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                                     Appellate Court                        Date: 2016.10.21
                                                                            10:56:40 -05'00'




                 Rudd v. Lake County Electoral Board, 2016 IL App (2d) 160649



Appellate Court          THOMAS A. RUDD, Petitioner-Appellant, v. THE LAKE COUNTY
Caption                  ELECTORAL BOARD and Its Members, CARLA N. WYCKOFF,
                         Lake County Clerk and Board Chairperson, MICHAEL G.
                         NERHEIM, Lake County State’s Attorney and Board Member, and
                         His Designee KAREN D. FOX, KEITH S. BRIN, Lake County
                         Circuit Court Clerk and Board Member, and His Designee JENNIFER
                         RATHUNDE; and MICHAEL P. DONNENWIRTH and KEITH E.
                         TURNER, Objectors, Respondents-Appellees.


District & No.           Second District
                         Docket No. 2-16-0649


Filed                    August 31, 2016


Decision Under           Appeal from the Circuit Court of Lake County, No. 16-MR-1339; the
Review                   Hon. Diane E. Winter, Judge, presiding.


Judgment                 Affirmed.


Counsel on               Ross D. Secler, of Ross D. Secler & Associates, and Courtney C.
Appeal                   Nottage, of Hinshaw & Culbertson LLP, both of Chicago, for
                         appellant.

                         Michael G. Nerheim, of Waukegan (Joy C. Fitzgerald, Assistant
                         State’s Attorney, of counsel), for appellee Lake County Officers
                         Electoral Board.

                         Odelson & Sterk, Ltd., of Evergreen Park (Burton S. Odelson and
                         Mary Ryan Norwell, of counsel), for appellees Michael P.
                         Donnenwirth and Keith E. Turner.
                               Lisa Madigan, Attorney General, of Chicago (David L. Franklin,
                               Solicitor General, of counsel), for other appellees.



     Panel                     JUSTICE HUTCHINSON delivered the judgment of the court, with
                               opinion.
                               Justices Birkett and Spence concurred in the judgment and opinion.


                                                 OPINION

¶1          Dr. Thomas Rudd appeals from an order of the circuit court refusing to grant him ballot
       position as an independent candidate for the office of Lake County Coroner. Rudd sued to
       overturn the decision of the Lake County Electoral Board, which found that Rudd was
       ineligible to seek office as an independent candidate in the current election cycle. The parties
       tell us that September 1, 2016, is the last day to print ballots and absentee ballots, so, with that
       date looming, we expedited this appeal.
¶2          Rudd is the incumbent Lake County Coroner. In March 2012, he won the Democratic
       primary, and, in November 2012, he defeated his Republican opponent in the general election
       to win a four-year term as county coroner. In November 2015, Rudd filed his nominating
       papers for the March 2016 primary for another term and for Democratic precinct
       committeeman for the area near his home, in northern Lake Forest. In both of his candidacy
       statements, Rudd averred that he was “a qualified Primary voter of the Democratic Party.”
       Rudd’s nominating papers for the coroner’s race drew an objection for improper certification.
       Rudd did not contest the objection and instead withdrew from the Democratic primary for
       coroner. The following month, Rudd also withdrew from the primary for Democratic precinct
       committeeman. As a result, Rudd did not appear on the ballot in Lake County’s March 2016
       primary.
¶3          For context, we note that in Illinois, a candidate may run for office with an established
       political party, with a newly formed political party, as an independent, or as a write-in.
       Currently, the only two established, statewide political parties are the Democratic and
       Republican parties (see https://www.elections.il.gov/votinginformation/partyofficials.aspx
       (last visited Aug. 30, 2016, as were all other websites in this opinion)), and thus there are only
       two primary elections. Established party candidates must file to run generally at the end of
       November before the March primary (between 113 and 106 days before the primary (10 ILCS
       5/7-12 (West 2012))), while independents and new party candidates must file circa the end of
       June after the primary (between 141 and 134 days before the general election (10 ILCS 5/10-6
       (West 2012))). Illinois has an open primary system, which means that voters do not have to
       register with their party affiliation and may vote in either party’s primary. Voters, however,
       must choose which party’s ballot they will vote in the primary, and whichever ballot they
       choose is a matter of public record because it is considered a declaration of the voter’s current
       party affiliation.



