Substantive issues involved in the Gallagher and Murray appeal from the Electoral Board's decision removing them from the March primary ballot

Let's look at the decision to knock Judges Carolyn Gallagher and Leonard Murray off the ballot in their respective Appellate Court primaries.

It is short and to the point, much shorter, in fact, than the hearing officer's report. But, remember, the Electoral Board's decision is the one that counts, and it is now before the Circuit Court on judicial review (it will be up in court on January 25).

Any serious discussion of the Electoral Board's decision requires consideration of the relevant provisions of §7-10 of the Election Code, 10 ILCS 5/7-10. This lengthy statute, which specifies the form that nominating petitions must take in order to be valid, was twice amended in anticipation of the 2022 primary, first by P.A. 102-0015 (discussed more at this June 2021 FWIW post) and, later, by P.A. 102-0692.

The specific provisions of §7-10 that are relevant to this controversy are set out below. As it happens, none of the amendments to §7-10 provided by P.A. 102-0015 are included in these excerpted provisions; only those added by P.A. 102-0692 are relevant to this discussion. These are set out in red below:

At the bottom of each sheet of such petition shall be added a circulator statement signed by a person 18 years of age or older who is a citizen of the United States, stating the street address or rural route number, as the case may be, as well as the county, city, village or town, and state; and certifying that the signatures on that sheet of the petition were signed in his or her presence and certifying that the signatures are genuine; and either (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 period 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 and certifying that to the best of his or her knowledge and belief the persons so signing were at the time of signing the petitions qualified voters of the political party for which a nomination is sought. Such statement shall be sworn to before some officer authorized to administer oaths in this State.

Obviously, Gallagher and Murray were not running in the 2022 primary. They were hoping to run in 2024. But, quoting the Electoral Board's decision, the circulator's certification language on their petitions stated "that the sheets 'were signed in my presence, during the period of September 5, 2023 through December 4, 2023'."

As it happens, it was exactly 90 days between September 5, 2023 and December 4, 2023. September 5 was the first date on which petitions could have been lawfully circulated; December 4 was the last day for filing petitions during the regular judicial filing period. (Gallagher's and Murrays petitions were in fact filed on November 27, the first day on which petitions could have been filed.)

But, obviously, the circulator's statements did not indicate the specific dates on which each sheet was circulated, nor did it indicate the first and last days on which each sheet was circulated.

Had the circulator's statement parroted the third option, saying only that "none of the signatures on the sheet were signed more than 90 days preceding the last day for the filing of the petition," there would have been no grounds for objection. But, because the circulator's oath used specific dates instead of the exact language provided for in §7-10, the objectors claimed that the oath was fatally defective -- and the petitions invalid accordingly.

While the hearing officer rejected this argument, the Electoral Board (which, remember, was not bound to accept the hearing officer's view) found it persuasive:

The Illinois Supreme Court in the case of Jackson-Hicks v. East St. Louis Board of Election Commissioners, [2015 IL 118929] found that the provisions contained in section 7-10 of the Election Code are mandatory, and where the language of the statute is clear and unambiguous, strict compliance is required. The Objectors are correct that the language contained in the petition sheets is not specifically provided for in section 7-10, and that the legislature could have, but did not, extend the option of providing a range of dates of circulation that was allowed for the 2022 election cycle. The language on these petitions does not substantially comply with the statute.

In Jackson-Hicks, the mayor of East St. Louis was removed from the ballot because, after 48 invalid signatures were stricken from his nominating petitions, the mayor had no more than 123 valid signatures, fewer than the minimum 136 required for that race under the relevant statute (§10-3 of the Election Code). The mayor argued that, with 123 signatures, his petitions 'substantially complied' with the signature requirement. But the Supreme Court disagreed (2015 IL 118929, ¶23):

Generally speaking, requirements of the Illinois Election Code are mandatory, not directory (Purnell v. Municipal Officers Electoral Board, 275 Ill. App. 3d 1038, 1039 (1995); Kellogg v. Cook County Illinois Officers Electoral Board, 347 Ill. App. 3d 666, 670 (2004)). Consistent with the principles governing the mandatory-directory dichotomy, a candidate’s failure to comply with mandatory provisions of the Election Code governing nomination papers will therefore render the nomination papers invalid ( Powell v. East St. Louis Electoral Board, 337 Ill.App.3d 334, 338 (2003)), and require that the candidate’s name be removed from the ballot (Knobeloch v. Electoral Board, 337 Ill.App.3d 1137, 1141 (2003).

On the other hand, the Jackson-Hicks court recognized (2015 IL 118929, ¶36) that the Appellate Court has found, "in certain circumstances, substantial compliance can satisfy even a mandatory provision of the Election Code. See, e.g., Akin v. Smith, 2013 IL App (1st) 130441, ¶ 3 (missing language in notarial jurats on statements of candidacy did not warrant exclusion of candidates from ballot); Atkinson v. Roddy, 2013 IL App (2d) 130139 (objection to nominating papers properly rejected even though candidate filed statement of economic interest in wrong county); Samuelson v. Cook County Officers Electoral Board, 2012 IL App (1st) 120581 (single nonconforming page of petition did not result in disqualification of candidacy); Siegel v. Lake County Officers Electoral Board, 385 Ill.App.3d 452, 461 (2008) (good faith error in date listed by candidate in statement of candidacy and resolution to fill vacancy not sufficient to warrant removal of candidate from ballot)." However, the Supreme Court found that these cases (or other, similar cases, such as Zurek v. Cook County Officers Electoral Board, 2014 IL App (1st) 140446) were "of no relevance" in the case before it.

In the view of the Supreme Court, those Appellate Court cases involved situations where the "candidate met the basic requirements of the Election Code, but did so in a technically deficient manner." The case before it, however, involved "basic requirements" and the candidate's failure "to meet a threshold requirement completely" (2015 IL 118929, ¶37).

I therefore believe that the question to consider, in handicapping Gallagher's and Murray's chances on appeal in their case, is whether the courts will see their failure to chose one of the three options specified in the quoted language of §7-10 will be considered "basic" or just a 'technical deficiency.'

How does one try and figure that?

The cheap and easy, "bucks and clicks" way to do it would be to say that, since Gallagher and Murray are not the Party-endorsed candidates, the courts will see their misstep as basic... and fatal... and uphold the Electoral Board.

But such an approach denies the legitimacy of the objectors' arguments. And there is a solid, technical, statutory construction argument at issue here: For years, the Election Code has specified three, and only three, ways in which to phrase a circulator's oath. None of them involved specifying the range of dates during which petitions could be circulated, as the circulators of Gallagher's and Murray's petitions did here.

For the 2022 election cycle -- and only the 2022 election cycle -- the legislature did authorize a circulator's oath using the first-day-for-circulating, last-day-for-filing range that Gallagher and Murray used here.

Gallagher's and Murray's best argument (and this is my opinion only, and I don't have the benefit of the parties' briefs) is presumably that their date range language was substantially consistent with the third option always prescribed by the statute ("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"). They merely 'did the math.'

That is a serious, substantive argument, and it may well carry the day on appeal. But the likely rejoinder is serious and substantive, too: If the date range language was always consistent with the third option, the General Assembly would not have needed to add a temoporary date range option for the 2022 election cycle only. Judging by what I heard when the case was argued before the Election Board on January 10, the argument would probably go something like this: The legislature clearly thought that the date range option was inconsistent with the three options previously specified by §7-10 before the amendments for the 2022 primary. If this wasn't the case -- if the date range option wasn't inconsistent with the existing statutory language -- there would be no reason to add it as an option for 2022. So the language must have been insufficient before P.A. 102-0692 and the 2022 election cycle. And, inasmuch as the date range option was made sufficient only for the 2022 election cycle, it is again invalid in 2024.

This is really a question of statutory construction.

And, where that is the question, there are some pretty clear general rules that presumably apply: "The primary rule of statutory construction is to ascertain and give effect to the legislature’s intent. Bettis v. Marsaglia, 2014 IL 117050, ¶13. 'The most reliable indicator of legislative intent is the statutory language, given its plain and ordinary meaning.' 1010 Lake Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶21." Bueker v. Madison County, 2016 IL 120024, ¶13. The best indication of legislative intent "is found in the statutory language, given its plain and ordinary meaning." Price v. Philip Morris, Inc., 2015 IL 117687, ¶30. Legislative intent should be sought primarily from the language used in the statute. Abrahamson v. Illinois Dept. of Professional Regulation, 153 Ill. 2d 76, 91 (1992). "Statutory construction begins with the plain meaning of the language employed, and ends there when the meaning is clear." People v. Porter, 156 Ill.2d 218, 222 (1993).

