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December 30, 1969


Before Swygert, Circuit Judge, and Parsons and Decker, District Judges.

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


In a primary election to be held on March 17, 1970, Illinois voters will select party candidates for Congress and the Illinois General Assembly, as well as for various other state and local offices. Nominating petitions were received by the Secretary of State during the week of December 8th to 15th, 1969. This suit asks us to declare unconstitutional Illinois Public Act 76-1964, which empowers the Secretary of State to determine the order of listing of candidates' names on ballots when petitions are received simultaneously, and to enjoin Paul Powell, Secretary of State, and the other named defendants, ex officio members of the Electrical Board of the State of Illinois, from certifying ballots and awarding ballot positions for the primary election in any manner which violates plaintiffs' right to equal protection under the Fourteenth Amendment.

This case and the challenged statute are a sequel to the case of Weisberg v. Powell, 417 F.2d 388 (7th Cir. 1969). The Weisberg case concerned the order in which candidates' names were placed on the ballot for the primary and general election to the Illinois constitutional convention.

The Illinois statute involved in the earlier Weisberg case prescribed that ballot positions were to be awarded according to the order in which candidates filed nominating petitions. The first day for filing petitions was July 7, 1969. The Secretary of State's office made arrangements with the Springfield post office for delivery of mail on Sunday, July 6, 1969. Petitions received in the Sunday mail were treated as if filed at 8:00 A.M. Monday. Where petitions for several candidates in one district were received in the Sunday mail, the Secretary of State considered them tied for first filing, and decided ballot positions according to his own preference among the several candidates.

On August 8, 1969 the Court of Appeals, pursuant to 28 U.S.C. § 1651, entered an order requiring the Secretary of State to award ballot positions on the basis of a lottery. In a per curiam opinion on Ocober 3, 1969 the court held that plaintiffs, in the evidentiary hearing in the district court, "* * * adequately established that top position on the ballot is one of a number of factors which tend to affect the outcome of an election, and which may have a substantial effect although the degree varies with the circumstances." (417 F.2d at 392.) The manner in which Secretary of State Powell certified ballots and awarded ballot positions was held to be purposeful and intentional discrimination designed to discourage the election of independents and others disfavored by Powell and to favor Powell's friends, who are generally entrenched party regulars. In particular his action was held to be violative of the Fourteenth Amendment in two respects: "* * * first, by informing some and leaving others in ignorance that mail received in Springfield on Sunday will be treated as arriving first during business hours on Monday, and second, by choosing favorites among those who get their petitions into the Sunday mail." (417 F.2d at 392.) The court, therefore, ordered that ballots for the general election, in those districts in which no primary was held, be certified in accordance with the results of the lottery held pursuant to the court's order of August 8, 1969.

Shortly thereafter on October 23, 1969, the Illinois General Assembly enacted Public Act 76-1964, challenged here, which provides in pertinent part:

Although the statute constitutes notice to potential candidates that petitions may be filed by mail, thus expressly eliminating one aspect of the invidious conduct condemned in the earlier Weisberg case, it does not expressly preclude favoritism and discrimination by the Secretary of State in breaking ties.

This suit was commenced on October 30, 1969. On December 5, 1969, in a memorandum opinion and order, 314 F. Supp. 677 (N.D.Ill. 1970), we determined that federal jurisdiction was properly invoked under 28 U.S.C. § 1343, 42 U.S.C. § 1983, and 28 U.S.C. § 2201, 2202, and that a three-judge court was properly convened pursuant to 28 U.S.C. § 2281. Because Secretary of State Powell threatened to employ personal favoritism or systematic bias in favor of incumbents in breaking ties, we issued the following temporary injunction:

    Accordingly, it is ordered and decreed that the
  defendants, and those acting in their behalf, are
  enjoined from breaking ties in the order of
  listing nominating petitions on primary ballots
  for the election to be held on March 17, 1970,
  and from certification thereof, by any means
  other than a drawing of candidates' names by lot
  or other nondiscriminatory means by which each of
  such candidates shall have an equal opportunity
  to be placed first on the ballot.

Allegedly in response to this injunction, defendant Powell developed and applied a scheme of tie-breaking whereby tied candidates with past legislative service, and incumbents, were given preferred ballot positions. Where none of the tied candidates had prior legislative experience, alphabetical order was used to determine ballot priority.

According to statute, certification by the Electoral Board of primary ballots can take place no later than January 15, 1970. Both parties urge an expeditious decision on the constitutionality of Public Act 76-1964 in order that an appeal may be perfected. Before turning to the statute itself, we will examine briefly the ...

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