Has §7-10.2 of the Election Code become a Catch-22 for married women running for judge?

Updated 1/19/24 to add additional authorities

Looking more at the decision knocking Ashonta Rice off the Cook County judicial ballot....

When Mary Smith marries John Jones, she may become known as Mary Jones. At one time, perhaps as late as my parents' generation, this was almost universally the case. Since then... well, things have changed.

But not uniformly. Suppose Mary Smith had been practicing law for some years before marrying the aforementioned Mr. Jones. While, in every term of the Supreme Court, one can find examples of newly married women obtaining Orders changing their surnames on the Master Roll to conform with their newlywed status, our hypothetical Mary may be quite content to be known in the parish, or at her childrens' school, as Mary Jones, but insistent on remaining Mary Smith in her professional life.

Chances are, moreover, that there are still other settings in which Mary may use a combination of her married and maiden names, sometimes hyphenated, sometimes not. On certain bank accounts, perhaps, or on her voter's registration or driver's license. Maybe, just because they don't much like it, she makes her in-laws address her as Smith-Jones. There may be as many reasons for using all these variations on Mary's surname as there are settings in which her surname might be used -- but, in each case, it is still the same Mary.

I am certain that, if you consider your own circle of acquaintance, you will readily think of women, lawyers or not, who use their maiden names in some contexts, their married names in others, and/or hyphenated or merely adjacent names in still others. Welcome to the 21st Century.

Which brings us to §7-10.2 of the Election Code.

This section of the Code was amended in 2007 to require that:

If a candidate has changed his or her name, whether by a statutory or common law procedure in Illinois or any other jurisdiction, within 3 years before the last day for filing the petition or certificate for that office, whichever is applicable, then (i) the candidate's name on the petition or certificate must be followed by "formerly known as (list all prior names during the 3-year period) until name changed on (list date of each such name change)" and (ii) the petition or certificate must be accompanied by the candidate's affidavit stating the candidate's previous names during the period specified in (i) and the date or dates each of those names was changed....

Failure to make the required disclosure would, henceforth, be grounds for removal from the ballot.

The apparent impetus for the insertion of this second sentence into §7-10.2 was the decision of a Park Ridge lawyer of German heritage to change his name to a more ballot-friendly Irish moniker. He did not just swap surnames, he changed his first and middle names as well.

Unfortunately for this person's judicial ambitions, the press got hold of the story... and, knowing that the papers were ready to pounce, he never did file. (He did, however, change his name back to the one his parents gave him.) (As I recall, not all the press coverage was negative. An Irish paper, the Irish Times, I think, wrote a rather good-humored article, welcoming the new Irishman.)

Whatever.

That near-occasion of candidacy was the reason for the statutory amendment. Perhaps the amended statute has since deterred others from attempting similar ploys. But if the purpose of the amendment was to keep people from assuming a more-electable name and then seeking election, it has certainly failed at least once. The way a candidate can entirely evade the past-names-disclosure provision is to keep his or her head down, and his or her new name out of the media, for more than three years.

I thought I had discerned all the pitfalls of §7-10.2 when I wrote about it in 2013.

As is all too frequently the case, I was wrong.

Section 7-10.2 was successfully deployed in the 2020 election cycle to knock Caroline Patricia Jamieson off the ballot. Caroline Patricia Jamieson had previously sought election to the bench, in the 2018 Democratic primary, as Caroline Jamieson Golden. The candidate's last name was Jamieson at birth; she had acquired the surname Golden by marriage. She'd used Golden on the Master Roll of Attorneys. She had been elected to her local suburban school board as Caroline Golden. On the other hand, she certainly had not changed her name; she'd done nothing like the Park Ridge attorney who'd inspired the name change amendment to §7-10.2. Instead, she chose to resume using a name she'd put aside some years back. But it was not a new name.

I wrote about that case, which went all the way to the Appellate Court (see, Oberholtzer v. Cook County Officers Electoral Board, 2020 IL App (1st) 200218-U), in some detail in February 2020. But I think that case can be quickly summarized this way: The candidate wasn't ruled off the ballot because she'd failed to disclose a change of name (second sentence of §7-10.2) but, rather, because she'd not used her actual "surname" in contravention of the first sentence of §7-10.2: Unlike our hypothetical Mary Smith and/or Mary Jones and/or Mary Smith-Jones, this candidate had (in the opinion of the judges deciding her case) not used both her married name and given name interchangeably, depending on circumstance and situation, but had really only used her married name. (Except, of course, that the challenge to her nominating petitions was based on an alleged violation of the name change provision, the second sentence of §7-10.2... and aren't petition challenges supposed to be limited strictly to the grounds asserted?)

I thought the answer to that parenthetical question is (and should have been in that case) "yes": In McCaskill v. Mun. Officers Electoral Board for the City of Harvey, 2019 IL App (1st) 190190, ¶32, the Appellate Court said it would not "create an objection never raised in the objector's petition before the Board," citing Wiesner v. Brennan, 2016 IL App (2d) 160115, ¶17, for the proposition that "all objections to nominating papers must be contained within objector's petition; no new objections may be raised or considered thereafter").

But, regardless, this brings us back, finally, to where we started, with the new case knocking Ashonta Rice off the ballot.

