United States District Court, N.D. Illinois, Eastern Division
September 8, 2004.
MARC LOVELESS and ROBERT RUDNER, Plaintiffs,
CHICAGO BOARD OF ELECTION COMMISSIONERS, LANGDON D. NEAL, RICHARD A. COWAN, and THERESA M. PETRONE, in their official capacities as members of the Chicago Board of Elections, TAMARA SMITH, and DONOVAN BRAUD, Defendants.
The opinion of the court was delivered by: JOHN GRADY, Senior District Judge
Before the court is plaintiffs' motion for a temporary
restraining order. For the following reasons, the motion, which
is treated as a motion for a preliminary injunction, is denied.
Plaintiff Marc Loveless seeks to run for the office of
Representative in the Illinois General Assembly for the 14th
District in the upcoming November 2004 election. Loveless is the
candidate nominated by the Green Party for that office. Plaintiff
Robert Rudner is chairman of the 14th District Green Party
Legislative Managing Committee.
In May 2004, Loveless's nomination papers for the
aforementioned office were filed with the Illinois State Board of Elections. Two individuals filed objections to Loveless's
nomination papers. Because the objections were identical, they
were consolidated for hearing and decision.*fn1 The issue
presented was whether Loveless satisfied the requirement of
Article 4, Section 2(c) of the Illinois Constitution that to be
eligible to serve as a member of the General Assembly, a person
must for two years preceding his election or appointment be a
resident of the district which he is to represent. As formulated
by the Hearing Examiner, the question was as follows: "Has Marc
Loveless resided in the 14th Representative District of Illinois
continuously since November 3, 2002?" (Complaint, Ex. II, Report
of the Hearing Examiner, at 17.)
An evidentiary hearing was held on July 22, 2004. The parties
stipulated that Loveless was a resident of the 14th District
since June 1, 2003. The sole question of fact was whether
Loveless was a resident of the 14th District from and including
November 3, 2002 to and including May 31, 2003. Testimony from
various witnesses was heard. At the hearing, Loveless argued that
the two-year residency requirement violates the Equal Protection
Clauses of the state and federal Constitutions. On August 6, 2004, the Hearing Examiner issued his report,
which made recommendations to the defendant Chicago Board of
Election Commissioners (the "Chicago Board"). The Hearing
Examiner recommended that the Chicago Board enter the following
findings of fact:
(a) During all of November 2002, the residence of the
Candidate was at 13305 South Baltimore Avenue in
(b) The address of 13305 South Baltimore Avenue in
Chicago, Illinois, was not, and is not, situated
within the 14th Representative District of Illinois.
(c) The Candidate has not resided within the 14th
Representative District of Illinois for the two years
preceding the election to be held on November 2,
(Report of Hearing Examiner at 34.) The Hearing Examiner also
recommended that the Chicago Board enter the following
conclusions of law and final administrative decision:
(a) The Candidate does not satisfy the residency
requirement imposed by Section 2(c) of Article IV of
the Illinois Constitution as a qualification for
election as a member of the Illinois General
(b) The Objectors' Petitions are well founded, and
the relief sought therein should be granted.
(c) The Candidate's nomination papers are
insufficient in law and fact.
The name of Marc Loveless shall not appear and shall
not be printed on the ballot for election to the
office of Representative in and for the 14th
Representative District of Illinois to be voted for
at the General Election to be held on November 2,
(Report of Hearing Examiner at 34-35.) Regarding Loveless's equal
protection argument, the Hearing Examiner stated: "Passing on
such a claim is beyond the authority of the Hearing Examiner, but
the Hearing Examiner will note that the claim is unpersuasive."
(Report of Hearing Examiner at 32-33.)
The Chicago Board issued its findings and decision on August
10, 2004, adopting the Hearing Examiner's recommended findings
and conclusions of law. The Chicago Board sustained the
objections, declared Loveless's nomination papers invalid, and
declared that Loveless's name shall not appear on the November 2
Plaintiffs filed the instant action on August 30, 2004. They
contend that the Illinois Constitution's residency requirement
for state representative candidates violates their First and
Fourteenth Amendment rights. They seek a temporary restraining
order and preliminary and permanent injunctions preventing the
enforcement of the state constitutional provision and directing
that Loveless be placed on the ballot.
