Ahmad v. Board of Election Commissioners of the City of ChicagoAhmad v. Board of Election Commissioners of the City of Chicago
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 16-COEL-19; the Hon. Alfred Paul, Judge, presiding.
Judgment: Affirmed in part and dismissed in part.
Counsel
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
¶ 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 (
¶ 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
¶ 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 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
¶ 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 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 (
¶ 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.)
¶ 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 run for or hold both simultaneously. See generally
¶ 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
¶ 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
¶ 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.”
¶ 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
¶ 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.