Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 71-C-3122 THOMAS R. McMILLEN, Judge.
Swygert, Chief Judge, Hastings, Senior Circuit Judge, and Christensen,*fn* Senior District Judge.
HASTINGS, Senior Circuit Judge.
This action arose in connection with the March 21, 1972, Democratic Party primary election for the office of Cook County, Illinois, State's Attorney. One of the plaintiffs, Donald Page Moore, was an "independent" candidate in that election. The other plaintiffs are the Independent Voters of Illinois (IVI), a voluntary association of Illinois voters; Michael Shakman, Chairman of IVI and a previous independent candidate for elective office in Cook County who "intends to be an independent candidate for elective public office in the future"; Alan Wiseman, who filed a statutory objection to the nominating petition of the "regular" Democratic candidate for State's Attorney, Raymond Berg; and three individuals who supported and voted for Moore in that election. In addition, the complaint states that all individual plaintiffs are registered Democratic Party voters, and that all intend to vote in future primary and general elections in Cook County. The suit is brought against the Board of Election Commissioners of the City of Chicago ("the Commissioners"); its former Chairman, Stanley T. Kusper, Jr.; and Edward J. Barrett, former Cook County Clerk.*fn1 Under Illinois law, defendants are custodians of the voter registration records of all Cook County voters.*fn2
Plaintiffs filed this action on December 28, 1971. In its original form the complaint sought to require defendants to make available for inspection and copying all records and documents in defendants' possession and control. In particular, plaintiffs sought to compel discovery of the original nominating petition filed with defendant Barrett in support of the candidacy of the before mentioned Berg, as well as all voter records which might be used as evidence by plaintiff Wiseman in support of his objection to said petition. The three-member board charged by Illinois law with hearing and ruling on objections to the petition, the Cook County Officers Electoral Board ("the Electoral Board"), was also named a defendant in the original action,*fn3 as were the Democratic Organization of Cook County; the Democratic County Central Committee; Richard Daley, mayor of Chicago; the City of Chicago; and the County of Cook. None of the last-named defendants, including the Electoral Board, are parties to the amended complaint which is the subject of the present appeal. Both the original and amended complaints allege the violation of First, Fifth and Fourteenth Amendment rights, and jurisdiction is invoked under 28 U.S.C. §§ 1331 and 1343, 28 U.S.C. §§ 2201 -02, and 42 U.S.C. §§ 1983 and 1985.
Even though the amended complaint seeks relief only in futuro, a review of the facts which gave rise to the original action is necessary in evaluating this appeal.
Under applicable Illinois law, petitions of candidates for nomination for county office must be signed by at least one-half of one percent of the qualified electors of the candidate's party. Ill. Rev. Stat. 1971, ch. 46, § 7-10(c). For the 1972 Cook County Democratic primary this amounted to approximately 5,500 signatures. There is no upper limit on the number of signatures which may be submitted. Once the petition is filed, it is presumed valid unless objected to by means of an "objector's petition" filed by a qualified voter within five business days after the last day for filing nominating petitions. Ch. 46, § 10-8. An administrative tribunal known as the "County Officers Electoral Board" hears and passes upon such objections. The Board is required to initiate hearings between three and five days after receipt of the objector's petition. Ch. 46, § 10-10. Among the Board's powers is the authority to issue subpoenas duces tecum for production of documentary evidence relevant to the Board's inquiry. Id.
The nominating petition of Raymond Berg for the office of Cook County State's Attorney was filed with defendant Barrett at 3:00 p.m. on December 20, 1971, which was the final day for filing such petitions. The Berg petition contained approximately 20,000 signatures which, according to plaintiffs' brief, "were reportedly gathered in less than four hours with the assistance of county and city employees signing and circulating the petitions when they were supposed to be at their jobs." Allegations of forgeries and other defects in connection with the Berg petition subsequently appeared in the press.
In anticipation of the filing of an objector's petition, certain of the plaintiffs on December 20 requested permission from defendants to inspect the Berg petition. This request was refused. Defendants also refused subsequent requests for access to voter registration cards which plaintiffs wished to inspect in order to expose forgeries in the petition. On the afternoon of December 22, defendants for the first time provided plaintiffs with copies of the Berg petition. They freely admit that at no time did they voluntarily permit access to the registration records.
In justifying their refusal to comply with plaintiffs' request, defendants relied both then and now on the following provision of the Illinois Election Code:
"* * * No information contained in the register of voters, except the name and address of the voter and the name of the political party in whose primary the voter voted, shall be given by the officer in charge thereof or copied by any person except in those cases where the information given or the copy made or desired is for the purpose of determining the question of the exercise of the right to vote." Ill. Rev. Stat. 1971, ch. 46, § 6-65.
The proper construction of this statute is not at issue here. For purposes of this appeal, it suffices that the statute is ambiguous and arguably condones defendants' conduct with respect to the registration records.
On December 27, plaintiff Wiseman timely filed an objector's petition in opposition to the Berg candidacy. The petition raised numerous objections to both individual signatures and entire sheets of signatures contained in the Berg petition. Challenged signatures were listed in an appendix; the petition requested that the Electoral Board compare such signatures with the original registration records. The petition also recounted plaintiffs' frustrated attempts to obtain access to the records and held forth the possibility that the objections would thereafter be supplemented.
The following day, December 28, the present action was initiated in district court. The complaint asked that plaintiffs be granted immediate access to the original petition and the registration records in order that they might thereby obtain sufficient evidence to effectively challenge the petition before the Electoral Board. In addition, the complaint asked the court to enjoin the Electoral Board from holding hearings on objections to the Berg petition "prior to a date ...