Text of the Electoral Board Decision:

This matter came on for hearing before the Electoral Board of Saline County, Illinois, on May 28, and June 3, 2004, on the objector’s petition pursuant to section 10-8 of the Election Code (10 ILCS 5/10-8), filed by Kenneth J. McSparin on May 24, 2004, objecting to the validity of the nominating papers of Todd P. Bittle to fill a vacancy of the Republican Party for the office of Saline County State’s Attorney in the November 2, 2004, general election.

The Board has now considered all the oral and written evidence and arguments presented on behalf of the objector and the challenged candidate, and now being fully advised makes the following findings and announces the following decision:

1. On May 7, 2004, Todd P. Bittle filed with the county clerk of Saline County a statement of candidacy and other nomination papers, requesting that his name be printed upon the official ballot as the Republican candidate for the office of Saline County State’s Attorney, to be voted upon at the general election to be held on November 2, 2004.

2. In his sworn statement of candidacy, Mr. Bittle says among other things that he is “a qualified Primary voter of the Republican party.”

3. It is undisputed that in fact Mr. Bittle voted as a Democrat at the primary election on March 16, 2004.

4. The election code does not prohibit a person from voting in the primary election of one party, and then running for office as a nominee of another party in the same election cycle.

5. Neither the statement of candidacy nor the election code define the term "Qualified Primary Voter".

6. The resolution of the Saline County Central Committee of the Republican Party to name Mr. Bittle to fill the vacancy as the Republican candidate for state’s attorney, although, bearing the date “5-7-04,” does not state upon its face the date of Mr. Bittle’s selection.

7. The Saline County Republican caucus at which Mr. Bittle was selected to be the candidate for State’s Attorney (putting aside questions as to whether there was legitimate caucus, with proper notice and a quorum) occurred on May 6, 2004. That date does not appear upon the face of the resolution.

8. The requirement of section 7-61 of the Election Code that the resolution to fill a vacancy in nomination specify upon its face the date upon which an individual was selected is mandatory. Zerante v. Bloom Township Electoral Board (1st Dist. 1997), 287 Ill. App. 3d 976, 980.

9. The Board was not provided with a case which holds that the events related in a signed document were presumed to have occurred on the date the document was signed.

10. Because the date of Mr. Bittle’s selection is not specified upon the face of the resolution, his nomination papers are legally insufficient.

On the vote to sustain the first objection, stated in paragraph 2A of the objector’s petition:
Mr. Clore, No: Mr. Tison, No: Mr. Nolen, No.

On the vote to sustain the second objection, stated in paragraph 2B of the objector’s petition:
Mr. Clore, Yes: Mr. Tison, Yes: Mr. Nolen, No.

Therefore; the Board having sustained at least one of Objector's objections, we hereby declare that the vacancy was not filled in accordance with section 7-61 of the Election Code, that nomination papers filed by Todd P. Bittle are invalid, and that his name is not to be listed on the ballot at the November 2, 2004 general election.

Dated: June 22, 2004.
The Electoral Board of Saline County

[signed]
Kenneth Clore, Chairman

[signed]
Lowell D. Tison, Jr.
Assistant State’s Attorney

[signed]
Jack T. Nolen
Circuit Clerk

129 days and counting

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Bittle to appeal decision

As reported by Eric Fodor in an article in Wednesday's Daily Register:

In a split decision, the county's electoral board voted to remove Todd Bittle as a candidate for state's attorney.

The 2-1 vote, which came 11 days after the board deliberated for the last time, will be appealed by Bittle and his attorney, Todd Lambert. They have 10 days to appeal the decision to the Circuit Court.

Bittle was selected as the Republican candidate for state's attorney at a May 6 party caucus. The county GOP did not have a candidate in the March primary election.

Electoral board members Kenneth Clore and Lowell Tison agreed the nomination papers submitted to County Clerk Willie McClusky the day after the caucus were flawed enough he should be taken off the ballot.

