An appellate court has overruled Sangamon County Circuit Court Judge Gail Noll, ruling that she goofed when dismissing a case filed by a candidate for Rochester Township road commissioner.
Darin Whitten went to court after losing the Republican nomination by between one and three votes; one person at a December GOP caucus meeting wrote in his name while circling the name of incumbent Darrell Maxheimer, whose name is on the April 6 ballot.
At the December caucus, paper ballots were ready before Whitten was nominated; 115 votes were cast. Voting began 45 minutes earlier than it should have, according to Whitten’s lawsuit, with township residents in the parking lot, concerned about pandemic, told that they could write in names without going inside. Maxheimer was the only candidate for road commissioner whose name was on the caucus ballots.
In ruling against Whitten, Judge Noll in January sided with lawyers for Maxheimer and township clerk Lynn Chard, who argued that the case didn’t belong in court: Instead of asking a judge for relief, Whitten should have gone to an electoral board.
Wrong, the Fourth Circuit Appellate Court ruled in a decision issued March 15. Civil rights are at stake, the court wrote, and so courts, not an administrative body such as an electoral board, should have jurisdiction. The court remanded the matter back to Noll. Sam Cahnman, Whitten’s lawyer, says that an electoral board would be controlled by establishment Republicans who, even if they kicked Maxheimer off the ballot, would have left the same Republicans who held a flawed caucus to appoint a candidate, which likely would have been Maxheimer.
The appellate court’s ruling comes after U.S. District Court Judge Richard Mills in February dismissed a federal lawsuit filed by Whitten. It was, Mills decided, a matter of jurisdiction, not merits of the case. He noted that Whitten already had sued in state court. “Federal courts do not exist to provide disappointed state court litigants with ‘a second bite at the apple,'” Mills wrote in his February ruling. In that same ruling, Mills suggested that allegations by Whitten, who’s said that the caucus amounted to a rigged election, might have merit.
“If the plaintiff’s allegations are true, it appears there were major issues with the Dec. 1, 2020, Rochester Township Republican caucus,” Mills wrote.
Dylan Grady, who represents township clerk Lynn Chard and is being paid by the township, said that merits haven’t been considered. While ballots were preprinted, he said that matters such as when they were distributed to voters and how that coincided with the timing of nominating procedures haven’t been addressed in court.
Early voting and vote by mail already has commenced, says Sangamon County Clerk Don Gray, and it’s too late to reprint ballots. “We’re past those deadlines – we proceed forward as planned,” Gray says. What might happen is up to the courts.
“If they order something, we’ll certainly abide by it,” Gray said.
Cahnman says that there is time to make things right. Assuming that his client prevails in litigation ordered by the appellate court, township Republicans could have a second caucus before the election, Cahnman said. If Whitten wins, ballots could either be reprinted or a sticker with Whitten’s name placed over Maxheimer’s name, which is the only one on the general election ballot for a township that leans red. “You win the Republican nomination, you basically win the election,” Cahnman said.
Grady isn’t sure that the matter will be decided by election day. An appeal of Monday’s ruling hasn’t been ruled out, he said.
“There are a host of potential options,” Grady said. “A lot depends on what the court wants to do. The timeline is tight to resolve the case before the election, I will say that.”
Records obtained via a Freedom of Information Act request filed by Whitten’s wife show that the township has paid nearly $10,300 to Brown, Hay and Stephens, a Springfield law firm where Grady works that has been hired to fight the unsuccessful candidate’s lawsuits. The amount, Cahnman notes, doesn’t include bills incurred since Feb. 1.
“Taxpayers are paying the fees,” Cahnman said. “It’s a pretty expensive law firm.”
Contact Bruce Rushton at [email protected]
Source by www.illinoistimes.com