Who Deserves to Be Disqualified? 

Consider two candidates for the state legislature. One, an incumbent whose father happens to be one of Chicago's most powerful aldermen, appears to have violated election law. The other, a political rookie taking on an incumbent, has sworn affidavits from voters attesting that he played by the rules. Guess which candidate will be on the ballot for the February 2 Democratic primary—and which won't?

You got it: state rep Deb Mell, daughter of 33rd Ward alderman Richard Mell, will make the ballot while Al Hofeld Jr. has withdrawn under the pressure of a potentially expensive legal challenge his attorney didn't think he could beat.

"I always knew incumbents had an advantage," says Hofeld. "But this is ridiculous."

First to the matter of Mell. The one-term incumbent used to live in an apartment on Clybourn, but this fall she bought a place on Melrose. On October 26 she filed her sworn statement of candidacy, paperwork required of anyone running in the primary that includes a signed "oath" affirming that he or she is a "qualified" voter. On her statement Mell wrote that she was a qualified voter living on Melrose. In reality, she had never gotten around to switching her registration from Clybourn.

Her opponent, Joe Laiacona, a computer science teacher at Columbia College and the proprietor of LeatherViews.com, pounced, claiming she wasn't ballot-eligible because her candidacy statement includes false information. "She said she was registered on Melrose and she wasn't," he says. "It was an open-and-shut case."

He hired independent election lawyer Richard Means, who filed a challenge with the Chicago Board of Election Commissioners seeking to knock Mell off the ballot.

She responded by bringing in the big gun, Michael Kasper, the election-law wizard who generally represents candidates favored by state house speaker Michael Madigan. The case came before hearing officer Barbara Goodman, who ruled in favor of Mell.

And how did this "open-and-shut case" go Mell's way? Well, according to Goodman's reading, "There is no express requirement in . . . the election code that specifically requires that a candidate be a registered or qualified voter," Goodman wrote. "Even if there is an implied requirement that a candidate be a registered or qualified voter, there is no requirement that the candidate be registered to vote at the address listed on the candidate's nomination."

Laiacona appealed to the full board of election commissioners. On December 1 they sustained Goodman's decision.

"I still can't believe that ruling," he says. If the law requires that Mell sign an oath attesting to the truth of everything in her statement, he wonders, how could the board determine it didn't matter whether the address was accurate? To him it was a little like a suspect going on trial for bludgeoning someone to death with a brick, only to have the judge let him go free because the state bans murder but not specifically bludgeoning.

The irony, as Laiacona points out, is that incumbents frequently jump on their challengers for not understanding the ins and outs of local politics and election law. "Here she clearly violated the rules, yet they find a way to keep her on the ballot," he says. "If the roles were reversed and I had made that mistake and Mell was challenging me, there's no way they would have kept me on the ballot."

(Also ironic: Laiacona's platform includes a promise to fight in favor of ballot access and against frivolous petition challenges.)

Meanwhile, there's Al Hofeld, a lawyer and community activist whose father, Al Sr., ran unsuccessfully for the U.S. Senate in 1992 and Illinois attorney general in 1994. In October, Hofeld announced he was running against south-side state senator Kwame Raoul.

To make the ballot he needed to collect signatures from 1,000 registered voters. He gathered 2,748. But in November Raoul ally John Moore challenged Hofeld's nominating petitions on the grounds that 2,246 of these signatures were invalid, in most cases because they didn't match the signatures on the voters' registration cards or the addresses weren't up to date. It's a maneuver candidates regularly use to knock opponents off the ballot—even though the election code is no more specific about the signatures than it is about the candidate's address being accurate.

"I'm sensitive to this issue. I think that everyone has a right to run—but I think it's a good thing to have a threshold," says Raoul, who accuses Hofeld of relying on campaign staffers from outside the district to gather his signatures instead of meeting voters himself. "Running for office is more than putting your name on a poster or writing letters to the editor misstating my position."

The challenge meant Hofeld had to go through what's called a binder review of signatures to prove they came from legitimate registered voters. "It was a nightmare," says Jo Ann Robinson, his campaign chair.

For the better part of three days, she and Moore sat at a computer in the county building at 69 W. Washington while a clerk compared signatures on Hofeld's nominating petitions with signatures on the voters' registration cards. The clerk disqualified some signatures because the voters weren't registered at the addresses they said they were—essentially the same sin Mell committed in her candidacy statement. Others were disqualified because the signatures didn't match.

