Acevedo v. Cook County Officers Electoral Board

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Edward “Eddie” Acevedo, et al., )

)

Plaintiffs, )

)

)

)

)

v. ) No. 18 C 293

)

The Cook County Officers )

Electoral Board et al., )

)

Defendants. )

)

Memorandum Opinion and Order

Plaintiffs are candidates for public office in Cook County

who seek to have their names included on the ballot in the

Democratic Party primary election to be held on March 20, 2018.

The Illinois Election Code provides that candidates for the

offices plaintiffs seek must submit a petition for nomination

containing “at least the number of signatures equal to 0.5% of

the qualified electors of [their] party who cast votes at the

last preceding general election in Cook County.” This

requirement means, for the 2018 election cycle, that plaintiffs

Acevedo and Raila (candidates for Cook County Sheriff and Cook

County Assessor, respectively) had to obtain 8,236 qualified

signatures, while plaintiffs Shaw, Stroger, Joyce, Williams, and

Avila (candidates for Commissioner of the Metropolitan Water

Reclamation District of Greater Chicago) had to obtain 8,075

qualified signatures to be included on the Democratic primary

ballot. See 10 ILCS 5/7-10(d)(1), 5/7-10(g). A separate

provision of the Illinois Election Code establishes that

candidates for statewide office are required to submit petitions

containing a minimum of 5,000 qualified signatures. 10 ILCS 5/7-

10(a).

The complaint alleges that each plaintiff submitted a

petition with signatures facially in excess of the relevant

minimum requirement. But signature records examinations by the

Cook County Clerk and the Chicago Board of Election Commissioner

determined that each petition but Raila’s (which evidently is

still under challenge) fell short of the required number of

valid signatures. All plaintiffs, however, obtained more than

the 5,000 valid signatures that would have qualified them for

inclusion on the Democratic primary election had they been

running for statewide office.

Plaintiffs claim that their exclusion from the Democratic

primary ballot pursuant to 10 ILCS 5/7-10 violates the First

Amendment and the Equal Protection Clause of the Fourteenth

Amendment under Illinois State Board of Elections v. Socialist

Workers Party, 440 U.S. 173 (1979), Norman v. Reed, 502 U.S. 279

(1992), and Gjersten v. Board of Election Com’rs for City of

Chicago, 791 F.2d 472 (7th Cir. 1986). They seek temporary and

permanent injunctive relief in the form of an order enjoining

defendants from enforcing any signature requirement greater than

5,000 for the offices they seek and compelling defendants to

include their names on the March 20, 2018 Democratic Party

Ballot. Before me is plaintiffs’ motion for a temporary

restraining order and preliminary injunction, which has been

briefed and argued at hearings on January 16 and 23, 2018.1 For

the reasons that follow, the motion is denied.

Because plaintiffs’ central reliance is on Socialist

Workers Party, a brief summary of that case is helpful.

Socialist Workers Party involved a challenge to the Illinois

Election Code in the context of a special general election for

Mayor of Chicago. At the time, the statute required new

political parties and independent candidates for statewide

office to obtain 25,000 signatures to appear on the ballot. 440

U.S. at 175. New parties and independent candidates for office

in political subdivisions of the state, by contrast, required

signatures of at least 5% of the number of voters who voted in

1 Although plaintiffs’ motion is styled, “Emergency Motion for Ex

Parte Temporary Restraining Order,” defendants were present at

both of the hearings, and the Illinois State Board of Elections

and its individual members filed a written response to the

motion. In both the caption and the text of their reply,

plaintiffs restyle the motion as one for both a temporary

restraining order and a preliminary injunction. Accordingly, I

construe their motion as seeking both forms of relief.

the previous election for offices within that political

subdivision. Id. at 175-76. This scheme produced the

“incongruous result” that to gain access to the ballot, a new

party or independent candidate in the City of Chicago or Cook

County needed substantially more signatures—nearly 36,000 for

the election at issue in Socialist Workers Party—than a

similarly situated party or candidate for statewide office. Id.

at 176-77. The Court acknowledged that states have “a legitimate

interest in regulating the number of candidates on the ballot,”

because the state had advanced “no reason, much less a

compelling one” for imposing a higher burden on candidates for

Chicago and Cook County offices than it did for candidates to

state offices, it held that the discrepancy violated the Equal

Protection Clause. Id. at 186.

Plaintiffs argue that under Socialist Workers Party, any

ballot access law whose application in any given election cycle

yields, as it has here, a numerically greater signature

requirement for candidates seeking county office than for

candidates seeking statewide office must be supported by a

compelling state interest. Read in isolation, Socialist Workers

Party arguably supports that proposition. But the Seventh

Circuit has declined to read the case so broadly. See, e.g.,

Bowe v. Board of Election Com’rs of City of Chicago, 614 F.2d

1147 (1980); Gjersten v. Board of Election Com’rs for City of

Chicago, 791 F.2d 472 (7th Cir. 1986); and Stone v. Board of

Election Com’rs for City of Chicago, 750 F.3d 678 (2014).

