Meroni V 32 Candidates and Illinois State Board of Elections - Appellate Brief

8/7/2019 Meroni V 32 Candidates and Illinois State Board of Elections - Appellate Brief

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IN THE

ILLINOIS APPELLATE COURT

FOURTH DISTRICT

SHARON MERONI, ) Appeal No. 4-10-0850

)

Petitioner-Appellant, ) Appeal from Case No. 10-MR-501

) Before the Circuit Court for the 7th

v. ) Judicial District, Sangamon County,

) the Hon. Peter Cavanagh, Judge

ILLINOIS STATE BOARD OF ) Presiding.

ELECTIONS, )

)

Respondent-Appellee. )

BRIEF OF PETITIONER-APPELLANT

SHARON MERONI

Stephen F. Boulton, Esq.

MCCARTHY DUFFY LLP

180 N. LaSalle Street, Suite 1400

Chicago, IL 60601

312-726-0355


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NATURE OF THE ACTION

This action was brought for Administrative Review of the Order of the Illinois

State Board of Elections dismissing Petitioners Complaints against a series of individua l

candidates, both on Motions brought by Respondents and by Motion sua sponte of the

Board.

QUESTION PRESENTED

Whether the Illinois State Board of Elections, sitting as the State Officers

Electoral Board, committed reversible error by dismissing the case below, without

presentation of evidence, on the reasoning that Petitioner failed to adequately identify her

grounds of objection.

JURISDICTIONAL STATEMENT

Petitioners Objection was filed on. The Final Order of the Illinois State Board of

Elections was issued on. Petitioners Petition for Judicial Review was filed with the

Circuit Court of Sangamon County on August 13, 2010. (C.1.) The final order of the

Circuit Court denying review was filed on September 23, 2010 (C. 255.) Petitioners

Notice of Appeal to this Court was filed on October 22, 2010. (C. 251.)

STANDARD OF REVIEW

Given that the rulings of the Hearing Officer and the Board of Elections were

made on Motions to Strike and a request for dismissal sua sponte by the Hearing Officer

based upon the Objection and without any evidentiary findings, the standard of review is

de novo. Cook County Republican Party v. Illinois State Board of Elections , 232 Ill. 2d


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231, 234, 902 N.E.2d 652 (2009). The principles of judicial review of an electoral board

decision in Illinois are well known:

We are required to review the Board's decision rather than the trial court's

decision. We view an electoral board as an administrative agency and the

standards of review are essentially identical An electoral board's findings

of fact are deemedprima facie true and correct and will not be overturned

on appeal unless they are against the manifest weight of the evidence.

However, an electoral board's decisions on questions of law are not

binding on a reviewing court, and a reviewing court will review de novo

such questions 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 astatutory standard-will not be disturbed on review unless clearly

erroneous.

Siegel v. Lake County Officers Electoral Board, 385 Ill. App. 3d 452,324 Ill. Dec. 69 (2nd

Dist. 2008). In the case at bar, no evidentiary determinations were made, in that the case

never even progressed to hearing. The cases were dismissed on Motions to Strike filed

by two candidates, and a Motion sua sponte by the Board at the suggestion of the Hearing

Officer, on ground that the contents of the Objection did not meet the standard of law.

The standard of review is therefore de novo.

STATEMENT OF FACTS

Petitioner Sharon Meroni is a resident of McHenry County, Illinois. The

individual Respondents (hereinafter Candidates) in proceedings before the Illinois State

Board of Elections (hereinafter the Board) filed nomination petitions to be on the ballot

for Illinois and federal offices for the November 2, 2010 General Election in Illinois. (R.

63). As part of the submission of nomination petitions, the Candidates were required by


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the Illinois Election Code to submit a Statement of Candidacy. 10 ILCS 5/10-5. The

Statement of Candidacy requires the candidate to state under oath in writing that:

I, , being first duly sworn, say that I reside at ___________

street, in the city (or village) of ______________, in the county of

_______, State of Illinois; and that I am a qualified voter therein; that I am

a candidate for election to the office of __________________ to be voted

upon at the election to be held on the ____ day of _________, ______;

and that I am legally qualified to hold such office and that I have filed (or

will file before the close of the petition filing period) a statement of

economic interests as required by the Illinois Governmental Ethics Act,

and I hereby request that my name be printed upon the official ballot for

election to such office.

10 ILCS 5/8-8, 10-5 (2009). Illinois uses a practice of apparent conformity under

which :

Certificates of nomination and nomination papers, and petitions to submit

public questions to a referendum, being filed as required by this Code, and

being in apparent conformity with the provisions of this Act, shall be

deemed to be valid unless objection thereto is duly made in writing within

5 business days after the last day for filing the certificate of nomination or

nomination papers or petition for a public question . . .

