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October 31, 1968


Before Hastings, Circuit Judge, and Decker and Lynch, District Judges.

The opinion of the court was delivered by: Per Curiam:


This action was brought before a three-judge District Court convened in the Northern District of Illinois under 28 U.S.C. § 2281 and 2284, by twenty-six independent candidates for the offices of Presidential and Vice Presidential electors from the state of Illinois. Defendants are members of the Illinois Electoral Board.

On August 5, 1968 plaintiffs filed nominating petitions signed by 26, 500 qualified voters. Defendants ordered the county clerks to refuse to certify plaintiffs for the November 5, 1968 General Elections because plaintiffs' petition did not comply with certain provisions of Section 10-3 of Chapter 46, Illinois Revised Statutes 1967. This Section, along with Section 10-2 of the same Chapter, was amended in 1935 by the addition of the following qualification: "Provided that included in the aggregate total of twenty-five thousand (25,000) signatures are the signatures of two hundred (200) qualified voters from each of at least fifty (50) counties." Plaintiffs' petition did not contain signatures of 200 such voters from each of 50 counties.

Plaintiffs herein are seeking a Declaratory Judgment, pursuant to 28 U.S.C. § 2201, holding the above proviso unconstitutional; declaring the action of the Electoral Board in refusing to order certification of plaintiffs by the county clerks null and void; and declaring plaintiffs' petition valid and sufficient for nomination. The Complaint further seeks an injunction, under 28 U.S.C. § 2202, prohibiting defendants form refusing to certify plaintiffs to the county clerks for nomination.


An identical 1935 Amendment qualifying Section 10-2, Ch. 46, Illinois Revised Statute, 1967 which prescribes the requirements for nominating an independent third party, was challenged before the Supreme Court twenty years ago in MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3. A three-judge District Court therein had previously dismissed the action for lack of jurisdiction. The Supreme Court affirmed after a hearing on the merits. Commenting on this apparent inconsistency, Justice Brennan, in the majority opinion of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, noted the Supreme Court's disagreement with the District Court's finding of a lack of jurisdiction. 369 U.S., at 203, 82 S.Ct. 691.

The MacDougall and Baker cases are controlling on the issue of jurisdiction in present action. Voting rights are secured by the Equal Protection Clause of the Fourteenth Amendment. The Federal District Courts have jurisdiction under 28 U.S.C. § 1343(3) "* * * to redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States." This grant clearly gives this Court jurisdiction to hear the matter before it.


The provision of the Illinois Election Code being challenged in this action was found to be constitutional by the Supreme Court of the United States in the case of MacDougall v. Green, supra. In Baker v. Carr, supra, Justice Brennan noted the Supreme Court's prior decision thusly:

  "In MacDougall v. Green, (cite omitted), the
  District Court dismissed for want of
  jurisdiction, which had been invoked under
  28 U.S.C. § 1343(3), 28 U.S.C.A. § 1343(3), a suit to
  enjoin enforcement of the requirement that nominees
  for state-wide elections be supported by a petition
  signed by a minimum number of persons from at least
  50 of the State's 102 counties. This Court's
  disagreement with that action is clear since the
  Court affirmed the judgment after a review of the
  merits and concluded that the particular claim
  there was without merit." 369 U.S. 203, 82 S.Ct.
  702, 7 L.Ed.2d 663.

The facts of the MacDougall case and the case before the bar are virtually identical except for insubstantial shifts in the concentration of population in the various Illinois counties.*fn1 Plaintiffs in this case, while admitting that the MacDougall decision bears directly against them, contend that the holding of the MacDougall case should be disregarded on the theory that the line of cases beginning with Baker v. Carr in 1962 has overruled the MacDougall decision by implication.

Justice Clark, concurring in the decision of the majority in Baker, was able to distinguish that case from MacDougall (and, therefore, also from the instant case) thusly:

  "I take the law of the case from MacDougall v.
  Green (cite omitted), which involved an attack
  under the Equal Protection Clause upon an
  Illinois election statute. The Court decided the
  case on its merits without hindrance from the
  `political question' attack. Although the statute
  was upheld, it is clear that the Court based

  its decision upon the determination ...

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