The caucus was held on May 6 while the resolution of candidacy was dated May 7 in the space provided on the form for a date. State law requires the date of the caucus to appear on the nominating papers, not the date the paperwork was returned to the county clerk, according to the board's written decision.

The form, supplied by McClusky, has two spaces on it for a date -- one apparently for the date of the notarized signatures and another that may be for the date of caucus, although the form does not specify that's the date to be entered. In an apparent concession the supplied form may be vague, the board voted to recommend McClusky revise the form so "date of selection," "date of caucus" or a similar phrase is used to clarify what date is called for on the resolution of candidacy.

The resolution of candidacy Bittle used was a standard form issued by the Illinois State Board of Elections.

Jack Nolen, the third member of the electoral board, disagreed with the board's ruling, saying the resolution form does not contain a "date of selection" on its face.

"A candidate accepts the form as provided by the election authority of the county as being a valid form at the time of filing," Nolen contended in a written statement.

"I compare this to a comment that if a state trooper arrests an individual, the arrest is not valid unless the trooper has a hat on. The trooper might look more professional with his hat on, but the fact he does not have it on does not affect the arrest procedure."

All three electoral board members rejected a claim that Bittle should be taken off the ballot because he voted in the Democrat primary before becoming the Republican candidate for state's attorney.

The objection to Bittle's candidacy was filed by Kenneth McSparin, who said he is pleased by the board's decision.

"That's the result I wanted. I wanted my candidate of choice," McSparin said.

McSparin said he is a staunch supporter of Democrat candidate David Nelson, but nobody put him up to making a ballot challenge on Nelson's behalf or on behalf of the Democrat Party.

"Anyone who says I did this for the Democratic Party doesn't know why I did this."

McSparin said his goal is not to keep anyone off the ballot, but he believes the process by which Bittle tried to get on the ballot was flawed.

If a candidate wants to run for election, he should get grassroots support in a primary rather than waiting for a party to hold a caucus after no candidate runs in the party primary, McSparin said.

"If he wanted to run he should've run to begin with. He was unopposed. He would have had the nomination," McSparin said.

Bittle believed the evidence presented to the electoral board was in his favor.

"I can say I am disappointed, of course, with the decision," Bittle said.

Even though he was disappointed, Bittle expected the outcome, he said.

Republican County Chairman Monty Field also said he believes the outcome was a foregone conclusion.

"We knew we lost this thing before the hearings even started, and we knew to have a shot at this thing we would have to have judicial review (of the board's decision)," Field said.

Electoral board decision to come Tuesday afternoon

The Saline County Electoral Board has announced that it will render its decision on Kenneth J. McSparin's objection to the nominating papers of would-be Republican state's attorney candidate Todd Bittle at a public meeting Tuesday at 2:00 p.m. at the courthouse.

Has the electoral board reached a decision?

It has, according to an article by Staff Writer Eric Fodor which appeared in Friday's Daily Register. Fodor wrote:

"The electoral board deciding the fate of Todd Bittle's Republican state's attorney candidacy apparently has finished deliberating the case.

"A decision has been reached, but board chairman Ken Clore on Thursday declined to talk about the decision until a written opinion is issued.

"Under the Illinois Open Meetings Act, the taking of a final action at any closed meeting is prohibited. ...

"The electoral board, consisting of Circuit Clerk Jack Nolen, Assistant State's Attorney Lowell Tison and Clore, who was appointed chairman by Judge Michael Henshaw after County Clerk Willie McClusky withdrew from the committee, met about 1 1/2 hours Wednesday afternoon and another hour Thursday afternoon. Clore will write an opinion based on those deliberations, which were held closed to the public."

The candidate with some young supporters at the Old Settlers' Day parade

Many thanks to local historians Billy Beal and Rollie Moore for hauling me around Galatia Saturday afternoon, while I exercised my throwing arm dispensing candy.

