The opinion of the court was delivered by: William T. Hart District Judge.
This is a civil rights action for declaratory and injunctive relief,
brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1651, 2201-2202.
Plaintiffs challenge the constitutionality of the actions, or August 24,
1982, of the defendant Board of Election Commissioners of the City of
Chicago (the "Board") and its members in holding insufficient the
nominating petitions of plaintiff John W. Moore Party and plaintiff
candidate John W. Moors. Plaintiffs further challenge the
constitutionality of § 10-4 of the Illinois Election Code.
Ill.Rev.Stat. 1981, ch. 46, § 10-4.
Based on that provision, the
Board invalidated some of plaintiffs' new political party nominating
petitions for the office of Representative in the Illinois General
Assembly at the November 2, 1982 general election, as they were
circulated by a person who previously circulated established political
party nominating petitions
for the office of Illinois State Senator at the March 16, 1982 primary
 This Court has jurisdiction over this action pursuant to
28 U.S.C. § 1343 (a)(3) and 1343(a)(4) in that plaintiffs seek to
redress the deprivation, under color of state law, of rights secured to
them by the Constitution of the United States, including the First and
Fourteenth Amendments. The fact that the election has passed does not
moot the issues presented in the complaint. Declaratory relief may still
be granted. Storer v. Brown, 415 U.S. 724, 737, n. 8, 94 S.Ct. 1274,
1283, n. 8, 39 L.Ed.2d 714 (1974); Rosario v. Rockefeller, 410 U.S. 752,
756, n. 5, 93 S.Ct. 1245, 1249, n. 5, 36 L.Ed.2d 1 (1973).
Plaintiffs filed this action on September 24, 1982. On October 2, 1982
plaintiffs appeared before the Court in support of their motion for a
temporary restraining order and preliminary injunction declaring
unconstitutional § 10-4 of the Illinois Election Code and requiring
defendants to validate nominating petitions for plaintiff Moore as a
candidate for the office of representative in the General Assembly and to
cause his name to be printed on the November 2, 1982 ballot. After
considering the motion and materials filed by the parties and hearing
oral argument, the Court concluded that plaintiffs had failed to seek
equitable relief in a timely fashion in the context of an election case
and had failed to show a reasonable likelihood of success on the merits.
Accordingly, injunctive relief was denied.
William Anderson joined this action individually as a plaintiff and on
behalf of all others similarly situated who desired to vote for plaintiff
Moore. However, no motion to certify a class was made and this action
proceeded to trial as an individual action.
Plaintiffs waived their claims against Stanley Kusper and Taylor
Pouncey and their motion to dismiss the action as to them is hereby
FINDINGS OF FACT
On September 4, 1984 the pretrial order was approved. The pretrial
order included a stipulation of uncontested facts which the Court adopts
as findings of fact as follows:
1. Plaintiff Citizens for John W. Moore Party ("Moore Party") is an
unincorporated association with its principal office in Chicago,
2. The Moore Party sought to form a new political party in the
Thirty-First Representative District and to nominate John W. Moore
("Moore"), its party chairman, as its candidate for Representative in the
Illinois General Assembly for the Thirty-First Representative District in
the November 2, 1982 General Election.
3. Plaintiff Moore is a United States citizen over twenty-one years of
age who resided in the Thirty-First Representative District for over two
years by the time of the November 2, 1982 General Election.
4. Plaintiff Moore sought to run as a candidate of the Moore Party for
the office of Representative in the General Assembly for the Thirty-First
Representative District in the November 2, 1982 General Election.
5. Plaintiff Willie Anderson ("Anderson") is a United States citizen
over eighteen years of age who is registered to vote in the Thirty-First
6. Plaintiff Anderson desired to vote for Moore, the candidate of the
Moore Party, for the office of Representative in the Illinois General
Assembly for the Thirty-First Representative District in the November 2,
1982 General Election.
7. Defendants Michael E. Lavelle ("Lavelle"); James R. Nolan ("Nolan")
and Corneal A. Davis ("Davis") are members of and comprise the Board of
Election Commissioners for the City of Chicago ("Chicago Board").
Defendant Lavelle is chairman of said Chicago Board. Said defendants were
responsible under the Illinois Election Code (Ill.Rev.Stat. 1981, ch.
46, § 1-1 et seq.) for determining the validity of nominating
petitions of new political parties and of persons seeking to become
candidates for election to the office of Representative
in the General Assembly for the Thirty-First Representative District for
the November 2, 1982 General Election and for printing the names of all
candidates running for office in the November 2, 1982 General Election
from a territory either partially or wholly within the City of Chicago.
In addition, said defendants conducted and declared the results of said
8. Defendants J. Phil Gilbert; Michael J. Hamblet; John W. Countryman;
Richard A. Cowen; Carolyn R. Eyre; Joshua Johnson; John L. Lanigain and
Teresa M. Petrone are members of and comprise the Illinois State Board of
Elections. The Illinois State Board of Elections was required by law to
certify to the County Clerk, the names of the candidates for election
with respect to the general election held in November of 1982. Because
the Board of Election Commissioners for the City of Chicago determined
that the plaintiff Citizens for John W. Moore Party and its candidate
John W. Moore did not have sufficient signatures on its petition to
qualify for the 1982 election for State Representative for the
Thirty-First Representative District, the Illinois State Board of
Elections did not so certify the candidacy of John W. Moore for the
office of Representative in the General Assembly.
9. Taylor Pouncey ("Pouncey") is the person who objected to the
validity of plaintiffs' nominating petitions and thus initiated the
proceedings before the defendant Board and the enforcement of the statute
against which plaintiffs herein complain. Pouncey was the nominee of the
Democratic Party for election to the office that Moore sought.
10. Plaintiffs Moore Party and Moore timely filed nominating petitions
purporting to contain 3,829 valid signatures.
11. Pouncey timely filed objections to said nominating petitions. Among
the deficiencies in the nonminating petitions alleged by Pouncey was the
John W. Moore circulated Petitions for Nomination for
the Democratic Party in December, 1981. for
candidates to be elected at the November 2, 1982
general election arid circulated sheets of the
Petition to form Citizens for John W. Moore in
violation of Section 10-4, the Illinois election
Code. More particularly, John W. Moore circulated
sheets numbered (numbers specified) in the Petition
improperly and the 975 signatures on those Petition
Sheets are invalid because of an improper
12. At the hearing before the defendant Chicago Board, plaintiffs Moore
Party and Moore, inter alia, moved to strike the objections to the
petition sheets circulated by plaintiff Moore on numerous factual and
13. At the hearing before the defendant Chicago Board, uncontroverted
evidence was introduced that plaintiff Moore had circulated petitions
seeking the Democratic Party nomination of himself for the office of
State Senator for the Sixteenth Legislative District at the March 16,
1982 Primary Election. Further uncontroverted evidence was introduced
that, in or around April of 1982, plaintiff Moore circulated new
political party petition sheets seeking to place the Citizens for John W.
Moore Party on the November 2, 1982 general election ballot for the
office of representative in the General Assembly for the Thirty-First
Representative District. Plaintiff John W. Moore was said party's
candidate for Representative.
14. Defendant Chicago Board denied plaintiffs' motions to strike the
objections to the petitions circulated by Moore and, on August 24, 1982,
issued a written opinion finding that the Moore party's nominating
petition was invalid in that it contained an insufficient number of
Signatures to qualify the plaintiff Moore Party and plaintiff Moore for
access to the ballot as a candidate for the office of Representative in
the General Assembly for the Thirty-First Representative District for the
November 2, 1982 general election.
15. As a result of the defendant Chicago Board's actions, the plaintiff
Moore and the plaintiff Moore Party did not appear on the ballot for the
November 2, 1982 general
election. But for the defendant Chicago Board's ruling invalidating
petition sheets circulated by the candidate himself (containing 975
otherwise valid signatures), the nominating petitions would have
contained the 1500 signatures required to place the names of the Moore
Party and the candidate Moore on the ballot.
16. In the cases of "Big James" Phipps, Case No. 80 EB 3 and James
"Skip" Burrell, Case No. 80 EB 4, both decided on December 27, 1979, the
Chicago Board, in sustaining the candidate's Motions to Strike Paragraphs
5 and 6 of Objector's Petitions, cited the following reasons for its
Paragraph [5, 6] of the Objector's Petition relies on
the prohibition in Section 10-4 of the Election Code
against the circulator of an independent candidate's
petition from also circulating a petition for a
candidate for a political party to be voted upon at
the next Primary or General Election. The
prohibitions contained in Section 10-4 are
susceptible to varying interpretations. Moreover,
there is no evidence in the record as to when in
point of time the petitions (independent as well as
political party) were circulated. Accordingly, to
strike the signatures on petition sheets in question
would violate the judicial standard of the electoral
review enunciated in Briscoe v. Kusper, 435 F.2d 1046
(7th Cir. 1971).
17. In Marcus v. Nimrod, No. 82 CO EB 3, before the County Electoral
Board, that Board held:
Paragraph Eight of Objector's Petition alleges that
certain sheets should not be counted in that the
circulators of some of the sheets had previously
circulated petition sheets for candidates of other
political parties. This Electoral Board finds that
there is no statutory or case law prohibition against
one circulating a nominating petition for a candidate
for the primary election and then circulating a
petition to form a new political party and to
nominate another candidate for a different office for
a different election, to wit, the General Election to
be held on November 2, 1982, and that such finding is
consistent with previous holdings of the City of
Chicago Municipal Officers Electoral Board.
