Gallagher v. Cook County Officers Electoral Board

2024 IL App (1st) 240224

Opinion filed February 20, 2024

____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2024

CAROLYN J. GALLAGHER and ) Appeal from the Circuit Court

LEONARD MURRAY, ) of Cook County, Illinois,

)

Petitioners-Appellees, ) Appeal No. 1-24-0224

) Circuit No. 24-COEL-2

v. )

) Honorable

) Marcia O’Brien Conway,

THE COOK COUNTY OFFICERS ) Judge, Presiding.

ELECTORAL BOARD; KAREN A. )

YARBROUGH, in Her Official Capacity as )

Chair of the Cook County Officers Electoral )

Board and as the Cook County Clerk; IRIS )

MARTINEZ, Member of the Cook County )

Officers Electoral Board; KIM FOXX, Member )

of the Cook County Officers Electoral Board; )

ELIZABETH WATSON, Objector; JOHN J. )

LYDON, Objector; and THE BOARD OF )

ELECTION COMMISSIONERS FOR THE )

CITY OF CHICAGO, )

)

Respondents )

)

(Elizabeth Watson and John J. Lydon, )

Respondents-Appellants). )

____________________________________________________________________________

JUSTICE ALBRECHT delivered the judgment of the court, with opinion.

Justice Brennan concurred in the judgment and opinion.

Presiding Justice McDade specially concurred, with opinion.

OPINION

¶1 In this elections appeal, objectors Elizabeth Watson and John J. Lydon appeal the circuit

court’s decision that candidates Carolyn Gallagher’s and Leonard Murray’s circulator affidavits

complied with statutory requirements. For the reasons that follow, we affirm.

¶2 I. BACKGROUND

¶3 On November 27, 2023, the candidates filed joint nomination papers to be included on

the March 19, 2024, primary election ballot as candidates for nomination of the Democratic

Party for election to the office of Appellate Court Judge in the First District of the State of

Illinois. The candidates’ nomination papers included circulator affidavits certifying that the

petition sheets were signed “during the period of September 5, 2023 through December 4, 2023.”

December 4, 2023, was the last day a candidate could file nomination papers, and September 5,

2023, was 90 days preceding this last day for filing.

¶4 On December 11, 2023, objectors Elizabeth Watson and John J. Lydon filed an

“Objectors’ Petition” against the candidates’ nomination papers, raising circulator-based

objections. Specifically, objectors alleged that the circulator affidavits utilized by the candidates,

and thus all the nomination papers associated with those affidavits, did not comply with the

requirements of section 7-10 of the Election Code and were therefore invalid. 10 ILCS 5/7-10

(West 2022). The purported noncompliance under this section of the Election Code was that the

language with the date range for when the nomination papers were signed deviated from the

language of the statute, which indicated the circulators must certify that “none of the signatures

on the sheets were signed more than 90 days preceding the last day for the filing of the petition.”

Id. The candidates countered that the language used complied with the statute.

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¶5 The parties first presented their arguments to a hearing officer, who issued a

recommendation to the Cook County Officers Electoral Board (Board) that the language in the

circulator affidavit substantially complied with the statute and the candidate should therefore

remain on the ballot. The Board’s written decision on January 10, 2024, rejected the hearing

officer’s recommendation. Instead of applying a substantial compliance standard, the Board

determined a strict compliance standard was appropriate and found that the candidates’ circulator

affidavits were not in strict compliance with the requirements of the Election Code. The Board

ordered the candidates’ names removed from the primary election ballot.

¶6 The candidates then filed a petition for judicial review in the circuit court. The circuit

court reversed the Board and ordered the candidates’ names to appear on the primary election

ballot. The court found that section 7-10 of the Election Code required substantial compliance

and, because the substance of the circulator affidavits met the substantive requirement of the

Election Code, the candidates had not violated any mandatory provisions of the Election Code.

¶7 The objectors now appeal, and on February 1, 2024, the Illinois Supreme Court directed

that the appeal be heard by the Appellate Court, Third District.

