Appellate Court keeps 2nd District Supreme Court candidates on the ballot

In a unanimous ruling handed down yesterday afternoon, the Illiois Appellate Court affirmed the Cook County Circuit Court's May 12 decision to reinstate Appellate Court Justice Susan F. Hutchinson and former Lake County Sheriff Mark Curran to the Republican primary ballot, and to reinstate Highland Park Mayor Nancy Rodkin Rotering to the Democratic primary ballot, keeping alive their hopes of being elected to the Illinois Supreme Court in the newly redrawn Second Judicial District. Hutchinson v. Illinois State Board of Elections, 2022 IL App (1st) 220678.

The Illinois State Board of Elections had directed that these three candidates be removed from the ballot in late April, disregarding the recommendation of its own hearing officer, the opinion of its general counsel, and even the plain language of the ISBE's own Candidate's Guide.

Both sides agreed that the candidates could not rely on the candidate guide, or claim that the ISBE's published guidance estopped the Board from taking a contrary position.

Instead, the principal contention of both sides was that the 'plain language' of §7-10(h) of the Illinois Election Code, 10 ILCS 5/7-10(h) supported their respective (and diametrically opposed) positions. The Circuit Court, and now the Appellate Court, read the statute as the candidates read it: Because the newly reconstituted Second Judicial District did not exist before this election cycle, the default statutory minimum of 500 signatures was all that was required to qualify for the ballot. Under the special rules adopted solely for the forthcoming Mel Brooks Birthday Primary, that 500 signature minimum was further reduced by one-third, to only 334 signatures.

There was a secondary argument asserted by the candidates: While the candidates could not rely on the advice given by the election authority, the State Board of Elections and, ultimately, the courts should have given deference to the agency's guidance -- that is, the guidance included in the Candidate's Guide -- because the ISBE is the agency "tasked with administering the Election Code" (2022 IL App (1st) 220678, ¶42).

The Appellate Court, however, decided "[w]e need not decide whether the Board's gudiance in the Candidate's Guide was an agency interpretation entitled to any deference because our de novo review of the statutory provision" was sufficient for the court to decide the case (2022 IL App (1st) 220678, ¶42).

In my view, that argument was always a bit of a distraction. It is well-established in administrative law that an agency can reject the recommendations of its hearing officer. So the Board can decide that its staff got it wrong, and that its hearing officer was wrong, and what the Board says might logically be considered the only agency interpretation that could be deferred to. If deference were required. But, in the case of a pure question of law, construing a statute, no deference would be required.

A number of anonymous 'experts' in my unpublished comment queue have loudly protested that no candidate for judicial office should ever qualify for the ballot with fewer than 1,000 signatures. They are angry, I guess, that a person might be elected to the Illinois Supreme Court with fewer signatures on his or her nominating petitions than the least candidate in the Democratic primary in any Cook County subcircuit.

But it's all a question of legislative priorities -- what our lawmakers consider important. And, in Illinois, the decisions of a Traffic Court judge might be more important to a politician's future than what the Supreme Court might do. And both are far less important than commissioners of the Metropolitan Water Reclamation District of Greater Chicago who, this year, needed to secure no less than 5,770 signatures in order to qualify for the ballot.

Keri-Lyn J. Krafthefer and Daniel J. Bolin of Ancel Glink, PC; Michael Kreloff; and Ed Mullen of the Westside Justice Center represented the candidates. (Mark Curran was pro se.) John G. Fogarty, Jr. and Michael C. Dorf represented the objectors.