United States District Court, N.D. Illinois, Eastern Division
[Copyrighted Material Omitted]
Christopher Davis Kruger, Richard J. Whitney, Richard J. Whitney, Attorney at Law, Murphysboro, IL, for Plaintiffs.
Laura Marie Rawski, Office of the Illinois Attorney General, General Law, Chicago, IL, for Defendants.
MEMORANDUM OPINION AND ORDER
JOHN J. THARP, JR., District Judge.
The plaintiffs argue that the State of Illinois has established unconstitutionally onerous requirements on independent and " new" party candidates for getting their names on the ballot for the April 9, 2013, special election for the Second Congressional District seat recently vacated by Jesse Jackson, Jr. They seek a preliminary injunction placing Green Party candidate LeAlan Jones and independent candidate Marcus Lewis on the ballot, or alternatively drastically reducing the current requirement of 15,682 valid signatures from supporters to 525 signatures (a number derived from the requirements for Republican primary candidates). Time is of the essence. The candidates' signed petitions with the requisite number of signatures currently are due on Monday, February 4, 2013. There will be a truncated period during which challenges to the candidates' signatures can be filed and resolved, and then the ballots must be printed with sufficient time to allow their distribution overseas to absentee voters. The state (with help from a consent decree in an unrelated case) has set this " drop dead" date at March 8, 2013.
The Court has endeavored to set forth its decision in as much detail possible while being respectful of the parties' respective time restraints going forward. For the reasons that follow, the Court grants the motions for preliminary injunction and orders relief as described below.
For purposes of satisfying its obligations under Federal Rules 52(a) and 65(d), the
Court makes the following findings of fact, which are derived from the parties' exhibits and the testimony at the evidentiary hearing. They are preliminary in nature and not binding in any proceedings on the merits. See Michigan v. U.S. Army Corps of Engineers, 667 F.3d 765, 782 (7th Cir.2011).
On November 21, 2012, just days after he was re-elected to his seat, Jesse Jackson, Jr., the incumbent member of U.S. House of Representatives from the Illinois Second Congressional District, resigned from that position. Under Illinois law, when such a vacancy occurs more than 180 days before the next general election, a special election must be held pursuant to § 25-7 of the Illinois Election Code, 10 ILCS 5/25-7. As of Nov. 21, 2012, that statute provided: " When any vacancy shall occur in the office of representative in congress from this state more than 180 days before the next general election, the Governor shall issue a writ of election within 5 days after the occurrence of that vacancy to the county clerks of the several counties in the district where the vacancy exists, appointing a day within 115 days to hold a special election to fill such vacancy."
Special elections generally must proceed according to the normal rules in the Illinois Election Code. See 10 ILCS 5/25-7-61. Those rules prescribe procedures for nominating major-party candidates on the one hand, and new (that is, unestablished) party candidates and independent candidates on the other. See 10 ILCS 5/10-2, 10-3. The latter two kinds of candidates do not participate in primary elections; instead, to access the ballot, they must submit petitions signed by a number of supporters equal to 5% of voters in the last election for the office being sought. 10 ILCS 5/10-2, 10-3.
With Mr. Jackson's vacancy coming so soon on the tail of a general election, the Illinois General Assembly saw fit to amend the special election rules. It passed a one-off bill, Public Act 97-1134, that applied only to vacancies " occurring less than 60 days following the 2012 general election." See 10 ILCS 5/25-7(b). The new law provided for the holding a special primary election on February 26, 2013, and a special general election on April 9, 2013. Id. The date of the special election, all concede, was selected because a Chicago municipal election was already scheduled for that date; a large portion of the 2nd Congressional district lies within the city of Chicago. Intermediate deadlines for demonstrating ballot eligibility were established accordingly; as relevant here, the petitions of independent and new-party candidates to appear on the general election ballot were due to the State Board of Elections at least 64 days before the April 9 election— that is, February 4, 2013.
Aside from these changes to the usual timetable for special elections, the new law retained all the requirements already set forth by the election code. See See 10 ILCS 5/25-7(b) (" Except as provided in this subsection (b), the provisions of Article 7 of this Code are applicable to petitions for the special primary election and special election." ). Therefore, independent and new-party candidates were still required to meet the 5% signature requirement. And because the turnout in the 2012 election was high, the required number of signatures is a higher-than-usual 15,682.