10 ILCS 5/10-8 (2009). Accordingly, so long as the nomination papers are in compliance

with statutory requirements, and the Statement of Candidacy is tendered, no other proof


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of citizenship, residence or other qualification is required of candidates by the Illinois

State Board of Elections. An objector bears the burden of disproving the statements

made in the nomination petitions, and has five days in which to file an Objection. Ibid.

On June 28, 2010, Petitioner filed verified Petitions with the Board against each of the

Candidates. In each Objection, Petitioner made the same allegation:

The Candidates nominating papers are insufficient because they fail to

demonstrate and/or provide documentation that the candidate meets the

constitutional requirements for office.

(R. 1-57). The few constitutional requirements of the respective Candidates were easily

reviewable by reference to the Constitution of the United States and Illinois Constitution

of 1970.

Under Illinois Vital Records Act, copies of birth records cannot be issued to

unrelated members of the general public without court order or authorization by or for the

subject of the record. 435 ILCS 535/25(4) (2009).

In July, 2010, seventeen candidates filed Motions directed to the Objections filed

against them, styled either as Motions to Strike or Motions for Summary Judgment.

(Cases Nos. 10 SOEB GE 524, 10 SOEB GE 525, 10 SOEB GE 526, 10 SOEB GE 527,

10 SOEB GE 528, 10 SOEB GE 529, 10 SOEB GE 530, 10 SOEB GE 532, 10 SOEB GE

533, 10 SOEB GE 534, 10 SOEB GE 535, 10 SOEB GE 537, 10 SOEB GE 541, 10

SOEB GE 543, 10 SOEB GE 544, 10 SOEB GE 550, 10 SOEB GE 553) (hereinafter

occasionally referred to as the Motion Cases). In twelve cases, the Candidate either

did not appear or filed Appearances, but no substantive Motions. (Cases Nos. 10 SOEB

GE 531, 10 SOEB GE 538, 10 SOEB GE 539, 10 SOEB GE 539, 10 SOEB GE 540, 10


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SOEB GE 549, 10 SOEB GE 542, 10 SOEB GE 545, 10 SOEB GE 546, 10 SOEB GE

547, 10 SOEB GE 548, 10 SOEB GE 551, 10 SOEB GE 552) (hereinafter occasionally

referred to as the Non-Motion Cases).

In July, 2010, Plaintiff filed her Responses pro se on the subject of pending or

expected Motions to Dismiss. (R. 120, R. 147, R. 163).1

In the Responses, Petitioner

stated that her objections were based on the Election Codes requirement that candidates

file a Statement of Candidacy. In her Response, Plaintiff made a number of concrete

statements that gave definition to her Objection:

-This Objection specifically refers to qualifications specifically

mandated in the US and Illinois Constitution to be eligible for office or to

register to vote. These include citizenship, age, residency requirements

and the Public Disclosure Act. (R. 124).

-The Objector has a fundamental interest and right to a ballot that

has constitutionally qualified contestants.

-The Objector has a right to know by what definition Illinois uses

to define legally qualifiedon the statement of Candidacy for all positions.

-Without proof of citizenship, during the 5-day objection period,

the electorate lacks sufficient information to judge the veracity of a

candidate. (R. 150, 166.)

-That During the 5-day period, the absence of any public

documents establishing constitutional qualifications available to her,

deprives the Objector the opportunity to challenge contestants on the

1Because the Record elements supplied by the Illinois State Board of Elecotins and the Circuit Court each

use separate numbering sequences, in this Brief the Board documents will be cited to as R and the Circuit

Court record documents as C.


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ballot based on evidence. (R. 128).

-The Statement of Candidacy requires the signatory to affirm to

legally qualifiedto hold such office without clear definitions or public

records proving affirmations of legally qualified. These subjective

statements deny the voter the opportunity to assess the veracity of that

claim. (R.129).

-The Statement of Candidacy is subjective to the applicants

interpretation of what is legal. Illinois statute lacks specific language to

define legally qualified. Federal statutes lack specific language to

define legally qualified. (R.129).

-While evidence of eligibility exists in the public record for other

qualifications required for legally qualified, it does not for citizenship.

(R.129).

-Voter registration roll, that do not provide verified citizenship,

are not of sufficient veracity to assure candidates are legally qualified to

be on the ballot and no other public documents proving citizenship are

required to be made available. (R.131).

-Without public record, there is no remedy at law when a

candidate lies on their application, Illinois and federal law is vague and

ambiguous as to the meaning of legally qualified to hold office. Law

enforcement generally does not get involved, There is no way for a citizen

to find redress. (R. 130).

On July 16, 20010, the Hearing Officer assigned to the case recommended that the


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Board grant all Motions to Strike and Dismiss. (R.62.)

