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JACKSON v. OGILVIE

January 28, 1971

JESSE L. JACKSON, SHARON T. WILKINSON AND MELVIN M. MACLIN, PLAINTIFFS,
v.
RICHARD OGILVIE, GOVERNOR OF THE STATE OF ILLINOIS, CHAIRMAN OF THE STATE ELECTORAL BOARD OF THE STATE OF ILLINOIS, ET AL., DEFENDANTS.



Before Pell, Circuit Judge, and Perry and Lynch, District Judges.

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

MEMORANDUM OF DECISION

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).

Plaintiffs moved for an injunction pursuant to 28 U.S.C. § 2281. Accordingly, a three-judge district court was convened pursuant to 28 U.S.C. § 2284. Plaintiffs moved for a temporary restraining order before the single district court judge. After an evidentiary hearing the requested injunctive relief was denied. Subsequently a three-judge court was empanelled. Prior to the hearing by the full panel, plaintiffs filed a motion for summary judgment. Certain defendants filed motions to dismiss. Since we find that plaintiffs' challenges to the Illinois Election Code are not well founded, it is unnecessary to decide the various pending motions to dismiss.

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. 1322 (1935).

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 office.

The provisions of the Illinois Election Code that identify proper signatories to an independent candidate's nominating petition provide:

  "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 ...


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