By CHARLES R. McGUIRE

One unforeseen result of the close 1982 race for governor is that there is now no way to contest a statewide election in Illinois. When Democratic candidate Adlai Stevenson III filed a petition for a recount, the state Supreme Court ruled that Stevenson's petition did not comply with the requirements of the elections law and that the law itself is unconstitutional. The ruling leaves statewide candidates with no legal recourse to contest close races and may expand the amount of proof required to contest any election, even at the local level

EVERY TIME an election is lost — which means every time there is an election — there is a temptation for the loser to "demand a recount." The threat is often merely the result of frustration and an overabundance of adrenalin, though the incentive for a recount may also come from a perceived duty to the candidate's constituency and campaign workers. In any case, Illinois candidates learn quickly that the procedures for obtaining a recount are complex and often impossible to fulfill. If the election is for statewide office, candidates will also learn that recount procedures presently provided by law are unconstitutional. So, at this writing, there are no legal procedures available to contest statewide elections.

In contests of elections for local offices, such as mayor, president of a county board, township office, precinct office and all countywide seats, Illinois law provides that they must be heard by the circuit court in the county where the election took place. Local questions, such as bond referendums and other local or county questions, are also contested before the local circuit court.

Such contests must be filed, by petition, by an "elector" (voter) of that area within 30 days after the winner is declared. The petition must be in writing that sets out the specific points on which the contest is based. Grounds for contesting an election include mistake, fraud and an unspecified category of "irregularities." Simply "coming close" is not enough on which to base a petition for contest.

The case is heard just like any other civil lawsuit, though such cases do receive preference in scheduling by the courts. Any candidate may request a "canvass" (recount) of the specified precincts, but the court may deny the request if there is no basis for such a request. The court may also appoint a "Board of Election Commissioners" or a "Canvassing Board" to do the actual recount if one is ordered. The court may also take testimony, and based on the facts, enter judgment.

The court has several choices in entering judgment: it may confirm the results of the election; it may annul the results and declare "the person who shall appear to be duly elected" the winner; in the case of a tie, it may direct the parties to draw lots for the office; or, if the winner is disqualified for some reason, it may adjudge the entire election "void" and require a new election. The judgment may be appealed to the appellate courts and perhaps ultimately to the Illinois Supreme Court.

Contests of elections for seats in the General Assembly are heard by the body for which election is sought. The Senate hears contests for Senate seats, and the House of Representatives hears contests for House seats. Petitions may be filed by any voter of the district to be represented by forwarding a petition to the State Board of Elections. Testimony may be taken by any judge, clerk of court, or notary public and the transcripts of that testimony are sent to the State Board. Those documents are sent to the presiding officer of the proper house of the General Assembly, which proceeds to judge the election contest "in any manner determined by that house."

For election contests of state offices, such as governor and lieutenant governor, attorney general and secretary of state, the most complex procedures are reserved. The Illinois Supreme Court has now ruled a portion of those procedures unconstitutional. The following is a description of how those procedures worked before they were ruled upon by the Supreme Court. While the procedures remain on the books, they are void as a practical matter.

Illinois candidates learn quickly that the procedures for obtaining a recount are complex and often impossible to fulfill

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When such a petition is filed, the Supreme Court, "by majority vote, shall designate 3 judges of the Circuit Court [of Sangamon County] to serve as a special panel. . . ." These judges are known as the "State Election Contest Panel." No political party may have more than two seats on the panel, and panel members may be challenged for cause by the candidates. The panel must convene within 10 days of its appointment, must begin hearing the evidence within 30 days and must make its decision within 180 days of the election. An appeal is permitted to the higher courts.

If the office contested is any office other than that of the governor, the governor has the authority under Article V, section 7 of the Constitution to appoint a successor until the contest is over. In the event of a gubernatorial contest, the Constitution specifies that the order of succession shall be the lieutenant governor, the elected attorney general and the elected secretary of state. Since the lieutenant governor's office was also contested in the 1982 election, the elected attorney general — Democrat Neil Hartigan — would have become acting governor while the contest continued.

