Opposition Brief — Citizens for Moore Party v. Board of Election Commissioners

Ocroser Term, 1988 { SeERK

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CITIZENS FOR JOHN W. MOORE PARTY,

JOHN W. MOORE, and WILLIE ANDERSON,

Petitioners,

v.

BOARD OF ELECTION COMMISSIONERS

OF THE CITY OF CHICAGO, et al,

Respondents.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

ILLINOIS STATE BOARD OF ELECTIONS

NEIL F. HARTIGAN

Attorney General, State of Illinois

MICHAEL J. HAYES

Deputy Attorney General

ROBERT J. RUIZ

Solicitor General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3312

Attorneys for Illinois State

Board of Elections

Rosatyn B. Kapran *

Bret A. Rappaport

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3698

Of Counsel * Counsel of Record

Printed by Authority of the State of Illinois (P.O. 34318—55—12-19-88)

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QUESTIONS PRESENTED

1. Whether this case is moot, where the 1982 election

has been concluded; where petitioner Moore subsequently

abandoned his independent political party and ran in a

1984 primary election as a candidate for the Democratic

party; and where, in the last three general elections, no

similar factual scenario involving either petitioner Moore

or any other candidate has ever recurred.

2. Whether section 10-4 of the Illinois Election Code

violates a candidate’s right to free speech when it pro-

hibits him from circulating his own election petitions as

a candidate of a new political party because he has, in

the same election season, already circulated his own peti-

tions to run in the primary election of a different political

party.

il

TABLE OF CONTENTS

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

TABLE OF AUTRES GMS cs ccccscescuinvs iil

REASONS WHY THE PETITION

SMOULG) Es ERROR so 64s cusuedsednavans 2

THE PETITION SHOULD BE DENIED BE-

CAUSE THE CONTROVERSY IS MOOT ... 2

Il.

THE SEVENTH CIRCUIT CORRECTLY ANA-

LYZED SECTION 10-4 AS “SIMPLY A LESS

RESTRICTIVE ALTERNATIVE TO A PER-

MISSIBLE SORE LOSER STATUTE” RATHER

THAN AS AN ATTEMPT BY THE STATE TO

IMPOSE AN UNCONSTITUTIONAL LIMITA-

TION ON A CIRCULATOR’S FREEDOM OF

SPEBCM 2. .0ssc0nks ee ane eee seen eee 6

CONCLUSION ....si.0<escsaneeeeeee ee reer ee 9

APPENDIX—Letter from A. L. Zimmer, General

Counsel, State Board of Elections ....... App. 1

——s

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TABLE OF AUTHORITIES

CASES PAGE(S)

Aetna Life Insurance Co. v. Haworth, 300 U.S. 227

et iG as dain g whale males 3

Ex parte Baez, 177 U.S. 378 (1900) ...........

Buckley v. Valeo, 424 U.S. 1 (1976) ..........

Citizens for John W. Moore Party v. Board of

Election Commissioners, 845 F.2d 144 (7th Cir.

eS Cas dd ee ad xd news keane 4 passim

Clements v. Fashing, 457 U.S. 957 (1982) ..... 7

Deakins v. Monaghan, ____ U.S. ___, 108 S. Ct.

ee espe a ses 00a ba 08 FN Aes) 3

First National Bank of Boston v. Bellotti, 435 U.S.

eg aka wh oanec ks hake ae 4,5

Hall v. Beals, 396 U.S. 45 (1969) .............

Illinois State Board of Elections v. Socialist Workers

Es Ee 2, ne 3,5

Meyer v. Grant, _____ U.S. ___, 108 S. Ct. 1886

ee ee aaa Ciwerdan sense sen 5, 6, 9

Moore v. Ogilvie, 394 U.S. 814 (1969) ......... 4

Murphy v. Hunt, 455 U.S. 478 (1982) ......... 3

Southern Pacific Terminal Co. v. ICC, 219 U.S.

a gC Or a 3

Storer v. Brown, 415 U.S. 724 (1974) ......... 4,7,8

Weinstein v. Bradford, 423 U.S. 147 (1975) .... 3

STATUTE

Ill. Rev. Stat. ch. 46, 4 10-4 (1987) ............ 2,6

No. 88-491

In THE

‘Supreme Court of the United States

Octoser Term, 1988

CITIZENS FOR JOHN W. MOORE PARTY,

JOHN W. MOORE, and WILLIE ANDERSON,

Petitioners,

v.

BOARD OF ELECTION COMMISSIONERS

OF THE CITY OF CHICAGO, et al.,

Respondents.