"Electoral board deliberates ballot question," from Thursday's Daily Register:

Thursday, June 10, 2004 4:44 PM CDT
By Eric Fodor
Staff Writer

HARRISBURG - The electoral board deciding the fate of Todd Bittle's state's attorney candidacy has begun deliberating the case.

The electoral board, consisting of Circuit Clerk Jack Nolen, Assistant State's Attorney Lowell Tison and Ken Clore, who was appointed chairman after County Clerk Willie McClusky withdrew from the committee, met about 1 1/2 hours Wednesday afternoon. The board is to resume deliberating this afternoon, after which a decision may be announced, Nolen said.

The deliberations are behind closed doors, but the board is expected to hand down a written decision some time after their announcement. The decision of the board can be appealed to the circuit court.

Kenneth J. McSparin filed an objection 3 p.m. May 24 to Bittle's Republican candidacy, which was declared after a caucus of the county's Republican Central Committee May 6.

The objection claims Bittle is ineligible for the November General Election ballot because he voted in the March Democrat primary before accepting the Republican Central Committee's nod to be the party's candidate.

McSparin also contends Bittle's petitions should be invalid because the date of his selection does not appear on the nomination papers.

If Bittle remains on the ballot, he will face Democrat David Nelson in the November General Election.

In two hearings, Walden Morris, attorney for McSpairin, and Todd Lambert, attorney for Bittle, have presented evidence and legal arguments to strengthen their cases. Morris argued at a hearing June 4 Bittle's nominating petition being signed May 7 -- the day after the caucus -- and no date of the caucus being on the filing constitute flaws that should exclude Bittle from the ballot.

Lambert said while it is true the paperwork was signed the day after the caucus, the meeting was basically continued until a notary public could be found the next day to witness Bittle, GOP Chairman Monty Field and party Secretary Norma Gibbs signing the nominating papers.

Morris argued at the June 4 hearing Bittle's choice to vote a Democrat ballot in the March primary excludes him from running as a Republican in the General Election. Until the next primary, Bittle is in effect a Democrat, Morris reasoned.

Lambert said there is no state law prohibiting party switching -- as long as the switcher is not simply jumping parties because his own candidacy in one party failed. Bittle did not run in the Democrat primary; he only voted, Lambert contended.

"Todd Bittle can be a Democrat today and a Republican tomorrow ... there is no prohibition on party switching," Lambert said at the June 4 hearing.

Postscript: I've noticed a tendency on the part of the print version of the Register to editorialize in the headlines. For this story, for example, in place of the factual headline quoted above, the print version had: Deliberation continues in 'paperwork election' (whatever that means).

GOP caucus was May 6, 2004

According to minutes of the Saline County Republican Central Committee entered into evidence at the meeting of the electoral board, the caucus met at 5:30 p.m. on May 6, 2004, with chairman Monty Field presiding. The purpose of the meeting was declared to be "to select attorny[sic]Todd P. Bittle to fill the vacancy as Republican Candidate for Saline County States Attorny to be placed on the November 2004 ballots."

The minutes state that after Sheriff Ed Miller, county board member Ryan Lambert, and county board candidate Chris Field spoke in favor of Bittle, Warren Stricklin "moved to nominate or caucus Todd P. Bittle as candidate for Saline County State's Attorney for November 2004 election." The motion was seconded by Ryan Lambert, and carried by unanimous vote, after which the meeting was adjourned by chairman Monty Field.

One of the objections before the electoral board is the failure of the GOP's resolution to state on its face the date of Bittle's selection. This is required by the Election Code, and the Appellate Court has held that this is a mandatory requirement.

According to the report in the Daily Register/Daily Journal, Bittle's attorney Todd Lambert argued that "substantial compliance with the intent of the law" is all that is required.

Other documents in evidence prove that Bittle did indeed vote in the Democratic primary, despite swearing in his statement of candidacy that he was a "qualified primary voter of the Republican party."

