The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
Invoking 42 U.S.C. § 1988, plaintiffs seek an order temporarily
enjoining defendants' proposed enforcement of Section 10-2 of the
Illinois Election Code. For the reasons to follow, plaintiffs' motion for
relief is granted.
Plaintiffs Citizens Party of Illinois, Communist Party of Illinois, and
Arthur L. Turner Party are unincorporated associations principally
headquartered in Chicago, Illinois. Each wishes to place on the November
1982 ballot a candidate for election to the Illinois House of
Representatives. Each is a non-"established political party" as that term
is defined under Illinois law.
Plaintiffs Bruce D. Kaplan, Richard L. Giovanoni, and Representative
Arthur L. Turner are the proposed candidates of the Citizens Party, the
Communist Party, and the Arthur L. Turner Party,*fn1 respectively.
Plaintiff Louis Hirsch alleges that he is registered to vote and that he
wishes to vote for Kaplan. Plaintiffs Elizabeth Mitterer and Delores Sims
make similar allegations with respect to Giovanoni and Turner.
By virtue of the Election Code, "political groups" that poll more than
5% of the vote in a gubernatorial election are recognized as "established
political parties." Ill.Rev.Stat. ch. 46, § 10-2. As such, their duly
nominated candidates are automatically entitled to placement on the
printed ballot in the next subsequent election. id., § 10-1.*fn2 All
other political groups must petition for this right. Specifically, a
non-"established" organization that wishes to field candidates in some,
but not all, of the races to be held in an election*fn3 must submit for
each contest a petition "signed by qualified voters equaling in number
not less than 5% of the number of voters who voted at the next preceding
regular election in such district or political subdivision in which such
district or political subdivision voted as a unit for the election of
officers to serve its respective territorial area," Id., § 10-2.
However, because the 1982 elections are the first to follow a
redistricting, a special rule governs the plaintiffs' present access to
the ballot: "For the first election following a redistricting of
legislative districts, a petition to form a new political party in a
legislative district shall be signed by at least 3,000 qualified voters
of the legislative district." Id.*fn4 Defendants' interpretation of the
latter provision lies at the heart of this controversy.
Prior to the November 1980 elections, Illinois contained 59
"legislative districts." Each "district" elected one Senator and three
Representatives. The votes for the latter office were cast on a
cumulative basis. In 1980 the voters approved the so-called "Cutback
Amendment" to the Illinois Constitution. This measure drastically altered
the foregoing arrangement. Under the present law, Senators are still
elected from 59 "Legislative Districts," but Representatives are now
elected from 118 separate "Representative Districts," each district
electing one Representative. Each "Legislative District" contains two
The Illinois Legislature has not yet completely amended the Election
Code to reflect the changes brought forth by the "Cutback Amendment."
This failure to act has generated considerable confusion as to the
interrelationship between these two bodies of law. An Advisory Opinion
prepared by the General Counsel to the State Board of Elections highlights
the most glaring incongruity:
Section 10-2, when enumerating the various districts
and political subdivisions for which new political
parties can be formed, still refers to "legislative"
districts but makes no reference to the
recently-created representative districts. If read
literally, Section 10-2 would thus permit the
formation of a new political party for candidates for
the office of State Senator, but would not permit
ballot access to new political parties for candidates
to the office of Representative.
Having already concluded that the term "legislative"
district, as it appears in Section 10-2, should be
construed to refer to either a Legislative District or
a Representative District, as the case may be, (as
they exist in Article IV of the Constitution, as
amended), it is my opinion that for purposes of the
November 2, 1982, General Election, a new political
party petition for candidates for either the office of
State Senator or the office of Representative must
contain at least 3,000 qualified voters of either the
Legislative District or the Representative District,
Plaintiffs challenge the last interpretation as being unduly
restrictive of their right to be on the ballot. They argue that a new
party seeking the election of one of its members to the House is doubly
burdened compared to a second party wishing to elect one of its members
to the Senate. This is so because while both entities need 3,000
signatures, the party interested in the Senate seat can draw from an
available pool of voters that is roughly twice as large. Plaintiffs
further contend that this discrimination serves no rational purpose. For
under the Board's construction of the statutory term "legislative
district," in every election that does not follow a redistricting, both
Senate and House candidates are obligated to file signatures in an amount
that equals the same percentage — five — of the votes cast in
the preceding election held in the relevant electoral district. Thus, in
every election but one, plaintiffs suffer no discrimination whatsoever,
rendering the discrimination which does occur "freakish" and irrational.
Plaintiffs conclude that the Equal Protection clause has been violated,
and that, in the interest of parity, they should be required to submit
only 1,500 signatures. They seek an order to this effect.
A preliminary injunction can issue only if:
(1) The plaintiffs have no adequate remedy at law and
will be irreparably harmed if the ...