Evanston 2017 Election FAQ
As I've been speaking to many voters in the past several weeks, it's apparent that confusion currently reigns in Evanston on a fundament of self-government, the conduct of elections. This arises from a combination of precipitous actions by officials, overlaid on a combo of too many laws, too little recordkeeping, too much opinion, too little fact, and insufficient investment in keeping voters informed.
In late November, the City Clerk, under pressure, suddenly changed posted nominating paper filing dates. The filings of many candidates, who blithely used a petition form meant for cities with a different form of election, may be at peril due to wrong form, wrong timing, or both (altho some of that might have occurred anyway). Assertions of what will happen next now spread throughout town at rapid pace, based on hearsay and folklore – everything but law. "Experts" being consulted for opinion, if not supplied with proper context or history, give wrong advice.
In the interest of public education, the following information on Evanston municipal elections generally, and on the 2017 municipal election, is supplied. It is based on extensive research but tempered only by my caveat that as of writing, Dec. 15, after two weeks of inquiry, the City of Evanston was unable to give answers to a very basic question. -- Jeff Smith
Q: How is Evanston governed?
A: Evanston has been incorporated as a "city" under Illinois law since 1892[i] after earlier incorporation as a village,[ii] and since then has operated with a mayor, plus aldermen elected from wards. That's the default type of governance for cities of Evanston's size, currently laid out in Article 3.1 of the Illinois Municipal Code. Since a 1952 referendum, Evanston has also chosen to have a city manager.
Q: So Evanston is a "council-manager" municipality?
A: Not by law. Neither Illinois's Municipal Code nor its Election Code use the term "council-manager." That's a lay, informal term, although commonly used.
Q: So what is Evanston?
A: By its 1952 referendum, Evanston adopted a "managerial" form of municipal government,[iii] giving the manager administrative and supervisory powers[iv] that otherwise belong to a mayor or council, yet retaining a system of aldermen elected from wards[v] (rather than at-large) for legislative purposes only[vi], and a mayor who is the chief executive officer[vii] and has parliamentary, legislative, appointive, and administrative powers. Having a mayor and aldermen is often called a "mayor-aldermanic" or "mayor-council" form.
Q: Can a city have both a managerial form and a mayor-aldermanic structure?
A: Yes. Many municipalities do this. The Illinois State Board of Elections, in the 2017 version of a non-binding but commonly-used "candidate's guide," refers to municipalities that adopted the managerial form while retaining the mayor-aldermanic form.[viii]
Q: How may candidates run for municipal office in Evanston?
A: Candidates have always had the legal right to run as candidates of political parties or as independents. That is the norm for Illinois elections. However, no one has run for mayor or alderman as a candidate of a political party in Evanston since, probably, before WWII (maybe WWI), even though the political affiliation of candidates is often well-known. In early Evanston elections candidates ran as Republicans, as independents, even as socialists. It was common through at least mid-20th-century for Evanston political organizations to endorse candidates. Over the past 70 years, probably most Evanston municipal candidates have run as independents.
Q: So Evanston has nonpartisan elections?
A: No. Not by virtue of any law of which I'm aware. Even if every candidate runs as an independent, that is legally different than having nonpartisan elections, although laypeople (and some lawyers and officials) confuse the distinction. In a municipality that is nonpartisan by law, candidates are required[ix] to run that way, and are forbidden from using party labels on their nominating papers, and no party identification appears on the ballot. By contrast, in the default (Article 3.1) form of Illinois municipal government, candidates are permitted to run as candidates of established parties (if there are any in municipal elections), as candidates of new (or "minor") parties, as independent candidates, or as write-in candidates.[x]
Q: Doesn't Evanston have a law requiring nonpartisan elections?
A: No. Not that I'm aware of, or that the City can produce. The words "nonpartisan" or "party" don't appear anywhere in the Evanston municipal code sections relating to government or elections. Nor were those words part of the Evanston 1952 referendum adopting a managerial form of government.[xi] I have submitted two Freedom of Information Act requests to the City to produce any noncodified election ordinances, or ordinances or referenda establishing nonpartisan elections, and they haven't been able to do so, saying in one case, Request 16-724, that it would be "too burdensome" to produce a copy of such an ordinance or referendum.[xii]
Q: Doesn't having a city manager mean that a city is nonpartisan?
A: No. It's not Illinois law. The words "nonpartisan" and "party" don't appear in Article 5, the Municipal Code section outlining managerial form. In 1953, in the first Evanston elections after adopting a managerial form, all candidates filed as "Independents."[xiii]
Q: Did Evanston decide by referendum in 1991 to have nonpartisan elections?