On Petition For Writ Of Certiorari To The United

States Court Of Appeals For The Seventh Circuit

BRIEF IN OPPOSITION OF RESPONDENT

ILLINOIS STATE BOARD OF ELECTIONS

The respondent Illinois State Board of Elections respect-

fully requests that this Court deny the petition for writ

of certiorari, seeking review of the Seventh Circuit’s opin-

ion of April 18, 1988. That opinion is reported at 845 F.2d

144 (1988).

a

REASONS WHY THE PETITION

SHOULD BE DENIED

THE PETITION SHOULD BE DENIED BECAUSE THE

CONTROVERSY IS MOOT.

In the instant case petitioners challenge the constitution-

ality of a portion of section 10-4 of the Illinois Election

Code. Ill. Rev. Stat. ch. 46, € 10-4 (1987). That statute pro-

vides in pertinent part:

(N]o person shall circulate or certify petitions for can-

didates of more than one political party, or for an

independent candidate or candidates in addition to

one political party, to be voted upon at the next

primary or general election. . . .

As the Court of Appeals explained, this law operates to

prevent anyone from collecting signatures on behalf of dif-

ferent political parties during the same election season.

Citizens for John W. Moore Party v. Board of Election

Commissioners (Moore III), 845 F.2d 144, 145 (7th Cir.

1988).

Because Moore had been a circulator for the Democratic

party in the primary, he could not be a circulator for a

different party during the same election period. Jd. at 146.

Since Moore violated this law by collecting signatures for

his candidacy in the 1982 general election as a member

of the Citizens for John W. Moore Party, those signatures

were deemed invalid, and, as a consequence, he failed to

submit the requisite number of valid signatures to place

his name on the ballot.

Initially, petitioners sought an injunction to have Moore’s

name placed on the 1982 ballot. That injunction was de-

=e

nied by the district court, but this litigation has been

pending since that time, through three more Illinois gen-

eral election seasons, with respect to the constitutional

issues raised by petitioners. In response to petitioners’

request that this Court now proceed to entertain this

matter or to remand it for yet another opinion from the

Seventh Circuit, respondent respectfully suggests that this

matter is moot and that no further proceedings are war-

ranted.

The jurisdiction of the federal courts is limited by

Article III of the Constitution to the adjudication of ac-

tual ongoing controversies between litigants. Deakins v.

Monaghan, ___. U.S. ___, 108 S. Ct. 523, 528 (1988).

“The controversy must be definite and concrete, touching

the legal relations of the parties having adverse legal in-

terests.” Aetna Life Insurance Co. v. Haworth, 300 U.S.

227, 240 (1987). Accordingly, a case is moot if “there is

no subject matter on which the Court’s order can oper-

ate.” Ex parte Baez, 177 U.S. 378, 390 (1900).

A dispute may avoid dismissal on mootness grounds if

it is “capable of repetition, yet evading review.” South-

ern Pacific Terminal Co. v. ICC, 219 U.S. 498 (1911). In

Weinstein v. Bradford, 423 U.S. 147 (1975), this Court ap-

plied a two-part test for determining if this exception

should apply. It explained that a case is not moot where:

(1) the challenged action was 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 com-

plaining party would be subjected to the same action

again. 423 U.S. at 149 (emphasis added). See Murphy v.

Hunt, 455 U.S. 478, 482 (1982); Illinois State Board of

Elections v. Socialist Workers Party, 440 U.S. 173, 187

(1979). Given the brief nature of any single election season,

the instant suit does satisfy the first element of the test.

~

There is, however, no reasonable expectation that the

same complaining parties will be subjected to the same

action again. In order for this to occur, Moore would again

have to circulate petitions te be a candidate for a primary

election; he would have to withdraw before the primary;

then he would have to wish to run in the general elec-

tion under a different party and solicit signatures in sup-

port of his candidacy in the general election. If all this

were to take place, the Chicago Board of Election Com-

missioners, sitting as the appropriate electoral board,

would exclude only the signatures gathered in violation

of the law. If the remaining valid signatures were too few

to meet the statutory requirement, then Moore’s name

would not be placed on the ballot. Only if there exists

today a “reasonable expectation” that all these events will

recur can it be concluded that this case is not moot.

As demonstrated by the statement of the State Board

of Elections appended to this brief, not only has this sce-

nario—involving either John W. Moore or any other would-

be candidate—failed to recur in the last three general elec-

tion seasons, but Moore did in fact stand as a candidate

in a 1984 Democratic primary election. There is no record

that he sought, during the 1984 election season, to under-

take any activity on behalf of the Citizens for John W.

Moore Party, or that he pursued any State political aspir-

ations in the two election years that followed his 1984 de-_

feat. Based upon this subsequent action (or inaction) of

Moore, it must be concluded that this case is moot.

