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                                     Appellate Court                        Date: 2017.02.06
                                                                            13:16:17 -06'00'




             Ahmad v. Board of Election Commissioners, 2016 IL App (1st) 162811



Appellate Court         MARYAM AHMAD, Plaintiff-Appellee and Counterdefendant-
Caption                 Appellee, v. THE BOARD OF ELECTION COMMISSIONERS OF
                        THE CITY OF CHICAGO, and Its Members, MARISEL A.
                        HERNANDEZ, Chairman; WILLIAM J. KRESSE; and JONATHAN
                        T. SWAIN; and DAVID D. ORR, in His Official Capacity as Cook
                        County Clerk, Defendants and Counterdefendants-Appellees (Rhonda
                        Crawford,      Proposed     Intervenor-Defendant-Appellant   and
                        Counterplaintiff-Appellant; Arlemmie M. Thirus, Counterplaintiff-
                        Appellant).



District & No.          First District, Sixth Division
                        Docket No. 1-16-2811



Filed                   December 9, 2016



Decision Under          Appeal from the Circuit Court of Cook County, No. 16-COEL-19; the
Review                  Hon. Alfred Paul, Judge, presiding.



Judgment                Affirmed in part and dismissed in part.



Counsel on              Andrew Finko, P.C., of Chicago (Andrew Finko, of counsel), for
Appeal                  appellants.

                        Odelson & Sterk, Ltd., of Evergreen Park (Burton S. Odelson and
                        Mary Ryan Norwell, of counsel), for appellee.
     Panel                    JUSTICE DELORT delivered the judgment of the court, with opinion.
                              Presiding Justice Hoffman and Justice Rochford concurred in the
                              judgment and opinion.


                                                OPINION

¶1          On March 15, 2016, Maryam Ahmad ran as a candidate in the Democratic general primary
       election for judge of the circuit court of Cook County, first subcircuit, to fill the vacancy of
       Judge Cynthia Brim. Ahmad was defeated in that election by Jesse Outlaw. The same day, a
       race to nominate candidates for judge of the circuit court of Cook County, first subcircuit, to
       fill the vacancy of Judge Vanessa Hopkins was also on the ballot. Rhonda Crawford was
       nominated as the Democratic candidate for the Hopkins vacancy. On September 6, 2016,
       Ahmad filed declarations of intent to be a write-in candidate for the Hopkins vacancy in the
       November 8, 2016, general election with the two relevant election agencies: the defendant
       Board of Election Commissioners of the City of Chicago (Chicago Board) and defendant
       David D. Orr, the Cook County Clerk. See 10 ILCS 5/17-16.1, 18-9.1 (West 2014). In Illinois,
       write-in votes are only counted for candidates who have filed write-in candidacy declarations.
       See id.
¶2          Clerk Orr accepted Ahmad’s write-in declaration, but the Chicago Board rejected it. The
       Chicago Board asserted that Ahmad was disqualified from running as a write-in candidate for
       the Hopkins vacancy under the so-called “sore loser” law, section 18-9.1 of the Election Code
       (10 ILCS 5/18-9.1 (West 2014)). That law provides in pertinent part: “A candidate for whom a
       nomination paper has been filed as a partisan candidate at a primary election, and who is
       defeated for his or her nomination at the primary election, is ineligible to file a declaration of
       intent to be a write-in candidate for election in that general or consolidated election.” Id.
¶3          On September 13, 2016, Ahmad filed a petition against the Chicago Board and Clerk Orr.
       While it contained various counts and claims, it essentially sought the single remedy of
       requiring the Chicago Board to accept Ahmad’s write-in declaration and count write-in votes
       validly cast for her. She claimed that under a proper construction of section 18-9.1 of the
       Election Code, she was not disqualified from running for the Hopkins vacancy, only the Brim
       vacancy. On September 20, the Chicago Board filed a comprehensive memorandum in
       opposition to Ahmad’s petition, defending its own interpretation of section 18-9.1 and
       vigorously defending against Ahmad’s claims. Rhonda Crawford appeared through counsel
       and moved to intervene as a party defendant. In her motion, she agreed with the Chicago
       Board’s construction of section 18-9.1 and also wanted to bar the counting of any write-in
       votes for Ahmad. After hearing arguments on September 21, the court entered an order
       denying Crawford’s request to intervene, stating that her request was untimely and that her
       interests were adequately represented by the Chicago Board. The court conducted a hearing on
       Ahmad’s petition, which essentially was a trial on the merits of her claims based on undisputed
       facts and documentation.
¶4          At the conclusion of the hearing, the court issued a memorandum opinion adopting
       Ahmad’s interpretation of section 18-9.1, reasoning that it “is not applicable to the Hopkins
       vacancy in this matter because the Plaintiff filed nomination papers for a separate vacancy at


