Amicus Curiae Brief — Norman v. Reed

(Y . > Jl

Nos. 90- 6, 90-1435 Consoli ated

IN THE

Supreme Court of the United States

OCTOBER TERM, 1991

- BARBARA J. NORMAN, ef ai..

VS.

DOROTHY REED, et ai..

Petitioners,

Respondents.

COOK COUNTY OFFICERS ELECTORAL BOARD, et al.

vs. Petitioners,

DOROTHY REED, et ai.,

Respondents.

ON WRIT OF CERTIORARI

TO THE SUPREME COURT OF ILLINOIS

BRIEF OF THE AMERICAN

CIVIL LIBERTIES UNION OF ILLINOIS

AS AMICUS CURIAE IN SUPPORT OF PETITIONERS

WILLIAM T. BARKER JOHN A. POWELL

(Counsel of Record) STEVEN R. SHAPIRO

GERALD E. FRADIN American Civil

Sonnenschein Nath & Liberties Union

Rosenthal! 132 West 43rd Street

8000 Sears Tower New York, New York 10036

Chicago, Illinois 60606 (212) 944-9800

(312) 876-8000 ARTHUR N. EISENBERG

HARVEY M. GROSSMAN New York Civil

Roger Baldwin Foundation Liberties Union

of ACLU, Inc. 132 West 43rd Street

20 East Jackson Boulevard New York, New York 10036

Suite 1600 (212) 382-0557

Chicago, Illinois 60604

(312) 427-7330

Attorneys for Amicus Curiae

Mernl! Corporation « Chicage - 312-910-2700

TABLE OF CONTENTS

Page

kt F _ eee EE l

IEE CI DUNNE vininsscrsicnsinncsnnccsconnssioenectenseseeenouccess l

INTRODUCTION AND SUMMARY OF ARGUMENT ......... 7

SIT cihichreietitniencrniinstensineeesnsinsteeneionersndaeetentnicntesinvenianddsestons 10

I. THE REQUIREMENT THAT A PARTY MUST HAVE

SUPPORT IN ALL DISTRICTS OF A SUBDIVISION

BEFORE IT MAY RUN CANDIDATES IN ANY PORTION

OF THE SUBDIVISION UNCONSTITUTIONALLY

INFRINGES THE RIGHT OF POLITICAL

ASSOCIATION, ESPECIALLY WHERE THE

DISTRICTS ARE OF UNEQUAL POPULATION .......... 11

A. By Requiring Equal Numbers of Signatures

From Districts of Substantially Disparate

Population, Illinois Violates the

Requirement of Voter Equality in Selection

IID vicsniidsiicnicdsrcmesccainesnnscsoneecsneccesees 12

B. [linois Also Grants an Improper Preference

to Parties Whose Members Are Geographically

STII ddinstacencehtubsnpetnenintghsthinbinnnnsetdinetenenstessen 16

Il. ILLINOIS HAS UNCONSTITUTIONALLY INFRINGED

ON THE RIGHT OF THE HWP TO ASSOCIATE WITH

THE HWP CANDIDATES FOR THE PURPOSE OF

EXPANDING ITS ACTIVITIES INTO AN ADDITIONAL

SIIIIIIEIECUIIDTIIT ssnciencntssntrinsecnnsncsenneanscestiheentinestenncennees 19

III ci cncntincissistnstnntndescratcasevetantmistenissuieesiciiansenenmis 24

TABLE OF AUTHORITIES

Cases:

Page

Anderson v. Celebrezze, 460 U.S. 780 (1983)......... 8, 12, 16, 18

Bloomquist v. Thompson, 739 F.2d 525

CERI CAR, FERED cccoccosrncesnnssecnntinsiisitesisidanscae an 15

Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. Pee ncuniapiusinhinds 22

Buckley v. Valeo, 424 U.S. 1 (1976). ceccccccccccccscoceceeecoeees., 11, 15

Cavanaugh v. Schaeffer, 65 Pa. Commw. 620, 444

A.B BSED (9GGED «.ccrccoissecasasinnciiicimnideiaiiiaamtan ant 15

Communist Party v. State Board of Elections,

518 F.2d 517 (7th Cir.) cert. denied, 423 U.S. 986 (1975)...... 15

Democratic Party v. Wisconsin ex rel.LaFollette, 450

U.S. BG (BBBE) .....1<ccccvenssosetetenieonsenmcsiniiin imine 20

Elrod v. Burns, 427 U.S. 347 (1976) voccccccccccscssececcceoececeseeeee... 11

Eu v. San Francisca Democratic Comm.,

SED US. 206 (IDG nccrccnsccesnsocsntissessiniiiei rn 12, 19

Evans v. Cornman, 398 U.S. 419 (1970) ooocccccccccecececeeeceeeee-.... l

Gartrell v. Knight, 546 F. Supp. 449 (N.D. Ala. 1982)... 22

Gray v. Sanders, 372 U.S. 368 (1963) oo.cccccccccccceccececeoeeceee.., 13

Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978)... 22

Illinois State Board of Elections v. SocialistWorkers Party,

440 US. 873 CODFDD ..ccccecnsccssistiussisaiemiaaaens 8, 10

Jeness v. Fortson, 403 U.S. 431 (1971) cocccccccccccceccccc 10

TABLE OF AUTHORITIES - Continued

Page

Johnson v. Cuomo, 595 F. Supp. 1126 (N.D.N.Y. 1984) ........ 18

Kusper v. Pontikes, 414 U.S. $1 (1973) ........ccccccccccccceeee 11, 23

Libertarian Party v. Beerman, 598 F. Supp. 57

EE 15

Libertarian Party v. Bond, 764 F.2d 538 (8th Cir. 1985) ........ 18

Libertarian Party v. Davis, $91 F. Supp. 1561

(E.D. Va. 1984), aff'd 766 F.2d 865 (4th Cir. 1985)

