Petition for Writ of Certiorari — Clint A. Krislov, et al., Petitioners v. Cook County Officers Electoral Board, et al.

No. 21In the

Supreme Court of the United States

CLINT KRISLOV AND MICHAEL POWERS,

Petitioners,

v.

COOK COUNTY OFFICERS ELECTORAL BOARD,

HON. KAREN A. YARBROUGH, BY SISAVANH

BAKER, HON. KIMBERLY FOXX, BY JESSICA M.

SCHELLER, AND HON. DOROTHY BROWN, BY

MEREDITH HAMMER,

Respondents.

On Petition for a Writ of Certiorari to the United

States Court of A ppeals for the Seventh Circuit

PETITION FOR A WRIT OF CERTIORARI

Clinton A. Krislov

Counsel of Record

Kenneth T. Goldstein

Krislov & A ssociates, Ltd.

20 North Wacker Drive, Suite 1006

Chicago, IL 60606

(312) 606-0500

clint@krislovlaw.com

Counsel for Petitioners

306166

A

(800) 274-3321 • (800) 359-6859

i

QUESTIONS PRESENTED

Whether federal courts recognize a public interest

exception to mootness, such that Petitioners’ challenge to

the Cook County Election Board’s policy refusing to accept

statistical evidence of sufficient signatures showing should

have been permitted to proceed, since the likelihood of

signature challenges decided by narrow margins is certain

to recur in virtually every year’s ballot access?

Should Petitioners have been permitted to amend their

complaint challenging Cook County’s ballot procedures

based on his denial of a position on the ballot?

Whether, in light of this Court’s Uzuegbunam v.

Preczewski, ___U.S.___, 141 S. Ct. 792 (2021) decision,

holding that damages are presumed in Constitutional

deprivation cases, the dismissal of a candidate’s challenge

to the County’s existing procedures should be reversed,

affording the candidate the opportunity to amend the

complaint, in light of the candidate’s intention to run for

future office and likelihood facing a similar challenge?

Whether it is a violation of the First Amendment or

Due Process to refuse to permit candidates’ statistical

evidence to prove their actual compliance with statutory

signature requirements?

ii

PARTIES TO THE PROCEEDING BELOW

Petitioners are Clint Krislov and Michael Powers.

Respondents are the Cook County Officers Electoral

Board, Hon. Karen A. Yarbrough (Cook County, Illinois,

Clerk), Hon. Kimberly M. Foxx (Cook County, Illinois,

States Attorney) and Hon. Dorothy A. Brown (Cook

County, Illinois, Clerk of the Circuit Court) (in their public

official capacities).

iii

CORPORATE DISCLOSURE STATEMENT

There are no parent corporations or publicly held

companies in this case.

iv

RELATED PROCEEDINGS

Krislov v. Yarbrough, 20-1928, United states Court

of Appeals for the Seventh Circuit. Judgement Date –

February 22, 2021.

Krislov, Power v. Cook County Officer Electoral

Board, et al, No. 20 C 469, United States District Court,

of the Northern District of Illinois, Eastern District

(Kendall, J.) Judgment Date – May 4, 2020.

v

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING BELOW . . . . . . . ii

CORPORATE DISCLOSURE STATEMENT . . . . . iii

RELATED PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . v

TABLE OF APPENDICES . . . . . . . . . . . . . . . . . . . . . viii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . ix

OPINION BELOW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . 1

STATUTES INVOLVED . . . . . . . . . . . . . . . . . . . . . . . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . 3

REASONS FOR GRANTING THIS PETITION

FOR CERTIORARI . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

I.

Ballot access is a nationwide concern,

impacting fundamental rights in which those

seeking office must be afforded the opportunity

to statistically show their having attained the

necessary number of signatures . . . . . . . . . . . . . 7

vi

Table of Contents

Page

II. Mootness and the Public Interest Exception

to Mootness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1.

Every election cycle has someone

who ostensibly “comes up short” by

a very small number of signatures,

whose count is almost never reliably

certain, and should be permitted to

offer evidence of statistical margins

to prove their having produced their

necessary signatures. A candidate’s

ballot access is a fundamental right,

and different from disputes over the

final election vote count . . . . . . . . . . . . . . . . . 9

2.

The procedures for challenging petition

signatures are a recurring problem in

every election cycle . . . . . . . . . . . . . . . . . . . 11

3.

The Challenge to the Process distinctly

survives even if this candidacy ends . . . . . 14

III. Statistical Issues: Where numerical standards

are applied, virtually all courts recognize

that statistical margins of error must be

considered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

A. The Defendants’ current signature

challenge process fails the standard

of Strict Scrutiny with a preference

in favor of the candidate seeking

access to the ballot . . . . . . . . . . . . . . . . . . . . 17

vii

Table of Contents

Page

B. Need for uniform rules with a presumption

in favor of the challenged candidate . . . . . 18

IV. Leave to Amend should have been granted

under common circuit rules, and since

amendment would have sufficed under

Uzuegbunam v. Preczewski, ___U.S.___, 141

S. Ct. 792 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

viii

TABLE OF APPENDICES

Page

A P P E N DI X A — O P I N ION O F T H E

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT, FILED

FEBRUARY 22, 2021 . . . . . . . . . . . . . . . . . . . . . . . . . 1a

APPENDIX B — ORDER OF THE UNITED

STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS , EA ST ERN

DIVISION, FILED MAY 4, 2020 . . . . . . . . . . . . . . . 7a

APPENDIX C — OPINION OF THE UNITED

STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS , EA ST ERN

DIVISION, FILED MARCH 10, 2020 . . . . . . . . . . 11a

ix

TABLE OF CITED AUTHORITIES

Page

Cases

Anderson v. Celebrezze,

460 U.S. 780, 103 S. Ct. 1564, 75 L. Ed. 2d 547

(1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 10

Bell v. Farmers Ins. Exchange,

115 Cal. App. 4th 715 (Cal. App. 1st Dist. 2004) . . . 16

Bowe v.

Bd Of Election Comm’rs of City of Chicago,

614 F.2d 1147 (7th Cir. 1980) . . . . . . . . . . . . . . . . . . . 18

Briscoe v. Kusper,

435 F.2d 1046 (7th Cir. 1970) . . . . . . . . . . . . . . . . . . . 10

Bushnell v. State,

5 P.3d 889 Ct. of App. Alaska (2000) . . . . . . . . . . . . . 16

Chavez v. Illinois State Police,

251 F.3d 612 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 17

Citizens for John W. Moore v.

Board of Election Commissioners,

794 F.2d 1254 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . 11

Cochran v. Schwan’s Home Service, Inc.,

228 Cal. App. 4th 1137 (Cal App. 2d Dist. 2014) . . 16-17

x

Cited Authorities

Page

Conn. Light & Power Co. v.

Conn. Dep’t of Pub. Util. Control,

2010 Conn. Super. LEXIS 321 (Conn. Superior

Ct. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

D.C. Court of Appeals v. Feldman,

460 U.S. 462, 103 S. Ct. 1303 (1983) . . . . . . . . . . . . . 15

Del Monte Fresh Produce Co. v. United States,

570 F.3d 316 (D.C. Cir. 2009) . . . . . . . . . . . . . . . . . . . 12

District of Columbia v. Feldman,

460 U.S. 462 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Gill v. Scholz,

962 F.3d 360 (7th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 12

Gjersten v. Board of Election Commissioners,

791 F.2d 472 (7th Cir. 1986) . . . . . . . . . . . . . . . . . . . . 10

Green Party of Georgia v. Kemp,

2016 WL, 1057022

(U.S. Dist. Ct, N.D. GA 2016) . . . . . . . . . . . . . . . . . . 18

Hall v. Florida,

572 U.S. 701 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Haynes v. Dept of Public Safety,

865 P.2d 753 (Alaska 1993) . . . . . . . . . . . . . . . . . . . . . 16

xi

Cited Authorities

Page

Illinois Elections Board v.