On July 20, 2010, the Hearing Officer entered a Recommendation that the Board

act sua sponte to invoke Rule 4 of the Boards Rules of Procedure to strike all

remaining Objections filed by Petitioner. The Hearing Officer concluded that the

Objections failed to comply with the standard of the Illinois Election Code in that they

did not state fully the nature of the objectionsor state what relief is requested of the

Electoral Board. The General Counsel of the Board concurred in the recommendations.

On August 6, 2010, the Board convened. In the session, the Board addressed the

cases now before this Court. (R. 74.). The Board granted the pending Motions to Strike

and Dismiss filed by some of the Candidates, and acted sue sponte to dismiss all other

pending objections against the remaining Candidates. (R. 70 - 73).

On August 13, 2010, Petitioner filed pro se her Petition for Judicial Review and

Common Law Writ of Certiorari with the Circuit Court for the Seventh Judicial Circuit,

Sangamon County, Illinois. (C.1.) In her Petition, Petitioner raised three principal

objections. First, she asserted that in all cases the Objections were sufficient because

they gave the Candidates enough specificity so that the candidate is adequately apprised

of the complaint against him as to be able to defend himself. (C. 1., para, 49, 54.)

Second, Petitioner asserted that dismissal under Rule 4 was beyond the scope of power

granted to the Board in dismissing the Non-Motion Cases sua sponte without hearing.

(C.1, paras, 43-46.) Third, Petitioner asserted that the requirement of her to obtain and

present evidence within five days to challenge citizenship, when the State of Illinois

statutes effectively blocked her from obtaining evidence of public records such as birth

certificates was a denial of due process of law.


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In the Brief in Support of Administrative Decision the Illinois Attorney General

took the position that [t]he Board ruled that the objections failed to state fully the nature

of the objections as required by 10 ILCS 5/10 -8 because the objection s did not point to

any specific deficiencies in the nominating papers under either the Illinois Election Code

or the state or federal Constitutions. (C. 146, at C. 152.) The Attorney General further

argued that Petitioner was attempting to amend the Election Code, and that the Board

acted within its scope of powers by creating Rule 4 and dismissing Petitioners

Objections sua sponte.

In an Order dated September 23, 2010 (C. 255.), the Circuit Court for the

7th

Judicial District affirmed the decision of the Board, stating:

Plaintiffs objections do not meet the statutory standard in this case

because they do not identify any specific deficiency in the nominating

papers of a particular candidate.

ARGUMENT

I. PETITIONERS OBJECTIONS ADEQUATELY IDENTIFIED HER

GROUNDS OF OBJECTION UNDER THE DIRECTORY

PROVISION OF SECTION 10-8 OF THE ILLINOIS ELECTION

CODE.

Petitioner adequately stated her grounds of complaint, that the candidates did not

meet the Constitutional requirements for candidacy set by Illinois law. Petitioners

Objections properly stated that she attacked the constitutional qualifications of the

candidates:


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The Candidates nomination papers are insufficient because they fail to

demonstrate and or provide documentation that the candidate meets

constitutional requirements.

(C.1, 3,4,5,6,8,10,12,14,16,18,20, 22,24,26,28,30,32,34, 36,38,40,42, 44, 46, 48, 50,

52,54, 56).

The central provision at issue is Section 10-8 of the Illinois Election Code, which

states:

The objector's petition shall give the objector's name and residence

address, and shall state fully the nature of the objections to the certificate

of nomination or nomination papers or petitions in question, and shall state

the interest of the objector and shall state what relief is requested of the

electoral board.

10 ILCS 5/10-8(2010).

There are two key aspects of Section 10-8 that are central to resolving this appeal.

First, Section 10-8 does not give any definition to the term fully stated . As noted by

the Second District, [t]he provisions of the Election Code are mandatory and require the

objectors to statefully the nature of their objection, however, the Election Code does

not address the degree of precision that constitutes compliance. Siegel v. Lake County

Officers Electoral Board, 385 Ill. App. 3d 452, 456-7, 324 Ill. Dec. 69, 73, 895 N.E.2d

69, 73 (2nd

Dist 2008).

Second, Section 10-8 does not contain any penalty for an Objection that fails to

meet the vague standard contained within it. As this Court has noted:


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[S]ection 10-8 does not include a penalty provision for the objector's

noncompliance with the above stated provisions. Any implied penalty

contained in section 10-8, such that petitions * * * shall be deemed to be

valid unless objection thereto is duly made, pertains only to the failure to

file objections within five business days after the last day for filing the

nomination papers or petitions as provided by statute.

