By Zol87 from Chicago, Illinois, USA (Forest Park CTA Blue Line) [CC BY-SA 2.0 (https://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia Commons

While the primary election has passed, the November general election in the village of Forest Park will include a referendum on video gambling after a state appeals panel said the referendum in Forest Park was wrongly disallowed from the ballot.

In an opinion issued March 16, three Illinois First District Appellate justices reversed the judgment of Cook County Circuit Court Judge James R. Carroll, as well as the Forest Park Municipal Officers Electoral Board. Justice Thomas E. Hoffman wrote the opinion. Joy V. Cunningham concurred, as did Justice Mathias W. Delort, who also offered his own opinion.

Justice Thomas Hoffman
Justice Thomas Hoffman | Illinoiscourts.gov

At issue is a request from citizen group Let Forest Park Vote on Video Gaming, which on Dec. 18 filed a 3,522-signature petition with the village to place on the March 20 ballot a proposition on banning video casino machines in the village. On Dec. 27, an objector identified as James Watts, filed a petition with the village clerk, questioning the validity of the signatures as well as alleging violation of the state Election Code’s uniformity requirement. The objection noted six of the 276 submitted petition sheets incorrectly indicated the referendum should go on the Nov. 8, 2016, general election ballot.

On Jan. 17, Cook County Clerk David Orr’s office reviewed the matter, sustaining objections to 682 signatures, leaving 2,840 deemed valid. But after three January meetings, the Electoral Board determined the improper headings on six pages rendered all 276 sheets invalid. Let Forest Park Vote sought judicial review, but on Feb. 21 Carroll affirmed the original decision.

In considering the matter, Hoffman wrote, the appellate panel needed only to review the Electoral Board’s original decision. Further, he explained “the facts of this case are not in dispute; it is the legal effect of those facts which is at issue.”

While the panel agreed the six pages in question did violate the law’s uniformity clause, the justices said such an error doesn’t necessarily invalidate the entire petition, as “substantial compliance can satisfy even mandatory provisions of the Election Code.”

The panel cited its 2012 opinion in Samuelson v. Cook County Officers Electoral Board, which established “substantial compliance is sufficient when there is only a technical violation.” Finding the irregularity with only six pages to be “minor or technical in nature,” the panel said the flaw “does not affect the legislative intent to guarantee a fair and honest election, the deviation will not render the entire petition invalid.”

Watts didn’t argue, nor did the board find, that anything on the 270 sheets with the same headings failed to comply with either the Election Code or Video Gaming Act, the latter of which required signatures of 25 percent of the legal voters in the village. That threshold was 2,360, and even discounting the 90 signatures on the six incorrect pages, there remained 2,750 valid signatures.

Finding the board’s ruling “clearly erroneous,” the panel reversed the Electoral Board’s decision. While Watts argued the proposition should be scuttled on account of the March 20 ballot already having three such questions, the panel said he forfeited that issue by failing to raise it in his objections to the board or before the circuit court. And although there was nothing indicating the three other questions were filed before the gambling issue, the panel said it was impossible to certify the proposition in time for the March 20 ballot, and so it should appear on the next regular election ballot.

In his special concurrence, Delort took issue with the instructions that the Electoral Board order the village clerk to certify the proposition for the ballot. He said the board’s only role is to determine petitions valid or invalid and that the appellate panel should directly order the clerk to certify the ballot question.

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