Socialist Workers Party,

440 U.S. 173, 59 L. Ed. 2d 230, 99 S. Ct. 983 (1979) . 10

In re Associated Press,

162 F.3d 503 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 14

In re Countrywide Fin. Corp. Mortgage-Backed

Secs. Litig. v. Countrywide Fin. Corp.,

984 F. Supp. 2d 1021 (C.D. Cal. 2013) . . . . . . . . . . . . 15

Int’l Bhd. of Teamsters v. United States,

431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Jackson-Hicks v.

East St. Louis Bd. Of Election Commrs.,

2015 IL 118929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Johnson v. Cook County Officers Electoral Bd.,

680 F. Supp. 1229 (N.D. Ill. 1988) . . . . . . . . . . . . . . . 11

King v. Kramer,

763 F.3d 635 (7th Cir. 2014) . . . . . . . . . . . . . . . . . . . . 19

Krislov v. Rednour,

226 F.3d 851 (7th Cir. 2000) . . . . . . . . . . . . . . . 5, 11, 14

Krislov v. Yarbrough,

988 F.3d 975 (7th Cir. 2021) . . . . . . . . . . . . . . . . . . . . . 1

McDaniel v. DOT (In re McDaniel),

2010 Ida. App. LEXIS 72 (Idaho App. 2010) . . . . . . 16

xii

Cited Authorities

Page

Meyer v. Grant,

486 U.S. 414 (1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Milwaukee Police Ass’n v. Board of Fire & Police

Commissioners of Milwaukee,

708 F.3d 921 (7th Cir. 2013) . . . . . . . . . . . . . . . . . . . . 11

Motor Vehicle Admin. v. Lytle,

374 Md. 37 (Ct. of App. Md. 2002) . . . . . . . . . . . . . . . 16

Moy v. Cowen,

958 F.2d 168 (7th Cir. 1992) . . . . . . . . . . . . . . . . . . 5, 18

Murphy v. Hunt,

455 U.S. 478, 71 L. Ed. 2d 353, 102 S. Ct. 1181

(1982) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Orion Sales, Inc. v. Emerson Radio Corp.,

148 F.3d 840 (7th Cir. 1998) . . . . . . . . . . . . . . . . . . . . 14

Patino v. City of Pasadena,

230 F. Supp. 3d 667 (S.D. Texas 2017) . . . . . . . . . . . 15

Patriot Party of Allegheny County v. Allegheny

City of Dept. of Elections,

95 F.3d 253 (3d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . 13

People v. Axell,

235 Cal. App. 3d 836 (Cal. App. 1991) . . . . . . . . . . . . 17

xiii

Cited Authorities

Page

Pool v. City of Houston,

-F.3d-, 2020 U.S. App. LEXIS 33581, 2020 WL

6253444 (5th Cir. October 23, 2020) . . . . . . . . . . . . . . 9

Reclaim Idaho v. Little,

-Fed. Appx.-, 2020 U.S. App. LEXIS 27832,

2020 WL 5202080 (9th Cir. Sept. 1, 2020) . . . . . . . . . 9

Rooker v. Fidelity Trust Co.,

263 U.S. 413 (1923) . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

Rosario v. Rockefeller,

410 U.S. 752, L. Ed. 2d 1, 93 S. Ct. 1245 (1973) . . . . 13

Runnion v.

Girl Scouts of Greater Chi. & Nw. Ind.,

786 F.3d 510 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 19

Smith v. Schriro,

813 F.3d 1175 (9th Cir. 2016) . . . . . . . . . . . . . . . . . . . 16

State v. Escalante-Orozco,

241 Ariz. 254 (Ariz. Sup. Ct. 2017) . . . . . . . . . . . . . . 16

State v. Finch,

291 Kan. 665 (Supreme Ct. Kansas 2011) . . . . . . . . 17

Stone v.

Bd. Of Elections Comm’rs of City of Chicago,

750 F.3d 678 (7th Cir 2014) . . . . . . . . . . . . . . . . . . . 9, 18

xiv

Cited Authorities

Page

Super Tire Engineering Co. See, e.g., Reno v.

Bossier Parish Sch. Bd.,

528 U.S. 320, 120 S. Ct. 866,

145 L. Ed. 2d 845 (2000) . . . . . . . . . . . . . . . . . . . . . 11-12

Tobin for Governor v. Ill. Bd. of Elections,

268 F.3d 517 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . 13

Tripp v. Scholz,

872 F.3d 857 (7th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . 9

Tripp. v. Smart,

2016 U.S. Dist. LEXIS 109216 (S.D. Ill.

August 17, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

United States v. Wilson,

170 F. Supp. 3d 347 (E.D.N.Y. 2016) . . . . . . . . . . . . . 16

Uzuegbunam v. Preczewski,

___U.S.___, 141 S. Ct. 792 (2021) . . . . . . . . . . 7, 19, 20

Weinstein v. Bradford,

423 U.S. 147, 46 L. Ed. 2d 350, 96 S. Ct. 347

(1975) (per curiam) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

Whitaker v. Milwaukee County,

772 F.3d 802 (7th Cir. 2014) . . . . . . . . . . . . . . . . . . . . 19

Williams v. Allstate Ins. Co.,

2017 Cal. App. Unpub. LEXIS 8510 (Cal.

App. 2d Dist. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

xv

Cited Authorities

Page

Statutes and Other Authorities

U.S. Constitution - Amendment I . . . . . . . . . . . . . . passim

U.S. Constitution - Amendment XIV - Section 1 . . . 3, 18

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

28 U.S.C. § 1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. § 1367(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 5

42 U.S.C. § 1973c(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 2

Cofsky, Pruning the Political Thicket: The Case for

Strict Scrutiny of State Ballot Access Restrictions, 145

Univ. of Pennsylvania L. Rev. 353 (1996) . . . . . . . . . . . . 10

Hearing Officer recommends Ald. Anthony Beale be

kicked off March committeeperson ballot, Chicago Sun

Times, January 14, 2020 . . . . . . . . . . . . . . . . . . . . . . . . . 12

Illinois State Election Board filings . . . . . . . . . . . . . . . . . 4

1

Clint Krislov and Michael Powers respectfully petition

for a writ of certiorari to review the judgment of the

United States Court of Appeals for the Seventh Circuit

in this case.

OPINION BELOW

The opinion of the Court of Appeals for the Seventh

Circuit, is reported at Krislov v. Yarbrough, 988 F.3d 975

(7th Cir. 2021), and is reprinted in the appendix hereto

at 1a.

The opinions of the United States District Court,

of the Northern District of Illinois, Eastern District

(Kendall, J.) granting and entering judgment for Cook

County Officers Electoral Board, et al, is reprinted in the

appendix hereto at 7a and 11a (the March 10, 2020, final

decision and judgment of the U.S. District Court for the

Northern District of Illinois and denial to vacate May 4,

2020).

STATEMENT OF JURISDICTION

The District Court had jurisdiction as a civil action

arising under the laws of the United States pursuant

to: (i) 42 U.S.C. §1983 to redress the deprivation under

color of law of Plaintiffs’ rights as secured by the United

States Constitution and applicable State law, (ii) 28 U.S.C.

§1331 (federal question) for the federal claim and (iii) over

the State law claim by 28 U.S.C. §1367(a) (Supplemental

Jurisdiction over other claims that are so related that they

form part of the same case or controversy).

2

The Appellate Court had jurisdiction pursuant to 28

U.S.C.§1291. The Opinion of the Seventh Circuit Court of

Appeals was entered February 22, 2021.

Jurisdiction of the Supreme Court of the United States

to review the judgment of the Seventh Circuit is invoked

under 28 U.S.C. §1254(1). On March 19, 2020 and April 15,

2020 the Court extended the deadline to file petitions for

writs of certiorari in all cases to 150 days from the lower

court judgment, and modified/rescinded that order on

July 19, 2021 – per these Orders, this Petition is timely.

STATUTES INVOLVED

42 U.S.C. §1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen

of the United States or other person within the

jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the

party injured in an action at law, suit in equity,

or other proper proceeding for redress, except

that in any action brought against a judicial

officer for an act or omission taken in such

officer’s judicial capacity, injunctive relief shall

not be granted unless a declaratory decree was

violated or declaratory relief was unavailable.

