Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. Nos. 76 C 3635 and 76 C 3752 - Thomas R. McMillen, Judge. Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76 C 3267 - Bernard M. Decker, Judge.
Sprecher, Tone and Bauer, Circuit Judges.
This appeal challenges the decisions of two district courts holding that the practice by Illinois County Clerks of placing their own political party in the first or top position on voting ballots in all general elections violates the equal protection clause.
This appeal actually involves three different suits brought against three different County Clerks or County Boards of Election Commissioners in Illinois. Initially, there is the consolidated appeal of two district court cases, Sangmeister v. Woodard (Will County) and Culliton v. DuPage County Board of Election Commissioners (DuPage County), reported at 419 F. Supp. 126 (N.D. Ill. 1976). However, the Sangmeister case was itself a consolidated trial of two actions; the other suit was Walsh v. Board of Election Commissioners (Cook County).
Although the cases were consolidated for this appeal, the Culliton case is in a somewhat different procedural posture before this court and so it will be discussed separately. Culliton was filed and tried prior to the November 1976 general election. Plaintiff was a Democratic Party candidate for State's Attorney of DuPage County, Illinois. Defendant is a body of three Commissioners, the County Clerk as Chairman and two others selected by the Circuit Court of DuPage County - one person representing each major party - in accordance with ILL. REV. STAT., 1975, ch. 46, § 6-21. Thus, the majority of that Board represents the Republican Party.
The plaintiff's complaint alleged that the defendant Board "has always placed the Republican Party candidates on the first line of the ballot, and the Democratic Party candidates and the Independent candidates have always been placed in the second or on lower lines of the ballot." The complaint characterized this practice as "arbitrary, preferential, discriminatory treatment" in violation of the equal protection clause of the Constitution and requested for relief, inter alia, a preliminary injunction enjoining the defendants from deciding the placement of candidates on the ballot in the November 1976 election by unconstitutional means.
A hearing was held on September 16, 1976 which the Docket describes as a "hearing held on motion for preliminary injunction."*fn1 Subsequent to the hearing the District Court entered on the Docket for September 20, 1976 "preliminary injunction granted for plaintiff with opinion to follow." In that opinion, the district court accepted the expert testimony of Dr. Samuel A. Kirkpatrick, professor of political science at Oklahoma University, to the effect that there was a favorable effect created by first or top ballot placement. The court also found that plaintiff had been intentionally denied equal access to the top ballot position. Based on those two findings, the district court held that the Board's practice did violate the Constitution.
The district court's remedy required the Board of Election Commissioners to employ an impartial, public drawing to decide ballot placement for each party. In addition, the court ordered the defendants to devise a rotational ballot placement procedure for future elections.
A public lottery was used by the DuPage County Board of Election Commissioners for placing candidates on the ballot in the November 1976 general election. The Board now appeals from the rest of the district court's order.
Plaintiffs in Sangmeister were all candidates for office in Will and Cook Counties in the November 1976 general election. They all alleged that the practice of the Clerk in Will County and the Board in Cook County of placing the party of the Clerk in the first position on the ballot in general elections was unconstitutional and sought preliminary and permanent injunctions against the practice.
A hearing for a preliminary injunction was held on October 15, 1976 and the injunction was denied on the basis that there was too little time between the hearing date ...