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Thursday, April 16, 2015

Candidates Removed from Ballot for Fatal Flaw in Circulators' Affidavits

An Illinois appellate court recently affirmed an electoral board decision removing from the ballot a slate of new-party candidates in Franklin Park whose nomination papers had a fatal flaw in the circulators’ affidavits.  Zurek v. Peterson, 2015 IL App (1st) 150508-U. 

Section 10-4 of the Election Code requires all petition circulators to sign a sworn statement at the bottom of each petition sheet that must include, among other things, one of the following factual attestations: “(1) indicating the dates on which that sheet was circulated, or (2) indicating the first and last dates on which the sheet was circulated, or (3) certifying that none of the signatures on the sheet were signed more than 90 days preceding the last day for the filing of the petition.” The circulator affidavits on all of the petitions for these Franklin Park candidates failed to include any of the three factual statements, and instead included a legal conclusion that the sheets were circulated “within the statutory time period for petition circulation."

In ruling that the circulator affidavits failed to comply with the Election Code, the electoral board noted that a person cannot be prosecuted for perjury based on statements that are legal conclusions, rather than statements of fact. In the board's view, the purpose of section 10-4, which includes a penalty provision and is mandatory in nature, is to protect the integrity of the electoral process by making petition circulators accountable for their conduct and subject to perjury prosecution if there is a false swearing in their circulator affidavits. Since swearing to a legal conclusion does not put a circulator under penalties of perjury, and since the three options set forth in section 10-4 in regards to the time in which a petition was circulated all include affirmative statements of fact, the electoral board ruled, and the appellate court affirmed, that the failure to include any such factual statements in the circulator affidavits resulted in a failure to protect the integrity of the election. Therefore, when these circulators swore to the legal conclusion that the petitions were circulated “within the statutory period for petition circulation,” they failed to subject themselves to perjury penalties in violation of a statute that was designed precisely for the purpose of safeguarding the integrity of the electoral process.

The appellate court also affirmed the electoral board’s ruling that the candidates’ new political party, as an entity, was not required to be named in the objector’s petition as a necessary party to the electoral board litigation. In a motion seeking to dismiss the objector’s petition, the candidates argued that their new political party should have been a named respondent and, therefore, should have been a party before the board in addition to the three individual candidates, each of whom were named as respondents. The electoral board ruled, and the appellate court affirmed, that no law or public policy requires political parties to be named respondents in electoral board actions. As the appellate court pointed out in its opinion, in this case the new political party never even came into existence, because the party would have been created only upon the filing of legally valid nomination papers, and this party’s nomination papers were judged to be legally invalid. Thus, the party could not have been named in the objector’s petition or served with a copy thereof.

DISCLOSURE: Ancel Glink attorney Adam W. Lasker was the court-appointed public-member chairman of the Franklin Park Municipal Officers Electoral Board for this case.

Post Authored by Adam Lasker, Ancel Glink


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