Jackson-Hicks v. The East St. Louis Board of Election Commissioners ( 2015 )

Illinois Official Reports
Supreme Court
Jackson-Hicks v. East St. Louis Board of Election Commissioners,
2015 IL 118929Caption in Supreme EMEKA JACKSON-HICKS, Appellant, v. THE EAST ST. LOUIS
Court: BOARD OF ELECTION COMMISSIONERS et al., Appellees.
Docket No. 118929
Filed March 16, 2015
Decision Under Appeal from the Appellate Court for the Fifth District; heard in that
Review court on appeal from the Circuit Court of St. Clair County, the Hon.
Heinz M. Rudolf, Judge, presiding.
Judgment Election Board decision reversed.
Cause remanded to the circuit court with directions.
Mandate issued forthwith.
Counsel on Eric W. Evans and Dawn O’Leary, of Evans Blasi, of Granite City,
Appeal Burton S. Odelson, of Odelson & Sterk, of Evergreen Park, and
Michael J. Kasper and James P. Nally, both of Chicago, for appellant.
Garrett P. Hoerner, of Becker, Hoerner, Thompson & Ysursa, P.C., of
Belleville, for appellees.
Justices JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Burke,
and Theis concurred in the judgment and opinion.
OPINION
¶1 The question presented by this appeal is whether a candidate for municipal office is
entitled to have his or her name placed on the ballot if the governing election board has
properly calculated and announced the minimum number of valid signatures required by
statute to support the candidate’s nominating petition, but the candidate’s petition falls short
of that legally mandated threshold. The election board in this case determined that Illinois
law requires only substantial compliance with the numerical signature requirement and that
the candidate whose eligibility is being challenged here had come close enough to the
minimum requirement to permit his name to be placed before the voters. On judicial review
of the board’s decision, the circuit and appellate courts affirmed. 2015 IL App (5th) 150028.
We granted leave to appeal. Ill. S. Ct. R. 315 (eff. Jan. 1, 2015). For the reasons that follow,
we reverse the decision of the board and remand to the circuit court with directions.
¶2 BACKGROUND
¶3 Alvin L. Parks, Jr., incumbent mayor of the City of East St. Louis, is seeking reelection in
the April 7, 2015, municipal election. City officials in East St. Louis run for office on a
nonpartisan basis, and the first step in Mayor Parks’ reelection effort was to file nomination
petitions to be included on the ballot for the February 24, 2015, consolidated primary.
¶4 By law, Mayor Parks’ petitions were subject to the same rules set forth in section 10-3 of
the Election Code (10 ILCS 5/10-3 (West 2012)) governing petitions filed by independent
candidates. See 10 ILCS 5/10-3.1 (West 2012). Section 10-3 of the Election Code requires
that such petitions be signed by a minimum number of qualified voters of the relevant
political subdivision. A formula is specified for determining that number. 10 ILCS 5/10-3
(West 2012). Under that formula, nomination petitions for mayoral candidates in the
upcoming East St. Louis election were required to have a minimum of 136 valid signatures.
That figure was correctly calculated by election authorities and properly announced and
publicized.
¶5 Mayor Parks filed his nomination petitions with the East St. Louis Board of Election
Commissioners (Election Board), the governing election authority, in the time specified by
law. His petitions contained a total of 171 signatures, a figure which appeared to give him 35
more than the minimum required. Shortly thereafter, however, Emeka Jackson-Hicks, who is
also a candidate for mayor, filed an objection to Parks’ nomination papers pursuant to section
10-8 of the Election Code (10 ILCS 5/10-8 (West 2012)). Her objection challenged the
validity of some of the signatures and contended that Parks had not, in fact, submitted
sufficient valid signatures to permit his name to appear on the ballot.
¶6 A hearing on Jackson-Hicks’ objection was held by the Election Board on December 10,
2014. At that hearing, the attorney for the Election Board presented evidence that at least 48
of the signatures on Parks’ petitions were invalid, leaving him with no more than 123 valid
signatures. Twelve additional signatures were also questioned on the grounds that those
persons were not actually registered to vote at the time they signed the petition, a
circumstance that would render them ineligible to sign under section 3-1.2 of the Election
Code (10 ILCS 5/3-1.2 (West 2012)). No other objections to the petitions were advanced or
considered.
