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Jay Stone, Frederick K. White, Frank L. Coconate, Denise Denison v. Board of Elections Commissioners

January 10, 2011


The opinion of the court was delivered by: Judge Robert M. Dow, Jr.


On December 6, 2010, Plaintiffs Jay Stone, Frederick K. White, Frank L. Coconate, Denise Denison, Bill "Doc" White, and Howard Ray ("Plaintiffs") filed this action challenging the constitutionality of an Illinois statute, 65 ILCS 20/21-28(b), which requires Plaintiffs and other individuals seeking to be placed on the municipal ballot for mayor, city clerk, or city treasurer to obtain 12,500 signatures from legal voters of the City of Chicago. Plaintiffs seek to enjoin Defendant Board of Elections Commissions for the City of Chicago ("Board") from barring certain Plaintiffs who were unable to meet this statutory requirement from the February 22, 2011 ballot. Plaintiffs originally brought five counts, but voluntarily dismissed counts II (Abridgement Equal Protection Clause-14th Amendment Claim) and V (Abridgement of First Amendment) of their first amended complaint. Plaintiffs also have dismissed the individual Defendants, all of whom are Commissioners of the Board. Remaining in Plaintiffs' second amended complaint [32] are three counts -- Count I (Abridgement of First Amendment-42 U.S.C. 1983), Count II (Abridgement 14th Amendment, Deprivation of Liberty, Freedoms of Speech and Association), and Count III (Abridgement of Right to Petition the Government) against Defendant Board. Defendant contends that Plaintiffs' suit lacks merit because the signature requirement does not impermissibly burden ballot access and is based on the State's compelling interest in running a fair, orderly, and effective election, which is advanced by requiring candidates to demonstrate a significant modicum of support.

Currently before the Court is Plaintiff's request for injunctive relief [4] and supporting materials. After taking the parties' briefs on an expedited schedule, on January 4, 2011, the Court heard oral argument on Plaintiffs' request for injunctive relief by virtue of a declaratory ruling that the 12,500 signature ballot access requirement is unconstitutional. For the reasons set forth below, Plaintiffs' request for injunctive relief [4] is denied.*fn1

I. Background

Plaintiffs Jay Stone, Frederick K. White, Bill "Doc" Walls, and Howard Ray submitted nominating petitions seeking to be placed on the ballot as candidates for mayor of the City of Chicago in the upcoming municipal election on February 22, 2011. Plaintiff Frank L. Coconate submitted a nominating petition seeking to qualify as a candidate for city clerk. Walls met the statutory requirement of 12,500 presumptively valid signatures and he will be a candidate listed on the February 2011 mayoral ballot. The other Plaintiffs did not meet the requirement and thus the Board has determined that they will not be on the ballot: Stone filed 250 signatures; White filed approximately 10,200 signatures; Ray filed 2,625 signatures; and Coconate filed 61 signatures. Plaintiffs Denise Denson and Walls assert that not having the other Plaintiffs' names on the February ballot will abridge their First Amendment rights.

The 12,500 signature statutory requirement is found in 65 ILCS 20/21-28(b), which became effective August 22, 2005. The statute-"Nomination by petition"-provides in relevant part as follows: "(b) All nominations for mayor, city clerk, and city treasurer in the city shall be by petition. Each petition for nomination of a candidate must be signed by at least 12,500 legal voters of the city." 65 ILCS 20/21-28(b). Prior to the enactment of this 12,500 signature provision, state law required 25,000 signatures or a number not less than five percent of the number of voters who voted in the last election for City office, whichever was less.*fn2 As further explained below, the prior signature requirement of 25,000-double the current requirement-repeatedly has been upheld by the United States Supreme Court and the Seventh Circuit.