                                                    -2-
¶4       Rudd ultimately did not vote in the March 2016 primary. Rudd’s former deputy coroner,
     Michael Donnenwirth, won the Democratic primary (he was unopposed) and is now that
     party’s nominee for county coroner.
¶5       On June 27, 2016, Rudd filed nominating papers to run as an independent candidate for
     county coroner. Donnenwirth (and another individual, but we can refer to both collectively as
     Donnenwirth) objected to Rudd’s nominating papers on two grounds. First, Donnenwirth
     claimed that Rudd’s signature pages were not consecutively paginated. See 10 ILCS 5/10-4
     (West 2012); see also Wollan v. Jacoby, 274 Ill. App. 3d 388, 394 (1995) (noting that the
     consecutive pagination requirement prevents tampering). The second basis for Donnenwirth’s
     objection was that, because Rudd had originally filed nominating papers for the Democratic
     primary, he was ineligible under section 7-43 of the Election Code (10 ILCS 5/7-43 (West
     2012)) to run as an independent candidate for any office in the November 2016 general
     election.
¶6       Enacted in 2012 (see Pub. Act 97-681, § 5 (eff. Mar. 30, 2012)), section 7-43 sets forth
     what is known as a no-party-switching rule, or as a disaffiliation/disqualification requirement.
     It provides:
                 “A person (i) who filed a statement of candidacy for a partisan office as a qualified
             primary voter of an established political party or (ii) who voted the ballot of an
             established political party at a general primary election may not file a statement of
             candidacy as a candidate of a different established political party or as an independent
             candidate for a partisan office to be filled at the general election immediately following
             the general primary for which the person filed the statement or voted the ballot. A
             person may file a statement of candidacy for a partisan office as a qualified primary
             voter of an established political party regardless of any prior filing of candidacy for a
             partisan office or voting the ballot of an established political party at any prior
             election.” 10 ILCS 5/7-43 (West 2012).
     As the United States Supreme Court noted in Storer v. Brown, 415 U.S. 724 (1974):
             “[A disqualification law] protects the direct primary process by refusing to recognize
             independent candidates who do not make early plans to leave a party and take the
             alternative course to the ballot. It works against independent candidacies prompted by
             short-range political goals, pique, or personal quarrel. It is also a substantial barrier to a
             party fielding an ‘independent’ candidate to capture and bleed off votes in the general
             election that might well go to another party.” Id. at 735.
     We will revisit the decision in Storer later in this opinion.
¶7       The Electoral Board held a hearing at which both Rudd and Donnenwirth presented
     evidence and argument. The following day, the Board issued a 20-page written decision. As to
     Donnenwirth’s first objection, Rudd’s “nominating petition contained in excess of 1,400 pages
     [of signatures],” the Board wrote, “of which approximately 20 were not numbered precisely
     and/or consecutively.” Accordingly, the Board found that Rudd’s nominating papers were
     sufficient and overruled Donnenwirth’s first objection. See King v. Justice Party, 284 Ill. App.
     3d 886, 890 (1996) (accepting substantial compliance with pagination requirements).
¶8       The Board however sustained Donnenwirth’s second objection. It found that, pursuant to
     section 7-43, Rudd was ineligible to stand for office as an independent candidate in the
     November 2016 election. Accordingly, the Board denied Rudd a position on the printed ballot.


