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Fuller v. Kusper





Appeal from the Circuit Court of Cook County; the Hon. Joseph Schneider, Judge, presiding.


Petitioner Thomas S. Fuller (Fuller), a registered voter in the city of Chicago, Cook County, seeks to have his name placed on the March 18, 1986, Democratic Party primary ballot for the office of sheriff of Cook County. Section 7-10(c) of the Election Code provides that the petition for the nomination of a candidate for sheriff of Cook County must be signed "by at least one-half of one percent of the qualified electors of his party cast at the last preceding general election in his county." Ill. Rev. Stat. 1983, ch. 46, par. 7-10(c).

It is undisputed that 7,094 signatures are needed to meet this statutory requirement. Fuller is an elected commissioner of the metropolitan sanitary district, former Democratic committeeman of Evanston Township, served as Democratic committeeman of the 27th ward of Chicago, and is a qualified elector who signed his own petition for sheriff.

Fuller claims to have collected in excess of 12,000 signatures but chose to file 8,190. Bruce Hill, a qualified elector, filed an objection that resulted in the disqualification of 3,583 signatures. This left Fuller with only 4,607 valid signatures. Respondent Cook County officers electoral board (electoral board) upheld the results of the binder check and ruled that Fuller was not eligible to be certified for the March 18, 1986, Democratic primary ballot.

On judicial review, the circuit court affirmed the order of the electoral board. Thereafter, on February 10, 1986, Fuller filed a verified complaint for an injunction and declaratory judgment in the United States District Court for the Northern District of Illinois, Eastern Division, Fuller v. Kusper, No. 86C0963. On February 27, 1986, Fuller's complaint was dismissed by Judge Leinenweber, who invoked the abstention doctrine. On March 4, 1986, Fuller filed his notice of appeal from the order of the circuit court. This expedited appeal followed.


On appeal, Fuller concedes that he did not challenge the propriety of the electoral board's disqualifying 3,583 signatures on his petition. Therefore, he did not meet the statutory minimum requirement of 7,094 signatures. However, he asserts that the underlying statute is unconstitutional in that: (1) his equal protection rights were abridged because the signature requirements necessary to become a candidate for sheriff of Cook County are greater than the signature requirements to become a candidate for judge of the circuit court of Cook County; and (2) the number of signatures required is so onerous that it abridges purported first amendment and due process guarantees.


• 1 Lubin v. Panish (1974), 415 U.S. 709, 39 L.Ed.2d 702, 94 S.Ct. 1315, recognized the important State interest that is served by the establishment of certain criteria designed to limit access to the ballot to serious candidates. In Anderson v. Celebrezze (1983), 460 U.S. 780, 75 L.Ed.2d 547, 103 S.Ct. 1564, the United States Supreme Court said:

"We have upheld generally applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself. The State has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names and frivolous candidates. [Citations.]" 460 U.S. 780, 788-89 n. 9, 75 L.Ed.2d 547, 557 n. 9, 103 S.Ct. 1564, 1570 n. 9.

Typically, an equal protection argument deals with access to the ballot for the same office (Jackson v. Ogilvie (N.D. Ill. 1971), 325 F. Supp. 864, 868-69, aff'd (1971), 403 U.S. 925, 29 L.Ed.2d 705, 91 S.Ct. 2247), or where signature requirements for subdivision of a State are greater than requirements for statewide office (Illinois State Board of Elections v. Socialist Workers Party (1979), 440 U.S. 173, 187, 59 L.Ed.2d 230, 243, 99 S.Ct. 983, 991).

Jackson involved a challenge to different signature requirements to be placed on the ballot as a candidate in the general election for mayor of the city of Chicago. The independent candidate had a 5% minimum signature requirement (Ill. Rev. Stat. 1971, ch. 46, par. 10-3), while the candidate running in the party primary had a .5% minimum signature requirement (Ill. Rev. Stat. 1971, ch. 46, par. 7-10(d)). The court upheld the constitutionality of the different signature requirements even though both candidates were ultimately competing for the same elective office.

In this case, petitioner's equal protection argument is not even based on candidacies for the same elective office. Here, petitioner argues that simply because one type of candidate (judicial) has a low signature requirement, that all other candidates should be held to the same standard. This premise stretches equal protection precedents beyond their limits and completely ignores the legitimate State interests discussed in Lubin and the equal protection concepts discussed in Jackson.

In the case of judicial candidates, the obvious limitation is that any candidate must be a licensed attorney. (Ill. Const. 1970, art. VI, sec. 11.) Apparently, the General Assembly has considered this restriction to be sufficient to serve the legitimate State interest discussed in Lubin. The legislature did not impose any educational qualifications for sheriff. There are several public policy bases for treating candidates for judge and sheriff differently. The public has an interest in limiting the overpoliticization of judges. It is for this reason that, once elected, judges seek retention on an unopposed and nonpartisan basis. The public interest may not be well served by requiring judicial candidates to establish the extensive grass-roots political organization ...

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