Appellate Law

Illinois Election Board Tie Vote Dismissal Of Republican Party Complaints Reviewable By Appellate Court

By Steven R. Merican

The Cook County (Illinois) Republican Party filed eight complaints against various Democratic Party organizations and individuals asserting violations of the Illinois Election Code. The complaints were filed with the Illinois Board of Elections, which has eight members. The Board tied on each of the complaints, four to four, meaning there was not a majority vote on the question of whether the complaints were filed on justifiable grounds. Each complaint therefore was dismissed.

The Republicans filed a direct appeal to the Illinois Appellate Court, which is allowed by the Illinois Election Code. Because the Board did not state factual findings, the appellate court ruled that it did not have authority to review the question of whether the Republicans? complaints had justifiable grounds to proceed.

Instead, the appellate court stated that its jurisdiction was limited to the question of whether the Board acted ?contrary to law.? In this case, that meant assuring the actual vote count was accurate. The appellate court thus affirmed the Board?s dismissals.

The Republicans appealed to the Illinois Supreme Court. The Democrats asked the court to dismiss the appeal because: (1) it was premised upon reviewing tie votes by the Board; but (2) the Board?s orders did not state they were tie votes, so the supreme court ?must presume that the complaints were dismissed based on majority votes.?

The Illinois Supreme Court denied the request to dismiss the appeal. The court acknowledged the Board?s orders did not state whether they were based on tie votes, but:

Despite any shortcomings in the Board's final orders, we are not required to ignore the clear evidence of the tie votes in the hearing transcript ? A review of the transcript of the closed preliminary hearing clearly indicates the Board voted four-to-four on each of the complaints. We will not disregard the clear vote shown in the transcript of the hearing absent plain evidence that it did not reflect the Board's true vote. While the final orders should have stated the complaints were dismissed for "failure to determine" that they were filed on justifiable grounds, that error does not conclusively show the complaints were dismissed by majority vote of the Board. Thus, we find the record establishes that these complaints were dismissed on tie votes. Given that finding, we deny the respondents' motion to dismiss the appeal.

The Democrats also argued that the Board?s vote was not reviewable by a court because ?the Board?s exercise of judgment and discretion in its investigatory capacity must be ?absolute, final and non-reviewable.?? The supreme court disagreed, and ruled that it had authority under the Election Code to review the Board?s tie vote. ?The Board?s orders state they are ?final and appealable.? Hence, the orders are judgments of the Board. The [Republican Party] was adversely affected because the orders resulted in dismissal of its complaints without a public hearing. Those dismissals are, therefore, subject to judicial review under the plain language of section 9-22 [of the Illinois Election Code].?

Next up: The Illinois Supreme Court?s analysis of the standard of review of the Board?s dismissals. But if you can?t wait, click here for Cook County Republican Party v. Illinois State Board of Elections, No. 106139 (1/23/09

Full post as published by Illinois Appellate Lawyer Blog on April 22, 2009 (boomark / email).