Elections Fri Jul 24 2015

Federal Decision in PA Could Help Trigger Major Illinois Election Changes

By Phil Huckelberry

Originally reported by Ballot Access News, on July 24, a US District Court judge in Pennsylvania issued a 41-page opinion [PDF] ruling that state's system of imposing costs on unsuccessful minor party petitions is unconstitutional.

While Illinois does not impose such costs, other related aspects of election law are very comparable between the two states. With the case Summers v. Smart [PDF] still pending in U.S. District Court in Chicago, the Pennsylvania ruling may portend the end of the hated "challenge system" in Illinois. In the process, ballot access could expand greatly -- especially for third parties, but also for "maverick" candidates running in major party primaries and for Chicago aldermanic candidates. And if the General Assembly is smart, the electoral process changes could involve the institution of filing fees, which could be an entirely new revenue source at several levels of government.

In December 2014, I detailed the challenge system in the context of the Chicago aldermanic elections. To summarize briefly: When a candidate for public office submits petitions in Illinois, even if the paperwork is facially deficient (for example, only one signature submitted), the petitions are deemed good unless a voter files a formal objection.

If such an objection is filed, a quasi-legal administrative process begins which often requires candidates to retain high-priced attorneys and sit through an extremely onerous line by line signature review process typically called a "binder check." For statewide minor party and independent candidates, a binder check can involve the line-by-line review of as many as 30,000 raw signatures, potentially requiring three weeks of eight-hour days from a dozen volunteers. Even when there are more than enough valid signatures, such candidates are essentially punished by the process, to the extreme detriment of being able to conduct other aspects of their campaign.

Summers v. Smart was filed in 2014 by the slate of statewide Green Party candidates. The suit alleges that three aspects of the Illinois Election Code are unconstitutional: the page by page notarization requirement, the "full slate" requirement, and the "binder check" process. (Full disclosure: Although not a plaintiff or an attorney, I am an advisor to the legal team in this lawsuit, and the inclusion of the binder check allegation was largely at my insistence.)

Pennsylvania has a similar notarization requirement, which was ruled unconstitutional earlier this year in a separate case. Pennsylvania also utilizes a very similar process to the binder check, with two main differences. First, instead of an elections office conducting the review, an actual judge does. Second, in the event that a petition is deemed to have insufficient signatures, the petitioning candidates can be subject to paying the legal fees incurred by the challengers. It is this last, most obscene requirement, which was specifically stricken by Judge Stengel in Constitution Party of Pennsylvania v. Cortes.

Although the laws are not strictly the same, and the Pennsylvania ruling does not have any direct impact on Illinois law or the standing of the Illinois case, federal judges will often look to recent precedent from other circuits for guidance. The totality of the circumstances in the Pennsylvania case help bolster the Summers argument against the binder check process. One particularly relevant passage from the Pennsylvania decision:

The burdens imposed by Pennsylvania's Election Code are not only financial in nature. A nomination paper challenge involves a substantial investment in time and resources. In 2012, the [Libertarian Party] recruited 70 volunteers, their strongest supporters, to validate signatures. The objection proceedings extended from August 20 until October 10. As a result, the [party's] general election resources were completely diverted to the nomination paper defense.

This point about resource diversion is central to the argument in Summers. What makes a statewide petition so grueling is not just the high signature threshold (25,000), the limited collection period (90 days), and the other extenuating circumstances (page by page notarization). It is also that when a minor party does complete a statewide petition, they are typically dragged through an objection process which can last into August or even September. They may incur tens of thousands of dollars in legal fees. They may have to reroute all volunteer efforts to the binder check. On top of all of these spent resources, polls and other media coverage tends to exclude candidates who are not yet formally on the ballot, which makes conducting the campaign proper even more difficult.

Solution: Charge a Filing Fee

If the Green Party and its candidates prevail in the Illinois case, the immediate effect will be that the challenge process will be considered invalid, and it is not clear how election authorities might operate. But here is one possible solution for two problems: the General Assembly could institute filing fees for many office in lieu of signature collection. This would be an either/or approach -- a candidate without the financial resources could choose to collect signatures instead. Filing fees are in use in several states, and one tremendous advantage of such an approach is that it could generate revenue to offset the costs of election administration, instead of an existing process which consumes substantial resources from those election authorities.

According to Ballot Access News, 32 states use some kind of a fee model for primaries for statewide offices. And to take just one nearby example, Kentucky provides for fee schedules for almost all offices [PDF], from $500 for a statewide office to $20 for school board. It is at the level of the smallest offices where the revenue argument starts to bear fruit.

The petition requirement for school boards everywhere outside Chicago is 50 signatures. There are over 800 school districts in Illinois which typically elect seven members to staggered terms. Let's conservatively estimate that for about 850 districts, an average of four candidates will run every two years. Imagine an alternate filing fee of $50, and then speculate that half of all candidates chose the filing fee. That's $85,000 just for school board races. Now factor in city councils, library boards, park boards, community college boards, and township boards. Relative to the state budget, it's not a large amount. But combine this with eliminating the challenge process, having more candidates run since there are fewer obstacles, and a quick acceptance of the filing mechanism. It is easy to imagine the net difference being in the millions of dollars annually, with a particular advantage to very low population areas which are generally struggling the most. And that's without even considering ways that larger offices could be handled.

Given the depths of the state budget crisis and the increased likelihood of a victory in the Summers case, it behooves Springfield to preemptively act on substantial revisions to the Election Code. By introducing a filing fee option, lowering the most onerous of signature requirements, eliminating or greatly simplifying the notarization requirements, and eliminating the objection process in favor of an election authority driven process (which is the standard in most states), Illinois could expand democratic choices and do so in a way which would save the state money. It is actually a golden idea for Bruce Rauner to champion, since he has no vested interest in the existing process, and most of the changes which have made ballot access more difficult over the last 15 years have been directed by Michael Madigan. It is also a very smart issue for progressive Democrats to champion, since it fits in well with expanded same day voter registration and represents a new revenue source which is not regressive in nature.

Of course, Springfield is not typically known for pursuing common sense solutions. This is why the Pennsylvania case may be so important. Because there are sufficient similarities between the Pennsylvania and Illinois systems, the likelihood of key elements of the Illinois Election Code being thrown out in federal court has gone up significantly. When significant portions of state statutes have been thrown out elsewhere, the result has often been a federal court order mandating that minor parties are simply automatically put on the ballot, until such time that the state legislature amends the law to remove the unconstitutional parts. Because it is extremely unlikely that the General Assembly will allow such a situation to last long, a favorable ruling for the plaintiffs in Summers will almost certainly force the legislature to act.