As the linked decision shows, the objection to Rice's nominating papers was grounded in that second sentence of §7-10.2, arguing her papers were fatally defective because they did not disclose that Ashonta C. Rice was "formerly known as" Ashonta C. Rice-Akiwowo.

The objectors submitted documentary evidence showing that Rice had used the surname Rice-Akiwowo or sometimes just Akiwowo after her 2012 marriage. FWIW readers will recall that Rice had run for a 15th Subcircuit vacancy, in 2018, as Rice-Akiwowo.

According to the linked decision, Rice filed a dissolution of marriage action in 2022. And therein lies the dispositive datum, in the opinion of those that matter, although I see this as nothing more than a red herring: An interim order was entered in that case (which is apparently still pending) entitled "Agreed Name Change Order," the operative language of which, according to the hearing officer's report and recommendation was, "Petitioner/Counter-Respondent, Ashonta C. Akiwowo is hereby granted leave to resume the use of her maiden name of RICE." Expert testimony was presented to suggest that this kind of a name change order, though common as part of the final disposition of a dissolution action, was, at this stage of the case, merely an interlocutory order subject to change at any time. Therefore, the exception to the name-change rule in the second sentence of §7-10.2, which is also contained in that very lengthy second sentence, excepting name changes "resulting from... dissolution of marriage" would not apply.

The objectors, the hearing officer, and the Electoral Board all took this interim order as proof that the candidate knew she was changing her name... which is why the first part of that second sentence of §7-10.2 would be implicated.

The hearing officer specifically noted that, after the name change order was entered, Rice changed her driver's license to Ashonta Rice. She changed her voter registration to Ashonta Rice. She changed her name back to Ashonta Rice with the Social Security Administration, too.

Well, of course she did: After Oberholtzer, and after Ruffin v. Feller, 2022 IL App (1st) 220692, any careful female lawyer with judicial aspirations and without official backing would and should anticipate some sort of name-based petition challenge. (In Ruffin, a divorced candidate for the office of Cook County Sheriff was ruled off the ballot. She had been granted leave to resume use of her maiden name as part of the final dissolution orders, but never re-registered to vote in her maiden name from the former marital residence, which she continued to occupy. Therefore, the Electoral Board ruled, and the Appellate Court affirmed, that, at the time of the signing of her statement of candidacy, there was no registered voter at the address given by the name of "Latonya Ruffin.")

As noted at the outset here, most married women, including women who marry and then divorce, proceed through life known by different names to different persons, in different settings, for different purposes, without much difficulty or confusion. But somehow female political candidates in Cook County are treated differently, as if, in bearing the various names that society bestows, they are trying to deceive the public like a candidate who really does change his or her name from one thing to something completely different, so the public might think the candidate was someone he or she was not.

Rice may not have helped her cause.

According to the hearing officer's report, when asked about the provenance of the name change order, Rice claimed that she could not "recall" who suggested it.

Fine. Rice would not be the first attorney who turned out to be a less than stellar witness on her own behalf. I can think of one excellent attorney that I had to present twice, in different cases, who could not turn off the lawyer-analyzing-everything portion of her brain and just answer the questions posed. She was playing chess, when only checkers was required, and she came off as evasive or uncertain.

I did not see Ashonta Rice testify, of course, and I don't know if she had the problem my friend did. But, if she did, it is no shame. Lawyers are not generally called upon to be witnesses; it is not part of our required skill set. The ability to come across as a good witness is certainly not required to be a good judge.

On the other hand, a fact finder, whether judge, jury, or hearing officer, can only evaluate what they see and hear. And if the testimony comes off badly, the witness' credibility will be damaged, perhaps fatally.

What Rice could have said, or at least what I think the truth is generally in these cases, if for some reason not actually so in Rice's case, is that, thanks to §7-10.2, a married woman candidate is now forced to navigate between Oberholzer and Ruffin, a modern-day Scylla and Charybdis. Heads I win, tails you lose. Catch-22.

I would agree that the §7-10.2 exception for name changes obtained in dissolution actions should not have applied in Rice's case -- but only because the first part of the second sentence of §7-10.2, prohibiting candidates from changing their names, also did not apply.

It is clear that Rice used her married name, or some hyphenated combination of given and married names, in a number of contexts. She ran for judge in 2018 as Rice-Akiwowo.

But, professionally, and unlike the candidate in the Oberholtz case who sometimes used her maiden name as a middle name but never as her surname until her last judicial run, Rice apparently always practiced law as Ashonta C. Rice. That is certainly the name she used when she applied for associate judge in 2015, in 2017, and in 2021.

Moreover, she was Ashonta C. Rice when she was slated by the Cook County Democratic Party as its 10th alternate in 2019, and again in 2021, when the Party slated her as its fourth alternate. (To be clear, in this election cycle, had she been allowed on the ballot, she would have been running against the Party's slated candidate.)

Rice never abandoned the surname Rice. She never put it to one side. She did not have to change her name 'back' to what it always was.

But, of course, that's only my opinion. And, if you have paying any attention here at all, my opinion is not the one that counts.

When the drafters of the amendment to §7-10.2 came up with a provision to prevent future German guys from pretending to be Irish, I very much doubt that they also intended it to weaponized against married women whose varying surnames conform to our current social customs. I am virtually positive that, even if that was their intention, such an intention was not communicated to the female members of the General Assembly who approved the amendment. Pending further amendment, or clarifying court action, however, this is where matters now stand.