cert. denied, 475 U.S. 1013 (1984) oo... cccccccccceeeereneeen 18

Lubin v. Panish, 415 U.S. 709 (1974) 000.0... cccccccccecceeeereees 7, 11

Moore v. Ogilvie, 394 U.S. 814 (1969) oo... cccccccecereees 13

Morritt v. Governor, 42 N.Y .2d 347, 397 N.Y.S.2d 929, 366

N.E.2d 1285 (1977), appeal dismissed for want of a substantial

federal question, 434 U.S. 1029 (1978) ........ccccccee, 18, 19

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) .... 11

Powell v. McCormack, 395 U.S. 486 (1969) oo... 7

Rosario v. Rockefeller, 410 U.S. 7§2 (1973) .o..ccccccccccccccccceeeees 18

Socialist Labor Party v. Rhodes, 318 F. Supp. 1262 (S.D. Ohio

1970), aff d mem., 409 U.S. 942 (1972) ......cccccccccccceccceseceeeeene 15

Socialist Workers Party v. Hare, 304 F. Supp. 534

EEE 15

iv

TABLE OF AUTHORITIES - Continued

Page

Socialists Workers Party v. Rockefeller, 314 F. Supp. 984

(S.D.N.Y. 1970), aff'd mem., 400 U.S. 806 (1970) .....00..000000.. 15

Stevenson v. State Board of Elections, 638 F. Supp. 547

(N.D. il. 1986), aff'd 794 F.2d 1176 (7th Cir. 1986) ...0000000...... 3

Sutton v. Dunne, 681 F.2d 484 (7th Cir. 1982) cert. denied,

EET ae, 2

Tashjian v. Republican Party, 479 U.S. 208 (1986) .... 11, 19, 20

Udall v. Bowen, 419 F. Supp. 746 (S.D. Ind. 1976), aff'd mem.,

SF ae Sr Ce iaiiaiaeninnittecictitencictntcinnisiitnncietdintinaiitasiinin 18

Vasquez v. Municipal Officers Electoral Board, 115 Ul. App. 34

1014, 450 N.E. 2d 1379 (3rd Dist. 1983) .0..0........cccccccccccceseees 23

Wesberry v. Sanders, 376 U.S. 1 (1964) .o...0.. o.oo 12

Williams v. Rhodes, 393 U.S. 23 (1968) ........c.cccccccccceeeeees 11, 12

Williams v. Sclafani, 444 F. Supp. 906 (S.D.N.Y. 1978),

aff d mem., S08 F.2d 1046 (2nd Cir. 1978)... cece. 22

STATUTES AND CONSTITUTIONS

fil. Const., Transition Schedule § 5(b) ................ccccceecceseeeeeeeees l

Dlinois Election Code, Ill. Rev. Stat. Ch. 46, § 10-2 (1989) .. 2-4

Hlinois Election Code, Ill. Rev. Stat. Ch. 46, § 10-5 (1989) ..... 5

OTHER AUTHORITIES

Se Ee 7

INTEREST OF THE AMICI

- The American Civil Liberties Union (ACLU) is a national

organization with nearly 300,000 members. The American Civil

Liberties Union of Illinois (ACLU of Dlinois) is the Illinois affiliate

of the ACLU. The ACLU and its affiliates have been traditionally

devoted to the protection and enhancement of fundamental liberties

and basic civil rights.

Within a representative democracy, no right is more funda-

mental than the “equal right to vote.” Evans v. Cornman, 398 U.S.

419, 426 (1970). Accordingly, this Court has repeatedly recognized

the importance of nights of electoral participation and political

association.

The instant controversy, involving the constitutionality of

Illinois’ procedures for creation and expansion of local political

interests. Indeed, it is the position of amici that Dlinois’ procedures

impermissibly abridge these fundamental nghts of political expres-

sion and association. Amici respectfully submir this brief to advance

their position to this Court.

STATEMENT OF FACTS

Officials of Cook County, Illinois are elected from three

constituencies. Some, including the President of the County Board,

the State’s Attorney, the Sheriff, and the County Clerk are elected

from the county as a whole. Members of the County Board have been

elected from two districts, one constituting the portion of the county

within the City of Chicago (“City District”) and one constituting the

portion of the county outside that city (“Suburban District”).' Il.

' The City of Chicago is not entirely contained within Cook County. The

territory of the City includes O'Hare International Airport, and a portion of the

Airport lies in DuPage County.

Const., Transition Schedule§ 5(b). The two districts have disparate

populations,’ so that in 1990 the more populous City District elected

ten members at large and the Suburban District elected seven mem-

bers at large.’ See Sutton v. Dunne, 681 F.2d 484 (7th Cir. 1982) cert.

denied, 460 U.S. 1081 (1983) (reapportioning Board members).

Illinois law provides two ways in which political parties may

place before the electorate candidates for these offices. If one or more

of a party's candidates for state wide office at the last general election

for such offices polled more than 5% of the entire vote cast for that

office, the party is an “established political party’ as to the state and

as to any district or political subdivision thereof.” Election Code,

§ 10-2, Ill. Rev. Stat. Ch. 46, § 10-2 (1989) (emphasis added).* A

political party which is not established statewide may still be estab-

lished in a particular subdivision, such as Cook County, if one or more

of its candidates in that subdivision at the most recent election

received more than 5% of the total votes cast for the offices sought.

2 At the 1980 Census, the population of the City of Chicago was 3,005,072

and the population of Cook County was 5.253.628. State & Metropolitan Area Data

Book, 82, 400 (U.S. Government Printing Office 1986). Thus, the population of

suburban Cook County was roughly 2.250.000. In 1986, the last election for the

County Board prior to 1990, there were 1,476,370 votes cast, 841,085 in the City

District and 635,285 in the Suburban District. Brief of Respondents Dorothy Reed.

Valerie A. Sutton, Patton L. Fletcher, Ervin S. Ricks, and David Barrera in

Opposition (“Br. In Opp.”) 7. (The Petition for Writ of Certiorari in No. 90-1126

will be referred to as “HWP Pet.” and that in No. 90-1435 will be referred to as

“Board Pet”)

> At the November 1990 election, voters approved a binding referendum

providing for election of all members of the County Board from 17 single-member

districts. The first election of that sort will be in 1994.

* The Election Code is contained entirely within Chapter 46 of the Illinois

Revised Statutes, and the section numbers therein are identical to the Code’s own

section numbers. Accordingly, 0 furthe: parallel cites to the Illinois Revised

Statutes will be given.

