Jurisdictional Statement — Illinois Bd. of Elections v. Socialist Workers Party

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MAR 9 1978

Supreme Court of the United : tate

MICHAEL RCDAK, JR., CLER

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THE ILLINOIS STATE BOARD OF ELECTIONS,

Defendant-Appe llant.

Vs,

SOCTALIST WORKERS PARTY, et al.,

Plaintiffs-Appe ne C8,

Consolidated With —

THE ILLINOIS STATE BOARD OF ELECTIONS,

Tutervening Defendant-Appellant,

VS.

GERALD ROSE, et al.,

Plaintiffs- Appellees,

CHICAGO BOARD OF ELECTION COMMISSIONERS,

et al.,

Dee ndant-Appelli e.

On Appeal from the United States Court

of Appeals for the Seventh Circuit

JURISDICTIONAL STATEMENT

MICHAEL FE. LAVELLE, MICHAEL L. LEVINSON,

100 N. LaSalle Street, 100 N. LaSalle Street,

Chicago, Illinois 60602, Chicago, Illinois 60602,

FRANKLIN J. LUNDING, JR.,

100 N. LaSalle Street,

Chicago, Illinois 60602,

Attorneys for Appellant

Illinois State Board of Elections.

Keenan Printing Company 312-648-0050 <i 365

TABLE OF CONTENTS

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EE. de cn ndkus Meacieewisaeene hacen eet 2

2 vaipy = 6 * | rere rrr 4

QUESTIONS PRESENTED ...............-eeee 5

Whether The Court Of Appeals Can Negate

A State Statute Recently Held Constitutional By

This Court In Jackson v. Ogilvie? ..........6545 5

Il.

Whether A Court Of Appeals Can Ignore The

Principle Of Law Mandated By This Court In

Moore v. Ogilvie, That The Passage Of An Elec-

tion Does Not Render Moot Substantial Legal

Questions Still Alive For All Future Elections? .. 5

STATEMENT OF THE CASE .........c..cceeees 6

THE FEDERAL QUESTIONS PRESENTED ARE

EIS 5 ibis dadawevvees dedueoues anes 10

COIOEAII nov de cccencccnecenscnvesccstvedes 16

il.

TABLE OF AUTHORITIES

Pace

Cases

Briscoe v. Kusper, 435 F. 2d, 1046 (7th Cir. 1970) .... 10

Brown v. Chote, 411 U.S. 452, 93 S. Ct. 1732 (1973) ... 14

Jackson v. Ogilvie, 325 F. Supp. 864 (N.D. Ill. 1971) 5, 7, 10

Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493 (1969) ..5, 13

Southern Pacific Terminal Co. v. Interstate Commerce

Comm., 219 U.S. 498, 31 S. Ct. 279 (1911) ........ 15

Storer v. Brown, 415 U.S. 724, 94 S. Ct. 1274 (1973) .. 14

Williams v. Rhodes, 393 U.S. 23, 89S, Ct. 5 (1968) ... 11

CONSTITUTIONAL PROVISION

The Equal Protection Of The Laws Clause Of The

Fourteenth Amendment To The United States Con-

ee ee i eee een a at er od Ore 3

STATE STATUTES

Chap. 46 Illinois Revised Statutes, (Election Code)

PR er Pr yes ene pre en a 4

ta eee oar a ea re ea ee 4-5

TREATISES

Moore’s Federal Practice:

Se Ce at ee ne 11

es Se OF IE 6's 0 5 Conve c cebeee aes cue ee awe 11

IN THE

Supreme Court of the United States

Octoper Term, 1977

No.

THE ILLINOIS STATE BOARD OF ELECTIONS,

Defendant-Appellant,

vs.

SOCIALIST WORKERS PARTY, et al.,

Plaintiff s-A ppellees.

————Consolidated With——————

THE ILLINOIS STATE BOARD OF ELECTIONS,

Intervening Defendant-Appellant,

vs.

GERALD ROSE, et al.,

Plaintiff s-A ppellees,

CHICAGO BOARD OF ELECTION COMMISSIONERS,

et al.,

Defendant-A ppellee.

On Appeal from the United States Court

of Appeals for the Seventh Circuit

JURISDICTIONAL STATEMENT

Pursuant to Rules 13(2) and 15 of the Rules of the

Supreme Court of the United States, appellant, State

Board of Elections, files this statement of the basis upon

which it is contended that the Supreme Court of the

United States has jurisdiction to review the order en-

tered by the Court of Appeals for the 7th Circuit in this

ease and should exercise sueh jurisdiction herein,

OPINIONS BELOW

The opinion of the U.S. Court of Appeals for the 7th

Cireuit was decided December 9, 1977 (App. A, p. 1a).

The opinions of the United States District Court for

the Northern District of Tlinois, Eastern Division with

the Honorable Bernard M. Decker, Judge presiding, were

rendered March 14, 1977 (App. B, p. 7a) and April 6,

1977 (App. C, p. 33a).

An agreed order between appellee, Chicago Board of

Election Commissioners and appellee, U.S. Labor Party,

was signed March 17, 1977 (App. D, p. 39a).

JURISDICTION

This appeal arises from two actions filed by appellees

in the United States District Court for the Northern Dis-

trict of Illinois, challenging, among other things, the con-

stitutionality of Tilinois law seting forth minimum signa-

ture requirements for nominating papers for new polit-

ical parties and independent candidates.

In both actions, appellees claimed a violation of the

First and Fourteenth Amendments of the United States

Constitution. Both were actions in equity wherein appel-

lees sought relief under 42 U.S.C. and 28 U.S.C. §§$ 2201-

2202.

On December 9, 1977, the United States Court of Ap-

peals for the Seventh Circuit affirmed that portion of the

District Court’s order, which in effect held upon equal

protection grounds, that the requirement of 25,000 signa-

tures for state-wide independent and new party candi-

dates must be the maximum number of signatures that

ean be lawfully required of local independent and new

party candidates. Stated otherwise, when the 5% figure

as applied to the total vote in the jurisdiction would exceed

25,000, then 25,000 signatures would suffice as the mini-

mum figure for ballot access.

The Court of Appeals, on mootness grounds, declined

to rule on the issue raised by appellant as to the author-

ity of a local election administrative agency by agreed

order with a local new political party, to lower the mini-

mum signature requirement and to extend the filing dead-

line contrary to state law and the supervisory authority of

appellant.

A timely notice of appeal was filed on January 5, 1978,

with the Clerk of the United States Court of Appeals

for the Seventh Cireuit. Jurisdiction of this appeal is

conferred on this Court, pursuant to 28 U.S.C. 1254(2).

In the event that this Court does not consider appeal

the proper mode of review, the appellant respectfully

requests that the papers whereupon this appeal is taken

be regarded and acted upon as a Petition for Writ of Cer-

tiorari, pursuant to 28 U.S.C., § 2103.

4 9)

division, eQualing not less than 5%, nor more than

STATUTES INVOLVED 8° of the number of persons, who voted at the next

precesling general election in such district or politi-

eal sub-division in which such district or political sub-

diyision voted as a unit for the election of officers to

sqrve its respective territorial area. ...’’ 45 Ill. Rev.

Stat., § 10-3.

‘«.. Any group of persons hereafter desiring to form

a new political party throughout the State, or in any

political subdivision greater than a county and less

than the State, shall file with the State Board of

Elections a petition, as hereinafter provided; and any

such group of persons hereafter desiring to form a

new political party, in any county shall file such pe-

QUESTIONS PRESENTED

tition with the county clerk: and any such group of : (1) Whether the Court of Appeals can negate a state

persons hereafter desiring to form a new political statute recently held constitutional by this Court in Jack-

party in any municipality or district less than a coun- son v. Ogilvie?

ty shall file such petition with the clerk or Board of

; a raed 4 ; 2) Whether a Court of Appeals can ignore the prin-

Election Commissioners of such municipality or dis- (2) PI J P

trict, as the case may be... . if such new political ciple of law mandated by this Court in Moore v. Ogilvie,

party shall be formed for the entire State [the peti- that the passage of an election does not render moot sub-

tion] shall be signed by not less than 25,000 qualified stantial legal questions still alive for all future elections?

voters. ... If such new political party shall be formed

for any district or political subdivision less than the

entire State, such petition shall be signed by qualified

voters equaling in number not less than 5% of the

number of voters who voted at the next preceding

general election in such preceding general election in

such district or political subdivision in which such

district or political subdivision voted as a unit for the

election of officers to serve its respective territorial

area... .’’ 46 Ill. Rev. Stats., § 10-2.

‘*‘Nomination of independent candidates (not candi-

dates of any political party), for any office to be filled

by the voters of the State at large may also be made

by nomination papers signed in the aggregate for each

candidate by not less than 25,000 qualified voters of

the State; . . . Nominations for independent ecandi-

dates for public office within any district or political

subdivision less than the State, may be made by nom-

ination papers signed in the aggregate for each ean-

didate by qualified voters of such district, or political

STATEMENT OF THE CASE

-_— +.

Appellees commenced two separate actions in the United

States District Court for the Northern District of Iilinois

to declare as unconstitutional, those provisions of §§ 10-2

and 10-3 of the Illinois Election Code, regarding the nom-

inating petition minimum signature requirement for inde-

pendent candidates and candidates of new politieal par-

ties.’ Jurisdiction was alleged under 28 U.S.C., §§ 1131,

1343, 2201, 2202 and the First and Fourteenth Amendment

of the United States Constitution.

Both actions involved a special mayoral election in the

City of Chicago scheduled for June 7, 1977.

In Socialist Workers Party, et al. v. Chicago Board of

Election Commissioners, et al., No. 77 C 255, the Soeial-

ist Workers Party and two voters supporting candidates

of the Socialist Workers Party sued the Chicago Board

of Election Comiissioners and its members, the City

Clerk of Chicago, and members and employees of the ap-

pellant, State Board of Elections.

1. The Appellees also challenged as unconstitutional, the

statutory filing deadline for independent candidates and

eandidates of a new political party. The Trial Court did

not rule on this question pending ‘*. . . evidenee adduced

as to urgeney and possible compelling state reason for

setting the filing deadline. ... (App. B, p. 3la). However,

since the agreed order between appellees extended the fil-

ing period beyond the statutory period, notwithstanding

the objections of appellant, this issue was never adjudi-

cated.

‘

In Gerald Rose, et al. vy. John Hanly, et al., No. 77 C 326,

the United States Labor Party, a candidate of the United

States Labor Party, and two voters supporting the can-

didates of the United States Labor Party, sued the Chi-

cago Board of Election Commissioners. At the request of

the Chicago Board of Election Commissioners, the appel-

lant, State Board of Elections intervened in this action.

Without an evidentiary hearing, on March 14, 1977, the

District Court, in a consolidated opinion, held that a min-

imum signature requirement in excess of 25,000 signa-

tures **. . . cannot be the least drastic means of aecom-

plishing the state’s goals and must be found to unduly

impinge the constitutional rights of independents, new po-

litical parties and their adherents fn. '*.” (App. B., p. 26a)

The Trial Court, in the same opinion, issued a permanent

injunction against the defendants.

On March 17, 1977, the District Court signed an agreed

order reflecting an agreement between the defendant-

appellee. U.S. Labor Party, to reduce the signatures for

independent and new political party candidates below the

5% minimum, 39,937 (25,000 hy virtue of the district

court’s March 14th order), to 20,000 signatures, and to

extend the filing deadline from sixty-four days before the

election (April 14, 1977) to fifty days before the election

(April 18, 1977). (App. D, p. 89a) Appellant first learned

of the agreed order at this hearing and vigorously ob-

jected to its entry.

On March 17, 1977, the appellant moved to vacate the

March 14th order of permanent injunction on the grounds

that it was issued in violation of Rule 65 of the Federal

Rules of Civil Procedure. Appellant further argued that

the decision in Jackson v. Ogilvie, 325 F. Supp. 864 (N.D.

Ill. 1971), aff’d 408 U.S. 925 (4971), was binding on the

District Court in that the U.S. Supreme Court specifically

upheld the legality of both the .6% minimum signature

requirement in Illinois for independent and new political

party candidates as well as the petition filing deadline of

sixty-four days prior to election day.

On April 4, 1977, the State Board filed an Offer of Proof

and another motion to vacate the order of permanent in-

junction set forth in the March 17th order, maintaining

that it was incumbent upon the plaintiffs-appellees to, at

the very least, offer evidence that they couid neither meet

the 35,947 minimum signature requirement nor file their

petitions by the statutory deadline. Appellants addition-

ally attacked the legality of the March 17th order, assert-

ing that the Chicago Board .acked authority to agree to

an order to lower the minimum signature requirements

and/or to extend the filing deadline on behalf of a par-

ticular political party contrary to state law.

On April 6, 1977, the District Court denied the motions

of the State Board to vacate the orders entered on March

14, 1977 and March 17, 1977. In responding to the law of

the case and stare decisis issue, the District Court writes,

‘The court has great respect for the principle of stare de-

cisis, but is not bound by previous cases where different

facts are alleged and where new and persuasive legal

arguments are raised (App. C, p. 36a).

In justification for issuing a permanent injunction with-

out a heariny, the District Court writes, ‘*This conten-

tion fails to consider that the only injunctive relief en-

tered in these cases was based upon a question of law,

rather than any disputed issue of fact and that both sides

had ample opportunity to argue in behalf of their respee-

tive positions.” (App. C, p. 36a).

On December 9, 1977, the Court of Appeals affirmed the

March 14th permanent injunction and adopted the March

14, 1977 memorandum opinion of the District Court. On

the question of the issuance of a permanent injunction

without an evidentiary hearing in violation of Fed. R.

Civ. P. 65, the Court of Appeals dismissed the argu-

ment by stating, in part: ‘*No purpose will have been

served by holding an evidentiary hearing in this case.

There were no actual disputes as to the grounds on which

the injunction was ordered.’’ (App. A, p. 4a).

On the question of the authority of a local election

agency to reduce the signature requirement below the

minimum set by the trial court and extend the filing dead-

line for one political party (and not for another politi-

cal party because it did not meet the new standard agreed

to between the local agency and the first political party),

the Court of Appeals held this to be moot. The Court

reasoned, in part, that the order applied only to the spe-

cial mayoral! election, which was over, and the issue, if

repeated, could be reviewed at a later time by the Courts.

(App. A, p. 6a).

FEDERAL QUESTIONS ARE SUBSTANTIAL

A UNITED STATES COURT OF APPEALS IS BOUND

TO FOLLOW THE LAW OF THE UNITED STATES

SUPREME COURT.

The ruling of the Court of Appeals directly contradicted

the ruling of this Honorable Conrt in Jackson v. Ogilvie,

403 U.S. 925, 91S. Ct. 2247 (1971), which summarily af-

firmed a three-judge distriet court opinion, 325 EF. Supp.

864 (N.D. Ill, 1971).

The Jackson opinion specifically upheld the Htinois 5%

minimum signature requirement and the sixty day filing

deadline for independent candidates seeking the office of

Mayor of the City of Chicago. In the three-judge opinion,

it states at page S68:

‘* Jackson argues that the 5% minimum requirement of

§ 10-3 of the Tlinois Election Code operates to limit

his and plaintiffs Wilkinson’s and Maclin’s first

amendment rights. He asserts that before they ean

act to advance his candidacy they must be joined

by a group numbering approximately 58,000 quali-

fied electors of the city. The question more pointedly

is, can the state limit the availabilitv of the ballot to

only those candidates who evidence the support of 5%

of the electorate? We think it can. In Briscoe v. Kusper,

435 F. 2d 1046 (7th Cir. 1970), the Court noted:

‘A state clearly has a substantial interest in admin-

istering its own local elections. This state concern

reasonably includes regulation of candidates, and it

may well call for limitations on access to ballots by

those seeking public office. Such limitations may be

justified by the need to prevent subversion or cor-

ruption.’

‘*While the 5% requirement is higher than the percent-

age required in a majority of other states (see, Willi-

ams v. Rhodes, supra, 393 U.S. 33 n. 9, 89 S. Ct. 5)

nonetheless, we feel it is a reasonable limitation that

serves a compelling interest.’’

Under the doctrines of stare decisis a1 ' law of the case,

the Court of Appeals was bound to follo the dictates of

this Honorable Court.

The doctrine of the law of the case may be applied not

only to cases involving the same parties, but also to con-

tests in which the parties have no legal connection with

those in the first case. The doctrine is applicable unless

it is proven that the circumstances of the second case are

so factually different from those of a previous case that

the established rule of law cannot be applied, or that a

different rule of law from still another case does, in fact,

apply, or that the rule of law in question is itself invalid.

See Moore, Federal Practice, 1B § 0.401.

The facts of the case at bar are irrelevant for the pur-

pose of the issuance of the permanent injunction since

the injunction was issued for all future elections — not

just the special mavoral election in Mlinois. Most impor-

tant, the Court of Appeals sanctioned the issuance of the

permanent injunction in the absence of any evidentiary

hearing, concluding there was no factual dispute as to

the grounds on which the injunction was ordered.

Consequently, ‘‘When, therefore, a federal court enun-

ciates a rule of law to be applied in the case at bar, it not

only establishes a precedent for subsequent cases under

the doctrine of stare decisis, but as a general proposition,

it establishes the law, which other courts owing obedience

to it must, ... normally apply to the same issues in sub-

sequent proceedings in the case.’’ (Moore, Federal Prac-

tice 1B, § 0.404[1]). (Emphasis added).

Therefore, this Court should consider the substantial

question of whether a Court of Appeals and District Court

ean ignore the dictates of a higher court and justify such

action by merely stating ‘‘The Court has great respect for

the principle of s/are decisis, but is not bound by previous

eases where different facts are alleged and where new and

persuasive legal arguinents are raised.’’ (App. C, p. 36a,

and thereby ignoring the point that no evidentiary hear-

ing was held to elicit facts and no new relevant law was

cited.

Il.

SUBSTANTIAL LEGAL ELECTION QUESTIONS CAN-

NOT BE MOOTED BY THE PASSAGE OF THE ELEC-

TION.

This Court should consider the substantial question of

whether a Court of Appeals can avoid deciding a crucial

issue through the doctrine of mootness in derogation of

the general principles promulgated by this Honorable

Court.

Appellee, Chicago Board of Election Commissioners, a

public agency, violated Illinois election law by substitut-

ing an arbitrary standard in lieu of an objective statutory

standard for ballot access (20,000 signatnres instead of

29,000 signatures as mandated by the District Court).

Specifically, thix action was undertaken for the benefit of

the U.S. Labor Party — a new local political party. Such

reduction was effectuated by an agreed order over the

objection of appellant that appellee lacked any discretion

whatsoever to set a different standard for ballot access.

Indeed, once the Chicago Board exercised discretion,

they violated the equal protection rights of other politi-

cal parties unable to meet either the judicial standard of

25,000 signatures or the U.S. Labor Party standard of

20,000 signatures. Specifically, the Libertarian Party was

denied equal protection by the Chicago Board when they

requested a further lowering of signature requirements to

18,000 signatures.

In light of this flagrant violation, the Court of Appeals,

holding the issue moot since the election had passed, writes

in footnote 2: ‘*We in no way suggest that appellants

have failed to raise a substantial legal question on the

issue. However, in light of our conclusion that it is moot,

we will have to postpone consideration of the merits for

another day.’’ (App. A, p. 6a).

The law is clear that passage of an election does not

render moot an issue still alive for future elections. In

Moore vy. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493 (1969), the

[llinois Electoral Board (predecessor agency to appellant

Illinois State Board of Elections) refused to-certifythe

plaintiffs who were independent candidates for the office

of electors of the President and Vice President of the

United States in the 1968 election, on the ground that al-

though the plaintiffs’ nomination petitions contained 25,000

signatures, as required by an Illinois statute, the petitions

did not meet the requirement of the same statute that

they include the signatures of 200 qualified voters from

each of at least 50 of the 102 counties within the state.

Challenging the constitutionality of this statutory provi-

sion, the candidates appealed to this Court from an ad.-

verse Judgment of the three-judge District Court. Refus-

ing to dismiss the appeal as moot because the 1968 elec-

ion had been already held, this Court pointed out that

the questions raised by the state statute would not be an-

swered and would remain and control future elections as

long as Illinois maintained her present system as she had

done since 1935. The problem was, therefore, ‘‘capable of

repetition, yet evading review’’, and the need for a res-

olution of the problem reflects a continuing controversy 1

the federal—state area.

In Brown v. Chote, 411 U.S. 452, 420, 93 S. Ct. 1732

(1973), this Coart held that the conduct of a primary elec-

tion pending litigation did not render moot the question,

raised by persons secking to become candidates in the

election, whether state election code provisions violated the

Federal Constitution in requiring primary candidates to

pay a filing fee, thereby barring indigents from seeking

elective office, and from voting for the candidates of their

choice.

In Storer v. Brown, 415 U.S. 724, 94 S. Ct. 1274 (1974),

reh. den. 417 U.S. 926, 94 S. Ct. 2635, the constitutionality

of certain California election laws governing access to the

ballot were challenged by several independent candidates.

The challenge was instituted prior to the 1972 election,

but the appeal was not taken until after the election was

conducted. Although it was contended that the plaintiffs

would now be precluded effective relief, this Court, re-

taining jurisdiction, rested its decision on the ground that

the issues raised would persist if the state statutes were

applied in the same manner in future elections. The

Court’s failure to resolve the controversy on appeal would

permit the controversy to be ‘‘capable of repetition, yet

evading review.’’ Accordingly, this Court reviewed the

operation and application of the California statute in or-

der to simplify or preclude future challenges and afford

any future plaintiffs the opportunity to file timely cases

so that adjudication of similar issues could be had before

the election is held.

A state statute involving elections cannot be challenged

and then be Jeft unresolved by the court. The likelihood of

repetition of the controversy and the public interest in

assuring appcllate review are the key elements that were

settled in Southern Pacific Terminal Co. v. Interstate Com-

merce Comm., 219 U.S. 498, 31 S. Ct. 279 (1911). This

doctrine applics in cases in which the constitutionality of

state election laws are declared moot by the intervening

conduct of the election in question. The Southern Pacific

Terminal doctrine identifies an ‘‘exception’’ to the judicial

bar of mootness, at least where the litigation involves ac-

tions by or against public officials, and the public interest

in assuring enforcement of the legislative will and con-

stitutional mandates.

In the case at bar, an administrative agency arbitrar-

ily, in violation of state law, and the supervisory authority

of appellant, used as a standard for access to the ballot,

the wishes of one political party. Another political party,

the Libertarian Political Party, unable to meet the 20,000

signature standard, was rejected by the Chicago Board in

their efforts to lower the signature requirement so that

they, too, could obtain aecess to the ballot.

Such favoritism strikes at the very heart of a demo-

cratic system, especially in so crucial an area as elections.

Since such agreed order stands as a precedent for local

election authorities to arbitrarily alter Illinois law, this

Court should consider the question of whether the reso-

lution of such issue should wait for another day.

CONCLUSION

The decision rendered by the 7th Cireuit Court of Ap-

peals has changed the law in election cases by setting new

standards for ballot access and for clection exceptions to

the mootness doctrine, contrary to the rules of law pro-

nounced by this Court, thereby creating conflict in settled

law in every circuit in this nation.

For the foregoing reasons, this Court should note prob-

able jurisdiction in this case and give plenary considera-

tion with briefs on the merits and oral arguments for the

resolution of these questions, the importance of which can

hardly be overestimated.

Respectfully submitted,

MICHAEL EF. LAVELLE, MICHAEL L. LEVINSON,

100 N. LaSalle Street, 100 N. LaSalle Street,

Chicago, Illinois 60602, Chicago, Illinois 60602,

FRANKLIN J. LUNDING, JR.,

100 N. LaSalle Street,

Chicago, Illinois 60602,

Attorneys for Appellant

Illinois State Board of Elections.

APPENDIX

INDEX TO APPENDICES

A—Per Curiam Opinion of U.S. Court of Appeals

For The Seventh Cireuit (Decided Dee. 9, 1977).

B—Memorandum Opinion in Socialist Workers

Party, et al. vs. Chicago Board of Election Com-

missioners, et al. No. 77 C 255 and Gerald Rose, et

al. vs. John H. Hanly, et al. No. 77 C 326 (Mar. 14,

SOEEE. wa peadldaedkacennddobw eee es 4464de chews

C—Memorandum Opinion in Socialist Workers

Party, et al. vs. Chicago Board of [lection Com-

missioners, et al. No. 77 C 255 and Gerald Rose, et

al. vs. John H. Hanly, et al. No. 77 C 326 (April 6,

DEEN): kucawades bend nkesh <teadekaes nda eeesveur

D—Order in Gerald Rose, et al. vs. John H. Hanly,

et al. No. 77 C 326 (March 14, 1977) .........%...

E—Chapter 46, Illinois Revised Statutes (1975), See.

Ere rere rrr rere eT Tee Terr ee TIT Te Te

DT ng 6 s:k cddoles dukes howd dddenne set edueedsces

G—Notice of Appeal To The Supreme Court of the

SE I 6 i 65 4:6kos0bs dhuveedecenedeseedava

PAGE

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40a

44a

46a

APPENDIX A

PER CURIAM OPINION

UNITED STATES COURT OF APPEALS

For the Seventh Cireuit

Chicago, Illinois 60604

December 9, 1977.

Before

Hon. WALTER J. CUMMINGS, Circuit Judge

Hon. WILBUR F. PELL, JR., Cireuit Judge

Hon. WILLIAM J. BAUER, Circuit Judge

Appeals from

the United States

eee

SOCIALIST WORKERS PARTY, District Cour

for the

et al., and

GERALD ROSE, et al.,

Plaintiffs-Appellees,

No. 77-1475 & 77-1476 vs.

ILLINOIS STATE BOARD OF r

ELECTIONS, pay

Defendant-A ppellant. a

Northern District

of Illinois,

, Eastern Division

Honorable

Bernard M.

Decker

Judge.

These causes came on to be heard on the transcript of

the record from the United States District Court for the

Northern District of Illinois, Eastern Division, and were

argued by counsel.

On consideration whereof, it is ordered and adjudged

by this Court that the District Court order of March 14,

1977 is hereby AFFIRMED; and, that the appeal fren the

District Court order of Mareh 17, 1977 is hereby DIS-

MISSED. Costs will be assessed against the appellants.

The aforegoing is in accordance with the opinion of this

Court filed this date.

IN 'THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH COURT

Nos. 77-1475, 77-1476 (Consolidated )

SOCIALIST WORKERS PARTY, et al.,

Plaintiffs-A ppellees,

Vs.

ILLINOIS STATE BOARD OF ELECTIONS, et al.,

Defendants-A ppellants,

and

GERALD ROSK, et al.,

Plaintiffs-A ppellees,

ILLINOIS STATE BOARD OF ELECTIONS,

Defendants-Appellants.

Appeal from the United States District Court for the

Northern District of Illinois, Mastern Division,

Nos, 77-C-255, 77-C-326—Bernard M. Decker, Judge.

ARGUED NOVEMBER 21, 1977—

DECIDED DECEMBER 9, 1977

Before CUMMINGS, PELL, and BAUER, Circuit Judges.

PER CURIAM. This is an appeal from orders of the

district court which: (1) on March 14, 1977, permanently

enjoined the Chicago Board of lection Commissioners

from enforcing those portions of Ll. Rev. Stat., Ch. 46 8§

10-2 and 10-3 which require nominating petitions for new

political parties and independent candidates seeking of-

fices serving less than the entire state to contain more than

25,000 signatures; and (2) on March 17, 1977, set the num-

ber of petition signatures required of new political parties

and independent candidates seeking the office of Mayor of

the City of Chicago in the June 7, 1977 Special Mayoral

Election at 20,000 signatures and permitted new political

party and independent candidate nominating petitions for

the June 7 Special Mayoral Election to be filed on or before

April 18, 1977.

I. THE MARCH 14, 1977 ORDER

We affirm the permanent injunction issued on March 14,

1977. We are of the opinion that the district court properly

enjoined the appellants on the basis of a well-reasoned

equal protection analysis. We, therefore, adopt as the

opinion of this court the memorandum opinion of the dis-

trict court published at 433 F. Supp. 11 (N.D. Ill. 1977).

In addition, however, we must consider several issues

raised on appeal that were not addressed in the district

court’s opinion. Appellants argued that the permanent

injunction should be reversed because it did not comply

with Fed. R. Civ. P. 65. The gist of appellants’ argument

was that they were denied an opportunity to be heard be-

cause the district could did not hold an evidentiary hear-

ing before ordering the permanent injunction.

No purpose would have been served by holding an evi-

dentiary hearing in this case. There was no factual dispute

as to the ground on which the injunction was ordered. The

district court permitted appellants to file an offer of proof

outlining facts they would present if a hearing were —

granted. We find n6thing in this offer of proof which, if

proved, would have altered the result; indeed, it has not

been demonstrated that anything that could have arisen in

a factual hearing would have altered the result. The ab-

sence of such a hearing, therefore, does not constitute a

ground for reversal. See Hagopian v. Knowlton, 470 F. 2d

201, 207 (2d Cir. 1972); Securities and Exchange Commis-

sion V. Frank, 388 F. 2d 486, 490 (2d Cir. 1968).

Appellants also argued that they did not receive suffi-

cient notice that the court would be considering both a

preliminary and a permanent injunction. We question the

propriety of this argument in light of the fact that the

plaintiffs’ motion was entitled ‘‘Motion for Preliminary

and Permanent Injunction.’’ Nevertheless, we note that

appellants’ claimed surprise at the district court’s deci-

sion to consider permanent injunctive relief does not,

alone, merit reversal. As the Fifth Cireuit stated in Ll

Lilly & Co. vy. Generix Drug Sales, Inc., 460 F. 2d 1096,

1106 (5th Cir. 1972), ‘‘surprise alone is not a sufficient

basis for appellate reversal; appellant must also show that

the procedures followed resulted in prejudice, ...’’ We

perceive no such prejudice in this case. The decision to en-

join rested on pure equal protection analysis, and undis-

puted facts, namely the relevant statutes. A more formal

notice would not have provided appellants with a greater

opportunity to alter this result. See Standard Oil Company

of Texas v. Lopena Gas Company, 240 F. 2d 504, 509-10

(5th Cir. 1957).

For these reasons, we affirm the order of March 14, 1977.

Il. THE MARCH 17, 1977 ORDER

On March 17, 1977, the district court issued an order re-

flecting an agreement by the Chicago Board and the plain-

tiffs to lower the five percent statutory signature require-

ment to 2U,00U signatures and to extend the filing deadline

trom April 4 to April 18. Appeilant (State Board) re-

quested reversal of this order on the ground that the Chi-

cago Board had no authority to enter such an agreement.’

We will not address the merits of this argument because

we hold that the issue is moot.*

The order stated categorically that it applied only to the

June 7, 1977 Special Mayoral klection which has long

passed. Furthermore, this is not an issue which is ‘‘capable

of repetition, yet evading review.’’ Delunis vy. Odegaard,

416 U.S. 312, 318-19 (1974); Ltoe v. Wade, 410 U.S. 118, 125

(1973); Southern Pacific Terminal Company vy. luterstate

Cummerce Commission, 219 U.S. 498, 515 (1911). We have

no reason to believe that a future agreement by an elee-

tion board to reduce signature requirements and extend

filing deadlines in a special election situation, albeit an un-

likely occurrence, would evade review. for this reason we

dismiss the appeal of the March 17, 1977 order. Costs will

be assessed against the appellants.

AFFIRMED IN PART, DISMISSED IN PART.

A true Copy:

Teste:

Clerk of the United States Court of

Appeals for the Seventh Circuit

1. In the district court, the Chicago Board of Election

Commissioners and the State Board of Elections were de-

fendants in the two actions which are consolidated in this

appeal. The Chicago Board, however, did not appeal, but

filed a responsive brief in opposition to the State Board’s

contention that the Chicago Board did uot have the au-

thority to enter an agreement altering the signature and

filiny equirements of the statute.

2. We in no way suggest that appellants have failed to

raise a substantial legal question on this issue. However, in

light of our conclusion that it is moot, we will have to post-

pone consideration of the merits for another day.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

HASTERN DIVISION

SOCIALIST WORKERS PARTY,

etal., |

Plaintiffs, |

VS. |

CHICAGO BOARD OF ELECTION

COMMISSIONERS, et al., NO. 77 € 255

Defendants. \ —-

me | NO.77 C326

GERALD ROSH, et al.,

Plaintiffs,

vs.

JOHN H. HANLY, et al.,

Defendants. |

MEMORANDUM OPINION

Background

A special mayoral election has been scheduled for June

7, 1977, in Chicago to till the vacancy caused by the death

of the late mayor, Richard 1. Daley. On January 13, 1977,

the defendant in these two eases, the Chicago Board of

Election Commissioners,! released the election calendar for

1. In No. 77 C 255 the members of the State Board of

Elections, and John Marcin, the City Clerk of Chicago,

are also named as defendants, as are the two boards in

their corporate capacities.

this election, Among its specifics, it set the filing dates and

signature requirements for petitions for independent can-

didates for mayor,? and for new political parties,* i.e. par-

ties other than the Democratic and Republican parties.

The defendants purported to follow the statutory re-

quirements of the Illinois Election Code, Ill. Rev. Stat. ch.

