UPDATE: A judge in Springfield has rejected the request from a group of prospective Republican General Assembly candidates for temporary restraining order to block the law from being applied to their candidacies and guarantee them the right to place their names on the November ballot to challenge Democratic incumbents for the Illinois State House and Senate.
The Cook County Record could not obtain on Friday a written order concerning the decision from Sangamon County Judge Gail Noll. However, a note posted to the online court docket for the case confirmed a hearing on the matter was held Friday, and the judge denied the TRO request.
Another hearing in the case is set for May 22 in Springfield.
Jeffrey Schwab
| Liberty Justice Center
INITIAL REPORT, PUBLISHED MAY 13:
Saying the law unconstitutionally rewrites the rules of Illinois elections in the middle of the election cycle, a group of prospective Republican General Assembly candidates have become the first to challenge a controversial new "anti-democracy" elections law, rushed through the state legislature by the state's Democratic supermajority in less than two days, which could block a number of Republican candidates from running against Democratic incumbents throughout the state.
On May 11, prospective Republican state legislative candidates Leslie Collazo, Daniel Behr, James Kirchner and Carl Kunz all filed suit against the Illinois State Board of Elections, individual members of the ISBE, and Illinois Attorney General Kwame Raoul.
Those state officials are targeted as defendants for procedural reasons.
The real target of the lawsuit is the new law, generally known as Senate Bill 2412.
The Democratic supermajority in the Illinois General Assembly enacted the legislation in less than 48 hours in early May. The law was then signed by Gov. JB Pritzker, also a Democrat, on May 3. It took effect immediately.
Democrats accomplished the normally impossible legislative feat by using a longstanding, but increasingly controversial legislative tactic derisively known as "gut and replace."
Ordinarily, the Illinois state constitution forbids lawmakers in the state House and Senate from approving new laws unless the proposed legislation has received "readings" in each house of the General Assembly on three separate days in each house.
However, lawmakers have long used legislative tricks to sidestep those requirements.
Under "gut and replace," lawmakers propose a host of innocuous sounding new legislation. Those so-called "shell bills" then receive three readings, and are shelved in committee.
Later, lawmakers seeking to win quick approval with minimal debate over legislation enacting controversial or potentially unconstitutional policies, can grab one of those "shell bills" in committee and use the legislative amendment process to delete, or "gut," the innocuous language in the proposed legislation and replace it with the new, more controversial language. Such bills can be rushed to the floor of each house of the General Assembly in a matter of hours, often with little public notice, until the very last moment.
Democrats in the supermajority in Springfield have used that process repeatedly in recent years to enact sweeping new laws, including the so-called SAFE-T Act, which abolished cash bail in Illinois, and the ban on so-called "assault weapons," among other controversial laws.
Legislative leaders - the Speaker of the House and the Illinois Senate President - then use a legal doctrine known as the "Enrolled Bill Doctrine" to attest that lawmakers followed the state constitution's rules when enacting the legislation. Under the Enrolled Bill Doctrine, courts are essentially forced to take the word of the legislative leaders that the rules were followed, no matter the evidence to the contrary.
While several Illinois appeals courts and other judges have called on the Illinois Supreme Court to clamp down on the use of such processes, the Democratic supermajority on the state's high court has so far refused to take any action against state lawmakers.
The Democrats used that process to enact SB2412 in less than two days.
Under SB2412, election rules were changed to block political parties from slating candidates to run for office after the primary election, unless they had first run in the primary election.
Under the previous rules, parties who had no official nominees for a particular elected office after the spring primary vote had 75 days after the primary election to "slate" candidates to run as the official party nominee in such races. This year, that deadline was to be June 3.
However, six weeks after the March 19 primary, and with just about four weeks until the June 3 deadline, Democrats rushed through SB2412, upending the candidate nomination process.
While the changes would apply to all political parties, it is particularly harmful to Republicans, as the party intended to rely on that process to ensure it had candidates on the ballot to run against Democratic incumbents in the November general election.
With the changes, Democrats can all but ensure many of their incumbents will face no competition this fall, and voters will have no real choice in many state legislative races.
For his part, Pritzker praised the legislation as "ethics reform," saying it does away with secret backroom deals between potential candidates and party leaders.
Republicans and others, however, called SB2412 "anti-democracy," saying it allows Democrats to steal elections right before the public's eyes, before a single vote is cast.
Opponents of the bill have said they believe lawsuits will arise to challenge the law.
On May 11, the group of Republican state legislative candidates became the first to do so, bringing their lawsuit in Sangamon County Circuit Court in Springfield, where the ISBE is headquartered.
The plaintiffs are represented in the action by attorneys with the Liberty Justice Center, a conservative legal advocacy group based in Chicago.
According to the complaint, the Republican candidates say the new law tramples their constitutional rights to seek office and voters' rights to vote by unconstitutionally rewriting election laws in the middle of an ongoing election cycle.
According to the complaint, Collazo, of Chicago, was designated by the Republican Party on April 8 to run in the 8th Representative District against Democratic incumbent state Rep. LaShawn Ford.
Behr, of north suburban Northbrook, was designated by the GOP to run in the 57th Representative District on March 19 against Democratic incumber state Rep. Tracy Katz Muhl, who was never elected but was selected by Democratic party leaders four months ago to replace former State Rep. Jonathan Carroll, who resigned his seat.
Kirchner, of Chicago, was designated to run in the 13th Legislative (State Senate) District on April 18 against Democratic incumbent State Sen. Robert Peters.
And Kunz, of southwest suburban Hickory Hills, was designated to run in the 31st Representative District on April 7 against Democratic incumber State Rep. Mary Flowers.
No Republican candidates had run in the primary election for those seats this March. All the districts are heavily Democratic districts, including portions of the city of Chicago or heavily Democratic communities in Cook County's suburbs.
According to the complaint, Behr attempted to file his candidate nominating petitions with the ISBE on May 2, but found the office closed that day 30 minutes earlier than required by law.
The other three candidates have not yet filed their nominating petitions with the ISBE, the complaint said.
In the lawsuit, the Republican candidates pointed to prior court decisions they say indicate SB2412 amounts to unconstitutional changes to election rules. Those decisions from state appellate courts as far back as 1977 indicate courts believe that the right to vote is "implicated" by laws that restrict candidate's ability to run for office, and "legislation that affects any stage of the election process implicates the right to vote."
Further, they said the Illinois Supreme Court has recognized the right to vote as a "fundamental constitutional right" in the state, "essential to our system of government."
Under those judicial tests, the plaintiffs say the changes in SB2412 cannot stand under the constitution, as the law "unconstitutionally restricts Plaintiffs' fundamental rights ... by negating their efforts to gain access to the ballot" under the rules that existed at the time they began their efforts to become candidates for the seats in the state legislature.
"The legislature’s goal could have been achieved in a manner that would not impinge on the fundamental right to vote by enacting it to apply to elections after the November 2024 general election, rather than enacting (SB2412) to go into effect in the middle of the slating process," the plaintiffs wrote in a motion for a temporary restraining order to block the law.
They are seeking emergency and permanent court orders blocking the state from enforcing SB2412 against them, particularly.
The lawsuit does not directly ask the court to declare the law unconstitutional.
They are represented by attorneys Jeffrey M. Schwab, Jacob H. Huebert and James J. McQuaid, of the Liberty Justice Center.
According to the online court docket, the case has been assigned to Judge Gail Noll. Judge Noll was appointed to the court in 2019 by the Illinois Supreme Court, to fill the vacancy left following the retirement of former Judge Leslie Graves.