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FOURTH DIVISION
November 18, 2004

No. 1-04-2910

 

Petitioners Ralph Nader, Jan Pierce, and their slate ofelectors, Daniel J. Kairis, Joshua L. Kairis, Bradley A. Kairis,Stedd Revesz, Andrew Chrucky, Ron J. Keller, Charles Hamilton,John W. Arco, Kristin Cotts, Betty J. Schuenuman, Mark Villay.Lance D. Goebel, Jim Senyszyn, Roberto Ruiz, William Borchert,Kathy Chrucky, Michael Patrick Ziri, Pete Caithamer, MonicaSpegar, Lucille Hiller, Charles M. Piper and Ron Felton, Jr. (Candidates) filed a nominating petition with the State Board ofElections (Board) seeking to have their names placed on theIllinois ballot for the offices of President, Vice-President, andelectors of President and Vice-President in the upcoming generalelections on November 2, 2004. Sustaining objections to numeroussignatures in the Candidates' petition, the Board refused tocertify their candidacy. The Candidates appeal from the judgmentof the circuit court upholding the Board's decision. On appeal,the Candidates argue that the circuit court erred in affirmingthe Board's decision because (1) the Board acted ultra vires whenit mechanically added page numbers to the Candidates' petitionand (2) the Board improperly denied their request to issuesubpoenas in an effort to investigate whether those who compiledthe objections to their nominating petition were State employeesworking on State time. For the following reasons, we affirm thejudgment of the circuit court.
 

BACKGROUND

On June 21, 2004, the Candidates filed their nominatingpetition containing 32,437 signatures with the Board located inSpringfield, Illinois. The Candidates' petition sheets werehand-numbered from page 1 to page 3,659, with each number locatedat the bottom-center of each page. Many of the handwrittennumbers, however, were illegible, and many of the sheets weremisnumbered (even though the handwritten page numbers went up to3,659, there were only 3,304 actual petition sheets).

After the petition sheets were filed, members of the Boardmechanically stamped page numbers 1 though 3,304 at the bottom-left of each page. Thus, each petition sheet contained two pagenumbers: a handwritten page number and mechanically stamped pagenumber.

On June 28, 2004, John Tully, Jr. (Objector) filed anobjection to the Candidates' petition pursuant to section 10-8 ofthe Election Code (10 ILCS 5/10-8 (West 2002)), challengingapproximately 19,300 signatures contained therein. Specifically,the Objector alleged that many of the signatures either were notfrom duly registered voters or were not genuine. In hispetition, the Objector referred to the signatures he believedwere invalid by citing to the Board's mechanical page numbers.

On July 6, 2004, the Board convened as the State OfficersElectoral Board (Electoral Board) and appointed a hearing officerto conduct an inquiry into the Objector's allegations. Duringthe hearing, the Candidates filed a motion requesting that theElectoral Board subpoena the payroll records of certain namedState employees who allegedly performed work on the Objector'spetition at taxpayer expense. The Candidates argued that, iftrue, such acts would violate article 9, the electioninterference provisions (10 ILCS 5/9-25.1 (West 2002)), andseveral laws contained in article 29, the "Prohibitions andPenalties" section, of the Election Code (10 ILCS 5/29-1 et seq.(West 2002)).⁽¹⁾ The hearing officer held that the Electoral Boardhad no power to hear or investigate the Candidates' allegedviolations of the Election Code, and declined to issue anysubpoenas. The Electoral Board, adopting the hearing officer'sopinion, also declined to issue the requested subpoenas.

After conducting an examination into the Chicago-basedpetition signatures, the Electoral Board sustained 12,327 of theobjections, leaving the Candidates with 20,110 valid signatures;approximately 5,000 signatures short of the 25,000 required underIllinois law (10 ILCS 5/10-3 (West 2002)). When the Candidateswere able to rehabilitate only 72 of the stricken signatures, onAugust 19, 2004, the Board, sitting as the Electoral Board,entered an order that their names not appear on the November 2,2004, ballot.