¶8 II. ANALYSIS

¶9 On appeal, the objectors argue that the candidates’ nomination papers do not comply with

the statute. They argue that the statute should be strictly construed and, because the candidates’

circulator affidavits certify that voters signed between the period of September 5 to December 4,

2023, instead of certifying that the papers were signed no more than 90 days prior to the last day

of filing, the nomination papers must be stricken and the candidates must be removed from the

ballot. The candidates argue that the certification complies with the statute because the phrasing

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used meets the substantive requirement that the circulators certify no signatures were obtained

more than 90 days before the last day of filing.

¶ 10 Where a circuit court has reviewed an electoral board’s decision, we review the board’s

decision, not that of the circuit court. Burns v. Municipal Officers Electoral Board of Elk Grove

Village, 2020 IL 125714, ¶ 10. The Board’s findings of fact are deemed prima facie true and

correct and will not be overturned unless they are against the manifest weight of the evidence;

however, its conclusions of law are reviewed de novo. Samuelson v. Cook County Officers

Electoral Board, 2012 IL App (1st) 120581, ¶ 11. Deference must be given to the agency’s

interpretation of a statute, even on de novo review. See Medponics Illinois, LLC v. Department of

Agriculture, 2021 IL 125443, ¶ 31. However, we remain cognizant that our supreme court has

admonished that we should “tread cautiously when construing statutory language which

restrict[s] the people’s right to endorse and nominate the candidate of their choice.” Lucas v.

Lakin, 175 Ill. 2d 166, 176 (1997). The issue before us is whether the candidates substantially

complied with the requirements of the Election Code, which is a question of law we review

de novo. Zurek v. Cook County Officers Electoral Board, 2014 IL App (1st) 140446, ¶ 11

(“When the dispute concerns whether a candidate’s nominating papers complied substantially

with the Election Code, then the question is purely one of law and our standard of review is

de novo.”). Objectors argue that the issue involves a mixed question of law and fact, where we

review the Board’s decision under a clearly erroneous standard. See Watson v. Electoral Board

of Bradley, 2013 IL App (3d) 130142, ¶ 28. In any event, even if this court applies the clearly

erroneous standard, our analysis and conclusion remain the same.

¶ 11 Section 7-10 of the Election Code sets forth the form required for nomination petitions

and provides that “no candidate for nomination *** shall be printed upon the primary ballot

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unless a petition for nomination has been filed in his behalf as provided in this Article in

substantially the following form.” (Emphasis added.) 10 ILCS 5/7-10 (West 2022). It then

requires that a circulator certify that the signatures obtained were signed in his or her presence,

that the signatures are genuine and were gathered during a certain period, and that to the best of

the circulator’s knowledge the signer was a qualified voter for the particular party for which the

nomination was sought. Id. Further, the circulator must also include in the affidavit a

certification

“(1) indicating the dates on which that sheet was circulated, or (2) indicating the

first and last dates on which the sheet was circulated, or (3) for elections where

the petition circulation is 90 days, certifying that none of the signatures on the

sheet were signed more than 90 days preceding the last day for the filing of the

petition, or (4) for the 2022 general primary election only, certify that the

signatures on the sheet were signed during the period of January 13, 2022 through

March 14, 2022 or certify that the signatures on the sheet were signed during the

period of January 13, 2022 through the date on which this Statement was sworn or

affirmed to.” Id.

¶ 12 Here, the candidates’ nomination papers contained a statement that the signatures were

“signed *** during the period of September 5, 2023 through December 4, 2023.” The objectors

argue that this phrasing does not comply with any of the statutorily approved statements and

instead appears to be a modification of the fourth possibility, which was only permitted during

the 2022 election. The candidates argue the wording in the circulator affidavits substantively

complied with the third option in the statute because the affidavits contained a date range that

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unequivocally avers that the petitions were signed no “more than 90 days preceding the last day

for the filing of the petition” as the statute requires. Id.

¶ 13 When reviewing the Election Code, the principles of statutory construction require us to

give the language its “ ‘plain, ordinary and popularly understood meaning.’ ” Samuelson, 2012

IL App (1st) 120581, ¶ 28 (quoting People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279

(2003)). Moreover, we must view the provisions of a statutory enactment in their entirety.

Brucker v. Mercola, 227 Ill. 2d 502, 514 (2007). Accordingly, we must interpret all of section 7-

10 in light of other relevant provisions of the statute and must not interpret the clause at issue in

isolation. Id. “Each word, clause, and sentence of the statute, if possible, must be given

reasonable meaning and not rendered superfluous.” Id.

