A Republican Party rule aimed at preventing Democratic plants was too late to stop a committeeman from being elected to represent the 19th Ward on the city’s South Side.
An state appeals court found a bylaw prohibiting ward and township committeemen from holding office if they recently voted in another party’s primary infringed upon voter rights when it was enacted after ballots were already being cast for the March 2016 Republican primary election.
The 1st District Appellate Court ruled that while committeepersons are creatures of political parties, their elections are controlled by state law and implicate the state constitution’s right to vote.
In this case, that right was more persuasive than the Cook County and Chicago Republicans’ freedom-of-association rights, Justice Shelvin Louise Marie Hall wrote.
”In sum, citizens’ fundamental right to vote and the votes cast for committeemen are constitutionally protected. We conclude that the GOP’s attempt to nullify the election for ward committeeman through its bylaw revision during an ongoing primary election, while it implicated its fundamental right to freedom of association for political purpose, impermissibly and unconstitutionally burdened the citizens’ fundamental right to vote,” Hall wrote in a 23-page opinion last week.
Steven S. Graves filed nominating papers for 19th Ward Republican committeeman in November 2015. Less than a week before the March 15, 2016, primary election, the Cook County Republican Party amended its bylaws to state that a “vacancy shall exist” in any office in which an elected or appointed town or ward committeeperson voted in another party primary in the previous eight years.
That rule was “[b]ased on perceived infiltration of the Republican Party by Democratic Party operatives,” according to the appellate court opinion.
The Republicans’ lawyer in the case said in an interview this week that the party didn’t have an issue with Graves specifically. But it did see an influx of people with Democratic voting records run for the position in 2016 and wanted to enforce its rule consistently.
Graves won the election with 2,115 out of nearly 4,000 votes cast for the office. But when the party chair told him he didn’t qualify for the office a month later, he sought to have a judge declare his election valid.
He argued the rule conflicted with Section 7-8 of the Election Code, which spells out only that committeepersons must be residents of the ward where they seek election.
The GOP countered that absent a compelling interest, the state couldn’t interfere with the party’s right of association and ability to choose its own leadership.
But then-Cook County Circuit Judge Margarita Kulys Hoffman rejected a summary judgment motion filed by the Republicans in September 2018, noting the bylaw was added after primary voting had started and that courts typically favor ballot access.
She also cited Section 25-6 of the Election Code, relating to committeepersons’ duties to appoint state legislators in certain situations as evidence of a compelling state interest in how they are elected.
The case was reassigned to then-Circuit Judge Robert W. Bertucci in January 2018. A supplemental motion filed by the party argued that committeepersons are not public officers and even the sua sponte argument about Section 25-6 shouldn’t supercede the party’s right to handle its own leadership issues.
But in March that year, Bertucci granted declaratory judgment in Graves’ favor, acknowledging that while the position “includes public as well as private responsibilities,” the Republican Party had “changed its rules concerning the eligibility of publicly elected [c]ommitteemen” which “interfered with the fundamental right to vote.”
The court rejected the GOP’s motion to reconsider, and the Chicago Republican Party appealed in July 2018. The panel in the decision last Friday also noted it was the only party to the appeal and failed to provide any transcripts from earlier proceedings.
Still, the majority likened the case to the 1996 Illinois Supreme Court decision in Tully v. Edgar. In that case, the justices struck a state law changing the University of Illinois’ board of trustees from an elective to an appointed body after finding it violated the right to vote outlined in Article III of the Illinois Constitution.
Plaintiffs in the Tully case were elected trustees who were effectively removed from office before their terms were expired. They didn’t dispute the General Assembly can ultimately change the law about the board’s makeup, but they argued the right to vote was impinged there because the effect of the law was to nullify their election and their terms in office.
“In essence, there was a timing issue of when such change could be made, much like the one we are facing in the case at bar,” Hall wrote.
The high court there found the law did not survive a strict scrutiny analysis. And the panel here used that same type of analysis to find the bylaw could not be upheld in this context.
Such an analysis asks whether there’s a compelling interest for the law, whether it was necessary to achieve the party’s goal and whether it was the least restrictive means of doing so.
Although the freedom to associate for political purposes is a compelling interest, the panel ruled the bylaw wasn’t narrowly tailored to achieve the GOP’s goal. Although Hall wrote the party had the right to determine criteria for its leaders, it shouldn’t be able to make new rules after the game began.
“There were other means for the GOP to accomplish its goal, namely that the bylaw revision could have taken place prior to the voting for the primary or it could have been put into effect for the next election,” wrote Hall, joined in the decision by Justice Mary K. Rochford.
”As such, we conclude that the GOP’s bylaw revision does not meet the strict scrutiny standard and violates the right to vote guaranteed under the constitution.”
Justice Mathias W. Delort authored a special concurrence, agreeing with the final result but disagreeing on parts of the process and suggesting the majority’s decision itself was too narrow.
He wrote the Tully court was correct to use strict scrutiny because it was construing a state law. Here, that wasn’t the case.
He added that state law doesn’t give the parties “veto power” at all, regardless of whether they have “fair notice” of new rules. GOP committeepersons are part of many party groups: county central committees, municipal committees and subcircuit committees among them. What if they all started adopting different rules?
“Allowing party committees to exercise veto power over the voters could lead to an absurd result where a committeeman would serve on some statutory committees, but not others. Nothing in state law grants the county committee, as opposed to any one of the other committees, some sort of veto power over voters,” Delort wrote.
“The solution is simple: The voters are the gatekeepers, and their choice should prevail.”
Stephen F. Boulton, an attorney with Anthony J. Peraica & Associates Ltd., represented the Chicago Republican Party, the only group party to the appeal.
He said party officials are disappointed with the court’s decision and they’re considering an appeal. The bylaw has been altered since 2016 and the party believes Graves has been “a good committeeman,” he said.
“We had to be consistent,” he said in an interview on Thursday.
He added the result of the 2016 election wasn’t the reason they were still fighting the case.
“We didn’t take the appeal to get Steve Graves. We cannot stand with this judicial view that the state’s power over political parties is as great as the state of Illinois would like to assert,” Boulton said. “Because we believe with the First Amendment they’ve gone too far.”
Graves did not participate in the appeal.
The case is Steven S. Graves v. Cook County Republican Party, et al., 2019 IL App (1st) 181516.
EDITOR’S NOTE: The decision was released Feb. 14, 2020, but the opinion released by the appellate court clerk lists a 2019 citation.