A federal judge has dealt a significant legal setback to a Republican lawyer who alleged the office of Cook County Clerk Karen Yarbrough cheated him out of a judicial term during the 2020 election cycle.
Last December, Park Ridge attorney Frank R. DiFranco sued Yarbrough, the Cook County Board of Elections, Illinois State Board of Elections and Patricia Fallon, the presumptive winner in the race for the contested judgeship. He alleged Yarbrough didn’t stop counting votes until Nov. 22, instead of Nov. 17. Other allegations included altered postmarks on mail-in ballots, accepting absentee ballots in person after the deadline, keeping election judges from detecting duplicate votes and allowing regular ballots when provisionals were required.
Fallon, a Democrat, became chief of human resources in the Cook County Recorder of Deeds Office while Yabrough was recorder in 2017. Yarbrough was elected Cook County Clerk in 2018. Her office has since absorbed the functions of the Recorder’s office, after voters approved a referendum in 2018 dissolving the Recorder’s office, and transferring those functions to the Clerk’s office.
Cook County Clerk Karen Yarbrough
| Youtube screenshot
The Illinois Supreme Court named Fallon a Cook County judge in July 2019. Her 2020 race against DiFranco was for the Cook County Circuit Court’s 12th Judicial Subcircuit, which covers much of the northwest suburbs, including Maine, Elk Grove and Wheeling townships. Fallon won by 502 votes.
U.S. District Judge Charles Norgle issued an opinion Nov. 29 on separate motions to dismiss from the Illinois State Board of Elections, as well as from both Fallon and Yarbrough.
ISBE argued the 11th Amendment bars DiFranco from suing it in federal court, because it is a state agency and not an individual. Norgle agreed, and although DiFranco said he could amend his complaint to name ISBE members as defendants, Norgle said such an amendment would be futile because the only available relief would be an injunction — and that is only available pursuant to a federal law violation.
DiFranco’s allegations, Norgle wrote, “are cloaked as federal constitutional claims” but “depend on the interpretation (and alleged violation) of Illinois state election law.” Furthermore, Norgle said, the complaint lacks allegations about specific decisions or acts that infringed on DiFranco’s civil rights.
Norgle also dismissed a claim alleging the election law’s discovery recount audit protocol is unconstitutional. He cited several reasons lawmakers “may have chosen to limit the discovery audit to a certain percentage of precincts and restrict voters from filing discovery petitions,” and although other limitations are possible, the ones in place don’t abridge an individual right.
Fallon and Yarbrough said they should be dismissed because DiFranco also is challenging the election in state court. Norgle declined to do so, instead staying DiFranco’s federal complaint pending resolution of the state lawsuit. In that action, DiFranco has asked a judge to order a complete recount of all ballots and declare him the rightful winner.
The federal and state lawsuits are not identical, but parallel, Norgle wrote, and “the factors regarding concurrent jurisdiction, piecemeal litigation, the source of governing law, the adequacy of state-court action to protect plaintiff’s rights and the contrived nature” of DiFranco’s lawsuit favor Fallon and Yarbrough. For Norgle to decide first would mean finding the women broke state law “and would thereby disrupt the state court proceeding.”
By staying the complaint, Norgle continued, the only unavoidable delay is in the resolution of DiFranco’s damages claims, while it is possible the state court resolves or narrows DiFranco’s federal action. Norgle ordered DiFranco to give monthly status reports on the state lawsuit, with the next due on Dec. 30.
DiFranco is represented in the federal action by attorneys Tim Biasello, of Park Ridge; Ilia Usharovich, of Wheeling; James Karahalios, of Park Ridge; and Michael Pieczonka, of Park Ridge.
Norgle was appointed to the federal bench in 1984 by former President Ronald Reagan.