Before Pell, Circuit Judge, and Perry and Lynch, District
The opinion of the court was delivered by: Per Curiam.
Plaintiff, Jesse L. Jackson, is a citizen of the State of
Illinois, qualified to run for elective office as an
independent candidate. Plaintiffs Sharon T. Wilkinson and
Melvin M. Maclin are qualified electors of the State of
Illinois who would support plaintiff Jackson were he to seek
public office. All plaintiffs assert that they want to
participate in the total election processes of the State of
Illinois, but that due to certain provisions of the Illinois
Election Code of 1943, 46 Ill.Rev.Stat. § 1-1 et seq., they are
prevented from participating on an equal footing with those who
seek public office as representatives of established political
parties. Plaintiffs assert that this alleged disadvantage
denies them rights secured by the Equal Protection Clause of
the fourteenth amendment. Further, they assert that the
allegedly diverse requirements of the Illinois Election Code
violate first amendment guarantees of free association and the
fifteenth amendment recognition that the right to vote extends
to all citizens. Plaintiffs, assuming arguendo that they
possess the requisite standing, have alleged a violation of
rights secured by the United States Constitution. Further, they
assert that these deprivations occur under color of state law.
Accordingly, jurisdiction obtains pursuant to
28 U.S.C. § 1343(3). The plaintiffs also have sought declaratory relief and
other equitable remedies under 28 U.S.C. § 2201 and § 2202.
Thus, jurisdiction is also predicated on 28 U.S.C. § 1343(4).
Before turning to the merits of this matter it is necessary
to dispose of certain threshold issues. Clearly the issues
presented to this court are justiciable. Baker v. Carr,
369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Wesberry v.
Sanders, 376 U.S. 1, 5-7, 84 S.Ct. 526, 11 L.Ed.2d 481 (1963).
Further, these plaintiffs enjoy standing to sue. Jesse L.
Jackson states that he seeks to qualify for public office. The
other plaintiffs assert that they wish to support him in his
candidacy. Plaintiffs jointly assert that they are denied equal
protection. In Baker v. Carr, supra, the Supreme Court
determined that qualified state electors had standing to
challenge state apportionment schemes. Thus, standing was
conferred on the plaintiffs in Baker because their right to
vote was impaired. Since the right to hold public office is a
necessary concomitant of the right to vote, we can perceive no
valid reason to deny these plaintiffs standing to sue.
Certain defendants contend that this matter is not properly
before a three-judge court. These defendants assert that since
the election here is only a municipal one the jurisdictional
requisite of statewide action is missing. While it is true that
jurisdiction of a three-judge court is limited to cases
concerning statewide action, nonetheless a three-judge court
may entertain an action against local officers where those
local officers are "performing a state function that embodies
a policy of statewide concern." C.A. Wright, Handbook of the
Law of Federal Courts, 190 (2nd ed. 1970). See also Spielman
Motor Sales Co. v. Dodge, 295 U.S. 89, 55 S.Ct. 678, 79 L.Ed.
The provisions of the Illinois Election Code do evince a
policy of statewide application and concern, and accordingly
the matter is properly before this court.
These plaintiffs challenge those provisions of the Illinois
Election Code that establish the requirements to be met by an
independent candidate in order for his name to appear on the
ballot for a particular election. An independent candidate for
any office in this state must secure nominating petitions
containing a number of signatures constituting more than 5% and
less than 8% of the total number of votes which were cast in
the last preceding election for the office he currently seeks.
46 Ill.Rev.Stat. § 10-3. Since plaintiff Jackson seeks to
qualify for the office of Mayor of Chicago he is required to
obtain some 58,000 to 90,000 signatures. The plaintiffs also
assert that § 10-4 of the Illinois Election Code unfairly
limits the class of possible signatories to plaintiff Jackson's
nominating petitions. The plaintiffs assert that this
limitation further circumscribes Jackson's political efforts,
and operates to effectively deny him access to political
The provisions of the Illinois Election Code that identify
proper signatories to an independent candidate's nominating
"That any person who has already voted at a
primary election held to nominate a candidate or
candidates for any office or offices, to be voted
upon at any certain election, shall not be
qualified to sign a petition of nomination for a
candidate or candidates for the same office or
offices, to be voted upon at the same certain
election." 46 Ill.Rev.Stat. § 10-4.
Plaintiff asserts that this provision bars any person who voted
in the last mayoral party primary from signing a nominating
petition for plaintiff Jackson. Plaintiff Maclin purports to be
a potential signatory thus denied.
The provisions of the Illinois Election Code require that
nominating petitions for independent candidates be filed 64
days prior to the date set for an election. 46 Ill.Rev.Stat.
§ 10-6. Pursuant to the provisions of the Illinois Election
Code city officers are to be chosen or the first Tuesday of
April. 46 Ill.Rev.Stat. § 2-29. Primaries for offices to be
filled on the first Tuesday in April in cities of 500,000 must
be held on the last Tuesday in February. 46 Ill.Rev.Stat. §
7-5. Therefore all primaries for the office of Mayor of the
City of Chicago will necessarily occur at a time that is less
than 64 days prior to the date of the mayoral election. Thus,
under the Illinois Election Code as currently drawn it is not
factually possible for plaintiff Maclin to be denied the right
to sign a nominating petition for plaintiff Jackson. The
Illinois Election Code does not bar Maclin or any other
individual from signing a nominating petition unless he has
already voted in a primary for another candidate for the same
office in the same year. Since our reading of the requirements
of the entire Election Code convinces us that it is not
possible for such a sequence to occur, there appears to be no
possibility that plaintiff Maclin would be prevented from
signing a nominating petition for Jackson.
Accordingly, this court finds § 10-4 of the Illinois Election
Code, 46 Ill.Rev. Stat. § 10-4, does not disenfranchise
plaintiff Maclin and ...