Here, defendants had notice of the motion for a temporary
restraining order in addition to the opportunity to brief their
opposition and to appear for oral argument. In light of these
circumstances, we will treat plaintiffs' motion for a temporary
restraining order as one for a preliminary injunction. See 11A
Charles Alan Wright et al., Federal Practice and Procedure §
2951, at 254 (2d ed. 1995) ("When the opposing party actually
receives notice of the application for a restraining order, the
procedure that is followed does not differ functionally from that
on an application for a preliminary injunction and the proceeding is
not subject to any special requirements.").
The requirements for a temporary restraining order are the same
as for a preliminary injunction. Long v. Board of Educ., Dist.
128, 167 F. Supp. 2d 988, 990 (N.D. Ill. 2001). Thus, to obtain
injunctive relief, plaintiff must show that (1) no adequate
remedy at law exists; (2) plaintiff will suffer irreparable harm
absent injunctive relief; (3) the irreparable harm plaintiff will
suffer absent injunctive relief outweighs the irreparable harm
defendant will suffer if relief is granted; (4) the plaintiff has
a reasonable likelihood of prevailing on the merits; and (5) the
injunction will not harm the public interest. Somerset House,
Inc. v. Turnock, 900 F. 2d 1012, 1014-15 (7th Cir. 1990). "The
plaintiff must satisfy each of these elements to prevail." Id.
Plaintiffs argue that the two-year residency requirement set
forth in the Illinois Constitution violates the Equal Protection
Clause of the Fourteenth Amendment to the United States
Constitution. We find that the applicable standard of review for
the residency requirement is the rational basis standard. We
acknowledge that there is case law (some of which is cited by
plaintiffs) applying a strict scrutiny analysis to durational
residency or similar requirements for candidacy, see, e.g., Billington v. Hayduk, 439 F. Supp. 975 (S.D.N.Y.
1977).*fn2 However, more recent decisions, including a
plurality decision of the United States Supreme Court, have
evaluated durational residency requirements using a rational
basis test, see, e.g., Clements v. Fashing, 457 U.S. 957,
963-70 (1982) (plurality opinion); MacDonald v. City of
Henderson, 818 F. Supp. 303, 306 (D. Nev. 1993) (citing cases).
The plurality in Clements stated that "[a] `waiting period' is
hardly a significant barrier to candidacy" and concluded that
"this sort of insignificant interference with access to the
ballot need only rest on a rational predicate in order to survive
a challenge under the Equal Protection Clause."
457 U.S. at 967-68.
Under the rational basis test, "a court must uphold a law so
long as it has some rational basis, or as long as it is
reasonably related to a legitimate governmental concern."
MacDonald, 818 F. Supp. at 306. Citing state legislative
history regarding the 1970 Illinois Constitutional Convention,
the Chicago Board contends that at least one rational predicate
for the durational residency requirement exists: the prevention
of political "carpetbagging," that is, an individual
"`willy-nilly' mov[ing] into a State and District without any
background and experience in the State or District and `buy[ing]' or otherwise gain[ing] election to public
office." (Memorandum of Chicago Board at 9, quoting Record of
Proceedings, Sixth Illinois Constitutional Convention, Vol. VI,
Because the prevention of "carpetbagging" does appear to be a
rational basis for the state constitutional provision at issue,
plaintiffs do not have a likelihood of prevailing on the
merits.*fn3 See generally Sununu v. Stark,
383 F. Supp. 1287 (D.N.H. 1974), aff'd, 420 U.S. 958 (1975), and Chimento
v. Stark, 353 F. Supp. 1211 (D.N.H.), aff'd, 414 U.S. 802
(1973) (summary affirmances of three-judge district court
decisions upholding on a strict scrutiny analysis the seven-year
residency requirements for state governor and state senator set
forth in the New Hampshire Constitution). There is no need to
explore the remaining criteria for injunctive relief. See
Thornton v. Barnes, 890 F.2d 1380, 1390 (7th Cir. 1989).
For the foregoing reasons, plaintiffs' motion for a temporary
restraining order, which we treat as a motion for a preliminary
injunction, is denied. Furthermore, there are no remaining issues in the case. Given our disposition of plaintiff's motion, we see
no reason why this ruling should not apply equally to plaintiff's
request for a permanent injunction. The result of our ruling is
that plaintiff is entitled to no relief in this case; therefore,
the cause is dismissed with prejudice.