United States District Court, Northern District of Illinois
January 18, 1974
LORRAINE AMENT ET AL., PLAINTIFFS,
STANLEY T. KUSPER, JR., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the plaintiffs' motion for a temporary
This is an action challenging the constitutionality of an
Illinois state statute,
specifically chapter 46 § 7-10 of the Ill. Rev.Stat.*fn1 Section
7-10 prohibits registered voters or electors from signing the
nominating petitions of a candidate of any political party if
during the preceding two years, they have requested the primary
ballot of another political party.
The plaintiffs in their complaint have alleged, inter alia,
the following facts which are important to the proper disposition
of the instant motion. The plaintiffs are all qualified voters or
electors who have registered to vote in Niles Township, Illinois.
Prior to the filing deadline for the March 1974 primary election,
each plaintiff signed a nomination petition for a candidate for
the office of Republican Township Committeeman of Niles Township.
Plaintiffs Ament, Bivins, Freedman, Leibowitz, and Pinkerman
signed the petition for William J. Elliott. Plaintiffs Feig,
Field and Sylvan signed the nomination petition circulated on
behalf of John Nimrod. Both candidates, John Nimrod and William
J. Elliott have allegedly secured sufficient signatures on their
respective petitions to qualify for a place on the March 1974
Republican primary ballot. Further both candidates filed their
petition within the time limits prescribed by the Illinois
After the petitions were filed, the validity of a number of
signatures, including plaintiffs', were challenged on the ground
that the signatories had requested democratic primary ballots at
the March 1972 primary and therefore did not qualify as legal
primary electors as defined in Section 7-10 of the Illinois
Election Code. The defendant Board was then convened pursuant to
Section 10-9(3) of the Illinois Election Code to consider the
challenge. The defendant Board, on January 4, 1974, ruled that
plaintiffs, as well as others who had signed either nominating
petition, were not qualified electors within the meaning of
Section 7-10 and invalidated their signatures. As a result of
that decision, the nomination petitions of candidates Elliott and
Nimrod were invalidated on the ground that they contained
inadequate signatures and the names of Elliott
and Nimrod will not appear on the Republican party ballot at the
March 19, 1974 primary election.
As a result of defendant's action, plaintiffs have allegedly
been deprived of their constitutional right to participate
effectively in the selection of the candidate for the office of
Committeeman of the political party of their choice.
The plaintiffs in the instant motion request that this Court
enter a temporary restraining order enjoining the defendants and
their agents, employees, successors in office and all those
acting in concert or participation with them (1) from
implementing the provisions of chapter 46 § 7-10 of the Illinois
Revised Statutes and thereby not disqualify plaintiffs as
nominating petition signers for candidates for the office of
Republican Township Committeeman of Niles Township on the grounds
that they requested a primary ballot of the democratic party at
the March 1972 primary election or within two years of the date
on which the petition was to be filed, and (2) from printing
ballots for the March 19, 1974 Republican primary election
without the names of William J. Elliott and John Nimrod appearing
In support of their motion, the plaintiffs have made the
following additional contentions:
1. The ballots for the March 19, 1974 primary are to
be printed on January 23, 1974.
2. Crucial to the preservation of plaintiffs' rights
is that the status quo be maintained until the
constitutionality of the practice of chapter 46
section 7-10 is determined. Otherwise, the ballots
for the March 19, 1974 primary will be printed, the
names of William J. Elliott and John Nimrod will
not appear on the Republican ballots, and
plaintiffs will be deprived of the right to
effectively participate in the choosing of the
candidate for the office of Committeeman of the
political party of their choice.
3. Plaintiffs have no adequate remedy at law. Unless
this Court immediately restrains defendants and
their agents, employees, successors in office and
all those acting in concert or participation with
them from declaring invalid plaintiffs' signatures
and thus the candidacies of Messrs. Elliott and
Nimrod and from printing the March 19, 1974 primary
ballots without the names of William J. Elliott and
John Nimrod appearing on it, plaintiffs will suffer
4. Based on the Supreme Court's holding in Kusper v.
Pontikes, 51 U.S. 414, 94 S.Ct. 303, 38 L.Ed.2d 260
(1973), there is a substantial likelihood that
plaintiffs will prevail on the merits.
After carefully evaluating the merits of the instant motion, it
is the opinion of this Court that the plaintiffs' motion for a
temporary restraining order should not be granted at this time.
Before a temporary restraining order can be granted, it is
incumbent upon a court to favorably find that there exists a
specific injury which does not have an adequate remedy at law and
that there is a substantial likelihood that plaintiffs will
prevail on the merits. See United States v. United Mine Workers,
330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884 (1947); United States v.
Washington Post Co., 144 U.S.App.D.C. 321, 446 F.2d 1322 (1971);
Norwalk CORE v. Norwalk Board of Education, 298 F. Supp. 203
(D.Conn., 1968). The instant motion for a temporary restraining
order fails to satisfactorily meet these requirements.
