Judge rejects Calloway’s request for restraining order to block Hairston’s swearing-in

Will Calloway and his attorney, Frank Avila, speak to reporters after a hearing on his request for a restraining order. (Photo by Aaron Gettinger)

Staff writer

DALEY CENTER — Circuit Court Judge LaGuina Clay-Herron today heard and rejected 5th Ward aldermanic challenger William Calloway’s 11th-hour request for a restraining order to block Ald. Leslie Hairston from taking the oath of office on Monday.

Calloway also amended his election challenge complaint on Friday, a day after Clay-Herron’s deadline; his attorney, Frank Avila, said he was unable to submit before midnight because of an electronic error. A hearing on Calloway’s ongoing election challenge is scheduled for 11:30 a.m. on May 23; the City Council and elected municipal officials take office on May 20.

In court on Friday, Clay-Herron said she saw an “unlikelihood of success on this matter,” meaning Calloway’s election challenge.

On Thursday, former Herald editor and Calloway advisor Gabriel Piemonte had announced that Calloway had requested a restraining order to prevent Hairston from being sworn in.

Much of Calloway’s argument for a restraining order depended on his arguments in his amended complaint alleging election fraud and other errors in counting ballots. He says that the election judges in four precincts — the 5th, 10th and 17th between Woodlawn and South Shore and 35th in East Hyde Park — did not certify the election results, “their fiduciary obligations,” meaning “that the results could have been tampered with” and new elections should be held there.

Malcolm Bonner, a Calloway poll watcher, filed an affidavit that he saw election judges certify the results and that “during this process, there were several discrepancies between the number of applications for ballot and total number of votes cast within several precincts.”

In the 5th Ward, Bonner said “the number of votes cast totaled 234, but the number of applications for ballot totaled zero.” In the 10th and 17th, there was blank or no certification “and no tape from the optical scanner.” And in the 35th, there was no certification, “but the numbers of votes cast totaled 285.”

Additionally, Calloway says there was no tape, or record of the results after they are transmitted, in 15 precincts in the 5th Ward. “Although some of the tapes were ‘recreated,’ how did a count come in that night that was accurate and certified?” Calloway asked. “The answer is it did not.” He said that he needed to subpoena, depose and call as witnesses all the judges from the precincts in question.

Calloway wrote that “Illinois and federal courts describe a [temporary restraining order] as an equitable remedy that is issued in exceptional and emergency circumstances when necessary to preserve the status quo until the court has an opportunity to rule on a motion for preliminary injunction after an evidentiary hearing.” He said that the status quo is that the election is undecided — though the Elections Board proclaimed her the winner — and that she has not yet been sworn in.

“Once Leslie Hairston is sworn in as the new alderman of the 5th Ward of/in the City of
Chicago on May 20, 2019, it will be difficult to remove her,” Calloway wrote, which would cause him “irreparable harm.” He had asked for the restraining order be in place until his election challenge concludes in the Cook County Circuit Court.

Election Board spokesman Jim Allen scoffed at the request and justification, called it “curious on three fronts.” Calloway “is suddenly declaring an ’emergency’ a month after the proclamation of results, 39 days after filing for a recount and 45 days after the election itself,” Allen said. “Secondly, a restraining order normally tries to preserve the status quo, not turn back the clock and demand an election agency un-declare results.”

Thirdly, Allen cited Illinois statute stating that “the aldermen elected shall serve … until their successors are elected and have qualified.” He said this includes an alderman being sworn in. “So even if the restraining order were to be granted, Ald. Hairston would continue to serve.”

At the hastily arranged hearing before Clay-Herron on Friday afternoon — the city’s counsel only received notice of it 90 minutes before its scheduled start — Hairston’s attorney, Ed Mullen, and Adam Lasker for the Elections Board echoed Allen’s arguments. They all questioned the timing of Calloway’s emergency restraining order, noting that it came nearly a month after the Elections Board proclaimed Hairston the runoff winner by 176 votes.

“Their procrastination should not be the court’s emergency,” Mullen told Clay-Herron. He called the judges’ certifications and the ballot tapes “secondary” evidence compared with the ballots themselves, which are still extant.

Lasker said that the ballots, not certifications, decide an election, adding that the certifications, which election code says election judges “shall” do, is directory, not mandatory, because judges are not punished if they do not file them. He said that absent certifications are “an obvious discrepancy” that the Elections Board investigates in its canvass after voting concludes.

Mullen also noted that the completed discovery recount of 10 5th Ward precincts found only one possible ballot in question, not nearly enough to sway an election result. Out of the three contested aldermanic elections, the 5th Ward’s is the only one with an active challenge. Ald.-elect Rossana Rodriguez-Sanchez (33rd) won a 13-vote victory, and Ald. James Cappleman (46th) won reelection by 25 votes.

After Clay-Herron denied Calloway’s request, Mullen said her ruling spoke for itself, and Lasker said the 60-minute hearing went the way he expected.

With regards to his election challenge, Calloway wants an expedited discovery schedule, a full recount and an adjustment of results that would declare him the winner. He also calls for a new election across the 5th Ward, a new election in the 4 precincts he says lack certification or the 15 that lacked tapes. Allen said that recounts and resulting changes in election results are based on who voted, whether they were eligible to vote and whether their ballots were marked and tabulated correctly.

“When you boil it down, this lawsuit wants to use election judge attendance and any mistakes on their paperwork as the reason for mass disenfranchisement by pitching 14,000 ballots and telling people their votes didn’t count,” Allen said in a statement. “The Election Board will file a motion to dismiss.”

Calloway’s amended complaint also alleges that the Elections Board excluded properly requested and received mailed-in ballots from the election results, that voters voted by mail but did not sign the necessary affidavit, that voters were given wrong ballots and that ineligible voters cast ballots. Calloway also alleges improper handling of ballots and electronic vote-counting devices, equipment errors and polling places insufficiently staffed by qualified election judges, affecting voters’ ability to properly cast their ballots. He also alleges ballot tabulation errors, based on an initial and rectified error in one precinct. Calloway said a full recount is needed in the 5th Ward; the discovery recount only considered 10 precincts.