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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1979
- **Citation:** 440 U.S. 173

## Text

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IN THE }
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

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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.

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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

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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.

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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.

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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
Case No. 77 © 255, Socialist Workers Party v. Chicago
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.

(C) That the last date for filing either as a new political
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.

.
|
4
te

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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0878%3A01. Public record. Not legal advice.