Therefore, Paragraph Eight is hereby stricken and
18. A political party which at the last election in any legislative
district polled more than five per cent of the entire vote cast within
such district for the election of officers to serve the district is an
"established political party" within the meaning of Article 10 as to such
district. Section 8-2 defines "political party" as:
a political party which, at the next preceding
election for governor, polled at least five per cent
of the entire vote cast in the State.
19. Candidates of established political parties for the office of
Representative in the General Assembly are nominated at primary
elections. (§ 8-1 et seq.).
20. Persons seeking established party nominations for state legislative
office qualify for the primary election ballot by, inter alia, filing
nominating petitions 99-92 days prior to the Primary Election. (§
21. Petitions supporting the candidacy of persons seeking established
political party nominations must be circulated and attested to by a
registered voter of the political division in which the candidate seeks
office. (§ 7-10).
22. Independent (non-party) candidates and candidates of "new"
(non-established) political parties for the office of Representative in
the General Assembly are nominated by petition only and stand for
election at the General Election. (§§ 10-1 et seq.).
23. Independent (non-party) candidates for the office of Representative
in the General Assembly present their nominating petitions at the same
time as established party candidates for the same office. (§ 10-3).
24. Petitions to form a new political party and to nominate candidates
for the office of Representative in the General Assembly
of such a part file their nominating petitions 99-92 day prior to the
General Election. (§ 10-6).
25. Petitions supping the candidacy of independent (non-pay) and new
(non-established) political pay candidates for the office of
Representation in the General Assembly must be circulated and attested to
by a registered voter of the political division in which the candidate
seeks office. (§ 10-4).
26. Certificates of nomination and nomination papers, being filed as
required by the Illinois Election Code and being in apparent conformity
with the provisions of the Code, are deemed to be valid unless an
objection thereto is filed. (§ 19-8).
27. Nothing in Article 7 of the Illinois Election Code prohibits the
same person from circulating no mating petitions for candidates of more
than one established political party. (§ 7 et seq.).
28. Section 10-4 prohibits a new party candidate from circulating
petitions for himself in the general election if he:
a. circulated pettions for himself as an established
party candidate for the same office in the
b. circulated petitions for himself as an established
party candidate for a different office in the
c. circulated petitions for an established party or
independent candidate to be voted upon at the
primary or general election.
29. Section 10-4 prohibits a new party candidate who lost as an
established political party candidate in the primary for the same office
or a different political office from using as circulators for the general
election supporters who:
a. circulated petitions for him in the primary; or
b. circulated petitions for another established
party independent, or new party candidate to
be voted upon at the next primary or general
30. Section 19-4 prohibits supporters of a new party candidate from
circulating new party petitions if they:
a. circulated petitions for the same person as an established Party
candidate for the same office or a different office in the primary;
b. circulated petitions for another established party, independent or
new party candidate or the same office or a different office to be
voted upon at the next primary or general election.
31. "Running for office: A Candidate's Guide," prepared by the
defendant State Board of Elections for the 1980 elections, states on page
Article 10 of the, Illinois Election Code explains in
detail how to seek office in Illinois as an
and states on page 17:
Article 10 of the Illinois Election Code deals with
new political parties — how they are formed and
how their candidates get on the general election
32. The language of § 10-4 of the Illinois Election Code, on its
face, does not prohibit persons from circulating or certifying petitions
for more than one independent candidate to be voted upon at the next
33. The State Board caused to be prepared, printed and published a
document entitled Running For Office, A Candidate's Guide (1980) which
states, on page 3 that:
(c) may not circulate for more than one party; nor for more than one
party and one independent candidate in same election.
34. The State Board caused to be prepared, printed and published a
document entitled A Candidate's Guide for 1982 Elections which contains a
section (pages 3-8) devoted to "Preparing and Filing Nomination Papers"
and a statement therein which reads in part:
All candidates for public office in Illinois —
whether they are established party candidates,
candidates of new parties or
independents — must carefully follow the law when
filing their nominating papers.
The following is a step-by-step outline of the proper
way for a candidate to meet these filing requirements.
II. Petition Circulator
b. May not circulate for more than one party (Chap.
46, Art. 10-4); may not circulate more than one
independent's petition for each office or elected
(Chap. 46, Art. 10-4); may not circulate for an
independent candidate or candidates in addition to
a political party candidate in the same election
(Chap. 46, Art. 10-4)."
