By: Brittany Flaherty Theis

The following post is intended to assist local election officials during the upcoming School Board election. Most School Districts are scheduled to be closed for all or a part of the two-week period, beginning December 24, 2012 through January 7, 2013. This closure might conflict with some of the requirements set forth in the Election Code.

Beginning Monday, December 17, 2012, with the opening of the office that day and continuing through December 24, 2012, candidates may file nominating papers with the School Board’s local election official during office hours. The Election Code requires that the office be open and “remain open for the receipt of such petitions until 5:00 p.m. on the last day of the filing period.” December 24, 2012, is the last day of the filing period and is not considered a state holiday. Therefore, school districts must ensure that this requirement be fulfilled and that the office remains open until 5:00 p.m. that day.

Whitt Law Attorney Sarah Miller spoke extensively with legal counsel at the State Board of Elections regarding this issue. He advised that there is no legally defensible basis for the District to be closed on Monday, December 24, 2012. The Election Code, however, does not specify that the office be open all day. Whitt Law would advise that the office be open for a reasonable amount of time that day and would suggest that a reasonable amount of time be at least three hours (i.e., 2:00 p.m. through 5 p.m.). The only legal basis for the office to be closed on December 24, 2012, would be a legislative solution to this issue. There is a possibility that a legislative solution to this problem will occur during the fall veto session. Whitt Law will be monitoring for any legislative changes that may occur.

If the Board’s local election official is unable to be in the offices on December 24, you will want to ensure that the School Board nominates a “designated representative” who can be present at the District offices until 5:00 p.m. that day to receive election documents in his or her absence. Additionally, since the Board’s local election official has seven (7) calendar days to acknowledge receipt of the candidate filing his or her nominating papers, you will want to ensure that this obligation is fulfilled for candidates that file their papers before December 24, and that the designated representative fulfill this obligation on December 24, in the event that anyone files papers that day.

The other three requirements that present a potential conflict during that time period are: 1) Wednesday, December 26, 2012, is the last day for providing written notice of a lottery for simultaneous filing, in the event that School Board candidates simultaneously file petitions; 2) Wednesday, January 2, 2013, is the last day for filing objections to the nominating papers of School Board candidates and the last day for candidates who have filed for two seats to file Withdrawal of Candidacy forms; and 3) Wednesday, January 2, 2013, is the last day for conducting a lottery when two or more nominating petitions are received.

As it relates to the first issue, in the event that the local election official has to hold a lottery, he or she must do so within nine (9) calendar days following the last day for petition filing, which is January 2, 2013. Since candidates must have seven (7) calendar days notice of the time and place of conducting the lottery, this notice must be sent out by December 26. However, to avoid having to be in the office on December 26, if the office is scheduled to be closed, notice can be given earlier. To do so, before December 17, 2012, the local election official should determine when the lottery will take place (must be December 31 or January 2, as discussed below) and ensure that the notice is prepared in advance, so that it can be hand-delivered to any candidates who simultaneously filed their nominating papers. Additionally, any other individuals entitled to receive notice of the lottery can also be notified in advance. Please note that the notice must state the time and place of the lottery and that it is open to the public. Additionally, the Board’s local election official must post this notice in a conspicuous, open and public place, at the entrance of the office.

As it relates to the second issue, this may be more problematic for your District. The Election Code states that objections to nominating papers and Withdrawal of Candidacy forms must be made within five (5) business days after the last day for filing the certificate of nomination or nomination papers. The Election Code defines a business day as “any day in which the office of an election authority, local election official or the State Board of Elections is open to the public for a minimum of 7 hours.” Since the State Board of Elections will be open on December 26-28, December 31, and January 2, that deadline is January 2, 2013. Of course, the most conservative approach would be for the District to keep its offices open during all of those days. However, this may present an obstacle for your District if it has a pre-planned closure of its offices during those times.

While many Districts will likely be handling this dilemma in different ways, Whitt Law feels that, at a minimum, the District’s office should be open and a designated representative be present on January 2, 2013. However, unlike the nominating petition filing deadline, there is no requirement that the offices stay open until 5:00 p.m. that day. Whitt Law would recommend the District offices remain open for at least a half day (i.e., 8:00 a.m. through noon). It would be appropriate for the Board’s local election official to notify the local paper and post notice that any objections or withdrawal forms can be filed: 1) in person on January 2, 2013 (and specify the hours) at the District offices in addition to any other days that the office will be open; and 2) via e-mail (or facsimile to the local election official’s attention, if he or she will be going into the office those days) between December 26-28 and on December 31, provided that the local election official will be able to check his or her e-mail each of those days.

As it relates to the third and final issue, the lottery for simultaneous filings must take place within nine (9) calendar days following the last day for petition filing and shall be open to the public. Since it is possible that two (2) candidates may simultaneously file on December 24 and notice of the lottery must be given at least seven (7) calendar days in advance of the lottery, the options for holding the lottery are December 31 and January 2. Since someone will need to be in the office on January 2, 2013 to accept any objections to nominating petitions, as discussed above, Whitt Law would recommend holding the lottery, if one is necessary, on January 2, 2012.

For more information or to address any questions you might have regarding the upcoming School Board Elections, please contact Whitt Law Attorney Sarah Miller.

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