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On Jan. 9, the City’s Local Electoral Board, comprised of Mayor Elizabeth Tisdahl, Eighth Ward Alderman Ann Rainey, and City Clerk Rodney Greene, began hearings on Jeff Smith’s objections to the nominating papers of four candidates for Mayor: Gary Gaspard, Steve Hagerty, Alderman Brian Miller (9th Ward), and Alderman Mark Tendam (6th Ward). Mr. Smith filed nominating petitions to run for Mayor on Dec. 19.
While the factual and legal issues are complex, the essence of Mr. Smith’s objections is that each of the four candidates filed his nominating petitions in the Nov. 21-28 time period, rather than the Dec. 12-19 period. Mr. Smith alleges that the candidates filed in the wrong period and that their nominating petitions were flawed in several other respects.
Mr. Smith also argued that a referendum passed by the people of Evanston in 1992 is invalid. The referendum requires that a primary be held if more than two candidates have filed petitions to run for Mayor, and that the top two vote-getters move on to the regular election. If one candidate receives more than 50% of the vote in the primary, then that candidate is deemed the Mayor.
The four other mayoral candidates argued that the proper filing period was Nov. 21-28 under both State law and the 1992 Referendum. They also argued that Mr. Smith filed his objections late, that the issues were already decided by the Electoral Board in a previous matter, and that, in equity, their nominating petitions should stand in light of statements on the City Clerk’s webpage that Nov. 21-28 was a time period in which their nominating petitions could be filed.
After hearing arguments on the issues for more than two hours on Jan. 9, the Local Election Board continued the matter to Jan. 11 for ruling.
On Jan. 11, the Local Electoral Board decided to overrule all of the objections filed by Mr. Smith. In discussing the reasons for their decision, Board members talked about confusion and policies favoring ballot access. Mayor Tisdahl said, “My feeling is that none of the issues raised rise to a level serious enough to deny ballot access to candidates or to the many voters who signed petitions for those candidates.”
The written decision says, “Because we overrule the objections on the basis of ballot access and equity, we need not consider the extraneous issues raised by Smith …”
While the Board decided in this particular case to keep all five Mayoral candidates on the ballot and to move forward with a primary election for the office of Mayor, the decision does not resolve many legal and factual issues that have caused confusion in this election cycle, including what are the proper filing dates for nominating petitions, whether the City’s elections are to be conducted on a “partisan” or “nonpartisan” basis, and what is the impact and status of the 1992 Referendum?
Mayor Tisdahl said, “I believe the Electoral Board should ask the Law Department to work with the City and to work with the City Clerk to answer all questions about the need for a primary and the Referendum, etc. No candidate should need to hire a lawyer or need to be a lawyer to run for public office in the City of Evanston.”
Mr. Smith told the RoundTable he had not yet decided whether he would seek review of the order in a court proceeding.
The Confusion About Filing Dates
Up until about Nov. 23, 2016, the City Clerk’s webpage (which is part of the City’s website) said candidates for Mayor, alderman, and City Clerk were to file nominating petitions during the period Dec. 12-19, 2016.
Whether this was the proper filing period came to a head when Ald. Miller and Tom Suffredin attempted to file nominating petitions to run for Mayor and Sixth Ward Alderman, respectively, on Nov. 22. Ald. Miller told the RoundTable that the Clerk’s Office was initially resistant to accept the filings, but that they were allowed to file.
Ald. Miller said he and his lawyer researched the issue and concluded the proper filing period was Nov. 21-28.
Because the Clerk’s website said the filing period was Dec. 12-19, Ald. Miller said he asked his attorneys to bring this up with the City’s Corporation Counsel to clear up any confusion about the dates. He said his attorneys, prior to Nov. 15, informed Clerk Greene and an attorney in the City’s law department that they believed that the Nov. 21-18 filing period was the correct one and left a voicemail message with Grant Farrar, the head of the City’s Law Department.
The City’s law department says it was precluded by ethical rules from providing an advisory opinion on the issue, and it declined to infringe on the City Clerk’s jurisdiction.
On Nov. 23, the Clerk’s website was changed to say, “Candidates can begin circulating petitions after September 20, 2016, and the 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.”
On that same day, Clerk Greene prepared a memo addressed to the Mayor, City Council Aldermen, and Candidates for the April 4, 2017 Consolidated Election. The memo said, in part, “[T]he State Board of Elections instructed this office to accept petitions from the candidates who file petitions between November 21-28, 2016. The State Board says this is the filing period for candidates for a February 2017 primary election. The State Board advises a February 2017 primary is only needed if more than 4 candidates for an office file petitions.” See sidebar on primaries.
