During oral argument, attention to this phase was invited and
a principal proposition advanced in response was the cost of
including independent candidates on the ballot. While the cost
of preventing dilution of fundamental liberties should be one
rather willingly borne, as a practical matter Illinois permits,
and is willing to assume the cost of, write-in candidates on
its ballots, which would seem to have an equally costly
potential to that of nominated independent candidates.
When a candidate of one of the two principal parties can
cause his name to be placed on the primary ballot by slightly
more than 2000 nominating signatures in Chicago, and the
nominee of the other principal party by only slightly more than
4000, we must indeed search diligently for any rational
justification for the exclusionary policy directed toward the
independent candidate. I am unable to find such a justification
either in the majority decision or otherwise.
There is certainly arguable merit in the proposition favoring
the preservation of our two party system as opposed to the
disruptive fragmentation of cohesive governmental processes
resulting from numerous, but ineffectual, political parties.
Nevertheless, the particular political parties have no vested
constitutional interest in the preservation of their dominant
status. See Williams v. Rhodes, supra, 393 U.S. at 32, 89 S.Ct.
5. If it were so, history shows us that neither would be in its
While the state has, and should have, a substantial interest
in administering its own local elections, including limitations
on access to the ballot by candidates, due process requires
that the state accomplish its legitimate objective both
narrowly and fairly. Briscoe v. Kusper, 435 F.2d 1046 (7th Cir.
In my opinion, the requirement of the statute under
consideration by its excessively high requirement becomes
prohibitory as to some candidates and therefore meets neither
the requirement of narrowness nor fairness.
In the words of Mr. Justice Cardozo, "The concept of fairness
must not be strained till it is narrowed to a filament." Snyder
v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed.
"The use of nominating petitions by independents to obtain a
place on the Illinois ballot is an integral part of her
elective system. * * * All procedures used by a State as an
integral part of the election process must pass muster against
the charges of discrimination or of abridgment of the right to
vote." Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493,
1495, 23 L.Ed.2d 1 (1969).
Believing there is an on-the-face failure of "muster"
qualification, I would therefore hold that § 10-3 is violative
of the Equal Protection Clause of the fourteenth amendment and
the right of free association guaranteed by the first amendment
of the United States Constitution.
I am disturbed by the fact that holding a state statute
federally unconstitutional may well leave no regulation extant
in an area in which the state has an undoubted legitimate
interest in regulating conduct such as in the case before us.
Because of the result reached by the majority here, however, it
is unnecessary to determine whether we could properly hold that
§ 10-3 was unconstitutional to the extent that its minimum
requirement exceeds 1/2 of 1% of the voters at the last
PELL, Circuit Judge (dissenting).