Forrest Claypool Credit: michael boyd

As soon as Cook County Board commissioner Forrest Claypool announced that he was running as an independent for county assessor in the November general election, the war was on.

I’m not talking about the public campaign—in which Claypool charges that Democratic nominee Joe Berrios will ease the tax burden on downtown commercial property owners at the expense of home owners, while Berrios says he’s just as good a friend to home owners as Claypool.

No, the big fight is the legal one, going on behind the scenes.

As Claypool makes the rounds, trying to gather enough signatures on his nominating petitions to make the ballot, Berrios has put together a cadre of some of the best election-law experts in the area to keep him off it. “I have put together a legal team to look through what he submits,” says Berrios. “The law says he has to submit 25,000 good signatures. He better come in with 25,000 good signatures.”

Berrios’s other opponents, Republican Sharon Strobeck-Eckersall and Green Robert Grota, are underfunded and virtually unknown, so bouncing Claypool, who’s popular on the north side and in the suburbs, is tantamount to winning.

Berrios, who’s also chairman of the Cook County Democratic Party, has always been quick to use the fine points of election law and a stable of experts to chase off hapless challengers. In February’s Democratic primary, for instance, he successfully removed one opponent by challenging his petitions and scared another into withdrawing simply by letting her know he intended to challenge hers.

To foil Claypool, Berrios has brought in Thomas Jaconetty, his longtime aide, as well as the legendary Michael Kasper, who generally handles election-law cases on behalf of state Democratic Party chieftain Michael Madigan. To that formidable pair he’s added a surprising powerhouse—Rich Means, who usually works for independents and has had some classic showdowns with Jaconetty and Kasper.

“Yes, Joe asked me to represent him,” says Means. “He’s got legitimate rights and he’s a respectable candidate. If Claypool files his petitions, I will be one of the group making sure he meets his legal requirements.”

The county assessor’s office is one of the most important elected positions in local government because of its influence over the size of property taxes. It’s the assessor who determines the property’s taxable value, which is multiplied by the tax rate to determine how much a property owner pays. This power makes the officeholder a magnet for political contributions from commercial real estate interests. Golf outings and other fund-raisers held by the current assessor, Jim Houlihan, have reaped hundreds of thousands of dollars—and much of that money has been passed along to candidates he’s supported in other races.

Houlihan has been an advocate for home owners, pushing to raise an exemption that lowers the amount they pay in taxes relative to the owners of commercial, industrial, and large apartment properties.

Joe Berrios

But Houlihan is not running for reelection, and Berrios won the February 2 primary to take his place on the Democratic slate. Berrios is already a commissioner on the Cook County Board of Review—the elected body to which property owners can appeal property assessments they think are out of whack. And he has a private lobbying practice that he recently announced he’d drop if he’s elected because “being assessor is a full-time job.”

Desirable as the assessor’s office is, Claypool’s independent campaign has implications for Democratic Party leaders like Berrios and Madigan that go beyond it. They can’t tolerate an insurgent Democrat thinking he can bypass the primary process. Besides, if rank-and-file Democrats were to get used to voting for independents—even Democrats running as independents—they might go and do something really radical, like vote for a Green.

Berrios and his Democratic opponents needed only 8,147 signatures apiece on their nominating petitions to make the primary ballot. As an independent Claypool needs 25,000, and thanks to the host of rules and regulations governing the petition process, getting them by the June 21 filing date for independents will be even harder than it sounds. Once they’re submitted Berrios, or someone acting on his behalf, will attack Claypool’s nominating petitions, nickel-and-diming down the signature count. They’ll find signatories who don’t live at the addresses they’re registered at. They’ll find signatures on the petitions that don’t look like the signatures on voter registration cards (that might’ve been signed 20 years ago). And so on.

Berrios’s team also plans to argue that the signature of anybody who signed a nominating petition for another candidate before the primary must be tossed out. According to state law, “each voter may subscribe to one nomination for such office to be filled, and no more.” That’s typically been interpreted to mean that voters can sign for only one candidate in a primary. So if you signed for Berrios in the February primary you couldn’t also sign for Robert Shaw, who ran against him.

Claypool didn’t run in the primary. He’s running against Berrios in a different election, the general election. But Berrios intends to apply the law anyway and see if it sticks.

And beyond that, he intends to try a legal Hail Mary that, if it works, will almost certainly decide the election.

Berrios and his legal team are ready to argue that no signature can be admitted from anyone who so much as voted in February’s primary. Simply by going to the polls and requesting a party’s primary ballot—no matter whether Democratic, Republican, or Green—a voter aligned himself with that party, they say, and thereby disqualified himself from signing Claypool’s independent petition.

If Berrios wins on this point, there’s practically no way Claypool will be able to present 25,000 good signatures. Yes, the election turnout was low in February’s primaries—only 761,626, roughly a quarter of the registered electorate. But it’s the politically active quarter that Claypool’s signatures are most likely to come from.

Claypool has hired his own election-law expert—Michael Dorf, whose past clients include Barack Obama—and he’s trying to use Berrios’s maneuvering to rally voters against him. “They are trying to deny voters a real choice in this election,” says Tom Bowen, Claypool’s campaign manager. “We will make them pay every day for that.”

It’s hard to say what Berrios’s chances of completing this Hail Mary might be. “We’re still researching it,” says Means. “But generally the argument has been you can’t get two bites of the apple. You get one bite.”

Hogwash, says Claypool. “There’s nothing in the law that prevents this.”

The election-law experts who work for Cook County clerk David Orr wouldn’t comment because the Cook County Electoral Board will probably be hearing the matter in the next few months. The board consists of Orr, state’s attorney Anita Alvarez, and circuit court clerk Dorothy Brown—each of whom appoints one representative to a panel that decides election disputes. But whoever loses at the board level could turn to the Cook County circuit court, and eventually to the state supreme court. If Claypool loses at the local level—and anything’s possible, given the partisan nature of the Illinois judiciary—he could turn to the federal courts. And even if he wins in the end, the litigation will have sucked time, money, and energy from his campaign.

A similar case is making its way through the state courts right now. The Democratic Party, represented by Kasper, is challenging Steve Rauschenberger’s right to run as a Republican in November for the state senate seat he used to hold in Elgin. A lifelong Republican, Rauschenberger took a Democratic ballot last year to vote for his sister Carol Rauschenberger, who was running in the Democratic primary for Elgin Township trustee. A state hearing examiner recommended that Rauschenberger be disqualified, but the Illinois State Board of Elections split four to four on the question and a panel of state appellate judges ruled two to one in Rauschenberger’s favor. Now the Illinois supreme court has agreed to hear the case.   

Ben Joravsky discusses his reporting weekly with journalist Dave Glowacz at mrradio.org/theworks.