The opinion of the court was delivered by: Will, District Judge.
This case arises under the Civil Rights Act, 42 U.S.C. § 1983,
with jurisdiction based on 28 U.S.C. § 1343(3). The following is
alleged: On January 25, 1960, plaintiff filed a petition in the
office of the Secretary of State of Illinois to have his name
placed on the Republican party ballot in the senatorial primary
election to be held on April 12 of that year. In February,
defendants, who comprised the State Electoral Board,*fn1 met
(pursuant to the provisions of Ill.Rev.Stat. 1961, ch. 46, sec.
7-14) and refused to certify plaintiff as a candidate for
nomination. This refusal is alleged to have been statutorily
unauthorized and the result of a conspiracy under color of state
law to deprive Mr. Daly of his right to seek the Republican
senatorial nomination. Plaintiff alleges further that he
attempted, unsuccessfully, to have this decision reversed, after
which this litigation was commenced.
Defendants have moved for summary judgment. In support of this
motion there is filed an affidavit of Mr. Don H. Reuben, Special
Assistant Attorney General of Illinois who represents all of the
defendants herein, with two exhibits attached thereto. Exhibit B
thereof purports to be a partial list of names appearing two or
three times in plaintiff's petition but with a different address
each time. Affiant lists more than 230 such signatories and
states that in each instance the name and addresses appearing in
the petition cannot be found in the official City of Chicago
voting list of March, 1960. Affiant also names 36 individuals who
signed plaintiff's petition none of whom appear on the voting
list at the address set forth in the petition. If what Mr. Reuben
says is true, at least 266 of plaintiff's purported signatories
were not registered Republican electors.
In order to be a major party candidate for United States
Senator in a primary election in Illinois, a nominee must file
with his petition the supporting signatures of not less than 5000
primary electors of his party. Ill.Rev.Stat. 1961, ch. 46, sec.
7-10. Plaintiff's petition contains the purported signatures and
addresses of 5125 persons. If at least 266 signatories were
unqualified, the petition obviously bore the names of less than
the required 5000 primary electors.
Mr. Daly contends that his petition was examined for legal
sufficiency by the receiving clerk in the Secretary of State's
office at the time it was presented for filing, and that once it
was accepted for filing by that clerk, it became unchallengeable.
However, the statutory section with respect to the filing of a
nominating petition for the United States senatorial primary, ch.
46, sec. 7-12, does not provide that a petition accepted for
filing is presumptively bona fide. Cf. ch. 43, sec. 169 (local
option referendum petition).
Plaintiff also urges that since the statute does not explicitly
authorize the State Electoral Board to receive, hear and decide
objections to such a petition as his (cf. ch. 46, sec. 7-13,
objections to nominating petitions for ward, precinct and
township committeeman; and ch. 46, sec. 10-9, objections to
nominations of minor political parties and groups), the board's
duty and power is purely ministerial.
The board's duties are as set forth in ch. 46, sec. 7-14:
"Not less than sixty-one (61) days prior to the date
of the primary the electoral board shall meet in the
office of the Secretary of State, at a time to be
fixed by him, and shall examine all petitions filed
under this Article 7, in the office of said Secretary
of State, and said electoral board shall then certify
to the county clerk of each county, the names of all
candidates * * * for nomination for all offices, as
specified in the petitions for nomination on file in
said office, which are to be voted for in such
county, * * *."
An election official whose obligation is to "examine" and to
"certify" a petition has authority at least
"to determine whether the paper is genuine and such
as he is required to receive and make the basis of
his action." People ex rel. Brundage v. Righeimer,
1921, 298 Ill. 611, 619, 132 N.E. 229, 232.
When a cursory comparison of a petition and the relevant voting
lists reveals, as it does here, that fewer than the statutorily
required number of signatories appearing in the former also
appear in the latter, the petition is not genuine and the
candidate need not be certified.
Plaintiff does not controvert the truth of Mr. Reuben's
affidavit but maintains that its contents are irrelevant. If the
averments therein are true, and this is not disputed by
plaintiff, the board was not obligated to certify him and his
civil rights were not violated.
As Judge Goodrich has said:
"The alternative would be to sanction discovery and
perhaps other pre-trial proceedings likely to be
exceedingly burdensome upon both parties only to have
the case ultimately dismissed at the trial because of
the plaintiff's inability to prove a fundamental but