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     the primary election, the Brim vacancy.” In a separate order, the court (1) issued a writ of
     mandamus requiring the Chicago Board to accept Ahmad’s write-in declaration and to count
     votes validly cast for her, (2) declared that section 18-9.1 of the Election Code “allows a person
     to be a valid write-in candidate for an office, different from the office unsuccessfully sought in
     the primary election,” and (3) found that determining whether a declaration of intent to be a
     write-in candidate comports with the Election Code is a “ministerial task.”
¶5       On October 14, Crawford, although she was not a party to the case because she had been
     denied leave to intervene, sought leave to file a counterclaim. The court allowed her to file the
     counterclaim by the same day, which she did. Crawford’s counterclaim requested a writ of
     mandamus and declaratory and injunctive relief to prevent the Chicago Board and Clerk Orr
     from listing Ahmad as a valid write-in candidate and from counting any write-in votes cast for
     her. The counterclaim also requested that the court enjoin Ahmad from “representing, claiming
     or promoting herself” as a candidate in the subject election. The court set an expedited
     schedule for filing of memoranda regarding the counterclaim and set the matter for status on
     October 21. Since Crawford was not then a party to the case, granting her leave to file her
     counterclaim in essence granted her leave to intervene, notwithstanding the September 21
     order to the contrary. On October 17, Crawford filed a motion to reconsider the September 21
     order. The court conducted an additional hearing on Crawford’s new filings on October 24.
     Following that hearing, the circuit court denied Crawford’s motion to reconsider and “denied”
     her counterclaim.
¶6       Crawford has appealed from the orders of September 21 and October 24. The Chicago
     Board did not appeal on its own and has declined to participate in Crawford’s appeal. Clerk Orr
     did not actively participate in the proceedings below and also has taken no position in this
     appeal. We granted Crawford’s motion for expedited consideration and allowed the parties to
     file memoranda in lieu of formal briefs. On November 7, 2016, we issued a brief order
     affirming the circuit court and indicating that an opinion would follow in due course. Pursuant
     to that order, Ahmad was listed as a valid write-in candidate for the November 8 General
     Election, and votes for her were duly counted.
¶7       We take judicial notice that on December 5, 2016, the Illinois State Board of Elections duly
     canvassed and proclaimed the results of the election. See Ill. R. Evid. 201(b) (eff. Jan. 1, 2011);
     Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 22 n.1 (a court may take
     judicial notice of election results). The State Board declared Crawford to be the winner of the
     election, as she received 87,970 votes to Ahmad’s 884 votes. That result suggests that the case
     is now moot, but it does not end our inquiry.
¶8       Our supreme court has explained, “The public interest exception to the mootness doctrine
     allows a court to reach the merits of a case which would otherwise be moot if the question
     presented is of a public nature, an authoritative resolution of the question is desirable for the
     purpose of guiding public officers, and the question is likely to recur.” Jackson, 2012 IL
     111928, ¶ 44. These criteria are satisfied here as to the main issue regarding the interpretation
     of section 18-9.1 of the Election Code. The propriety of an election inherently presents a
     question of a “public nature.” And given the large number of judicial vacancies that occur in
     Cook County, we believe that the question is likely to recur, so that a definitive resolution
     would be helpful to guide election authorities and candidates in the future. See, e.g., id. ¶ 45;
     Cinkus v. Village of Stickney Municipal Officers Electoral Board, 228 Ill. 2d 200, 208 (2008)
     (public interest exception to mootness doctrine allows court to resolve candidacy eligibility

