Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 5901 - William T. Hart, Judge. Question Certified, January 13, 1986, Submitted January 29, 1986.
Before COFFEY, EASTERBROOK, and RIPPLE, Circuit Judges.
EASTERBROOK, Circuit Judge.
John W. Moore and some of his friends circulated petitions that put him on the ballot of a primary election in March 1982; Moore sought nomination as the Democratic Party's candidate for state senator from the 16th senatorial district. Although Moore qualified for the ballot, he withdrew before the election. Then Moore and essentially the same group of friends formed the "Citizens for John W. Moore Party" and collected signature to place Moore on the ballot for the general election in November 1982 as a candidate for the Illinois House of Representatives in the 31st house district. Moore collected 3,829 signatures; he needed 1,500 valid signatures to qualify.
The Board of Election Commissioners threw out 1,493 signatures for reasons Moore does not challenge and another 975 because Moore himself had collected them, leaving Moore 139 signatures short. (Moore told us at oral argument that almost all of the Moore Party's signatures are invalid under § 10-4, although only Moore's were challenged.) The Board set aside the signatures Moore had collected because the Moore Party was the second party for which Moore had solicited signatures in the 1982 election season - the Democratic Party being the first. The Board concluded that these signatures did not count, citing § 10-4 of the Illinois Election Code, Ill. Rev. Stat. ch. 46 § 10-4, which provides: "No person shall circulate or certify petitions for candidates of more than one political party . . . to be voted upon at the next primary or general election." Moore and his allies simply were unaware of § 10-4, and therefore they did not try to collect signatures with the aid of people who had not circulated petitions for another party.
Moore contends that § 10-4 is unconstitutional. The district court denied Moore's request for an injunction that would have put him on the ballot in 1982. The case is not moot, however. See Storer v. Brown, 415 U.S. 724, 737 n.8, 39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974); Moore v. Ogilvie, 394 U.S. 814, 816, 23 L. Ed. 2d 1, 89 S. Ct. 1493 (1969). The district court held a trial on Moore's request for a declaratory judgment. The court heard from expert witnesses who both explained the genesis of the statute and gave differing versions of its effects. The court concluded that § 10-4 reduces the confusion that may occur if circulators switch sides in the same campaign. It also helps keep intra-party squabbles with the party by discouraging people who have participated in a primary from running as candidates of new parties. 599 F. Supp. 662 (N.D. Ill. 1984).
The court conceded that the statute affects rights secured by the first and fourteenth amendments but found the effect small. Moore came within 139 votes of success even though ignorant of the rule, and the "evidence does not prove that there was a shortage of circulators or that the burden imposed outweighs the statutory objectives and benefits." 599 F. Supp. at 670. Although the court thought "strict scrutiny" unnecessary, it held that because the "statute did not prevent Moore's candidacy" (ibid) and the state's objectives are substantial the statute would survive such scrutiny. It concluded: "The statute requires that circulators make a choice of political parties and remain with that party or independent candidate throughout an election. This is not an unconstitutional burden." Ibid.
After we heard oral argument, we certified to the Supreme Court of Illinois the question whether "person," within the meaning of § 10-4, includes a candidate soliciting signatures on his own behalf. 781 F.2d 581 (7th Cir. 1986). On January 23, 1986, the Supreme Court of Illinois entered an order declining to answer this question of law. We therefore proceed to decision on the assumption that "any person" includes Moore - an assumption the parties, the Board, and the district court share. This treatment does not imply, however, that the constitutional analysis of candidate-circulators and other circulators is identical. We discuss this difference in Part IV.
The principal effect of § 10-4 is to make it harder for someone to run on two party lines during the same election season or to defect from a party and run as an independent. A person who remains in the same party may use one group of solicitors to obtain signatures for as many offices as he seeks, in primary and general elections. A person who changes parties or switches from a party to an independent candidacy will need to attract another group of people to circulate petitions.
Although § 10-4 creates this relative disadvantage, it does not affect the total number of signatures the candidate must solicit. Moore needed 600 signatures to get on the primary ballot for the senate, and he needed 1,500 to get on the general election ballot for the house whether or not he switched parties. Section 10-4 does not affect the number of signatures needed and therefore does not affect the number of circulator-hours needed to obtain the signatures. It affects only the identity of those who circulate petitions. A candidate who switches parties in an election campaign must demonstrate a somewhat broader base of support by being able to attract a new group of circulators.
Moore pins his principal hopes on persuading us to apply an elevated standard of scrutiny to § 10-4. He argues that the statute should be subjected to strict scrutiny and held unconstitutional because not sufficiently well tailored to its end and because the state did not introduce at trial evidence proving that it achieves its objectives. Failing that, Moore would settle for some intermediate level of scrutiny.
Moore does not want for cases, some in the Supreme Court and many in the lower courts, that have applied strict scrutiny to laws restricting access to the ballot. These cases reason that laws controlling access affect rights of both speech and association, hence the need for extraordinary scrutiny. Paradoxically, some of the cases announcing the most rigorous scrutiny also sustain the most onerous statutes. See Storer v. Brown, 415 U.S. 724, 39 L. Ed. 2d 714, 94 S. Ct. 1274 (1974); and American Party of Texas v. White, 415 U.S. 767, 39 L. Ed. 2d 744, 94 S. Ct. 1296 (1974), two cases to which we return.
The defendants do not want for cases applying quite relaxed scrutiny to statutes affecting candidates' right to run. For example, Clements v. Fashing, 457 U.S. 957, 969-70, 73 L. Ed. 2d 508, 102 S. Ct. 2836 (1982) (plurality opinion), applies the step-at-a-time doctrine to a statute that imposes on would-be candidates the price of resignation from their current jobs. The step-at-a-time doctrine is a lax form of scrutiny; a court using it dismisses an argument that the law is irrational with the response: "Sure, the law is not very sensible in ...