Moreover, the Supreme Court’s subsequent decisions in Anderson

v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504

U.S. 428 (1992), have clarified and refined the framework for

evaluating challenges to ballot restriction measures. Under the

analysis established in those cases, plaintiffs have not shown

their entitlement to a temporary restraining order or a

preliminary injunction.2

In Bowe, the Seventh Circuit rejected the argument that

Socialist Workers Party “stands for the broad proposition that a

state may never impose a higher signature requirement for an

office of a smaller subdivision than the requirement imposed for

any office of a larger subdivision.” 614 F.2d at 1151. The Bowe

plaintiffs sought to enjoin the application of provisions of the

Illinois Election Code imposing a 10% minimum signature

requirement on candidates for the office of Ward Committeeman in

Chicago—which, depending on the ward, meant between 834 and

2,280 signatures—while candidates for State Central Committeeman

required a fixed minimum of only 100 signatures to qualify for

the ballot. Id. at 1150. The court noted that “the state’s

2To establish their entitlement to preliminary relief, plaintiffs

must show, among other things, that they are likely to succeed

on the merits of their claim. Jones v. Markiewicz-Qualkinbush,

842 F.3d 1053, 1058 (7th Cir. 2016).

interests in preserving the integrity of its electoral process

and regulating the number of candidates on the ballot are

compelling,” then went on to observe that the Supreme Court “has

consistently taken an intensely practical and fact-oriented

approach to deciding these election cases.” Id. at 1151-52. For

these reasons, it rejected the plaintiffs’ request for

injunctive relief in the absence of a fully developed factual

record “as to the circumstances, background and operation of the

statute in question.” Id. at 1152.

Bowe’s essential teaching is that courts must examine the

facts of each case, including “the actual historical impact of

the statute.” Id. (citing Jenness v. Fortson, 403 U.S. 431

(1971)). In ballot access cases such as this, courts must look

at “the actual impact of the signature requirement” in the

context of the state’s election scheme as a whole. Id. “The

ultimate question,” the court explained, is whether “a

reasonably diligent candidate could be expected to be able to

meet the requirements and gain a place on the ballot.” Id.

(citing Storer v. Brown, 415 U.S. 724, 742 (1974)). Yet,

plaintiffs have offered none of the facts that would be

necessary to undertake that analysis and to conclude that the

Illinois Election Code unfairly burdens their interest in access

to the ballot. Instead, they argue that the numbers themselves—

that is, the comparison between the signature requirements that

apply to them and the signature requirement that applies to

statewide candidates—establishes a prima facie constitutional

violation. But Bowe rejects precisely that argument.

Nevertheless, plaintiffs insist that Bowe supports their

claim, seizing on the passage in which the court characterized

Socialist Workers Party as “an exception to the more common

fact-oriented approach in this area, an exception warranted by

the extreme and incongruous operation of the statute in

question.” Id. Plaintiffs argue that the Illinois Election Code

produces an even more “extreme and incongruous” result in this

case, since their signature requirements are more than 60%

higher than statewide candidates’ signature requirements,

whereas Socialist Workers Party struck down a requirement that

was only 44% higher than the one that applied to statewide

candidates. This argument is not well-taken, however, because it

obscures the crucial fact that the signature minimums the

plaintiffs challenge in this case are several orders of

magnitude smaller, in absolute values, than the ones at issue in

Socialist Workers Party. The distinction is critical.

I am mindful that plaintiffs are not challenging the 0.5%

signature requirement, or even the absolute number that

percentage yields, as overly burdensome on its face, and that

their challenge is instead to the disparity between their

requirement and the one that applies to candidates for statewide

office.3 But as Anderson and its progeny confirm, the first step

of the inquiry is to ask: to what extent are fundamental

individual rights burdened by the state’s election scheme?

Anderson, 460 U.S. at 789 (courts “must first consider the

character and magnitude of the asserted injury to the rights

protected by the First and Fourteenth Amendments” before

weighing these against the state’s asserted countervailing

interests).

Indeed, as the Seventh Circuit recently observed,

“[p]ractically speaking, much of the action takes place at the

first stage of Anderson’s balancing inquiry.” Stone v. Board of

Election Com’rs for City of Chicago, 750 F.3d 678, 681 (7th Cir.

