The opinion
Miss PRESIDING JUSTICE McGILLICUDDY, dissenting:
I respectfully dissent from the majority’s reversal of the order of the circuit court. I believe that the electoral board’s decision to exclude the candidate from the ballot for noncompliance with section 7 — 10 of the Election Code was not against the manifest weight of the evidence. Williams v. Butler (1976), 35 Ill. App. 3d 532 , 341 N.E.2d 394 .
Section 7 — 10 requires a certification by the circulator at the bottom of each sheet of the nominating petition. In addition, the Code expressly provides that “[s]uch statement shall be sworn to before some officer authorized to administer oaths in this State.” (Emphasis added.) Ill. Rev. Stat. 1977, ch. 46, par. 7 — 10.
In Williams v. Butler the court invalidated certain sheets of the nominating petition which were not certified in the presence of the notary. The court observed that the purpose of this requirement was to substantiate that the petition was properly circulated and that the signatures were genuine. The court further stated that the requirement was “a substantial and valid requirement that relates to the integrity of the political process.”
The majority attempts to distinguish the instant case from Williams by emphasizing the allegations of forgery in the petitions in Williams, whereas in this case there are no allegations of fraudulent conduct or forgery. I do not accept this distinction. In Williams, the court invalidated the petitions for lack of compliance with the notary requirement and deemed it unnecessary to consider the issue of forgery. Moreover, the court commented that it found the evidence of forgery far from adequate.
In the instant case there is no dispute that Robert Hernquist did not certify the petition in the presence of the notary. The majority concludes, however, that because Hernquist testified that he believed himself under oath when he signed the certification, he substantially complied with the Election Code. I cannot agree with this conclusion.
Each case cited in the majority opinion for the principle that there was “substantial compliance” with the requirements of the Election Code involved petitions which technically violated the form prescribed by the Code. For example, in Lewis v. Dunne the statement of candidacy described the office sought as “Judge of the Appellate Court of Illinois, First Judicial District” without indicating the particular vacancy although the electors’ petitions described said vacancy. In Stevenson v. County Officers Electoral Board the candidate failed to number consecutively the pages of his nominating petition. I do not believe that the failure to comply with the substantive requirement of notarization can be equated with such technical violations of form.
The majority points out that one purpose of the oath, to subject the circulator to possible prosecution for perjury, is satisfied by section 29 — 10 of the Code. Although I agree that pursuant to this section the State could prosecute a circulator for perjury despite a lack of notarization, I see an additional purpose for the requirement. I believe that the legislature hoped to impress upon the circulator the necessity for truth and the seriousness of the certification by requiring that he appear before an “officer authorized to administer oaths.”
The majority’s opinion effectively eliminates the requirement of notarization from the statute in holding that there is substantial compliance with the Code when a circulator of an unnotarized petition can testify that he consciously took upon himself the obligation of an oath when he signed the certification. Such a result clearly ignores the mandate of the legislature.
For the foregoing reasons, I would affirm the order of the circuit court of Cook County affirming the decision of the electoral board.