Such a conclusion is bolstered by other cases in which

this Court has had occasion to address the mootness issue

in an election litigation context. Moore v. Ogilvie, 394 U.S.

814, 816 (1969); Hall v. Beals, 396 U.S. 45, 47 (1969);

Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); First Na-

tional Bank of Boston v. Bellotti, 435 U.S. 765, 774-75

——OO ti‘

a

(1978); /llinois State Board of Elections v. Socialist Workers

Party, 440 U.S. 173, 187 (1979); Meyer v. Grant, ____ U.S.

___., 108 S. Ct. 1886, 1890 n.2 (1988). In Meyer, for ex-

ample, this Court held the issue was likely to recur where

the plaintiffs continued to pursue adoption of the constitu-

tional reform and obtain signatures necessary to place the

referendum on the ballot. Meyer, 108 S. Ct. at 1890 n.2.

Similarly, in First National Bank of Boston, this Court

invalidated a criminal statute prohibiting corporate expen-

ditures regarding individual income tax referenda and held

that the issue was not moot, notwithstanding the passage

of the 1976 election. 435 U.S. at 765. The case fit within

the “capable of repetition, yet evading review” exception

because the 1976 election marked the fourth time that the

subject referendum was put before the Massachusetts

voters and plaintiffs insisted that they would continue to

oppose the referendum in the future. 435 U.S. at 775.

In both Meyer and First National Bank of Boston, the

plaintiffs established a strong factual basis for this Court

to conclude that there existed a “reasonable likelihood”’

that those plaintiffs would be subject to the same action

again. By contrast, the absence of the Citizens for John

W. Moore Party from the political process for six years

demonstrates a lack of factual support for any conclusion

that there exists a “reasonable likelihood” that the dis-

pute which arose in 1982 will recur. This Court should

recognize, therefore, that this matter is moot.

a

Il.

THE SEVENTH CIRCUIT CORRECTLY ANALYZED

SECTION 10-4 AS “SIMPLY A LESS RESTRICTIVE

ALTERNATIVE TO A PERMISSIBLE SORE LOSER

STATUTE”? RATHER THAN AS AN ATTEMPT BY THE

STATE TO IMPOSE AN UNCONSTITUTIONAL LIMITA-

TION ON A CIRCULATOR’S FREEDOM OF SPEECH.

Relying heavily on this Court’s recent decision in Meyer

v. Grant, ___ U.S. ___, 108 S. Ct. 1886 (1988), peti-

tioners argue that section 10-4 of the Election Code places

an unconstitutional limitation on core political speech, by

prohibiting Moore from circulating his own petitions to

run in a general election as a candidate of a new politi-

cal party. Petitioners have failed, however, to recognize

critical differences between Meyer and their own case, dif-

ferences which require a conclusion that the holding in

Meyer does not extend to the circumstances presented

here.

As-already explained, section 10-4 provides that a per-

son may not circulate candidate petitions for more than

one political party (or for a party member as well as an

independent candidate) during the same election season.

Ill. Rev. Stat. ch. 46, ¢ 10-4 (1987). Application of the stat-

ute to the circumstances of this case required the invali-

dation of signatures obtained by Moore as a candidate of

the Citizens for John W. Moore Party in the 1982 gen-

eral election, as Moore had previously circulated petitions

for his candidacy in the 1982 Democratic primary elec-

tion. Because of the operation of this provision, Moore’s

attempted general election candidacy fell 139 signatures

short of the total required for a place on the ballot.

The statute did not, however, preclude Moore from speak-

ing with or in any other way soliciting the support of

potential voters. Indeed, section 10-4 in no way prohibited

»

ile

Moore from accompanying a qualified circulator, explain-

ing the nature of his candidacy (and, if he chose, the rea-

son why he could not circulate his own petitions), disclos-

ing his political agenda, or requesting the support of his

constituency.

It is important to recognize that the statute contains

no blanket prohibition of a candidate’s efforts on his own

behalf; it only affects his activity as a circulator if he has

-already, during the same election year, acted as a circu-

lator on behalf of a different party or independent candi-

date. Essentially, the statute allows a would-be candidate

who also wants to circulate his own petitions only one

opportunity per election season to align himself with a

chosen political party or to seek support as an indepen-

dent candidate.

As the Seventh Circuit noted, this Court has held that

there is no fundamental right to be a candidate. Clements

v. Fashing, 457 U.S. 957, 963 (1982). Thus, a State may

constitutionally impose candidacy restrictions that would

absolutely preclude a person in Moore’s position from

seeking a place on the 1982 general election ballot. Storer

v. Brown, 415 U.S. 724 (1974). The lesser restriction im-

posed by section 10-4, which operates only because of

Moore’s prior decisions to run as a Democrat in the 1982

primary election and to circulate his own petitions at that

time, is not unconstitutional as a matter of logic or as

a matter of precedent.