Id. Established political parties nominate candidates in primary

elections and the names and party designations of those nominees

then appear on the general election ballot. /d. § 7-1 et. seq. Parties

which are not established are designated minor parties and must

nominate candidates by petition. /d. § § 10-1 et seq.

In 1990, there were three parties established statewide: the

Democratic Party, the Republican Party, and the Solidarity Party.’

No other political parties were established in Cook County. In

addition to the three statewide parties, the Harold Washington Party

(“HWP”) was established in the City of Chicago. (HWP Pet. 6.)

However, the status of the HWP in Chicago did not entitle it to

nominate candidates for Cook County offices, even those elected

from the City District.

A minor party seeking to nominate candidates by peution must

set forth “a complete list of candidates of such party for all offices to

be filled in the .. . . political subdivision at the next ensuing elec-

tion.” Election Code § 10-2. As interpreted by the Illinois Supreme

Court in this case, this provision requires a party seeking to present

any candidates to the voters of Cook County to nominate candidates

for all of the countywide positions and all positions on the County

> The Solidarity Party was formed in 1986 when Adlai Stevenson [I] was

nominated for Governor by the Democratic Party and found the candidates

nominated for Lieutenant Governor and Secretary of State unacceptable running

mates. By the time of the primary election, it was no longer possible to qualify for

the ballot as an independent candidate, so formation of a new political party was

necessary to run without associating with the unacceptable candidates. See

Stevenson v. State Board of Elections, 638 F. Supp. $47 ‘™.D. Ill. 1986), aff'd794

F.2d 1176 (7th Cir. 1986). A subsequent effort to merge the Solidarity Party into

the Democratic Party was vetoed by Governor James Ti» apson, the candidate who

defeated Stevenson. Solidarity Party Gets A Reprieve: Thompson's Veto Action

Will Let it Die A Natural Death, Chicago Tribune, Sept. 25. 1987, at 24. Thus.

although now abandoned by its founders, the Solidarity Party has continued to hold

pmmary elections and will continue to do so as long as the occasional nominees

receive the necessary votes. There is a dispute as to whether the votes received at

the 1990 election were sufficient to allow that party to remain established. The

Attorney General of Illinois bas opined that it did not receive sufficient votes.

Board, both from the City District and from the Suburban District.

(Board Pet. App. 4a.)

Because Cook County is “a political subdivision in which

officers are to be elected from districts and at-large,” the nominating

petition is required “to consist of separate components for each

district from which an officer is to be elected.” /d. Thus, a petition

to nominate minor party candidates in Cook County was required to

contain three components: one for the county at large, one for the City

District, and one for the Suburban District.’

Formation of a new political party for the entire state requires

signatures of “1% of the number of voters who voted at the next

preceding statewide general election or 25,000 qualified voters,

whichever is less.” /d. To form a new party in a political subdivision

of the State, a nominating petition must be

signed by qualified voters equaling in number not less

than 5% of the number of voters who voted at the next

preceding regular election .. . However, whenever the

minimum signature requirement for a district or political

subdivision new political party petition shall exceed the

minimum number of signatures for Statewide new politi-

cal party petitions at the next preceding Statewide general

election, such Statewide petition signature requirement

shall be the minimum for such district or political subdi-

vision new political party petition.

Id.

Based on the votes cast in the 1986 election, 5% of the votes

cast would have been 73,818 for Cook County as a whole; 42,054 for

the City District; and 31,764 for the Suburban District. However,

because the statewide minimum was limited to 25,000, that number

6 In 1994, 18 components will be required, one at-large and one in each of

the 17 County Board Distncts.

would also suffice for each component of the petition. But the two

districts are mutually exclusive, so the requirement of 25,000 signa-

tures on each component means that the entire petition must contain

at least 50,000 signatures, double the number required for a statewide

petition.’

Nominating petitions for minor party candidates are required

to specify the name of the party represented by the candidates.

“However, such party shall not bear the same name as, nor include the

name of any established political party.” Election Code § 10-5.2.

There is no provision whereby a party established in one political

subdivision, such as the City of Chicago, may nominate candidates

under its own name or authorize an affiliated group to nominate

candidates under that name in another political subdivision, such as

Cook County.

At issue in this case is a duly filed petition seeking to nominate

petitioners Barbara Norman, et al. (“HWP Candidates”) as candidates

of the HWP for the various offices of Cook County to be elected at the

November, 1990 election. Those petitions bore roughly 44,000

signatures from the City District and roughly 7,800 from the County

District. (Board Pet. App. 46a). The HWP was formed by those

unhappy with what they felt was inadequate responsiveness of the

Chicago and Cook County Democratic Party to the concerns of the

African-American community. (HWP Pet. 6.)

Objections to the petitions were filed by Respondents Dorothy

Reed, Valerie A. Sutton, Patton L. Fletcher, Ervin S. Ricks, and

David Barrera (“Objectors”). (J.A. 6.) So far as pertinent here,

Objectors challenged (1) the failure of the petition to contain suffi-

cient signatures on its Suburban District component and (2) use of the

HWP name. (J.A. 6.)

7 In 1994, with the establishment of single-member County Board Distncts.

the total required would be 5% of the total vote in the 1990 election. Had that

system been in effect in 1990, it would have required a total of 73,818 signatures.

almost triple the requirement for a statewide petition.

The sole evidence on use of the HWP name indicated that the

nominations were made on behalf of an affiliate of the established

HWP and with the consent of Tim Evans, the sole candidate of the

established HWP and the person authorized by State law to appoint

party committees pending their election in the 1992 primary. (Board

Pet. App. 40a.)

The Cook County Officers Electoral Board ruled that the HWP

candidates were entitled to use the HWP name. (Board Pet. App. 41a.)

Because the Suburban District component had insufficient signa-

tures, it ruled that the Suburban District Candidates could not appear

on the ballot. (Board Pet. App. 48a.) But because the at-large

component and the City District component did have sufficient

signatures, it ruled that the other HWP candidates could appear on the

ballot for the at-large and City District offices. (Board Pet. App. 47a-

48a.)

The Objectors appealed, and the Circuit Court of Cook County

ruled that none of the HWP candidates could appear on the ballot.

