Andy Martin’s independent expert witness in an emergency court hearing scheduled for July 23rd at 8:45 A.M. in Sangamon County Circuit Court says the Illinois State Board of Elections is violating both federal and state laws
IN THE CIRCUIT COURT
FOR THE SEVENTH JUDICIAL CIRCUIT OF ILLINOIS
CASE NO. 2010 CH 786
DONNA HEFFERNAN, et al.,
AFFIDAVIT OF RUSS STEWART
Russ Stewart, being first duly sworn, states and deposes as follows:
1. I am a practicing attorney in Park Ridge, Illinois. I was admitted to the Illinois Supreme Court in 1979.
2. My practice as an attorney has involved active representation of candidates under the Illinois Election Code.
3. I am not counsel of record to Andy Martin in either this lawsuit or before the State Board of Elections (“the Board”). Mr. Martin contacted my office and asked me to review the facts and circumstances of his candidacy, and to express my own independent expert opinion concerning his experience before the State Board.
3. Notice. Illinois law expressly mandates that the State Board send copies of objections to candidate petitions to a candidate by “registered mail or receipted personal delivery.” § 10 ILCS 5/10-8 (B). Mr. Martin advised me he was never served with any objections by the Board which comply with the statute. Mr. Martin advised me he has made some inquiry and that other candidates subject to Objections were also not served pursuant to 10-8 (B). It appears that the Board’s complete failure to comply with 10-8 (B) is a jurisdictional defect in the State Board’s proceedings, rendering them null and void, see Graham v. State Officers Electoral Board, 269 Ill.App.3rd 609, 646 N.E.2d 1357 (Ill.App. 4 Dist. 1995).
4. Board’s lack of jurisdiction. Mr. Martin was under no obligation to appear before the Board or to file an appearance unless and until he was properly served with the statutory process contemplated in the Election Code. The Board apparently adopted “rules” on July 6th which seek to shift the burden of subsequent notice to candidates, and to exculpate the Board from its statutory responsibilities. There is no way the Board can engage in such notice-shifting or statutory revision. Such actions are themselves null and void as being ultra vires to the Board's statutory authority. When the statute mandates a particular from of notice by the Board, that notice is a jurisdictional prerequisite to the Board’s authority to act.
5. Due Process violation. The Board’s failure to comply with the statute renders the objection proceedings against Mr. Martin a nullity. Moreover, because Mr. Martin is a candidate for federal office, the defect in the proceedings appears to be a clear and unequivocal federal constitutional violation. The right to run for office is a substantial constitutional right; it may not be abridged by procedures and proceedings that fail to satisfy the constitutional imperative of reasonable notice. Lack of notice by the state agency is by definition is unreasonable.
6. The real party in interest. There has been great controversy over the years concerning “Objections” which are filed against candidates when the “Objector" is a stand-in for the real party in interest whose identity is concealed by legal counsel. At least in the case of a candidate for federal office, the identity of the individual or organization employing counsel for an objection, and the relationship between the “Objector” and his “Counsel,” should be subject to full disclosure and searching inquiry as a matter of federal law.
7. The decision by an anonymous person or organization to hire an attorney, and to then seek a “conduit” or proxy objector to conceal the identify of the real sponsor of the Objection is clearly an expenditure intended to influence the outcome of a federal election, by rendering nugatory the nominating petitions of a federal candidate. As such, federal law mandates full disclosure of such activity. The identities of the individuals who are engaging in such concerted activity before the Board are subject to full disclosure during the objection process. Although, pursuant to the U. S. Constitution, states conduct the actual elections and voting for federal candidates, state procedures concerning candidates for federal office are subject at all times to the strict scrutiny of the U. S. Constitution and Due Process Clause of the Fourteenth Amendment.
7. The U. S. Constitution and federal election statutes do not appear to tolerate state election practices which permit “proxy” or “conduit” litigation in which undisclosed principals hire and employ proxies to act as “fronts” for their anti-candidate activity. The question is a closer one for candidates for local and state office.
8. It is undisputed that the Board mailed Mr. Martin a regular first class “notice” on June 30th, for a hearing to be held on July 6th. There is no way such a mailing could constitute “reasonable” notice under the U. S. Constitution. Mail can frequently or easily take a week to be delivered in the Chicago area. Monday, July 5th was a federal holiday. The fact that the legislature may have established “unreasonable” constitutional time frames for the Board to proceed goes to the constitutionality of the state’s statutory scheme for regulating and conducting elections, not to a candidate’s constitutional right to receive reasonable notice. I do not believe as a practicing attorney that a “notice” mailed in Springfield on June 30th for a hearing to be held on the morning of July 6th with a federal holiday on July 5th was constitutionally reasonable notice. It would not be accepted in any court of this state as adequate notice due to the intervening federal holiday. Mr. Martin was deprived of notice and the proceedings on July 6th were null and void. Ironically, the board failed to give Mr. Martin any notice despite the fact that the Board’s own rules contemplate mail or faxed communication with candidates after service of the initial statutory process mandated by the Election Code. No notice was given to Mr. Martin by fax or email. The Board’s procedures failed to meet the standards required by the Due Process Clause of the U. S. Constitution’s Fourteenth Amendment.
9. Subject to my schedule, I would be available to testify by telephone, and would testify as set forth hereinabove, as to the issues sub judice.
Dated: July 22, 2010
805 W. Touhy Avenue
Park Ridge, IL 60068
Tel. (847) 692-3350
Fax (847) 825-1969
Appeared personally before me Russell Stewart and, being first duly sworn, stated the foregoing affidavit is true and correct on personal knowledge where indicated and on information and belief where indicated.
DATED: July 22, 2020
My commission expires: