Hossfeld v. Illinois State Board of Elections ( 2010 )

Docket No. 109725.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
___________________
FREDERICK J. HOSSFELD, Appellant, v. THE ILLINOIS STATE
BOARD OF ELECTIONS et al., Appellees.
Opinion filed October 7, 2010.
CHIEF JUSTICE FITZGERALD delivered the judgment of the
court, with opinion.
Justices Freeman, Thomas, Kilbride, Garman, Karmeier, and
Burke concurred in the judgment and opinion.
OPINION
This appeal concerns the party-switching restrictions on political
candidates for the General Assembly under section 8–8 of the Election
Code (10 ILCS 5/8–8 (West 2008)). At issue is whether Steven J.
Rauschenberger was ineligible to run as a Republican candidate in the
February 2010 general primary election for the office of State Senator
because he voted a Democratic ballot in the February 2009
consolidated primary election in Elgin Township.
On September 22, 2010, following oral argument in this case, this
court issued its oral ruling affirming the judgment of the appellate
court, which held that Rauschenberger was eligible to run (398 Ill.
App. 3d 737). A written order to that effect was also entered on
September 22, stating that an opinion from this court would follow.
This is that opinion.
BACKGROUND
The relevant facts are not in dispute. In February 2009, Steven
Rauschenberger, who had historically voted a Republican ballot in
primary elections, voted a Democratic ballot in the consolidated
primary election in Elgin Township. Rauschenberger’s sister was
running for Democratic township trustee. The general township
election, for which that primary was held, took place in April 2009.
Six months later, in October 2009, Rauschenberger filed nomination
papers seeking the Republican nomination for the office of State
Senator of the 22nd Legislative District for the February 2, 2010,
general primary election. 1 Pursuant to section 8–8 of the Election
Code (10 ILCS 5/8–8 (West 2008)), Rauschenberger’s nomination
papers included a sworn “statement of candidacy” which stated, in
relevant part, that Rauschenberger was a “qualified primary voter of
the Republican Party.”
Prior to the general primary election, Frederick J. Hossfeld, a
registered voter of the 22nd Legislative District, filed an objector’s
petition challenging Rauschenberger’s eligibility to run as a
Republican candidate. Hossfeld argued that Rauschenberger’s
statement of candidacy falsely stated that he was a “qualified primary
voter of the Republican Party.” Relying on Cullerton v. Du Page
County Officers Electoral Board, 384 Ill. App. 3d 989 (2008),
Hossfeld maintained that because Rauschenberger had voted as a
Democrat at the most recent primary election preceding the filing of
his nomination papers, his status was “locked” as a Democratic
primary voter until he voted in the February 2010 general primary
election.
The State Board of Elections, sitting as the State Officers
Electoral Board, appointed a hearing examiner who, relying on the
Cullerton case, recommended that Hossfeld’s objection be sustained.
The Board’s general counsel concurred. A subsequent vote by the
1
Rauschenberger previously held the office of Republican Senator from
the 22nd Legislative District from 1992 to 2006, when he unsuccessfully ran
as the Republican candidate for Lieutenant Governor.
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eight-member Board, however, resulted in a tie vote. Because a
majority vote is required to invalidate nomination papers (10 ILCS
5/10–10 (West 2008)), Rauschenberger’s name remained on the ballot
for the February 2010 general primary election pending judicial review
in the circuit court of Cook County. The circuit court distinguished
the Cullerton case and denied Hossfeld’s petition. In an expedited
appeal, the appellate court affirmed, over a dissent. 398 Ill. App. 3d
737. The appellate majority held that the Election Code “no longer
provides express time limitations on party-switching for candidates,”
and that Rauschenberger is a qualified primary voter of the Republican
Party. 398 Ill. App. 3d at 743. Although the dissenting justice would
have removed Rauschenberger from the ballot based on the Cullerton
opinion (398 Ill. App. 3d at 744-45 (Steele, J., dissenting)), the
appellate majority concluded that Cullerton is “notably different” from
the present case (398 Ill. App. 3d at 743). We allowed Hossfeld’s
petition for leave to appeal. 210 Ill. 2d R. 315.
ANALYSIS
I
Although the Board failed to render a decision by a majority vote,
and thus took no action on Hossfeld’s objection, the Board’s decision
is nonetheless subject to judicial review. See 10 ILCS 5/10–10.1
(West 2008) (providing that an “objector aggrieved by the decision of
an electoral board may secure judicial review”). While the Board’s
order does not set forth the reasons the members voted to sustain or
deny Hossfeld’s objection, the general counsel’s recommendation, as
well as the hearing examiner’s report and recommended decision, both
contain a detailed explanation for sustaining Hossfeld’s objection.
Thus, judicial review may be accomplished by reviewing these
documents. See Cook County Republican Party v. Illinois State
Board of Elections, 232 Ill. 2d 231, 241-43 (2009) (holding that tie-
vote dismissals of Election Code complaints were subject to judicial
review on the merits, based on the detailed explanation set forth in the
general counsel’s recommendation).
As to the appropriate standard of review, we agree with the
appellate court that de novo review applies. 398 Ill. App. 3d at 740.
An electoral board is viewed as an administrative agency. Cinkus v.
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Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d
200, 209 (2008). Thus, the standard of review is determined by the
type of question on review. Cinkus, 228 Ill. 2d at 210. Here, the
historical facts are not in dispute, and the question is a purely legal
one: whether, based on our interpretation of section 8–8 of the
Election Code, Rauschenberger is a “qualified primary voter of the
Republican Party.” Our review is “independent and not deferential.”
Cinkus, 228 Ill. 2d at 210.
II
Before considering the merits, we note that Rauschenberger has
since won the Republican nomination for State Senator of the 22nd
Legislative District. Hossfeld maintains, and we agree, that this event
has not rendered this appeal moot. A case on appeal is moot where
the issues raised below no longer exist because events subsequent to
the filing of the appeal make it impossible for the reviewing court to
grant the complaining party effectual relief. Cinkus, 228 Ill. 2d at 207-
08. Though the primary election at which Rauschenberger’s candidacy
was challenged has passed, the November 2, 2010, general election at
which the Senate seat he seeks will be decided has yet to occur.
Moreover, and in any event, this appeal raises an issue of election law
which “inherently is a matter of public concern” and reviewable under
the public interest exception to the mootness doctrine. Cinkus, 228 Ill.
2d at 208.
III
Hossfeld argues, pursuant to Cullerton, that Rauschenberger was
not a “qualified primary voter of the Republican Party” because he
voted a Democratic ballot in “the most recent primary election
preceding the filing of [his] statement of candidacy,” and he was thus
“locked” as a Democratic primary voter until he voted in the 2010
general primary election. Cullerton, 384 Ill. App. 3d at 996. Hossfeld
maintains that no significance attaches to the fact that the Democratic
ballot he voted was in a consolidated or local election, which was
completed prior to Rauschenberger filing his nomination papers for a
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statewide office.2 Rauschenberger responds that the General Assembly
has eliminated the “lock out” provisions in the Election Code, which
were held unconstitutional (see Kusper v. Pontikes, 414 U.S. 51, 38
L. Ed. 2d 260, 94 S. Ct. 303 (1973); Sperling v. County Officers
Electoral Board, 57 Ill. 2d 81 (1974)), and that under the current
Election Code, Rauschenberger properly declared himself a qualified
primary voter of the Republican Party. Rauschenberger further
responds that Cullerton is limited by its facts and stands only for the
proposition that a candidate is precluded from switching parties during
an election cycle. Accordingly, Rauschenberger maintains that his
Democratic vote in the 2009 consolidated election in Elgin Township
did not preclude him from declaring himself a qualified primary voter
of the Republican Party in his nomination papers for the 2010 general
primary election. We agree with Rauschenberger.
Historically, the Election Code contained a two-year restriction on
party-switching applicable to voters, signers of nomination petitions,
and candidates. See generally Sperling, 57 Ill. 2d at 81-82.
Specifically, under section 7–43(d), a person was not entitled to vote
at a primary election if he had voted at the primary election of another
political party within the preceding 23 months. Ill. Rev. Stat. 1971, ch.