A: No. In April, 1991, as state municipal law allows,[xiv] Evanston voted to reduce the number of aldermen from two per ward (18 total) to one, or nine total, with elections every four years. Nothing in that referendum question's text, described at the time as the first major change to Evanston government since 1952, required nonpartisan municipal elections.
Q: Did Evanston decide by referendum in 1992 to have nonpartisan elections?
A: No. Nonpartisan elections weren't mentioned in that referendum question either.
Q: What did the 1992 referendum do?
A: The 1992 referendum said that if there were more than two candidates for mayor, there would be a primary and the top two vote-getters would face off in the "general election."[xv] That system was used in the 1993 Evanston municipal elections immediately following.
Q: Did the 1992 referendum apply to offices besides mayor?
A: No, and that was one of the criticisms of that referendum's proposed change.
Q: When and how did mayoral candidates file in 1992 for the 1993 election?
A: All candidates reportedly filed in December, 1992. It appears from the sample ballots that no party or independent designation appeared on the ballot.
Q: What happened in the 1993 election?
A: Five candidates filed. In a February primary, Ald. Ann Rainey and Lorraine Morton were the top vote-getters. Rainey and Morton competed in an April runoff. Morton won.
Q: Did Evanston ever use that system again?
A: No. The next three elections didn't have more than two candidates for mayor. In 2009, when four candidates filed for mayor, there was only an April election. If the 1992 referendum system had still been used in 2009, there would have been a primary and a runoff.
Q: Why didn't Evanston use the 1993 primary system in 2009?
A: I don't have an absolute answer on the "why." The Clerk from that period retired, the city corporation council passed away, and some people who might have once known don't remember. It seems probable and reasonable that City attorneys and officials re-examined the validity of the 1993 system and saw that the 1993 system could not be legally applied because it contradicts state laws (and possibly City of Evanston law), including some changes or clarifications made in the 16 years after the 1993 election, such as P.A. 95-0699. Note that the City in 2012 re-codified its law, and the 1993 scheme is not reflected in that. I was following the 2009 race pretty closely starting in 2008, met personally with all four candidates, and I don't remember anyone saying that the City should use the 1993 scheme.
Q: Haven't people said in the past, or thought, that Evanston had nonpartisan elections, or acted as if that was so?
A: Yes. You can find that statement in secondary sources and quotes. Candidates may have even filed that way and were certified on the ballot that way by the City Clerk. I once thought so too. But it does not appear to ever have been adopted by law.
Q: Why do people say or think that Evanston has nonpartisan elections if the law doesn't say that?
A: Relying on a source that is usually authoritative is natural, such as other people who've lived in Evanston longer, is easier than doing research. Illinois law that has been amended many times since statehood can be hard to parse. Even experienced lawyers can get tripped up by election law, and of course, people may apply their own memory or experience to a situation that, legally, no longer exists. Note, if publications or websites publish erroneous information, or if government officials make overbroad or erroneous statements, or act incorrectly (but without being challenged on it), it can create an echo chamber and make it even harder to correct popular misimpression.
Again, independents don't run as candidates of parties, and it's easy to conflate that with "nonpartisan" if you're not focused on the important legal differences – such as that a truly nonpartisan election format would always make a primary possible, would preclude people running as independents, and would require an earlier filing period.
Q: How is it possible that candidates could file or appear on a ballot incorrectly in the past?
A: It's like driving down an empty one-way street the wrong way in the middle of the night. Sometimes rules, even laws, are not enforced. The Cook County Clerk typically does not act as judge, and prints ballots according to the certifications from the local election official (here, City Clerk). The City Clerk takes a neutral position, and it's up to other candidates or citizens to object. One can see how candidates who do not properly file might get certified if no objections are filed to their nominating papers.
The legislature has recognized this and on at least one occasion has passed a law superficially validating, retroactively, mayoral elections that were not held according to law.
Q: What is the legal precedent of past mistaken practices?
A: The same as repeatedly driving the wrong way down an empty one-way street without being ticketed, or living as "common law" spouses in Illinois: it doesn't make it legal. Election law can't change in Illinois by custom and practice.
Q: So if Evanston is not required by state law or its own law to hold nonpartisan elections, what determines the filing date for nominating petitions?
A: Both Evanston's municipal code and the state law say that state law governs. Which means this: Except in Chicago, candidates of established political parties file in the November filing period, designating their party and the February consolidated primary (and April consolidated election if no primary is held) on their nominating papers. So do candidates in municipalities where required to run nonpartisan. Independent candidates and new political party candidates file nominating papers in the December filing period, for the April consolidated election.
