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posted: 2/6/2013 4:18 PM

Wheaton write-in candidate sparks legal challenge

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It wasn't enough to have Wheaton's electoral board remove Frank Garcia's name from the spring ballot.

Officials now are seeking a court order to prevent the city council candidate from pursuing a write-in campaign. They say the step is necessary because Garcia failed to prove he's lived in Wheaton long enough to legally qualify to serve on the council.

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But Garcia is refusing to abandon his bid for an at-large seat against former Councilman John Prendiville.

"I'm not dropping out," said 54-year-old consultant, who insists his write-in effort got the green light from DuPage County election officials.

So Wheaton is getting the courts involved. It wants a DuPage judge to confirm the electoral board's decision to disqualify Garcia as a candidate.

Mayor Mike Gresk said the city is pursuing the legal action on the advice of its attorneys. Last month, the city's electoral board -- featuring the mayor, city clerk and senior council member -- concluded Garcia couldn't prove how long he's been a Wheaton resident. To run for city council, you need to be a resident for at least a year.

Despite insisting he's been living in Wheaton since 2007, Garcia voted in Naperville during the November election.

"When it comes to elections, the number one validating fact on where you reside is where you vote," Gresk said.

Garcia acknowledges he voted in November in the same Naperville neighborhood where he used to live before moving to Wheaton. He said he did it because he wanted to vote with his parents, who still reside in Naperville.

"I've always taken my mom and dad to vote," he said.

Garcia didn't appeal the Wheaton electoral board's decision to remove his name from the April 9 ballot. He said it's what motivated him to run as write-in candidate.

Did DuPage Election Commission officials know why Garcia's name was taken off the ballot when he registered as a write-in candidate?

County election officials didn't respond Wednesday to a request for comment.

But Garcia claims he made them aware of his situation.

"They told me they would have to contact their attorney about this," he said. "A day and a half later, they contacted me ... and said I'm a registered voter and can go as a write-in.

"They are the ones who told me I could go ahead."

Wheaton officials say Garcia didn't register to vote in the city until last month.

Attorney Ken Florey, who is representing the city, said the commission shouldn't have allowed Garcia to register as a write-in candidate because of the electoral board's decision.

"Based on that binding decision, he's not eligible to hold office as a councilman," Florey said.

As a result, Wheaton wants the election commission barred from printing ballots with a write-in spot in the at-large council race. It also doesn't want any votes that Garcia might get to be counted.

In the meantime, Garcia says he doesn't understand why the city is determined to derail his write-in campaign.

"What's the chance of a write-in candidate winning?" he said. "Why are they so worried?"

Gresk said the worry is that actions by the city council could be challenged if someone who isn't legally qualified to serve as a councilman is seated.

"This is driven by concerns from our lawyers that his election would undermine future votes (by the city council)," Gresk said.

Meanwhile, Prendiville dismissed Garcia's claim that the council, which voted to pursue legal action, is trying to help Prendiville win the election.

"I never asked the board to file suit," said Prendiville, adding that it's appropriate for the city to take action "to avoid confusion for the voters."

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