As Robinson points out, signatures change over time. "The clerk said, 'I'm not sure this signature's the same as the one on the registration card,'" says Robinson. "I said, 'If you're not sure, how could you rule one way or another?' He was just disenfranchising voters. We never got the benefit of the doubt."

The clerk eliminated 1,899 signatures from Hofeld's petition, leaving him with 849. To get back on the ballot he needed to redeem 151.

Over the weekend of November 22, a couple of Hofeld's supporters—including his brother Bryan, who's also an attorney—retraced their steps. "We went back to voters, told them what would happen, and asked them to sign affidavits swearing that they were the voters who signed the nominating petitions," says Bryan Hofeld.

As he points out, a sworn affidavit is pretty serious stuff—both the signer and the signature collector face jail time if they're caught lying. Hofeld's supporters gathered 186 affidavits.

Moore was represented by—you guessed it—Michael Kasper. Even with the affidavits, hearing officer Frank Tedesso threw out most of the contested signatures on the grounds that they didn't resemble those on the registration cards. "It was surreal," says Bryan Hofeld. "These are people who live in my building, most of whom I've known for years, who have signed affidavits."

At one point, Bryan Hofeld got on the stand and testified that he'd personally gathered the original signatures and the follow-up affidavits. "The hearing officer still dismissed the signatures," he says. "The burden of proof never switched to the other side; they never had to present compelling evidence why the affidavits are false."

After a second hearing on December 4, Hofeld Jr. decided to drop out of the race on the advice of his attorney, James P. Nally. "My lawyer advised me that the numbers were against me," he says. Raoul will run unopposed in the primary.

All in all, it was quite a feat for Kasper, who kept Mell on the ballot by arguing a technicality and knocked Hofeld off the ballot by demanding the judge adhere to the letter of the law. Next time we could save people a lot of time and trouble by simply letting Kasper decide who gets on the ballot, since it pretty much works that way anyway.

Kasper thought that was pretty funny when I contacted him for comment. Then he defended the Hofeld ruling. "A voter's statement on a form affidavit could not overcome the contradictory evidence in the board's registration records," he wrote in an e-mail. "There are many reasons why this is the correct ruling. First, some people may believe, incorrectly, that they are registered when they are not. Second, they may not be willing to admit that they are not registered and will sign the affidavit anyway."

Well, I suppose it is possible that some hapless resident might sign a very legal-looking affidavit—and risk jail time on a perjury rap—simply because he's too ashamed to admit he's not really registered. But shouldn't Kasper have to present any evidence that the affidavit's false?

Apparently not, according to the Chicago Board of Elections. "Election cases are not necessarily governed by the strict rules of evidence followed in a courtroom," says Jim Allen, a board spokesman. "The focus of such proceedings is ascertaining whether the signatures on the petition are in fact genuine."

I've long argued the board has a bias in favor of incumbents, a charge board members patently reject. But it's undeniable that they have strong connections to the political establishment. The three members (one Republican, two Democrats) are appointed by the chief judge of Cook County Circuit Court on the recommendation of party leaders. The board's current chairman, Langdon Neal, is a partner in a law firm that's received millions of dollars in business from the city since 2006.

Allen argues that the system treats everyone—challengers as well as incumbents—the same. Yet Mell got to stay on the ballot for virtually the same infraction that eliminated voter signatures from Hofeld's petitions. "It's astounding, but people who sign petitions have to make a higher threshold than candidates," Allen says. "But there's nothing in election law that says [a candidate has] to be registered at the address on their candidacy statement."

Well, for that matter, there's nothing in the election code that specifically says a signature on a nominating petition has to match a signature on a voter registration card.

True, says Allen.

So quick—put Hofeld back on the ballot!

"The board did not knock Mr. Hofeld off the ballot," Allen says. "He withdrew on his own."

Touché. So here's what I propose: the next challenger bounced for irregular signatures should argue they should be restored to the ballot because there's nothing specific about it in the election code.

Let that be a lesson to all you wannabe elected officials out there. Yes, the system's obviously weighted in favor of incumbents. But you'll never get elected to anything if you drop out of the race.   

Joravsky discusses his reporting weekly with Dave Glowacz at mrradio.org/theworks.