Effingham Daily News, Effingham, IL

November 9, 2012

Did Braden run legally?

Officials, experts talk after new law comes to light

Jackson Adams
Effingham Daily News

TOLEDO — The incoming Cumberland County state's attorney may have broken at least the spirit of a new state law designed to prevent independents from running after voting in a party primary in the same election year.

Jonathan Braden won decisively Tuesday as an independent after voting as a Republican in the March 20 primary, beating a long time Republican incumbent and a Democrat challenger. But House Bill 2009, passed in March, prohibited anyone with an established political party from running as an independent candidate or as a different party's candidate in the general election immediately following. The bill was effective immediately after passing.

Braden said he was aware of the law when he began assembling his petition to run as an independent in June and that he had some concerns about objections being filed.

"The general population had a chance to file an objection," he said. "I was calling the circuit clerk every day to see if anyone was filing an objection. We had a process in place to challenge it if there were any objections."

This is the same law that prevented Fayette County State's Attorney Stephen Friedel from running as an independent for Shelby County judge.The state Board of Elections confirmed Braden is the first candidatein the state to win an election under the new law after getting through July without objections.

Braden said he has been against the law since it passed on March 30, just 10 days after the primary. He said he views the law as unconstitutional and continued to run as an independent with the intent to challenge the law's validity if he was disallowed from running.

"It's hard to know what's going to happen," he said. "I have no control over if anybody's going to challenge it.

"I ran as an independent for a couple of reasons," said Braden. "First, this is an unreasonable restriction for any candidate. If it would have played out in court, I think it would have been ruled unconstitutional. I got into the election after that law had already passed. It's anadministrative law and no law can be applied retroactively to someone who has earned the position."

Cumberland County Clerk Joy Sutherland said because the law is so new, it's possible someone will try to challenge Braden.

"It's an untested law," she said. "We'll just have to see what happens."

Sutherland said no one in Cumberland County filed an objection during the July objection period.

Cumberland State's Attorney Barry Schaefer, who was defeated by Braden for the office, said he would not pursue any action against Braden.

"I've had a couple of calls about it," he said. "The attorney general's office or state Board of Elections can do something about it if they choose to."

Schaefer said he was made aware Braden had voted in the primary a few months before the election but was more focused with running his own campaign.

"My main concern was running my campaign," he said. "My game plan was to do what I could do. If there's a problem, it may have come up after the election."

Schaefer said he doesn't know if he would have filed an objection had he known about Braden voting during the primary.

"Without the benefit of a time machine, I just don't know," he said. "I couldn't tell you now."

The other candidate for the Cumberland state's attorney office, Democrat Shon Park, said he also found out too late to respond with a potential objection.

"I don't know what I would have done if I knew then what I know now," he said.

State House Rep. Mike Fortner, who sponsored the bill, said his intent was to streamline election law and to prevent candidates from switching parties to appear on the ballot.

"There are lots of laws out there, and candidates can be tripped up if they don't have a good election attorney when they get to court," he said.

HB 2009 was an attempt to formalize a state Supreme Court judgment as a state statute.

Fortner said in this case, the law is in place to prevent a candidate from switching party affiliations when he or she appears on a ballot in November.

"This is all about making it clear for one year or election period, but only for one election period," he said. "Once you declare a party within that election cycle, you're committed. You've made your promise."

Fortner said in Braden's case, the time for a formal objection may have passed.

"Obviously, somebody could have objected (in July)," he said. "There are certainly places where people could have been challenged."

Citizens or former candidates who want to challenge Braden's election still have options, said Bernadette Henderson, an attorney with the state Board of Elections.

"Most of the time when candidates are running as independents, there is a time to file objections," she said. "Once the election period passes, there is really no way but the courts to do anything."

Henderson said that there are a couple of options to question an elected official's position through the legal system, although the most likely to be followed would be a quo warranto action.

This action is commonly used to ask a candidate about how they have earned an office or by what right they have it. A claimant would file with the state attorney general, who could take or deny the case. If the attorney general declines, anyone could file it him- or herself.

Even when a quo warranto action is filed, it may be too late. The proper time to question an independent is during the objection period, said Henderson.

Scott Mulford, a spokesman for the attorney general's office in Springfield, said the office was unaware of the law and didn't know if any action would be taken as of presstime

Now, days after the election, Braden said it would be petty for citizens or opposing candidates to file litigation or complain.

"I think a challenge at this point wouldn't be worth the muster," he said. "It would just be sour grapes."

Jackson Adams can be reached at 217-347-7151, ext. 131, or Jackson.Adams@effinghamdailynews.com.