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¶7 The following day, December 11, 2014, the Election Board issued a written decision
denying Jackson-Hicks’ objection. The decision stated that the objection petition was in the
proper form, that it had been timely filed, and that all required notices had been issued and
served in accordance with statutory requirements. It also concluded that, as Jackson-Hicks
had charged, Parks’ nominating papers had “insufficient signatures as required by law.”
Despite this deficiency, the Election Board held “that there has been substantial compliance
in that 136 signatures are required and [Parks’] nominating papers contain 123 valid
signatures.” Based on this “substantial compliance” theory, the Election Board ordered that
Parks’ name “shall appear on the ballot for election to the office of Mayor of the city of East
St. Louis” at the upcoming consolidated primary election.
¶8 Jackson-Hicks promptly filed a petition for judicial review of the Election Board’s
decision in the circuit court of St. Clair County (10 ILCS 5/10-10.1 (West 2012)), arguing
that because Mayor Parks had failed to submit the minimum number of valid signatures
required by the Election Code, the Election Board should have sustained her objection and
prevented Parks’ name from appearing on the ballot. Following a hearing, the circuit court
rejected Jackson-Hicks’ argument and upheld the Election Board’s decision. In doing so, it
relied on the same theory as the Election Board, namely, that Parks had “substantially
complied” with the statutory signature requirement.
¶9 Jackson-Hicks next sought review from the appellate court. Again she was unsuccessful.
The appellate court agreed that the Election Board had properly denied Jackson-Hicks’
objection to Mayor Parks’ nomination papers, notwithstanding the fact that Parks’ petitions
lacked the minimum number of signatures required by the Election Code, based on the theory
of “substantial compliance.” It therefore affirmed. 2015 IL App (5th) 150028.
¶ 10 The week after the appellate court filed its opinion, as corrected, Jackson-Hicks
petitioned this court for leave to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R.
315 (eff. Jan. 1, 2015)). She also moved that we consider her petition on an expedited basis
and, if we allowed it, that we set an expedited briefing schedule so that the matter could be
resolved prior to the April 7 election. Jackson-Hicks’ motion was granted. We allowed her
petition for leave to appeal, ruled that her petition for leave to appeal would stand as her brief
and set an expedited timetable for filing of the appellees’ brief, a reply brief (if any), and the
record. We also ordered that the case would be heard on the briefs without oral argument.
The appellees’ brief and reply briefs have now been filed, and the matter is ready for a
decision on the merits.
¶ 11 ANALYSIS
¶ 12 As a preliminary matter, Mayor Parks contends we should not reach the merits of
Jackson-Hicks’ appeal because the matter is now moot. This argument is without merit. A
case on appeal becomes moot where the issues presented in the trial court no longer exist
because events subsequent to the filing of the appeal render it impossible for the reviewing
court to grant the complaining party effectual relief. Cinkus v. Village of Stickney Municipal
Officers Electoral Board, 228 Ill. 2d 200, 207-08 (2008). This is not such a case. Although
the time for the scheduled February 24 primary has come and gone and materials submitted
by Mayor Parks indicate that ballots have been printed and absentee voting has begun for the
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April 7 consolidated general election, it remains possible for us to grant effectual relief to
Jackson-Hicks.
¶ 13 East St. Louis operates under the managerial form of municipal government (see 65 ILCS
5/5-1-1 et seq. (West 2012)). In such municipalities, the elections for mayor are nonpartisan.
The primary elections therefore do not determine nominees for particular political parties.
Their purpose, instead, is to pare down the pool of mayoral candidates to a group of four,
with the top four vote-getters remaining in contention and moving on to the general or
consolidated election.1 65 ILCS 5/5-2-18.5 (West 2012).