¶ 14 The affidavit and certification requirements are mandatory under the Election Code.

Brennan v. Kolman, 335 Ill. App. 3d 716, 719 (2002). Though mandatory, section 7-10

otherwise requires that the nominating petition be “substantially” in the required form. 10 ILCS

5/7-10 (West 2022). Indeed, even setting aside this language, strict compliance is generally only

required when the statutory requirements in the Election Code “contribute substantially to the

integrity of the election process.” Craig v. Peterson, 39 Ill. 2d 191, 196 (1968); see Madden v.

Schumann, 105 Ill. App. 3d 900, 903 (1982) (“substantial compliance with the Election Code is

acceptable when the invalidating charge concerns a technical violation”). While objectors rely on

Jackson-Hicks v. East St. Louis Board of Election Commissioners, 2015 IL 118929, to argue

strict compliance is necessary, such compliance is required only when “the candidate failed to

meet a threshold requirement completely.”Id. ¶ 37. Substantial compliance is appropriate when,

as here, “the candidate[s] met the basic requirements of the Election Code.” Id. Of course,

“substantial compliance is not operative to release a candidate from compliance with the

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provisions intended by the legislature to guarantee a fair and honest election.” Madden, 105 Ill.

App. 3d at 903-04.

¶ 15 A straightforward reading of section 7-10 indicates that its requirements as to form for a

nomination petition require only substantial, not strict, compliance. 10 ILCS 5/7-10 (West 2022)

(providing that a candidate may not be printed on a ballot unless a “petition for nomination has

been filed in his behalf as provided in this Article in substantially the following form”). That

these requirements are mandatory does not otherwise bar the application of a substantial

compliance standard. Brennan, 335 Ill. App. 3d at 720 (“substantial compliance can satisfy even

a mandatory provision of the [Election] Code”). Simply put, the Board’s determination that the

failure to utilize the exact language found in section 7-10 for the timing of the circulation of

petitions renders substantially compliant petitions noncompliant was incorrect.

¶ 16 Turning to whether there was substantial compliance here, section 7-10 of the Election

Code provides that the circulator must certify that the nomination papers were signed no more

than 90 days before papers were due to be filed. 10 ILCS 5/7-10 (West 2022). For the purposes

of this election, 90 days prior to the last day a candidate may file nomination papers, which is the

first day petitions may be signed, was September 5, 2023. Thus, as a matter of simple math, the

candidates’ circulator affidavits clearly aver that no signatures were obtained outside of the

prescribed 90-day period. This affirmation entirely comports with the time frame required by

section 7-10. Objectors otherwise argue that the certification is “untruthful” because it states that

the voters signed the papers between September 5 and December 4, 2023, notwithstanding that

the nominating petitions were filed on November 27, 2023. However, there is nothing untruthful

about that statement. All signatures were indeed “signed *** during the period of September 5,

2023 through December 4, 2023,” as November 27, 2023, falls within that range.

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¶ 17 Objectors’ reliance on Zurek v. Peterson, 2015 IL App (1st) 150508, is also unavailing.

In Zurek, the nomination petition circulators’ affidavits certified that “all of the signatures on this

sheet were signed within the statutory time period for petition circulation.” (Internal quotation

marks omitted.) Id. ¶ 21. The court held that this conclusory statement was insufficient to comply

with the requirement of the Election Code that each circulator provide a factual statement under

oath attesting to the timing of circulation of each petition. Id. It further observed that, unless a

circulator affidavit contains “a specific date, a range of two specific dates, or a window of no

more than 90 days before the filing of the petition, then it would be impossible to effectively

question the circulator about when he or she obtained the voters’ signatures.” (Emphasis added.)

Id.; see Simmons v. DuBose, 142 Ill. App. 3d 1077, 1081 (1986) (no substantial compliance

where circulator’s affidavit did not include circulation dates notwithstanding that the special

election arose within the 90-day circulation period). Here the candidates did exactly as the Zurek

court suggested would be compliant—provide a correct “range of two specific dates.”