Q: What's different about Chicago?
A: Chicago has its own system. Under a special, separate article of state law,[xvi] Chicago can adopt an ordinance deciding to have nonpartisan elections in the consolidated primary, with a runoff in April if no candidate gets a majority in February. Chicago adopted such an ordinance after the very partisan 1983 mayoral race. The state law doesn't apply to other cities, and Evanston has no such ordinance anyway.
Q: What happens if more than four candidates file for a municipal office in Evanston? Isn't there a primary?
A: No. The names of candidates who have properly filed for the April consolidated election and/or who have been certified by the City Clerk appear on the ballot for that April election. There is only, potentially, a primary between candidates who have all filed for nomination as candidates of the same established political party.
The law about "more than four candidates" triggering a primary is only for municipalities that require running on a nonpartisan basis, and is lumped in by the State Board of Elections as part of the Municipal Code that covers municipalities that elect a council at-large.
To reduce local election costs, the legislature doesn't require localities to run primary elections for offices that are uncontested. They passed, in 2007, an amendment to the Municipal Code defining "uncontested" as having four or fewer candidates for the same nonpartisan election.[xvii] But, again, that only applies to nonpartisan elections. As discussed above, nonpartisan elections, in the Illinois Election Code, are only those where candidates are "required" to run in nonpartisan manner,[xviii] and if the state Municipal Code is inconsistent, the Election Code governs.[xix] So the four-candidate-or-more rule doesn't apply to Evanston.
Q: If Evanston required nonpartisan elections, what would be the proper filing date?
A: This year, the November 21-28 filing period, and candidates would have to specify running in a primary on their petitions.
Q: If candidates file petitions that, overall, misname or fail to name the status under which they are running or should be running, what is the consequence?
A: That's typically fatal to a candidacy because one function of petitioning is to inform the electorate, including telling the voter from whom assent by signature is sought the correct manner in which the candidate seeks nomination or election to the office sought.
Q: If candidates file petitions in the wrong filing period, what is the consequence?
A: Filing at the wrong time typically is also fatal to a candidacy because one function of the filing dates is to determine who is eligible for ballot position lottery, another is to set the bounds of the dates during which petitions can be circulated, and a third is to allow a consistent lawful period during which citizens may scrutinize nominating papers and file objections. Filing at the wrong time undermines these safeguards of the election process. However, usually there is no question as to too late, and rarely "too early," because the election official acts as gatekeeper.
If no one objected to a wrong filing, theoretically a city election official might certify to the County Clerk for the April election the names of candidates who mis-filed. However, if any citizen objects to such filing, objections are typically upheld.
Q: When are objections heard?
A: Objections track the filing periods. Objections to candidacies can be filed up to a week after when the nominating papers are supposed to be filed. Objections need to be heard and decided before the local election official certifies ballot names to the County Clerk.
Q: What happens if a local election official does not follow the law, such as by certifying names of candidates who filed defective or untimely petitions?
A: Usually, objections are heard first before a local "electoral board" consisting of the clerk and two other elected officials. If the challenge fails, or if for some reason the objection process is circumvented, an objector may file a lawsuit under various theories, often sounding in "quo warranto," challenging the authority of the local official to do something unlawful. Candidates who feel they have been unlawfully removed from the ballot can also seek review from the courts.
Q: If no one filed as a candidate of a political party, how could there be two filing periods for the 2017 Evanston elections for the same offices?
A: The Election Code has no provision for such a thing.
Q: Is it possible to file only for the April election, but not for the February primary, in the November (earlier) filing period?
A: No. That would be improper under the Election Code and hasn't ever happened in Evanston to my knowledge. Even if Evanston did require nonpartisan elections, and if November were the correct period, November-filed petitions would need to state that the candidate seeks "nomination," not just election.[xx]
Q: Is it possible to file for a February primary in the December filing period?
A: Not if the law is followed. It appears that that happened in 1993, which is just one reason why the 1993 scheme contradicts law.
Q: Can't Evanston and the local election official do whatever they want, because Evanston has home rule powers?
A: No, for several reasons. First, state election law has primacy over local election law.[xxi] Second, Evanston's own municipal code says that the city follows state law.[xxii] Third, even under home rule, a change to law has to occur by ordinance and/or referendum, not by administrative fiat.
Q: Didn't the State Board of Elections rule that Evanston has the power to accept nominating papers late, or early, or both?