¶ 14 Including Parks, only three candidates ended up filing nominating petitions for the office
of mayor. There was therefore no need to reduce the number of mayoral candidates through
the primary process. Accordingly, the actual primary for that office did not have to be
conducted and was not held. See 65 ILCS 5/3.1-20-45 (West 2012). Whether Parks’
nomination papers were proper remains significant, however, because one cannot appear on
the ballot as a candidate for municipal office in municipalities operated under the managerial
form of government unless one has first been a candidate for the office at the primary
election. 65 ILCS 5/5-2-18.5 (West 2012). If we determine that Parks’ nominating papers
were insufficient and he did not qualify as a candidate at the primary election stage, his
eligibility to be a candidate at the general election would fail as well.
¶ 15 Preventing Parks’ name from being placed before the voters as a candidate for mayor was
and remains the fundamental purpose of Jackson-Hicks’ challenge. Although we cannot turn
back the clock, the April 7 election has yet to occur, so it remains possible, theoretically at
least, for ballots to be reprinted and electronic voting machines, if there are any, to be
reprogrammed. Moreover, as we have recognized on prior occasions when confronted with
similar time constraints, if it is too late for election officials to remove the name of an
ineligible candidate prior to election day, a court may order election officials to disregard
votes cast for that candidate. See, e.g., Delgado v. Board of Election Commissioners, 224 Ill.
2d 481, 489 (2007); Bryant v. Board of Election Commissioners, 224 Ill. 2d 473, 480 (2007).
¶ 16 That absentee ballots may already have been cast in favor of Mayor Parks is unfortunate,
but absentee voting and difficulty in notifying voters of ballot changes are common and
unavoidable consequences of the narrow time frame in which election contests must be
prosecuted. Mayor Parks has not cited any authority from Illinois or any other jurisdiction
which has held that such considerations are sufficient, standing alone, to foreclose further
judicial review of a timely and procedurally proper election challenge which concludes
before the election cycle has ended. That is hardly surprising. If such circumstances were
sufficient, in themselves, to render an appeal moot, meaningful judicial oversight of the
electoral process would be all but impossible, and we would be powerless to prevent the
election of candidates who failed to meet the requirements of the law.
¶ 17 Mayor Parks makes an alternative argument that:
“[t]o the extent that this Court invokes the public interest exception to the mootness
doctrine [citation], *** any legislative remedy by way of future amendment to
Section 10-3 of the Illinois Election Code would warrant dismissal under the
1
In even-numbered years, the election is called the general election. In odd-numbered years, it is
referred to as the “consolidated election.” 10 ILCS 5/2A-1.1 (West 2012).
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mootness doctrine because such amendment would foreclose the possibility that the
issues presented in the appeal will recur in a future case. Indeed, this Supreme Court
has explained that an appeal is rendered moot, and not falling within the public
interest exception to the mootness doctrine by an amendment to the subject matter
during the pendency of an appeal that forecloses the possibility that the issues
presented in the pendency of the appeal will recur in a future case.”
¶ 18 We dispose of this argument with two brief observations. First, for the reasons we have
just explained, the appeal is not moot. There is therefore no need for us to consider whether
the public interest exception to the mootness doctrine should be invoked. Second, if there is,
in fact, any impending legislation that bears on this appeal, Mayor Parks’ brief gives no
hint—none at all—as to what that legislation is, what it says, or when it might take effect.
Absent such legislation, the point Mayor Parks tries to make is irrelevant.
¶ 19 We turn, then, to the merits of the case. Where, as here, an electoral board’s decision is
challenged in court pursuant to section 10-10.1 of the Election Code (10 ILCS 5/10-10.1
(West 2012)), the proceeding is in the nature of administrative review. When such
proceedings reach our court on appeal, it is the election board’s decision, not the decision of
the circuit or the appellate court, that is before us. Jackson v. Board of Election
Commissioners, 2012 IL 111928, ¶ 46; Goodman v. Ward, 241 Ill. 2d 398, 405 (2011).
