A Sangamon County Circuit Court judge denied relief this week to a candidate for Rochester Township road commissioner who claims that improprieties at a December caucus cost him a chance at public office.
The vote was close, with Darin Whitten losing by between one and three votes out of 115 cast. A ballot was counted in favor of his opponent, Darrell Maxheimer, the incumbent, after a voter both wrote in Whitten's name and circled Maxheimer's name on the ballot, Whitten's lawyer says – voters were supposed to either circle a name or write one in. But that isn't the only issue, according to Whitten, who wants results of the Dec. 1 contest tossed and a new caucus convened.
According to Whitten's lawsuit, voting on ballots preprinted with Maxheimer's name but no other candidates' names for road commissioner began as long as 45 minutes before nominating proceedings started. Twenty-two people, according to Whitten, voted in the parking lot outside the township hall, with some voters reluctant to leave cars for fear of coronavirus. After ballots were collected in the parking lot, the nominating process commenced, Whitten says, with voters given the option of writing in names if they favored candidates other than incumbents whose names were printed on ballots. By then, nearly 20 percent of the votes already had been cast, according to Whitten's lawsuit.
"We were standing there watching people put ballots in the ballot box and no one had been nominated," said Cale Taft outside the courtroom. He said that he nominated Whitten that night after voting had begun.
Whitten could have filed an objection with a township electoral board to get Maxheimer's name stricken from the April 6 general election ballot, and that's exactly what he should have done, lawyers for Maxheimer and the Rochester Township Republican Central Committee and Rochester Township Clerk Lynn Chard and Sangamon County Clerk Don Gray say. During a Monday, Jan. 4, hearing before Sangamon County Circuit Court Judge Gail Noll, they argued that courts have no jurisdiction on the matter, given Whitten's failure to file a board objection. The deadline for filing objections has passed, according to Sam Cahnman, Whitten's lawyer.
"Clearly putting only one of two candidate's names on the ballot gives the candidate whose name is on the ballot a very unfair and illegal advantage," Cahnman wrote in the lawsuit aimed at canceling the result and setting up another caucus. "If the caucus had been run correctly, it is very likely that plaintiff would have received one, two or three additional votes and therefore would have been nominated."
Cahnman says that filing an objection would have accomplished nothing. If an electoral board removed Maxheimer's name from the ballot – no Democrat has filed for the road commissioner job – the Rochester Township Republican Central Committee, the same committee members who ran the December caucus with ballots printed before nominations had been made would appoint a candidate, Cahnman says, and that candidate likely would be Maxheimer.
Calling it a Catch 22, Cahnman says that voters who cast ballots for Maxheimer might not have known that Whitten was a candidate. Under state law, Whitten can run as a write-in candidate or independent candidate, but his name cannot appear on the ballot as a Republican in the solidly GOP township, according to the lawsuit.
"There's no dispute by the defendants to the facts we allege," Cahnman told the judge. "There was a whole usurpation of the democratic process. ... We hear a lot of talk lately about rigged elections. This was a rigged election, with the name of only one of two candidates on the ballot."
Dylan P. Grady, lawyer for Chard, the township clerk, pointed out that an electoral board hasn't issued any decision. "We don't know what that decision is at this point in time," he argued. "The court doesn't have jurisdiction at this point in time."
Noll agreed, rejecting Whitten's plea for a temporary restraining order. After the hearing, Grady declined to agree with Cahnman that defendants don't dispute the facts. "I really can't speak to that," Grady said. "We have not investigated the merits."
Richard Frazier, Maxheimer's lawyer, agreed that the case doesn't belong in court absent action by an electoral board that can hear and consider objections.
After the hearing, Cahnman indicated that he is considering an appeal.
"All he wants is a fair shot at getting the Republican nomination," Cahnman said.
Contact Bruce Rushton at [email protected].