For the purposes of this section, any Act of

Congress applicable exclusively to the District

of Columbia shall be considered to be a statute

of the District of Columbia.

3

U.S. Constitution - Amendment I

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the freedom

of speech, or of the press; or the right of the

people peaceably to assemble, and to petition

the government for a redress of grievances.

Amendment XIV - Section 1.

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof,

are citizens of the United States and of the

state wherein they reside. No state shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any state deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

Plaintiff Krislov was a candidate for the Democratic

nomination for the Illinois Supreme Court in the March

17, 2020 primary election. Plaintiff Powers is one of the

circulators and signers of petitions supporting Krislov’s

candidacy for the March 17, 2020 primary election.

In compliance with Illinois election laws requiring

5,050 registered voter signatures, Krislov submitted 9,555

signatures of voters supporting his candidacy for Illinois

Supreme Court Justice in the March 17, 2020 Illinois

4

primary election. Krislov’s signature petitions were

challenged by “objectors” funded by one of his opponents,

who chose not to disclose his identity.1

The “objectors” challenged thousands, virtually all

of Krislov’s signatures and registrations. In the process,

which occurs over a very short time, the challengers

succeeded in challenging 4,601 signatures, leaving 4,954

valid, or 108 (2.01%) short of the 5,050 required signatures.

Krislov challenged the on the fly/seat of the pants

determination process used in Cook County, in which

minimally trained evaluators are forced to make expert

evaluative examination decisions in very short order,

without objective standards, (“It’s just a matter of

judgment” 2 and “there’s no going back”) and with no

consideration for the actual statistical margins of error.

Both the hearing officer and the defendant Hearing

Board rejected Krislov’s challenges to this process as

not assertable in that proceeding, and rejected as well,

Krislov’s offer of statistical evidence to show that Krislov’s

1. Illinois State Election Board filings subsequently show

that this was funded by competing candidate Sheldon Harris,

who, despite spending over a hundred thousand of dollars to

knock Krislov from the ballot, and more than $1.8 million in

commercials, https://www.elections.il.gov/CampaignDisclosure/

ItemizedExpenditures.aspx?FiledDocID=trPWfoWMyVoRiSG

CqxoeVQ%3d%3d&ExpenditureType=VAImtPqPgy1OCIplmE

2dX9gBL3kY%2blD4r9uiFqDOEbc%3d) nonetheless came in a

distant third place in the March 17, 2020 primary election.

2. E.g., one voter signing as “Betsy” was rejected because she

was registered as “Elizabeth” as was an “Anastacia” signing as

“Stacy”.

5

presented signatures were sufficient, when considered

within the margin of error rate for Professional Document

Examiners, using actual objective standards, at least

2.97%, 3.4% to 6.97%, plus or minus, (showing significantly

higher error rates in rejecting valid signatures, than for

accepting invalid signatures, and contrasted with the

error rate for lay personnel, such as those who do the Cook

County evaluation, which is actually plus or minus 19%).

Thus, considering even the most stringent margin of

error for Professional Document Examiners, Krislov’s

offered proof showed that he should have been statistically

regarded as having submitted the necessary 5,050

signatures to secure his place on the ballot, such that

he and his supporters have been deprived of their

First Amendment rights of ballot access. See, Krislov

v. Rednour, 226 F.3d 851 (7th Cir. 2000) (invalidating

restrictions on petition circulators) and Moy v. Cowen,

958 F.2d 168 (7th Cir. 1992).

Since pursuing these challenges within the Cook

County review would have been futile and untimely in

its impact, Krislov and Powers sued in the United States

District Court, asserting that the Cook County procedures

violate the First Amendment’s ballot access protection,

with Supplemental Jurisdiction under 28 U.S.C. § 1367(a)

for the State law claims.

The County defendants moved to dismiss the

complaint, as lacking federal jurisdiction. Following delays

for the initially assigned judge’s sua sponte recusal and

reassignment of the case, the Honorable Virginia M.

Kendall, U.S. District Judge on March 10, 2020, after

briefing, rejected the First Amendment claim, dismissed

6

the complaint but commented that Krislov’s claim might

have rather been asserted as a due process claim:

But Plaintiffs do not apparently dispute the

constitutionality of Illinois’s statutory signature

requirements; instead, they complain that

the means by which the Board invalidated

signatures was unlawful because: (1) “the

records examiners have little training,” or

“special expertise”, (2) there was a “lack of an

objective standard” applied to the review of

signatures, and (3) “the shortfall is well within

the margin of error” such that the total number

of accepted signatures should suffice. These

objections do not sound in First Amendment

law, but rather in state administrative law. 5

Krislov might have some sort of Due

Process claim, but he does not allege

a Due Process claim, and the Court

has received no briefing on whether

the facts alleged state such a claim.

5

Accordingly, on April 3, 2020, Krislov and Powers

moved to vacate the dismissal and amend the Complaint,

to assert it as a Due Process claim), which Judge Kendall

denied May 4, 2020, as moot.

Krislov and Powers thereupon filed a timely Notice

of Appeal on June 2, 2020.

The United States Court of Appeals for the Seventh

Circuit on February 22, 2021, ignoring the offered

evidence showing erroneous exclusions to be far greater

than erroneous exclusions, declared the dispute moot,

7

vacated the judgment of the district court and remanded

with instructions to dismiss for lack of a justiciable

controversy.

REASONS FOR GRANTING THIS

PETITION FOR CERTIORARI

Statistical accuracy of ballot access petitions is

a recurring issue facing candidates nationwide in all

election cycles, such that this court should grant review to

determine whether ballot petition boards must permit the

submission of statistical evidence showing a candidate’s

having satisfied the minimum indicia of support to be

on the ballot, such that the public interest exception to

mootness should have been recognized by the courts

below.

Alternatively, it would be appropriate to issue a

“GVR” order, remanding with instructions to permit the

plaintiffs’ requested leave to amend their Complaint, in

light of this court’s recent decision in Uzuegbunam v.

Preczewski, ___U.S.___, 141 S. Ct. 792 (2021), such that

an amendment seeking nominal damages would have

sufficed for justiciability.

I.

Ballot access is a nationwide concern, impacting

fundamental rights in which those seeking office

must be afforded the opportunity to statistically

show their having attained the necessary number

of signatures.

Ballot access litigation arises in every election cycle,

and the ability to statistically demonstrate a candidate’s

fulfillment of the signatures necessary to appear on the

ballot presents a fundamental right.

8

The Seventh Circuit’s holding that the public interest

exception to mootness applies only if the particular

plaintiff can show that the shortfall in this candidate’s

next petition effort will be sufficiently narrow to require

statistical evidence of compliance and satisfaction, is far

too limiting, such that a petitioner need only show, as here,

that he will likely be subjected to similar challenges in

future election cycles.

II. Mootness and the Public Interest Exception to

Mootness.

While most States recognize a public interest

exception to mootness, the Seventh Circuit’s total rejection

of the concept as federaly nonjusticiable needs to be

addressed by this court.

The public interest exception is especially wellrecognized in ballot petition signature disputes, and has

been recognized by this Court:

We may exercise jurisdiction over this action if

“’(1) the challenged action [is] in its duration too

short to be fully litigated prior to its cessation

or expiration, and (2) there [is] a reasonable

expectation that the same complaining party

would be subjected to the same action again.’”

Murphy v. Hunt, 455 U.S. 478, 482, 71 L. Ed. 2d

353, 102 S. Ct. 1181 (1982) (per curiam), quoting

Weinstein v. Bradford, 423 U.S. 147, 149, 46 L.

Ed. 2d 350, 96 S. Ct. 347 (1975) (per curiam)

Meyer v. Grant, 486 U.S. 414, 417 n.2 (1988).

9

And recognized by other federal Circuits3 in ballot

access/petition signature cases, and Illinois as well. 4

1.

