Appeals from the United States District Court for the Northern District of Illinois, Eastern Division, No. 87 C 435, Brian Barnett Duff, Judge.
Coffey and Easterbrook, Circuit Judges, and Pell, Senior Circuit Judge.
EASTERBROOK, Circuit Judge.
Once Chicago was known as Hog Butcher to the World. No more. One Chicago industry is hardier: election fraud. The dead awaken just in time to vote on election day. By one estimate in this litigation, 9% of the "voters" registered in Chicago are tombstones, vacant lots, and people who have moved out of the city. These ghost voters answer the call of precinct captains, who vote their proxies on election day or find some reliable party member to do so. Cooperative election judges refrain from challenging multiple votes by the same person under different names. This dilutes the votes of the honest and alters the outcome of elections. We must decide whether the district court erred in refusing to approve a proposed consent decree that would have reduced the number of ghost voters.
Any system of registration must deal with deaths, movement, and bogus claims of all sorts. The principal device for doing this in Illinois is the canvass of registered voters. People may register to vote until 29 days before the election. The Board of Election Commissioners for the jurisdiction makes up a list of all registered voters in each precinct, including the address of each. Ill. Rev. Stat. ch. 46 § 6-38. "Upon the Wednesday and Thursday following the last day of registration . . . 2 deputy registrars shall go together and canvass the precinct for which they have been appointed, calling at each dwelling place or each house from which any one is registered . . . and if they shall find that any person whose name appears upon their verification lists does not reside at the place designated thereupon, they shall make a notation in the column headed 'Remarks' as follows: 'Changed Name'; 'Died', or 'Moved', as the case may be, indicating that such person does not reside at such place." § 6-39. Deputy registrars may require the local police to accompany them. Ibid. If the deputy registrars question the validity of a registration, the Board must mail the questioned person a postcard no later than 10:00 p.m. on Friday of the week of the canvass. § 6-40. The postcard invites the person to show cause why his name should not be struck from the rolls. The questioned person may respond to the card with an affidavit of eligibility to vote, and the Board must resolve any disputes after an evidentiary hearing. § 6-41. After resolving these contests, and at least 19 days before the election, the Board prepares and distributes the final list of eligible voters. § 6-43.
Each board and its deputy registrars are adjuncts of the circuit court of the county. The court designates the three commissioners of each board, § 6-21, and each "leading political part[y]" in the jurisdiction must be represented, § 6-22. The court may remove any commissioner for "cause shown". § 6-23. The Board then appoints both judges of election (to adjudicate challenges at the polls) and deputy registrars (to conduct the canvass); the same standards apply to each.*fn** Both are "officers of the court". § 6-32. The deputy registrars must be reputable voters, § 14-1, and one represents each principal political party in the precinct, § 14-4. The Board selects the deputy registrars "from certified lists furnished by the chairman of the respective county central committees of the 2 leading political parties." Ibid.
This is a political version of the adversary system. The Board represents political parties; the parties select the deputy registrars, who watch each other. The deputy registrars also must respond to complaints. Any registered voter may demand that a deputy registrar investigate a suspicious registration. § 6-38. Anyone dissatisfied with the work of the deputy registrars may complain, and "it shall be the duty of the Board of Election Commissioners, when complaint is made to them, to investigate the action of such canvassers and to cause them or either of them to be brought before the circuit court and to prosecute them as for contempt, and also at the discretion of the Board of Election Commissioners, to cause them to be prosecuted criminally for such wilful neglect of duty." § 6-40. A Commissioner who fails in this duty may be removed by the circuit court under § 6-23 on the complaint of 25 voters.
Registrars, deputy registrars, and judges of election are paid by the Board. The fee for these services in Chicago is fixed by § 6-71 at "not less than $20 nor more than $30 per day." The canvass lasts two days, so the pay apparently must fall between $40 and $60 per canvasser. Under § 6-70 Cook County and Chicago share the expenses of the Board, and it is "the duty of the governing authority of such counties and cities, respectively, to make provisions for the prompt payment of such salaries and expenditures." Funds are disbursed "upon the warrant of [the] chief circuit judge" after the court has audited the Board's expenditures. Ibid.