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       disputes after the election). Accordingly, we will review the October 24 order notwithstanding
       the results of the election.
¶9          The same is not true, however, regarding Crawford’s appeal of the trial court’s September
       21 order denying her first request to intervene. “A moot question is one that existed but
       because of the happening of certain events has ceased to exist and no longer presents an actual
       controversy over the interest or rights of the party; an abstract question is one in existence but
       for which no effectual relief can be granted.” Johnson v. Quern, 90 Ill. App. 3d 151, 155
       (1980). As noted above, the trial court eventually allowed Crawford to file her counterclaim
       and resolved it on the merits. Crawford prevailed in the election despite Ahmad’s write-in
       campaign. Accordingly, the issue of Crawford’s intervention is now moot. Under these
       circumstances, we do not find that the public interest exception allows us to review the
       propriety of the September 21 order. We therefore dismiss the appeal as to that order.
¶ 10        Two Election Code sections are at issue in this case. Article 17 of the Election Code is the
       general statute governing the administration of elections by the various county clerks in
       Illinois, including the Cook County Clerk. That article contains section 17-16.1 of the Election
       Code (10 ILCS 5/17-16.1 (West 2014)), the “sore loser” law governing write-in candidacy
       declarations filed with those county clerks. Chicago, however, has a board of election
       commissioners established under article 6 of the Election Code. Bilek v. City of Chicago, 396
       Ill. 445, 454 (1947). The general statute governing election administration in Chicago is article
       18 of the Election Code. See 10 ILCS 5/18-1 (West 2014). Section 18-9.1 of the Election Code
       governs write-in candidacy declarations filed with the Board of Election Commissioners of the
       City of Chicago. 10 ILCS 5/18-9.1 (West 2014). Sections 17-16.1 and 18-9.1 are identical.
       Because the primary issue in this case involves the Chicago Board’s enforcement of section
       18-9.1, we will refer to that section only, unless the context requires otherwise.
¶ 11        We review the circuit court’s determination of the interpretation of a statute de novo. In re
       Estate of Dierkes, 191 Ill. 2d 326, 330 (2000). When construing a statute, our primary
       objective is to ascertain and give effect to the intent of the legislature. Klaine v. Southern
       Illinois Hospital Services, 2016 IL 118217, ¶ 14. “The most reliable indicator of legislative
       intent is the language of the statute, given its plain, ordinary, and popularly understood
       meaning.” Id. The plain language of section 18-9.1 does not immediately resolve the question
       presented because it is ambiguous. Viewed from the strictest possible perspective, it prohibits a
       primary election loser from running for any office whatsoever at the next succeeding general
       election, not merely for the same office. Under a more moderate interpretation, a candidate
       would be barred from running for the same office as the one she lost in the primary (i.e., judge)
       but is not barred from running as a write-in for a different office such as state senator. An even
       more generous interpretation would only bar the losing candidate from running for the exact
       same position as the one she lost in the primary (i.e., the Brim vacancy). Under this
       interpretation, the term “and who is defeated for his or her nomination at the primary election”
       refers only to nomination for the particular position that the candidate lost in the primary.
       (Emphasis added.) 10 ILCS 5/18.1 (West 2014). All three interpretations are objectively
       reasonable because the statute is open-ended and imprecise.
¶ 12        To determine which of these interpretations is correct, we must examine both the structure
       of judicial elections in Illinois and the case law governing ballot access in Illinois. We begin by
       noting that while the Brim and Hopkins vacancies involve the same constitutional office, judge
       of the circuit court of Cook County, they are distinct positions in that a single person cannot