Every election cycle has someone who

ostensibly “comes up short” by a very small

number of signatures, whose count is almost

never reliably certain, and should be permitted

to offer evidence of statistical margins to

prove their having produced their necessary

signatures. A candidate’s ballot access is a

fundamental right, and different from disputes

over the final election vote count.

Supporting a heightened level of scrutiny, Tripp v.

Scholz, 872 F.3d 857, 862-64 (7th Cir. 2017) holds, “It is

well-settled that ‘[t]he impact of candidate eligibility

requirements on voters implicates basic constitutional

rights’ to associate politically with like-minded voters

and to cast a meaningful vote.” (Emphasis added)5.

3. See, e.g., Pool v. City of Houston, -F.3d-, 2020 U.S. App.

LEXIS 33581, 2020 WL 6253444 (5th Cir. October 23, 2020)

(reversing dismissal and remanding for circulators’ concerns

about signature requirements in future elections), and Reclaim

Idaho v. Little, -Fed. Appx.-, 2020 U.S. App. LEXIS 27832, 2020

WL 5202080 (9th Cir. Sept. 1, 2020) (remanding for the parties’

opportunity to brief or develop the record below on the likely

recurrence of the in-person signature controversy in the November

2022 future election).

4. Jackson-Hicks v. East St. Louis Bd. Of Election Commrs.,

2015 IL 118929

5. Citing, Stone v. Bd. of Election Comm’rs for City of Chi.,

750 F.3d 678, 681 (7th Cir. 2014) (quoting Anderson v. Celebrezze,

460 U.S. 780, 786, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983).

10

Different from an election vote count (where the final

number determines the winning candidate), a candidate

aspiring to the ballot can be reasonably required to

demonstrate his/her attaining the necessary modicum of

support to be on the ballot6.

And, that is why in the vast number of federal

decisions, where the issue is whether a required quantity

had been met, statistical margins of error must be

permitted, in order to accurately determine whether the

required standard has been met.

A long line of cases recognize that structural

ballot access obstacles inherently implicate the First

Amendment:

A plethora of cases have resolved that a state’s

regulation of procedures for nominating candidates

to appear on an election ballot implicates the First

Amendment, see Anderson v. Celebrezze, 460 U.S.

780, 75 L. Ed. 2d 547, 103 S. Ct. 1564 (1983), due

process, see Briscoe v. Kusper, 435 F.2d 1046 (7th

Cir. 1970); and equal protection, Illinois Elections

Board v. Socialist Workers Party, 440 U.S. 173,

59 L. Ed. 2d 230, 99 S. Ct. 983 (1979); Gjersten

v. Board of Election Commissioners, 791 F.2d

472 (7th Cir. 1986), rights of individuals who sign

6. The reality is that most restrictions to ballot access are

imposed by the “regular” political organizations, seeking to raise

the barriers against entry by “non-organization” candidates and

their supporters, and should be subjected to strict scrutiny in

most cases. See: Cofsky, Pruning the Political Thicket: The Case

for Strict Scrutiny of State Ballot Access Restrictions, 145 Univ.

of Pennsylvania L. Rev. 353 (1996).

11

nominating petitions. Plaintiffs here claim that

the Illinois election rules, and the actions of the

Electoral Board in enforcing them, violated these

rights. Accordingly, plaintiffs have standing to

bring this action. See, e.g., Citizens for John W.

Moore v. Board of Election Commissioners, 794

F.2d 1254 (7th Cir. 1986).

Johnson v. Cook County Officers Electoral Bd., 680 F.

Supp. 1229, 1230 (N.D. Ill. 1988).

2.

The procedures for challenging petition

signatures are a recurring problem in every

election cycle.

This case challenges the process by which candidate’s

signatures are challenged in each cycle. Although the

Krislov candidacy’s competitive viability was irreparably

harmed for the March, 2020 primary election, the issue

of whether the process violates his, and his supporters’

First Amendment rights, remains a viable claim, and the

issue is certain to recur.

It is also clear that challenges to the electoral system

on First Amendment grounds should not be mooted or

depend on whether the candidate remains in the race or

not. Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000).7

7. Milwaukee Police Ass’n v. Board of Fire & Police

Commissioners of Milwaukee, 708 F.3d 921, 931 (7th Cir. 2013)

denying standing case did not fall within the standard capable

of repetition, yet evading review doctrine with deep analysis of

exception for “mootness when a suit challenges a policy with the

kind of lasting effects discussed in Super Tire Engineering Co.

See, e.g., Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 327-28,

12

Indeed, the issue is likely to recur in the future,

numerous candidates get challenged and/or knocked off

the ballot each election cycle. 8

The well-accepted “capable of review, yet evading

review” exception in Gill v. Scholz, 962 F.3d 360, 363 n.3

(7th Cir. 2020) applies here. (“Although the appeal of the

stay was dismissed as moot, a justiciable controversy

remained under the “capable of repetition, yet evading

review” doctrine. Under that well-recognized exception to

mootness, a claim still presents a justiciable controversy if

“(1) the challenged action is in its duration too short to be

fully litigated prior to cessation or expiration, and (2) there

is a reasonable expectation that the same complaining

party will be subject to the same action again.”). The

rule applied there because Gill was “unable to litigate his

claims before the November 2016 election was held, and

he has expressed his intent to run for office in 2020.” Id.

120 S. Ct. 866, 145 L. Ed. 2d 845 (2000) (declaratory judgment on

the propriety of electoral redistricting is not moot, even when the

next election will not occur until after data from the next census

becomes available, because the previous redistricting, if valid,

will form the baseline upon which to judge future redistricting),

superseded on other grounds by statute, 42 U.S.C. § 1973c(c); Del

Monte Fresh Produce Co. v. United States, 570 F.3d 316, 321 (D.C.

Cir. 2009)(“a plaintiff’s challenge will not be moot where it seeks

declaratory relief as to an ongoing policy”).”

8. See, e.g. Hearing Officer recommends Ald. Anthony

Beale be kicked off March committeeperson ballot, Chicago

Sun Times, January 14, 2020: https://chicago.suntimes.com/

elections/2020/1/14/21065676/anthony-beale-committeepersonp et it ion- cha l lenge -ma rch-ba l lot a nd see: ht tp s: // w w w.

injusticewatch.org/news/2020/supreme-court-candidate-krislov9-other-judicial-candidates-off-ballot-after-signature-disputes/

13

The issue remains and recurs that a challenge to

the Illinois State and local procedures which stand as

obstacles to candidates’ access to the ballot, and which

will be faced by this Plaintiff, future candidates and

their supporters in future election cycles meets the public

interest exception. Indeed, this satisfies Tobin’s “capable

of repetition” exception, because there is a “reasonable

expectation that the same complaining party will be

subjected to the same action again” (Tobin for Governor

v. Ill. Bd. of Elections, 268 F.3d 517, 529 (7th Cir. 2001)),

and the Court below has itself previously ruled that

Krislov’s intention to run in the future is sufficient to

defeat mootness and preserve justiciability:

As to mootness, everyone concedes the obvious,

that the date of the primary election in which

Krislov and Sullivan wished to participate has

long since passed. Nevertheless, because the

use of non-resident, non-registered solicitors is

still prohibited by Illinois with respect to future

elections, this case is capable of repetition yet

evading review, a recognized exception to the

mootness doctrine. Rosario v. Rockefeller,

410 U.S. 752, 756 n.5, 36 L. Ed. 2d 1, 93 S. Ct.

1245 (1973) (case was not moot although date of

primary had passed and plaintiffs were eligible

to participate in the election where their case

was capable of repetition but likely to evade

review); Patriot Party of Allegheny County

v. Allegheny City of Dept. of Elections, 95

F.3d 253, 257 (3d Cir. 1996). This exception to

the mootness doctrine is applicable, as in the

present case, where the challenged situation is

likely to recur and the same complaining party

14

would be subjected to the same adversity. In re

Associated Press, 162 F.3d 503, 511 (7th Cir.