46. Following Il. Rev. Stat. ch. 46 § 10-6, they set the filing

deadline for new political parties on April 4th, 64 days

prior to the election. The filing date for independents was

initially set on February 19th, the same day as required

for candidates in the major party primaries.‘

The pertinent language regarding signature require-

ments in § 10-2, applying to new parties, and § 10-3, ap-

plying to independents, is identical :

‘not less than 5% of the number of voters who

voted at the next preceding general election in such

district or political subdivision in which such district

or political subdivision voted as a unit for the election

of officers to serve ts respective territorial area.’

2. Independents are defined in Tll. Rev. Stat. ch. 46

§ 10-3 as candidates who are ‘‘not candidates of any politi-

cal party.”’

3. A new political party is any political group which

seeks to become an ‘‘established political party’? but which

did not poll more than 5% of the entire vote cast within

the political unit at the last election in which that unit

voted to elect officers to serve its respective territorial

area. A long-standing political party such as the plaintiff

Socialist Workers Party may be classified as a ‘‘new po-

itical party’’ becanse of lack of electroal success.

4 The primary is scheduled for April 19, 1977.

5. The two sections differ only in that § 10-3 also estab-

lishes an 8% signature ceiling for the petitions of inde-

penaents, and that § 10-2 refers to 5% of the number of

*‘voters’’ who voted in contrast to § 10-3, which refers to

5% of the number of ‘‘persons’’ who voted.

Nonetheless, the defendants used the voting figures from

the April 1, 1975, mayoral election to compute the require-

ment for independents, and used figures from the Novem-

ber 2, 1976, general election to determine the requirement

for new political parties. Thus, the defendants required

that the new political parties had to contain 63,373 valid

signatures on their petitions, while independents were only

required to present petitions with 35,947 signatures.®

These two suits were filed by supporters of new politi-

cal parties and independent candidates seeking access to

the ballot to challenge the constitutionality of the Board’s

determinations.

Case No. 77 C 255 was brought by the Socialist Workers

Party and challenges in its first two counts the signature

requirements and filing deadlines set for new political par-

tis. Case No. 77 C 326 was brought by the United States

Labor Party, and by Gerald Rose, an individual who al-

leges that he desires to run as an independent in the may-

vral election.? This case challenges the requirements set

out for both new parties and independents. Rose v. Hanly

was brought before this court as related to the earlier filed

ease. Although the two have not been formally consoli-

dated, they raise essentially overlapping factual and legal

issues, and the defendants have filed an identical reply

brief in support of both of their motions to dismiss.

In the course of this litigation the defendants have

agreed, for the purposes of this special election, to modify

6. The requirements for candidates in the major party

primaries are calculated on a different basis. Democratic

candidates need 4,460 signatures and Republic candidates

2,558 signatures.

7. Individuals asserting that they support these parties

and candidates are also named as plaintiffs.

10a

these requirements. Independent candidates are now given

an extension until April 4th, the deadline set for new part-

to file their petitions. And new political parties are only

to be required to submit 35,947 valid signatures, the same

amount as required of the independents. Thus, the signa-

ture requirements and filing deadiines are now iden‘ical

for independents and new political parties in the forth

coming election.

Both cases seek injunctive and declaratory relict. As

noted, there are pending motions to dismiss in both ae-

tions, and both sets of plaintiffs have briefed motions for

injunctive relief.

II.

Justiciability and the Effect of Recent Supreme

Court Cases On Equal Protection

Defendants have not raised any challenge to the justici-

ability of an election law challenge as a political question.

This defense has been clearly rejected by the Supreme

Court. Williams v. Rhodes, 393 US. 23 (1968); Wesberry

v. Sanders, 376 U.S. 1, 5-7 (1964); Baker v. Carr, 369 U.S.

186, 208-237 (1962).

They do, however, argue that the plaintiffs cannot chal-

lenge their implementation of the state statutes where it

cannot #e shown that there was any purposeful invidious

diccrimination. They cite the statement of the Seventh Cir-

cuit that

‘*To establish a denial of equal protection a candi-

date for publie office must [allege and] prove the ex-

istence of an intentional or purposeful discrimination

by the election authorities in which one elass is favy-

ored over another.’’ Baum v. Lunding, 535 F. 2a 1016,

1018 (7th Cir. 1976).

lla

Baum, however, dealt with a challenge toa regulation which

authorized group petitions for candidates seeking to run

together as a ‘‘slate.’? However, after consideration of the

merits of plaintiff’s claim, the Se.enth Cireuit found that

the regulation was not in fact discriminatory against in-

dividual candidates, and was based on justifiable poliey

grounds. It sustained the trial court’s conclusion that the

complaint was frivolous. Neither Baum, nor Briscoe vy.

Kusper, 435 F. 2d 1046 (7th Cir, 1970), also cited by the

defendants, deals with claims of discriminatory ruies re-

garding ballot access. Such challenges have been repeat-

edly brought under the equal protection clause, ineluding

Jackson vy. Ogilvie, 325 F. Supp. 864 (N.D. TIL. 1971), the

case upon which the Board’s defense is focused. See also

the numerous cases dealing with similar challenges, cited

fra.

Going beyond these cases, the defendants argue that the

recent Supreme Court cases of Washington v. Davis, 426

U.S. 229 (1976) ;and Village of Arlington Heights vy. Mert

politan Housing Development Corp.,45 LW 4073 (1/11/77),

have established discriminatory intent as an element of all

equal protection based claims. Arlington Heights states

that **|p]roof ui racially discriminatory intent or purpose

is required to show a violation of the Equal Protection

Clause.’’ 45 LW at 4077.

Both of these cases dealt with situations in which offi-

cials effected policies which had a discriminatory impact.

The Court felt that this was insufficient to sustain a case

for denial of equal protection in the absence of ‘‘proof that

a discriminatory purpose has been a motivating factor in

the decision.’’ 45 LW at 4077.

These cases may be distinguished on several grounds.

First, the defendants in Washington y. Davis and Arling-

ton Heights were able to show that they disregarded racial

l2a

considerations anu considered matters relating solely to

job qualifications in hiring and community needs in zoning.

However, in the instant case, the challeged policy was the

implementation of a law designed to discriminate agaist

frivolous candidacies and parties. The challenged portions

of the Election Code are deliberately structured to deny ac-

cess to the ballot to certain members of the classification

in which the plaintiffs are placed by the law. The racial im-

pact in the two Supreme Court cas®& was found to be inci-

dental ;* the special burdens placed upon the defendants’

classes and challenged in these cases are the central point

of the statutory scheme.’. .

That these special requirements are more onerous than

those placed upon major party candidates or statewide can-

didates does not per se prove a violation of equal protec-

tion, but it does put into issue the reasonableness of the

classifications and the burdens.

Furthermore, the defendants ignore the fact that the

instant cases assert due process claims raising first amend-

ment issues. Defendants are in error when they assert that

question of ballot access are cognizable only under the

equal protection clause. In Williams v. Rhodes, 393 US.

23 (1968), the court was faced with a challenge to Ohio’s

statutory scheme for qualifying third parties on the ballot.

The court noted

8. It is also arguable that these cases are limited to

equal protection claims involving alleged racial discrimi-

nation.

9, This action must be viewed as an attack on the con-

stitutionality of the applicable portions of the Illinois

Election Code. The named defendants are those who have

the duty of implementing the challenged statutes. In deal-

ing with the essential legal issues, the absence of animus

on the part of the individual defendants is not dispositive

of the constitutional questions.

l3a

‘the state laws place burdens on two different, al-

though overlapping, kinds of rights—the right of in-

dividuals to associate for the advancement of political

beliefs, and the right of qualified voters, regardless of

their political persuasion, to cast their votes effec-

tively. Botb of these rights, of course, rank among our

most precious freedoms. We have repeatedly held that

freedom of association is protected by the First

Amendment. And of course this freedom protected

against federal encroachment by the First Amend-

ment is entitled under the Fourteenth Amendment to

the same protection from infringement by the States.”’

393 U.S. at 30-31.

Since Williams courts have repeatedly considered the First

Amendment claims raised by challenges to state ballot

laws. American Party of Texas v. White, 415 U.S. 767

(1974); Storer v. Brown, 415 U.S. 724 (1974); Jenness v.

Fortson, 403 U.S. 431 (1971); Riddell v. National Demo-

cratic Party, 508 F. 2d 770 (5th Cir. 1975); Smith v.

Cherry, 489 F. 2d 1098 (7th Cir. 1973); McCarthy v. Kirk-

patrick, 420 F. Supp. 366 (W.D. Mo. 1976); Bendinger v.

Ogilvie, 335 F. Supp. 572 (N.D. Ll. 1971); Jackson v. Ogil-

vie, supra.

III.

Ripeness

Noting that the deadlines for filing petitions have not

yet passed, the defendants assert that this action is not

yet ripe. They contend that there is no real controversy at

present, and that plaintiffs are in fact seeking an advisory

opinion from the court.

The plaintiffs counter by stressing that they are cur-

rently forced to expend their political resources in an ef-

fort to satisfy what they feel are unconstitutional require-

ments. They thus claim to suffer an immediate injury.

l4a

The defendants’ own brief reveals that the courts have

considered this type of situation to raise a controversy

ripe for judicial determination. They note that the perti-

nent filing deadline for the mayoral election in Jackson v.

Oyilvie, supra, Was February 1, 1971. The plaintiff filed

his case on December 10, 1970, two months before the dead-

line. The three-judge court considered that case and en-

tered its decision on January 28th, also prior to the filing

date. There is no reason why this court should not similarly

entertain this case.

IV.

Standard Of Review

The numerous cases that have entailed consideration of

state ballot access laws have focused upon the balance of

the interests of the plaintiffs in effectively participating

in the electoral process, and furthering their desires to ex-

press their political beliefs through political associations,

against certain state concerns in regulating the electoral

process. In Lubin v. Panish, 4145 U.S. 709 (1974), the Court

expressed some of these state concerns:

‘That ‘laundry list’ ballots discourage voter parti-

cipation and confuse and frustrate those who do par-

ticipate is too obvious to call for extended discussion.

The means of testing the seriousness of a given ecan-

didaey may be open to debate; the fundamental im-

portance of ballots of reasonable size limited to seri-

ous candidates with some prospects of public support

is not. Rational results within the framework of our

system are not likely to be reached if the ballot for

a single office must list a dozen or more aspirants who

are relatively unknown or have no prospects of suc-

cess.’ 415 U.S. at 715-16.

In Bullock v. Carter, 405 U.S. 134, 145 (1972), the Court

expressed concern for the state need to ‘‘prevent the clog-

lda

ging of its election machinery, avoid voter confusion, and

assure that the winne. is the choice of a majority, er at

least a strong plurality, of those voting, without the ex-

pense and burden of runoff elections.’? The Court spoke in

Storer v. Brown, supra, of the state interest ‘‘in encourag-

ing compromise and political stability.’’ 415 U.S. at 729.

The Supreme Court has therefore upheld properly drawn

statutes that seek to require ‘‘some preliminary showing

of a significant modicum of support before printing the

name of a political organization’s candidate on the bal-

lot.’’ Jenness v. F'ortson, supra, at 442.

The contrasting concerns of the plaintiffs are well de-

scribed in the passage from JVilliams v. Rhodes, quoted

supra. The basie political rights of free speech and free

association, and free exercise of the franchise need no fur-

ther amplification. It should not be ignored that third party

candidaies and programs have had significant impact on

our history and political values, even when the electorial

campaigns themselves were unsuccessful.” Access to the

ballot is a threshhold means for general consideration of

the ideas espoused by these parties and candidates. Nor

can it be ignored that one of our current major parties was

itself originally a minor political group. Finally, there has

been much concern expressed recently over the substantial

portion of the electorate that has failed to exercise its

franchise in preceding elections. This absenteeism may it-

self reflect discouragement with the range of choices on

the ballot, or a desire for an effective means of casting a

protest vote.

10. Electorally unsuccessful parties whose platforms

have greatly affected American life ineude the Free Soil

Party, Populist Party, Prohibitionist Party, Socialist

Party aud several manifestations of the Progressive Party.

l6a

Where such important 11ghts are to be balanced against

regulations purporting to protect significant state inter-

ests, this court has stressed that

“‘[bJefore a state can place any restrictions upon

the freedom to associate freely and to vote, it must

be shown that a compelling state interest justifies such

regulation.’’ Bendinger v. Ogilvie, supra, at 574.

This means that the court is to subject the challenged

portions of the Mlection Code to ‘‘strict serutiny.’’ As was

recently said in McCarthy v. Kirkpatrick, supra, at 373:

‘‘While the state has a legitimate interest in re-

stricting access to the ballot in order to maintain the

integrity of the ballot and preserve an °vderly elec-

tion process, the Supreme Court has reer «. that the

means chosen by the state to achieve its; w. © care-

fully scrutinized, for they necessarily plac bure ns on

the right of individuals to associate for ae ad ince-

ment of political beliefs, and the rights of que ‘fied

voters to cast their votes effectively.’’

A review of ballot access cases reveals that the courts

have consistently expressed their determination to apply

this more rigorous form of constitutional analysis. Ameri-

can Party of Texas v. White, 415 U.S. 767 (1974); Bullock

v. Carter, 405 U.S. 134 (1972) ;" Wiliams vy. Rhodes, 393

U.S. 23 (1968); Riddel v. National Democratic Party, 508

F. 2d 770 (Sth Cir. 1975); Briscoe v. Kusper, 435 FP. 2d

1046 (7th Cir. 1970); Salera v. Tucker, 399 F. Supp. 1258

(E.D. Pa. 1975); Lawlor v. Board of Election Commission-

ers, 295 F. Supp. 692 (N.D. Ill 1975); Lendail v. Bryant,

387 F. Supp. 397 (.D. Ark. 1975); Jackson v. Ogilvie, 325

F. Supp. 864 (N.D. Ill. 1971).

———————_

11. While there is language in Bullock v. Carter to the

effect that challenges to ballot barriers do not per se require

strict scrutiny, 405 U.S. at 143, the Court did apply that

standard. See Salera vy. Tucker, 399 F. Supp. 1258, 1263,

n. 5 (E.D, Pa. 1975).

The 35,947 Signature Requirement

As noted, the defendants have determined that inde-

pendents and new political parties must obtain 35,947 valid

signatures on their petitions in order to qualify for the

special mayoral ballot.” They assert that this is derived

from the statutory requirement of 5% of the voters at the

last general election at which Chicago voters voted as a

unit for a city office.

The defendants maintain that they are merely comply-

ing with the law, and emphasize that a three-judge court

sustained the 5% requirement in Jackson v. Ogilvie, supra.

Jackson was brought by an independent candidate in the

1971 regular mayoral election, and challenged the signature

12. Since the defendants have agreed not to apply the

63,373 signature requirement, derived from the 1976 elec-

tion figures, for new parties, and since the court has made

its own determination of the validity of the lesser 35,947

requirement, derived from the 1975 mayoral election fig-

ures, the issue of the constitutionality of utilizing disparate

statistics to satisfy identical statutory requirements is es-

sentially moot. However, it should be noted that Jackson v.

Ogilvie, supra, construed the statute as requiring 5% ‘‘of

the total number of votes which were cast in the last pre-

ceding election for the office he currently seeks,’’ 325 F.

Supp. at 866. Furthermore, since Cook County Circuit

Judges frum Chicago ‘‘serve’’ a judicial district covering

all of Cook County, the 1976 elections did not select office-

holders serving any district limited to Chicago. There is,

therefore, no apparent statutory basis, nor any logical

reason to impose a more severe burden on new parties

than independents, or to caleulate the 5% requirement on

the basis of non-municipai election figures.

lSa

requirements in Lil, Rev. Stat. ch. 46 § 10-5, as well as the

filing deadlines set in §10-4. The majority opinion, sup-

ported by Judge Lynch and Judge Perry, held that

‘*{wihile the 5‘. requirement is higher than the

percentage required in a majority of other states (see

Williams v. Rhodes supra, 398 U.S. 33 n. 9, 89'S. Ct. 5)

nonetheless we feel it is a reasonable limitation that

serves a compelling state interest.’’? 325 F. Supp. at

868.

A vigorous dissent by Judge Pell noted that no evidentiary

hearing had been held to prove the compelling state in-

terest, and concluded, ‘*l am unable to agree nor ean I

conceive that there is a real possibility of demonstration

supporting a compeling state interest in adherence to the

d¢¢ restrictive requirement.’? 325 F. Supp. at 869.

While the defendants argue that the majority opinion is

dispositive of these issues, the plaintiffs argue that Jack-

son can be factually distinguished from the instant cireum-

stances,

Iissentially this argument is based on the distinction be-

tween a regular election and a special election. They note

that a candidate or party seeking ballot position in a reg-

ular election can begin preparations for signature gather-

ing well in advance of the deadline. The date for the elee-

tion is known well in advance, and there is no barrier to

early circulation of petitions.

By contrast, the need for a special election only materi-

alized on December 20, 1976, when Mayor Daley died.

Petitions could not be circulated prior to January 13, the

date on which the election was fixed. Thus these plaintiffs

have only from Jannary 13 to April 4, 81 days, to obtain

the needed signatures.

The unique circumstances created by a special election

do, of course, change the context in which the appropriate-

ee ee

DAMS A, ate. >

P tic CAB OT ee lt GG 2 Blt AMP oe MS

— pet

19a

ness of these ballot barriers is to be evaluated. In a ease

raising slightly different issues, the Illinois Supreme Court

has acknowledged that

** (ijn filling vaeancies in office by special primary

and election, there must be room for an expansion and

contraction of time tables which are observed in the

regular election procedure.’’ People ex rel. Adamow-

skiv. Kerner, 19 Il. 2d 506, 514 (1960).

More importantly, the United States Supreme Court

has repeatedly emphasized that the constitutionality of

these types of restrictions must be evaluated upon a situa-

tion by situation basis. In Storer vy. Brown, supra, it was

stated:

‘(T]he rule fashioned by the Court to pass on con-

stitutional challenges to specific provisions of election

laws provides no litmus-paper test for separating

those restrictions that are valid from those that are

invidious under the Nqual Protection Clause. The rule

is not self-exeeuting and is no substitute for the hard

judgments that must be made. Decision in this context.

as in others, is very much a ‘matter of degree,’ Dunn

v. Blumstein, supra, at 348, very much a matter of

‘consider[ing] the facts and circumstances behind the

law, the interest which the State claims to be protect-

ing, and the interests of those who are disadvantaged

by the classification.’ Williams v. Rhodes, supra, at

30; Dunn v. Blumstein, supra, at 335. What the result

of this process will be in any specifie case may be very

difficult to predict with great assurance.” 415 U.S. at

730.

Simiarly, in Jenness vy. Fortson, supra, at 437, the Court

emphasized the analysis of Williams v. Rhodes, supra,

which demanded a study of ‘‘the totality’? of the chal-

lenged election laws.

The validity of a signature requirement cannot be anal-

yzed, therefore, without consideration of the circumstances

20a

and timeframe within which the petitions may be cireu-

lated. In this vein, the court in Lendall v. Bryant, supra,

at 402, noted that ‘‘[the signature requirement and the fil-

ing deadline] reinforce each other in interdicting inde-

pendent eandidacies .. .”’

While the court in Jackson v. Oglivie, supra, considered

the validity of a 5% signature requirement and a filing

deadline 64 days prior to the election, it did not do so in

the circumstances of a constricted period for circulating

petitions. This, in itself, denies Jackson any stare decisis

effect in this action, and leaves the Election Code open to

challenge in the context of a special mayoral primary.

Furthermore, since there is no ‘‘litmus-paper’’ test for

the validity of ballot-barriers, there is a need for some

judicial examination of evidence pertaining to the scope

of the burden created by the election laws. In Storer v.

Brown, supra, at 738, the Court stated that ‘‘[wle must,

therefore, inquire as to the nature, extent, and likely im-

pact of the California requirements.’’ In the absence of

such evidence, the court vacated the judgment and re-

manded the case to the district court ‘‘for further proceed-

ings to determine whether the California election laws

place an unconstitutional burden on [plaintiffs’] access to

the ballot.’’

Jackson v. Ogilvie, supra, was decided prior to Storer.

The dissent by Judge Pell noted that ‘‘no evidentiary hear-

ing has been held.’’ 325 F. Supp. at 869. The analysis of

13. In Storer v. Brown the court questioned whether

there was any compelling state interest in requiring the

collecting of signatures in a limited 24 day period, where

the quota was itself substantial. 415 U.S. at 743.

o «ae

i ee eee ees ea en a

RRs atte. kOe NBR |

2la

the majority was done in vacuc,* without any explanation

for the finding that ‘‘[5%] is a reasonable limitation that

serves a compelling state interest.’’

In Salera vy. Tucker, 399 F. Supp. 1258 (.D. Pa. 1975),

cited by the defendants, the court ruled unconstitutional a

portion of the Pennsylvania election code previously sus-

tained by an earlier three-judge court decision. Without

challenging the correctness of the prior case, the court

nonetheless decided ‘‘that the factual situation in our case

warrants a different conclusion.’’ 399 F. Supp. at 1268.

Similarly, the instant cases, as noted supra, present a

different factual context than Jackson. Since Jackson also

failed to examine the factual situation to see whether the

Illinois statutes created ‘‘burdens so severe as to confer

an effective political monopoly on the two major parties,”’

Storer v. Brown, 415 U.S. at 729, there is a definite need

to examine the current political realities in Chicago to see

whether these cases, too, ‘‘[warrant] a different conclu-

sion.’’

The defendants also argue that requirements as strin-

gent as those posed by the Illinois statutes have been fre-

quently upheld by the courts. However, a review of these

cases does not persuade the court that a 5% requirement

is constitutional per se.

It is true that there is language in Storer v. Brown, su-

pra, at 740, stating that ‘‘[s]tanding alone, gathering

325,000 signatures in 24 days [statewide in California in

14. Indeed the only data cited in n relating to the

necessity for the 5% requirement cuts against the major-

ity’s conclusions. The majority noted that this requirement

‘“‘is higher than the percentage required © « majority of

other states’’; Judge Pell called this a° « erstatement,

noting that 46 states were more lenient th. ilinois.

support of an independent presidential candidacy] would

not appear to be an impossible burden.’’ The California

statute, like the Illinois regulation at issue before this court,

calculated the 5% figure on the basis of the votes cast at

the preceding general election rather than the total of reg-

istered voters. It may have been harsher than the [linois

statute by excluding those who voted in the primary from

signing the petitions.”