¶ 20 The standard of review we apply to an election board’s decision depends on what is in
dispute: the facts, the law, or a mixed question of fact and law. Jackson v. Board of Election
Commissioners, 2012 IL 111928, ¶ 47. In this case, there is no issue as to the facts. The
dispositive question is whether the Election Board was correct when it interpreted the
Election Code to permit the minimum signature requirement for nominating petitions to be
judged based on a theory of “substantial compliance.” Where, as here, historical facts are
admitted or established and the only dispute concerns whether the governing legal provisions
were interpreted correctly by election officials, the case presents a purely legal question for
which our review is de novo, a standard we have characterized as “independent and not
deferential.” (Internal quotation marks omitted.) Goodman v. Ward, 241 Ill. 2d at 406.
¶ 21 When determining how the Election Code should be construed, we employ the same
basic principles of statutory construction applicable to statutes generally. Our primary
objective is to ascertain and give effect to the intent of the legislature. The best indication of
legislative intent is the language employed by the General Assembly. When statutory
language is plain and unambiguous, the statute must be applied as written without resort to
aids of statutory construction (id. at 408), and the court will not read into it exceptions,
conditions, or limitations that the legislature did not express (Maksym v. Board of Election
Commissioners, 242 Ill. 2d 303, 318 (2011)).
¶ 22 As he has throughout these proceedings, Mayor Parks contends that the Election Board
was within its authority to allow his name on the ballot, notwithstanding his failure to obtain
the statutorily required minimum number of signatures, because the statutory signature
requirement is merely directory and not mandatory and substantial compliance with the law’s
requirements will therefore suffice. In addressing this argument, we begin with familiar
principles. The mandatory-directory dichotomy concerns the consequences of failure to
fulfill an obligation, i.e., whether “ ‘the failure to comply with a particular procedural step
will or will not have the effect of invalidating the governmental action to which the
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procedural requirement relates.’ ” (Internal quotation marks omitted.) O’Brien v. White, 219
Ill. 2d 86, 96 (2006) (quoting People v. Robinson, 217 Ill. 2d 43, 51-52 (2005)). Whether a
statute governing elections is mandatory or directory “does not depend upon its form but
upon the legislative intention to be ascertained from a consideration of the entire act, its
nature, its object, and the consequences which would result from construing it one way or the
other. [Citation.]” (Internal quotation marks omitted.) Id. at 96-97. If a statute prescribes a
consequence for failing to obey its provisions, that is a strong indication that the legislature
intended it to be mandatory. Id. at 96.
¶ 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)).
¶ 24 Statutory provisions such as those contained in our Election Code specifying numerical
signature requirements are among those that are regarded as mandatory. See In re Contest of
the Des Moines Municipal Primary Election & General Election, Filed by Wingert, 250
N.W.2d 731, 733 (Iowa 1977). Under the standards articulated in O’Brien, 219 Ill. 2d 86, we
believe that the statutory signature requirements governing this election must likewise be
given a mandatory reading.
¶ 25 The statute governing petitions for nomination of nonpartisan candidates is section 10-3.1
of the Election Code (10 ILCS 5/10-3.1 (West 2012)). It provides, in part, that nonpartisan
petitions are subject to the same provisions of article 10 of the Election Code as those
“relating to independent candidate petition requirements” to the extent those provisions are
“not inconsistent with the requirements of such other statutes or ordinances [creating the
political subdivision or providing the form of government thereof].” 10 ILCS 5/10-3.1 (West
2012). Article 10’s independent candidate petition requirements, in turn, are set forth in
section 10-3 of the Election Code (10 ILCS 5/10-3 (West 2012)).
