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Strange ruling from DuPage

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* This just seems wrong to me

[DuPage County’s] three-member electoral board voted 2-1 Tuesday to remove a state Senate hopeful from the ballot, but the candidate vows to fight the decision.

GOP officials charge Tom Cullerton is an elephant in donkey’s clothing. They say he voted Republican in the February primary but was then slated as a Democrat two months later to run against Republican state Sen. Carole Pankau. The board ruled he couldn’t do that. […]

Cullerton’s attorneys argue the electoral board’s interpretation of state law on party switching doesn’t apply to their client because he wasn’t a candidate when he voted in February.

But the board agreed with Republicans who cited a 1974 Illinois Supreme Court decision on party switching that declares “standards governing party changes by candidates may and should be more restrictive than those relating to voters.”

* Here’s some more background

“I am totally convinced that you cannot participate in both parties in Illinois during the same election cycle,” said attorney Burt Odelson, who is handling the Republicans’ objection to Cullerton’s candidacy. […]

Odelson argues that because Cullerton declared himself a Republican voter for this “election cycle,” he can’t become a Democratic candidate.

[Cullerton’s attorney, Michael Dorf] counters that the election code makes no mention of the term “election cycle” when dealing with party switching.

“The only thing it says is if you lost a primary you can’t run in the general on the other side,” Dorf said. “My client only voted in the Republican primary.”

* That last point is a good one. The Republicans’ own brief quotes a recent Illinois appellate court ruling…

In addition, this court must interpret the Election Code as written and we may not depart from the plain language of the statute by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent.

The General Assembly never specifically banned candidates from running who voted in one primary and are then appointed to the ballot as a member of a different party.

Also, if local Democratic, Republican or Green Party leaders decide to place a candidate onto the ballot after the primary, then those parties have decided that their candidates are legit party members.

I do think there’s a problem with Cullerton’s vote in the February GOP primary, but that’s a political issue (flip-flopping, trust, etc.) that he should have to deal with this fall. There are also some questions about the way he was appointed. Fair enough. But this ruling doesn’t sit well with me, and calls into question the Republican-dominated board’s judgement.

Perhaps I’m wrong. What are your thoughts?

posted by Rich Miller
Wednesday, May 14, 08 @ 10:25 am


  1. i agree. the board erred in its judgement and the case should be brought before a judge.

    mike dorf is one of the state’s top election attorney’s and he’s right.

    Comment by Anonymous Wednesday, May 14, 08 @ 10:35 am

  2. They’re wrong. He didn’t “declare” himself anything. He just voted in a primary. This takes the party-protection laws too far.

    Interesting though, to see how the Cullerton brand sells in DuPage.

    Comment by wordslinger Wednesday, May 14, 08 @ 10:50 am

  3. It seems to restrictive to deny him even the opportunity to run. As mentioned, let the voters consider the action at the polls, but lets not deprive them of the opporutnity to decide for themselves whetehr they care about this flip flopping.

    Comment by Ghost Wednesday, May 14, 08 @ 10:52 am

  4. “qualified primary voter of the party to which the petition relates”! This is in the election law and included in the brief. This statement alone disqualifies Cullerton from running under the aspices of the Democrat party. Why would Emil want someone who is flip flopper anyway. Doesn’t he have enough of those right now?

    Comment by AwesomeQuote-Jaded Wednesday, May 14, 08 @ 11:02 am

  5. I wonder why is it anyone’s business who you voted for?

    Comment by Levois Wednesday, May 14, 08 @ 11:05 am

  6. AwesomeQuote-Jaded, that statute is strictly about nominating petitions, not appointments to the ballot.

    Comment by Rich Miller Wednesday, May 14, 08 @ 11:05 am

  7. I believe Michael Dorf was one of the attorneys representing Senator Terry Link over his flawed nominating petitions for office.

    In Waukegan the Democrats are fond of the following tactic during primaries: Tracking names of voters who signed petitions for Republican candidates then objecting when those same voters pull a Democratic ballot during the same election cycle. I believe the Lake County Clerk counts the ballots after dealing with the protests, but I may be wrong here. It’s been a while since I last checked on this ongoing process.

    Using that logic espoused by a bunch of local Democrats, then voting in a Republican primary would also preclude you from running as a Democrat during the same election cycle.

    Comment by Louis G. Atsaves Wednesday, May 14, 08 @ 11:16 am

  8. If a person desires a Township office, the way he voted at the previous primary determines which party caucus he can attend. The primary was held in February, the caucus is held the next January. By state law, person can not switch parties; why should rules be different for state offices?