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       run for or hold both simultaneously. See generally 10 ILCS 5/7-12(9) (West 2014); 705 ILCS
       35/2f(a) (West 2014) (providing that 165 resident circuit judges are to be elected from the 15
       subcircuits of the Cook County Judicial Circuit).
¶ 13        “The citizens’ right to vote for the candidates of their choice is of paramount importance,
       because it preserves all other civil and political rights.” Paul v. State of Indiana Election
       Board, 743 F. Supp. 616, 625-26 (S.D. Ind. 1990) (citing Reynolds v. Sims, 377 U.S. 533, 562
       (1964), and Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886)). It is a right afforded significant
       constitutional protections. Burdick v. Takushi, 504 U.S. 428, 433 (1992). Legislation that
       affects any stage of the election process implicates the right to vote. Thus, our supreme court
       has held “that the right to vote is implicated by legislation that restricts a candidate’s effort to
       gain access to the ballot.” Tully v. Edgar, 171 Ill. 2d 297, 307 (1996).
¶ 14        Invoking these principles, our supreme court has clearly indicated that ballot access laws
       are to be interpreted liberally and that bars against candidacy are to be strictly construed. “We
       are mindful of the need to tread cautiously when construing statutory language which restricts
       the people’s right to endorse and nominate the candidate of their choice.” Lucas v. Lakin, 175
       Ill. 2d 166, 176 (1997). Applying this rule to interpret an ambiguous ballot access statute, the
       Lucas court noted that the candidate in question was entitled to ballot placement “in the
       absence of a clear legislative statement to the contrary.” Id. This court has further noted that
       “[i]t is basic that Illinois courts view the right of a citizen to hold political office as a valuable
       one. The exercise of this right is not to be prohibited or curtailed except by plain provisions of
       the law. Indeed, our supreme court has held that statutes imposing disqualification should be
       construed liberally, resolving all doubts in favor of a candidate’s eligibility.” McGuire v.
       Nogaj, 146 Ill. App. 3d 280, 282 (1986) (citing Livingston v. Ogilvie, 43 Ill. 2d 9 (1969), and
       Velazquez v. Soliz, 141 Ill. App. 3d 1024 (1986)).
¶ 15        The purposes of sore-loser statutes are well established. Essentially, they prevent a
       candidate from taking “two bites at the same apple” by losing a primary and then resurfacing as
       a candidate in the general election against the opponent who defeated her in the primary.
       Courts have noted that they prevent “divisive *** candidacies” (Burdick v. Takushi, 504 U.S.
       428, 439 (1992)), discourage “intra-party feuding,” and reserve “ ‘major struggles’ ” for
       general election ballots (South Carolina Green Party v. South Carolina State Election
       Comm’n, 612 F.3d 752, 756 (4th Cir. 2010)).
¶ 16        Ahmad did not lose to Rhonda Crawford in the primary for the Hopkins vacancy, so
       allowing her to run as a write-in candidate against Crawford does not give Ahmad a “second
       bite” at the same “Hopkins vacancy” apple. The Democratic primary voters did not reject her
       candidacy for the Hopkins vacancy, nor have any voters had the opportunity to consider her as
       a candidate for that vacancy. The fact that she lost the Democratic primary and now seeks a
       non-Democratic line on the ballot is of little relevance because write-in candidates do not run
       as candidates of any particular political party. See generally 10 ILCS 5/18-9.1 (West 2014);
       see also Keri-Lyn J. Krafthefer & Adam W. Lasker, Local Governmental Elections, in Election
       Law, Ill. Inst. for Cont. Legal Educ. § 12.7 (2016).
¶ 17        Our interpretation is further supported by another provision of the Election Code, which
       illustrates that the legislature knows how to craft precise prohibitions about multiple
       candidacies in judicial subcircuits when it desires to do so. The Election Code limits candidates
       to filing petitions for only one vacancy in a subcircuit and one vacancy in a circuit “in any one
       filing period.” 10 ILCS 5/7-12(9) (West 2014) (as amended by Pub. Act 97-81 (eff. July 5,

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       2011)). A candidate who files for both must withdraw one set of petitions before a deadline,
       lest she be removed from the ballot for both. Id. This provision demonstrates that (1) multiple
       vacancies in a judicial subcircuit are different positions and (2) the legislature did not intend
       for the sore-loser rule to disqualify candidates for those different positions. See Scadron v. City
       of Des Plaines, 153 Ill. 2d 164, 188 (1992) (“The legislature is perfectly capable of being
       specific when it wants to be.”).
¶ 18       In the absence of specific language in section 18-9.1 prohibiting a candidate from running
       as a write-in candidate for a different subcircuit position than the one she lost in the primary
       election, we find that the law must be interpreted to permit Ahmad’s candidacy for the Hopkins
       vacancy.
¶ 19       Finally, we note Ahmad’s request that we issue an order disqualifying Crawford from
       running in the election and “suppressing” any votes cast for her. Ahmad based this request on
       an order our supreme court entered while this case was pending in this court. The supreme
       court suspended Crawford from the practice of law effective immediately and until further
       order of court, and it also ordered that if she won the election, she was specifically “enjoined
       and restrained from taking the judicial oath of office or assuming the office of judge until
       further order of the Court.” In re Crawford, M.R. 28341 (Oct. 31, 2016). We decline Ahmad’s
       request. First, and most importantly, we must defer to our supreme court on a matter that is
       pending before it. Second, we are a court of review. Our jurisdiction is limited to reviewing the
       orders entered by the circuit court, and this issue never arose until this appeal had been
       perfected.
¶ 20       For these reasons, we affirm the October 24 order denying Crawford relief on her
       counterclaim and dismiss the appeal as to the September 21 order.

¶ 21      Affirmed in part and dismissed in part.




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