Wollen v. Jacoby, 274 Ill. App. 3d 388, 210 Ill. Dec. 841, 653 N.E.2d 1303 (1st

Dist

1995). The lack of a penalty provision in Section 10-8 has caused courts to rule that:

Although election officials, including objectors, are obligated to comply

with all of the provisions of the Code, it does not follow that every

noncompliance will invalidate a ballot or an objection as in the present

case. Where the effect of failure to comply with a particular statutory

requirement is not specified, however, courts must consider the nature and

object of the statutory provision and the consequences which would result

from construing it one way or another.

Wollen 274 Ill. App. 3d 388, 210 Ill. Dec. at 843, 653 N.E.2d at 1305, citing Pullen v.

Mulligan, 138 Ill. 2d 21, 47, 149 Ill. Dec. 215, 561 N.E.2d 585, 596 (1st

Dist. 1990).

See,Hester v. Kamykowski, 13 Ill. 2d 481, 485,150 N.E.2d 196, 199 (1958).

The requirements in Section 10-8 are directory rather than mandatory. The

provisions of the Illinois ElectionCode are designed to protect the integrity of the

electoral process. Welch v. Johnson, 147 Ill. 2d 40, 56, 167 Ill. Dec. 989, 588 N.E.2d

1119 (1992). The Wollen Court ruled that Section 10-8 is designed to secure order,

system and dispatch in proceedings. Wollen, 274 Ill. App. 3d at 388, 210 Ill. Dec. at


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843,653 N.E.2d at 1305. Thus, the test applied by the Wollen court was that unless the

defect complained of was either essential to the validity of the election process or else

the basis confusion or prejudice based upon proven concrete, factual evidence from

the Candidate, the Objection must stand. The Wollen courts conclusion is buttressed by

the principle that substantial compliance can satisfy even mandatory provisions of the

Code.

On the other hand, in Pochie v. Cook County Officers Electoral Board, 289 Ill.

App. 3d 585, 224 Ill. Dec. 697, 682 N.E.2d 258 (1st

Dist. 1997), a panel of this Court

ruled that the address requirement for an Objection under Section 10-8 was mandatory.

But the rule in Pochie was based upon the fact that the lack of standing in the Objector

was an affirmative defense required to be filed by the Candidate. An omitted street name

in the listed address on the Objection substantially prevented the Candidate from

reasonably ascertaining the Objectors address and in turn, determining whether an

affirmative defense should be filed. No such burden rested upon the Candidates in the

proceedings before the Board. Yet Pochie can easily be harmonized with Wollen, in that

the omitted term created confusion and prejudice to the candidate, who could not

ascertain the Objectors standing. To the extent that Pochiemandates a mandatory

application of Section 10-8, it is distinguishable.

Other Illinois court addressing the issue tend towards the Wollen test. InMorton

v. State Electoral Officers Board, 311 Ill. App. 3d 982, 244 Ill. Dec. 806, 726 N.E.2d 201

(4th

Dist. 2000), the contention of the Candidate before the Board was that the omission

of a Jr. from the stated legal name of the Objector on the Objection invalidated the

Objection because strict compliance with Section 10-8 was required. TheMorton court


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noted that the use of the Jr. suffix is not required to create a valid legal document under

Illinois law, but also noted that comparison of the Objectors signature on the Objection

to the voter registration on file for the registered voter with the same name and address as

the Objector disclosed a sharp similarity in the signatures. The Court ruled that the

information on the face of the Objection, while technically defective, was sufficient to

allow the Candidate to determine the identity of the Objector.

In the case at bar, there cannot be any prejudice or confusion, as the

constitutional requirements of the several candidates are plainly identified in the Illinois

and United States Constitutions. To be a United States Senator the candidate must be

over the age of thirty, a citizen for nine years, and a resident of Illinois. U.S. Const., Art.

I, 3. (See, C. 20). A candidate for executive office in Illinois must be a United States

citizen, at least 25 years old or older, and a resident of Illinois for the three years

preceding the election. A candidate for the Illinois General Assembly must be a United

States Citizen, at least 21 years old, and have lived in the district of his candidacy for at

least two years prior to the election. Ill. Const. Art 4, 2. These requirements are of

public record and are uncomplicated. They therefore are a proper basis of the Objection.

The adequacy of the objection is strengthened by Petitioners act ofrefining the

stated grounds of the Objection without amendment. In Siegel v. Lake County Officers

Electoral Board, 385 Ill. App. 3d 452, 324 Ill. Dec. 69, 895 N.E.2d 69 (2nd

Dist 2008),

the Appellate Court noted that the Objection before the Board contained the statement

that a nominating committee meeting was never properly assembled and never occurred

at all, but in response to the motion to strike filed by the Candidate, the objectors clarified


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the allegation by stating that the certificate of the nominating committee did not state the

actual date of the nominating committee.