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       Rudd had also argued to the Board that the disqualification statute was unconstitutional, but the
       Board (properly) refused to consider the issue. See Bryant v. Board of Election
       Commissioners, 224 Ill. 2d 473, 476 (2007) (holding that electoral boards have no authority to
       consider the constitutionality of a statute). Rudd promptly sought judicial review of the
       Board’s administrative decision in the circuit court. See 735 ILCS 5/3-101 et seq. (West 2012).
       The circuit court affirmed the Board’s decision, and Rudd has appealed to us. Since the facts
       are not in dispute, we review the Board’s underlying decision de novo. Jackson-Hicks v. East
       St. Louis Board of Election Commissioners, 2015 IL 118929, ¶ 20.
¶9         Rudd presses two contentions on appeal. The first is that section 7-43, the disqualification
       statute (10 ILCS 5/7-43 (West 2012)), does not apply because Rudd, in his own opinion,
       successfully “disaffiliated” from the Democratic Party within the current election cycle. Rudd
       notes that “[n]ot only did [he] take the affirmative step of withdrawing” his Democratic
       primary candidacy for both coroner and precinct committeeman, “he also voluntarily chose not
       to vote in the 2016 March primary, and made it known publicly that he was going to run as an
       Independent prior to the primary.” He directs us to a newspaper article titled, “Rudd Plans
       Independent Run for Coroner.” Steve Sadin, Rudd Plans Independent Run for Coroner, Daily
       North Shore, Jan. 12, 2016, http://jwcdaily.com/2016/01/12/dr-thomas-rudd-plans-
       independent-run-for-lake-county-coroner/.
¶ 10       Rudd’s argument overlooks that his withdrawal from the Democratic primary is a nonevent
       under section 7-43. The Election Code elsewhere provides that the names of withdrawn
       candidates “shall [not] be certified or printed on the primary ballot” (10 ILCS 5/7-12(9) (West
       2012)), but that section, as the Board noted, does not require election authorities to treat a
       candidate as though he or she had never sought office as a member of an established political
       party in the same election cycle.1 It is true, as Rudd notes, that a venerable legal dictionary
       defines of the word “withdraw” as “[t]o take back” and “[t]o retract” (Black’s Law Dictionary
       (10th ed. 2014)) and so, Rudd is correct (at least, in a sense) when he says that his withdrawal
       from the March 2016 primary “nullified, ab initio” the effect of his nominating papers. But
       Rudd means more by this. He argues that by withdrawing from the Democratic primary, he
       effectively erased the fact that he ever filed as a Democratic candidate in the first place. We
       disagree.
¶ 11       The fact of Rudd’s earlier established-party candidacy in this election cycle simply is not
       Rudd’s to “take back.” Once Rudd filed his nominating papers, his sworn statement of
       candidacy and his sworn statement of party affiliation were matters of public record, precisely
       because Rudd had publicly expressed them. See generally People v. Perez, 2014 IL 115927,
       ¶ 23 (citing People ex rel. Schwartz v. Fagerholm, 17 Ill. 2d 131, 137 (1959)); 735 ILCS
       5/1-109 (West 2012); see also Morrison v. Colley, 467 F.3d 503, 510 (6th Cir. 2006) (stating
       that a “[candidate] cannot complain if his own *** express statement of his party affiliation is
       considered and used *** against him”). And even though Rudd did not receive campaign
       contributions as a Democratic candidate in this election cycle (see
       https://www.elections.il.gov/CampaignDisclosure/ContributionsSearchByCandidates.aspx),

           1
            In an argument raised for the first time on appeal, Rudd’s relies on a provision in the Election Code
       for the cancellation of cumulative nominating papers (see 10 ILCS 5/7-12(11) (West 2012)), but
       Rudd’s reliance on that provision is unpersuasive because he never sought to timely cancel his initial
       Democratic nominating papers; instead, he withdrew them (10 ILCS 5/7-12(9) (West 2012)).

