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AMENT v. KUSPER

January 18, 1974

LORRAINE AMENT ET AL., PLAINTIFFS,
v.
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 restraining order.

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 Election Code.

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 on it.

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
    irreparable harm.
  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. ...


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