In upholding the objection, the Siegel court noted that the objectors did not

create a new objection but, rather, crafted a more precise argument regarding their

objection. Similarly, Petitioner in this case, pro se at the time of the proceedings before

the Board and Circuit Court, responded to the Motion to Strike of some candidates by

identifying her particular constitutional requirement to be U.S. citizenship. As in Siegel,

Petitioner clarified her objection without amendment to bring in new terms, by stating

that her primary constitutional concern was proof of citizenship. (See, e.g., C. 123.)

Petitioner therefore did not seek to amend, but simply clarified, as permitted under Siegel.

Petitioners statement of objection referred the Candidates and the Board to

specific, well known, and easily retrievable requirements of the United States and Illinois

Constitutions. It therefore met the test of Section 10-8 of the Illinois Election Code.

Reversal is required for further proceedings.

II. DISMISSALS OF CASES BY ELECTORAL BOARD MOTION UNDER

RULE 4 OF THE ELECTORAL BOARD RULES ARE INVALID BY

EXCEEDING THE POWERS GRANTED TO THE BOARD BY THE

LEGISLATURE IN THE ILLINOIS ELECTION CODE.

The dismissals entered sua sponte under Board Rule 4 must be vacated on the

simple ground that the Board acted outside of the scope of its powers in dismissing them

at an early stage. Under the Election Code, an election board is to adopt rules of

proceedings:


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The electoral board on the first day of its meeting shall adopt rules

of procedure for the introduction of evidence and the presentation

of arguments and may, in its discretion, provide for the filing of

briefs by the parties to the objection or by other interested persons.

10 ILCS 5/10-10 (2010). Nothing in the legislative grant of Section 10-10 provides for

early dismissal sua sponte of cases on motion of the Board. Nevertheless in adopting the

rules for objections to the General Election of 2010, the Electoral Board adopted a rule

quite central to this proceeding:

The Board may on its own motion, strike any objection if it

determines that the objection does not meet the requirements set forth

in 10 ILCS 5/10-8. In addition, the Board on its own motion may

strike any portion of an objection that it determines to be not well

grounded in fact and/or law.

Rules of Procedure Adopted by the State Board Of Elections As The Duly Constituted

State Officers Electoral Board for the Hearing and Passing upon Objections to

Nominating Papers Seeking to Place New Political Party And Independent Candidates

on the Ballot For The November 2nd, 2010 General Election, Rule 4.

While purportedly enacted pursuant to Section 10-10, the above-quoted provision of

Rule 4 is invalid because it exceeds the powers granted to an electoral board under the

Election Code. Any action or decision taken by an administrative agency in excess of or

contrary to its authority is void.Alvarado v. Industrial Commission, 216 Ill. 2d 547, 553-

54, 297 Ill. Dec. 458, 837 N.E.2d 909 (2005). Section 10-10 states that the Board is to

adopt rules of procedure for the introduction of evidence, and the presentation of

arguments but may provide for the filing of briefs by the parties to the objection or other


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interested persons. 10 ILCS 5/10-10 (2010). Simply put, no language in Section 10-10

authorizes early dismissals sua sponte. Rule 4 is therefore invalid, and cannot be the basis

of a dismissal in this case. The Non-Motion Cases must be remanded for further hearing

upon the Objections.

III. PETITIONER SUFFERED A CONSTITUTIONAL DEPRIVATION

OF DUE PROCESS OF LAW BECAUSE THE STATE IMPOSED A

REQUIREMENT THAT PETITIONER CHALLENGE THE

APPARENT COMPLIANCE OF NOMINATING PETITIONS IN

FIVE DAYS WHILE STATE STATUTES BLOCKED

PETITIONERS ACCESS TO EVIDENCE OF CITIZENSHIP IN

THE PUBLIC RECORD.

Petitioners position is that the combination of the short period of time allowed

for filing of objections, the practice (at best) of apparent compliance by election

authorities, and the legal barriers now in existence to bar a potential Objector from

investigation of the citizenship of a candidate create a constitutional deprivation as to

Petitioner and all similarly situated citizens of Illinois. This deprivation was only

worsened by the Boards act of dismissal of cases by Rule 4, without opportunity by

Petitioner to remedy the lack of access to records through Board subpoena. Petitioner

asserts a violation of due process of law under the federal and state constitutions. Ill.

Const., Art. I, Sec. 2. Petitioner also makes claim under her right to vote, and her right to

a free and fair election specifically recognized in the Illinois Constitution of 1970. Ill.

Const., Art. III, Sec. 1, Art. III, Sec. 3.

A. The Issue of Constitutional Deprivation was Properly

Before the Circuit Court and is Reviewable by This

Court.


