|12/14/2016 2:48:00 PM|
Editorial: Confusion Over Filing Dates Mars the Election Process
The posting of different time periods in which to file nominating petitions for mayor, alderman, and City Clerk in the upcoming elections caused confusion and left many candidates for those offices scrambling to meet a Nov. 28 deadline.
Until about Nov. 23, the Clerk’s webpage on the City of Evanston website said candidates were to file nominating petitions between Dec. 12 and 19, 2016. On Nov. 23, the webpage said a new filing period was Nov. 21-28, 2016.
If candidates fail to file in the proper time period, their nominating petitions are subject to challenge, and they may be kept off the ballot.
The issue appears to have come to a head when one Mayoral candidate and one aldermanic candidate sought to file their petitions on Nov. 22. The Clerk’s Office was initially resistant, but the State Board of Elections told the Clerk to accept petitions filed in the Nov. 21-28 time period.
On Nov. 23, the City Clerk changed his website to say, “[T]he filing period begins November 21- 28, 2016. All petitions will be accepted up to and including December 19th as the last day to receive your petitions.” Whether the Clerk has authority to accept nominating petitions during a period outside the proper statutory period is questionable.
The RoundTable asked the General Counsel for the Illinois State Board of Elections, about the proper filing dates for candidates seeking mayoral, alderman or clerk positions in Evanston. The General Counsel told the RoundTable that the “typical” filing period for a council/manager form of government, like Evanston’s, is Nov. 21-28, 2016. He said that was the filing period unless Evanston voters approved a referendum in which changes were made in the election process, such as eliminating “the possibility” of holding a primary election.
The issue as framed by the General Counsel is whether Evanston voters approved a referendum that eliminated “the possibility” of holding a primary. We have asked the City Clerk and the City’s Law Department for information about any such referendum and have been provided nothing from either one.
These issues could have been addressed by the Clerk and the City’s Law Department well before the Nov. 21-28 filing period. We have been told that the attorney for two candidates informed the City Clerk and an attorney in the City’s Law Department that they believed that the Nov. 21-28 filing period was the correct one and left a voice-mail message with the City’s lead attorney. The City’s Law Department is the primary legal counsel to elected City officials, including the City Clerk.
What happened? What follow-up was there? If there was a referendum “eliminating the possibility” of a referendum, where is it?
Rather than eliminating the possibility of a referendum, it appears that a referendum was passed in 1992 expressly requiring that 1) the Mayor of Evanston be elected in a primary election, and 2) that a primary be held if more than two candidates sought the office.
On Aug. 24, 1992, the City Council decided to place a binding referendum on the November 1992 General Election Ballot. The question approved by Council, by an 11-5 vote, was, “Shall the Mayor of the City of Evanston be elected in the following manner commencing with the election to be held in 1993 and thereafter: If more than two candidates for Mayor shall have filed for election, a primary shall be held and the two candidates receiving the highest number of votes shall stand for election in the Regular Election, Except if one candidate shall receive more than fifty percent (50%) of the votes cast at the primary, that candidate shall have been elected Mayor for a term commencing the first City Council meeting after the Regular Election?”
A Voters Guide included in the Oct. 29, 1992 issue of the Evanston Review indicates that this question was placed on the ballot for the Nov. 3, 1992 election; and a subsequent newspaper account indicates that it passed.
While a State statute (65 ILCS 5/3.1-20-45) was enacted in 2007 that provides that a primary need not be held “when not more than 4 persons to be nominated for each office have timely filed valid nominating papers seeking nomination for the election to that office,” it is questionable whether it preempts Evanston’s home rule powers as provided in Section 6(f) and (i) of the Illinois Constitution. The City's Law Department must determine whether the referendum stands and thus governs the upcoming mayoral election.
At the meeting of the Election Board on Dec. 13, Mayor Elizabeth Tisdahl, the chair, said the Election Board members will follow applicable laws. She added, though, “I note that Evanston has a long tradition of recognizing and promoting election access. The City traditionally believes in voter access and believes in candidate access to the ballot. … We will continue to recognize Evanston’s core value that promotes ballot access.”
To ensure and promote ballot access, it is essential that candidates be provided in clear and certain terms the dates for filing nominating petitions.
They should not be forced to scramble over a Thanksgiving weekend to gather signatures on their nominating petitions; they should not be forced to hire attorneys to advise them on the correct filing dates; and they should not be put in a position where they have to defend against challenges to their petitions because of the confusion about the proper filing dates.
We urge City Council to look into why this happened, why no action was taken by the City Clerk and the City’s Law Department after they were told the filing dates on the Clerk’s website were wrong, and what needs to be done to ensure this never happens again.
Posted: Sunday, December 18, 2016
RoundTable Editorial Comment
We appreciate Jeff Smith’s comments, which are always well-researched and thoughtful. They and the Q and A that he prepared show how complex an issue this is. We are offering a few quotations of holdings from the Illinois Supreme Court for further thought, and again suggest that it would be helpful if City Council retained special counsel to opine on the proper filing dates for candidates for Mayor, alderman, and City Clerk. We suggest this not as a means to evaluate any objections to nominating petitions that have been filed for the upcoming elections in 2017, but as a way to assist people who may wish to run for office in the future. In addition, we continue to urge City Council to retain special counsel to determine whether the City’s 1992 referendum regarding Mayoral elections stands and whether it governs the upcoming Mayoral election.
As to the Referendum and Home Rule Powers:
As stated in the editorial, Evanston voters passed a referendum in 1992 that a primary election would be held for mayor if more than two candidates were seeking election for that office.