I. There Presently Exists an Adequate Remedy at Law.
Contrary to the contentions of the plaintiffs, there presently
are pending in Illinois State Court several actions
involving virtually the same parties and actually the same legal
and factual issues.*fn2 These state court actions have been
initiated pursuant to chapter 46 § 10-10.1 of the Illinois
Revised Statutes. Section 10-10.1 provides that a candidate or
objector aggrieved by the decision of an electoral board may
secure judicial review of such decision in the circuit court of
the county in which the hearing of the electoral board was held.
See Lizak v. Zadrozny, 4 Ill. App.3d 1023, 283 N.E.2d 252 (1972);
Wiseman v. Elward, 5 Ill. App.3d 249, 283 N.E.2d 282 (1972). Since
there presently is pending judicial review in State Court of the
instant controversy, a temporary restraining order issued by a
federal District Court is not proper at this time.
Peculiar to our federal system is the principle that where a
challenged state statute and state administrative action under
such a statute is susceptible of a construction by the state
judiciary that would avoid or modify the necessity of reaching a
federal constitutional question, federal courts should refrain
from acting until after state courts have been given an
opportunity to properly act. Zwickler v. Koota, 389 U.S. 241, 88
S.Ct. 391, 19 L.Ed.2d 444 (1968); Harrison v. NAACP,
360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959). Likewise, where a
state statute provides for judicial review of administrative
practices under a state statute federal courts should allow state
courts an opportunity to legally and equitably resolve the
controversy even though the controversy might have putative
constitutional dimensions. Federal court patience and reservation
in such cases not only serves to minimize federal-state friction,
but also avoids premature and perhaps unnecessary constitutional
adjudication. Harman v. Forssenius, 380 U.S. 528, 85 S.Ct. 1177,
14 L.Ed.2d 50 (1965). Such federal restraint is especially proper
in cases such as the instant action which involve a fairly
complex state statutory scheme designed to protect the integrity
of the political party system. See Rosario v. Rockefeller,
410 U.S. 752, 93 S.Ct. 1245, 36 L.Ed.2d 1 (1973); Bendinger v.
Ogilvie, 335 F. Supp. 572 (N.D.Ill., 1971).
In one sense the fatal flaw in the plaintiffs' motion is not
that it was made, but that it was made prematurely and
II. It is Questionable Whether the Plaintiffs will Prevail on
It is the opinion of this Court that a citizen's right to
freely vote in a primary election is significantly different from
the citizen's putative right to participate as a signatory on a
nominating petition in a political parties nomination of
candidates regardless of that citizen's past party affiliation,
declaration or acts. See Bendinger v. Ogilvie, supra; Briscoe v.
Kusper, 435 F.2d 1046
(7th Cir., 1970).
The keystone of our democracy is the party system of politics.
Before any general election, each party must go through its
manpower resources in order to find a candidate who not only
represents a concensus of the opinions of the members of his own
party, but will be appealing to a majority of the entire voting
population as well. It could be argued by the defendants that if
the instant challenged statute did not exist, this system could
be thrown into total chaos. For instance, suppose Party "A" had a
strong candidate for a certain post and it was clear that he
would receive his party's nomination with votes to spare. Without
the deterrent effect of the instant challenged statute, it
would be a relatively simple matter for Party "A" to have its
party regulars circulate and sign nominating petitions for
certain weak candidates to run in Party "B's" primary in the hope
that given a planned dilution of Party "B's" votes by cross-over
voting, one of the weak candidates might very well win the Party
"B" primary and then put up little or no opposition to the Party
"A" candidate in the ensuing general election.
The possibility of confusion and subversion of the elective
process is clear. The unconstitutionality of the statute in
question and thus the prevailing of the plaintiffs on the merits
is not obvious or certain. The instant controversy is clearly
distinguishable from the case of Kusper v. Pontikes, supra.
III. Given the Present Posture of this Case, the Instant Motion
Seems Inappropriate Against the Present Defendants.
The plaintiffs in the instant motion seek to enjoin the
defendants, the members of the Cook County Electoral Board, (1)
from implementing the provisions of chapter 46 § 7-10 of the
Illinois Revised Statutes and thereby not disqualifying the
plaintiffs as nominating petition signers, and (2) from printing
ballots for the March 1974 Republican primary election without
the names of the two candidates in question.
The efficacy of the requested restraining order against the
instant defendants seems quite questionable. Section 7-13 of the
Illinois Election Code (Chapter 46 of the Illinois Revised
Statutes) provides that after hearing upon the validity of
objection to the nominating petition for township committeeman
"the Board shall not less than 74 days prior to the date of the
primary certify its decision to the County Clerk stating whether
or not the names of the candidate shall be printed on the ballot
and the County Clerk in his certificate to the board of election
commissioners shall leave off of said Certificate the name of the
candidate decreed by the said board not to be printed on the
ballot and the County Clerk shall also refrain from printing on
the official primary ballot, the name of any candidate whose name
shall be decreed not to be printed on the ballot by the electoral
It appears from a reading of this statute that the members of
the Electoral Board, the instant defendants, cannot at this late
date either certify the two candidates in question or prevent the
ballot from being printed without the two candidates' names on
it. Thus the actual effect of the requested restraining order
against these defendants would seem doubtful.
Accordingly, it is hereby ordered that the plaintiffs' motion
for a temporary restraining order is denied.