1998); Orion Sales, Inc. v. Emerson Radio

Corp., 148 F.3d 840, 842 (7th Cir. 1998). Because

at least Krislov has articulated an interest in

pursuing the Democratic Party’s nomination

for other elective offices, we have no doubt that

this case meets these requirements. Hence, the

candidates have standing to bring this action

and mootness is not a bar to the suit.

Krislov v. Rednour, 226 F.3d 851, 857-58 (7th Cir. 2000).

3.

The Challenge to the Process distinctly

survives even if this candidacy ends.

As this Court has explicitly declared 9, while the

candidate’s challenge to the decision on the instant

candidacy might be required to proceed in the State

system, the candidate’s challenge to the State’s procedures

and requirements may be asserted in a federal district

court proceeding:

[6B]The remaining allegations in the complaints,

however, involve a general attack on the

constitutionality of Rule 46I(b)(3). See n. 3,

supra. The respondents’ claims that the rule

is unconstitutional because it creates an

irrebuttable presumption that only graduates

of accredited law schools are fit to practice law,

9. The Rooker-Feldman doctrine. See Rooker v. Fidelity

Trust Co., 263 U.S. 413 (1923) and District of Columbia v.

Feldman, 460 U.S. 462 (1983)

15

discriminates against those who have obtained

equivalent legal training by other means,

and impermissibly delegates the District of

Columbia Court of Appeals’ power to regulate

the bar to the American Bar Association, do

not require review of a judicial decision in a

particular case. The District Court, therefore,

has subject-matter jurisdiction over these

elements of the respondents’ complaints. D.C.

Court of Appeals v. Feldman, 460 U.S. 462, 487,

103 S. Ct. 1303 (1983)10

III. Statistical Issues: Where numerical standards

are applied, virtually all courts recognize that

statistical margins of error must be considered.

In virtually all other situations where numerical

standards are applied, federal and state courts at all levels

recognize that they must consider the statistical margins

of error: See Patino v. City of Pasadena, 230 F.Supp.3d

667, 688 n.6 (S.D. Texas 2017) (Lee H. Rosenthal USDJ)

(“margins of error [in calculating voter numbers] must

be taken into account” for voter redistricting map); In re

Countrywide Fin. Corp. Mortgage-Backed Secs. Litig.

v. Countrywide Fin. Corp., 984 F.Supp.2d 1021, 1029,

esp. n.5 (C.D. Cal. 2013) (samplings of securitizations,

analysis of numerous experts with varying margins of

error); Williams v. Allstate Ins. Co., 2017 Cal. App. Unpub.

LEXIS 8510 (Cal. App. 2d Dist. 2017) (wage and hour

10. The “Rooker” portion of the doctrine merely held that the

review of a decision of the Indiana Supreme Court between two

parties was reviewable only by certiorari, rather than an original

challenge in a federal district court. Rooker v. Fid. Tr. Co., 263

U.S. 413 (1923).

16

class action, analysis of varying sample sizes to reach

acceptable confidence level and margin of error); Bell v.

Farmers Ins. Exchange, 115 Cal. App. 4th 715, 723 and

753 (Cal. App. 1st Dist. 2004) (wage and hour overtime;

need for evaluation of appropriate class size, margin of

error); Bushnell v. State, 5 P.3d 889 Ct. of App. Alaska

(2000) (acceptable margin of error in blood alcohol testing

instrument; and dissent noting, that “failure to apply the

inherent margin of error in favor of the person subject to

license revocation violates due process, citing Haynes v.

Dept of Public Safety, 865 P.2d 753, at 756 (Alaska 1993));

Conn. Light & Power Co. v. Conn. Dep’t of Pub. Util.

Control, 2010 Conn. Super. LEXIS 321 (Conn. Superior Ct.

2010) (critical elements of the margin of error calculation

in rate litigation, remand for review of margin of error

calculation.); United States v. Wilson, 170 F.Supp.3d 347

(E.D.N.Y. 2016) (margin of error in IQ test score in federal

death penalty case); Hall v. Florida, 572 U.S. 701 (2014)

(where defendant IQ test fell within margin of error,

defendant should be able to present additional evidence

of intellectual disability); Motor Vehicle Admin. v. Lytle,

374 Md. 37 (Ct. of App. Md. 2002) (describing split among

State Supreme Courts over whether to require adjustment

of tested person’s Blood Alcohol Content by standard 0.01

margin of error; sides with State in this situation due to

interest in safety and speedy testing); Smith v. Schriro,

813 F.3d 1175 (9th Cir. 2016) (margin of error in evaluating

defendant’s intellectual disability); McDaniel v. DOT (In

re McDaniel), 2010 Ida. App. LEXIS 72 (Idaho App. 2010)

(margin of error in breathalyzer); State v. EscalanteOrozco, 241 Ariz. 254 (Ariz. Sup. Ct. 2017) (death penalty

case courts must consider the margin of error for each IQ

test, regardless of number of tests); Cochran v. Schwan’s

Home Service, Inc., 228 Cal. App. 4th 1137 (Cal App. 2d

17

Dist. 2014) (employee wage claim class action; evaluation of

sampling-based conclusion must consider whether margin

of error in the statistical analysis is reasonable); People

v. Axell, 235 Cal. App. 3d 836 (Cal. App. 1991) (murder

case, DNA analysis took into account a margin for error

in measurement, so admittance into evidence affirmed.);

and State v. Finch, 291 Kan. 665 (Supreme Ct. Kansas

2011) (DUI breathalyzer reversed for trial court’s refusal

to permit defendant to mount a margin of error defense).

Margin of error statistical analysis is also recognized

and accepted “in cases in which the existence of

discrimination is a disputed issue.” Chavez v. Illinois State

Police, 251 F.3d 612, 637-38 (7th Cir. 2001) (“While few

opinions directly acknowledge that statistics may be used

to prove discriminatory effect, the Court has repeatedly

relied on statistics to do just that.”) citing, Int’l Bhd. of

Teamsters v. United States, 431 U.S. 324, 339 (1977).

A.

The Defendants’ current signature challenge

process fails the standard of Strict Scrutiny

with a preference in favor of the candidate

seeking access to the ballot.

In ballot access cases, the courts routinely apply strict

scrutiny analysis to State restrictions:

“the burden on Plaintiffs’ rights is so severe

that Strict scrutiny applies. But even if

strict scrutiny does not apply, the States’

interest in regulating presidential elections

is not sufficiently important to warrant the

restrictions imposed.”

18

Green Party of Georgia v. Kemp, 2016 WL, 1057022,19

(U.S. Dist. Ct, N.D. GA 2016).

In determining whether a burden on ballot

access is severe,

“What 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.’” (Bowe v. Bd Of Election Comm’rs of

City of Chicago, 614 F.2d 1147, 1152 (7th Cir.

1980) citing Storer, 415 U.S. at 742).

Stone v. Bd. Of Elections Comm’rs of City of Chicago, 750

F.3d 678-82 (7th Cir 2014).

B. Need for uniform rules with a presumption in

favor of the challenged candidate.

The Constitution’s First and Fourteenth Amendment

protections are for candidates’ meaningful access to

the ballot, invalidating severe restrictions on obstacles

to ballot access, balanced against a State’s interest in

orderly elections with reasonable showing of a candidate’s

support. See Tripp. v. Smart, 2016 U.S. Dist. LEXIS

109216 (S.D. Ill. August 17, 2016) that challengers have

no Constitutional right to block another person from the

ballot; Moy v. Cowen, 958 F.2d 168, 170-171 (7th Cir. 1992).

Here, where the Court would apply a high level of judicial

review, it is inconceivable that Krislov’s signatures were so

deficient that thousands of signatures were found invalid.

19

IV. Leave to Amend should have been granted under

common circuit rules, and since amendment would

have sufficed under Uzuegbunam v. Preczewski,

___U.S.___, 141 S. Ct. 792 (2021).

Denying leave to amend even once is contrary to most

Circuit law, especially where it would not be futile, and

herein, in light of the District Court’s own view that a due

process claim could be asserted (and futher underscored

by the fact that this was early in the case, before anything

has been done that would make such an amendment

prejudicial). Runnion v. Girl Scouts of Greater Chi. &

Nw. Ind., 786 F.3d 510 (7th Cir. 2015).