    Comment by Downstate Commissioner Wednesday, May 14, 08 @ 12:11 pm

  9. Once again, this is about local party leaders appointing someone to the ballot.

    Comment by Rich Miller Wednesday, May 14, 08 @ 12:14 pm

  10. He probably pulled a Republian ballot because there are very few contested races for the Democrats in DuPage. It’s like pulling a Republican ballot in Chicago. If you want to participate in the election process, you have to have viable candidates to vote for.

    This is the whole problem with primary elections, is that you have to declaire a party affiliation. Whats the point of pulling a democratic ballot, if there are only 2 or 3 contested promary races county-wide?

    The Democrats are always complaining they can’t make any headway in DuPage, and decisions like this are the reason why. The party needs to get more organized there.

    Comment by pickles!! Wednesday, May 14, 08 @ 12:25 pm

  11. My thought is that this is another arbitrary ruling by a clueless local electoral board, which does not set any precedent, and which should be appealed in court for administrative review. I agree with Rich that there is no provision prohibiting his candidacy; and even if there were, the state has no business telling a established political parties, which are private voluntary membership associations, which have demonstrated the necessary modicum of support and earned the right to place candidates on the ballot, that they can’t slate whomever they might choose.

    Comment by Squideshi Wednesday, May 14, 08 @ 1:00 pm

  12. Forget the law.

    Let’s look at the right and wrong.

    By voting in the Republican primary he participated in picking his opponent.

    This should be a no no.

    Comment by True Observer Wednesday, May 14, 08 @ 1:04 pm

  13. ===By voting in the Republican primary he participated in picking his opponent.===

    Except in this case Pankau was unopposed.

    Comment by Rich Miller Wednesday, May 14, 08 @ 1:05 pm

  14. Doesn’t matter.

    He participated in her selection.

    Comment by True Observer Wednesday, May 14, 08 @ 1:07 pm

  15. OK, fine. I’ll respect your opinion. So pass a law. Until then, this is bogus.

    Comment by Rich Miller Wednesday, May 14, 08 @ 1:08 pm

  16. In addition, state law notwithstanding, the U.S. Supreme court ruled in Tashjian v. Republican Party, “…the State may not constitutionally substitute its judgment for that of the Party, whose determination of the boundaries of its own association and of the structure that best allows it to pursue its political goals is protected by the Constitution.” Also, the USSC has long recognized the right of political parties to “select a standard bearer who best represents the party’s ideologies and preferences”.

    Comment by Squideshi Wednesday, May 14, 08 @ 1:20 pm

  17. This year, Illinois voters should approve the constitutional convention, and the next constitution should state that IL will use wide-open primaries in which each voter receives a primary ballot which includes candidates of all parties. If that passes, no candidate could be removed from the ballot for the reason that Cullerton was removed.

    Comment by PhilCollins Wednesday, May 14, 08 @ 1:29 pm

  18. I agree with PC….a wide-open primary would certainly play well in Springfield…if there are any state jobs left when it would take effect.
    In this case, the party officials are charged with placing the candidate…they should have the final word.

    Comment by Vote Quimby! Wednesday, May 14, 08 @ 1:49 pm

  19. I agree with the ruling in DuPage. Mr. Cullerton voted in the Republican primary, therefore when he signed the affidavit requiring he declare that he is a member of the Democrat party, the voracity of his statement is questionable. We have enough corruption in Illinois - without messing with election law.

    Comment by Annie Wednesday, May 14, 08 @ 2:09 pm

  20. Now that I have finally had the opportunity to read the brief, if appears that more than one ground existed to remove the appointed candidate from the ballot. His declaration that he was a Republican, made before he declared himself a Democrat and asked to be slated is one issue. Another issue is that the Democrats seem to have a problem showing that they legally met and followed the law in making the appointment.

    There seems to be more here than what was initially reported.

    The comment about Township Government I also found to be interesting. The brief also references several objections Democrats made to Republicans, using what appears to be similar theories the Republicans are now using against the Democrat appointee.

    You really can’t have it both ways.

    Comment by Louis G. Atsaves Wednesday, May 14, 08 @ 2:10 pm

  21. Annie, people have a right to change their mind. This isn’t some communist country where you are imprisoned by all of your choices. There are certain limitations on candidates (like the sore loser law, which is a good idea), but telling citizens that they have no right at all to switch parties and run for office is absurd.

    Comment by Rich Miller Wednesday, May 14, 08 @ 2:12 pm

  22. Rich, I agree that people do have a right to change their minds and should not be imprisoned by their choices. And I also agree that the “sore loser law” is a good law. And for that reason, I stand by my earlier post. Why else would someone change their mind about their party affiliation if it were not about a sense of loss of some kind, ie his presidential candidate lost; etc. His actions appear to be knee jerk and questionable.

