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KRISLOV v. REDNOUR

September 12, 1996

CLINTON A. KRISLOV and JOAN A. SULLIVAN, individually and on behalf of all others similarly situated, Plaintiffs,
v.
WANDA L. REDNOUR, Chairman of the State Board of Elections; HANNELORE HUISMAN, Vice Chairman of the State Board of Elections; RONALD D. MICHAELSON, Executive Director of the State Board of Elections; and KENNETH R. BOYLE, JUDITH A. JONES, MITCHELL P. KOBELINSKI, DAVID E. MURRAY, LANGDON D. NEAL, and THERESA M. PETRONE, Members of the State Board of Elections, Defendants.



The opinion of the court was delivered by: BUCKLO

 The plaintiffs, Clinton A. Krislov and Joan A. Sullivan, have sued the defendants, officials of the Illinois State Board of Elections ("State Board of Elections"), claiming that certain ballot-access provisions of the Illinois Election Code ("Election Code") and procedures employed by the State Board of Elections violated their First and Fourteenth Amendment rights. The plaintiffs seek class certification and pray for injunctive and declaratory relief. The defendants move to dismiss pursuant to Rule 12(b)(6) and oppose class certification. For the following reasons, the defendants' motion is granted in part and denied in part. The plaintiffs' motion for class certification is granted.

 Mr. Krislov and Ms. Sullivan were candidates for federal office in the March 19, 1996 Democratic primary election. Mr. Krislov ran for the party's nomination as a U.S. Senator from Illinois, while Ms. Sullivan sought nomination as a Representative in the U.S. House of Representatives for the Seventh Congressional District. The State Board of Elections supervises the administration of the election laws throughout Illinois.

 Pursuant to the Election Code, to get on the primary ballot, a candidate must gather a requisite number of valid nominating signatures. The plaintiffs' nominating petitions contained more than the requisite number of signatures. Objectors, however, challenged the validity of these signatures on various grounds set forth in the Election Code. The procedures for verifying the challenged signatures, established by the State Board of Elections, consumed the candidates' time, as well as financial and manpower resources. Mr. Krislov withdrew from the campaign; Ms. Sullivan continued, but lost the nomination. The plaintiffs challenge the constitutionality of the hurdles the defendants placed in their way to the ballot.

 I. Standing

 Federal judicial power is limited under Article III. Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 70 L. Ed. 2d 700 (1982). Encompassed within the concept of "cases and controversies" is the requirement that the plaintiff have standing. Allen v. Wright, 468 U.S. 737, 750, 104 S. Ct. 3315, 82 L. Ed. 2d 556 (1984).

 Mr. Krislov and Ms. Sullivan have standing to challenge the constitutionality of the Illinois ballot-access provisions. To have standing "(1) the party must personally have suffered an actual or threatened injury caused by the defendant's allegedly illegal conduct, (2) the injury must be fairly traceable to the defendant's challenged conduct, and (3) the injury must be one that is likely to be redressed through a favorable decision." Sanner v. Board of Trade of Chicago, 62 F.3d 918, 922 (7th Cir. 1995) (internal quotation marks omitted).

 The defendants argue that neither Mr. Krislov nor Ms. Sullivan can allege an injury. Mr. Krislov withdrew from the primary elections prior to the defendants' ruling on the objections against him and prior to the election itself. The defendants therefore maintain that Mr. Krislov neither alleges nor can allege that the defendants injured him by depriving him of a place on the ballot, a place in the race for the U.S. Senate, or a seat in the U.S. Senate. With respect to Ms. Sullivan, despite the objections, her name was on the ballot, although she lost her primary bid. The defendants contend that her loss is not traceable to the defendants' conduct.

 The standing of candidates to challenge unconstitutional ballot-access provisions is well-settled. E.g., Anderson v. Celebrezze, 460 U.S. 780, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983). Moreover, being subjected to an unconstitutional process, regardless of the outcome, can constitute an injury under the First and the Fourteenth Amendments. Sherwin Manor Nursing Ctr., Inc. v. McAuliffe, 37 F.3d 1216, 1220-22 (7th Cir. 1994), cert. denied, U.S. , 116 S. Ct. 172, 133 L. Ed. 2d 113 (1995); see also Fulani v. Krivanek, 973 F.2d 1539 (11th Cir. 1992) (ballot-access provisions which unduly burden candidates' resources found unconstitutional, notwithstanding candidate's appearance on ballot). *fn1"

 The plaintiffs do not, however, have standing to bring a claim under the National Voter Registration Act of 1993 ("NVRA"), 42 U.S.C. § 1973gg et seg. The plaintiffs argue that standing under the NVRA is irrelevant because they do not assert a claim under the NVRA. The plaintiffs nevertheless allege that the defendants invalidated ballot signatures on grounds contrary to the NVRA. (Am. Compl. PP 37-41; Prayer for Relief, P4.) Standing under the NVRA is limited to the United States Attorney General and the "aggrieved persons" whose voting rights have been denied or impaired. Roberts v. Wamser, 883 F.2d 617, 621 (8th Cir. 1989); Illinois Legislative Redistricting Comm'n v. LaPaille, 782 F. Supp. 1267, 1271 (N.D. Ill. 1991). The plaintiffs were candidates and thus do not have standing under the NVRA. The NVRA-related portions of the complaint will therefore be dismissed.

 II. 12(b)(6)

 In deciding a motion to dismiss, a court will assume the truth of all alleged facts, construe them liberally, view them in the light most favorable to the plaintiff, and make all reasonable inferences in the plaintiff's favor. Johnson v. Martin, 943 F.2d 15, 16 (7th Cir. 1991). A court will grant a motion to dismiss only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Cushing v. City of Chicago, 3 F.3d 1156, 1159 (7th Cir. 1993) (internal quotation marks omitted).

 A candidate's right to appear on the ballot is protected by the First and the Fourteenth Amendments. American Party of Texas v. White, 415 U.S. 767, 788-89, 94 S. Ct. 1296, 39 L. Ed. 2d 744 (1974). The primary rationale for this protection is the fact that the rights of candidates and those of voters are intimately intertwined. Voters can only exercise their constitutional rights to vote and to associate for a political purpose through candidates. Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S. Ct. 983, 59 L. Ed. 2d 230 (1979).

 To determine the constitutionality of a ballot-access provision, the Court must first determine "the character and magnitude of the asserted injury to the [voters' and the candidates'] rights protected by the First and Fourteenth Amendments." Burdick v. Takushi, 504 U.S. 428, 434, 112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992) (quoting Anderson, 460 U.S. at 789). The Court must next weigh that injury "against 'the precise interests put forward by the State as justifications for the burden imposed by its rule,' taking into consideration 'the extent to which those interests make it necessary to burden the'" rights in question. Id. (quoting Anderson, 460 U.S. ...


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