(Board Pet. App. 22a-24a.) It ruled that the lack of sufficient

signatures on the Suburban District component was fatal to the

remaining components of the petition. (Board Pet. App. 23a-24a.)

That order was stayed by the Illinois Appellate Court, thus leaving the

Electoral Board order in effect. (J.A. 116.)

The Llinois Supreme Court, granted direct review and, on a 4-

3 vote, affirmed. (Board Pet. App. 2a-Sa.) The majority ruled that use

of the HWP name violated § 10.5 of the Election Code and that failure

to file sufficient signatures on the Suburban District component was

fatal to the entire petition. (Board Pet. App. 4a.) The stay previously

entered was vacated. (Board Pet. App. 4a.)

This Court stayed the [linois Supreme Court's order, thus

leaving the Electoral Board order in effect. (J.A. 118.) The HWP

candidates appeared on the ballot, and one of them received 15.4% of

the votes cast for the office she sought. Official Canvas of the Votes

7

Cast at the November 6, 1990 General Election (Cook County Clerk

1990). Thus, if the HWP was entitled to appear on the ballot, it has

become an established political party in Cook County, entitled to

nominate candidates at the next election.

INTRODUCTION AND SUMMARY OF ARGUMENT

Representative democracy rests upon the “consent of the

governed” and this “consent” is, in turn, obtained by permitting the

people to freely and fairly choose their political leaders. Alexander

Hamilton observed that the essence of representative government is

“that the people should choose whom they please to govern them.” 2

Elliot's Debates 257.

This unexceptional proposition was also explored by Chief

Justice Warren who noted that representative democracy “is under-

mined as much by limiting whom t+ veople can select as by limiting

the franchise itself.” Powell v. McCormack, 395 U.S. 486, 547

(1969). Accordingly, our contemporary claim of commitment to

democratic government has a hollow ring when we design laws that

fail to confer upon our citizens the widest possible freedom to choose

among the candidates seeking public office.

“{A] voter hopes to find on the ballot a candidate who comes

near to reflecting his policy preferences on contemporary issues.”

Lubin v. Panish, 415 U.S. 709, 716 (1974). “This does not mean

every voter Can be assured that a candidate to his liking will be on the

Dallot,” Dul a state may not discriminatorily obstruct the ability of

ike Tuaded ciuzens to put their candidates before the electorate. /d.

| Manor partes are unduly limited in their access to the ballot,

=@, ters are left without adequate alternatives to what they may

; ) S€ umsatisfactory offerings of the major parties. But the

ugmficance of ballot access is not measured solely by the ability of

* party Gomunees to be elected, for that would ignore

‘he Signuficant role that third parties have played in the

poliucal development of the Nation. Abolitionists,

Progressives, and Populists have undeniably had influ-

ence, if not always electoral success. As the records of

such parties demonstrate, an election campaign is a

means of disseminating ideas as well as attaining politi-

cal office. Overbroad restrictions on ballot access jeop-

ardize this form of political expression.

Illinois State Board of Elections v. Socialist Workers Party, 440

U.S. 173, 185-86 (1979) (citations omitted); Anderson v. Celebrezze,

460 U.S. 780, 787-88, 794 (1983). .

Minor parties also serve, as the HWP may do, as an alternative

means of political expression for constituencies dissatisfied with a

party to which they have previously adhered. If a constituency is large

enough or the new party forms coalitions with other voters, the new

party may itself become a major force. The renewed need of the old

party to compete for once-reliable adherents also may alter the

positions of that party, thus improving the lot of the formerly

dissatisfied group. The new party may instead alert another major

party to an electoral opportunity, thereby facilitating a transfer of

allegiance in return for greater attention to the constituency which the

new party sought to represent. For all of these reasons, the ability to

associate by forming or expanding new parties is of fundamental

importance to all citizens and is a significant factor in the democratic

dynamic which keeps government and the political system account-

able to the electorate.

A state may not broadly stifle this process by unduly burdening

or restricting the formation of new political parties. Even less may it

skew the process by granting some voters greater weight than others

or by making it easier for some groups to form new parties than for

other groups which are similarly situated with respect to the electoral

process. Illinois has done both of these forbidden things. It has given

greater weight to suburban voters by requiring equal numbers of

signatures from the City District and the Suburban District, even

though the latter is significantly less populous. Illinois has also

preferred groups with substantial followings in both districts over

more geographically concentrated and insular groups, such as the

Cook County African-American community, which is predomi-

nantly located in the City District.

The second of these impermissible effects stems from the

combination of two rules that, were each taken alone, might well be

unobjectionable. One is the requirement that a new party show a

modicum of support in each district where it nominates candidates

rather than accepting such a showing for the entire subdivision of

which the districts are a part. The other is the requirement that a new

party nominate candidates for all positions in all districts. If Illinois

accepted an overall showing of support for the entire County, then the

requirement torun candidates in all districts would not obstruct access

to the ballot. Conversely, if Illinois permitted a new party to run

candidates only at large and in those districts where they could show

the requisite support, then the requirement of a district-by-district

showing of support would not exclude any candidates who could play

a meaningful role in their respective elections. But the combination

of the two requirements greatly restricts ballot access by geographi-

cally concentrated groups, so that combination is forbidden even if

each requirement alone would be valid.

Hlinois has also directly restricted the ability of parties which

have attained a foothold in one political unit to associate with allies

or adherents desiring to seek office in another political unit under the

banner of the fledgling party. It has disallowed ballot placement for

candidates using the name of a party already established in a different

political subdivision. Dlinois forbids this even though the established

Party makes no objection to such use of its name and even though that

party describes the petitioning organization in the other subdivision

as an affiliate. Such an absolute prohibition is impermissible.

Even if Illinois might have prescribed specific procedures to be

followed in establishing such affiliations, it may not do so by

retroactively placing a stringent and unpredictable restrictive inter-

pretation on an ambiguous statute and then penalizing those who

acted before the procedures were defined for failure to correctly

10

forecast and comply with the not-yet-promulgated requirements.

Since Hlinois has yet to prescribe any procedure for affiliation among

local political parties, it may not penalize the HWP candidates for

acting on the basis of an informal affiliation.