    Comment by Annie Wednesday, May 14, 08 @ 2:41 pm

  23. ===His actions appear to be knee jerk and questionable.===

    Like I said above, I think this is better left to a campaign than the lawyers.

    Comment by Rich Miller Wednesday, May 14, 08 @ 2:42 pm

  24. == . . . people have a right to change their mind. This isn’t some communist country where you are imprisoned by all of your choices. . . .==

    Sounds like a good argument for recall as well.

    Comment by anon Wednesday, May 14, 08 @ 3:18 pm

  25. Personally, I am not sure the process can handle another Cullerton. It would boost bill introductions by another 1,000 bills, or so.

    Comment by Jaded Wednesday, May 14, 08 @ 3:32 pm

  26. The GOP Officials are just trying to clear the way for another run by Oberwies.

    Comment by Dirt Guy Wednesday, May 14, 08 @ 3:41 pm

  27. Sen. Dave Sullivan’s supporters did this a few years ago to one of his challengers (virtually the same issue), who effectively wasn’t able to run a campaign as the case was held up before boards and courts.

    The issue may be bogus, as Rich says, but if it keeps the challenger off the ballot — or tied up so long as to make a campaign meaningless — it serves its partisan purpose.

    Comment by Rob_N Wednesday, May 14, 08 @ 4:06 pm

  28. PhilCollins wrote, “This year, Illinois voters should approve the constitutional convention, and the next constitution should state that IL will use wide-open primaries in which each voter receives a primary ballot which includes candidates of all parties.”

    That would violate each political party’s right to freedom of association. Nonmembers do not have the right to interfere in a political party’s candidate selection process, unless that party invites a nonmember to do so. The state has no business telling the Green Party, for example, that it must allow Democrats and Republicans to help choose its standard bearer–that is an internal process, whether it be by primary election or some other method, like a convention.

    In addition, on the reverse side of this argument, if you think that requesting a party’s primary ballot automatically makes one a member of that political party, I would argue that the state has no business forcing a political party to accept, as members, those which it does not choose to do so.

    Annie wrote, “I agree with the ruling in DuPage. Mr. Cullerton voted in the Republican primary, therefore when he signed the affidavit requiring he declare that he is a member of the Democrat party, the voracity of his statement is questionable.”

    Why can’t someone be a member of more than one political party? Maybe they’re a Green-Democrat, a Green-Republican, a Democrat-Socialist, or a Libertarian-Republican. I say let the individual parties decide for themselves who they want to accept as members, and not–again, the state has no business telling political parties that they CAN’T voluntarily associate with someone simply because that person is also simultaneously associated with another political party.

    Here is more case law in order to support my points. U.S. Supreme Court in California Democratic Party v. Jones (2000):

    “States play a major role in structuring and monitoring the primary election process, but the processes by which political parties select their nominees are not wholly public affairs that States may regulate freely. To the contrary, States must act within limits imposed by the Constitution when regulating parties’ INTERNAL PROCESSES.” (Emphasis added.)”

    “We held that, whatever the strength of the state interests supporting the open primary itself, they could not justify this ’substantial intrusion into the associational freedom of members…’”

    “This also appears to be nothing more than reformulation of an asserted state interest we have already rejected–recharacterizing nonparty members’ keen desire to participate in selection of the party’s nominee as ‘disenfranchisement’ if that desire is not fulfilled. We have said, however, that a ‘nonmember’s desire to participate in the PARTY’S AFFAIRS is overborne by the countervailing and legitimate right of the party to determine its own membership qualifications.’” (Emphasis added.)

    “The voter who feels himself disenfranchised should simply join the party. That may put him to a hard choice, but it is not a state-imposed restriction upon his freedom of association, whereas compelling party members to accept his selection of their nominee is a state-imposed restriction upon theirs.”

    “In no area is the political association’s RIGHT TO EXCLUDE more important than in its candidate-selection process.” (Emphasis added.)

    Comment by Squideshi Wednesday, May 14, 08 @ 5:24 pm

  29. Rich Miller wrote, “Annie, people have a right to change their mind. This isn’t some communist country where you are imprisoned by all of your choices. There are certain limitations on candidates (like the sore loser law, which is a good idea), but telling citizens that they have no right at all to switch parties and run for office is absurd.”

    It may be absurd, but this is EXACTLY what Republicans and Democrats have attempted to do here in Illinois. In Kusper v. Pontikes (1973) the court wrote, “There can be little doubt that 7-43 (d) substantially restricts an Illinois voter’s freedom to change his political party affiliation. One who wishes to change his party registration must wait almost two years before his choice will be given effect. Moreover, he is forced to forgo participation in any primary elections occurring within the statutory 23-month hiatus. The effect of the Illinois statute is thus to ‘lock’ the voter into his pre-existing party affiliation for a substantial period of time following participation in any primary election, and each succeeding primary vote extends this period of confinement.”

