Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 80 C 438 -- Nicholas J. Bua, Judge .
Before Fairchild, Chief Judge, and Pell and Tone, Circuit Judges.
This appeal has been briefed on an emergency basis, due to the time constraints faced by the defendants, the Chicago Board of Election Commissioners and its members, in arranging for ballots to be printed for the primary election to be held on March 18, 1980. Under Rule 34 of the Federal Rules of Appellate Procedure, we have decided this appeal without oral argument. Due to the emergency nature of the appeal, we have dispensed with the notice generally provided under Circuit Rule 14(f).
The plaintiffs are candidates in the primary election to be held March 18, 1980. Their complaint relates to the manner of placement of candidates on the ballot for that election. The layout of the ballot on the voting machines is such that the offices are listed in horizontal fashion across the top of the ballot, with the names of the candidates listed in vertical columns under the appropriate offices. In some cases, where there is insufficient space to list all candidates in one vertical column, more than one column is used for the same office so that for those offices, some of the names will appear in sequence on a horizontal line and others will appear below on lower horizontal lines.
The plaintiffs sought injunctive relief which would have required the defendants to list all candidates for each of the offices in question on the same line (i. e. horizontally across the face of the ballot), thus widening the space devoted to each office. The district court denied preliminary injunctive relief, finding insufficient likelihood of success on the merits. An injunction pending appeal was also denied.
It is settled that on appeal from the denial of a preliminary injunction, the question before us is whether the district court judge abused his discretion. Kolz v. Board of Education, 576 F.2d 747 (7th Cir. 1978).*fn1 The standards applicable here are the usual standards for determining whether a preliminary injunction should issue, including whether the plaintiffs have shown a probability of ultimate success on the merits. Because we determine that they have not, we conclude that the district court judge did not abuse his discretion in denying a preliminary injunction.
To expedite this matter in the district court, the parties entered into a stipulation of facts for the purposes of the motion for preliminary injunction. We will summarize the crucial portions of that stipulation, to show the posture of this case when the district court ruled. The parties stipulated that the order of ballot placement is determined by the order in which petitions are filed, with ties being broken by means of impartial lotteries. The defendants determined the number of vertical columns needed to accommodate the candidates for each office. For example, in one Congressional District there are 43 Democratic Candidates for Delegate to the National Convention. Since there are only four horizontal rows available on the Democratic primary ballot, 11 vertical columns were needed to list all candidates. Where multiple vertical columns are involved in the same race, candidates were listed in horizontal rows. Thus, in the above example, the first 11 candidates were listed on the first horizontal line, the second 11 were listed on the second horizontal line, and so on. Where there are four or less candidates running for an office (and therefore only one vertical column is required), the candidates are listed vertically with the first candidate on the top line. Only 60 vertical columns are available on the voting machines.
The parties stipulated that when candidates are arranged vertically, the one listed on top has a certain advantage, and that when they are arranged horizontally, the one at the far left has a certain advantage. Cf. Weisberg v. Powell, 417 F.2d 388, 392-93 (7th Cir. 1969). In the absence of other changes, if all candidates for every office were listed horizontally, some contested offices would have to be taken off of the machine and tallied by another means. If only the named plaintiffs and their opponents were to be arranged horizontally, this could be accomplished without removing contested offices from the machine so long as the candidates for other offices continued to be arranged in vertical columns.*fn2 It was stipulated that removing contested elections from the machine and tallying them by other means would result in substantial monetary costs, and would probably result in voter confusion and less accurate results. Removing only uncontested elections from the machine would result in no significant additional monetary costs. At present, the defendants plan to put 13 uncontested judicial elections on paper ballots for the primary. In order to minimize the use of paper ballots and maximize use of the machines, the placement of candidates in vertical columns is required by the space limitations of the machine.
The specific form of relief sought by the plaintiffs is as follows. They would have required the defendants to remove the remaining uncontested races from the machine ballot, which would make available a certain number of vertical columns. The extra columns could then be used to accommodate the plaintiffs and their opponents, so that all candidates in the four races in question would be listed horizontally on the first line. In other words, while candidates in other races would continue to be arranged in vertical columns beneath the listing of the offices, the candidates in the plaintiffs' four races would be listed horizontally under the designated offices, all on the same horizontal line.
In prior ballot placement cases, we have considered special procedures which were set up for early filing of petitions without general public dissemination, Weisberg v. Powell, supra, and the widespread and persistent practice by County Clerks of excluding opposition party members from the top ballot position, Sangmeister v. Woodard, 565 F.2d 460 (7th Cir.), appeal dismissed, 435 U.S. 939, 98 S. Ct. 1516, 55 L. Ed. 2d 535 (1977). In the Weisberg case there were two unequal aspects to the system, which gave rise to an equal protection violation. First, special arrangements were made for Sunday mail delivery, with the Sunday petitions considered to be filed first. The public at large was not advised of these facts, so that only those who knew of the special arrangements could take advantage of them. Second, the Secretary of State selected the order of placement of petitions filed at the same time, doing so according to his own personal preferences. The Sangmeister case involved the question of ...