35. The State Board caused to be prepared, printed and published a
document entitled A Candidate's Guide for 1983 Elections which contains a
statement at page 6:
"2. Petition Circulator
b. A petition circulator may not circulate for more
than one for one party and for one independent
candidate in the same election; and may not
circulate for more than one independent candidate
for each office. (Chapter 46, Secs. 10-3 and
36. Section 10-2 of The Election Code defines the term "political
party," as used in Article 10, to mean any "established political party
and also any political group which undertakes to form an established
political party in the manner provided for in Article 10."
In addition, the Court makes the following findings of fact based on
the evidence submitted.
37. Both the Sixteenth Legislative District and the Thirty-first
Representative District are in the Englewood Community Area of Chicago,
38. Plaintiffs were required to obtain 1,500 signatures to nominate
Moore as a new party candidate for the 31st Representative District.
Plaintiffs actually submitted 3,829 signatures collected by Moore and six
circulators. Moore alone obtained 975 signatures out of the 3,289
signatures submitted. The Board invalidated those signatures obtained by
Moore because of the circulator restriction in § 10-4. The Board also
invalidated an additional 1,493 signatures for reasons unrelated to
§ 10-4. Consequently, the Board accepted as valid only 1,361 of the
3,829 signatures submitted to nominate Moore.
39. Moore was unaware of the circulator provision in § 10-4.
40. Plaintiffs failed to offer sufficient evidence to establish that an
additional 139 valid signatures could not have been obtained because of a
limited pool of circulators.
CONCLUSIONS OF LAW
Ballot access restrictions on voters and candidates implicate
fundamental constitutional rights. Anderson v. Celebrezzi,
103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); Dunn v. Blumstein,
336-37, 92 S.Ct. 995, 999-1000, 31 L.Ed.2d 274 (1972); Wesberry v.
, 17-18, 84 S.Ct. 526, 534-35, 11 L.Ed.2d 481 (1964).
Restrictions on access to the ballot burden the right of individuals to
associate for the advancement of political beliefs and the right of
voters to cast their votes effectively. In Anderson the Supreme Court
outlined the analytical process a court must pursue to resolve the merits
of such constitutional challenges:
, 789, 103 , S.Ct. 1564, 1570, 75 L.Ed.2d 547.
Plaintiffs make two basic arguments. First, they contend that the
challenged provision of § 10-4 violates the Equal Protection Clause
of the Fourteenth Amendment because it applies only to new political
parties and independent candidates. Second, even if § 10-4 does apply
to established political parties as well as to new political parties and
independent candidates, plaintiffs contend that the defendants have not
shown that the state has a compelling interest which justifies the
burdens imposed by § 10-4 on the First and Fourteenth Amendment
rights of new political parties, candidates and voters.
I. The Equal Protection Claims
 Plaintiffs argument that § 10-4 violates the Equal Protection
Clause rests on their interpretation of the provision as applicable only
to new parties and independent candidates. This construction, however, is
not supported by an examination of Article 10. Article 10 is broader than
plaintiffs claim and is interrelated to Articles 7 and 8. Article 10
provides for the manner in which establish political parties are created.
The provisions of this Article also govern the filing an hearing of
objections to nomination paper filed pursuant to Articles 7 and 8 which
apply to established political parties, as well as those filed pursuant to
Moreover, § 10-2 provides that the term "political party," as used
in Article 10, shall include "any established political party," defined
as any pay receiving over 5% of the vote cast for any elective office.
Thus § 10-4, in prohibiting a person from circulating nominating
petitions for candidates of more than one "political party" or for an
independent candidate in addition to a "political party" was expressly
and specifically intended to apply to both established and new political
The State Board of Elections has published several documents and
pamphlets which are used as candidates guides. It has consistently
interpreted the circulator restriction provision in § 10-4 to apply
to all political parties and has never made the distinction between
established political parties and new political parties and independents
suggested by the plaintiffs.
The fact that the Board of Election Comissioners of the City of Chicago
may have decided two cases contrary to the position taken by the State
Board does not give rise to a situation found to exist in Briscoe v.
Kusper, 435 F.2d 1046 (7th Cir. 1970) (unannounced change in election
board policy violates due process). There is some distinction between
this case and the Phipps and Burrell cases,*fn2 but of greater
importance is the fact that the statutory language is clear and the State
Board has consistently advised candidates that the circulator provision
applies to all circulators. Accordingly, there is no invidious
discrimination between established political parties and new parties or
independent candidates. Plaintiffs' Equal Protection claim is rejected.
Plaintiff Moore testified that during the summer of 1981 he decided to
become a Democratic candidate the March, 1982 primary election for the
office of State Senator for the Sixteenth Legislative District. Moore had
voted in past Democratic primaries and had been a candidate in the 1980
Democratic primary for representative in the General Assembly. Moore and
his supporters circulated petitions for the office of State Senator.
However, before the primary he withdrew his name for the nomination.