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This Court and the Court have jurisdiction to rule on Petitioners claim of

constitutional depravation arising from proceedings before the Electoral Board. In

Phelan v. County Officers Electoral Board, 240 Ill. App. 3d 368, 181 Ill. Dec. 142, 608

N.E.2d 215 (1st

Dist 1992), objectors claimed before an Electoral Board that judicial

candidates were ineligible for placement on the ballot, claiming in part that the

procedures employed to nominate the candidates under the Illinois Election Code were

unconstitutional. Noting that Illinois law that an administrative agency has no power to

rule on the constitutionality of a statute, the Phelan court properly ruled that the

constitutionality of the provisions in question could be tested by judicial review before

the Circuit Court and appellate courts, quoting Troutman v. Keys 156 Ill. App. 3d 247,

253, 108 Ill. Dec. 757, 762, 509 N.E.2d 453, 458 (1st

Dist 1987):

[W]here the administrative agency's decision gives rise to pleaded issues

which could not have been considered by the agency, but the record

presented to the circuit court permits a fair determination of such issues,

then the scope of review by a court of original jurisdiction extends to all

questions of law and fact presented under the pleadings by that record.

Plaintiff constitutional complaints are properly before this Court.

B. The Acts of the State of Illinois and the Board in this Case constitute

State Action for Constitutional Analysis Purposes.

The actions of the Board were state action. Action taken pursuant to a State

election regulatory scheme constitutes state action for constitutional purposes. Gray v.

Sauders, 372 U.S. 368, 83 S. Ct. 801, 9 L. Ed. 2d 821 (1963).

C. The Regulatory Scheme at Issue in this Case Demands Strict Scrutiny

to Protect the Fundamental Right to Vote.


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The analytical framework for this case has been set down by the United States

Supreme Court:

Constitutional challenges to specific provisions of a State's election laws

therefore cannot be resolved by any litmus-paper test that will separate

valid from invalid restrictions. Instead, a court must resolve such a

challenge by an analytical process that parallels its work in ordinary

litigation. In deciding a challenge first consider the character and

magnitude of the asserted injury to the rights protected by the First and

Fourteenth Amendments that the plaintiff seeks to vindicate. It then must

identify and evaluate the precise interests put forward by the State as

justifications for the burden imposed by its rule. In passing judgment, the

Court must not only determine the legitimacy and strength of each of those

interests; it also must consider the extent to which those interests make it

necessary to burden the plaintiff's rights. Only after weighing all these

factors is the reviewing court in a position to decide whether the

challenged provision is unconstitutional.

Anderson v. Celebrezze, 460 U. S. 780, 789, 103 S. Ct. 1564, 1570, 75 L. Ed. 2d 547

(1983).

Under the above standard, the rigorousness of the inquiry depends upon the extent

to which a challenged regulation burdens constitutional rights. When rights are

subjected to severe restrictions, the Supreme Court has held that the regulation must be

narrowly drawn to advance a state interest of compelling importance. Norman v. Reed,

502 U.S. 279, 289, 112 S. Ct. 698, 705, 116 L. Ed. 2d 711 (1992) But when a state


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election law provision imposes only reasonable, nondiscriminatory restrictions upon

the First and Fourteenth Amendment rights of voters, the State's important regulatory

interests are generally sufficient to justify the restrictions. Anderson, supra, 460 U. S. at

788, 103 S. Ct. at 1569-1570.

Strict scrutiny is required because the right to vote is recognized as a cornerstone

of American democracy. No right is more precious in a free country than that of

having a voice in the election of those who make the laws under which, as good citizens,

we must live. Other rights, even the most basic, are illusory if the right to vote is

undermined. Wesberry v. Sanders, 376 U.S. 1, 17, 84 S. Ct. 526, 535, 11 L. Ed. 2d 481,

492 (1964). Accordingly, because the right to vote is at risk, a much stricter level of

scrutiny is imposed upon any interference imposed by the State:

Where challenged legislation implicates a fundamental constitutional

right, however, such as the right to vote, the presumption of

constitutionality is lessened and a far more demanding scrutiny is

required. When the means used by a legislature to achieve a legislative

goal impinge upon a fundamental right, the court will examine the statute

under the strict scrutiny standard. Under a standard of strict scrutiny, the

court must conclude that the means employed by the legislature to achieve

a stated goal were necessary to advance a compelling state interest. In

addition, the statute must be narrowly tailored, that is, the legislature must

use the least restrictive means consistent with the attainment of the

legislative goal.


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Tully v. Edgar, 171 Ill. 2d 297, 304-5, 215 Ill. Dec. 646, 651-2, 664 N.E.2d 43,

48-9 (1996).

It is not contested that a state government, such as that of Illinois, indisputably

has an interest in preserving the integrity of its election process to ensure that elections

are fair and honest. Rosario v. Rockefeller, 410 U.S. 752, 761, 93 S. Ct. 1245, 36 L. Ed.