ARGUMENT

There is no question here as to the HWP candidates’ “prelimi-

nary showing of a significant modicum of support” in the constituen-

cies from which they sought to be elected. Jeness v. Fortson, 403 U.S.

431, 442 (1971). The HWP candidates had more than 44,000

signatures on their City District component and over 50,000 signa-

tures on their at-large component. [linois requires no more than

25,000 signatures for any constituency, up to and including the entire

State.

By requiring both a full slate and 25,000 signatures on each

component, Illinois has effectively required of Cook County parties

double the number of signatures required for parties seeking to make

nominations for statewide office, with no reason of any sort, let alone

a compelling reason, for doing so. This fact alone shows a violation

of the constitutional requirement expounded in /Ilinois State Board of

Elections v. Socialists Workers Party, 440 U.S. 173 (1979) (because

25,000 signatures adequate for statewide candidacy, larger require-

ment for City of Chicago and Cook County unconstitutional). While

that violation alone would require reversal of the judgment below, the

HWP candidates surmounted even this unconstitutional hurdle: they

obtained more than 50,000 signatures on their petition.

Nonetheless, the HWP was disqualified from the ballot on two

grounds. Because it lacked sufficient demonstrated support in the

Suburban District, it was not permitted to run candidates countywide

or in the City District, despite its ample support in each of those

* The HWP candidates had only 7,800 signatures on their Suburban District

component, but they do aot here challenge exclusion of the suburban candidates

from the ballot.

11

constituencies. Moreover, because the HWP was already established

in the City of Chicago, candidates were forbidden to run under its

banner for Cook County office. Neither ground can withstand

constitutional scrutiny.

I. THE REQUIREMENT THAT A PARTY MUST

HAVE SUPPORT IN ALL DISTRICTS OF A SUB-

DIVISION BEFORE IT MAY RUN CANDIDATES

IN ANY PORTION OF THE SUBDIVISION UN-

CONSTITUTIONALLY INFRINGES THE RIGHT

OF POLITICAL ASSOCIATION, ESPECIALLY

WHERE THE DISTRICTS ARE OF UNEQUAL

POPULATION.

“It is beyond debate that freedom to engage in association for

the advancement of beliefs and ideas is an inseparable aspect of the

‘liberty’ assured by the Due Process Clause of the Fourteenth

Amendment, which embraces freedom of speech.” NAACP v. Alu-

bama ex rel. Patterson, 357 U.S. 449, 460 (1958). The freedom of

association protected by the First and Fourteenth Amendments

includes partisan political organization. Elrod v. Burns, 427 U.S. 347,

357 (1976) (plurality opinion); Buckley v. Valeo, 424 U.S. 1, 15

(1976). “The right to associate with the political party of one’s choice

is an integral part of this basic constitutional freedom.” Kusper v.

Pontikes, 414 U.S. 51, 57 (1973); Tashjian v. Republican Party, 479

U.S. 208, 214 (1986).

In a representative democracy, “the voters can assert their

preferences only through candidates or parties or both.” Lubin v.

Panish, 415 U.S. 709, 716 (1974). “{A] basic function of a political

party is to select the candidates for public office to be offered to the

voters at general elections.” Kusper v. Pontikes, 414 U.S. at 58. “The

right to form a party for the advancement of political goals means litde

if a party can be kept off the election ballot and thus denied an equal

opportunity to win votes.” Williams v. Rhodes, 393 U.S. 23, 31

(1968). Moreover, “limiting the opportunities of independent- minded

voters to associate in the electoral arena to enhance their political

12

effectiveness as a group” can “threaten to reduce diversity and

competition in the marketplace of ideas.” Anderson v. Celebrezze,

460 U.S. 780, 794 (1983).

Thus, it is well settled that restrictions on access to the ballot

burden both “the rights of individuals to associate for the advance-

ment of political belief, and the right of qualified voters, regardless of

political persuasion, to cast their votes effectively.” /d. at 787. “Other

rights, even the most basic, are illusory if the right to vote is

undermined.” Wesberry v. Sanders, 376 U.S. 1, 17 (1964). And the

right to vote is “heavily burdened if that vote may be cast only for one

of two [or three] parties at a time when other parties are clamoring for

a place on the ballot.” Williams v. Rhodes, 393 U.S. at 31. Thus, “{i}f

the challenged law burdens the rights of political parties and their

members, it can surv' ve constitutional scrutiny only if the State shows

that it advances a compelling state interest and is narrowly tailored to

serve that interest.” Eu v. San Francisco Democratic Comm., 489

U.S. 214, 222 (1989) (citations omitted).

Exacting scrutiny is particularly necessary here for two addi-

ional reasons. First, the Illinois scheme grants unequal power to

those voters residing in the Suburban District as opposed to those

residing in the City District. Second, Illinois gives preference among

political parties to those whose members are relatively equally

divided between the two districts and disadvantages parties of equal

size whose members are more concentrated in one district rather than

the other.

A. By Requiring Equal Numbers of Signatures

From Districts of Substantially vageree

Population, Illinois Violates the Requirer

of Voter Equality in Selection of Representa-

tives.

Voter equality is one of the most fundamental precepts of our

representative form of government.

ee eR

13

Once the geographical unit for which a representative is

to be chosen is designated, all who participate in the

election are to have an equal vote—whatever their race,

whatever their sex, whatever their occupation, whatever

their income, and wherever their home may be in that

geographical unit.

Gray v. Sanders, 372 U.S. 368, 379 (1963).

The seminal application of that principle to the ballot access

process came in Moore v. Ogilvie, 394 U.S. 814 (1969). For indepen-

dent candidates for statewide office, Illinois required filing 25,000

signatures, including at least 200 from each of at least SO counties. At

the time, 93.4% of the State's registered voters resided in the 49 most

populous counties and only 6.6% resided in the remaining 53 coun-

ties. This Court found the distributional requirement inconsistent

with the constitutional requirement of voter equality, pointing out

that:

[I}t is no answer to the argument under the Equal

Protection Clause that this law was designed to require

Statewide support for .aunching a new political party

rather thag support from a few localities. This law

applies a rigid, arbitrary formula to sparsely settled

counties and populous counties alike, contrary to the

constitutional theme of equality among citizens in the

exercise of their political rights. The idea that one group

can be granted greater voting strength than another is

hostile to the one man, one vote basis of our representa-

tive government.