In Jackson-Hicks, the Supreme Court did not overrule or invalidate the many cases that applied principles of substantial compliance to Election Code cases. But it did say that, 'generally speaking,' the provisions of the Election Code are mandatory, not directory, and therefore it is possible that the courts interpreting Jackson-Hicks may be increasingly unlikely to forgive even small missteps under principles of 'substantial compliance.' The Supreme Court’s judicial construction of a statute becomes part of the statute itself. Hernandez v. Lifeline Ambulance, LLC, 2020 IL 124610, ¶38; see also, Village of Vernon Hills v. Heelan, 2015 IL 118170, ¶19.

On the other hand, much as I am a sucker for a good, technical, down-and-dirty-in-the-text construction argument, and, indeed, much as I have raised such arguments many times in insurance policy construction and statutory construction cases in the course of my career, I have found that courts are not always receptive to the same.

On more than one occasion, I have seen my carefully-crafted consturction arguments swept aside with the court saying, in effect, that may be what the legislature said, but we know what the legislature really meant.... (I try to accept my lot cheerfully... but, in retirement, the practical effect of many such failed arguments over the years is the difference between clipping coupons from bonds and clipping coupons from the weekly shopper.)

But never mind any of that. The point is that there is ample precedent to support whatever outcome the courts reach in this case and I offer no prediction on the outcome.

In the final analysis, however, all may depend on whether the courts agree with the Electoral Board that allowing "careless and needless rewriting" in circulator's oaths will hamper the Electoral Board's work. Most lawyers have the luxury of time in pondering legal questions; deadlines can't always be extended, and never indefinitely, but they often can be, and frequently more than once.

It just doesn't work that way with elections. The calendar is inflexible. The law requires ballots to be ready by particular dates -- and, with the increased availability of vote-by-mail options, that date seems earlier in every election cycle. There isn't a lot of time for an Electoral Board to consider a lot of fine distinctions; insistence on strict compliance with the persnickety provisions of the Election Code may serve the status quo... and it unquestionably does... but it also provides the surest way for the Board to discharge its function in the limited time allotted. To those of us on the outside, the Electoral Board's statement that "allowing multiple variations in the circulator's affidavit could irreparably damage the integrity of the election process" may seem overheated, even hyperbolic. But we are not ordinarily under time constraints similar to those imposed on the election authorities.

In Jackson-Hicks, the Supreme Court seems to have considered the time pressures under which election authorities operate. Toward the end of the opinion, the Court imagines (2015 IL 118929, ¶40) what could happen were it to approve allowing approval of a nominating petition with fewer than the required number of signatures: "[T]here would be no way to insure consistency from one electoral jurisdiction to another, from one election to another, or even from one race to another. Local election officials could establish how many signatures are sufficient on a case-by-case basis according to a standard that is not only subjective and variable, but which lacks any obvious limits. Will 90% of the statutory minimum turn out to be enough? 75%? Less than that? Candidates will be left to speculate, and significant delay and uncertainty will inevitably result as objectors seek redress from the courts to review whether the signature cutoff was fairly and properly set by local election officials in particular cases."

The Jackson-Hicks court stated (2015 IL 118929, ¶41) "consideration of the consequences flowing from one interpretation of the law or another is not inappropriate speculation on an abstract or hypothetical proposition. Rather, it is an important factor under the analytical rubric established by this court for assessing whether a provision of the Election Code is mandatory or directory." So it is not impossible that a court may consider the concerns that the Electoral Board itself has raised about the potential consequences of having to assess the various forms of circulator oaths that may arise in the future if an oath is approved now that departs from those prescribed by statute. It certainly would not be improper were a court to do so.

On the other hand, a court may see a substantive difference between a prescribed minimum number of signatures on the one hand, and the use of a date range (that accurately 'does the math') on the other. So the outcome in this case will turn on statutory construction... and framing, too.