¶ 18 We must not forget that the purpose of a circulator affidavit is to provide “a meaningful

and realistic method of eliminating fraudulent signatures and protecting the integrity of the

political process.” Sakonyi v. Lindsey, 261 Ill. App. 3d 821, 826 (1994). The 90-day time frame

of section 7-10 helps ensure the integrity of this process by requiring that the nomination papers

be signed during a statutorily prescribed reasonable period before the election. See 10 ILCS 5/7-

10 (West 2022). There is no evidence of fraud here. The wording used in these affidavits does

not in any way cast doubt on the validity of the signatures, nor do the objectors suggest that any

of the signatures were obtained outside of the required date range—a range that was otherwise

correctly stated in the nomination petition. The goal of the circulator affidavit is to honor “the

legislative intent to guarantee a fair and honest election.” Siegel v. Lake County Officers

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Electoral Board, 385 Ill. App. 3d 452, 461 (2008). Here, the phrasing of the circulator affidavit

effectuates the legislative intent and is neither unfair nor dishonest. The record clearly indicates

that the circulators’ affidavit did not “impair the integrity of the electoral process.” Id. Instead,

language was used that clearly met the substantive requirement of the provision.

¶ 19 Cognizant of the importance of ballot access and concluding that the statements

contained in the circulator affidavits relating to when the petitions were signed substantially

comply with section 7-10’s prescribed format, we affirm the circuit court’s decision that reverses

the Board’s decision to remove the candidates’ names from the ballot.

¶ 20 III. CONCLUSION

¶ 21 The judgment of the circuit court of Cook County is affirmed. The Board decision is

therefore reversed.

¶ 22 Circuit court judgment affirmed.

¶ 23 Board decision reversed.

¶ 24 PRESIDING JUSTICE McDADE, specially concurring:

¶ 25 I agree with the majority’s determination to affirm the judgment of the circuit court and to

reverse the Board decision. I write separately to say that, for all of the reasons set out in the majority

decision, I would find that the circulator statements contained within the petitions strictly, rather

than merely substantially, comply with the certification requirements under section 7-10 of the

Election Code.

¶ 26 As the majority explains, section 7-10 states that “no candidate for nomination *** shall

be printed upon the primary ballot unless a petition for nomination has been filed in his behalf as

provided in this Article in substantially the following form.” 10 ILCS 5/7-10 (West 2022). This

section then requires that each petition include a circulator statement that contains a certification

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“(1) indicating the dates on which that sheet was circulated, or (2) indicating the

first and last dates on which the sheet was circulated, or (3) for elections where

the petition circulation is 90 days, certifying that none of the signatures on the

sheet were signed more than 90 days preceding the last day for the filing of the

petition, or (4) for the 2022 general primary election only, certify that the

signatures on the sheet were signed during the period of January 13, 2022 through

March 14, 2022 or certify that the signatures on the sheet were signed during the

period of January 13, 2022 through the date on which this Statement was sworn or

affirmed to.” Id.

¶ 27 Under the third of the above certification options, section 7-10 expressly requires only that

circulator statements substantially show that no signatures were obtained outside of the 90 days

preceding the last day for filing the petitions. There are no quotation marks surrounding this

statutory language, nor are there any other indications that circulator statements must certify this

language verbatim. Indeed, such a requirement would contradict the statute’s plain language that

petitions need only be in “substantially” the form presented in section 7-10.

¶ 28 By stating that the petitions were signed “during the period of September 5, 2023 through

December 4, 2023,” the circulator statements in this case indicate in a clear and incontrovertible

form that no signatures were gathered outside of the proper 90-day period, thus showing exactly

what is required under the third certification option. This, in my opinion, constitutes strict, not

substantial, compliance with the legislative mandate.

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Gallagher v. Cook County Officers Electoral Board, 2024 IL App (1st) 240224

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 24-COEL-

2; the Hon. Marcia O’Brien Conway, Judge, presiding.

Attorneys Burton S. Odelson, Ross D. Secler, and Jayman A. Avery III,

for of Odelson, Murphey, Frazier & McGrath, Ltd., of Evergreen

Appellant: Park, and Micheal J. Kasper, of Chicago, for appellants.

Attorneys Ed Mullen, of Chicago, for Carolyn J. Gallagher and Leonard

for Murray.

Appellee:

No brief filed for other appellees.

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