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Friday, May 3, 2013

Court Rules for Candidates in Another Notary Challenge

Candidates in several different jurisdictions around Illinois faced similar objections this election cycle, all based on an allegation that notarial jurats on their statement of candidacy forms were legally insufficient because they failed to contain the language “who to me is personally known.” That language was missing from the template forms provided by the State Board of Elections, causing a number of candidates to have their nomination papers challenged as legally deficient.  However, an Illinois Appellate Court recently ruled that the nomination papers of three candidates from Calumet City were legally valid, despite the alleged notarization flaw, because the statement of candidacy forms were in strict compliance with the mandatory provisions of the Election Code, and they substantially complied with other provisions that are merely directory in nature. Akin, et al., v. Calumet City Municipal Officers Electoral Bd., 2013 IL App (1st) 130441.
This decision is in accord with a slightly earlier opinion from the Sixth Division of the same appellate court that held that the nomination papers of nine other candidates from Calumet City were legally sufficient despite the same alleged notarization flaw. As previously reported in Municipal Minute, the an Appellate Court did not find strict compliance with the mandatory provisions of section 7-10 of the Election Code. Nonetheless, it found that substantial compliance was good enough to keep the candidates’ names on the ballot. Cortez, et al., v. Calumet City Municipal Officers Electoral Bd., 2013 IL App (1st) 130442.
The candidates in the Akin case (represented by Ancel Glink) took their arguments one step further than in Cortez by asserting that not only did they substantially comply with the statute’s suggested language, their nomination papers also strictly complied with the mandatory provisions of section 7-10. The law, they argued, is split in two sections, one of which contains mandatory requirements with which strict compliance is necessary, and the other of which contains suggested language for statement of candidacy forms that must be worded “in substantially the following form.”
The Akin court agreed with the candidates, holding that the nomination papers were indeed in strict compliance with the mandatory requirement that they “shall be subscribed and sworn to by such candidate before some officer authorized to take acknowledgement of deeds in the State.” 10 ILCS 5/7-10. With respect to the directory provisions - that statements of candidacy forms should include a notary jurat with the “personally known” language - the court held the candidates’ failure to strictly comply with the suggested form did not invalidate the nomination papers because they still strictly complied with the mandatory notarization process and therefore caused no threat to the integrity of the electoral process.
The Akin court stated: “We agree with Candidates that their forms were in ‘strict’ compliance with the mandatory elements and that the alleged deficiencies related to directory provisions that provided that the statement of candidacy ‘shall be in substantially the following form.’ However, even assuming arguendo that section 7-10 taken as a whole is a mandatory statute, and applying the doctrine of substantial compliance consistent with the case law noted above, we conclude that Candidates substantially complied with section 7-10’s requirements even though the notarial juriat [sic] did not contain the language that the candidate was ‘personally known’ to the certifying officer.”
Post Authored by Adam Lasker, Ancel Glink


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