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. ...