As former Saline County State's Attorney Walden Morris, representing objector Kenneth J. McSparin before the electoral board, said:

"That cannot be true. That is not true."

Here's the brief the objector filed with the electoral board:

PROCEEDINGS BEFORE
THE ELECTORAL BOARD OF
SALINE COUNTY, ILLINOIS

IN RE: THE OBJECTION OF
KENNETH J. McSPARIN

Brief in Support of Objection

On May 7, 2004, Todd P. Bittle filed with the county clerk of Saline County a statement of candidacy and other nomination papers, requesting that his name be printed upon the official ballot for the office of Saline County state’s attorney, to be voted upon at the general election to be held on November 2, 2004.

In his sworn statement of candidacy, Mr. Bittle says among other things that he is “a qualified Primary voter of the Republican party.” In fact, voting records indicate that Mr. Bittle voted as a Democrat at the primary election on March 16, 2004.

A resolution signed by Monty R. Field and Norma J. Gibbs, identified as the chairman and secretary of the Saline County Central Committee of the Republican Party, is among the papers filed by Mr. Bittle. The document bears the date “5-7-04,” apparently the date on which it was signed by Field and Gibbs before a notary public, but the date of Mr. Bittle’s selection to fill the vacancy is not stated anywhere upon the face of the resolution.

Section 7-61 of the Election Code of Illinois (10 ILCS 5/7-61) sets out the procedure by which a vacancy in nomination for an office can be legally filled by an established political party. The law provides that “no candidate of the party for the office shall be listed on the ballot at the general election unless such vacancy is filled in accordance with the requirements of this Section * * *.” Among those requirements are that the party’s resolution to fill a vacancy “shall include, upon its face, * * * the date of selection.”

Section 7-61 also requires a sworn statement of candidacy as prescribed in Section 7-10 (10 ILCS 5/7-10): the candidate must state under oath that he or she is a “qualified primary voter” of the party to which the petition relates. The requirements of section 7-10 are mandatory and not directory. Bowe v. Chicago Electoral Board (1980), 79 Ill. 2d 469, 470.

Mr. Bittle’s nomination papers clearly fail to comply with the law in two respects:

First, they falsely claim that he is a qualified primary voter of the Republican party, when in fact he voted in the Democratic primary in this election cycle. Thus, in the very primary at which candidates for this office were to be nominated by the established political parties, Mr. Bittle declared to the primary judges (pursuant to section 7-44 of the Election Code, 10 ILCS 5/7-44) his affiliation with the Democratic Party.

However broadly one may define what a “qualified primary voter” of the Republican Party is, it cannot include someone who has in fact voted in the Democratic primary in this very election.

An Illinois voter can choose to vote in either the Democratic or the Republican primary, changing his affiliation in each primary election if he or she chooses. But a voter can only vote one party’s ballot in each primary: Democratic or Republican, but not both in the same election. Even more so must a would-be candidate be prohibited from claiming to be both a Democrat and a Republican in the same election.

The Illinois Supreme Court addressed this point many years ago, in Sperling v. County Officers Electoral Board (1974), 57 Ill. 2d 81, 84-85:

“We believe that the standards governing party changes by candidates may and should be more restrictive than those relating to voters generally. It seems to us clear that the State’s interest in preserving the integrity of the political process will support a reasonable restriction upon party-switching by candidates * * *.” 57 Ill. 2d at 84-85.

To decide that it was not reasonable to restrict a would-be candidate who actually voted in the Democratic primary during this very election cycle from claiming to be a “qualified primary voter of the Republican Party” so that he can get on the ballot as a Republican for the general election after voting in the Democratic primary, would be to abandon the State’s interest in preserving the integrity of the political process. A sworn statement of candidacy is required by law. The statement should be true, and it should mean something. This Board should so declare by sustaining this objection.