2d 1 (1973). But is its equally well recognized that the power of the States in

determining the conduct of elections must be exercised in a manner consistent with the

equal protection and due process clauses of the Fourteenth Amendment and with the

interrelated right to associate for political purposes which is guaranteed by the First

Amendment. Anderson v. Schneider, 67 Ill. 2d 165, 171, 8 Ill. Dec. 514, 516,365 N.E.2d

900, 902 (1977).

D. The Statutory Scheme of the Illinois Election Code, Combined

with the Actions of the Board, Deprived Petitioner of Due

Process of Law.

The action of the State of Illinois deprived Petitioner of any meaningful ability to

question the citizenship of the Candidates in defense of her right to cast an effective vote.

As stated by the United States Supreme Court, the right of qualified voters, regardless of

their political persuasion, to cast their votes effectively. . . rank[s] among our most

precious freedoms. Williams v. Rhodes, 393 U.S. 23, 30, 89 S. Ct 5, 10, 21 L. Ed. 2d 24

(1968). The right to vote is created under the federal constitution and is therefore

applicable to the State of Illinois though the Fourteenth Amendment.

The right of the people to choose, whatever its appropriate constitutional

limitations, where in other respects it is defined, and the mode of its

exercise is prescribed by state action in conformity to the Constitution, is a


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right established and guaranteed by the Constitution and hence is one

secured by it to those citizens and inhabitants of the state entitled to

exercise the right.

U.S. v. Classic, 313 U.S. 299, 314, 61 S. Ct. 1031, 1037, 61 S. Ct. 1031 (1941).

Under the Illinois Constitution of 1970, Article III, section 1 states the principle

that all qualified citizens have a constitutionally protected rightto vote and to have their

votes counted. Ill. Const., Art III, Sec. 1; Craig v. Peterson, 39 Ill. 2d 191, 195, 233

N.E.2d 345 (1968). Further, Illinois citizens are entitled to a free and fair election. Ill.

Const., Art. III, Sec. 3.

The Illinois courts take a broad view of the scope of the right to vote as

implicated by restrictions in legislative and administrative action in enforcing election

codes:

Our cases support the view that legislation that affects any stage of the

election process implicates the right to vote. Thus, this court has

determined that the righttovote is implicated by legislation that restricts a

candidate's effort to gain access to the ballot. It has also held that the right

to vote is implicated by legislation that limits the people's right to

nominate candidates (and that prohibits the counting of legally cast ballots

More recently, this court held that the constitutional right to vote is

implicated by legislation that gives some votes cast greater or lesser

weight than others.

Tully v. Edgar, 171 Ill. 2d 297, 307, 215 Ill. Dec. 646, 651-2, 664 N.E.2d 43, 48-9 (1996)

(citations omitted). Petitioners attempt to protect her right to vote by objection to


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candidates on constitutional grounds is part of the right to vote under Illinois law because

the legislative scheme affects a stage of the election of candidates for office.

The Illinois statutory scheme unconstitutionally burdens the ability of citizens to

test the constitutional qualification of candidates in circumstances where the State of

Illinois affirmatively refuses to make inquiry. Illinois nominally practices apparent

conformity, which means that no independent check or proof of citizenship status is

required:

Certificates of nomination and nomination papers, and petitions to submit

public questions to a referendum, being filed as required by this Code, and

being in apparent conformity with the provisions of this Act, shall be

deemed to be valid unless objection thereto is duly made in writing within

5 business days after the last day for filing the certificate of nomination or

nomination papers or petition for a public question . . .

10 ILCS 5/10-8 (2009). Quite obviously, the electoral system relies upon objections to

test the propriety of facially sufficient nomination papers. As the above language

demonstrates, upon objection the powers of the Board are not limited to mere apparent

conformity in resolving the Objection:

The electoral board shall take up the question as to whether or not the

certificate of nomination or nomination papers or petitions are in proper

form, and whether or not they were filed within the time and under the

conditions required by law, and whether or not they are the genuine

certificate of nomination or nomination papers or petitions which they


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purport to be, and whether or not in the case of the certificate of

nomination in question it represents accurately the decision of the caucus

or convention issuing it, and in general shall decide whether or not the

certificate of nomination or nominating papers or petitions on file are valid

or whether the objections thereto should be sustained and the decision of a

majority of the electoral board shall be final subject to judicial review as

provided in Section 10-10.

10 ILCS 10-10(2010). In the case at bar, the Objection is directed squarely at the

requirements of the Nominating Petitions, namely the veracity of the claim of validity as

a candidate. Simply put, if a candidate has lied under oath in stating that he is a

registered voter or otherwise engaged in falsehood in representing his citizenship, a basic

requirement of candidacy under the Illinois Constitution, the nomination papers cannot in

any way be considered valid.

