Editor's note: This article has been revised from the initial edition, to include information received after publication, which corrected a statement made by a spokesperson for the Illinois State Board of Elections concerning Michael Kasper's history representing the ISBE.
Illinois election officials are scheduled to begin hearing objections later this month to the attempts by a host of candidates to place their names on the ballot this November.
And when they appear before the Illinois State Board of Elections, many of these candidates – and many of the objectors, challenging the ability of others to get their name before voters, in a host of races – may again be represented by one man in particular, Michael J. Kasper, an elections lawyer with deep, longstanding connections to the state Democratic Party and its leader, House Speaker Michael J. Madigan.
However, recently, Kasper briefly changed professional hats, moving from representing people before the state elections board, to representing the board itself in court, in a fight over the attempts by third-party and independent candidates to gain easier access to the November ballot.
And the ISBE is mum on whether such sudden professional hat-switching could create legal conflicts for Kasper and those whose causes he may again champion before the elections board this summer.
The conflict centers on the state’s response to the COVID-19 pandemic. More specifically, it centers on how the anti-COVID orders handed down by Gov. JB Pritzker may have impacted the ability of candidates not affiliated with the state’s Democratic or Republican parties to seek office this fall.
This spring, Pritzker issued an array of emergency executive orders he said were needed to slow the spread of COVID-19. These included the centerpiece of his pandemic mitigation strategy, a so-called stay at home order, which instructed Illinois residents to remain at home, except to go out on “essential” business.
The stay at home order and other COVID-related activity restrictions prompted the Libertarian Party and the Green Party to sue Pritzker and the state elections board in federal court. The political parties argued the governor’s restrictions made it all but impossible for their candidates, as well as independent candidates, to comply with the state’s rules governing the circulating of ballot nominating petitions.
The Libertarians and Greens argued that maintaining the typical ballot access rules would tilt the ballot placement process in favor of candidates affiliated with the Democratic and Republican parties, and infringe on the constitutional rights of other candidates.
Initially, the Illinois Attorney General’s Office, under Attorney General Kwame Raoul, a prominent Illinois Democrat, assigned Assistant Attorney General Erin Walsh to represent both the governor and the members of the Illinois State Board of Elections in the matter.
A few days later, however, attorney Kasper also appeared in court in the matter, as a “special assistant attorney general” on behalf of the state Board of Elections. Walsh continued to represent Pritzker.
Eventually, at the instructions of the judge hearing the matter, the parties and the state agreed to a deal: The Libertarians and Greens would be able to place candidates on the ballot either without circulating petitions, or with significantly reduced signature-collection requirements, depending on whether the parties had fielded a candidate in those races in the recent past.
However, shortly after agreeing to those new terms, the Illinois State Board of Elections filed a motion, asking the judge to reconsider her decision, and allow the state to rewrite the deal. In that filing, they claimed local election officials had complained a new later candidate filing deadline would make it too difficult to administer the November election.
The judge ultimately, mostly, sided with the third parties in the matter, as did a three-judge panel at the U.S. Seventh Circuit Court of Appeals.
The Board of Elections, however, on July 6 asked the appeals court to allow for more arguments in the case. They asserted the appellate judges need to weigh in, to set the parameters defining when and how federal judges can dictate to the state how to administer elections. That request was immediately opposed by the Libertarians, Greens and other plaintiffs in the case.
The Seventh Circuit has not yet ruled on the ISBE's request for further arguments in the matter.
However, the attempt to rewrite the deal with the third parties earlier this spring was led by Kasper, again as a special assistant Illinois attorney general, on behalf of the elections board.
Walsh’s name no longer appeared on the motion for reconsideration, or any other subsequent filings.
Kasper has a deep history in Illinois politics. In addition to routinely representing Illinois Democratic candidates and objectors, Kasper serves as general counsel for the Illinois Democratic Party. He has served as Speaker Madigan’s attorney.
Kasper also spearheaded the legal attack on the efforts to amend the Illinois state constitution to reform the method by which the state draws legislative districts, a process now dominated by Madigan and his political allies.
How Kasper ended up being assigned to represent the Illinois State Board of Elections, rather than a member of Raoul’s full-time staff, remains unclear.
Questions about the appointment were not answered by Raoul’s office. Rather, a spokesperson for Raoul said: “I would direct you to ISBE for comment.”
ISBE Executive Director Steve Sandvoss did not personally respond to questions from the Cook County Record, instead diverting the matter to the elections board’s spokesman, Matt Dietrich. Sandvoss has served in that role since 2014, after he was selected by the elections board.
Members of the ISBE are appointed by the governor.
Dietrich said the ISBE was not consulted regarding the appointment of Kasper, nor did the board vote on whether to approve the selection of Kasper as their lawyer in the matter.
He said the ISBE had “no contract” with Kasper for any of the work he did on the case.
“Mr. Kasper was assigned to us by the Attorney General,” Dietrich said.
Dietrich initially said he was “not aware of” any prior instances in which Kasper has represented the ISBE in any legal matter. However, after this article was initially published, he later retracted that statement, to say Kasper had been appointed as a special assistant attorney general representing the ISBE in 2011 in litigation launched by Republican state legislators, challenging the legislative districting map drawn up by Illinois Democrats, lead by Speaker Madigan and former state Senate President John Cullerton.
Just what Kasper’s representation of the ISBE may mean for the future, however, remains unclear.
When asked if Kasper’s involvement in the case on behalf of the elections board could cause him to be disqualified from representing candidates or objectors before the same elections board, at least during this election cycle, Dietrich deferred the question to the board’s regular lawyers.
The board later responded with a statement, saying only: “Mr. Kasper’s appointment as special assistant attorney general ended June 30. Objections won’t be heard until after the objection-filing deadline of July 27.”
The board did not reply to a request from The Cook County Record to clarify its response, specifically concerning any potential conflicts in Kasper’s professional representation.
Kasper's name did not appear on the July 6 motion for further arguments before the Seventh Circuit Court of Appeals. That document was filed by attorneys Adam Vaught and Lari Dierks, of the firm of Hinshaw & Culbertson, of Chicago, who were also appointed as special assistant attorneys general.
Vaught has represented Madigan personally in other legal matters.