The opinion of the court was delivered by: Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
The Libertarian Party of Illinois, its chairman Lupe Diaz, prospective candidate for Kane County Auditor Julia Fox, and Fox supporter John Kramer (collectively "Plaintiffs") filed a complaint for declaratory and injunctive relief on April 5, 2012, against the Illinois State Board of Elections (the "Board") and eight individual Board members in their official capacities (collectively "Defendants"). Plaintiffs want to form a new political party in Kane County, Illinois. They contest as unconstitutional as applied to them two requirements of the Illinois Election Code (the "Code"), 10 Ill. Comp. Stat. 5/10-2 and -6. Plaintiffs bring a claim under 42 U.S.C. § 1983 for alleged violations of their First Amendment rights to associate for the advancement of their political beliefs and to vote effectively, as well as their Fourteenth Amendment rights to due process and equal protection. Now before the court is Defendants' motion to dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).*fn1 The court dismisses the Board as a defendant because, as a state agency, it is immune from suit under the Eleventh Amendment. The court denies Defendants' motion to dismiss Plaintiffs' First and Fourteenth Amendment Claims against the individual Board members in their official capacities.
The Code imposes requirements on new political parties and independent candidates that differ from those imposed on "established" political parties, "which, at the general election next preceding, polled more than 5% of the entire vote cast in the State, district, or unit of local government." 5/10-1. New political parties and independent candidates are governed by Article 10 of the Code. The Code requires a group wishing to form a new party at the level of a political subdivision (such as a county) to submit a petition "signed by qualified voters equaling in number not less than 5% of the number of voters who voted at the next preceding regular election" in that political subdivision. 5/10-2.
Two additional requirements of the Code are at issue here. First, Article 10, as interpreted by the Illinois Supreme Court, requires a new party to field a complete list of candidates for all offices in the political subdivision in which it wishes to compete:
Any . . . petition for the formation of a new political party throughout the State, or in any such district or political subdivision . . . shall at the time of filing contain a complete list of candidates of such party for all offices to be filled in the State, or such district or political subdivision as the case may be, at the next ensuing election then to be held[.] 5/10-2 at ¶ 4; Reed v. Kusper, 607 N.E.2d 1198, 1202 (Ill. 1992) ("[T]he statute clearly requires that the petition for the formation of [a new party] shall contain a complete list of candidates for all offices to be filled within the political subdivision.").
Article 10 also imposes a filing deadline for the petition: [C]ertificates for the nomination of candidates shall be filed with the county clerk of the respective counties not more than 141 but at least 134 days previous to the day of such election. 5/10-6. For the November 2012 election, the 134-day requirement resulted in a filing deadline of June 25, 2012.
Plaintiffs claim that the June 25, 2012, deadline for filing nomination petitions and the requirement that new parties field a full slate of candidates for county offices unconstitutionally burden their First Amendment rights and violate their Fourteenth Amendment rights to equal protection and due process of law.*fn2 Defendants move to dismiss on the grounds that the Board and the individual Board members are not proper parties to the suit, and that Plaintiffs have failed to state a claim upon which relief can be granted, because the requirements imposed by the Code are constitutional.
To survive a Rule 12(b)(6) motion to dismiss, Plaintiffs are required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level;'" otherwise, "the plaintiff pleads itself out of court." E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662 (2009)). The court treats all well-pleaded allegations as true and draws all reasonable factual inferences in Plaintiffs' favor. Justice v. Town of Cicero, 577 F.3d 768, 771 (7th Cir. 2009).
A. Eleventh Amendment Immunity and the Ex Parte Young Exception
1. The Illinois State Board of Elections
Defendants first argue that the Board is immune from suit under the Eleventh Amendment. The Eleventh Amendment provides a state with immunity from suit in federal court unless the state consents to the suit or Congress has abrogated its immunity. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). State agencies are treated as states for Eleventh Amendment purposes. Tucker v. Williams, 682 F.3d 654, 658 (7th Cir. 2012). The Supreme Court has held that there is no exception to state sovereign immunity for § 1983 claims. Quern v. Jordan, 440 U.S. 332, 342 (1979). The Court has also held that states and their departments are not "persons" within the meaning of § 1983. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).
The court agrees with Defendants that, because the Board is a state agency, it is immune from suit under § 1983. See Kuna v. Ill. Bd. of Elections, 821 F. Supp. 2d 1060, 1066 (S.D. Ill. 2011) (dismissing § 1983 claim against the Board on immunity grounds); Hulme v. Madison Cnty., No. 01-CV-0456-DRH, 2001 WL 1803690, at *3 (S.D. Ill. ...