City to File Suit Against Former Candidate, Election Commission Over Write-in Candidacy

The City of Wheaton asks courts to confirm Frank Garcia is ineligible to run for City Council as a write-in candidate after he was removed from the ballot last month.

The City of Wheaton today will file a lawsuit against the DuPage County Election Commission and former At-Large City Council candidate Frank Garcia, asking that Garcia be deemed ineligible to run for Council as a write-in candidate after the city's decision to remove him from the spring election ballot.

Wheaton's municipal electoral board ruled last month that Garcia was ineligible to run for City Council because he was not a registered voter in the city of Wheaton when he filed Dec. 26 and therefore not considered a Wheaton resident. The decision came after candidate John Prendiville filed an objection against Garcia because of his voter registration status and residency.  

Following the city's decision, Garcia filed with the DuPage County Election Commission to run as a write-in candidate for the seat.

According to the City of Wheaton, candidates must be registered voters in the City of Wheaton and have lived within city limits for at least one year. Garcia, who filed for candidacy with the City of Wheaton on Dec. 26, said he registered to vote in Wheaton in early January. Until then, he was a registered voter in Naperville.

The suit includes one count each of declaratory judgment and injunctive relief against Garcia and the Commission, asking for the court to declare Garcia ineligible to run, stop the election commission from allowing him as a candidate and direct them to ignore votes in his favor because they would be "invalid," city attorney Ken Florey said Tuesday.

Even if Garcia were elected as a write-in candidate, Florey said, he couldn’t be sworn in, couldn’t vote and couldn’t serve residents because of the city's ruling that he was not a valid candidate.

“Instead of appealing (the city's decision), he filed as a write-in, and you can only be a write-in if you are a qualified candidate,” he said. “… If he disagreed (with the decision), he should have filed an appeal and let the court decide but he didn’t. … That’s a binding decision.

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The City Council voted 7-0 Monday to file the suit after attorneys approached officials about Garcia’s eligibility, said Wheaton Mayor Mike Gresk. 

Garcia said last month the candidacy requirements could be interpreted in different ways, as voters in DuPage County must register 28 days before an election. He said he interpreted the rules as requiring a candidate to be a Wheaton resident and a voter registered in the city by the 28-day deadline.

Thor Saline, an unopposed candidate for City Council in the East District, is serving as the interim At-Large councilman until after the election. The seat became vacant when Jeanne Ives resigned to take her post as state representative in the 42nd District. Former councilman and mayoral candidate John Prendiville is the only candidate for the seat.

Saline, John Rutledge (Incumbent, South District) and Todd Scalzo (Incumbent, West District) are running unopposed for their seats. In the for the seat including Alberta Adamson, J.T. Del Alcazar, Ted Rodgers and incumbent Phil Suess. 

The consolidated election will be April 9.


  • East District Candidate Appointed Interim Councilman
  • City Council Candidate Removed From Ballot
  • City Council Candidate Objects to Opponent's Eligibility
Sam Pruitt February 07, 2013 at 11:31 PM
Here is what Mark said previously, "whether or not we like the law doesn't mean we can ignore it, and in this case being a registered voter in the jurisdiction when you file for office is a fairly straightforward test." So is Mark now saying that Wheaton should ignore the law because Mr. Garcia is a Jeanne Ives candidate? Seems like Mark's lawsuits against CUSD200 could also be said to be a huge waste of time and money. Maybe Jeanne Ives is a huge waste of time and money for putting up candidates that are from Naperville?
michelle garcia February 09, 2013 at 10:06 PM
How was this article even about Jeanne Ives? Why even mention her name? This is a clear issue of the right doesn't speak to the left. One area said Mr.Garcia could run and the other is saying he cannot. Sadly only the ones involved will know the how and why..we all have to wait and see. It's just too bad it has to go this way.
Wheaton Watcher February 09, 2013 at 11:51 PM
The Wheaton Bank and Trust Website shows that CUSD 200 candidate Jim Mathieson is a director. The CUSD 200 Annual Report for 2012 shows that the District does business with the Bank. If elected, this would be a significant conflict of interest for Mr. Mathieson.
Major Tom February 10, 2013 at 12:25 AM
ask cusd ww
Mark Stern February 10, 2013 at 02:59 AM
What the law says is that a registered voter can challenge a candidate, which is what happened before - remember, the City of Wheaton did not sue to get Mr. Garcia kicked off the ballot. It does not say that a municipality can use tax money to sue people who "might" get elected as write-in candidates. If Mr. Pruitt is a registered voter and does not think Mr. Garcia is eligible, he should file an objection.


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