Rulings may come too late
Markham ballot dispute result won’t help make for fair election, critics say
Two lawsuits are roiling the mayoral election in Markham, raising questions of fairness and casting fresh doubts about whether Mayor Roger Agpawa is eligible to hold municipal office because of a past felony conviction.
Early voting is underway for the April 6 contest as parties involved in the legal disputes await appellate court rulings. Depending on the outcomes, the court could order that separate ballots be printed for the mayoral race or that a special election be held at a later date, an attorney said.
One lawsuit questions the authority of then-Gov. Bruce Rauner, who issued a 2018 order to restore Agpawa’s rights and cleared the way for him to take office as mayor. A federal court convicted Agpawa of mail fraud in 1999 and only a presidential pardon could resolve the eligibility issue, according to the lawsuit.
However, the eligibility question was resolved in 2018 when a Cook County judge accepted State’s Attorney Kim Foxx’s request to dismiss a suit that raised the felony conviction issue, Agpawa said Thursday.
“It’s a shame history has to repeat itself,” Agpawa told me. “The court held back then that the governor’s signature was valid and that the will of the people would be upheld.”
Though his conviction was at the federal level, a state election law rendered him ineligible to be mayor, Agpawa explained. Thus, the governor’s restoration of rights was the appropriate remedy, he said.
“The federal felony is not what was stopping me from being able
to serve, it was the state law that said I could not serve, and the governor said I can,” he said.
That’s a misreading of what state lawmakers decided about eligibility to hold municipal office, said Andrew Finko, an election attorney representing petitioners David Walker, Robert J. DePolo and Marina I. Pangopoulos.
“The legislature decides,” Finko said. “Gov. Rauner could only give back what the legislature allowed. If the legislature said he is forever barred, short of a presidential pardon, the governor can’t give him back anything more that is automatically restored by Illinois law.”
Finko field a 517-page brief filed with the appellate court that revealed previously unreported details about Agpawa’s 1999 conviction. He lied about his age to get a job with the Markham Fire Department in the 1980s and also used the name Roger Carpenter, Agpawa told an assistant U.S. attorney in 1995, documents showed.
Agpawa engaged in an insurance fraud scheme in which he received payment for depositing checks at a Midlothian bank. He avoided prison time but was sentenced to three years probation, ordered to perform 200 hours community service and pay $60,907 restitution to Metropolitan Life Insurance Co., documents showed.
Agpawa resigned his appointed position as fire chief of Country Club Hills after taking office as Markham mayor. While campaigning for mayor in 2017, Agpawa said he accepted responsibility for his past actions, paid his debt and redeemed himself through his public service as a firefighter.
The other lawsuit seeks to overturn a ruling by the three-member Markham electoral board that was upheld in circuit court and found that Kenneth “Mojo” Muldrow lacked a sufficient number of valid petition signatures to appear on ballots.
Muldrow is running a write-in campaign for mayor. Printed ballots show the names of Agpawa and challenger Jennifer Coles, city clerk. Muldrow said even if the appellate court rules in his favor, the damage has been done.
“This has a very adverse impact on my ability to run for election,” Muldrow said Thursday of the delay in the appellate court’s ruling. “All of this was done by design.”
Attorney Burt Odelson and electoral board members William Barron and Rondal Jones, both Markham aldermen, donated money to Agpawa’s campaign, according to the suit. Odelson was instrumental in obtaining Rauner’s order that enabled Agpawa to take office, documents showed.
“We don’t have a vote on the board,” attorney Ross Secler said Thursday on behalf of the firm. “I don’t think there was a conflict.”
Coles, the city clerk, recused herself from the electoral board because she is running for mayor. She was replaced by Thomas Jaconetty, an attorney who has served as chief deputy commissioner of the Cook County Board of Review, which considers appeals of property tax assessments.
Muldrow sued the three electoral board members and Cook County Clerk Karen Yarbrough. The clerk’s office Thursday referred an inquiry to Odelson & Sterk.
Markham’s electoral board issued its decisions in late January. That didn’t allow courts much time to consider appeals before the clerk had to print ballots. A spokeswoman for Cook County Circuit Court Chief Judge Tim Evans said Thursday the office would not comment on pending litigation.
Many have criticized how municipal electoral boards are subject to criticism for potential conflicts. Members are obligated to render impartial verdicts, yet often hold easily identifiable allegiances to parties engaged in political disputes.
“It shows how much control the electoral board has over somebody getting on or off the ballot,” Finko said. “That’s the real problem, I think, in our democracy.”
Finko said he expects the appellate court to find that there was no evidence of alleged fraud that prompted the electoral board to invalidate a number of signatures on Muldrow’s nominating petitions.
“The problem Mojo is facing is that he’s not on the ballot, and if he gets on the ballot, it’s a week before the election and that’s going to be a total mess,” Finko said. “Mail-in voting and early ballots have already been cast and his name isn’t on them.”
Finko said state lawmakers should revise election law that governs local electoral boards.
“Your opponents decide whether you’re on the ballot or not,” he said. “There are so many conflicts, yet in the world of election law that’s perfectly normal.”