Id. at 818-19.

The Court illustrated the forbidden discriminatory impact as

follows:

14

Under this Illinois law the electorate in 49 of the

counties which contain 93.4% of the registered voters

may not form a new political party and place its candi-

dates on the ballot. Yet 25,000 of the remaining 6.6% of

registered voters properly distributed among the 53 re-

maining counties may form a new party to elect candi-

dates to office. This law thus discriminates against the

residents of the populous counties of the State in favor of

rural sections. It, therefore, lacks the equality to which

the exercise of political rights is entitled under the

Fourteenth Amendment.

Id. at 819.

Llinois then sought to replace this law by retaining the require-

ment of 25,000 signatures and limiting to 13,000 the number which

could be counted from a single county. The Seventh Circuit struck

down that version as conferring a similar discriminatory veto power:

Under section 10-2 the entire electorate of Cook

County, which represents 45% of all registered voters in

Illinois, may not form a new political party and place its

Candidates on the ballot. Yet any 25,000 of the remaining

55% of registered voters properly distributed among the

remaining 101 counties may form a new party to elect

candidates to office. Put another way, the approximately

2,750,000 registered Llinois voters in urbanized Cook

County do not have the power under section 10-2 to

create a Statewide political party to protect their own

peculiar interests, while 25,000 voters in any two or more

counties in rural downstate Illinois may create such a

Party to protect their distinctly different, and often com-

peting interests. This two-county requirement, like the

fifty county requirement in Moore, ‘discriminates against

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15

the residents of the populous counties of the state in favor

of rural sections.”

Communist Party v. State Board of Elections, 518 F.2d 517,521 (7th

Cir.), cert. denied, 423 U.S. 986 (1975).’

This conclusion is confirmed by the explanation of Moore v.

Ogilvie in Buckley v. Valeo, 424 U.S. 1 (1976). There this Court

upheld a system of matching funds for major party presidential

candidates requiring raising of specified funds in at least 20 states.

Reliance was placed on the unique and special need for dispersed

geographic support created by the presidential election system:

“A president is not elected by popular vote, but by winning the

popular vote in enough states to have a majority in the Electoral

College.” Jd. at 106. Moore was distinguished on the ground that:

Only 7% of Dlinois voters could have blocked a

candidate from qualifying for the ballot, even though the

statewide elections were decided by straight majority

vote. The clear purpose was to keep any person from

being nominated without support in downstate counties

making up only 7% of the vote, but those same voters

could not come close to defeating a candidate in the

general elecuon.

Id. at 144.

* Since Moore, requirements of equal oumbers of signatures from districts

of substanually disparate population have consistently been declared unconstitu-

tional. Socialist Labor Party v. Rhodes, 318 F. Supp. 1262, 1272(S.D. Ohio 1970),

aff d mem. 409 U.S. 942 (1972); Socialist Workers Party v. Rockefeller, 314

F. Supp. 984, 990 (S.D.N.Y. 1970), aff'd mem , 400 U S..806 (1970); Bloomquist

v. Thompson, 739 F.2d $25, $27-28 (10th Cir. 1984), Libertarian Party v. Beerman,

$98 F. Supp. $7,62(D. Neb. 1984); Socialist Workers Party». Hare, 304 F. Supp

534 (E.D. Mich. 1969); but see Cavanaugh v. Schaeffer, 65 Pa. Commw. 620, 444

A.2d 1308, 1310-11 (1982) (requirement of 100 signatures from each of five

counties upheld because four most populous counties had only 41 8% of population

and because case involved judicial election and judges were oo considered

“representatives’).

16

That analysis is equally valid here. The Suburban District is

30% less populous than the City District, as shown by the Census

figures and the apportionment of the County Board. Yet even though

the residents of the City District have the votes, if united, to control

all countywide offices and a majority on the County Board, the

residents of the Suburban District have the power to prevent the

formation of a political party to effectuate such control. Thus, there

is a Clear violation of Moore v. Ogilvie.

B. Illinois Also Grants an Improper Preference

to Parties Whose Members Are Geographi-

cally Dispersed.

Even if the equality of individual voters is maintained, this

Court has noted that

It is especially difficult for the State to justify a

restriction that limits political participation by an identi-

fiable political group whose members share a particular

viewpoint, associational preference, or economic status.

“Our ballot access cases ... focus on the degree to

which the challenged restrictions operate as a mecha-

nism to exclude certain classes of candidates from the

electoral process. The inquiry is whether the challenged

restriction unfairly or unnecessarily burdens the ‘avail-

ability of political opportunity.”

Anderson v. Celebrezze,460 U.S. 780, 793 (1983) (footnote omitted).

That is, a state may not skew the political process so as to favor some

identifiable viewpoints as opposed to others held by an equal number

of voters.

This sort of forbidden loading of the political dice is also

inherent in the statute at issue here. The combination of the full slate

requirement with a requirement of a district-by-district showing of

support limits ballot access to those parties with sufficient support in

— et i el el

17

all districts. This clearly favors groups which are roughly equally

dispersed between the two districts. As such a group grows in

numbers, the group will be able to meet the signature requirements in

both districts at about the same time. But a group of equal size which

is concentrated in one district would have a surplus of signatures in

one district and a deficiency in the other, so that it would need to grow

larger than a dispersed group to be equally able to qualify for the

ballot. The more heavily concentrated the group, the greater the

disparity in ability to qualify a party—to the point where a group

entirely located in one district, no matter how large, could never

qualify for the ballot.

Many identifiable interests in our society are concentrated

geographically. For example, African-Americans, a group to which

the HWP seeks to appeal, are concentrated in cities. On the other

hand, European- Americans are much more evenly dispersed, at least

in Cook County. Similarly, farmers are concentrated in rural areas,

while other occupations may be more evenly dispersed throughout a

state. A state may not structure the political process so as to prefer

some groups to others in ways not corresponding to their ability to

elect or defeat candidates once nominated. Thus, voters in one district

cannot be given a veto power over candidates to be nominated in

another district nor a veto power over the ability to nominate

candidates at-large who possess the requisite modicum of support in

the political subdivision as a whole.

