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LAWLOR v. CHICAGO BOARD OF ELECTION COM'RS

April 23, 1975

FRANCIS X. LAWLOR ET AL., PLAINTIFFS,
v.
CHICAGO BOARD OF ELECTION COMMISSIONERS ET AL., DEFENDANTS.



Before Sprecher, Circuit Judge, and Decker, and McLAREN, District Judges.

The opinion of the court was delivered by: Decker, District Judge.

MEMORANDUM OPINION

This case arises from the untimely vacancy in the office of Representative for the Fifth Congressional District of the State of Illinois, brought about by the death of then Representative John Kluczynski. To remedy the situation, the state plans to hold a special election. Plaintiff Francis X. Lawlor, who seeks the nomination of the Republican party, and fourteen co-plaintiffs, who wish to vote for him in a primary election, seek relief from an allegedly unconstitutional aspect of the Illinois Election Code, Ill.Rev.Stat. Ch. 46 § 1-1 et seq. Specifically, they ask that §§ 7-5 and 7-12 ¶ 8. be held unconstitutional facially and as applied. These sections direct that no primary election be held if, for each office to be filled by election, no more than one person from any party is entitled to have his or her name printed on the primary ballot for an election at which no other offices are to be voted on. The plaintiffs further request an injunction requiring that a primary election be held. The defendants to be so enjoined are the Chicago Board of Election Commissioners, the State Board of Elections, the Governor and the Attorney General.

Because plaintiffs request relief with respect to state statutes, rather than local ordinances, their motion for the convening of a three-judge court was granted pursuant to 28 U.S.C. § 2281, 2284. Since that time, the Chicago Board of Election Commissioners moved to dissolve the three-judge panel, and oral argument was heard on that motion and on the propriety of issuing a preliminary injunction. For the reasons set forth below, the motion to dissolve is denied, and §§ 7-5 and 7-12 ¶ 8. are declared unconstitutional on their face.

The court has not considered, nor have we been asked to consider, any question as to the constitutionality of the ordinary nomination procedure under the Election Code followed by a person seeking office under the banner of a political party. See § 7-2. Under that procedure, the person must submit petitions with a number of signatures equal to a specified percentage of the qualified primary electors in the district. See § 7-10. In this case, the required number of signatures was 91. A person who correctly follows this procedure and otherwise qualifies is entitled to have his name printed on the primary ballot. In every primary election, voters are specifically given the right to write in the name of any person and are not restricted to vote only for those whose names are entitled to be printed on the ballot.*fn1

Plaintiff Lawlor attempted to follow the statutory procedure and submitted petitions bearing the signatures of over 400 voters. However, the Chicago Board of Election Commissioners found that Lawlor's statement of candidacy was not substantially in the form provided in Ill.Rev.Stat. Ch. 46, § 7-10, and ruled him ineligible for inclusion on the primary ballot by order of March 11, 1975. Consequently, the Chicago Board of Election Commissioners did not certify plaintiff to the State Board of Elections as a person entitled to have his name printed on the primary ballot. Plaintiff unsuccessfully sought to overturn the Chicago Board's determination in the Circuit Court of Cook County, Illinois.*fn2

Following this setback to his quest for the Republican nomination, plaintiff Lawlor decided to challenge the sole candidate for the Republican Party whose petitions had been accepted, by running in a primary election as a write-in candidate. It is at this juncture that the challenged sections become crucial. In pertinent part, the sections read:

    "No primary shall be held where the name of not
  more than one person of each political party is
  entitled to be printed on the primary ballot as a
  candidate for the nomination for each office to be
  filled at an election at which no other offices are
  to be voted on." (§ 7-5)
    "In any case where the name of not more than one
  person of each political party is entitled to be
  printed on the primary ballot as a candidate for the
  nomination for any office to be filled at an election
  at which no other offices are to be voted on the city
  clerk, county clerk or State Board of Elections as
  the case may be shall certify the name of such person
  as the nominee for such office and no primary shall
  be held." (§ 7-12 ¶ 8.)

As matters now stand, only one person from each party, Republican and Democratic, has submitted petitions which have met the approval of the Chicago Board of Election Commissioners, and if the statutes are followed, there will be no primary election, and these two candidates will automatically be certified as the nominees of their respective parties.

Plaintiff Lawlor and his co-plaintiffs assert that when Illinois provides a primary election with the privilege of write-in voting in all other situations where any contest exists for any office, it cannot constitutionally deny a primary to them with the same write-in privileges, when they have a viable candidate who wishes to contest the election of the candidate who has obtained ballot position.

The Three-Judge Panel Was Properly Convened

The constitutional question raised is not insubstantial. No federal court has ever explicitly considered it.*fn3 A formal basis for equitable relief has been alleged. Coosby v. Osser, 409 U.S. 512, 519, 93 S.Ct. 854, 35 L.Ed.2d 36 (1973); Idlewild Liquor Corp. v. Epstein, 370 U.S. 713, 715, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962). The challenged sections of the Election Code have statewide application, though not in this single application. See Steffel v. Thompson, 415 U.S. ...


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