This Court’s decision in Meyer does not obviate the

above conclusion. At issue in Meyer was a State law mak-

ing it a felony to pay circulators of “initiative petitions”

to have proposed new laws or constitutional amendments

placed on the ballot at a general election. This Court ruled

the criminal penalty statute unconstitutional, focusing on

the proponents’ protected right to convey their message

-

regarding a desired governmental change. The proposed

circulation of petitions by paid circulators was a means

to a protected end and thus was entitled to protection

from unwarranted interference by the State.

In the case at bar, however, the restrictions imposed

upon Moore impacted only on his ability to circulate his

petitions as a candidate for a new political party after he

had already stood for a Democratic primary election, and

circulated his own petitions in connection with that can-

didacy, during the same election season. The message that

Moore subsequently sought to convey—“I want to be your

candidate in the general election’’—is one which the State

might legitimately suppress in its entirety, based upon

Moore’s primary election candidacy. Storer v. Brown, 415

U.S. 724 (1974).

Illinois neither outlawed Moore’s second attempted can-

didacy, nor did it absolutely prevent him from circulating

petitions on his own behalf. The State simply required

him to limit his circulating efforts to one political party

of his choice per election season. Moore made his choice

during the primary election, and the State is not pre-

vented by the Constitution from requiring Moore to live

with the consequences of that choice. See Moore III, 845

F.2d at 146, where the Seventh Circuit acknowledged this

Court’s observation that “the government may attach ra-

tionally-justified consequences to voluntary conduct... ,”

citing Buckley v. Valeo, 424 U.S. 1, 57 n.65 (1976). Thus,

it cannot be said that State action deprived Moore of his

right to freedom of speech. Rather, his ability to seek can-

didacy is what is ultimately at issue here, and the State’s

regulation of that activity is less severe than that which

is allowable under the Constitution. Moore was free under

Illinois law to circulate petitions for his candidacy and

thereby convey whatever message he wished by virtue

aie.

of this activity, so long as he did not attempt to circulate

petitions for different parties during the same election

season. Neither the holding nor the reasoning of this

Court in Meyer is applicable to the circumstances pre-

sented here, and that decision does not warrant issuance

of a writ of certiorari in this case.

CONCLUSION

For these reasons, the petition for a writ of certiorari

should be denied.

Respectfully submitted, -

NEIL F. HARTIGAN

Attorney General, State of Illinois

MICHAEL J. HAYES

Deputy Attorney General

ROBERT J. RUIZ

Solicitor General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3312

: Attorneys for Illinois State

Board of Elections

ROSALYN B. KapLan *

BRET A. RAPPAPORT

Assistant Attorneys General

100 West Randolph Street, 12th Floor

Chicago, Illinois 60601

(312) 917-3698

Of Counsel * Counsel of Record

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App. 1

APPENDIX

[Letterhead Of]

STATE BOARD OF ELECTIONS

STATE OF ILLINOIS

December 8, 1988

The Honorable Neil F. Hartigan

Attorney General of Illinois

SOIC - 12th Floor

100 W. Randolph St.

Chicago, IL 60601

ATTENTION: Rosalyn Kaplan, Civil Appeals

RE: Citizens for John W. Moore Party

Dear Mr. Attorney General:

At the request of your Division of Civil Appeals, I

have searched the records of the Illinois State Board of

Elections to determine if, since 1982 John W. Moore or

any group of citizens acting on his behalf as petitioners,

have submitted petitions for Moore for any state-wide of-

fices in any partisan primary; withdrawn those petitions

prior to the primary itself; and subsequently filed new

party nominating petitions for any office to be voted on

at the same election at which the winner of the primary

would also be a candidate. I have examined the records

of the general elections of 1984, 1986 and 1988.

My review disclosed only that John W. Moore sub-

mitted nominating petitions for the primary election of

1984 as a candidate for the Democratic nomination for

State Senator from the 12th legislative district of Illinois.

Mr. Moore did not withdraw those petitions; rather, he

was a participant in that primary election and lost the

App. 2

nomination to Charles Chew, who subsequently won the

seat in the general election.

My inquiry further discloses that neither John W.

Moore or any group of citizens acting in his behalf, nor

any other candidate or group of citizens acting in his or

her behalf, has since 1982 first filed nominating petitions

in a partisan primary for state office, next withdrawn

those petitions, and finally filed new party nominating

petitions for any office to be voted on at the same elec-

tion at which the winner of the primary would also be

on the ballot.

Yours, truly,

/s/ A. L. ZIMMER

A. L. ZIMMER

General Counsel

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