Primary elections for municipal offices in Chicago are held the last Tuesday of the February preceding the general election in April. §§ 2A-1.1, 7-5. Municipal offices are contested the year before the Presidency, making February 24, 1987, the occasion of a municipal primary. Registration for the primary ended 29 days earlier, on January 26, 1987. Section 6-38 therefore designated January 28 and 29, 1987, as the days for the canvass.
On Friday, January 16, 1987, the Republican Party of Chicago (and its chairman), the Republican Party of Cook County (and its chairman), and one candidate in the primary filed this suit invoking 42 U.S.C. § 1983. They contended that for years the Board of Election Commissioners of Chicago has flouted its duties under state law in conducting the canvass, as a result of which the rolls are packed with ghost voters. The complaint alleged that the Board has "failed to adequately conduct a door to door canvass that deletes improperly registered voters". The complaint characterized the inadequate canvass as "the first step to successful vote fraud" that depends on a "pool of absent voters to be used by a dishonest precinct captain to cast fraudulent votes on election day". These extra votes, according to the complaint, dilute the value of honestly cast votes. The plaintiffs maintained that in 1984 the Illinois Committee for Honest Elections (apparently an organization under the control of the Republican Party of Illinois) had mailed 890,000 letters to registered voters, asking the Postal Service to return rather than forward undeliverable mail; 9.1% of these letters (81,207) came back as undeliverable. According to the complaint, "it is from this pool of voters that the dishonest precinct captain is able to successfully engage in fraud on election day. The plaintiffs contend that a 10% [sic] vote fraud factor can literally affect the outcome of almost any election." The Committee in 1986 detected 36,000 people registered twice -- although only 264 of these actually voted twice in the 1986 primary. The complaint stated that a "preliminary" check had revealed that "numerous" illegal registrations had survived the most recent canvass in October 1986 and that there were then 44,000 duplicate registrations (out of about 1.4 million).
The complaint made only one concrete allegation about what was going wrong in the canvassing process. It alleged that the canvassers "do not actually go door to door" to verify the registrations. Some shirk because they are paid too little, others because they want to keep the ghost voters on the rolls; some "fear for their safety" and avoid particular neighborhoods. The result of the dereliction, according to the complaint, will be "massive vote fraud" in February and April 1987. The plaintiffs asked for a declaratory judgment "setting forth the statutory and constitutional duties of the defendants" and an injunction "requiring the defendants to develop a more effective and comprehensive means of performing the door to door canvass . . . so that registered voters who do not meet the statutory registration requirements are purged from the list". The plaintiffs also asked the court to "exercise its broad supervisory powers and hereafter monitor and supervise the conduct of the defendants in performing their statutory duties."
On January 21 a new group of plaintiffs intervened. This group (the Hayes plaintiffs) included Rep. Charles A. Hayes, several organizations of "independent" voters, two unions, the National Organization for Women, Operation PUSH, Por Un Barrio Mejor, and the Task Force for Black Political Empowerment. The Hayes plaintiffs agreed with the Republican plaintiffs that the Board had done a lousy job, but the Hayes plaintiffs thought that the canvassers' worst failing lay in striking too many people from the rolls. According to the intervenors, the canvassers challenged properly registered voters, who had to travel long distances to be reinstated before the election -- if they managed to be reinstated at all.
The Republican plaintiffs and the Board engaged in private negotiations. A few hours after the Hayes plaintiffs intervened, the Republican plaintiffs and the defendants (the Board and its three Commissioners) filed a proposed consent decree. The document contained these admissions:
4. . . . The defendants admit there is difficulty ensuring that only qualified persons are included . . . on the roll of registered voters, principally because the canvassers have failed to adequately conduct a door-to-door canvass that deletes improperly registered voters as required by [statute];
5. . . . The potential for vote fraud during the upcoming elections could be eliminated or significantly reduced by a more effective and comprehensive door-to-door canvass . . .;
6. . . . In the most recent canvass in October, 1986, some official canvassers failed to delete numerous voter registrations which did not meet the eligibility requirements . . .;
7. . . . The defects in the October, 1986, canvass, if allowed to continue, create the potential for vote fraud in the upcoming 1987 elections which could deprive the plaintiffs of their right to an honest election, ...