On August 27, 2004, the Candidates filed a petition forjudicial review of the Board's decision in the circuit court ofCook County requesting that the court reverse the Board'sdecision removing them from the ballot.⁽²⁾ In their request forreview, the Candidates did not dispute the factual findings ofthe Board concerning the validity of their petition, but insteadchallenged the Board's interpretation of the Election Code. OnSeptember 23, 2004, Circuit Court Judge Nathaniel R. Howse, Jr.,in a well-reasoned order, affirmed the decision of the Board,finding that (1) the Board correctly held that it had no power toissue subpoenas for payroll records or investigate theCandidates' alleged violations of the Election Code and (2) theBoard's act of mechanically numbering the Candidates' petitionwas "reasonable and in furtherance of its legislative directedpurpose to administer the elections and protect the integrity ofthe electoral process."

On October 7, 2004, the Candidates filed a notice of appealin the circuit court. As part of their notice, which wasdirected to this court, the Candidates requested a supervisoryorder from the Illinois Supreme Court pursuant to Rule 383 (188Ill. 2d R. 383) placing their names on the November 2 ballot. The Candidates also filed an "Emergency Motion To Place Appeal OnAccelerated Docket" with this court, pursuant to Supreme CourtRules 311 and 361 (155 Ill. 2d Rs. 311, 361), requesting thattheir appeal be heard by this court in an expedited manner. OnOctober 8, 2004, this court entered an order granting theCandidates' motion and allowing the parties to file memoranda inlieu of formal briefs. This court also set the expeditedbriefing schedule requested by the Candidates, which required theCandidates' filing to be filed on or before October 13, 2004, theObjector's filing by October 20, 2004, and the Candidates' replyby October 25, 2004. Pursuant to this court's order, any portionof the record upon which the parties wished to rely was requiredto be submitted as an appendix to their filing.

On October 13, 2004, the Candidates filed a request in theIllinois Supreme Court for a supervisory order pursuant to Rule383 mandating that "the Illinois Appellate Court for the FirstDistrict is ordered to order the Circuit Court of Cook County toenter an order reversing the decision of the State Board ofElections, sitting as the State Officers Electoral Board, and toorder the State Board of Elections to certify Ralph Nader, JanPierce and his slate of Presidential Electors on the ballot." OnOctober 19, 2004, the supreme court denied their request.

While this court granted the Candidates' initial request tofile a reply brief on or before October 25, 2004, because time isof the essence, we issued this opinion on October 22, 2004, lessthan two weeks before the election that the Candidates seek to bea part of occurs. In doing so, we have considered the fact thatthe Candidates' petition for an expedited appeal, their October13, 2004, "Request for Supervisory Order," and their October 13legal memorandum filed in accordance with Rule 311 are nearlyidentical in form and substance.

ANALYSIS

As a creature of statute, the Board may exercise only thepowers conferred upon it by the legislature. See Vuagniaux v.Department of Professional Regulation, 208 Ill. 2d 173, 187-88,802 N.E.2d 1156 (2003); Kozel v. State Board of Elections, 126Ill. 2d 58, 68, 533 N.E.2d 796 (1988). Any power or authorityclaimed by an administrative agency must find its source withinthe provisions of the statute by which the agency was created. Vuagniaux, 208 Ill. 2d at 187-88. "The agency's authority musteither arise from the express language of the statute or 'devolveby fair implication and intendment from the express provisions ofthe [statute] as an incident to achieving the objectives forwhich the [agency] was created.'" Vuagnizux, 208 Ill. 2d at 188,quoting Schalz v. McHenry County Sheriff's Department MeritComm'n, 113 Ill. 2d 198, 202-03, 497 N.E.2d 731 (1986).

Under section 5-1A-1 of the Election Code, the legislaturerecognized the Board's "general supervision over theadministration of the registration and election laws throughoutthe State," but mandated that the Board "perform only such dutiesas are or may hereafter be prescribed by law." 10 ILCS 5/1A-1(West 2002). Section 10-10 of the Election Code sets forth thepowers and duties of the Board when sitting as an electoralboard:

"The electoral board shall take up the question asto whether or not the certificate of nomination ornomination papers or petitions are in proper form, andwhether or not they were filed within the time andunder the conditions required by law, and whether ornot they are the genuine certificate of nomination ornomination papers or petitions which they purport tobe, and whether or not in the case of the certificateof nomination in question it represents accurately thedecision of the caucus or convention issuing it, and ingeneral shall decide whether or not the certificate ofnomination or nominating papers or petitions on fileare valid or whether the objections thereto should besustained and the decision of a majority of theelectoral board shall be final subject to judicialreview as provided in Section 10-10.1. The electoralboard must state its findings in writing and must statein writing which objections, if any, it has sustained." 10 ILCS 5/10-10 (West 2002).

