decided: January 11, 1979; As Modified March 2, 1979.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76-C-3752 - Thomas R. McMillen, Judge.
Before Fairchild, Chief Judge, and Swygert and Tone, Circuit Judges.
The Libertarian Party of Illinois appeals from an order of the District Court approving proposed "two-tier" plans for ballot placement in Cook County, Illinois, in the 1978 general election and finding the plans to be in compliance with our decision in Sangmeister v. Woodard, 565 F.2d 460, 467 (7th Cir. 1977). The challenged plans, submitted by the defendant Chicago Board of Election Commissioners for the City of Chicago and the defendant County Clerk of Cook County for the areas of the county outside Chicago, provided for a lottery to determine the order of "established political parties," I. e., parties that respectively polled at least five per cent of the vote at the last election, in the top ballot positions. The other parties on the ballot, "new political parties," which became eligible to appear on the ballot by filing petitions, were placed, in the order in which they filed their petitions, below the established political parties.*fn1 The result of the two-tier system was that the first two places on the ballot went to the Republican and Democratic Parties. The Libertarian Party argues that this system favors the major parties and therefore violates the equal protection clause of the Fourteenth Amendment to the United States Constitution and state law. We hold that the system satisfies the Constitution as interpreted in Sangmeister and affirm the decision of the District Court.
Sangmeister, decided by this court on November 7, 1977, held the ballot placement practice of Cook County and two other Illinois counties violative of the Fourteenth Amendment. The practice of the county clerk in each of those counties, and apparently in all other counties in Illinois, was simply to place the candidates of his party in the top positions on the ballot. The Board of Election Commissioners did the same in the City of Chicago. Our decision was based on the District Court's findings, supported in the record, that the top position on a ballot is advantageous in an election and that therefore the challenged practice amounted to intentional discrimination against the candidates of opposing political parties. 565 F.2d at 465-467. See also Bohus v. Board of Election Commissioners, 447 F.2d 821 (7th Cir. 1971). We held, however, that the remedy imposed by the District Court in one of the consolidated cases decided by our opinion, by which the court required the use of a rotational system for determining ballot placement in Cook County, was too restrictive. We noted that other systems, consonant with the Constitution, were in use elsewhere. Recognizing that each county had individual problems that would make one permissible system more practicable than others, we deferred to the expertise of the election officials. We remanded the case, instructing the District Court to order the defendants to adopt constitutionally valid ballot placement procedures in accordance with guidelines set forth in the opinion. 565 F.2d at 467-469.
Subsequently the Cook County election officials proposed plans embracing the two-tier system of ballot placement described above. The District Court entered an order on June 5, 1978, approving the plans as in conformity with the Sangmeister guidelines and directing that they be carried out. On June 9 the Libertarian Party of Illinois, a third-party defendant which had theretofore been quiescent, filed a motion to reconsider the June 5 order. The court then held an evidentiary hearing concerning the reasons for the two-tier system and denied the motion. The Libertarian Party appealed from the order denying the motion and the June 5 order. The appellees are the Cook County Clerk, the Board of Election Commissioners of Chicago, and the State Board of Elections. While there are references in the latter's brief to counties other than Cook, only the plans in Cook County are before us.
Although the defendants do not argue that, because the 1978 general election has already been held, the case is moot, it is appropriate to note that Moore v. Ogilvie, 394 U.S. 814, 89 S. Ct. 1493, 23 L. Ed. 2d 1 (1969), answers any question of mootness. The Court there held that a challenge to ballot access restrictions was not mooted after the election, because the burden of such restrictions "remains and controls future elections . . . . The problem is therefore "capable of repetition, yet evading review.' " Id. at 816, 89 S. Ct. at 1494, quoting Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 515, 31 S. Ct. 279, 55 L. Ed. 310 (1911). The same is true with respect to the challenged procedure in the case at bar. Consequently the Libertarian Party's claim is not moot.
Appellant argues that Illinois law does not authorize the two-tier ballot placement system. This argument was not asserted in the petition for reconsideration in the trial court and may not be raised for the first time on review.*fn2
A successful challenge to a ballot placement procedure under the equal protection clause requires a showing of "an intentional or purposeful discrimination by authorities in which one class is favored over another." Bohus v. Board of Election Commissioners, supra, 447 F.2d at 822, quoted in Sangmeister v. Woodard, supra, 565 F.2d at 465.*fn3 In Sangmeister, this requirement was expressed, in the guidelines for proceedings on remand, as mandating that "(t)he procedure adopted . . . be neutral in character." Different treatment of minority parties that does not exclude them from the ballot, prevent them from attaining major party status if they achieve widespread support, or prevent any voter from voting for the candidate of his choice, and that is reasonably determined to be necessary to further an important state interest does not result in a denial of equal protection. Cf. Buckley v. Valeo, 424 U.S. 1, 93-97, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976).
Appellant has made no showing that the two-tier ballot placement system it attacks is designed to favor the major political parties or their candidates over new political parties and their candidates.*fn4 All the evidence in the record supports the conclusion that its purpose was to prevent voter confusion, to serve voter convenience, and, less important but still relevant, to aid in the convenient tallying of results.
Election officials have good reason to adopt a ballot format that minimizes confusion. Because of the large number of county offices, in addition to state and national offices, the ballot in Cook County contains many names and many descriptions of offices. Voting in a general election in Cook County demands considerable attentiveness and concentration on the part of voters. As we explain in more detail in the margin,*fn5 only the two established political parties run candidates for all or substantially all of the offices to be filled. If ballot placement of all political parties were determined by lottery, the likely result would be large gaps on the ballot between the names of competing candidates for numerous county and judicial offices, which would confuse many voters and perhaps in practical effect cause some voters not to exercise a choice for the offices involved. In addition, there was evidence that leaving gaps between candidates would make it more difficult for election judges to read and record results.
In a petition for rehearing, the Libertarian Party, for the first time, advises us that two of the minority parties that appeared on the ballot in the 1976 general election were not on the ballot in the 1978 general election and argues that the 1976 ballot is not representative. Ordinarily, new arguments are not entertained on rehearing, but in any event the omission of two of the minority parties from the ballot would not alter our decision.
A vote of the active members of the court was requested on the suggestion for rehearing in banc. A majority*fn* of the active members of the court have voted to deny a rehearing in banc and a majority of the judges on the original panel have voted to deny the petition for rehearing. Except for the foregoing modification of the opinion, the petition of third-party defendant-appellant for rehearing and suggestion for rehearing in banc is DENIED.
An additional problem exists in Chicago because of limitations of space on the voting machines. With the two major parties at the top of the ballot, the judicial retention portion*fn6 fits into the block of space left by the short slates of the minor parties. If that block is cut up, as would be likely if a lottery of all parties were used for ballot placement, the judicial retention portion would have to be relegated to a separate paper ballot, with substantial added expense, inconvenience to voters, and delay in counting ballots. Even if it would be possible to crowd the judicial retention portion of the ballot into the gap between the two major parties, the resulting arrangement would be most confusing.
Our examination of the voting machine ballot format in evidence satisfies us that the placement used did avert a very real risk of voter confusion and also, in Chicago, where voting machines were in use, probably made it possible to avoid the undesirable alternative of handling the judicial retention balloting by a separate paper ballot. Not only would the separate ballot involve substantial public expense but it would make the recording of ...