Nor should it be dispositive that wider geographic support

might be necessary to obtain a majority for an at-large position. By

definition, new parties almost always will be at least third parties, so

even a strong plurality might win an election. More importantly, as

previously explained, the ability to field candidates can significantly

advance the political interests of a new party’s constituency even

without ever winning an election. Consequently, no one group or

identifiable class of groups may properly be given a preference over

another group or class of groups in obtaining a position on the ballot.

Cases which have held otherwise have focused exclusively on

the equality of power given to individual voters and failed to consider

18

how geographic distribution requirements disadvantage concentrated

groups of voters.'° Yet, by definition, the activities of political parties

involve groups of voters and not just individuals, so equal treatment

of equally numerous parties is a matter of constitutional concern.

Thus, the results reached in those cases should not be deemed

dispositive of the argument presented here, which does not appear to

have been considered. Moreover, several of the cases approve only

a requirement for signatures in half of the equal-population districts

involved, so those cases do not support the requirement here of

signatures in all districts.'' Similarly, none of them permitted lack of

'© Morritt v. Governor, 42 N.Y .2d 347, 397 N.Y.S.2d 929, 366N.E.2d 1285

(1977), appeal dismissed for want of a substantial federal question, 434 U.S. 1029

(1978) (requirement of 100 signatures from each of half the Congressional districts

in the state to obtain position on primary ballot for statewide office); Udall v.

Bowen, 419 F. Supp. 746 (S.D. Ind. 1976), aff'd mem. 425 U.S. 947 (1976)

(S00 signatures from each Congressional district to place name on presidential

preference primary ballot); Libertarian Party v. Bond, 764 F.2d 538 (8th Cir. 1985)

(requirement signatures equal to | % of vote in all Congressional districts or 2% in

half of districts); Johnson v. Cuomo, $95 F. Supp. 1126 (N.D.N.Y. 1984) (same

requirement as in Morritt for new political party presidential candidates); Liber-

tarian Party v. Davis, 591 F. Supp. 1561 (E.D. Va. 1984), aff'd 766 F.2d 865 (4th

Cir. 1985) cert. denied, 475 U.S. 1013 (1984) (200 signatures from each Congres-

sional district for new party presidential candidates).

'' Summary adjudications by this Court are not precedential as to more than

“the precise issues presented and necessarily decided... . . ’ A summary dispo-

siuoa affirms only the judgment of the court below and no more may be read into

[this Court's] action than was essential to sustain the judgment.” Anderson v.

Celebrezze, 460 U.S. 780, 784 o.5 (1983).

In this regard, it is significant that Udall v. Bowen, 419 F. Supp. 746 (S.D.

Ind. 1976), aff'd mem., 425 U.S. 947 (1976), did not involve a candidate with

geographically concentrated support but merely an inadvertent failure to make a

timely filing of one component of the petition. Thus, the plaintiff there could not

assert the rights of political parties, like the HWP. whose support is geographically

concentrated. See Rosario v. Rockefeller, 410 U.S. 752, 757-58 (1973) (require-

ment of advance enrollment in party did not disenfranchise voter who could have

enrolled in timely manner but failed to do so).

footnote continued on page 19

19

support in one district to prevent placement on the ballot of candidates

in another district, when those candidates had ample support in the

district where they proposed to run.

This Court should now consider the problem of discrimination

against a geographically concentrated group and hold that this

discrimination, as well as the improper enhancement of the power of

the residents of the less populous Suburban District, violates the

Fourteenth Amendment.

II. ILLINOIS HAS UNCONSTITUTIONALLY IN-

FRINGED ON THE RIGHT OF THE HWP TO

ASSOCIATE WITH THE HWP CANDIDATES

FOR THE PURPOSE OF EXPANDING ITS AC-

TIVITIES INTO AN ADDITIONAL POLITICAL

UNIT.

The HWP is an established political party in the City of

Chicago. (HWP Pet. 6.) As such, it has an established constitutional

right to associate with new and potential adherents for the purpose of

seeking “political power in the community.” Tashjian v. Republican

Party, 479 U.S. 208, 216 (1986); Eu v. San Francisco Democratic

Comm., 489 U.S. 214 (1989). Moreover, this right includes “the

freedom to identify the people who constitute the association.”

footnote continued fron page 18

In Moritt v. Governor, 42 N.Y .24 347, 397 N.Y.S. 24929, 366N.E. 2d 1285

(1977), appeal dismissed for want of a substantial federal question, 434 US. 1029

(1978), the issue presented in this Court related solely to a claim of unequal

weighting to the votes of those residing in different districts. While the districts

were of equal population, the distribution requirement was applied to a candidacy

in a party primary and party members were not equally distributed among distncts.

Thus, the claim was that the districts had disparate populations of those eligible to

participate in party affairs, thus making Moore v. Ogilvie directly applicable.

lurisd. Sumt., No. 77-524, 8-13. Rejection of that claim does not require that

distributional requirements be sustained against the different challenge presented

here.

20

Tashjian, 479 U.S. at 214; Democratic Party v. Wisconsin ex rel.

LaF olletie, 450 U.S. 107, 122 (1981). In Tashjian, the Court struck

down a Connecticut law which required voters in any party primary

to be registered members of that party even though the party wished

to permit independent voters to participate. The Court found that

because the statute limited the group of registered voters who could

participate in the pr.mary, the State impermissibly limited the party’ s

“associational opportunities.” 479 U.S. at 216.

The State of Illinois has similarly restricted the associational

rights of both the established HWP and the petitioners who wish to

participate in that party. This prohibition was imposed without regard

to the shared desire of the HWP and the HWP candidates to associate

with one another. Despite that desire, Dlinois absolutely prohibited

the use of the HWP name by the HWP candidates. On the record, the

established HWP had no objection to the use of the HWP name by the

HWP candidates. (Board Pet. App. 40a.) Both the HWP and the

HWP candidates regard themselves as affiliated. Thus, as in Tashjian,

there is no conflict between the associational interests of the party (the

established HWP) and those whose participation the party encourages

(the HWP candidates who seek to carry its banner). /d. at 216, n.7.

