May 5, 2010, appeared in The Times of NW Indiana
by Josh Lederman

CHICAGO — The entrance of Scott Lee Cohen into the race for Illinois governor as an independent candidate has exposed a gaping gray area in state election law: Whether people who voted in the primary election can still sign an independent candidate’s petition in the general election.

Cohen won the Democratic primary for lieutenant governor, but pulled out of the race under pressure from party officials after a series of scandals emerged.

He announced plans Monday to try to get his name back on the general election ballot. To do that, he’ll need 25,000 petition signatures by June 21.

“In the primary, 211,000 people voted for me,” Cohen said Tuesday. “I would ask the people who voted for me to certainly sign the petition to have me placed on the ballot.”

Not so fast.

Under Illinois election law, a person who signs a petition for a major party candidate can still sign a petition for an independent candidate, but not for another major party candidate. But it’s unclear whether a person who voted in a party primary can still sign for an independent.

“We don’t have a specific answer,” said Daniel White, executive director of the Illinois State Board of Elections.

If Cohen is able to collect the signatures and an objection to them is filed, the board may be called upon to rule on it, White said.

That ruling could be reviewed and challenged in Cook County Circuit Court, the Illinois Appellate Court and eventually the Illinois Supreme Court, said Burt Odelson, an elections attorney who represents Gov. Patrick Quinn.

Although Cohen and Quinn both ran as Democrats in the primary – Quinn for governor and Cohen for lieutenant governor – Cohen is now challenging Quinn for the governor’s mansion.

“If people who voted in the Republican primary or the Democratic primary sign these petitions, I think there’s a problem with the signature,” Odelson said.

Quinn’s team, if given the opportunity, will argue “that someone who has voted in the primary has made their choice to participate in that political party’s affairs and is locked into that party until the next primary.”

Although Odelson says this issue hasn’t been directly addressed by the courts, for the other side, it’s a clear-cut issue.

“There is no restriction in Illinois law against a voter deciding they’re a Democrat on Tuesday, then becoming a Republican or Independent on Wednesday,” said Michael Dorf, campaign attorney for Forest Claypool, an independent candidate for Cook County Assessor who is facing a similar petition issue.

Dorf, who also chairs the Chicago Bar Association’s Election Law Committee, says there are restrictions about candidates and petition circulators switching parties within an election cycle, but that it constitutionally cannot apply to voters themselves.

“It would be absolutely a violation of the First Amendment right of association to apply it to voters,” Dorf said.

It’s an atypical legal debate: Instead of one side claiming the law says “A” and the other claiming it says “B,” in this case, it’s “A” on one side and a big question mark on the other. Those who claim the question mark hope that once it’s clarified, it will be to their liking.

“That is a debatable legal question and no doubt will be clarified by any petition objection that is filed against Scott Lee Cohen and another independent candidate,” said attorney Richard Means.

The other candidate of whom he speaks is Forest Claypool, and Means represents his opponent, Democrat Joe Barrios. Means said he also may be involved in challenging Cohen’s signatures, if he successfully submits them.

“The general theory is you get one bite at the apple and you can choose who you want on the November ballot either by signing a petition or by voting in the primary,” Means said.

Theories aside, it’s hard to fathom why even the State Board of Elections can’t shed light on just what election law dictates — until you consider how it’s made.

“Election law tends to be written in response to particular issues,” said David Morrison, deputy director of the Illinois Campaign for Political Reform. “You see statutes written in general terms but clearly intended to affect one particular election or candidate.”

It all comes down to a question of what purpose the petition process serves in the first place. According to Morrison, it’s to ensure that ballots aren’t clogged with candidates who aren’t serious and don’t have any public support.

“From that premise, whether or not you voted in the primary should have no bearing on whether you can sign a petition,” Morrison said. “It would be a huge overreach for a court to say that based on current Illinois law, voting in a primary disqualifies you from signing a petition for an independent.”

Some political experts have less confidence that petitions prevent candidates with no support from making the ballot.

“People will sign petitions just because they think competition is good and we should have as many people on the ballot,” said Matt Streb, who teaches political science at Northern Illinois University.

But trying to keep independents off the ballot by preventing primary voters from signing their petitions amounts to the invention of new legal theory, said Dorf, Claypool’s attorney.

“Voters have a right to be whomever they want,” Dorf said. “The courts have been absolutely clear about that.”

— Kevin Brennan contributed to this report