the Board will draw from the bottom of the candidate’s proffered stack of nominating petitions

until it has reached the maximum number. Mr. Ghiles argues that the portion of the rule

preceding the hypothetical—which states that “the Electoral Board shall disregard that number

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of signatures presented as are in excess of the statutory maximum beginning by counting from

the first signature of the first page of the filing”—contradicts this reading.

¶ 27 We find no contradiction. The first statement provides that the Board will determine

whether signatures exceed the maximum “by counting from the first signature of the first

page,” and the hypothetical that follows separately provides the method for determining which

of those signatures the Board will consider. Preventing any ambiguity, Rule 8 offers a

clarifying hypothetical that the signatures reviewed will be drawn from the bottom of the stack,

meaning that those signatures exceeding the maximum at the top of the stack—starting at page

one, line one—will be disregarded.

¶ 28 Mr. Ghiles also argues that, under this interpretation, the rule the Board promulgated and

applied defies reason, in that “[r]eason would *** suggest and posit that extracting 221

signatures from 736 signatures would mean counting out the 221 signatures starting from

signature #1 on sheet #1” and disregarding “the ‘excess’ of 221 *** once #221 is reached.” In

Mr. Ghiles’s reading, the word “excess” can only have one meaning, and any notion that an

excess could precede the signatures to be counted is an arbitrary scheme that improperly

deprives him of ballot access.

¶ 29 We certainly agree that Mr. Ghiles’s suggestion is a rational one, and it is the methodology

we approved in Wilson. But, in our view, there is more than one rational method for adhering to

the statutory limitation. It is rational to remove or disregard excess signatures either from the

top (as in this case) or from the bottom (as in Wilson) of the stack of signatures provided where,

as in this case, a candidate chooses to present the Board with more than the maximum number

of signatures allowed.

¶ 30 An evil that clearly must be avoided is the possibility that an election board will use the

process of identifying “excess” signatures as a ruse for eliminating “good” signatures so as to

hamper a candidate seeking a place on the ballot. Nothing in the record suggests Rule 8 was

promulgated to do that, and Mr. Ghiles does not dispute that the rule was promulgated and

provided to him before any records examination was performed. Indeed, Mr. Ghiles made no

objection to the rule when he was announced, likely because he also had no idea whether it

would help him or hurt him more than if the Board had disregarded signatures from the bottom.

In fact, a careful review of the record shows that the invalid signatures were spread throughout

the 81 pages that Mr. Ghiles presented to the Board.

¶ 31 While Mr. Ghiles argues that if the Board had instead reviewed the first 221 signatures, he

would have been over the 5% minimum threshold, nothing in the record suggests that the

Board knew this. More importantly, this fact does not automatically render every other method

of review, including that in Rule 8, irrational or unrelated to the Board’s legitimate interest in

conducting an orderly election. See Wilson, 2013 IL App (1st) 130957, ¶ 14.

¶ 32 The objectors and the Board both raise arguments of laches and waiver, claiming prejudice

from Mr. Ghiles’s failure to raise his objection to the signature counting process in Rule 8 until

December 21, 2018. We need not address these arguments, however, as we find that the

method set out in Rule 8 is not arbitrary and capricious.

¶ 33 IV. CONCLUSION

¶ 34 For the foregoing reasons, we affirm the decision of the Board.

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¶ 35 Affirmed.

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