In the recent contest over the 1982 gubernatorial election between incumbent Republican James R. Thompson and Democrat Adlai E. Stevenson III, most news reports centered on the inability of Stevenson's attorneys to convince the Supreme Court of the factual necessity of a recount, but the real impact came when the Supreme Court declared the procedures for contesting statewide elections unconstitutional and void. To date there has been no effort by the General Assembly to remedy the problem. As a result, if no changes are made prior to the next statewide election, there will be no way to contest such elections.

The decision, entitled In Re: Contest of Election for the Offices of Governor and Lieutenant Governor Held at the General Election of November 2, 1982, involved the hard-fought race between former U.S. Sen. Stevenson and two-term incumbent Thompson. Thompson received an official plurality of 5,074 votes out of a total of 3,627,128 votes cast, or 0.139 percent of the total. The results were certified on November 22 by the State Board of Elections, and on December 7 the Stevenson forces filed a "Petition of State Election Contest" with the Supreme Court.

The Illinois Supreme Court did not appoint a State Election Contest Panel, but instead ruled that (1) the statute which required the appointment of a panel was unconstitutional, and (2) even if the statute were not unconstitutional, the Stevenson petition did not comply with the requirements of the statute.

The problem of constitutionality was brought up by the court, even though the Thompson lawyers had not argued the point. The ruling was based on a construction of Article V, section 5 of the Illinois Constitution, which provides that: "Election contests shall be decided by the courts in a manner provided by law." The court held that the creation of the "State Election Contest Panel" violated this provision, since the panel was not a "court" within the meaning of the Constitution. Since the General Assembly does not have the power to establish new "courts," the entire provision of the law was void. The court also said that prior law, providing that such contests be decided by the legislature in joint sessions, was not "revived" by the ruling of unconstitutionality. As a result, there was no remedy available.

And the court did not stop there. It went on to say that the Stevenson petition itself was defective and failed to comply with the requirements of the statute which the court had just held unconstitutional.

The primary problem with the Stevenson petition was its attempt to extend the findings in the sample precincts to the entire state. The court stated that the statute "does not permit such a projection but requires that the petitioners allege the specific precincts wherein the mistake, fraud, or irregularities relied upon were believed to have occurred." The court also considered and rejected many of the petition's specific complaints regarding uninitialed ballots and other irregularities.

The decision included a bitter dissent by three of the seven justices in which the majority is accused of intellectual misrepresentation, lack of candor and "a blatant denial of due process" to Sen. Stevenson. The dissenters argued that the court's consideration of the constitutionality of the statute was gratuitous and erroneous:

"This [statute] does not create a new court, nor does it affect the judgment. . .which. . .is a judgment of the circuit court. . . .It should be noted that a provision for a three-judge panel is no stranger to our law and that similar provisions are found in the North Shore Sanitary District Act. . .and in the Sanitary District Act of 1917. . . ."

The dissent was particularly concerned with the effect of the decision, since it left the challengers with "no means under the Constitution to contest the results of the election. This would result in a blatant denial of due process." The dissent also challenged the majority's findings regarding the petition itself. The three justices found the result to impose a practical impossibility on the challenger:

"He must be able within 15 days of the proclamation of the result of the election to demonstrate, through what is in effect his own recount, from the recorded election results in 102 counties. . .that he was in fact elected to office. It is impossible for a candidate to conduct discovery in every jurisdiction in such a short period of time. . . .The burden placed upon a petitioner is impossible to sustain, and the majority makes the remedy provided under the statute an illusion."

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As a result of the 1982 governor's case, there is no way to contest a statewide election. It is absolutely essential that the General Assembly act quickly to remedy the defects in the statute, at least before the next statewide election. It is no answer to the urgency to state that challenges in statewide elections are extremely rare. The lack of a method of contesting elections can only be an incentive to vote fraud, since there is no remedy for the fraud. And, the implications of the governor's case extends to all other election contests, since the court's decision seems to have expanded the nature and amount of proof required to contest any election, even at the local level.