In granting Petitioner a mere five days to file objections based upon the

constitutional requirement of citizenship, the State of Illinois has created substantial and

unreasonable barriers. Under Illinois Vital Records Act, copies of birth records cannot be

issued to unrelated members of the general public without court order or authorization by

or for the subject of the record. 435 ILCS 535/25(4) (2009). Immigration and

naturalization records are not among those listed in the federal Freedom of Information

Act as required to be available from federal agencies for public review without a formal

request 5 U.S.C. 552 (2010). Moreover, the Illinois Freedom of Information Act

(hereinafter Illinois FOIA) specifically bars unwarranted invasion of personal privacy,

unless consented to by the subject of the records. 5 ILCS 140/7(b) (2010). The Illinois


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FOIA also specifically reiterates the privacy rationale creates an exemption for records of

any administrated proceeding. 5 ILCS 140/7(c)(vi) (2010). The federal Freedom of

Information Act (Federal FOIA) also contains express exemptions on information

collected on individuals, or information. 5 U.S.C. 552b (2010)

Given that, at minimum a request under either the Illinois FOIA or Federal FOIA

would be required, and subject to contest under exclusions for privacy, It is a practical

impossibility that any request of governmental agencies can be effectuated within the five

day period for objection set by the Illinois Election Code, as both the Illinois and federal

FOIA provisions allow government agencies a period longer than five days in which to

make even a initial response. See, 5 ILCS 140/3 (2010) and 5 U.S.C.

552(6)(A)(i)(2010).

The deprivation towards Petitioner is made more plain upon review of the

discovery powers available to the Board in acting upon Petitioners Objection. An

electoral board has the power to administer oaths and to subpoena and examine witnesses

and at the request of either party the chairman may issue subpoenas requiring the

attendance of witnesses and subpoenas duces tecum requiring the production of such

books, papers, records and documents as may be evidence of any matter under inquiry

before it. 10 ILCS 5/10-10 (2010). Subpoenas issued by the Board in this matter would

quickly dispatch the issue, assuming that the Candidates did not come forward with proof

on their own. The action of the Board in dismissing her Objection by a rule not

authorized by Illinois law, thereby depriving her of the ability to employ the discovery

tools created by Illinois law, compounds the blatant deprivation of constitutional rights in

this case.


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The actions of the state cannot be upheld on ground that the Petitioner has some

supposed right to engage in litigation after the election. To the contrary, Illinois public

policy of finality in elections is that in the interest of finality mistakes should be

corrected before rather than after an election. People ex rel. Goldberg v. Delaney, 39 Ill.

2d 474, 481, 236 N.E.2d 689, 693 (1968).

Further, common law writs such as quo warranto are not a reliable substitute for

due process of law in objection proceedings. Acquiescence to the election without

complaint while harboring concerns over the propriety of the election is a ground for

denial of writ ofquo warranto on ground of waiver. People ex rel. Lewis v. Waite, 70 Ill.

25 (1873). Thus, citizens such as Petitioner are placed in an untenable position: on the

one hand the State blocks the ability to engage in meaningful challenge based on

citizenship, yet the objectors inaction can be held to constitute waiver ofquo warranto

proceedings after the election.

In sum, the State of Illinois, while granting a period in which to object on grounds

that the Illinois State Board of Elections will not and cannot independently make inquiry

or engage in any sort of verification, has effectively blocked Petitioners avenues of

investigation of the citizenship of a candidate.

CONCLUSION

Petitioner has asked for no more than to challenge the constitutional qualifications

of the Candidates before the Election Board. The denial of that proceeding by action of

the Election Board now puts in to question the entire scheme of the Illinois Election Code

in this area, from the practice ofapparent conformity to the short period of time


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allowed a voter even to investigate the citizenship of a candidate, while be limited by

state statutes that prevent her from obtaining crucial evidence.

Petitioner asks for reversal of the decision of the Electoral Board and remand for

further proceedings on ground that her petition stated the grounds of her challenge, or

alternatively that the rule employed by the Board to dismiss her Non-Motion Candidates

was invalid, or an the second alternative ground that the legislative scheme employed by

the State of Illinois has deprived her of her constitutional rights.

Respectfully Submitted,

SHARON MERONI

By:

Stephen F, Boulton

CERTIFICATION

I certify that this Brief conforms to the requirement s of Rules 341(a) and (b). The length

of this Brief, excluding the pages containing the Rule 341(d) cover, the Rule 341(h)(1)

statement of points and authorities and the Rule 341(c) certificate of compliance the

certificate of service and those matters to be appended to the brief under Rule 342(a) is

_____ pages.

Stephen F. Boulton

Meroni V 32 Candidates and Illinois State Board of Elections - Appellate Brief

Documents

Transcript of Meroni V 32 Candidates and Illinois State Board of Elections - Appellate Brief