2014). Stone concerned a challenge to the Illinois Election

Code’s provisions establishing a 12,500 signature minimum for

3 At oral argument, plaintiffs’ counsel emphasized that nearly

all of the candidates who have been challenged in the upcoming

election are women or minorities. See, e.g., Tr. of 01/16/2018

Hr’g. at 9:22-24 (“every single candidate that has been

challenged besides one is a woman or a minority”); 13:12-13

(“all the people challenged besides one are women and

minorities”); Tr. of 1/23/2018 Hr’g. at 17:2-4 (“everybody

challenged countywide at large, besides one person, was a

minority and a woman. All the remaining challenges are

minorities or women.”). To be clear, however, their complaint

does not claim that the challenged provisions of the Illinois

Election Code create suspect race- or gender-based classes, or

that the statute discriminates against them based on their race

and/or gender. Indeed, none of the cases plaintiffs cite

concerns allegedly race- or gender-discriminatory election laws.

Their theory, rooted exclusively in Socialist Workers Party and

its progeny, is that the statute creates geographic

classifications that have no rational relation to any legitimate

state interest.

Chicago’s mayoral candidates. Citing Bowe, the court held that

“[w]hat is ultimately important is not the absolute or relative

number of signatures required but whether a reasonably diligent

candidate could be expected to be able to meet the requirements

and gain a place on the ballot.” Id. at 682 (internal quotation

marks and citation omitted). The court then considered the fact

that nine mayoral candidates had achieved the required minimum

to be “powerful evidence that the burden of gathering 12,500

signatures in ninety days is not severe.” Id. at 683. In this

case, plaintiffs have offered no evidence to suggest that the

burden on them is severe, or even substantial. In fact, their

counsel represented that although plaintiff Raila’s ballot

eligibility is still undergoing a challenge, she is, after

signature record examination, “5,902 signatures beyond the

required minimum.” Tr. of 01/23/2018 Hr’g. at 17:5-8. If that is

accurate, it cuts against the inference Stone requires.

Like Bowe, Stone confirms that Socialist Workers Party

cannot be read to obviate plaintiffs’ burden of establishing,

through prima facie evidence, a constitutionally significant

restriction on their fundamental rights. Gjersten, cited by

plaintiffs, is not to the contrary. Gjersten concerned a

challenge to a provision of the Illinois Election Code requiring

candidates for the office of ward committeeman in the City of

Chicago to submit nominating petitions with the signatures of

10% of the electors in their wards, while candidates for the

suburban office of township committeeman—substantively the same

office—needed the signatures of only 5% of the electors of their

townships. 791 F.2d at 473, 476. The Seventh Circuit again

stated its view that Socialist Workers Party does not stand for

the “broad position that a state may never impose a higher

signature requirement for an office of a smaller subdivision

than the requirement imposed for any office of a larger

subdivision.” Id. at 477 (quoting Bowe 614 F.2d at 1151). But

based on “the affidavits, the evidence of the statute’s effect

in past elections and the evidence presented during a two-hour

hearing on the motion for a preliminary injunction,” the court

concluded that the discrepancy in signature requirements did not

pass constitutional muster. Plaintiffs have not sought to

present the kind of evidence on which the Gjersten court relied.

In fact, asked at oral argument whether the candidate field for

the offices plaintiffs seek had been larger in past election

cycles, when the signature requirement was less than 5,000

(which, if so, might suggest that the higher minimums in the

2018 election cycle had a material negative effect on

candidates’ ability to obtain the necessary signatures),

plaintiffs had no clear answer. In the present posture of this

case, Gjersten supports defendants.

Further, as defendants point out, numerous cases have

upheld minimum signature requirements substantially more

burdensome than the 0.5% requirement that applies to plaintiffs.

See, e.g., Burdick, 504 U.S. at 435 and n. 4 (upholding Hawaii’s

“one percent of the State’s registered voters” requirement and

noting its approval of equally or more burdensome requirements)

(citing Norman v. Reed, 502 U.S. 279, 295 (1992); American Party

of Texas v. White, 415 U.S. 767 (1974); and Jenness v. Fortson,

403 U.S. 431 (1971)). See also Stone, 750 F.3d at 683 (observing

that percentages ranging from 1% to as high as 5% of the

eligible voting base have been considered reasonable). Although

these cases indeed do not establish a bright-line rule or

“litmus test” for constitutionality, they do reflect the range

of restrictions courts have considered to be reasonable. In the

face of these decisions, plaintiffs must come forward with

something more than dogged reliance on an expansive reading of

Socialist Workers Party to show that the signature requirement

the Illinois Election Code imposes on them amounts to an

unreasonable burden on their fundamental rights. Because they

have not, and because Socialist Workers Party does not, without

more, transform a facially reasonable ballot restriction into an

Equal Protection violation each time one class of candidates in

a smaller political subdivision is subject to a more onerous

Signature requirement than another class of candidates in a

larger one, plaintiffs’ motion is denied.

ENTER ORDER:

Elaine E. Bucklo

United States District Judge

Dated: January 24, 2018

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