The General Assembly is limited in what it may do by the mandate of the court. No "special court" may be created. Thus, the matter must be referred to the so-called "constitutional" courts already established — the circuit courts, the appellate courts and the Supreme Court. But even within the established constitutional courts, the options are limited, since both the appellate courts and the Supreme Court have only limited jurisdiction. While it would be tempting to simply provide that the Supreme Court alone may rule on such contests, it is probably unconstitutional to do so. The jurisdiction of the appellate and Supreme courts is limited to appellate cases with a few very specific exceptions. As a result, it would seem that the only courts which might be able to hear such election contests are the circuit courts.

But which circuit court? Problems of venue and local politics seem almost insurmountable in such cases. There seem to be three choices: first, permit filing in any county; or permit such cases to be filed in all counties; or finally such cases might be filed in one county designated by the statute. The first choice involves a rather unseemly "race" to file in a friendly county; the second alternative might involve 102 lawsuits with differing results; and the

NEXT MONTH in Illinois Issues Prospects for Illinois' economic future In this, the first of a continuing series of articles on economic development in Illinois, Gallatin Institute senior fellow Roger J. Vaughan takes a fresh look at the way the economy really works and finds it more dynamic and entrepreneurial than overall statistics show. He explores how government policies and private sector institutions clog up the nation's economic arteries and urges Illinois to clear away the labor and capital barriers to healthy economic growth. This series is sponsored by The Joyce Foundation.

third involves a hard legislative fight over the "proper" county to hear such cases. And the latter alternative may itself be unconstitutional since it grants special jurisdiction to one court and may thereby create a "special court" in a manner similar to the governor's case.

Special venue is in fact granted to Sangamon and Cook counties by several statutes, principally related to the review of the actions of administrative agencies. There seems to be nothing to prevent the Supreme Court from holding that such grants of venue also constitute the creation of a special court at some future date. There is also constitutional authority permitting that special venue in cases involving review of administrative actions in Article VI, section 9 of the Constitution. While giving one court special jurisdiction to hear election contests may be a viable alternative, such a procedure invites a repeat of the 1983 case based on identical grounds.

The safest course may well be a constitutional amendment, which opens all of the choices once again. If such is the course, the General Assembly may consider once again all of the possibilities, such as permitting the Supreme Court, or the General Assembly, or the "State Election Contest Panel" or some other body as yet undetermined to rule on such contests.

The General Assembly should also review and either change or reaffirm the present procedures found in the statute for contesting elections as well. If the difficult burden imposed by the statute and the Supreme Court's interpretation of the act in the governor's case are to remain, so be it. It does seem advisable to put a heavy burden on petitioners in such cases so that the cranks and eccentrics cannot upset every election, but it would appear that the $10,000 filing fee eliminates all but those who have money to burn. At present it would appear that even the legitimate claims of aggrieved candidates must go unheard because of procedural requirements which can never be fulfilled. At the very least these matters should be reviewed by the legislature.

One of the concerns of the court, that of the expense to the taxpayer of a recount, may be answered by the California procedure. In that state, the person requesting a recount must pay the expenses of such a count in advance every day. If the recount is successful, he is reimbursed by the unit of government holding the election if the mistake is theirs, or by the other candidate if the erroneous result was caused by the action of the opponent. In California, as in many others states, statewide elections are contested in the legislature, but the recount is paid for by the challenger, at least in the first instance.

It is, in the final analysis, up to the legislature to make the changes vital to the legitimacy of our electoral process. Some change is obviously necessary to remove the constitutional barriers to all election contests which presently exist. How far the General Assembly wishes to go in reforming the impossibilities inherent in the present system depends on how serious the legislature is in providing avenues of relief to legitimate aggrieved candidates. It is hoped that no other court will ever have an opportunity to say, as the dissent in the governor's case, "it will always be uncertain what was the will of the people in the gubernatorial election of 1982. "

Charles R. McGuire is assistant professor of finance and law, Illinois State University, Normal. He obtained his B.A. and J. D. degrees from the University of Illinois-Urbana. He has also attended Georgetown University Law Center, Washington, D.C.

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