Ruling knocks 2 off St. Elmo ballot

If Lloyd Carson and Jayson Porter wish to run for re-election in St. Elmo this spring, they will have to do so as write-in candidates.
That’s because a judge has affirmed the decision by a St. Elmo electoral board to remove the two incumbent aldermen from the April 5 ballot.
In a written ruling filed on Monday, Judge Ericka Sanders said, “While there are other terms to describe the unfortunate error that affected the petitioners (Carson and Porter) – unfair, perhaps – ‘injustice’ is not one of them.”
And while Sanders believes that while it may have been “proper” for Mayor Larry Tish to recuse himself from the electoral board, allegations of fraud by Tish claimed by Carson and Porter were not the issue in this case.
On Friday, Jan. 7, a city electoral board consisting of Tish (chairman), City Clerk Brenda Taylor and Alderwoman Theresa Riley voted unanimously to sustain objections to the two candidates’ petitions that were filed by Rita Davis, who is running for the seat now held by Carson, and Lyle Haslett.
The objections claim that Carson and Porter both failed to obtain the proper number of signatures on their nominating petitions.
In fighting the objections, and in seeking to have the electoral board’s ruling overturned, Carson and Porter claimed that they collected the proper number of signatures based on information given to city candidates in an electoral packet.
That packet included a sheet from the office of Fayette County Clerk and Recorder Terri Braun that listed the number of signatures required, based on 2007 election totals. Braun testified at an electoral board hearing that her office made a mistake in including those totals instead of those from the 2009 municipal election.
Carson and Porter also attempted, both at the electoral board hearings and at a court hearing last Friday, to show that Tish committed fraud by providing some candidates, but not them, correct information on the number of signatures required.
During the court hearing on Friday, Vandalia attorney Marc Kelly said, “Clearly, this case deals with injustice.”
He said some individuals knew that candidates received incorrect information, then “lie in the woods,” waiting for the chance to “ambush” Carson and Porter because they didn’t have enough signatures.
Day and Chad Chojnicki, an attorney for Davis and Haslett, contended that the election packet given to candidates clearly states that even though candidates are provided information on signature requirements from the county clerk, the State Board of Elections recommends that they consult with legal counsel on their requirements.
“There was clear warning here,” Chojnicki said.
St. Elmo City Attorney Rick Day argued that even if Tish had given that information to some candidates and not others, “it would have been in his personal opinion.”
Day said, “Clearly, the electoral board is limited to only issues that are raised (in the objections). They can’t go into motives (of individuals).
“The electoral board was in a position that they had to apply the statutory requirements in this case,” he said.
About the attempt by Carson and Porter to have Tish recuse himself from the electoral board, Day said, “The allegations (against Tish) were merely that – allegations. There was simply nothing on the record that would require that the mayor recuse himself.”
But the judge disagreed with Day on that point, stating in her ruling, “Given the allegations against the mayor, it would have been proper for him to recuse himself.
“But the board’s refusal to grant the motion to recuse does not cause its decision regarding the signature requirements to be a fault one.
“This court cannot find that the board’s refusal to investigate the petitioners’ allegations were clearly erroneous, since any information deduced by said investigation would be irrelevant to the board’s inquiry,” the ruling states.
Kelly, Day and Chojnicki used case law presented during the electoral board hearing to support their arguments, and Sanders used that case law in making her ruling.
Sanders said that while the ruling in one case in which candidates receiving incorrect information from an election official allowed to remain on the ballot, the judge noted, “For future reference, we note that the minimum statutory requirements in mandatory and should be strictly followed.”
Sanders said the courts must “draw a distinction between the acts of the state and the acts of a ministerial officer of the state. In this case, the clerk’s act of providing inaccurate information to the city and then, ultimately, to the petitioners (Carson and Porter) is not an act of the state.
She said that the only allegations of fraud that she could consider those aimed at the county clerk. “Accordingly, fraud did not occur,” the ruling states.
On the electoral board’s decision to deny the petitioners’ motion to recuse Tish, she said, “While arguably improper, (it) does not affect the outcome of the electoral baord’s decision and, thus, the outcome of this proceeding.”
Sanders states in the ruling that the candidates were obligated to go by election laws, regardless of the information provided to them.
“While admittedly trite in this situation, the old adage ‘ignorance of the law is no excuse’ rings true,” the ruling states.
“Petitioners not only were informed of the law in the informational sheet, it was their duty to know the law and abide by it,” Sanders wrote.
In her ruling, Sanders also addressed the allegation that one of the signatures on Carson’s nominating petition was invalid because the person signing the petition listed a post office box instead of a street address.
That person, Sanders ruled, “is registered to vote at his residence, not the post office. Accordingly, his residential address should have been contained in the petition.”
Despite the ruling, Carson and Porter can still run in the April 5 election. They have the option of becoming certified as write-in candidates by filling out the proper paperwork with Braun.
 

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