"Under section 10-10 of the Election Code, the function of anelectoral board is limited to a consideration of objections to acandidate's nomination papers." Kozel, 126 Ill. 2d at 68; seeWiseman v. Elward, 5 Ill. App. 3d 249, 257, 283 N.E.2d 282 (1972)(interpreting section 10-10 "as limiting the Electoral Board'sscope of inquiry to the sole issue of whether a challengednominating petition complies with the provisions of the ElectionCode pertaining thereto").

Generally, in cases involving review of an electoral board'sdecision, its factual findings are presumed true and correct, andthose determinations will not be disturbed by a reviewing courtunless they are against the manifest weight of the evidence. SeeBill v. Education Officers Electoral Board of CommunityConsolidated School District No. 181, 299 Ill. App. 3d 548, 550-51, 701 N.E.2d 262 (1998); King v. Justice Party, 284 Ill. App.3d 886, 888, 672 N.E.2d 900 (1996). No court, however, is boundby either the Board's conclusions of law or its interpretation ofa statute. See Merisant Co v. The Kankakee County Board ofReview, No. 3-03-0185, slip op. at 5 (2004); King, 284 Ill. App.3d at 888. Review of those decisions is de novo. See Brennan v.Kolman, 335 Ill. App. 3d 716, 719, 781 N.E.2d 644 (2002).
 

I. MECHANICALLY ADDED PAGE NUMBERS

The Candidates first argue that the Board violated section10-4 of the Election Code when it mechanically added page numbersto the Candidates' petition.⁽³⁾ The Candidates contend that,because no provision in the Election Code permits the Board tomechanically add page numbers to a candidate's nominatingpetition once filed, the action was ultra vires, rendering theentire proceedings before the Board "null and void." TheCandidates also argue that, because the Objector cited to theBoard's void page numbers in referring to which of the petitionsignatures he believed were invalid, "he failed to comply withthe requirements of 10 ILCS 5/10-8 because he failed to statefully the nature of the objections to the nominating petitions byfailing to reference any page numbers on which his objectionsappear." Though characterizing the result as "harsh," theCandidates contend that the Objector's petition should have beenstricken. We disagree with the Candidates' arguments for tworeasons.

First, the language in section 10-4 upon which theCandidates rely, i.e., that a "petition, when presented or filed,shall not be withdrawn, altered, or added to," is a limitationplaced, not upon the Board, but upon a potential candidate. Section 10-4, entitled "Form of petition for nomination," setsforth numerous requirements for "[a]ll petitions for nominationunder this Article 10 for candidates for public office in thisState," including what each sheet in the petition must contain,how each signature must appear, where the circulator's verifiedstatement must be placed on each sheet, what must be contained inthat verified statement, how the sheets must be bound togetherbefore they are filed with the Board, etc. See 10 ILCS 5/10-4(West 2000). These requirements are not directives to orlimitations upon the power of the Board in determining thevalidity of a candidate's nominating papers; they arerequirements a candidate must adhere to in filing his petition orrisk having that petition invalidated. See Girot v. Keith, 341Ill. App. 3d 902, 904, 793 N.E.2d 935 (2003) (stating thatprovisions contained in section 10-4, such as "requiringcandidates to securely bind and number the petitions," are"mandatory, and failing to comply with even one of them willresult in the petitions' invalidation" (emphasis added));Stephens v. Education Officers Electoral Board Community CollegeDistrict 504, 236 Ill. App. 3d 159, 162, 603 N.E.2d 642 (1992)(finding that "section 10-4 prohibits candidates from filingmultiple sets of nomination papers for a single office" (emphasisadded)); Anthony v. Butler, 166 Ill. App. 3d 575, 580, 579 N.E.2d1193 (1988) (construing nearly identical language in section 7-10of the Election Code as prohibiting "a candidate" from filing"multiple sets of nominating papers" because to do so "wouldsubstantially burden the Board in its efforts to determine thevalidity of signatures appearing in a candidate's nominatingpapers" (emphasis added)).