¶ 26 Section 10-3 begins by stating that “[n]ominations of independent candidates for public
office within any district or political subdivision less than the State, may be made by
nomination papers.” Id. The text of the law then continues by setting out the signature
requirements for such petitions. Specifically, it specifies that the petitions are to be:
“signed in the aggregate for each candidate by qualified voters of such district, or
political subdivision, equaling not less than 5%, nor more than 8% (or 50 more than
the minimum, whichever is greater) of the number of persons, who voted at the next
preceding regular election in such district or political subdivision in which such
district or political subdivision voted as a unit for the election of officers to serve its
respective territorial area. However, whenever the minimum signature requirement
for an independent candidate petition for a district or political subdivision office shall
exceed the minimum number of signatures for an independent candidate petition for
an office to be filled by the voters of the State at large at the next preceding
State-wide general election, such State-wide petition signature requirement shall be
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the minimum for an independent candidate petition for such district or political
subdivision office.” Id.¶ 27 In arguing that the minimum signature requirements of section 10-3 are merely directory,
Mayor Parks relies heavily on the legislature’s use of the word “may” when addressing the
utilization of nomination papers to nominate independent candidates. This reliance is
misplaced. It is true that use of the word “may” is generally regarded as indicating a
permissive or directory reading. Robinson, 217 Ill. 2d at 53. It is also true, however, that
when interpreting a statute, a court must view the statute as a whole, construing words and
phrases in light of other relevant statutory provisions and not in isolation. People v. Perez,
2014 IL 115927, ¶ 9. Applying that principle, it is apparent that “may” does not apply to the
signature requirement, but rather to the more basic question of whether the nomination
process may be utilized by independent candidates to appear on the ballot.
¶ 28 Article 7 of the Election Code (10 ILCS 5/7-1 et seq. (West 2012)), addresses “THE
MAKING OF NOMINATIONS BY POLITICAL PARTIES” and provides a mechanism for
selecting candidates belonging to those parties through petitions for nomination. Article 10,
under which section 10-3 falls, addresses the “MAKING OF NOMINATIONS IN CERTAIN
OTHER CASES,” including minor political parties, independent candidates and nonpartisan
candidates. 10 ILCS 5/10-1 et seq. (West 2012). Specifically, section 10-1 authorizes the use
of a convention, caucus, or meeting to make nominations in certain cases. Section 10-2 sets
up a petition process for forming new political parties and selecting their candidates, a
process which includes the use of petitions. 10 ILCS 5/10-2 (West 2012).2 Section 10-3,
which immediately follows and is the statute involved here, provides that nomination of
independent candidates “may also be made by nomination papers.” 10 ILCS 5/10-3 (West
2012).
¶ 29 When one steps back and views these various provisions together and in sequence, a
statutory framework emerges. Certain procedures to select candidates are available to certain
groups and individuals under specified circumstances. By using the term “may” in section
10-3, the General Assembly was simply indicating that nomination using nomination papers
is a mechanism available with respect to independent candidates.3
¶ 30 That nominations may be made through nominating papers is one thing. The sufficiency
of those nomination papers is quite another. While section 10-3 (10 ILCS 5/10-3 (West
2012)) provides that nominations “may also be made by nomination papers,” it does not say,
and cannot be fairly read to mean, that the minimum number of signatures needed to support
such nomination papers is anything but fixed and definite. Under the statute, the requisite
number is determined according to a mathematical formula. The threshold number computed
2
Portions of this statute have been invalidated by the United States Supreme Court. Norman v.
Reed, 502 U.S. 279, 293 (1992).
3
That aspect of section 10-3 is, of course, irrelevant to the matter at hand. This case involves
nonpartisan candidates for municipal office. There is no need to clarify that those candidates may be
nominated using nomination papers because section 10-3.1 (10 ILCS 5/10-3.1 (West 2012)) mandates
it. It specifically provides that the substantive provisions of section 10-3 “shall apply to nonpartisan
petitions to the extent that they are not inconsistent with the requirements of *** other statutes or
ordinances [creating the municipality or providing the form of government thereof].” 10 ILCS 5/10-3.1
(West 2012).
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using the specified formula is described as a “minimum signature requirement,’ and in order
for candidates to avail themselves of the statutory nomination procedure contained in the
statute, the law specifies that their nominating papers contain valid signatures equal in
number to “not less than” the minimum signature requirement. (Emphases added.) 10 ILCS
5/10-3 (West 2012).