On the other hand the Court remanded Storer for a hear-

ing to clarify the factual context of the statute. It was con-

cerned, among other issues, with ascertaining whether ‘‘in

the context of California politics, could a reasonably dili-

gent independent candidate be expected to satisfy the sig-

nature requirements, or will it be only rarely that the un-

affiliated candidate will succeed in getting on the ballot?’’

415 U.S. at 742 (Empaasis added). The court mentioned

the value of determining whether in the past ‘‘eandidates

have qualified with some regularity.”’

In Jenness v. Fortson, supra, the court also upheld a

5% signature requirement. While the 5% figure was based

on the larger total of registered voters, rather than votes

cast, in the last election, Georgia law permitted voters to

sign more than one petition, and to both sign petitions and

vote in the primary. Furthermore, candidates had 180 days

in which to gather the signatures. The court’s conclusion

that the Georgia law did *‘not operate to freeze the political

15. The defendants note that 35,947 actually represents

only 2.1% of the electorate. This diserepanecy.reflects the

low turnout at the last mavoral election. The parties have

not clarified to the court their view of the effect signing a

petition for a new party or an independent has on the

ability of a voter to sign other petitions, or vote in the

primary.

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23a

status quo,’’ 403 U.S. 438, also relied on a stipulation of

facts revealing that the nominating petition route had been

employed successfully by recent candidates tor governor

and President.

Similarly, in American Partly of Texas vy. White, 415 US.

767 (1974), the court noted that two of the original party

plaintiffs bad satisfied the challenged petition require-

ments. Furthermore, the requirements were not as severe

as those in issue in the instant cases. Texas required 1%

of the vote for governor at the last general election to ob-

tain statewide ballot position for minor parties. A period

of 55 days was allowed to circulate the petitions. Iidepen-

dent candidates had to satisfy a signature requirement of

3% to 5%. However, the smaller percentage applied to

larger units such as a congressional district, and there was

a 0UU vote maximum requirement.

The court has before it little information upon which it

might hazard a judgment whether the challenged election

laws unconstitutionally operate as an exclusionary device

structured to ‘‘freeze the status quo,’’ particularly in the

context of a special Chicago mayoral election. The plaintiff

Socialist Workers Party did manage to satisfy the 41,403

signature requirement for the 1975 mayoral election. Still,

this was achieved without the more stringent time limita-

tions affecting the current election. There is no evidence

that any other independent or third party candidate has

ever satisfied the 5% test for a Chicago city-wide election.

The evidence presently before the court makes it impos-

sible to establish the maximum signature requirement

within the toleration of the Constitution. Nonetheless? it

may be held with certainty that this requirement can in no

event exceed 25,000.

24a

Both § 10-2 and § 10-3, which establish the 5% require-

ment for ballot access for less than statewide elections,

also contain provisions that petitions containing 25,000

signatures will be sufficient to obtain ballot placing for

statewide races. These signatures may be obtained exclu-

sivly in one country, or even in one city. Communist Party

of Illinois vy. State Board of Elections, 518 F. 2d 517 (7th

Cir. 1975). The plaintiffs argue that the distinction be-

tween the statewide requirements and the 35,947 quote for

Chicago mayoral petitions is an irrational denial of equal

protection for participants in Chicago municipal elections.

The defendants counter that the contrast with the 25,000

requirement was considered in Jackson v. Ogilvie, supra.

However, it appears that it was only referred to in pass-

ing in one sentence of a brief submitted by the defendants

in that case. There is no discussion of this issue wuatsoever

in either the majority opinion or in the dissent. In such a

situation there is little reason for this court to hesitate to

re-evaluate an important contention. This is particularly

true where it is raised in the different factual context of

the forthcoming special election. Salera v. Tucker, supra.

One of the most fundamental principles of constitutional

analysis is that

‘‘even though the governmental purpose be legiti-

mate and substantial, the purpose cannot be pursued

by means that broadly stifle fundamental personal lib-

erties when the end can be more narrowly achieved.’’

Shelton v. Tucker, 364 U.S. 479, 488 (1960).

The need to apply the ‘‘least restritcive alternative’’ has

been applied by the Supreme Court to election law chal-

lenges:

‘‘Tf the State has open to it a less drastic way of

satisfying its legitimate interests, it may not choose

a Se eT

25a

a legislative scheme that broadly stifles the exercise of

fundamental personal liberties.’’ Kusper v. Pontikes,

414 U.S. 51, 59 (1973).

The Seventh Cireuit stressed this requirement in Bris-

coe v. Kusper, 435 F. 2d 1046, 1054 (7th Cir. 1970), where

it held:

‘‘This state concern ... may well call for limita-

tions on access to ballots by those seeking public of-

fice.... Assuming the constitutional legitimacy of such

an objective, due process nevertheless requires that

the state accomplish that end narrowly and fairly to

avoid obstructing and diluting these fundamental

liberties.’’

In Lendall v. Bryant, 387 F. Supp. 397, 402 (E.D. Ark.

1975), the court wrote that

‘‘a State may regulate and to some extent restrict

the access of independent candidates to the ballot.

... However, the measures adopted by the State must

not go beyond what the State’s compelling interests

actually require, and broad and stringent requirements

or restrictions with respect to would-be independent

candidates cannot stand where more moderate ones

would do as well.’’

This court made the same point in Bendinger v. Oglivie,

335 F. Supp. 572, 575 (N.D. Ll. 1971), when it pointed out

that

‘‘it must be shown that the state statute in ques-

tion is not only as fair as possible, but also that it in-

fringes upon the First Amendment rights of those

affected as little as practicable under the circum-

stances.

See also, Dunn v. Blumstein, 405 U.S. 330 (1972); Wil-

liams v. Rhodes, supra; Riddell v. National Democratic

Party, supra.

26a

In drafting the requirement for state-wide races, it must

be assumed that the legislature determined the minimum

showing of adherents necessary to satisfy the state interest

in screening out trivololus candidacies. The legislature

found that 25,000 signatures would demonstrate the

needed ‘*modicum of support.’’ Presumaby the 5% re-

quirement was drafted out of concern for smaller election

districts, where 25,000 voters would be a disproportionate

share of the electorate. The size of Chicago and Cook

County, however, create the anomaly that 25,000 signatures

may fall short of the 52 requirement.

It is not necessary to determine whether this legislative

draftmanship reflects carelessness or solicitude for the in-

terests of the major parties in Cook County and Chicago.

The court cannot find any rational reason why a petition

with identical signatures can satisfy the legitimate state

interests for restricting ballot access in state elections, and

yet fail to do the same in a lesser unit. Lendall v. Jernigan,

#LR-76-C-309 (f.D. Ark. 1/4/77). Any greater require-

ment than 25,000 signatures cannot be said to be the least

drastic means of accomplishing the state’s goals, and must

be found to unduly impinge the constitutional rights of in-

dependents, new political parties, and their adherents."

16. The plaintiffs argue that the proper quota for Chi-

cago should be calculated by applying the Chicago percent-

age of the statewide vote in 1976 to the 25,000 statewide

requirement. This would be 26.18% of 25,000 or 6,545. The

court’s function in this case is not to rewrite the election

code for the legislature, but to determine the outer limits

of a constitutionally acceptable ballot access limitation.

This cannot be determined without consideration of evi-

dence as to exclusionary effect of any signature require-

ment under 25,000.

re ee eet

pt Me

27a

VIi.

The April 4 Filing Deadline

As noted, the defendants have agreed to set April 4,

1977, as the filing deadline for petitions for both indepen-

dents and new political parties.” This date is 64 days prior

to the special mayoral election, and comes 15 days before

the major party primaries.

The plaintiffs’ attack on this time frame has two thrusts.

First, they argue that the 81 days it allows for circulation

of petitions is insufficient. Second, they claim that a pre-

primary deadline is too far removed from the election and

forces them to attempt to secure signatures in a political

vacuum.

Unlike the election codes of other states such as Pennsyl-

vania, Texas and California, the Illinois election laws do

not normally confine the circulation of petitions to any re-

stricted period. The circumstance of a finite 81 day-period

arises solely because the unexpected need for a special

election in effect created an ‘‘opening date’’ for petition

gathering. Thus this issue does raise a challenge to the nor-

mal functioning of the Illinois statute.

This opinion has already stressed that the constitution-

ality of a ballot access restriction cannot be properly de-

cided without consideration of the effect of the total regn-

latery scheme. As a consequence, the appropriateness of

an 81-day period is affected by this court’s determination

that no more than 25,000 signatures need he obtained by

plaintiff parties and candidates.

i7. This renders moot the plaintiffs’ challenge that the

separate statutory filing deadlines for independents and

new political parties are arbitrary, irrational and dis-

criminatory. :

28a

An 81-day circulation period for the collection of 25,000

or even fewer signatures appears to be within the limits

of constitutional tolerance, absent extraordinary circum-

stances. This opinion has quoted language from Storer v.

Brown, supra, at page 13, finding that a much more severe

requirement was likely to be permissible.

Relying on this passage, the court in Salera v. Tucker,

399 F. Supp. 1258 (E.D. Pa. 1975), held that, in the ab-

sence of special needs or other distinguishing cireum-

stances, Pennsylvania could require state-wide candidates

to obtain approximately 35,000 signatures within 21 days.

The instant 81-day period gives substantially more time

to the plaintiffs in which to obtain a smaller number of sig-

natures, although admittedly from a smaller pool of vot-

ers.’® As a result, absent an evidentiary showing that this

time period would significantly impede the access to the

ballot of a reasonably diligent party or candidate, the 81-

day period could not justify an order extending the filing

deadline. The court will not encroach on the legislative pre-

rogative of determining the most appropriate period within

constitutional limits. P

The question of remoteness from the actual election day

does raise a more viable argument. The issues are less

likely to be defined, and public interest is likely to be lower

when the actual election is far off. Several courts have

18. The Pennsylvania statute required 2% of the pre-

vious voter turnout for ballot access, in contrast with the

Illinois 5% requirement.

19. It is true that voter interest in a primary election

may be higher in districts where nomination by the ma-

jority party is normally ‘‘tantamount ”” to election. Still,

that interest may not reach its peak until the vote is immi-

nent.

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29a

stressed recently that a remote deadline does indeed un-

constitutionally affect the ability of new parties and inde-

pendents to mount a successful drive. Salera v. Tucker, su-

pra, at 1266; Lendall v. Bryant, supra, at 402; Bradley v.

Mandel, #T-76-638 (D. Md. 5/17/76); McCarthy v. Kirk-

patrick, supra, at 374.

The cases cited by the defendants do not dispose of this

line of holdings. While the Supreme Court allowed a cut-

off 120 days prior to the general election in American

Party of Texas v. White, supra, the Texas statute allowed

the circulation of petitions for 55 days after the primary.

Similarly, the deadline sanctioned in Storer v. Brown, su-

pra, 60 days prior to the general election, also permitted

post-primary gathering of signatures. More importantly,

Salera v. Tucker, supra, was summarily affirmed sub nom.

Tucker v. Salera, __ U.S. __, 44 USLW 3526 (3/22/76),

and is a binding statement of the law. Hicks v. Miranda,

422 U.S. 332 (1975).

It is true that the involid deadlines overthrown in Len-

dall and the other cases were far more remote than the

instant deadline. In Lendall petitions had to be submitted

two months before the primary and 210 days before the

general election. In McCarthy the Missouri law required

that the petitions be in 97 days before the primary. The

Maryland deadline in Bradley was 70 days before the pri-

mary and 239 davs before the general election. Salera up-

set a deadline seven weeks prior to the primary, and as

much as 218 days prior to the general election. By con-

trast, April 4th is only 15 days before the primary, and

4 days before the special election.