II. Analysis

Plaintiffs' "prayer for injunctive relief & declaratory ruling" does not acknowledge the law that governs the relief they are seeking-a preliminary injunction.*fn3 Like all forms of injunctive relief, a preliminary injunction is "an extraordinary remedy that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original); see also Goodman v. Ill. Dep't of Financial & Professional Reg., 430 F.3d 432, 437 (7th Cir. 2005) (same). A party seeking a preliminary injunction must demonstrate as a threshold matter that (1) its case has some likelihood of succeeding on the merits; (2) no adequate remedy at law exists; and (3) it will suffer irreparable harm if preliminary relief is denied. Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 11 (7th Cir. 1992). If the moving party meets its initial burden, then the court must consider the irreparable harm that the nonmoving party will suffer if preliminary relief is granted, balancing such harm against the irreparable harm the moving party will suffer if relief is denied. Storck USA, L.P. v. Farley Candy Co., 14 F.3d 311, 314 (7th Cir. 1994). The court also considers the public interest served by granting or denying the relief, including the effects of the relief on non-parties. Id.

A. Likelihood of Success on the Merits

A party seeking a preliminary injunction must demonstrate "that it has a 'better than negligible' chance of success on the merits of at least one of its claims." Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S.A., 549 F.3d 1079, 1096 (7th Cir. 2008). This is an "admittedly low requirement." Id. However, if a plaintiff fails to demonstrate any likelihood of success on the merits, the motion for preliminary injunction must be denied. See, e.g., CoX v. City of Chicago, 868 F.2d 217, 223 (7th Cir. 1989). As described below, Supreme Court and Seventh Circuit precedent makes clear that on these facts and with this signature provision, Plaintiffs have no likelihood of success on the merits of their claims absent a change in the controlling law by either of the aforementioned courts.

1. Framework

Without question, "[t]he First Amendment protects the right of citizens to associate and form political parties for the advancement of common political goals and ideals." Timmons v. Twin Cities Area New Party, 520 U.S. 351, 357 (1997). "On the other hand, it is also clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election- and campaign-related disorder." Id. at 358. As the Supreme Court has explained, "As a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic process." Storer v. Brown, 415 U.S. 724, 730 (1974). The right to vote and the right of citizens to associate for political purposes are among the more fundamental constitutionally protected rights, but those rights are not absolute. Munro v. Socialist Workers Party, 479 U.S. 189, 193 (1986).

Reasonable restrictions may be imposed on candidates because states have an interest in requiring a demonstration of qualification in order for the elections to be run fairly and effectively. Id. This is not only a state's interest; it is a duty to ensure an orderly electoral process. Libertarian Party of Illinois v. Rednour, 108 F.3d 768, 774 (7th Cir. 1997). States have a strong interest in preventing voter confusion by limiting ballot access to candidates who can demonstrate a measurable quantum of support or a level of political viability. Lee v. Keith, 463 F.3d 763, 769 (7th Cir. 2006). The "preliminary demonstration of a 'significant modicum of support' furthers the state's legitimate interest of 'avoiding confusion, deception, and even frustration of the democratic process at the general election.'" Rednour, 108 F.3d at 774 (quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971)). The Supreme Court in Munro held that a state is not required to make a particularized showing of the existence of voter confusion, ballot overcrowding, or the presence of frivolous candidacies prior to the imposition of such reasonable restrictions on ballot access. Munro, 479 U.S. at 194-95. "To demand otherwise would require a state's political system to sustain some damage before it could correct the problem, deprive state legislatures of the ability to show foresight in avoiding potential deficiencies, and inevitably lead to endless litigation regarding the sufficient amount of voter confusion and ballot overcrowding needed to warrant ballot access restrictions." Rednour, 108 F.3d at 774 (citing Munro, 479 U.S. at 195-96).

Applying the balancing test articulated in Anderson v. Celebrezze, 460 U.S. 780, 788 (1983), a court must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" 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 plaintiffs' rights." Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460 U.S. at 789). A regulation that severely burdens First Amendment rights must be justified by a compelling interest and must be narrowly tailored to serve that interest. Anderson, 460 U.S. at 789. On the other hand, a state ...

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