The second fatal flaw in Mr. Bittle’s nomination papers is that the party resolution to fill the vacancy does not include upon its face the date of Mr. Bittle’s selection. The Appellate Court of Illinois, in the case of David M. Zerante v. Bloom Township Electoral Board, et al. (1st Dist. 1997), 287 Ill. App. 3d 976, 980, has unequivocally held the provision of section 7-61 of the Code requiring a resolution to specify the date upon which an individual was selected to fill a vacancy in nomination to be mandatory. If the date is not specified, the nomination papers are legally insufficient.

The fact that a resolution contains the date of signing and acknowledgment does not satisfy the requirement: “We know of no case which holds that the events related in a signed document are presumed to have occurred on the date that the document was signed.” 287 Ill. App. 3d at 979.

The requirements of the statute are clear, and they are mandatory. Mr. Bittle’s failure to follow the law provided for getting on the ballot without running in the primary election means that his nomination papers are fatally deficient. The objection must therefore be sustained.

As the Appellate Court for the Fifth District stated in the recent case of Nancy Forcade-Osborn v. The Madison County Electoral Board, et al.(5th Dist. 2002), 334 Ill. App. 3d 756, 760, citing the Zerante case with approval:

“It is true that Illinois courts favor ballot access for candidates who wish to run for public office. This does not mean, however, that mandatory requirements can be circumvented. * * *

“Petitioner had three different statutory mechanisms for gaining access to the ballot. Petitioner chose not to subject herself to two of those options, both of which required a showing of ‘grass roots’ support. Petitioner's nomination was made by just three individuals. Under those circumstances, we cannot fault the legislature for being very specific on the manner in which one's name is placed on the ballot when one has chosen not to follow the ‘customary’ procedures for nomination. It is the conduct of petitioner's representatives * * * that serves to deny petitioner access to the ballot for the November 2002 election. The rules are not hypertechnical as petitioner suggests but are designed to ensure the integrity of the election process in general.”

Respectfully submitted,
Kenneth J. McSparin

"Electoral board hears arguments in Bittle matter," from the Daily Register:

Friday, June 4, 2004 3:06 PM CDT
By Eric Fodor
Staff Writer

HARRISBURG - The electoral board deciding the fate of Todd Bittle's candidacy for state's attorney heard arguments last night and held off making a final decision.

Kenneth J. McSparin filed an objection 3 p.m. May 24 to Bittle's candidacy, which was declared after a caucus of the county's Republican Central Committee May 6.

The objection claims Bittle is ineligible for the November General Election ballot because he voted in the March Democrat primary before accepting the Republican Central Committee's nod to be the party's candidate.

McSparin also contends Bittle's petitions should be invalid because the date of his selection does not appear on the nomination papers.

Evidence

Both sides in the dispute agree on the basic facts -- the law surrounding the facts is the subject of the hearing. Bittle was nominated by caucus May 6 to run as the Republican candidate for state's attorney against David Nelson, who won a bruising primary against Kelly Phelps.

Bittle acknowledges voting in that primary, saying he felt an obligation as an attorney to vote in the only race available for state's attorney. Bittle decided to run after Republicans began courting him for the race in April, he said.

The Republican Central Committee met May 6 and nominated Bittle as the party's candidate. The nominating petitions have to be witnessed by a notary public. The only notaries present were those who were required to sign the nomination papers -- GOP Chairman Monty Field and party Secretary Norma Gibbs.

Bittle, Field and Gibbs decided to sign the paperwork the next morning at the Circuit Clerk's office, where Gibbs works. Most if not all of Nolen's staff are notaries.

The nominating papers were notarized May 7 and delivered to McClusky's office.

McSparin's attorney, Walden Morris, contended Bittle's Democrat primary vote and the lack of a date on the nomination papers should make Bittle ineligible for the November ballot.

The nominating papers require a candidate to declare himself a qualified primary voter of a particular party. Despite having voted in the Democrat primary, Bittle wrote "Republican" on the form. Morris said that is incorrect -- for now, Bittle is a Democrat primary voter.