The Illinois Constitution, Art. VII Section 6(f), provides, “A home rule municipality shall have the power to provide for its officers, their manner of selection and terms of office only as approved by referendum or as otherwise authorized by law.”
The Constitution thus empowers Evanston, as a home rule municipality, to decide on the manner of selection of its mayor through a referendum.
In terms of determining whether Evanston’s home rule powers are preempted by a State statute, Art. VII, Sections 6(h) and (i) of the Constitution provide:
”(h) The General Assembly may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit other than a taxing power or a power or function specified in subsection (l) of this Section.
“(i) Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State's exercise to be exclusive.”
The Illinois Supreme Court recently discussed these provisions in Palm v 2800 Lake Shore Drive Corp. (2013). The Illinois Supreme Court said, “Home rule is based on the assumption that municipalities should be allowed to address problems with solutions tailored to their local needs. Schillerstrom Homes, Inc. v. City of Naperville, 198 Ill. 2d 281, 286 (2001). The home rule provisions of the 1970 Illinois Constitution were designed to alter drastically the relationship between our local and state governments. City of Chicago v. Roman, 184 Ill. 2d 504, 512 (1998). …
“The General Assembly may, however, preempt the exercise of a municipality’s home rule powers by expressly limiting that authority. Schillerstrom Homes, 198 Ill. 2d at 287 Scadron, 153 Ill. 2d at 185-86. Under article VII, section 6(h), the General Assembly “may provide specifically by law for the exclusive exercise by the State of any power or function of a home rule unit.” Ill. Const. 1970, art. VII, § 6(h). If the legislature intends to limit or deny the exercise of home rule powers, the statute must contain an express statement to that effect. City of Evanston v. Create, Inc., 85 Ill. 2d 101, 108 (1981) (citing Stryker v. Village of Oak Park, 62 Ill. 2d 523, 528 (1976)). If the legislature does not expressly limit or deny home rule authority, a municipal ordinance and a state statute may operate concurrently as provided in article VII, section 6(i):
“Home rule units may exercise and perform concurrently with the State any power or function of a home rule unit to the extent that the General Assembly by law does not specifically limit the concurrent exercise or specifically declare the State’s exercise to be exclusive.” Ill. Const. 1970, art. VII, § 6(i).
“Thus, the Illinois Constitution provides home rule units with the same powers as the sovereign, except when those powers are limited by the General Assembly. Roman, 184 Ill. -6- 2d at 513 (citing Triple A Services, Inc. v. Rice, 131 Ill. 2d 217, 230 (1989)). Under section 6(i), home rule units may continue to regulate activities even if the state has also regulated those activities. Schillerstrom Homes, 198 Ill. 2d at 287-88. To restrict the concurrent exercise of home rule power, the General Assembly must enact a law specifically stating home rule authority is limited. Scadron, 153 Ill. 2d at 185-86.”
The Court further noted that the section 7 of the Statute on Statutes (5 ILCS 70/7, provides, “No law enacted after January 12, 1977, denies or limits any power or function of a home rule unit, pursuant to paragraphs (g), (h), (i), (j), or (k) of section 6 of Article VII of the Illinois Constitution, unless there is specific language limiting or denying the power or function and the language specifically sets forth in what manner and to what extent it is a limitation on or denial of the power or function of a home rule unit.”
We are not aware of any statutory provision that specifically limits the power of home rule municipalities to require primaries for the office of mayor if three persons seek to run for that office, or any such statutory provision that was adopted in accordance with the Statute of Statutes and with the required three-fifths vote. But there may be something out there we are not aware of, and we are not expressing an opinion on this issue. Instead, as in the editorial, we urge City Council to retain special counsel to opine on whether the 1992 referendum stands.
The Issue of Whether Evanston Elects Its Mayor and Alderman on a Nonpartisan Basis:
Evanston voters adopted a referendum adopting a managerial form of government.
In Jackson-Hicks v. East St. Louis Board of Election Commissioners (2015) the Illinois Supreme Court said, “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).
”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.”
In deciding what are the proper filing dates for persons seeking the office for mayor, alderman, and city clerk in Evanston in the future, the Supreme Court’s decision in Jackson-Hicks should be considered.
Posted: Friday, December 16, 2016
I agree with the spirit of this editorial, but some assumptions may be incorrect.
The Ill. Constitution says that a home rule unit can change the way it selects officers only as "authorized by law." Home rule units are also limited in their powers where the General Assembly by law limits the concurrent exercise or
specifically declares the State's exercise to be exclusive.
The General Assembly has said that the Election Code is the exclusive authority on how candidates, including municipal officers, are nominated that Code has primacy over the state Municipal Code and any inconsistent municipal law. 10 ILCS 5/2A-1(a) 10 ILCS 5/7-1 1985 Op. Atty. Gen. (85-017). Plus, Evanston's own law says it follows the state law.
The 1992 referendum was inconsistent with state election law on a couple grounds and doesn't make internal sense. It's not hard to see why its scheme wasn't used in 2009. It would be weird to now make it "undead."
The four-or-more rule only is applicable if Evanston had become a city that officially bans candidates from running on party label or as independents. Evanston never did that. I've put together an FAQ on this at the CSNA site, centralstreetneighbors.com. See http://centralstreetneighbors.com/node/1415
Finally, perhaps candidates should not be "forced" to hire attorneys, but because of the patchwork of Illinois laws, some of which were put in place long ago to preserve existing power and frustrate newbies, the State Board of Elections and anyone familiar with elections strongly counsel candidates to have their filings reviewed by their own lawyers, and their election calendar certain, well in advance of circulation. Neither the SBE nor the county or city Clerks offer legal advice.
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