# Jackson v. Ogilvie > District Court, N.D. Illinois · June 21, 1971 · 325 F. Supp. 864 URL: https://www.frixlaw.com/law-library/cases/9788362 ## Case - **Full name:** Jesse L. JACKSON, Sharon T. Wilkinson and Melvin M. MacLin, Plaintiffs, v. Richard OGILVIE, Governor of the State of Illinois, Chairman of the State Electoral Board of the State of Illinois, Et Al., Defendants - **Court:** District Court, N.D. Illinois - **Decided:** June 21, 1971 - **Citations:** 325 F. Supp. 864 - **Precedential status:** Published - **Opinion:** Dissent by Pell - **Judges:** Pell, Perry, Lynch - **Cited by:** 29 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788362 ## Opinion text PELL, Circuit Judge (dissenting). While I concur in the result reached in the particular case before us by the majority of the three-judge panel insofar as 46 Ill.Rev.Stat. §§ 10-4 and 10-6 are concerned, I respectfully dissent from that portion of the decision upholding the constitutionality of the Illinois statute requiring an independent candidate for public office to file nomination papers containing signatures of qualified voters of not less than 5% of the voters who voted at the next preceding general election in the political sub-division involved. The fact that for the 1971 Chicago mayoralty election this would require some 58,000 signatures, while no doubt substantially chilling to the aspirations of any independent candidate, is not in my opinion the primary matter of inquiry. The threshold difficulty lies, it appears to me, in the percentage requirement of the statute. 46 Ill.Rev.Stat. § 10-3. This could be as formidable and as discriminatory a barrier in the town as in the metropolis. It is, of course, for this reason that we have properly assumed three-judge panel jurisdiction. The majority decision adverts to the fact that the 5% requirement is higher than the percentage (for third parties) required in a majority of other states. This is somewhat of an understatement as only 4 states require more than 3% and 42 states require 1% or less. Of these 42, 16 require Vio of 1% or less. See Williams v. Rhodes, 393 U.S. 23, 47 , 89 S.Ct. 5 , 21 L.Ed.2d 24 (1968). No doubt the fact that a state is so conspicuously out of step does not necessarily connote unconstitutionality but it does give cause for reflection as to whether there is a compelling state interest in the retention of the restrictive standard. It is true that no evidentiary hearing has been held before the three-judge panel in the matter of proof by the primarily involved defendants 1 of compelling state interest, however, the majority was willing to find that such interest did exist on the basis of the record before us. I am unable to agree nor can I conceive that there is a real possibility of demonstration supporting a compelling state interest in adherence to the 5% restrictive requirement. *870 During oral argument, attention to this phase was invited and a principal proposition advanced in response was the cost of including independent candidates on the ballot. While the cost of preventing dilution of fundamental liberties should be one rather willingly-borne, as a practical matter Illinois permits, and is willing to assume the cost of, write-in candidates on its ballots, which would seem to have an equally costly potential to that of nominated independent candidates. When a candidate of one of the two principal parties can cause his name to be placed on the primary ballot by slightly more than 2000 nominating signatures in Chicago, and the nominee of the other principal party by only slightly more than 4000, we must indeed search diligently for any rational justification for the exclusionary policy directed toward the independent candidate. I am unable to find such a justification either in the majority decision or otherwise. There is certainly arguable merit in the proposition favoring the preservation of our two party system as opposed to the disruptive fragmentation of cohesive governmental processes resulting from numerous, but ineffectual, political parties. Nevertheless, the particular political parties have no vested constitutional interest in the preservation of their dominant status. See Williams v. Rhodes, supra, 393 U.S. at 32 , 89 S.Ct. 5 . If it were so, history shows us that neither would be in its present position. While the state has, and should have, a substantial interest in administering its own local elections, including limitations on access to the ballot by candidates, due process requires that the state accomplish its legitimate objective both narrowly and fairly. Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970). In my opinion, the requirement of the statute under consideration by its excessively high requirement becomes prohibitory as to some candidates and therefore meets neither the requirement of narrowness nor fairness. In the words of Mr. Justice Cardozo, “The concept of fairness must not be strained till it is narrowed to a filament.” Snyder v. Massachusetts, 291 U.S. 97, 122 , 54 S.Ct. 330, 338 , 78 L.Ed. 674 (1934). “The use of nominating petitions by independents to obtain a place on the Illinois ballot is an integral part of her elective system. * * * All procedures used by a State as an integral part of the election process must pass muster against the charges of discrimination or of abridgment of the right to vote.” Moore v. Ogilvie, 394 U.S. 814, 818 , 89 S.Ct. 1493, 1495 , 23 L.Ed.2d 1 (1969). Believing there is an on-the-face failure of “muster” qualification, I would therefore hold that § 10-3 is violative of the Equal Protection Clause of the fourteenth amendment and the right of free association guaranteed by the first amendment of the United States Constitution. I am disturbed by the fact that holding a state statute federally unconstitutional may well leave no regulation extant in an area in which the state has an undoubted legitimate interest in regulating conduct such as in the case before us. Because of the result reached by the majority here, however, it is unnecessary to determine whether we could properly hold that § 10-3 was unconstitutional to the extent that its minimum requirement exceeds y% of 1% of the voters at the last preceding election. . The City Clerk and the members of the Chicago Board of Election Commissioners. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788362. Public record. Not legal advice.