A: No. The State Board of Elections (SBE) has issued no formal ruling on the current Evanston situation. The SBE does not direct Evanston municipal elections or election officials. The City Clerk, the local electoral board, the county clerk, and the courts supervise Evanston elections. The SBE principally tracks campaign finance law, collects election results, and issues general guides for elections that, it cautions, are not legally binding and may not apply to a particular situation. It appears that an SBE attorney, whose job is to counsel the SBE (not the public), and who may or may not have been given correct information as to Evanston's history and/or form of government, expressed a non-binding personal opinion.
Q: What will happen to candidates who, in filing their nominating papers, relied on wrong information or rumor, or just did what everyone else was doing?
A: Some of them, if objected to, locally and/or in court, will probably not be on the ballot. Some of them, if certified without objection, may end up on the ballot. But voters may want to take into consideration how people who make decisions that way will serve in office. I remember my mother asking me, as a child, "If everyone jumped off a cliff, would you too?"
Q: Doesn't a candidate get to run if the Clerk gave wrong information?
A: By and large, candidates have the job and challenge of following the law even when it is complicated.[xxiii] The courts strongly criticize the idea that city or county clerks can, in effect, create new rules through misinformation. "Ballot access" is not the only value; avoiding voter confusion is an important value too. Bending the law because of municipal misinformation only adds to confusion, frustrates voters, and rewards incompetence.
Q: Is it possible you are wrong?
A: Of course! More facts may emerge. I always stand ready to change my mind (and this post) if given new and better info. But if I am missing a fact on nonpartisan elections, it's because the City of Evanston has failed to incorporate a critical part of its own governance into City code, and has failed to make readily publicly accessible a critical law or action, or maybe more than one, that determines the very way in which citizens can run for office. I don't think the City's government is purposely keeping the law secret — I suspect there's simply no such ordinance or referendum for them to produce. But if the problem is, "We pass so many ordinances that we don't know what our own law is, and we don't even know how to find it," that needs to be fixed.
[i] E.g., Charles A: Martin, Historical Encyclopedia of Illinois, Volume 1 (Cass Co., Ill., 1915), at 160.
[ii] Evanston v. Gunn, 99 U.S. 660, 665 (1878).
[iii] 65 ILCS 5/5-1-1 et seq.; Evanston Firefighters Ass'n v. Ill. St. Labor Relations Bd., 241 Ill. App. 3d 725 (1st Dist. 1992).
[iv] A manager's powers are set forth in Article 5 of the state Municipal Code, 65 ILCS 5/5-1-1 et seq.
[v] 65 ILCS 5/5-2-1.
[vi] 65 ILCS 5/5-3-6.
[vii] 65 ILCS 5/3.1-15-10
[viii] Ill. State Bd. Elec., 2017 Candidates' Guide (2016), at 23.
[ix] 10 ILCS 5/2A-1.2(c)(1) ("where required by law").
[x] "[I]n Illinois, a candidate may run for office with an established political party, with a newly formed political party, as an independent, or as a write-in." Rudd v. Lake County Electoral Board, 2016 IL App (2d) 160649 (Aug. 31, 2016).
[xi] Mrs. Joseph C. Lowey, Voters' League Gives Facts of City Manager Referendum, Evanston Review (Oct. 30, 1952), at 40, 46.
[xiii] Sample ballot notice, Evanston Review (April 4, 1953), at 70.
[xiv] 65 ILCS 5/3.1-20-20
[xv] Evanston Review (Oct. 29, 1992), at 151 (official notice of election and ballot)
[xvi] 65 ILCS 20/0.01 et seq.
[xvii] 65 ILCS 5/3.1-20-45; P.A. 95-0699 effective November 9, 2007. See Bill Status of SB0677, http://www.ilga.gov/legislation/billstatus.asp?DocNum=0662&GAID=9&GA=95&....
[xviii] 10 ILCS 5/2A-1.2(c)(1).
[xix] 10 ILCS 5/2A-1(a).
[xx] 65 ILCS 5/3.1‑20‑45 ("valid nominating papers" are those "seeking nomination")
[xxi] 10 ILCS 5/2A-1(a) (using mandatory language); 10 ILCS 5/7-1; 65 ILCS 5/3.1-10-10; 1985 Op. Atty. Gen. (85-017)
[xxii] Evanston Code Ord. §1-31-1
[xxiii] Schumann v. Kumarich, 102 Ill. App. 3d 454 (Ill. App. Ct. 1st Dist. 1981).