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United States District Court, Northern District of Illinois, E.D

September 21, 1972


Before Cummings, Circuit Judge, and Marovitz and McMILLEN, District Judges.

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


This cause came on to be heard on plaintiffs' motion for a preliminary injunction and the court having considered the complaint, the affidavits provided by plaintiffs and documents in opposition thereto, and having heard argument in open court, this court states as follows:


  1.  Plaintiffs are the Communist Party of
      Illinois, its candidates for public office
      for the election to be held on November 7,
      1972 and the Reverend William E. Hogan, an
      Illinois voter suing on his own behalf and on
      behalf of other Illinois voters who wish to
      vote for candidates of the Communist Party of
      Illinois in the November 1972 election.

  2.  Defendants are Richard B. Ogilvie,
      individually and as Governor of the State of
      Illinois; John W. Lewis, individually and as
      Secretary of State of the State of Illinois;
      William J. Scott, individually and as
      Attorney General of the State of Illinois;
      Michael J. Howlett, individually and as
      Auditor of Public Accounts; Alan J. Dixon,
      individually and as State Treasurer of the
      State of Illinois; James Ronan, individually
      and as Chairman of the State Central
      Committee of the Democratic Party of
      Illinois; Victor Smith, individually and as
      Chairman of the State Central Committee of
      the Republican Party of Illinois. Together
      they compose the State Electoral Board of the
      State of Illinois.

  3.  On or about January 31, 1972, plaintiff
      Communist Party of Illinois, in order to form
      itself as a new political party throughout
      Illinois, nominated plaintiff candidates to
      seek election in the 1972 general election
      and printed and distributed new political
      party petitions to gather the requisite
      number of signatures.

  4.  As of August 3, 1972, plaintiffs and their
      agents collected a total of 33,027
      signatures, of which 26,735 were by voters
      residing in Cook County (a county containing
      slightly more than one-half the registered
      voters in the state of Illinois) and 6,292
      were by voters residing outside of Cook
      County (containing slightly less than
      one-half of all the registered voters in the
      state of Illinois.)

  5.  On August 3, 1972, plaintiffs tendered their
      petitions to the Index Division of the Office
      of the Secretary of State and their tender
      was refused pursuant to a letter from Don Ed,
      Supervisor of the Index Division stating
      inter alia: Upon scanning the petition, it
      appears to meet with statutory requirements
      with the following exception: the petition was
      not accompanied with the so-called loyalty
      oaths for state offices as provided in section
      7-10.1 of the Illinois Election Code.
      Therefore, the petition was not accepted for

  6.  On August 8, 1972, the defendants were
      ordered by the Honorable Hubert L. Will to
      receive the petitions nunc pro tunc as of
      August 3, 1972. The petitions were tendered and
      received pursuant to that order.

  7.  On August 12, 1972, a challenge was filed to
      the Communist Party of Illinois new party
      petitions on grounds that they were not
      accompanied by loyalty oaths.

  8.  On September 6, 1972, a meeting of the
      Electoral Board was convened and sustained
      the objection to the validity of the
      petitions on ground that no loyalty oath had
      been filed.

  9.  On September 7, 1972, the Electoral Board
      reconvened and voted to deny certification of
      the Communist Party as a new political party
      so that its candidates would not be placed on
      the ballot. It based its ruling on the
      failure of the candidates of the Communist
      Party to sign loyalty oaths as required by
      Ch. 46, § 7-10.1, Ill. Rev. Stat. 1971 and
      failure to comply with the county signature
      requirement of Ch. 46, § 10-2, Ill. Rev. Stat.


  10. This court has jurisdiction pursuant to Title
      28 U.S.C. § 1331, 1343, 2201, 2202, 2281 and
      2284 and Title 42 U.S.C. § 1983.

  11. The loyalty oath requirement provided for by
      Ch. 46, § 7-10.1 and 10-5 is invalid in that:

  a.  It is vague and overbroad on its face and
      therefore unconstitutional

      under the First and Fourteenth Amendments to
      the United States Constitution; See
      Livingston v. Ogilvie, 43 Ill.2d 9,
      250 N.E.2d 138 (1969) (identical oath for
      candidates to the Illinois Constitutional
      Convention of 1969 held unconstitutional);
      Krehbiel v. Board of Education, 309 F. Supp. 630
       (N.D.Ill. 1969) (three-judge court)
      (similar oath for Illinois teachers held
      unconstitutional); Connell v. Higginbotham,
      305 F. Supp. 445 (M.D.Fla. 1969) affirmed in
      part, reversed in part, 403 U.S. 207, 91
      S.Ct. 1772, 29 L.Ed.2d 418; Socialist Workers
      Party v. Attorney General, 345 F. Supp. 1132
      (S.D.Texas 1972). See also Elfbrandt v.
      Russell, 384 U.S. 11, 86 S.Ct. 1238, 16 L.Ed.2d
      321 (1966); Keyishian v. Board of Regents,
      385 U.S. 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967);
      Whitehill v. Elkins, 389 U.S. 54, 88 S.Ct. 184,
      19 L.Ed.2d 228 (1967). Cole v. Richardson,
      405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (1972).