                                                       -4-
       it would not be unreasonable to think that voters in the general election would come to Rudd’s
       name on the ballot—an incumbent Democrat, no less—and think, “Wait, Rudd… Isn’t he a
       Democrat?” After all, see, e.g., Russell Lissau, Lake County Board, State Races Emerge on
       First Day of Filing, The Daily Herald, Nov. 23, 2015, http://www.dailyherald.com/
       article/20151123/news/151129646/ (noting that Rudd, “a Democrat in his first term who is
       seeking re-election,” was “the first candidate in line” to file his nominating papers at the
       clerk’s office). The disqualification statute is designed to, among other things, prevent such
       confusion. See Storer, 415 U.S. at 735.
¶ 12        That Rudd withdrew from and ultimately did not vote in the March 2016 primary is of no
       significance under section 7-43. The relevant portion of the statute makes this plain enough:
                   “A person *** who filed a statement of candidacy for a partisan office as a qualified
               primary voter of an established political party *** may not file a statement of candidacy
               *** as an independent candidate for a partisan office to be filled at the [upcoming]
               general election ***.” (Emphases added.) 10 ILCS 5/7-43 (West 2012).
       Essentially, Rudd asks us to read (or to force the Board to read) an exception into section 7-43
       for established-party candidates who have withdrawn from the primaries. This we cannot do.
       Our task is to apply the statute as it is written (Jackson-Hicks, 2015 IL 118929, ¶ 21; Maksym
       v. Board of Election Commissioners, 242 Ill. 2d 303, 318 (2011)), and it currently contains no
       such exception, regardless of whether the former established-party candidate voted in the
       primary. Similarly, we have no trouble rejecting Rudd’s reliance on dicta in Fleming v. State
       Board of Elections, 40 Ill. App. 3d 695 (1976), dicta that merely speculated in the most general
       terms about whether a candidate’s withdrawal from a party primary was tantamount to
       complete disaffiliation. Fleming was based on a version of the Election Code that was
       significantly different, and some 36 years older, than the one we have considered today. The
       Board correctly considered and applied the Election Code when it held that section 7-43
       disqualified Rudd’s independent candidacy.
¶ 13        Rudd’s second contention is that section 7-43 violates his rights to equal protection under
       the law and to free speech under the federal and state constitutions. U.S. Const., amends. I,
       XIV; Ill. Const. 1970, art. I, §§ 2, 4. We apply the same standards under both constitutions.
       Nevitt v. Langfelder, 157 Ill. 2d 116, 124 (1993). All statutes carry a strong presumption of
       constitutionality, and to overcome the presumption, the party challenging the statute must
       clearly establish that it violates the constitution. Bridges v. State Board of Elections, 222 Ill. 2d
       482, 489 (2006).
¶ 14        With respect to equal protection, Rudd notes that while section 7-43 bars him from running
       as an independent or as a candidate of another established party in the current election cycle,
       the statute draws no similar prohibition against the candidates of a “new political party.” (Both
       independents and new-party candidates file within the same time frame, in June, after the
       primaries. See 10 ILCS 5/10-6 (West 2012).) Accordingly, Rudd argues that, because section
       7-43 bars his independent candidacy but not his theoretical new-party candidacy, an equal
       protection violation is manifest.
¶ 15        The argument need not detain us for long. Equal protection requires that the law treat
       similarly situated individuals in a similar fashion, but in order for individuals to be similarly
       situated, they must be alike in all relevant respects. In re Derrico G., 2014 IL 114463, ¶ 92
       (citing Nordlinger v. Hahn, 505 U.S. 1, 10 (1992)). Can it be said that the candidate of a new
       political party, which is a fundamentally partisan endeavor, is similarly situated with an

