Judge considering whether slated candidates can appear on November ballot

A Sangamon County judge is weighing whether to block a new state law that bans the long-practiced tradition of political parties slating candidates for a general election after sitting out of a primary race.

Democrats who control the General Assembly pushed the measure through the legislative process and Gov. JB Pritzker signed it into law in a matter of days last month, arguing that slating is unfair to voters who didn’t get a say in a primary contest. Several would-be Republican candidates then sued over the law, claiming it’s unfair to ban the practice in the middle of an election cycle.

Now, the dispute is in the hands of Sangamon County Judge Gail Noll, who heard two hours of arguments over the case on Monday, which was also the last day slated candidates were able to file their nominating petitions under the old law. Noll last week ordered the State Board of Elections to keep accepting the petitions while the case plays out, which the board had already been doing.

During Monday’s hearing, attorney Jeffrey Schwab said his clients – four Republican candidates from Chicago and its suburbs – weren’t arguing that the law itself is unconstitutional, but that its application to the current election cycle is.

“It’s unreasonable to change the law in the middle of the game,” he said. “It’s, of course, extremely unreasonable for them to have known that a law was going to be passed and enacted and go into effect before the timeline that they had to submit their petitions today.”

When the petition filing window closed at 5 p.m. Monday, 16 candidates filed petitions to get on the November ballot, including the four plaintiffs in the case. All 16 were Republicans.

Although the lawsuit was only filed against the Board of Elections and Attorney General Kwame Raoul, House Speaker Emanuel “Chris” Welch sought to intervene in the case. Democratic election law attorney Mike Kasper argued on Welch’s behalf that the law was a boon to democracy because candidates used the slating process to escape a tough primary battle.

“It not only encourages and empowers independent and third-party candidates to gain ballot access, it eliminates the party bosses, as they’ve been called, from this process,” Kasper, a longtime lawyer for former House Speaker Michael Madigan, said during Monday’s hearing over videoconference.

Schwab, who has sued the state numerous times in his career as an attorney for the Chicago-based libertarian-leaning Liberty Justice Center, hit back at Kasper’s claims.

“It’s very weird to say that it somehow empowers voters by giving them less choice – giving them no Republican candidate in the election,” he said.

The four plaintiffs in the suit were all designated by their local parties in March and April, but none of them filed their nominating petitions before the law, which only applies to General Assembly races, went into effect.

One of the four – Republican Daniel Behr of Northbrook – claimed he attempted to file petitions the afternoon before Pritzker signed the bill into law, but he alleged the Board of Elections Springfield office closed at 4:30 p.m. that day.

Board spokesperson Matt Dietrich, however, said that seemed unlikely because “during filing periods we always have somebody there [collecting petitions] until 5.”

Behr ended up filing them just six minutes after the governor’s signature was recorded on the bill the morning of May 3.

Monday’s arguments referenced another GOP candidate – Jay Keeven of Edwardsville – who was able to turn in his nominating petitions the day before Pritzker signed the law. Keeven is challenging Democratic Rep. Katie Stuart, also of Edwardsville.

Judge Noll said she would have a written decision “in the next couple of days.” Meanwhile, Dietrich said the Board of Elections is proceeding as usual with the one-week period where candidates’ nominating petitions are challenged, which will conclude at 5 p.m. June 10.

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