The two current members of the Chicago Board of Election Commissioners, Richard Cowen and Langdon Neal, recently met to decide whether a pair of convicted felons who'd filed petitions to run for City Council would be allowed on the February ballot. Cowen and Neal, the chairman, sat in a conference room in the County Adminstration Building on West Washington behind a long table and stacks of legal documents facing the two hopefuls.
One was Ambrosio Medrano, the former alderman of the 25th Ward who'd been convicted of extortion in the 90s; he was flanked by an attorney and a large man who appeared to be a bodyguard. The other was former 15th Ward alderman Virgil Jones, who'd also been convicted of extortion in the 90s; he was alone. "I'm Virgil Jones," he said, "here on behalf of Virgil Jones."
That the ex-cons were trying to run wasn't surprising--Chicago has a long tradition of formerly imprisoned aldermen running for their old seats. But people from their wards had filed objections to their petitions, contending that according to their reading of state law, felons weren't allowed to run for municipal office. An election-board hearing officer agreed, and the two ex-aldermen had appealed to the full board. It was now up to Neal and Cowen--the board's third member had died in December--to review the hearing officer's recommendation, weigh the arguments of both sides, and make a final ruling.
Who gets to run for city office is determined as much by the petition challenge process as by anything that happens on the campaign trail or in the polling booth. And since the election board makes the final judgment on all ballot disputes, the two commissioners now on it have extraordinary power over what choices voters have on election day.
Medrano's lawyer addressed Neal and Cowen first, arguing that the state ban was trumped by judicial decisions allowing felons to run for local office. Cowen asked a couple questions, and Neal told the lawyer he was repeating himself, but otherwise the two commissioners listened quietly without taking a note.
"When I was six years old someone stole the cookies out of the jar," Jones told them. "My mother told me to go stand in the corner. For an hour I did, and then she said I could come out. When I was 41 someone who knew about this came up to me and said, 'Go stand in the corner some more.' The question becomes, when does the punishment end? I have completed my sentence, so I am entitled to all my rights I had before I was convicted."
When Jones added that his 14th Amendment right to equal protection under the law would be violated if he weren't allowed to run for alderman, lawyers for the challengers countered that the election board didn't have the jurisdiction to determine whether a law was unconstitutional, that only the courts could do that. The commissioners had to follow state law, they argued, and that law said felons couldn't run for City Council. "There is no fundamental right to hold office," one of the attorneys said. Another said, "It's important that someone who has already violated the public trust should be prohibited from doing it again."
Cowen asked the lawyers for the challengers whether someone who's served his sentence should be allowed to start over with a clean slate.
"I'm the biggest proponent of a clean slate," said one of the attorneys. "Mr. Medrano has constructed another career for himself"--in marketing and promotions--"and he has done well. He does not need to hold elected office, especially since he has been an alderman and taken $31,000 in bribes--"
"That is not relevant," said Neal.
The attorney looked disappointed but quickly agreed.
After both sides had weighed in Cowen said, "We are not a court--we cannot determine whether a provision is constitutionally valid or invalid. But I don't see this board as so limited that we cannot determine precedent." He noted that the majority of previous court rulings on the matter had found the state ban on felons running for municipal office illegal, then said he was voting in favor of letting Medrano and Jones run.
Neal disagreed with Cowen on several points and said the previous court rulings were inconsistent. "But with that ambiguity, I have to take the conservative approach," he said. He meant he was voting with Cowen anyway.
Medrano seemed to be holding back tears as he jumped out of his seat. Jones was crying as he said, "People like myself, like Medrano and other people who've had the same experience we've had, at least we have an opportunity to start over."
The board almost never overrules its hearing officers, but their decision that day demonstrates how much power they can wield when they want to.
Few people, even those within the system, seem to understand how this process works. This year 245 candidates filed the signatures and forms to get on February's ballot, and within a couple weeks of the filing deadline, December 18, various people had filed 208 challenges to the paperwork of 148 different candidates (some were challenged more than once). The challengers charged that petitions didn't include enough signatures from registered voters, that papers weren't bound correctly, that candidates' economic statements hadn't been prepared properly.
Well-funded candidates usually hire election lawyers for help in making the challenges or warding them off. Low-budget and less-experienced candidates fend for themselves. For each challenge the two sides make arguments before a hearing officer, and the officer makes a recommendation to the board. The board almost always goes with the recommendation. Candidates like Medrano and Jones who aren't happy with the hearing officer's recommendation can appeal to the full board. Cowen says this happens 20 to 30 times an election cycle.