46, par. 7–43(d). Section 7–10 contained a similar restriction
applicable to signers of nominating petitions for primary elections and
candidates for nomination in such primary elections. Section 7–10
required that nominating petitions shall be signed by “qualified primary
electors,” and that candidates, in their nomination petitions, must
swear that he or she “is a qualified primary voter of the party to which
the petition relates.” Ill. Rev. Stat. 1971, ch. 46, par. 7–10. For
purposes of determining eligibility to sign a nomination petition or to
be a candidate, section 7–10 provided, in relevant part, that a
“qualified primary elector” of a party “is an elector who has not
requested a primary ballot of any other party at a primary election held
2
Under the Election Code, municipal and township offices are filled at an
election known as a “consolidated election,” which is held in odd-numbered
years. 10 ILCS 5/2A–1.1(b), 2A–1.2(c), (d) (West 2008). Certain federal,
state and county offices (including State Senator) are filled at an election
known as a “general election,” which is held in even-numbered years. 10
ILCS 5/2A–1.1(a), 2A–1.2(a), (b) (West 2008).
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within 2 years of the date on which the petition must be filed.” Ill.
Rev. Stat. 1971, ch. 46, par. 7–10.3
The restrictions on party-switching set forth in section 7–10 were
mirrored in article 8 of the Election Code, which governs nominations
of members of the General Assembly. Section 8–8 required a
candidate to swear, in his or her statement of candidacy, that he or she
is a “qualified primary voter of the party to which the petition relates.”
For purposes of determining eligibility to sign a nomination petition
or to be a candidate under article 8, a “qualified primary elector” was
defined in relevant part as “an elector who has not requested a primary
ballot of any other party at a primary election held within 2 years of
the date on which the petition must be filed.” Ill. Rev. Stat. 1971, ch.
46, par. 8–8.
In Kusper v. Pontikes, 414 U.S. 51, 38 L. Ed. 2d 260, 94 S. Ct.
303 (1973), the Supreme Court held that the restriction against party-
switching by voters contained in section 7–43(d) unconstitutionally
infringed on the right of free political association protected by the first
and fourteenth amendments. The Court explained that a voter who
wished to change his party affiliation must wait almost two years
before that choice will be given effect, and is forced to forgo
participation in any primary elections occurring within the 23-month
statutory hiatus. “The effect of the Illinois statute is thus to ‘lock’ the
voter into his pre-existing party affiliation for a substantial period of
time following participation in any primary election, and each
succeeding primary vote extends this period of confinement.” Kusper,
414 U.S. at 57, 38 L. Ed. 2d at 267, 94 S. Ct. at 308.
One year after the Kusper decision was entered, this court decided
the Sperling case. There we held that, based upon the reasoning in
Kusper, the two-year no-switch rule applicable to voters who wish to
sign primary nominating petitions, set forth in section 7–10, must fall.
Sperling, 57 Ill. 2d at 84. In Sperling, we also considered the
continuing viability of the two-year no-switch rule applicable to
candidates in primary elections. We observed that the “standards
3
Although the Election Code refers to both a “qualified primary elector”
and a “qualified primary voter,” the phrases have the same meaning.
Sperling, 57 Ill. 2d at 83.
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governing party changes by candidates should be more restrictive than
those relating to voters generally,” and that “the restriction on
candidates could be upheld against constitutional challenge.” Sperling,
57 Ill. 2d at 84, 86. We concluded, however, that because the party-
switching restrictions upon the three categories of voters are so
closely related, the General Assembly would not have enacted the
portion relating to candidates apart from some restrictions upon
voters generally, and upon voters who sign primary nomination
petitions. Sperling, 57 Ill. 2d at 86. “In these circumstances the
restrictions upon candidates cannot be considered independent and
severable from the invalid portions of the plan.” Sperling, 57 Ill. 2d
at 86. This court later clarified that, in the absence of amendatory
legislation, the effect of the decisions in Kusper and Sperling was to
“render inoperable” the two-year party-switching restrictions. Dooley
v. McGillicudy, 63 Ill. 2d 54, 60 (1976).
In 1990, the General Assembly amended sections 7–10 and 8–8 of
the Election Code. See Pub. Act 86–1348, §2, eff. September 7, 1990.
Though retaining the requirement that a candidate must swear that he
or she is a “qualified primary voter of the party to which the
nomination petition relates,” the General Assembly deleted the
definition of “qualified primary elector.” In so doing, the General
Assembly deleted the two-year no-switch rule. After amendment,
sections 7–10 and 8–8 stated simply that “[a] ‘qualified primary
elector’ of a party may not sign petitions for or be a candidate in the
primary of more than one party.” Pub. Act 86–1348, §2, eff.
September 7, 1990. Since 1990, the General Assembly has not
adopted any time restrictions on party-switching by candidates or
other definition of “qualified primary elector.” More recently, the
General Assembly deleted the no-switch rule applicable to voters set
forth in section 7–43(d), which the Kusper opinion found
unconstitutional. See Pub. Act 95–699, §5, eff. November 9, 2007.
Thus, no vestige of the former party-switching rule remains in the
statute.
Against this backdrop, the appellate court decided the Cullerton
case in 2008. At issue was whether Thomas Cullerton was a “qualified
primary voter of the Democratic Party” for purposes of section 7–10
of the Election Code. Cullerton had voted a Republican ballot in the
February 2008 general primary election in Du Page County. Following
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that primary, the Democratic Party, who had no candidate for State
Senator of the 23rd Legislative District, nominated Cullerton as its
candidate for the November 2008 general election. The Du Page
County Electoral Board sustained an objection to Cullerton’s
candidacy, which the circuit court reversed. On appeal, the appellate
court held that Cullerton was ineligible to run as a Democratic
candidate in the general primary election. Cullerton, 384 Ill. App. 3d
at 990. After reviewing the history of the party-switching provisions
in the Election Code, the appellate court concluded:
“The plain and ordinary meaning of the requirement that a
candidate be a qualified primary voter of the party for which
he seeks a nomination mandates, if nothing else, that the
candidate have been eligible to vote in the primary for that
party in the most recent primary election preceding the
candidates’ filing the statement of candidacy.” Cullerton, 384
Ill. App. 3d at 996.
The appellate court explained that when Cullerton chose to vote in the
Republican and not the Democratic primary in 2008, he was “locked”
as a Republican primary voter until the next primary, then scheduled
for 2010. Thus, at the time Cullerton submitted his statement of
candidacy, he was not a qualified primary voter of the Democratic
Party. Cullerton, 384 Ill. App. 3d at 996.
Though Hossfeld argues that the same result should obtain here,
the situation addressed in Cullerton is not the situation we address
here. In Cullerton, the candidate attempted to switch parties within
one election cycle or season, i.e., Cullerton voted a Republican ballot
at the primary, but then sought to run as a Democratic candidate at
the general election for which that primary was held. In contrast, the
election cycle or season during which Rauschenberger voted a
Democratic ballot–the 2009 consolidated election in Elgin
Township–was completed with the general township election in April
2009, prior to Rauschenberger aligning himself with the Republican
Party in his October 2009 nomination papers for purposes of the 2010
general primary. Rauschenberger has not attempted to switch parties
during this new election cycle which will be completed with the
November 2010 general election. Thus, Hossfeld’s reliance on
Cullerton is misplaced.
Moreover, we find nothing in the language of section 7–10 or 8–8
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of the Election Code to support Hossfeld’s argument that
Rauschenberger’s nomination papers falsely state that he is a
“qualified primary voter of the Republic Party.” As the appellate court
here correctly observed, the Election Code no longer contains express
time limitations on party-switching, and Rauschenberger did not run
afoul of the only remaining restriction, set forth in both sections 7–10
and 8–8, that a “ ‘qualified primary elector’ of a party may not sign
petitions for or be a candidate in the primary of more than one party.”
See 398 Ill. App. 3d at 744. Further, no claim has been made that
Rauschenberger did not meet the qualifications for primary voters
generally which are set forth in section 7–43. See 10 ILCS 5/7–43
(West 2008) (setting forth residency and age restrictions for primary
voters).
Though we agree with Hossfeld that party-switching restrictions
on candidates for public office are an important protection in the
electoral process, “[s]uch restrictions and establishment of the periods
of time involved are, within constitutional limitations, matters for
legislative determination.” Sperling, 57 Ill. 2d at 86. After deleting the
two-year no-switch rule, the General Assembly has not seen fit to
enact any further time restrictions. Accordingly, under the present
Election Code, Rauschenberger’s nominating papers are valid.
CONCLUSION
For the reasons stated, we affirm the judgment of the appellate
court affirming the judgment of the circuit court of Cook County that
denied Hossfeld relief.
Affirmed.
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