Plaintiff LeAlan Jones was the Illinois Green Party candidate for U.S. Senate in 2010, when he received more than 117,000 votes statewide (having met the ballot access requirement for statewide office of 25,000 signatures). He did not run against Congressman Jackson in the Second Congressional District in 2012, nor did any Green Party candidate. The Green Party focused its efforts in 2012 on two other
congressional districts where it deemed its chances better; it also ran a candidate for President. The Green Party did not qualify as an established statewide party in Illinois based on the 2012 election results; therefore, for purposes of the special election, the Green Party is a " new" party in the second district. Mr. Jones testified at the preliminary injunction hearing.
In the short time that has elapsed since Congressman Jackson's resignation, Jones has attempted to drum up interest in his candidacy by attending candidate forums. His campaign has developed a website, albeit one that has functioned only intermittently, and has used social media to communicate with potential voters. To date, however, Jones has not organized a signature drive and is not aware that his campaign has collected a single signature on his behalf. Jones testified that even if he had the manpower, weather conditions and violent crime in the part of the district where his support is strongest have rendered him reluctant to ask volunteers to petition for signatures without extensive training.
The Illinois Green Party, whose chairman Phil Huckelberry testified at the hearing, also has not organized a signature drive in the Second District. Local Green Party organizations have been alerted about the need to gather signatures, and Huckelberry believes a group of activists based in Flossmoor is collecting signatures; however, he does not how many they have obtained. The Green Party and its members did not believe it would be worthwhile to launch a signature-collecting campaign so soon after the November 2012 elections and when the signature requirement was so high, based on the gross number of signatures constituting 5 percent of the high voter turnout in the 2012 election, as to be a " fool's errand." The party made little use of social media to organize any petitioning.
Based on his considerable experience supervising or participating in signature drives on behalf of Green Party candidates (including himself), Huckelberry believes that it would be impossible for the Green Party to collect 15,682 signatures in 62 days in December and January, without any lead-up time in which to organize a signature drive before implementing it. In response to the State's arguments, Huckelberry stated that only experienced professionals can consistently get signatures at the rate of 20 per hour under ideal conditions, and the Green Party needs to rely on volunteers during this special election cycle. Huckelberry opined that in his experience, obtaining 15,000 signatures in a single Congressional district under any circumstances would require require an extremely high level of coordination as well as a significant sum of money.
Intervenor Marcus Lewis also testified. Mr. Lewis ran for Congressman Jackson's seat in November 2012. He got on the ballot by collecting 5000 signatures (the flat number required in a post-redistricting year) and ultimately received about 40,000 votes. He exhausted his resources mounting that campaign and cannot reproduce his efforts so soon after the election; in particular he cannot pay petitioners to gather signatures for him. However, he and two supporters have done whatever they can to collect signatures, so far obtaining about 645. They have been stymied by the weather conditions and lack of public events at which large numbers of people gather. Door-to-door campaigning has not been successful because of the weather and because people simply won't open their doors. Lewis asked for permission to use the indoor spaces at various public colleges, but apart from a single day when he was permitted to do so at Prairie State University, he has been excluded from those venues (with the exception of the parking lots).
Both the plaintiffs and the State presented expert testimony about the possibility of a candidate accumulating 15,682 signatures from a single congressional district in a 62-day period.
Plaintiffs' expert Richard Winger is a researcher and analyst of nationwide ballot access requirements who edits and writes for Ballot Access News. He testified that he has researched the number of signatures in every state needed for a new-party or independent candidate to get on the ballot in a U.S. House district for every election since the time such records were available (1888). Winger testified that an independent or new-party candidate has never appeared on a ballot after successfully meeting a signature requirement of more than 13,000, and only three candidates have met a requirement that exceeded 10,000. He qualifies this statement by allowing for the possibility that someone was placed on a ballot in Illinois without getting the required number of signatures because there was no challenge; according to Mr. Winger, Illinois is the only state that allows candidates who fail to meet signature requirements to be listed on the ballot despite that failure if there is no challenge to their candidacy ...