  b.  The affirmation of citizenship of the United
      States and the State of Illinois being the
      only constitutionally valid portion of the
      oath as it now reads, no substantial purpose
      would be served by salvaging that portion of
      the oath alone in view of the fact that Ill.
      Rev. Stat. 1971, ch. 46, § 10-5(3) requires a
      statement of candidacy that contains an
      implicit affirmation of citizenship. See
      Livingston v. Ogilvie, supra (Ill.Sup.Ct. made
      no attempt to salvage identical oath). In
      addition the practicalities of the situation
      militate against severing any portion of the
      oath since forcing the candidates of the
      petitioning party to sign an oath containing
      only the permissible clause, i.e. the
      affirmation of citizenship would involve delay
      where it cannot be justly tolerated in view of
      the imminence of the election. Once the
      election is over the state has ample
      opportunity to enact a permissible oath and
      invalidation of the whole oath in this instance
      will not undermine any state interest in having
      some form of oath in the interim.

  12. The county signature requirement of Ch. 46,
      § 10-2, Ill. Rev. Stat. 1971, permitting no
      more than 13,000 signatures of qualified voters
      from any one county to be counted toward the
      total of 25,000 which are a prerequisite for
      recognition as a new political party, is a
      denial of equal protection guaranteed to voters
      by the Fourteenth Amendment in that it
      discriminates against voters of the most
      populous county of the state in favor of voters
      in the less populous counties. See Moore v.
      Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23
      L.Ed.2d 1 (1969) (broader county-wide signature
      requirement in Illinois held unconstitutional);
      Socialist Labor Party v. Rhodes, 318 F. Supp. 1262,
      1272 (S.D.Ohio 1970); Socialist Workers
      Party v. Hare, 304 F. Supp. 534, 536 (E.D.Mich.
      1969); Baird v. Davoren, 346 F. Supp. 515
      (D.Mass. 1972).

  13. Unless this court restrains the enforcement
      and implementation of the aforementioned
      unconstitutional statutory provisions, the
      plaintiffs will suffer serious and
      irreparable injury in that they will be
      prevented from qualifying for recognition as
      a new political party and will be deprived of
      a place on the ballot in the November 7, 1972
      general election without adequate remedy at

It is therefore ordered, that defendants, their agents, servants, employees and attorneys and all persons in active concert and participation with them shall immediately certify plaintiffs Communist Party of Illinois as a new political party and immediately certify plaintiff candidates to all of the Illinois county clerks to be placed on the ballot in time for the November 7, 1972 general election.

NOTE: In view of the fact that the printing of Illinois
    ballots for the November 7, 1972 election has been held up
    pending decision of this case and considering the very
    short period remaining before that election, this Court
    has not included a written Opinion so that the expeditious
    entry of the appropriate relief may be facilitated.

I respectfully dissent from Conclusions of Law 11(a), 12 and 13, and the preliminary injunction entered in the above case.

The loyalty oath required for statewide candidates in Illinois as I read it, complies substantially with the requirements of Cole v. Richardson, 405 U.S. 676, 92 S.Ct. 1332, 31 L.Ed.2d 593 (April 8, 1972) and is permissible under these circumstances. It reads:

  I, ___________________________________ do swear
  that I am a citizen of the United States and the
  State of Illinois, that I am not affiliated
  directly or indirectly with any communist
  organization or any communist front organization,
  or any foreign political agency, party,
  organization or government which advocates the
  overthrow of constitutional government by force
  or other means not permitted under the
  Constitution of the United States or the
  constitution of this State; that I do not
  directly or indirectly teach or advocate the
  overthrow of the government of the United States
  or of this State or any unlawful change in the
  form of the governments thereof by force or any
  unlawful means.

  [1971, Illinois Revised Statutes, Chapter 46,
  § 7-10.1]

Although this oath is not phrased or punctuated as precisely as we might prefer, its purport is clear enough and it should be construed to be constitutionally valid if possible. The extent that the Illinois version may go beyond the language specifically approved by the United States Supreme Court is a matter of semantics, not a matter of substance. As I understand the defendants' position, the oath is not required for candidates whose oath is prescribed by the Federal Constitution.

Furthermore, I believe that some geographical distribution of signatories on petitions is justified before a political party is entitled to participate in a state-wide election. The distribution required by the Illinois statute is a reasonable one, fulfilling the legislature's apparent desire not to saddle the citizens of the entire state with unjustified expenses, complexity of issues, and burdens on election judges. Giving voters outside of Cook County some voice in this determination conforms with, rather than violates, the principles of one-man one-vote recognized by the majority of the Supreme Court in Moore v. Ogilvie, 394 U.S. 814, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969).

McMILLEN, District Judge (dissenting).


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