Despite the short notice and the intervening Thanksgiving Day weekend, by the close of business on Nov. 28, four people had filed petitions to run for Mayor, two filed for City Clerk, and 17 for Alderman. Clerk Greene filed his nominating petitions to run for City Clerk on Nov. 28.
Evanston resident William Arndt, who contributed to Ald. Miller’s Mayoral campaign, filed objections to the nominating petitions filed by three people seeking to run for Mayor: Mr. Gaspard, Mr. Hagerty, and Ald. Tendam. The objections alleged that the nominating petitions failed to specify that the candidates were seeking to run in the Feb. 28, 2017, primary election, which Mr. Arndt’s attorneys argued, was a prerequisite to running in the April 4, 2017, general election.
On Dec. 16, Mr. Arndt’s attorney withdrew the objection to Ald. Tendam’s nominating petitions, likely because the nominating petitions stated that Ald. Tendam was seeking to run in the Feb. 28 primary. On Dec. 19, the Local Electoral Board overruled the objections to Mr. Gaspard’s and Mr. Hagerty’s petitions, holding in essence that the nominating petitions were in substantial compliance with the State’s election laws.
Enter a Fifth Candidate
Later in the day on Dec. 19, Mr. Smith filed his nominating petitions to run for Mayor, making him the fifth candidate for Mayor.
On Dec. 23, Clerk Greene announced that there will be a primary election held on Feb. 28, 2017, with respect to the offices of Mayor and Alderman for the Fifth Ward. He said, “Since there are now five candidates for the office of Mayor, and five candidates for the office of Fifth Ward Alderman, a Consolidated Primary will be held on Feb. 28, 2017.”
In a prepared statement Clerk Greene said the five candidates for Mayor who are in the “uncertified ballot listing” for the Feb. 28 primary are Mr. Gaspard, Mr. Hagerty, Ald. Miller, Mr. Smith, and Mr. Tendam.
Clerk Greene told the RoundTable that Evanston holds its primaries on a “nonpartisan” basis and that the primary was being held pursuant to State statute [65 ILCS 3.1-20-45] which provides that a primary will be held when more than four persons have filed nominating petitions to run for an office.
In its Dec. 19 decision, the Local Electoral Board relied on 65 ILCS 3.1-20-45, which by its terms only applies to municipalities that conduct “nonpartisan primary and general elections.”
When asked if the primary was being held under the 1992 Referendum, Clerk Green said, “No.” He added, “It came out of nowhere.”
A New Twist
And then in a new twist, on Dec. 27, Mr. Smith filed objections to the nominating petitions of the other four Mayoral candidates.
At the heart of Mr. Smith’s argument is whether Evanston elects its Mayor, Aldermen, and City Clerk in “partisan” or in “nonpartisan” elections.
There has been a longstanding assumption by many people that Evanston conducts its elections on a “nonpartisan” basis, said Mr. Smith, but he added that assumption is wrong.
If the elections are “partisan,” people may run as candidates of a political party, as independents, or as write-in candidates, said Mr. Smith. People seeking to be the nominee of a political party file their petitions in the November time period and run in the Feb. 28 primary. Candidates seeking to run as an independent do not participate in a primary and file their nominating petitions in the December time period to run in the April 4 election, he said.
No one has run as the nominee of a political party in an election for an Evanston office, probably since before World War II, said Mr. Smith in a website posting.
In contrast, if the elections are “nonpartisan,” all candidates are required to file their nominating papers in the November time period in anticipation that there might be a primary in February to narrow the number of candidates who will run in the general election.
Mr. Smith said there is no evidence that Evanston adopted either a referendum or ordinance providing that it would hold its elections on a “nonpartisan” basis. He said he submitted two Freedom of Information Act requests to the City asking for any such ordinance or referendum and was told by the City Clerk’s Office that it was “too burdensome” to respond.
Mr. Smith argued that there is no record that the City adopted the “nonpartisan” form of election; and the “default” method under the Election Code is the “partisan” form of election.
Because no one sought to run as the nominee of a political party, Mr. Smith said the only other option to get on the ballot under the “partisan” form of election was to file as an “independent” candidate in the Dec. 12-19 filing period. Mr. Smith argued that the other candidates for Mayor failed to do that, failed to comply with other requirements, and should be excluded from the ballot.
Ald. Miller countered Mr. Smith’s argument, saying Evanston had adopted a Council/Manager form of government in a 1952 referendum (one in which a City Manager manages the City). Under that form of government, the City must hold a primary if more than four candidates file, he said, and candidates must file their nominating petitions in the November time period.
Mr. Smith disagreed.