On the other hand, the courts in both Bradley v. Man-

dell and McCarthy v. Kirkpatrick accepted an analogy be-

tween an independent’s petition circulation and a major

party primary. While the comparison is not perfect, it is

30a

true that the petition campaign and the primary results

both determine the final composition of the election ballot.

This is the reason why the courts wil sanction sterner

quotas for third parties and independents than for candi-

dates in party primaries; the latter are not guaranteed a

place in the general election. As a result, a petition drive

for new parties and independents is in fact equivalent to

a primary.

It follows that the most fruitful time for gathering sig-

natures is likely to be during the closing days of the pri-

mary campaign, when public interest regarding the future

composition of the ballot is at a peak. The recent cases,

cited supra, make it clear that it would be a significant

burden on the plaintiffs to foreclose petition collection dur-

ing the heat of a primary campaign by establishing a pre-

primary filing deadline.”

This type of burden on the exercise of constitutionally

protected rights is subject to strict serntiny for a truly

compelling state justification for the impediment. Salera

and Bradley have rejected the argument that a pre-pri-

mary cut-off is necesary to protect the integrity of the

ballot from ‘independent’? eandidacies launched by indi-

viduals defeated in the primary. While the pre-conclusion

of spiteful splinter challenges may be essential to the

preservation of the party system, there are alternative

~ safeguards which are not so overinclusive. See also Storer

v. Brown, supra, at 724. In any event, this is not a real

problem as long as the deadline is not set after the primary

results are made known.

20. The three-judge court in Bradley permitted the

plaintiff to collect signatures until the date of the primary.

It added in a footnote that ‘‘Bradley may be entitled to

more, but that case is not before us and we do not decide

“””

3la

It is true that the Supreme Court has acknowledged that

the state needs to set up a filing cut-off date to provide time

for the verification of signatures, litigation of any chal-

lenges, and preparation of the final ballots. American

Party of Texas vy. White, supra, at 767, no. 18. However,

Salera and its progeny have held that the state does not

have carte blanche in fixing the cut-off. The date must be

justified by proof of the actual time needed to accomplish

the post-filing tasks.

In this regard, it is not irrelevant that the primary is

also fixed with regard to the time needed to consider post-

primary disputes as to the results and the conduct of the

vote.

In sum, the motion to dismiss the claims regarding the

filing deadlines must be denied. The appropriateness of

injunctive relief on this question will depend on the evi-

dent adduced as to urgency and possible compelling state

reason for setting the filing deadline prior to the April

19th primary.

VIII.

Summary

The complaints in these two cases state a claim for re-

lief with respect to both the signature requirements and

the petition filing deadlines imposed upon new political

parties and independent candidates in the forthcoming spe-

cial mayoral election. Accordingly, the defendants’ motions

to dismiss are hereby denied.

The court declares that any requirement of more than

25,000 signatures for the mayoral petitions of the plain-

tiffs is unconstitutional.

3o2a

Accordingly, it is ordered that the annals, John

Hanly, Marie H. Suthers, and Howard C. Medley, are per-

manently enjoined®! from enforcing those portions of Ill.

Rey. Stat. ch. 46 § 10-2 and §10-3 requiring that petitions

for offices serving less than the entire state contain more

than 25,000 signatures. It is further ordered that the de-

fendants, John Hanly, Marie H. Suthers, and Howard C.

Medley, are hereby enjoined to accept as valid those nomi-

nating petitions for new political parties and independent

candidates in the 1977 Special Mayoral Election which

contain at least 25,000 signatures if filed within the period

as allowed by law.

For the reasons stated herein, the court will stay deter-

mination of plaintiffs’ motion for an injunction estabish-

ing the signature requirement at less than 25,000, and for

an injunction changing the deadline for filing of plaintiffs’

petitions to a date less than 64 days removed from the gen-

eral election, pending presentation of further evidence.

The parties are requested to attend a pretrial conference

on Thursday, March 17, 1977, at 9:30 o’clock A.M., to dis-

cuss the scheduling of a hearing in these cases, and to

possibly reach a stipulated agreement for the regulations

pertaining to the instant special mayoral election.

ENTER:

United Statés District Jedee

DATED: March i4, 1977.

21. Injunetive relief on this point is appropriate at this

point. Any requirem ment over 25,000 is per se excessive in

light of the requirement for statewide office. There is thus

an absolute certainty of success on the merits for the plain-

tiffs on this claim. Without an injunction the plaintiffs will

be injured in the exercise of their constitutional rights.

There is no countervailing state or public interest in a de-

nial of immediate injunctive relief.

AD LISD L AG Et ANE MIN 8

ie Aei til \

aca EA anh SO a lic

33a

APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISLON

SOCIALIST WORKERS PARTY,

et al.,

Plaintiffs, |

vs.

CHICAGO BOARD OF ELECTION |

COMMISSIONERS, et al., NO. 77 C 255

Defendants. ‘ —

— NO. 77 C 326

GERALD ROSE, et al.,

Plaintiffs,

Vs.

JOHN H. HANLY, et a.,

Defendants. |

MEMORANDUM OPINION

The Illinois State Board of Elections, a defendant in

Board of Election Commissioners, has moved to vacate the

permanent injunction’ entered in that case and the com-

1. The injunction required the defendant members of the

Chicago Board of Election Commissioners to accept as

valid and sufficient petitions containing 25,000 signatures

nominating independent candidates and new political par-

ties in the 1977 Special Mayoral Election for the City of

Chicago.

34a

panion case of Rose v. Hanly, No. 77 C 326,? on March 14,

1977, as well as the subsequent order entered in these

eases on March 17, 1977.2 In support of its motion it has

submitted a legal memorandum containing an offer of

proot.

The instant complaints challenged the signature require-

ments and filing deadlines established fer independent can-

didates and new political parties seeking a place on the

ballot in the forthcoming special mayoral election in Chi-

cago. Both sets of plaintiffs and the defendant Chicago

Board of Election Commissioners filed voluminous briefs

on the legal issues raised by defendants’ motion to dismiss.

After consideration of these briefs, the court determined

as a matter of law that it was unconstitutional to require a

greater signature requirement of candidates and parties

seeking less than statewide office than the maximum re-

quirement set for statewide offices. Accordingly, the court

declared that any requirement of more than 25,000 signa-

tures for Chicago mayoral petitions was unconstitutional,

and entered a permanent injunction to that effect.

The defendant State Board raises various issues in its

brief, most of which have been discussed at some length in

the detailed memorandum opinion entered in these cases on

March 14, 1977.

2. The State Board was not named as a defendant in

Rose v. Hanly; however, it did receive copies of the briefs

submitted in that case.

3. The March 17th order reflected the agreement be-

tween the plaintiffs in Rose v. Hanly and the defendant

Chicago Board to set petition requirement for the 1977

Special Mayoral Election at 20,000, and to extend the filing

deadline to April 18th.

(es vee aid a

35a

The argument that this case was filed prematurely in

that it was brought before the originz! April 4, 1977, dead-

line was discussed at pages 7-8 of the memorandum opin-

ion. Defendant’s contention that the plaintiffs failed to

exhaust their administrative remedies by not contacting

the State Board prior to the filing of the lawsuit is of no

relevance to a constitutional attack on a state statute. In

any even, the State Board itself emphasizes that such re-

course would have been futile, since it stresses that it

would have upheld the signature requirements challenged

by the plaintiffs and found by this court to be unconstitu-

tional.

The State Board also argues that the principle of stare

decisis required that this court be bound by the decision of

the three-judge court in Jackson v. Ogivie, 325 F. Supp.

864 (N.D. Ill. 1971), which upheld the challenged ballot

access requirements. This was, of course, the primary legal

argument relied upon by the defendant Chicago Board of

Election Commissioners. The court considered this econ-

tention in the memorandum opinion at pages 11-20. It

noted that in the context of this action, a special mayoral

election rather than a regularly scheduled mayoral elee-

tion, made the ballot access requirement more arduous.

This is not denied by the State Board, although it does con-

tend that the requirements are not insuperable even in the

circumstances of a special election. The court gave other

reasons why the conclusion reached in Jackson was not

necessarily binding in this action.

Most importantly, the conclusion that the 5% require-

ment for Chicago mayoral candidates violated the equal

protection clause was based upon an argument which was

36a

not considered by the Jackson court. The court has great

respect for the principle of stare decisis,? but is not bound

by previous cases where different facts are alleged and

where new and persuasive legal arguments are raised.

The defendant State Board also argues that a permanent

injunction could not be entered without a hearing. This

contention fails to consider that the only injunctive relief

entered in these cases was based upon a question of law,

rather than any disputed issue of fact, and that both sides

had ample opportunity to argue in behalf of their respec-

tive positions.

The only facts related to the injunction were the undis-

puted points that the defendants had established the sig-

nature requirement of 35,947 for the special mayoral elec-

tion, and that the Illinois election laws require no more

than 25,000 signatures for ballot placement in statewide

offices. The court ruled that as a matter of law plaintiffs’

claims were to be evaluated under the ‘‘striet serutiny’’

standard of constitutional review, and that the state had

to choose th: ‘‘least restrictive alternative’ in setting

petition requirements designed to further its legitimate

purposes. The court could not find any rational reason why

a petition with identical signatures could satisfy these

state interests in statewide elections, and yet fail to do the

same in a lesser political unit, opinion at page 20. The de-

fendant Chicago Board did not advance any rational

4. This argument was mentioned in passing in a brief

by the defendants but was ignored in both the majority

and dissenting opinion in Jackson.

5. The four additional cases cited by the defendant State

Board as support for the state ballot requirements were

all diseussed at length in this court’s memorandum opinion.

37a

reason for this greater burden on less-than-statewide can-

didates, nor are any advanced by the defendant State

Board.

The injunction and declarative relief entered by the

court was limited to this one finding of law based on undis-

puted facts. The defendant State Board cannot argue that

it was entered without an opportunity to be heard. It was

aware of the arguments raised in the plaintiffs’ complaint

and in plaintiffs’ briefs, as well as the responses made by

the defendant Chicago Board in behalf of their mutual po-

sition. It had the chance to file its own briefs on this issue,

and chose not to do so. Since there was no factuai dispute, a

hearing would have been meaningless following the exten-

sive legal argumnts on briefs.

The remaining relief sought by the plaintiffs, a still

greater reduction in the signature requirement and an ad-

vancement of the filing deadline, were found by the court

to reflect a valid cause of action. However, the court found

that these claims did raise factua! questions, and that in-

junctive relief could not be granted without further evi-

dence. The argument that a hearing is needed before the

determination of these claims is therefore correct, but

irrelevant.