But merely asserting what the court considered as

the wrong cause of action is not a basis for dismissal at

all. A federal complaint need not allege the right cause of

action; it need only allege facts that can support a claim

for recovery. Whitaker v. Milwaukee County, 772 F.3d

802, 808 (7th Cir. 2014); King v. Kramer, 763 F.3d 635

(7th Cir. 2014).

20

CONCLUSION

Accordingly, this court should grant the petition,

vacate and reverse the dismissal below, and remand

with instructions to permit Plaintiffs to amend their

Complaint, seeking a declaration that the County Board’s

petition challenge procedures, in order to be valid, must

adopt uniform signature challenge standards, with the

burden on the challenger, and with consideration for

statistical margins of error, with nominal damages, per

Usuegbunam v Preczewski.

Dated: July 22, 2020

Respectfully submitted:

Clinton A. Krislov

Counsel of Record

Kenneth T. Goldstein

Krislov & A ssociates, Ltd.

20 North Wacker Drive,

Suite 1006

Chicago, IL 60606

(312) 606-0500

clint@krislovlaw.com

Counsel for Petitioners

APPENDIX

1a

A

APPENDIX Appendix

A — OPINION

OF THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT,

FILED FEBRUARY 22, 2021

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

No. 20-1928

CLINTON A. KRISLOV AND MICHAEL POWERS,

Plaintiffs-Appellants,

v.

KAREN A. YARBROUGH, CLERK OF

COOK COUNTY, ILLINOIS, et al.,

Defendants-Appellees.

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 20 C 469. Virginia M. Kendall, Judge.

February 18, 2021, Argued;

February 22, 2021, Decided

Before Easterbrook , Wood, and St. Eve, Circuit

Judges.

Easterbrook, Circuit Judge. In March 2020 Clinton

Krislov sought to run in the Democratic primary for

a position on the Supreme Court of Illinois. To get on

2a

Appendix A

the ballot he needed 5,050 valid signatures, or 0.4% of

the votes cast in the same district for the same party’s

candidate in the most recent gubernatorial election. 10

ILCS 5/7-10(h). He submitted about 9,500 signatures,

but many were ruled invalid and his total fell about 100

short. (Six other candidates passed the mark.) Krislov

could have protested the election officials’ decision in

state court, which is required by law to render a prompt

decision. 10 ILCS 5/10-10.1(a). Instead he sued in federal

court, contending that Illinois violated the Constitution by

not giving him the benefit of the doubt. Krislov contends

that even professional document examiners have an error

rate in authenticating (or not) signatures purporting to be

those of registered voters, and that falling 100 signatures

short of 5,050 is within the margin of error for document

examiners. Krislov also observed that the people who

examine signatures in Illinois are not professionals and

doubtless have higher error rates (though in a large sample

false negatives and false positives may offset).

The district court saw this as a state-law challenge

to a state-law requirement, which Krislov had forfeited

by not using his state remedies. The judge observed that

“close enough for government work” is not an available

doctrine in Illinois, which requires candidates to submit

all of the required signatures. Jackson-Hicks v. East

St. Louis Board of Election Commissioners, 2015 IL

118929 ¶31, 390 Ill. Dec. 1, 28 N.E.3d 170 (S. Ct. Ill. 2015).

Someone worried about the inevitable errors in examining

signatures can gather more. Instead of stopping with

0.7% of the votes for the Democratic candidate in the last

race for Governor, Krislov could have gathered 1% of that

3a

Appendix A

number, the better to ensure that the signatures deemed

valid met the 0.4% threshold. The Supreme Court has held

that a state does not violate the Constitution by requiring

a would-be candidate to present signatures equal to 5%

of the total electorate. Jenness v. Fortson, 403 U.S. 431,

91 S. Ct. 1970, 29 L. Ed. 2d 554 (1971). A requirement of

0.4% of one party’s turnout in an election is much lower

than 5% of all registered voters, so a candidate can’t have

a constitutional objection to a state law that may induce

someone to gather 1% of the party’s votes in a recent

election. The federal Constitution does not require states

to ensure that their laws are accurately administered. An

error of state law is just that—an error of state law. See,

e.g., Snowden v. Hughes, 321 U.S. 1, 11, 64 S. Ct. 397, 88 L.

Ed. 497 (1944); Davis v. Scherer, 468 U.S. 183, 192-96, 104

S. Ct. 3012, 82 L. Ed. 2d 139 (1984); Nordlinger v. Hahn,

505 U.S. 1, 16 n.8, 112 S. Ct. 2326, 120 L. Ed. 2d 1 (1992).

By the time the case had been briefed and argued in

this court, the election was over. That poses the question

whether the suit, which seeks only injunctive relief, is

moot. Krislov contends that there is a “public interest”

exception to the requirement that a suit remain justiciable

at all times, but he does not cite any federal source for

this supposed exception. Accurate adjudication always

is in the public interest—as is accurate administration

of state law—but that does not mean that federal courts

can proceed even if the plaintiff lacks standing or the

proposed remedy would not redress the plaintiff’s injury.

State courts may be authorized to act in the absence of a

live controversy; federal courts are not.

4a

Appendix A

Consider Carney v. Adams, 141 S. Ct. 493, 208 L.

Ed. 2d 305 (2020). The Supreme Court granted review to

resolve a dispute about the constitutionality of Delaware’s

requirement that its judicial system reflect partisan

balance—that no more than a bare majority of judges

belong to one political party and that, for three courts,

all judges be either Democrats or Republicans. But

the Court did not reach the merits. James Adams, the

plaintiff, switched his registration to Independent so that

he could try to contest the state’s rules. But he could not

show any prospect of appointment to any of the courts in

the foreseeable future, no matter his party affiliation, so

the Court held that he lacks standing and dismissed the

suit without reaching the merits. If there were a “public

interest” exception to the justiciability rules, the Court

would have decided the constitutionality of Delaware’s

laws. But there isn’t, so it didn’t.

Krislov, unlike Adams, is ready, willing, and able to

run for judicial office in the future. But whether he will

be affected by the 0.4% signature requirement (or the

means by which Illinois administers it) is uncertain. To

contest that requirement now, in the absence of a fight

about how it affects a run for office, Krislov must satisfy

the requirements of the doctrine under which a dispute

does not become moot if it is capable of repetition yet bound

to evade review. See, e.g., Meyer v. Grant, 486 U.S. 414,

417 n.2, 108 S. Ct. 1886, 100 L. Ed. 2d 425 (1988). He says

that this dispute is capable of repetition because hundreds

of candidates need to gather signatures in every election

cycle, and some of those signature-gathering efforts are

sure to fall just short. But the question is not whether the

5a

Appendix A

issue will matter to someone, but whether it will matter to

him, in particular. See Weinstein v. Bradford, 423 U.S.

147, 96 S. Ct. 347, 46 L. Ed. 2d 350 (1975).

For this dispute to recur with respect to Krislov,

he has to run again. We accept his word that he will do

so—though there may not be another opening in the First

District, where Krislov resides, until 2028. (Justices of

the Supreme Court of Illinois are elected from districts

for ten-year terms. The term of one Justice from the

First District expires in 2022, but she is eligible to run

for retention, and if she gathers enough votes her term

will be extended until 2032.) We also accept Krislov’s

assertion that other candidates, or their supporters, are

bound to contend that he has not gathered enough valid

signatures. Still, for the current dispute to recur, Krislov

would have to stop short of gathering enough signatures

(say, 1% of the number cast for a Democrat in the First

District in the 2026 gubernatorial election) to be confident

of surviving a challenge—and, what’s more, the outcome of

his effort would have to come so close to the line (say, 0.4%

± 0.02%) that it would be within the margin of error to be

expected if all signatures were to be vetted by professional

document examiners. Krislov has not tried to estimate the

chance that this would occur. That likelihood seems to us

as low as the probabilities deemed insufficient in Carney

and Weinstein.

Suppose that the signature count in Krislov’s next

candidacy again comes quite close to the 0.4% mark.