                                                     -5-
       independent candidate? In a word, no. Though Rudd’s argument suggests the two are fungible,
       “the political party and the independent candidate approaches to political activity are entirely
       different.” Storer, 415 U.S. at 745; see also Stevenson v. State Board of Elections, 638 F. Supp.
       547, 554 (N.D. Ill. 1986). A new political party generally “contemplates [an] *** ongoing
       [political] organization.” Storer, 415 U.S. at 745. Under the Election Code, for example, a new
       party must have officers, who are authorized to fill vacancies (10 ILCS 5/10-5 (West 2012)),
       and must slate candidates “for all offices” in its geographic area of operation (10 ILCS 5/10-2
       (West 2012))—though one court recently found the latter requirement unconstitutional. See
       Libertarian Party of Illinois v. Illinois State Board of Elections, 164 F. Supp. 3d 1023 (N.D. Ill.
       2016), appeal pending, No. 16-1775 (7th Cir.); cf. Stevenson v. State Board of Elections, 794
       F.2d 1176, 1179-80 (7th Cir. 1986) (Easterbrook, J., concurring). An independent candidate on
       the other hand is, by definition, unaffiliated and nonpartisan, and can “campaign alone without
       the necessity of establishing a new political organization.” Stevenson, 638 F. Supp. at 554.
¶ 16       Overall, the distinction between the necessarily affiliated and the necessarily unaffiliated,
       suffices for us to determine that independent and new-political-party candidates are not
       similarly situated. See id. That section 7-43 does not disqualify new-party candidates on the
       same basis as independents can be seen as encouraging the post-primary formation of
       alternative political parties by voters and candidates who may be either dissatisfied with the
       status quo or disappointed with the results of the primary. In any case, Rudd cites no authority
       that would compel the General Assembly to confer that same benefit on dissimilarly situated
       independent candidates, and thus, his equal protection claim fails.
¶ 17       We also reject Rudd’s contention that section 7-43 violates his associational and free
       speech rights. The disqualification statute is, to be sure, a restriction on Rudd’s right to access
       the ballot, but it is not a severe one. Only those laws that make ballot access “virtually
       impossible” (Williams v. Rhodes, 393 U.S. 23, 24 (1968)) or condition ballot access on an
       arbitrary factor (e.g., Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173,
       186-87 (1979) (disproportionate signature requirement); Bullock v. Carter, 405 U.S. 134, 143
       (1972) (filing fees of up to 15% of candidate’s salary)) or otherwise “prevent[ ] persons who
       wish to be independent candidates from entering the *** political arena” (Anderson v.
       Celebrezze, 460 U.S. 780, 790 (1983)) will be invalidated on constitutional grounds.
¶ 18       The United States Supreme Court, as noted earlier, and the Illinois Supreme Court have
       reviewed similar voter and candidate disqualification laws to the one at issue here. A prior
       version of section 7-43, which prevented voters from switching party affiliations for 23 months
       prior to the election, was held unconstitutional in Kusper v. Pontikes, 414 U.S. 51 (1973).
       Likewise, a similar two-year restriction on party-switching by petition circulators was struck
       down in Sperling v. County Officers Electoral Board, 57 Ill. 2d 81 (1974). But an 11-month
       restriction on voters switching parties in New York was upheld in Rosario v. Rockefeller, 410
       U.S. 752, 760 (1973), as was a complete ban on write-in candidates in Hawaii (see Burdick v.
       Takushi, 504 U.S. 428, 439 (1992)).
¶ 19       In Storer v. Brown, 415 U.S. 724 (1974), the Court approved of a one-year disqualification
       law in California’s election code. The Court held that such laws are justified by virtue of the
       states’ interest in robust election regulation to prevent “splintered parties and unrestrained
       factionalism [that] may do significant damage to the fabric of government. See The Federalist,
       No. 10 (Madison).” Id. at 736. Further, the Court said:


                                                    -6-
                “It appears obvious to us that the one-year disaffiliation provision furthers the State’s
                interest in the stability of its political system. We also consider that interest as not only
                permissible, but compelling and as outweighing the interest the candidate and his
                supporters may have in making a late rather than an early decision to seek independent
                ballot status.” Id.
¶ 20        The party-switching restriction in section 7-43 is virtually identical to the one upheld in
       Storer. See id. at 752. We find that section 7-43 is not excessively—and therefore not
       unconstitutionally—burdensome. All Rudd needed to do to appear on the ballot in the general
       election as an independent candidate was to not file in November 2015 as a candidate in the
       primary, and then to not vote in the March 2016 primary. “Storer held that a potential
       candidate was not significantly burdened by a statute that forced him to think ahead one full
       year before becoming an independent candidate” (McClure v. Galvin, 386 F.3d 36, 42 (1st Cir.
       2004) (upholding Massachusetts’s disqualification statute)), and we see no reason why the
       same logic should not apply here. See also Hossfeld v. Illinois State Board of Elections, 238 Ill.
       2d 418, 429-30 (2010) (“[P]arty-switching restrictions on candidates for public office are an
       important protection in the electoral process, [and] ‘[s]uch restrictions and establishment of
       periods of time involved are, within constitutional limitations, matters for legislative
       determination.’ Sperling, 57 Ill. 2d at 86.”); Bendinger v. Ogilvie, 335 F. Supp. 572, 576 (N.D.
       Ill. 1971) (“The state’s interest in limiting candidates from switching parties *** is greater than
       its interest in limiting voters from switching parties.”); accord Morrison, 467 F.3d 503
       (upholding Ohio’s disqualification statute); Thournir v. Meyer, 909 F.2d 408 (10th Cir. 1990)
       (upholding Colorado’s disqualification statute).
¶ 21        In sum, the Board correctly found Rudd ineligible to appear on the ballot as an independent
       candidate in the current general election cycle. In addition, we have determined that section
       7-43 of the Election Code, which kept Rudd off the ballot, is constitutional as applied to him.
       We therefore affirm the judgment of the circuit court of Lake County.

¶ 22       Affirmed.




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