In summary, the court did have jurisdiction to consider

the instant cases, which presented a ripe controversy be-

tween the parties. The decision of Jackson v. Ogilvie, su-

pra, was not binding upon the court in this action, since

the plaintiffs raised new factual and legal issues. The in-

junction entered on March 14, 1977, was limited to one

issue where there was no factual dispute, and upon which

both sides had been given ample opportunity to express

their views. The subsequent order of March 17th reficted

an agreement between the plaintiffs in case No. 77 C 326

38a

and ‘he defendants therein. The 20,000 signature require-

ment and the April 18th filing deadline agreed to by the

parties do not represent any conclusion by the court as

to the limits of a constitutionally permissible ballot restric-

tion scheme.®

Accordingly, the motion of the defendant Illinois State

Board of Election Commisioners to vacate the orders en-

tered in these cases on March 14, 1977, and March 17,

1977, is hereby denied.

ENTER:

/s/ BERNARD M. DECKER

United States District Judge

DATED: April 6, 1977.

6. The court agrees with the State Board that it is not a

judicial function to legislate a ballot access statute. How-

ever, it does have the power to find that restrictions on first

amendment rights are violative of the equal protection

clause. In sum, a court may only set the outer limits of a

permissible statutory scheme, leaving the specifics to legis-

lative discretion.

39a

APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

KASTERN DIVISION

GIRALD ROSE, et al., >

Plaintiffs,

Vs. ‘ NO. 77 C 326

JOHN H. HANLY, et al.,

Defendants. ;

ORDER

This matter coming on to be heard by the Court, the

Court hereby finds and orders that solely as applied to the

Special Mayoral Election to be held in Chicago on June 7,

1977 that:

(A) The number of signatures required to fulfill the five

percent signature requirements of Ill. Rev. Stat., Ch. 46,

Par, 10-2 to qualify for placement on the ballot as a new

political party in the Special Mayoral Election shall be

20,000 signatures.

(B) The number of signatures required to fulfill the five

percent signature requirements of Ill. Rev. Stat., Ch. 46,

Par. 10-3 to qualify for placement on the ballot as an inde-

pendent candidate in the Special Mayoral Election shall

be 20,000 signatures.

party or as an independent candidate in the Special May-

oral Klection shall be April 18, 1977.

ENTER:

JUDGE

DATED: March 17, 1977.

40a

APPENDIX E

Chap. 46, Ill. Rev. Stat. (1979), See. 10-2

§ 10-2. The term ‘‘political party,’’ as hereinafter

used in this Article 10, shall mean any ‘‘established

political party,’’ as hereinafter defined and shall also

mean any political group which shall hereafter under-

take to form an established political party in the man-

ner provided for in this Article 10: Provided, that no

political organization or group shall be qualified as a

political party hereunder, or given a place on a ballot,

which organization or group is associated, directly or

indirectly, with Communist, Fascist, Nazi or other un-

American principles and engages in activities or pro-

paganda designed to teach subservience to the political

principles and ideals of foreign nations or the over-

throw by violence of the established constitutional

form of government of the United States and the State

of Illinois.

A political party which, at the last general election

for State and county officers, polled for its candidate

for Governor more than 5% of the entire vote cast for

Governor, is hereby declared to be an ‘‘established po-

licial party’’ as to the State and as to any district or

political subdivision thereof.

A political party which, at the last election in any

congressional district, legislative district, county,

township, school district, park district, municipality

or other district or political subdivision of the State,

polled more than 5% of the entire vote cast within

such congressional district, legislative district, county,

township, school district, park district, municipality,

or political subdivision of the State, where such dis-

trict, political subdivision or municipality, as the case

may be, has voted as a unit for the election of officers

to serve the respective territorial area of such district,

political subdivision or municipality, is hereby de-

clared to be an ‘‘established political party’’ within

the meaning of this Article as to such district, political

subdivision or municipality.

4la

Any group of persons hereafter desiring to form a

new political party throughout the State, or in any

political subdivision greater than a county and less

than the State, shall file with the State Board of Elec-

tions a petition, as hereinafter provided; and any such

group of persons lereatter desiring to form a new

political party, in any county shall file such petition

with the county clerk; and any such group of persons

hereafter desiring to form a new political party in any

municipality or district less than a county shall file

such petition with the clerk or Board of Klection Com-

missioners of such municipality or district, as the case

may be. Any such petition for the formation of a new

political party throughout the State, or in any sueli

district or political subdivision, as the case may be,

shall declare as concisely as may be the intention of

the signers thereof to form such new political party

in the Siate, or in such district or political subdivision ;

shall state in not more than 5’ words the name of such

new political party; shall contain a complete list of

candidates of such party for all offices to be filled in

the State, or such district or political subdivision as

the case may be, at the next ensuing election then to

be held; and, if such new political party shall be

formed for the entire State, shall be signed by not less

than 25,000 qualified voters: Provided, that no more

than 13,000 signatures from the same county may be

counted toward the required total of 25,000 signa-

tures. If such new political party shall be formed for

any district or political subdivision less than the en-

tire State, such petition shall be signed by qualified

voters equali>g in number not less than 5% of the

number of veters who voted at the next preceding gen-

eral electior im such district or political subdivision

in which such district or political subdivision voted as

a unit for the election of officers to serve its respective

territorial area.

The filing of such petition shall constitute the politi-

eal group a new political party, for the purpose only

of placing upon the ballot at such next ensuing elec-

42a

tion such list of party candidates for offices to be voted

for throughout the State, or for offices to be voted for

in such district or political subdivision less than the

State, as the case may be, under the name of and as

the candidates of such new political party.

If, at such ensuing election, the new political party’s

candidate for Governor shall receive more than 5%

of the entire votes cast for Governor, then such new

political party shall become an ‘‘established political

party’’ as to the State and as to every district or po-

litical subdivision thereof. Lf, at such ensuing election,

the other candidates of the new political party, or any

other candidate or candidates of the new political

party shall receive more than 5% of all the votes cast

for the office or offices for which they were candidates

at such election, in the State, or in any district or po-

litical subdivision of the State, as the case may be,

then and in that event, such new political party shall

become an ‘‘established political party’’ within the

State or within such district or political subdivision

less than the State, as the case may be, in which such

candidate or candidates received more than 5% of the

votes cast for the office or offices for which they were

candidates. It shall thereafter nominate its candidates

for public oifices to be filled in the State, or such dis-

trict or political subdivision of the State, as the case

may be, under the provisions of the laws regulating

the nomination of candidates of established political

parties at primary elections and political party con-

ventions, as now or hereafter in force.

A political party which continues to receive for its

candidate for Governor more than 5% of the entire

vote cast for Governor, shall remain an ‘‘established

political party’? as to the State and as to every dis-

trict or political subdivision thereof. But if the politi-

cal party’s candidate for Governor fails to receive

more than 5% of the entire vote cast for Governor,

or if the political party does not nominate a candidate

for Governor, the political party shall remain an ‘‘es-

tablished political party’’ within the State or within

43a

such district or political subdivision less than the

State, as the case may he, only so long as, and only in

those districts or political subdivisions in which, the

candidates of that political party, or any candidate or

candidates of that political party, continue to receive

more than 5% of all the votes cast for the office or

offices for which they were candidates at succeeding

genera! elections within the State or within any dis-

trict or political subdivision of the State, as the case

may be.

Any such petition shall be filed at the same time and

shall be subject to the same requirements and to the

same provisions in respect to objections thereto and to

any hearing or hearings upon such objections that are

hereinafter in this Article 10 contained in regard to

the nomination of any other candidate or candidates

by petition. If any such new politieal party shall be-

come an ‘‘established political partv’’ in the manner

herein provided, the candidate or candidates of such

new political party nominated by the petition herein-

above referred to for such initial election, shall have

power to select any such party committeeman or com-

mitteemen as shall be necessary for the creation of a

provisional party organization and provisional man-

aging committee or committees for such party within

the State, or in any district or politieal subdivision in

which the new political party has hecome established

and the party committeeman or committeemen so se-

ected shall constitute a provisional party organization

for the new political party and shall have and exercise

the powers conferred by law upon any party commit-

teeman or committeemen to manage and control the

affairs of such new political party until the next en-

suing primary election at which the new political party

shall he entitled te nominate and elect any party com-

mitteeman or committeemen in the State, or in such

district or political subdivision under any parts of this

Act relating to the organization of political parties.

[Amended br Public Act 78-918, effective October 1,

1973. ]

44a

APPENDIX F

Chapter 46, Ill. Rev. Stat. (1975), See. 10-3

§ 10-3. Nomination of independent candidates (not

candidates of any political party), for any office to be

filled by the voters of the State at large may also be

made by nomination papers signed in the aggregate

for each candidate by not less than 25,000 qualified

voters of the State; Provided, however, that no more

than 13,000 signatures from the same county may be

counted toward the required total of 25,000 signatures.

Nominations of independent candidates for public of-

fice within any district or political subdivision less

than the State, may be made by nomination papers

signed in the aggregate for each candidate by quali-

fied voters of such district, or political division, equal-

ing not less than 59%, nor more than 8° of the number

of persons, who voted at the next preceding general

election in such district or political sub-division in

which such district or political sub-division voted as a

unit for the election of officers to serve its respective

territorial area; Provided, that the maximum number

of voters signing such petition may be increased to 25

whenever such amount is greater than the 8% limit

hereinabove specified. For the first election following a

redistricting of congressional districts, nomination pa-

pers for an independent eandidate for congressman

shall be siened by at least 5,000 onalified voters of the

congressional district. For the first election following

a redistricting of legislative districts, nomination pa-

ners for an independent candidate for State Senator

or Representative in the General Assembly shall he

signed hy at least 3,000 analified voters of the legisla-

tive district. Fach voter signing a nomination paper

shall add to his signature his place of residence, and

each voter mav subserihe to one nomination for sneh

office to he filled, and no more: Provided that the name

of anv candidate whose name may anpear in anv other

place upon the ballot shall not he so added by petition

for the same office.

45a

In the case of the offices of Governor and Lieutenant

Governor a joint petition including one candidate for

each of those offices must be filed.

Kivery petition for nomination of an independent

candidate for any office for which candidates of estab-

lished political parties are nominated by primary shall

be filed at the time designated in Section 7-12 of this

Act in regard to the nomination by primary of any

other candidate for such office [Amended by PA 79-

1100, effective October 1, 1975.]

46a

APPENDIX G

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES

UNITED STATES ‘COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

ILLINOIS STATE BOARD OF ,

KM LECTIONS, No. 77-1475,

Intervernor-Defendant 77-1476

Appellant, (Consolidated)

vs. U.S.C.A. - 7th

GERALD ROSE, MELVIN > Circuit

JOHNSON, RICHARD LEEBOVE, Received in

U.S. LABOR PARTY, Cierk’s Office

JOHN BROWN, and Jan. 5 - 1978

MITCHELL HIRSCH, Thomas F. Strubbe

Plaintiffs-A ppellees. } Clerk

NOTICE OF APPEAL TO THE SUPREME

COURT OF THE UNITED STATES

NOTICE is hereby given that Illinois State Board of

Elections, Intervenor-Defendant Appellant above-named,

hereby appeals to the Supreme Court of the United States

from the final Order of the United States Court of Appeals

for the Seventh Cireuit entered in this action on December

9, 1977.

47a

This appeal is taken pursuant to Title 28, United States

Code, Section 1254(2).

DATED: January 5, 1978.

/s/ MICHAEL L. LEVINSON

/s/ MICHAEL E. LAVELLE

/s/ FRANKLIN J. LUNDING, JR.

Attorneys For Illinois State

Beard of Elections

100 N. LaSalle Street

Room 300

Chicago, Illinois 60602

(312) 435-6440

« re

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