After Mr. Smith filed his objections, the RoundTable asked Scott Munzel, General Counsel for the Illinois State Board of Elections, for his views. Mr. Munzel told the RoundTable the elections of a municipality that has adopted a managerial form of government “are inherently nonpartisan.” When asked, Mr. Munzel said he could not point to any express statutory language supporting his view, but said it was inherent in the structure of the election laws.
The Import of the 1992 Referendum
Even if a primary is not required under the State’s election laws, Ald. Miller argued, a primary is required under the 1992 Referendum. The filing period to run in the primary was Nov. 21-28, he said.
Article 7 of the Illinois Constitution, 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.”
In the 1992 Referendum, the people of Evanston decided that if more than two people filed to run as Mayor, “a primary shall be held” and the two candidates receiving the highest number of votes would run in the regular election. However, if one candidate receives more than 50% of the vote, then that candidate will be the Mayor. See sidebar, page 11.
Ald. Miller argued that that the voters of Evanston had the power to “specify how elections are to be conducted,” under the City’s home-rule powers. He added, “The referendum is simple, if two or more candidates for mayor file, you must have a primary. For us to do anything else but apply the results of that referendum is disregarding the will of the voters of Evanston.”
Mr. Smith challenged the validity of the 1992 Referendum on numerous grounds.
He argued that City Council did not incorporate the referendum into Evanston’s Code and that City Council repealed the 1992 Referendum, when it recently recodified its code. He cited this language: “All general ordinances of the City passed prior to the adoption of this City Code are hereby repealed, except … ordinances relating to election laws,” and language that the City “shall follow the state Election Code.”
At the Jan. 9 meeting, Ald. Rainey asked if City Council repealed the referendum through that recodification. Ald. Miller said, “No.” Ed Mullen, Ald. Tendam’s attorney, said that City Council lacked authority to repeal a referendum, which is adopted by the people of Evanston. James Nally, attorney for Mr. Hagerty, likewise told the RoundTable that a City Council could not repeal action taken by a referendum.
Mr. Smith also said that in 2009, four candidates filed nominating petitions to run for Mayor, and a primary was not held under the 1992 Referendum. He argued that City officials probably decided it was invalid. He did not offer any evidence on the issue.
Ald. Rainey said, “I think people forgot about it.”
Ald. Miller said, “We already applied it once [in 1992]. The fact we forgot about it, doesn’t mean it doesn’t apply. … Most importantly it was passed by the vote of Evanston. This body must apply the will of the people.”
Mr. Smith also argued that the referendum was not self-executing, that it is vague, and preempted by State statutes, citing several cases.
Ald. Miller responded, citing an Illinois Supreme Court decision issued last week.
The Timing and the Equities
The four Mayoral candidates whose nominating petitions were challenged raised other issues, including that Mr. Smith failed to file his objections in a timely manner, and that the Electoral Board held in a prior proceeding that the nominating petitions of Mr. Gaspard, Mr. Hagerty, and Ald. Tendam substantially complied with election laws. (Ald. Miller’s petitions were not challenged in that proceeding.)
Mr. Mullen argued that the Clerk’s website stated the filing dates were Nov. 21-28, and that the candidates could reasonably rely on those dates in filing their nominating petitions. He argued that under principles of equitable estoppel, Mr. Smith’s objections should be denied.
The Feb. 28 Primary
The Local Election Board did not resolve the legal or factual issues about the proper filing period, whether Evanston holds its elections on a “partisan” or “nonpartisan” basis, or about the effect of the 1992 Referendum.
In this particular case, though, the Board decided that the five Mayoral candidates will be on the ballot of the Feb. 28 primary. City Clerk Greene said the County Clerk’s Office will decide the order in which the candidates will appear on the ballot.
Filing to Run in Primaries
Section 3.1-20-45 of the Illinois Municipal Code, 65 ILCS 3.1-20-45, applies to a city “that elects municipal officers at nonpartisan primary and general elections.” In nonpartisan elections, candidates are not permitted to run as nominees of a political party, but are placed on the ballot without stating any affiliation to a political party. Section 3.1-20-45 provides that in nonpartisan elections a primary will not be held unless more than four people are seeking to be nominated for the same office.
Where a primary election is a possibility – for example, where one will be held only if more than four candidates file for the same office – the Illinois Supreme Court has held that a candidate must file nominating papers to run in the primary. The Court held this is required even if it turns out that a primary is not ultimately necessary because not more than four candidates file to run for the same office. Jackson-Hicks v. East St. Louis Board of Local Commissioners (2015).
The rationale is that candidates must file in the timetable required for primaries to determine if a primary will be needed and to allow time to resolve objections to nominating petitions before it becomes necessary to prepare the ballots for the primary.
The 1992 Referendum Question
In 1992 Evanston voters voted yes to the following referendum question: “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?”