    Now, that having been said, the U.S. Supreme Court did strike down the 23-month restriction as unduly burdensome (unconstitutional) in this case; however, I have seen another case, which I can not locate at the present moment, that suggested that this same restriction, for a shorter period of time, might indeed be constitutional (even though I would personally disagree with that assessment.) This is important because the General Assembly has done nothing to change this statute since since it was ruled unconstitutional, so it’s possible that a shorter restriction of this same type–”restricting a voter’s freedom to change parties” via primary ballot selection, is still in effect.

    Comment by Squideshi Wednesday, May 14, 08 @ 5:32 pm

  30. Rich,

    You have an excellent point in that this is about a slating appointment, as opposed to a ballot petition. However, the spirit and thrust of the statute seems to be that one must be a qualified primary voter in order to be placed or seek to be placed on the ballot. In other words, your interpretation would effectively grant party committeemen the right to waive the requirement that a prospective canddiate be a qualified primary voter of the party.

    Or, more succinctly, that party bosses have more rights in slating individuals for the ballot than individuals have in seeking to be placed on the ballot. That would create a dangerous double standard that I doubt was intended by the legislature (and the fact that one must be qualified in order file nominating petitions under a specific party designation can and should be used to consider the legislature’s intent).

    But, I do believe that you are TECHNICALLY correct that nomination was not illegal per se.

    That said, I don’t know why so much is being made out of THIS matter. Local election boards regularly make illegal or unfair decisions in order to protect their own interests, and you never see any publicity over it.

    In my opinion, this is just a circumstance that slipped the legislature’s mind when they enacted the law. It’ll be interesting to see how a court rules on this one.

    Comment by Snidely Whiplash Wednesday, May 14, 08 @ 6:27 pm

  31. I tend to agree with Rich on this, but it seems to be more fiddling while Rome is burning.

    Is there anything in this post, the suit, or in this campaign discussing and IDEAS promoted by Cullerton or Pankau?

    I thought not. Two interchangable cogs in a machine running out of control with no one qualifed at the helm.

    This is not a battle about who represents the voters of the district, but of which vassal represents which Duke (Duke Emil or Duke Watson)

    Clearly, the voter gets no say in any case. Silly voter, that is why we have “election boards”

    Everything plaguing Illinois is starting to manifest itself nationally. The 2 party system has broken down, and no longer serves the members of either party or the nation.

    Time for a Constitutional Convention.

    Comment by Bruno Behrend Wednesday, May 14, 08 @ 8:58 pm

  32. Rich:

    Have you checked out the ridiculous objections that will be sustained by the Dem dominated Election Board in Cook County?

    The latest “blanket elimination” for GOP candidates from Dem objectors is “failure to file Certificate of Organization” by GOP nominating committees.

    It seems that the crack GOP state organization (McKenna) sent out directions to the various GOP nominating committees without mentioning this requirement.

    Apparently having the notarized signatures of the Secretary and Chairman of the nominating committee wasn’t enough. They also need “addresses” for the Township Committeeman on the nominating committee on the Certificate form.

    Madigan’s lawyer is claiming that Dems were deprived of the right to determine if the members of the committee had standing to actually make the nomination,therefore the nominations should be ruled invalid.

    There is no objection that the committee members actually DID NOT have standing to make the nomination. The objection is only about what is being described as “directory” requirements for the paperwork being filed.

    This occured for a number of GOP candidates for the state legislature.

    One set of nominating papers were signed by Township Committeeman Tony Peraica and Palos Township Committeeman and Cook GOP Chairman Lee Roupas,whose names,addresses and signatures are on file with the state Board of Elections, as are all the other nominating committee members.

    Any guess on how the three Dems on the Cook Board will vote?

    I’ll give 50-1 odds the GOPers are gone.

    Any takers?

    Two years ago, all the Cook GOP nominees were removed from the ballot because the GOP County organization didn’t file the paper work within the required three days of the nominating committee meeting.

    This year it’s likely that any Cook legislative candidates that could cause trouble in November will be gone because of failure of committeeman to file the Certificates of Organization,and faulty direction from McKenna’s people.

    Isn’t there ONE Republican election lawyer out there who can show these people what they need to do?

    How can we make the case that we can run this state competently and efficiently if we can’t even file nominating papers correctly?

    Comment by squirminator Thursday, May 15, 08 @ 11:17 pm

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