¶ 31 Implicit in the law’s provision that nominations may be made through nomination papers
containing “not less than” the required minimum numbers of signatures is that nominations
may not be made through nomination papers containing a number of signatures which is less
than the minimum required by law. The latter proposition is a corollary of the former. It was
no more necessary for the legislature to explicitly state the consequence of failing to meet its
fixed numerical threshold than it would be in the case of the final election returns. When the
law provides that a certain threshold is required in order to win an election, it is understood
that if one fails to attain the threshold, one loses. Runners-up have no claim to office on a
theory that they came close enough. So it has always been in American electoral politics. So
it remains.
¶ 32 It is beyond dispute that access to a place on the ballot is a substantial right not lightly to
be denied. Bettis v. Marsaglia, 2014 IL 117050, ¶ 28. We must also keep in mind, however,
that the regulation of elections is within the power of the legislature, within constitutional
limitations (People ex rel. Schnackenberg v. Czarnecki, 256 Ill. 320, 326 (1912)), for as the
United States Supreme Court has recognized, “it is beyond question ‘that States may, and
inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce
election- and campaign-related disorder.’ [Citation.]” Clingman v. Beaver, 544 U.S. 581, 593
(2005). If an argument exists that the minimum signature requirements at issue in the case
fail to serve a valid purpose and are beyond the constitutional authority of the legislature to
regulate elections and prevent election- and campaign-related disorder, that argument has not
been advanced in this case. The validity of the law, as written, is unchallenged.
¶ 33 In urging us to uphold the Election Board’s decision, notwithstanding his failure to
comply with the minimum signature requirements specified in the statute, Mayor Parks
contends his nomination papers contained enough valid signatures to serve the underlying
purpose of the law which, he contends, is simply to demonstrate that a candidate has
“initiative and at least a minimal appeal to the voters.” In Parks’ view, that should be enough.
¶ 34 The Mayor’s position is unprecedented, unworkable and contrary to law. Gauging
candidate initiative and voter appeal were no doubt among the policy factors which gave rise
to the legislature’s decision to adopt a minimum signature requirement. What Mayor Parks
fails to properly appreciate is that the power to set the standards for accomplishing those
policy considerations is vested in the General Assembly, not the local election boards or the
courts.
¶ 35 More than a century ago, this court held that “[e]very person has a right to be a candidate
for any office for which he is legally qualified, but if every man might have his name on the
official ballot great inconvenience might result. Therefore no person may have his name
printed on the official ballot unless he has been nominated by a party or by a certain number
of voters.” People ex rel. Schnackenberg v. Czarnecki, 256 Ill. 320, 327 (1912). Through the
clear language of sections 10-3 and 10-3.1 of the Election Code, the General Assembly has
told us precisely what that certain number of voters must be in nonpartisan municipal
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elections. In marked contrast to the standard urged by Parks, which is subjective, uncertain
and changeable on a case-by-case basis, the General Assembly has opted for a mathematical
formula which is precise and definite in its meaning, clear and certain in its application, and
by its nature, excludes any possibility of impermissible political bias. That is the standard the
Election Board was bound to follow. It is the standard we are required to enforce. To adopt
the Mayor’s position instead would require us to disregard the clear, unambiguous and
mandatory language of the statute and graft onto it exceptions and limitations the legislature
did not express. As noted at the outset of this opinion and confirmed by our election law
jurisprudence, that is something the courts may not do.
¶ 36 To be sure, our appellate court has recognized that, 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). That precedent, however, is of no relevance here.
¶ 37 Unlike the foregoing authority, the case before us does not involve a situation where the
candidate met the basic requirements of the Election Code, but did so in a technically
deficient manner. Here, the candidate failed to meet a threshold requirement completely.
While the signature requirement may have been aimed at showing candidate initiative and
minimum voter appeal, showing candidate initiative and minimum voter appeal is not, itself,
the standard. As we have explained, the clear and unambiguous standard adopted by the
General Assembly requires compliance with a specific numerical threshold determined
according to a specific mathematical formula. A candidate either meets that minimum
threshold or does not. There is no close enough.