Here, the plain language in section 10-4 upon which theCandidates rely merely prohibits a potential candidate from doinganything to his petition once it is "presented or filed," be itwithdrawing it, altering it, or adding to it. See 10 ILCS 5/10-4(West 2002). It would be unreasonable to read this language,contained in a provision of the Election Code dealingspecifically with requirements imposed upon a candidate who seeksto file a nominating petition, as a limitation upon the Board. For instance, while the Board can "invalidate" a potentialcandidate's petition if the mandates of section 10-4 are not met,it cannot simply "withdraw" a petition filed by a candidate. Simply put, the Board cannot "withdraw" something it did notfile. Therefore, because the requirements in section 10-4 do notlimit the powers or actions of the Board, the Candidates cannotrely upon language in section 10-4 to invalidate the Board's actof numbering the pages of their petition.

Second, far from being an ultra vires act, mechanicallynumbering the Candidate's petition was reasonably incidental "'toachieving the objectives for which the [Board] was created.'"Vuagnizux, 208 Ill. 2d at 188, quoting Schalz, 113 Ill.2d at 202-03. Section 10-4 of the Election Code mandates, inter alia, thatthe petition sheets be "numbered consecutively." See 10 ILCS5/10-4 (West 2002). This "consecutive page number" requirementfound in section 10-4 is mandatory, and a potential candidate whodoes not substantially comply with it risks having his nominatingpetition invalidated. See El-Aboudi v. Thompson, 293 Ill. App.3d 191, 192, 687 N.E.2d 1166 (1997); King, 284 Ill. App. 3d at890; Wollan v. Jacoby, 274 Ill. App. 3d 388, 393, 653 N.E.2d 1303(1995); Hagen v. Stone, 277 Ill. App. 3d 388, 391, 660 N.E.2d 189(1995); Jones v. Dodendorf, 190 Ill. App. 3d 557, 560, 546 N.E.2d92 (1989).

This "consecutive page number" requirement is not simply amundane rule or insidious, formalistic trap to keep independentcandidates off the ballot. Rather, it aids those persons whochoose to comb through what is likely to be voluminous pages of anominating petition in identifying "'specific pages'" or"'information contained thereon by reference to a page number'"and "prevents tampering, thereby preserving not only theintegrity of the petitions submitted, but also the electionprocess in general." Jones, 190 Ill. App. 3d at 562; Wollan, 274Ill. App. 3d at 394. Without page numbers that are accuratelynumbered in consecutive order, there may be "no way toeffectively ascertain whether additional pages were laterinserted or whether original pages were missing." Jones, 190Ill. App. 3d at 562.

Here, the Board's act of correcting the Candidates'misnumbered and, sometimes, illegible handwritten page numbers bymechanically stamping correct page numbers onto each petitionsheet not only furthered the purposes behind the "consecutivepage number requirement," i.e., aiding an objector'sidentification of alleged deficiencies in the petition,protecting the integrity of the petition by ensuring that nopages of the petition are missing, and preventing the possibilityof tampering (see Jones, 190 Ill. App. 3d at 562; Wollan, 274Ill. App. 3d at 394), it also aided its own internal processingof the Candidate's petition. In this sense, the mechanical pagenumbers are no different than the stamp bearing the date and timethe petition was filed and received by the Board. See 10 ILCS5/10-6.2 (West 2002) (stating that the Board "shall endorse" onthe petition "the day and the hour at which each petition wasfiled"). Though the Election Code does not expressly permit theBoard to mechanically add page numbers to a candidate's petition,the Board's act was both necessary and reasonably incidental tothe achieving the purposes for which it was created:administrating and protecting the integrity of the election lawsof Illinois. See 10 ILCS 5/1A-1 (West 2002); Jones, 190 Ill.App.3d at 562; Wollan, 274 Ill. App.3d at 394.
 

II. SUBPOENAS

The Candidates next argue that the Electoral Boardimproperly denied their motion to subpoena information in aneffort to determine whether the Objector's petition was compiledin violation of several provisions in the Election Code. Specifically, the Candidates alleged that State employees aidedthe Objector in sifting though the Candidates' nominatingpetition searching for suspect signatures while being paid bywhichever government agency employed them. The Candidates arguethat the Electoral Board should have investigated theirallegations and, if found true, should have stricken theObjector's petition.

Under section 10-10, the Electoral Board has the power to"administer oaths and to subpoena and examine witnesses and atthe request of either party the chairman may issue subpoenasrequiring the attendance of witnesses and subpoenas duces tecumrequiring the production of such books, papers, records anddocuments as may be evidence of any matter under inquiry before"it. 10 ILCS 5/10-10 (West 2002). "The plain language of section10-10 gives the chairman the discretion to issue subpoenas." Craig v. Electoral Board of Oconee Township, 207 Ill. App. 3d1042, 1048, 556 N.E.2d 775 (1991). However, as stated above,under section 10-10 of the Election Code, the Electoral Board's"inquiry" is limited to whether a candidate's nomination petitioncomplies with the requirements of the Election Code. See Kozel,126 Ill. 2d at 68; Wiseman, 5 Ill. App. 3d at 257.