"That cannot be true. That is not true," Morris said.

Bittle cannot run or be legally considered a GOP primary voter until he has an opportunity to choose a GOP ballot in the 2006 primary, Morris said.

Todd Lambert, Bittle's attorney, said being a qualified primary voter is not clearly defined by law.

"One is left to wonder what that means," Lambert said.

Lambert contended party affiliation can be switched at any time under Illinois law.

"Todd Bittle can be a Democrat today and a Republican tomorrow ... there is no prohibition on party switching," Lambert said.

Morris also argued the nominating petition being signed May 7 -- and no date of the caucus being on the filing -- constitutes a flaw that should exclude Bittle from the ballot. State law requires the date of the caucus to be on the nomination papers, Morris said.

Minutes from the May 6 caucus also do not indicate a quorum of GOP precinct committeemen were present at the meeting where Bittle was nominated, he said.

A quorum was never clearly defined at the hearing. It is not yet clear whether a quorum is a majority of precinct committeemen, a majority of weighted votes represented by precinct committeemen or some other definition.

There are 42 precinct committeemen; about 25 or 27 showed up for the meeting, according to testimony by Gibbs and Joe Jackson, vice-chairman of the GOP.

Lambert said substantial compliance with the intent of the law is all that is required in this case.

"The resolution filling the vacancy (on the ballot) has to be delivered within three days of the action by which the vacancy was filled (in this case by caucus)," Lambert said.

The GOP committeemen present at the meeting knew Bittle would be the party's candidate and knew the paperwork would be finalized the next morning when a notary public was found, Lambert said. In essence, the meeting was continued until the papers were signed in the presence of a notary, he reasoned.

The electoral board will make a decision and notify both sides in writing, according to Ken Clore, who now is the chairman of the electoral board since County Clerk Willie McClusky took himself off the board.

The decision of the board can be appealed to the circuit court.

McClusky withdrew

Before the board heard evidence, McClusky declared himself off the board because he was on Bittle's list of witnesses. Lambert argued last Friday and in a legal brief filed Tuesday that McClusky should not sit on the board because of a potential conflict of interest. He would, in effect, be deciding his own credibility as a witness if he remained on the board, Lambert said. Lambert also argued McClusky's office staff should be excluded because they would be determining the credibility of their boss' testimony -- and possibly jeopardizing their own employment in the process.

"Since they would be weighing his testimony, they could believe their jobs might be jeopardized by failing to give his testimony sufficient weight, or that other problems could arise with their employment, like raises in pay or advancements in the office not coming their way if they didn't give his testimony sufficient weight. The conflict is not created by the reality of what would or would not happen to the assistants if they served on this board, but rather the possibility of consequences which in turn could affect the way the assistants decide how much weight to give his testimony," Lambert wrote in his brief to the electoral board.

While county clerks are potential witnesses to all electoral problems, McClusky recused himself anyway -- but not before questioning the motives of Lambert in filing a motion to disqualify him.

"I have done this at the request of the attorney for Todd P. Bittle even though I believe that their objection to my service and my staff's service on the electoral board represents partisan politics at its worst," McClusky said in his written statement.

McClusky notified Chief Judge Michael Henshaw of his decision and Henshaw appointed Clore to serve in McClusky's stead.

Clore, a former investigator for the Illinois State Police, joins Circuit Clerk Jack Nolen and Assistant State's Attorney Lowell Tison on the board. Tison is replacing State's Attorney Rod Wolf, who just finished trying the Raymond Moss case.

Electoral board to reconvene Thursday evening

The Saline County Electoral Board will reconvene tomorrow, Thursday, June 3, at 7:00 p.m. at the courthouse in Harrisburg to consider Kenneth McSparin's objection to the legality of Todd Bittle's nomination by the Republican County Central Committee. If you're interested in seeing government and politics in action, you should be there. The meeting is open to the public. (I'm told that the first time they met, last Friday, there was only one Democrat in the audience.)