¶ 38 On two occasions our appellate court has confronted situations where the candidates in an
election cycle have complied with the minimum signature threshold as computed by local
election authorities, only to discover too late that election authorities had miscalculated and
set the requisite number too low. In both cases, Merz v. Volberding, 94 Ill. App. 3d 1111(1981), and Atkinson v. Schelling, 2013 IL App (2d) 130140, the appellate court determined
that under the circumstances, the candidates should be permitted to remain on the ballot. In
both cases, the appellate court relied on principles of estoppel and/or considerations of
substantial compliance to justify their result.
¶ 39 The appellate court in the case before us found this authority highly persuasive. 2015 IL
App (5th) 150028, ¶¶ 24-28. We do not. First, as just discussed, substantial compliance is not
a valid justification for deviating from the clear and unambiguous minimum signature
threshold set by the legislature. Second, putting aside the question of whether estoppel was
even properly invoked against election authorities in those cases (see Vestrup v. Du Page
County Election Comm’n, 335 Ill. App. 3d 156, 166 (2002) (expressly declining to follow
Merz in part because “it failed altogether to acknowledge the specific rules regarding
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estoppel against the State”)), we note that no possible claim of estoppel can be raised in this
case. The minimum signature requirement applicable to the mayoral race here was accurately
computed and properly conveyed to all candidates by the Election Board. Finally, while
Atkinson followed Merz, both the Atkinson court and the appellate court here overlooked that
the Merz court limited its holding to the case at hand, expressly holding that “[f]or future
reference, *** the minimum statutory signature requirement is mandatory and should be
strictly followed.” Merz v. Volberding, 94 Ill. App. 3d at 1118.
¶ 40 We do not see how the law could be otherwise. If the approach urged by Mayor Parks
and adopted by the Election Board were accepted, there 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.
¶ 41 The appellate court refused to consider these implications on the grounds that it was
prohibited from expressing views on matters having only advisory effect. 2015 IL App (5th)
150028, ¶ 33. While it is the decision of the Election Board, not the appellate court, which is
under review, we feel compelled to observe that the appellate court’s analysis is flawed.
Under the circumstances present here, 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. See O’Brien, 219 Ill. 2d at 97.
¶ 42 Under that rubric, and for all of the reasons set forth above, the minimum signature
requirement imposed by section 10-3 of the Election Code (10 ILCS 5/10-3 (West 2012)) is
mandatory and must be followed. In this case, the law required a minimum of 136 valid
signatures. The other candidates met that threshold. Mayor Parks did not. The Election Board
should therefore have granted Jackson-Hicks’ objection, and ruled that Mayor Parks was
ineligible to appear on the ballot for the upcoming East St. Louis municipal election. In light
of this holding, we need not address Jackson-Hicks’ additional argument that the Election
Board’s decision violated the equal protection clause of the Illinois Constitution (Ill. Const.
1970, art. I, § 2). See, e.g., Davis v. City of Chicago, 59 Ill. 2d 439, 443 (1974) (court will
refrain from reaching constitutional question when resolution of that question is not
necessary to the disposition).
¶ 43 CONCLUSION
¶ 44 For the foregoing reasons, the decision of the Election Board denying Jackson-Hicks’
objection to the nominating petitions filed by Parks is reversed, and this cause is remanded to
the circuit court of St. Clair County with instructions to enter judgment: (1) declaring that
Parks’ nominating petitions do not contain the minimum number of valid signatures required
by law, (2) holding that Parks has not qualified to have his name appear on the ballot as a
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candidate for the office of mayor in the April 7, 2015, municipal election, and (3) ordering
that Parks’ name be immediately removed from the ballot for that election. The court’s
judgment shall further provide that if the Election Board receives any ballots cast prior to
removal of Parks’ name, the Election Board shall be required to disregard any votes cast for
Parks when determining the winner of the election for the office of mayor. Our mandate shall
issue forthwith.
¶ 45 Election Board decision reversed.
¶ 46 Cause remanded to the circuit court with directions.
¶ 47 Mandate issued forthwith.
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