By mid-January, 8 of the challenged candidates had dropped out voluntarily, and 39 had been thrown off the ballot by the board. Forty other challenged candidates, including Mayor Daley, had been told they could remain in the running.
Critics of the board say that the hearing officers and commissioners favor incumbents who've been through the process before, that they seem to look for reasons to toss petitions. "You see a lot of chipping going on," says Tom Swiss, executive director of the Cook County Republican Party. "Every little thing works out in favor of the incumbents."
Swiss points to the case of Lonnie Ledford, a Republican candidate for Illinois' 19th Representative District who was thrown off the ballot before the November elections. He'd been slated by the GOP committeemen a few weeks after the March primary, and under an old law Republican leaders were required to submit his name to election officials within three days of his nomination. They missed the deadline, thinking it didn't apply because the general election was still months away, and when they pleaded their case the board ruled against them. Party leaders saw the ruling as a cheap shot, especially since their candidate didn't have a prayer of winning. "They're not predisposed to ballot access," says Swiss. "They want to make it as hard as possible to run."
The commissioners disagree. "We try to always rule in favor of access to the ballot when we can find a reason for it," says Neal, who's a Democrat. He adds that the election code should be rewritten so it's simpler, but until it is, the board's bound by the laws already in place.
Cowen, a Republican, says novice candidates could save themselves a lot of trouble. "It's a heart-wrenching situation--they've been out on cold nights getting those signatures, and they didn't do it right," he says. "If they'd just spend a few hundred dollars ahead of time on an attorney they'd be much better off."
Critics say that kind of response is just more evidence that the whole system is an insider's game. And they say the game includes the process of selecting commissioners.
Commissioners are appointed for three-year terms by Cook County Circuit Court judges, but there's no limit on how many terms someone can serve. According to the court's rules, the presiding judge of the county division is supposed to "maintain a written list of persons willing to serve as public members of electoral boards," which should include only people "known to be knowledgeable in election law." When a slot opens on the board the presiding judge is supposed to find out who on the list is available, then forward the name to the circuit court's chief judge. (The chief judge is now Timothy Evans, who was appointed alderman by Richard J. Daley and lost the 1989 mayoral race to Richard M. Daley. He didn't return a call seeking comment.) The chief judge then circulates the name among the other circuit court judges, of whom there are now more than 230, and if a majority approves, the appointment's official.
That's how things are supposed to work, but Patrick McGann, the county division's presiding judge, says he doesn't keep a list and the process is a little more complicated. Because the county is heavily Democratic, two of the board posts are reserved for Democrats and one for a Republican. McGann says that when there's an opening on the board the chief judge gets recommendations from the chairman of whichever party has dibs on it. People interested in the job submit applications to the chief judge, and he chooses among them in consultation with the appropriate party's leaders. The name is then circulated in the usual way. McGann doesn't remember there ever being a nominee who failed to get the support of a majority.
He also doesn't see a problem with having the chief judge handle the selection. "In my own view," he says, "we elect the chief judge because we have confidence in his judgment to take care of the administrative responsibilities of the court."
But the process almost guarantees that only insiders get appointed. Theresa Petrone, who was in her fourth term on the board when she died in December, was a longtime Democratic activist and the mother-in-law of James Balcer, alderman of the clout-heavy 11th Ward. Cowen, who once served as the Republican committeeman for suburban Wheeling Township, is an attorney specializing in commercial, employment, and election law with clients throughout the Chicago area. He has personal and professional relationships with many of the election lawyers who come before the board, and in the late 70s he served on the state board of elections alongside Michael Lavelle, the election attorney for Mayor Daley and a long list of other elected officials.
"There are the group of attorneys who are regularly before us," says Cowen, now starting his third term on the board, "and over the years I've ruled for them, and I've ruled against them. As an attorney I've worked against them, and I may have been cocounsel with them. But I've always tried to judge each case on its merits. I've certainly tried to be fair."
Neal has the most obvious ties to the Daley Democratic Party. His father served as corporation counsel in the Richard J. Daley administration, and his firm, Neal & Leroy, gets business from the city--more than 1.6 million dollars' worth in 2006.
"It's a conflict of interest," says the GOP's Tom Swiss.
But Neal says that in his ten years on the Chicago board, and 11 years before that on the state board, no one's ever pointed to a specific case and charged him with being unfair.
For more on the election board and Chicago politics, see The Works by Ben Joravsky in this issue and our blog Clout City at chicagoreader.com.