The exception to the mootness rule also requires that a

legal dispute be incapable of review when it next arises.

6a

Appendix A

Contests to the number of signatures raised to get on the

ballot are routinely resolved before ballots are printed.

The dispute about Krislov’s own candidacy was resolved

in 2020 by the Cook County Officer’s Electoral Board with

time to spare, and Krislov was entitled to prompt review

in state court. He told us at oral argument that he abjured

state court because he was sure that he would lose. Yet

having a dim view of one’s prospects differs from inability

to obtain timely review.

Because the 2020 election season is over, Krislov

is entitled to decision in federal court only if the legal

issues that arose in 2020 are both capable of repetition

with respect to Krislov personally and bound to evade

judicial review if they recur. He has not satisfied either of

these requirements, so this litigation is moot. We vacate

the judgment of the district court and remand with

instructions to dismiss for lack of a justiciable controversy.

7a

B THE UNITED

APPENDIX B —Appendix

ORDER OF

STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION,

FILED MAY 4, 2020

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

No. 20 C 469

CLINT KRISLOV, MICHAEL POWERS,

Plaintiffs,

v.

COOK COUNTY OFFICERS

ELECTORAL BOARD, et al,

Defendants.

Judge Virginia M. Kendall

ORDER

On March 10, 2020, the Court granted Defendants’

Motion to Dismiss Plaintiffs’ two-count Complaint because

neither count stated a claim upon which this Court can grant

relief. (Dkt. 17.) Specifically, the rule requiring candidates to

acquire a fixed number of signatures in order to gain ballot

access does not violate the First Amendment, and Plaintiffs

needed to have filed their 10 ILCS 5/10-10.1 claim in state

court. In the Order dismissing the case, the Court noted

8a

Appendix B

that Plaintiffs’ contentions about the process Defendants

used to invalidate signatures read more like a Due Process

claim but that the Complaint included no Due Process count.

(Dkt. 17 at p. 5 n. 5.) Illinois held its primary election on

March 17, 2020, and Krislov did not appear on the ballot.

Now Plaintiffs move to vacate the Court’s dismissal of their

Complaint and entry of judgment in order to file an amended

complaint raising a Due Process claim. For the reasons set

forth below, the Motion to Vacate (Dkt. 19) is denied.

The election for which Krislov sought placement on the

ballot has come and gone. Ordinarily, that would mean that

this case is moot because there is no way for the Court to

grant the requested injunctive relief. Some election-related

disputes, however, fall under the “capable of repetition yet

evading review” mootness exception. See Tobin for Governor

v. Ill. State Bd. of Elections, 268 F.3d 517, 528 (7th Cir.

2001) (“We are well aware that the passage of an election

does not necessarily render an election-related challenge

moot and that such challenges may fall within the ‘capable

of repetition yet evading review’ exception to the mootness

doctrine.”). In Tobin for Governor, the plaintiffs sued an

Illinois election board after the election had already passed

on the grounds that the process by which the board struck

petition signatures was invalid. Id. at 529. According to

the Seventh Circuit, such a case would only satisfy the

“capable of repetition yet evading review” exception if “(1)

the challenged action is too short in duration to be fully

litigated prior to its cessation or expiration, and (2) there is a

reasonable expectation that the same complaining party will

be subjected to the same action again.” Id. The challenge in

Tobin for Governor satisfied neither of these prongs because

9a

Appendix B

(1) “judicial review of the Board’s decision is available by

statute if the proper procedural steps are followed, and the

state courts to which that review is directed can order a

new election if the case is not fully litigated prior to election

day” and (2) “numerous contingencies” would need to occur

for the plaintiffs to have found themselves in the same

situation again; it was “pure speculation” whether all those

contingencies would occur. Id. In Krislov v. Rednour, 226

F.3d 851 (7th Cir. 2000), by contrast, the Seventh Circuit held

that Krislov (the same Krislov as in the instant case) could

challenge an Illinois election law-even after the election had

been held-that required signature gatherers to be voters

in the relevant political subdivision. This was because

Krislov expressed his intention to run again and there

was no question that as a candidate in the future, he-like

any candidate in Illinois-would be forced to hire signature

gatherers from within the political subdivision for which he

sought elected office. Krislov, 226 F.3d at 858.

The facts of the instant case are indistinguishable from

Tobin for Governor. First, just as in Tobin, had Plaintiffs

filed this case in state court pursuant to the relevant Illinois

statute, the state court could have ordered a new election

had the case not been fully litigated prior to election day.

Second, it is pure speculation to assume that Krislov would

have these same events happen to him again. Namely, (1) he

would have to run for office again and (2) ostensibly collect

the adequate number of petition signatures. Then, a heating

officer would have to (3) use the same process that Krislov

deems statistically invalid to (4) strike a sufficient number of

signatures such that Krislov no longer meets the minimum

signature threshold, and (5) the election board would then

10a

Appendix B

have to affi1m that decision. That all of these events will

recur for Krislov is pure speculation. This case is unlike

Krislov v. Rednour in that the only relevant contingency

needed in that case for the injury to recur was for Krislov to

run for office again. If he ran for office again, his campaign

would have had to follow the signature-gatherer residency

rule. Here, the Court does not doubt that Krislov intends to

tun again, but there are multiple additional contingencies

that stand in the way of Krislov being injured like this again

in the future. This case satisfies neither of the prongs of the

capable of repetition yet evading review mootness exception

as laid out in Tobin for Governor.

This case is moot and no mootness exception applies.

The Motion to Vacate Judgment and Amend Complaint [19]

is therefore denied.

/s/

Virginia M. Kendall

United States District Judge

Date: May 4, 2020

11a

Appendix COF THE UNITED

APPENDIX C — OPINION

STATES DISTRICT COURT, NORTHERN

DISTRICT OF ILLINOIS, EASTERN DIVISION,

FILED MARCH 10, 2020

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CLINT KRISLOV, MICHAEL POWERS,

Plaintiffs,

v.

COOK COUNTY OFFICERS

ELECTORAL BOARD, et al.,

Defendants.

No. 20 C 469

Judge Virginia M. Kendall

MEMORANDUM ORDER AND OPINION

Clint Krislov sought placement on the March 17,

2020 ballot for the Democratic nomination for the Illinois

Supreme Court. Krislov submitted 9,555 signatures to

the Cook County Officers Electoral Board (“the Board”).

Powers is one of those signatures. Objectors successfully

challenged 4,601 of those signatures, leaving Krislov 108 1

1. The Complaint suggests that Krislov was 108 signatures short,

but that arithmetic is incorrect. (9,555 – 4,601 = 4954; 5,050 – 4954

12a

Appendix C

signatures short of the 5,050 signatures required to make

the ballot. Plaintiffs argue that the Board’s decision to

strike these signatures violated Illinois law and their First

Amendment right of free association. The Complaint (Dkt.

1) seeks to have this this Court order the Board to place

Krislov’s name on the primary ballot.

Two motions are currently pending before the Court.

First, three individuals who filed an objector’s petition

with the Board contesting the validity of some of Krislov’s

signatures move to intervene as necessary defendants in

this case pursuant to Federal Rule of Civil Procedure 24(a)

(2). (Dkt. 3.) Second, Defendants move to dismiss the case

on the grounds that the Complaint fails to state claims

upon which relief can be granted. (Dkt. 10.) For the

reasons set forth below, the Motion to Dismiss is granted

and the Motion to Intervene is denied as moot.

BACKGROUND

The Court assumes that the following facts taken from

Plaintiffs’ Complaint are true for purposes of this motion.

See W. Bend Mut. Ins. Co. v. Schumacher, 844 F.3d 670,

675 (7th Cir. 2016).

= 96). The Court also notes that the signature and objection counts

provided in the Complaint differ from those listed in the Board’s

decision. (Dkt. 1-3.) According to the Board’s written opinion rejecting

Krislov’s challenge, he originally submitted 9,542 signatures, 4,610

of which were originally excluded. Ten of those 4,610 signatures were

later rehabilitated. (Dkt. 1-3 at pp. 2–3) However, for purposes of

this Motion, the Court is required to assume the factual accuracy of

the facts alleged in the Complaint.