In this case, the Candidates sought to have the ElectoralBoard investigate the manner in which the Objector compiled hisobjections. The Electoral Board, however, is no more required orempowered to conduct an investigation into how the Objector'spetition was compiled than it is to do so into the methodsemployed by the Candidates in obtaining signatures in theirpetition. Rather, the Electoral Board can determine only whetherthe Candidates' nomination petition complies with therequirements of the Election Code. Here, the Electoral Board wasrequired to determine how many of the signatures in theCandidates' petition were invalid based on the Objector'sallegations, i.e., due to illegible signature, incomplete voterinformation, incomplete circulator verification, forgery, orvoter fraud. The Electoral Board's authority to do anything musteither "arise from the express language of the statute" or"'devolve by fair implication and intendment from the expressprovisions of the [statute] as an incident to achieving theobjectives for which the [agency] was created.'" Vuagnizux, 208Ill. 2d at 188, quoting Schalz, 113 Ill.2d at 202-03. Nowhere inthe Election Code is the Electoral Board allowed or required toconduct an investigation into the propriety of the methods usedby the Objector in raising his objections to a candidate'snominating petition.

Moreover, under section 10-10, the investigatory power ofthe Electoral Board is specifically "limited to a considerationof objections to a candidate's nomination papers." See Kozel,126 Ill. 2d at 68; Wiseman, 5 Ill. App. 3d at 257. In otherwords, its inquiry is limited to the validity of thoseobjections; whether those objections were compiled by Stateemployees in violation of article 9 of the Election Code or othersections of the Election Code is simply not relevant to theissues of whether the Candidates' nominating papers satisfied theformal requirements in section 10-4 and whether the petitioncontained enough valid signatures to be placed on the November 2ballot. The Electoral Board correctly rejected the Candidates'subpoena request. See Wiseman, 5 Ill. App. 3d at 257-58 (findingthat the Electoral Board properly refused to issue subpoenasrequested by objectors relevant to issues beyond its scope ofinquiry).

We are mindful that access to a place on the ballot is asubstantial right that should not be denied lightly. Welch v.Johnson, 147 Ill. 2d 40, 56, 588 N.E.2d 1119 (1992). However,the Candidates do not question the Board's factual findings whichresulted in striking 12,255 signatures on their nominatingpetition, leaving only 20,182 valid signatures; almost 5,000signatures short of the 25,000 required. Based upon the reasonsmentioned above, we find that the circuit court properly affirmedthe decision of the Board.

Affirmed.

REID, P.J., and KARNEZIS, J., concur.

1. Specifically, in their motion the Candidates argued thatthe Objector and those who aided him violated section 29-4,"Prevention of voting or candidate support," section 29-17,"Deprivation of Constitutional Rights-Liability," and section 29-18, "Conspiracy to prevent vote-Liability."

2. Before filing suit in the circuit court of Cook County andwhile the objection to their petition was still pending beforethe Board, on July 27, 2004, the Candidates filed suit in federalcourt seeking a preliminary injunction requiring that the Boardplace their names on the ballot. In their request for apreliminary injunction, the Candidates raised severalconstitutional challenges to provisions in the Illinois ElectionCode, including the requirement that any candidate not nominatedby a party receiving at least 5% of votes in the most recentstatewide election must obtain at least 25,000 signatures fromqualified voters, the address for each voter who signed theirpetition must be the address at which the voter is registered tovote, and the petitions be submitted to the Board at least 134days before the election. See Nader v. Keith, No. 04-3183, slipop. at 2 (7th Cir. 2004). The Seventh Circuit rejected theCandidates' arguments, finding that these provisions were neitherunreasonable nor constitutionally infirm. See Nader, slip op. at6.

3. Section 10-4 of the Election Code states, in pertinentpart:

"A petition, when presented or filed, shall not bewithdrawn, altered, or added to, and no signature shallbe revoked except by revocation in writing presented orfiled with the officers or officer with whom thepetition is required to be presented or filed, andbefore the presentment or filing of such petition." 10ILCS 5/10-4 (West 2002).