The interest asserted by Illinois is in preventing voter confu-

sion. (Board Pet. App. 39a.) But there can be no confusion unless the

two Organizations Claiming a single name are in fact independent of

one another rather than being affiliates.'? Tashjian teaches that while

a State has a legitimate interest in preventing voter confusion, that

interest does not make it permissible for the state to “act as the

ideological guarantor” of the established party by ensuring that voters

are not misled by a candidate whom the state views as not a “true”

member of the party. /d. at 220. A state has no interest in limiting who

a party can allow to operate under its name and in concert with it. The

'2 Tt is not necessary that they be the same, any more than the Democratic

Party of Cook County need be the same as the Democratic Party of DuPage County.

Itis enough that both groups regard themselves as being united in acommon cause.

ee sla arenmanenntincin ton. ee ee ee ee ee

ea

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21

State of Illinois may have a legitimate concern in preventing two

different parties with the same name from running candidates in

different elections, but it cannot have a legitimate concern with whom

a political party chooses to include among its members. As this Court

has stated:

The Party’s determination of the boundaries of its

own association, and of the structure which best allows

it to pursue its political goals, is protected by the Consti-

tution.

Id. at 224.

Nor can [llinois support its action by asserting that the HWP

failed to follow the appropriate procedures to decide to affiliate with

the HWP candidates. (See HWP Pet. App. 17 (ruling of the Circuit

Court), 52-53 (dissenting opinion to Electoral Board decision)) To

begin with, it was not at all clear that amy action was necessary.

Neither the Electoral Board nor the Circuit Court believed the

prohibition on use of an established party name applied outside the

political unit(s) in which that party was established. (Board Pet.

App. 39a-40a, 20a-21a.) The Illinois Supreme Court has ruled that

the Electoral Board and the Circuit Court misread the statute, but the

HWP and HWP candidates could hardly be blamed for having shared

that reading.

Moreover, even if the prohibition had been clear, there was

(and is) no established procedure for an established party to authorize

use of its name by aspirants to office in a different mrisdiction or to

affiliate with such aspirants. Thus, if the HWP chose the wrong

procedure, the cause lay largely in the failure of Illinois to prescribe

a procedure (or even to indicate that consent or affiliation was

possible). A

Since the State has failed to make such a procedure available

to the HWP, it cannot now attack the method by which the party has

itself decided to expand. Moreover, the State certainly cannot create

22

such a procedure after the fact and make it applicable to petitioners.

A restrictive interpretation of an election rule which compromises

fundamental rights may not be imposed without “forewarning” those

subject to the rule. Briscoe v. Kusper, 435 F.2d 1046, 1055 (7th Cir.

1970).

In Briscoe, voters and Chicago aldermanic candidates barred

from ballots filed a civil rights action alleging that the election

authorities violated their constitutional rights by rejecting signatures

On nominating petitions for “highly technical reasons.” /d. at 1051.

The Seventh Circuit found that the authorities had employed a

restrictive interpretation, contrary to its own past practice, of vague

petition signature rules without any explanation or advance warning

to candidates. The effect of this new interpretation was to “nullify

previously acceptable signatures” at a ime when petition circulators

could no longer alter their circulating techniques. /d. at 1055. Because

fundamental rights were implicated, “those interested require certain

knowledge [at the time they act] of what is expected of them by the

state.” Jd. The Seventh Circuit therefore held that “where there is no

advance clarification or statement” of a rule, “the Constitution

permits enforcement of the statutory rule in only the least restrictive

and most obvious manner.” /d. at 1056.'° Application here, without

any advance notice, of an ambiguous rule in an extremely restrictive

way violates that principle.

Moreover, given the lack of specificity in the statute at issue

combined with the complete absence of advance warning to petition-

ers regarding the nature of the Rule’s application, the State cannot

constitutionally justify the complete exclusion of the HWP candi-

dates from the ballot. For even if the interpretation which prohibits

'3 See Griffin v. Burns, $70 F.2d 1065, 1075-79 (1st Cir. 1978) (unconsti-

tutional to retroactively apply new interpretation where effect would be to

disenfranchise voters whose ballots were cast in accordance with prior practice):

Gartrell v. Knight, 546 F. Supp. 449, 453-54(N_.D. Ala. 1982); Williams v. Sclafani,

444 F. Supp. 906, 911-12 (S.D.N.Y. 1978), aff'd mem., 508 F.2d 1046 (2nd Cir.

1978).

{uti i lit aN i

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23

the petitioners from using the HWP name can be viewed as reason-

able, the harsh remedy of exclusion from the ballot cannot. Any voter

confusion resulting from use of the HWP name could be eliminated

simply by deleting that name from the ballot line on which the

candidates would appear. See Vasquez v. Municipal Officers Elec-

toral Board, 115 Wl. App. 3d 1014, 450 N.E. 2d 1379 (3rd Dist. 1983)

(allowing candidates to appear but requiring omission of confusingly

similar party name). Even if the objective is legitimate, the Consti-

tution requires a state to accom) sh that end narrowly and fairly so

as to avoid obstructing and diluting these fundamental liberties.

Kusper v. Pontikes, 414 U.S. 51 (1973).

The State of Illinois seeks to place a wall around the established

HWP without its consent and without any justification. By limiting

whom the HWP can associate with, the State has violated the First and

Fourteenth Amendments.

24

CONCLUSION

For all of the reasons stated above, the judgment of the

Supreme Court of Illinois should be reversed and the Order of the

Cook County Officers Electoral Board should be reinstated.

Respectfully submitted,

WILLIAM T. BARKER

(Counsel of Record)

GERALD E. FRADIN

Sonnenschein Nath & Rosenthal

8000 Sears Tower

Chicago, Dlinois 60606

(312) 876-8000

HARVEY M. GROSSMAN

Roger Baldwin Foundation of ACLU, Inc.

20 East Jackson Boulevard

Suite 1600

Chicago, Llinois 60604

(312) 427-7330

JOHN A. POWELL

STEVEN R. SHAPIRO

American Civil Liberties Union

132 West 43rd Street

New York, New York 10036

(212) 944-9800

ARTHUR N. EISENBERG

New York Civil Liberties Union

132 West 43rd Street

New York, New York 10036

(212) 382-0557

Attorneys for Amici Curiae