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Appendix C

Krislov seeks placement on the March 17, 2020

Democratic Party primary ballot for nomination to the

Illinois Supreme Court. (Dkt. 1 ¶ 2.) In order to secure

placement on that ballot, Krislov needed to file a petition

with the Board containing 5,050 valid signatures. (Id.

¶ 4.) 2 Krislov submitted a petition containing 9,555

signatures in support of his candidacy. (Id. ¶ 3.) Plaintiff

Michael Powers is among the individuals who circulated

and signed Krislov’s petition. (Id. ¶ 2.) Objectors challenged

thousands of the signatures that Krislov submitted with his

petition, and the Board excluded 4,601 of those signatures

as invalid. (Id. ¶ 4.) After the Board excluded those

signatures, Krislov did not have enough signatures to

satisfy the 5,050 threshold. (Id.) Before the Board, Krislov

challenged the process by which signatures were excluded.

(Id. ¶ 5.) As part of his challenge, he explained that the

number of valid signatures he still had placed him within

the margin of error for professional document examiners.

(Id.) The Board rejected this argument and continues to

exclude him from the ballot. (Id.)

2. Illinois law requires judicial candidate petitions to contain

a number of signatures totaling 0.4% of the total votes cast in the

district for the candidate for Governor from that political party

in the most recent gubernatorial election. 10 ILCS 5/7-10(h). The

Illinois Board of Elections calculated that figure as 5,050 for the 2020

Democratic election for Supreme Court Justice in District 1. ILL.

STATE BD. OF ELECTIONS, 2020 CANDIDATE’S GUIDE, at p.

35, https://www.cookcountyclerk.com/sites/default/files/pdfs/2020%20

IL%20Candidates%20Guide_0.pdf.

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Appendix C

LEGAL STANDARD

When considering a motion to dismiss under Rule 12(b)

(6), the Court must accept as true all factual allegations

in the complaint and draw all permissible inferences in

the non-moving party’s favor. Bible v. United Student Aid

Funds, Inc., 799 F.3d 633, 639 (7th Cir. 2015). To state a

claim upon which relief may be granted, a complaint must

contain a “short and plain statement of the claim showing

that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)

(2). Detailed factual allegations are not required, but the

plaintiff must allege facts that when “accepted as true . . .

‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In analyzing

whether a complaint meets this standard, the “reviewing

court [must] draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 679. When there are well-pleaded

factual allegations, the Court assumes their veracity and

then determines whether they plausibly give rise to an

entitlement to relief. Id.

ANALYSIS

A. Violation of 10 ILCS 5/10-10

Illinois law provides a cause of action for candidates

aggrieved by the decision of an election board. 10 ILCS

5/10-10.1(a). That cause of action specifically requires

candidates to seek judicial review “in the circuit court

of the county in which the hearing of the electoral board

15a

Appendix C

was held,” i.e., not in federal court. Id.3 Even if the Illinois

statute allowed aggrieved candidates to sue in this Court

for violations of Illinois election law, this Court would lack

jurisdiction over such a claim because “[f]ederal courts

have ‘no supervisory powers and no authority to instruct the

Board on how to follow state law.’” Shipley v. Chi. Bd. of

Comm’rs, 947 F.3d 1056 (7th Cir. 2020) (quoting Kasper v.

Bd. of Election Comm’rs, 814 F.2d 332, 342 (7th Cir. 1987).

Thus, this Court lacks jurisdiction over Plaintiffs’ claim

that the Board violated Illinois law by excluding Krislov

from the ballot. 4

B. First Amendment Claim Under 42 U.S.C. § 1983

The ability of a candidate for public office to gain

access to the ballot implicates the Constitutional rights

to “associate politically with like-minded voters and to

cast a meaningful vote.” Stone v. Bd. of Election. Com’rs

for City of Chi., 750 F.3d 678 (7th Cir. 2014) (citing

Anderson v. Celebrezze, 460 U.S. 780, 786 (1983)). But not

all restrictions “on candidates’ eligibility for the ballot

impose constitutionally-suspect burdens.” Anderson,

460 U.S. at 788. Indeed, signature requirements are valid

prerequisites to ballot access if they are “reasonable” and

3. The Board’s decision denying Krislov’s petition also contains

a notice that Illinois law requires any party aggrieved by its decision

to seek judicial review in the Circuit Court of Cook County within

five days of the Board’s decision. (Dkt. 1-3 at p. 4.)

4. Because the Court is also dismissing the First Amendment

claim, the Court also lacks supplemental jurisdiction over the state

statutory claim.

16a

Appendix C

“nondiscriminatory.” Stone, 750 F.3d at 681 (quoting

Burdick v. Takushi, 504 U.S. 428, 434 (1992)). In

Stone, for example, the Seventh Circuit upheld a 12,500

signature requirement for making the Chicago mayoral

ballot. 750 F.3d 678. Also n Jenness v. Fortson, 403 U.S.

431 (1971), the Supreme Court upheld a requirement of

signatures accounting for more than 5% of the eligible

voting population. Thus, there is no question that the

Illinois statute—which requires signatures from .4% of

the number of people who voted in a political party’s most

recent gubernatorial primary within the relevant electoral

district—is constitutional.

But Plaintiffs do not apparently dispute the

constitutionality of Illinois’s statutory signature

requirements; instead, they complain that the means by

which the Board invalidated signatures was unlawful

because: (1) “the records examiners have little training,”

or “special expertise”, (2) there was a “lack of an objective

standard” applied to the review of signatures, and (3) “the

shortfall is well within the margin of error” such that

the total number of accepted signatures should suffice.

(Dkt. 1 ¶¶ 14, 20.) These objections do not sound in First

Amendment law, but rather in state administrative law. 5 As

with the claim brought under the state statute, this Court

lacks jurisdiction over a claim about the individuals a State

agency hires or the statistical techniques those individuals

use to implement the State’s constitutionally valid election

law. This Court cannot tell a State agency how to interpret

5. Krislov might have some sort of Due Process claim, but he

does not allege a Due Process claim, and the Court has received no

briefing on whether the facts alleged state such a claim.

17a

Appendix C

the State’s laws, but Plaintiffs’ “First Amendment” claim

asks this Court to do just that, by arguing that the agency

must use only highly-trained document professionals and

must account for margins of error in determining whether

the statutory signature thresholds have been satisfied.

This Court is without authority to redress a grievance

of this nature, so Plaintiffs lack Article III standing. See

Groshek v. Time Warner Cable, Inc., 865 F.3d 884, 886

(7th Cir. 2017) (quoting Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992)) (“The ‘irreducible constitutional

minimum of standing’ consists of three elements: injuryin-fact, causation, and redressability.”). Even if Plaintiffs

had standing to bring this claim about the Board’s

administrative processes, the Illinois Supreme Court has

already foreclosed the arguments brought in this count.

See Jackson-Hicks v. E. St. Louis Bd. of Election Com’rs,

28 N.E.3d 170, 180 (Ill. 2015) (“As we have explained,

the clear and unambiguous [signature] standard adopted

by the General Assembly requires compliance with

a specific numerical threshold determined according

to a specific mathematical formula. A candidate either

meets that minimum threshold or does not. There is no

close enough. . . . [S]ubstantial compliance is not a valid

justification for deviating from the clear and unambiguous

minimum signature threshold set by the legislature.”)

CONCLUSION

This Court lacks jurisdiction over Count I of Plaintiffs’

Complaint because it is a state statutory claim that can

only be heard in state court. Plaintiffs also fail to state a

First Amendment claim in Count II. Defendants’ Motion

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Appendix C

to Dismiss [10] is therefore granted. As the Court is

dismissing the Complaint in its entirety, the Court need

not consider whether Michael Powers has independent

standing nor whether the intervenors are necessary parties

to this suit. The Motion to Intervene [3] is dismissed as

moot.

Date: March 10, 2020

/s/

Virginia M. Kendall

United States District Judge