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Stone v. Board of Election Commissioners for City of Chicago

United States District Court, N.D. Illinois

July 8, 2013


Page 887

For Jay Stone, Howard Ray, Denise Denson, Fredrick K. White, Plaintiffs: Christopher C. Cooper, Law Office of Christopher Cooper, Inc., Chicago, IL.

For Bill " DOC" Walls, Plaintiff: Christopher C. Cooper, LEAD ATTORNEY, Law Office of Christopher Cooper, Inc., Chicago, IL.

For Board of Election Commissioners for the City of Chicago, Defendant: James Michael Scanlon, LEAD ATTORNEY, James M. Scanlon & Associates, Chicago, IL; Terrence Michael Burns, LEAD ATTORNEY, Daniel Matthew Noland, Molly E. Thompson, Paul A. Michalik, Dykema Gossett PLLC, Chicago, IL.


Robert M. Dow, Jr., United States District Judge.

Page 888


Plaintiffs Jay Stone, Frederick K. White, Frank L. Coconate, Denise Denison, Bill " Doc" White, and Howard Ray 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,

Page 889

or city treasurer to obtain 12,500 signatures from legal voters of the City of Chicago. In December 2010, Plaintiffs moved for a preliminary injunction prohibiting the Board from enforcing the requirement in the municipal election on February 22, 2011. In ruling on Plaintiffs' motion for a preliminary injunction, the Court concluded that the 12,500 signature requirement of 65 ILCS 20/21-28(b) passes constitutional muster. Plaintiffs appealed, and the Seventh Circuit dismissed Plaintiffs' appeal as moot. Plaintiffs then returned to district court to begin anew.

Plaintiffs' third amended complaint for declaratory, equitable, and monetary relief suggests that two additional statutes, alone or in combination with the minimum signature requirement, create an impermissible burden on ballot access.[1] Currently before the Court is Defendant's motion to dismiss Plaintiff's third amended complaint [102]. For the reasons set forth below, the Court grants Defendant's motion [102].

I. Background

Plaintiffs' first three complaints challenged a statutory requirement that petitions filed by candidates seeking to get on the ballot for election to the office of mayor, clerk or treasurer of the City of Chicago be signed by at least 12,500 registered voters of the City (65 ILCS 20/21-28(b)). Ruling on a preliminary injunction based on the second amended complaint, the Court concluded that " it is abundantly clear from the long line of cases cited by the Board that Illinois' requirement that candidates for the offices of mayor, clerk and treasurer in the City of Chicago submit petitions containing signatures of 12,500 voters * * * passes constitutional muster under existing controlling precedent." See Memorandum Opinion and Order (" Mem. Op." ) at 13.[2] Accordingly, the Court held that " Plaintiffs have no likelihood of success in proving the unconstitutionality of the current 12,500 signature requirement (which is equal to 2.7% of the voters who voted in the last election, or less than 1% of the registered voters in Chicago) absent a change in controlling law." Id. at 14.

Plaintiffs' third amended complaint continues to challenge the constitutionality of the 12,500 signature requirement " for reasons which include that it acts in concert with two other significant ballot restrictions (a one signature requirement and a 90-day collection period), and that such additional restrictions amplify the burden of the signature requirement." Third Amended Complaint (" TAC" ) at 1-2. Notwithstanding the Court's prior ruling that the statute passes constitutional muster under controlling precedent, Plaintiffs also maintain the 12,500 signature requirement in and of itself is " onerous, restrictive and unconstitutional." TAC, ¶ ¶ 13-14, 23-29.

Plaintiffs also contend, as they did in their first and second amended complaints, that the " Election Code does not bar Chicago voters from signing more than one petition as in signing for more than one candidate," but the Board nevertheless imposes such a " notion" or " policy," which adversely affected them. TAC, ¶ 30. Contradicting that assertion, Plaintiffs also claim that the Board enforces 10 ILCS 5/10-3, a statute that limits voters to signing one petition. TAC, ¶ 34. Plaintiffs assert that the " one signature" rule, independent

Page 890

of the signature requirement (or the 90-day collection rule), is a " significant" ballot restriction and " amplified the restrictive and onerous" signature requirement, thereby abridging their First Amendment rights. TAC, Count I, ¶ ¶ 34-35.

Plaintiffs' third claim, asserted for the first time, is that the prohibition against obtaining signatures more than 90 days before the last day for filing petitions (10 ILCS 5/10-4), independent of the signature requirement or the one-signature rule, is " a significant ballot restriction." TAC, Count I, ¶ 36. They contend that the 90-day collection rule " amplified the restrictive and onerous" signature requirement and abridges Plaintiffs' First Amendment rights. TAC, Count I, ¶ ¶ 36-37. Finally, Plaintiffs suggest that the denial of injunctive relief " may not have occurred" but for an alleged " representation" by the Board's counsel that the Board " had not imposed or does not impose a one-signature requirement." TAC, ¶ ¶ 19-21. Plaintiffs contend that they were harmed by the Board " having mislead [sic] the District Court as to the one-signature requirement," resulting in the abridgement of their rights under the First Amendment. TAC, Count I, ¶ 49.

Count I of the third amended complaint alleges that the 12,500 signature requirement abridges Plaintiffs' rights under the First Amendment; Count II alleges that Plaintiffs were deprived of their substantive due process as to freedom of speech and association, harmed by loss of money, resources and time " attempting to and securing signatures," and deprived of their right to see on the ballot the names of their candidates; and Count III alleges that Plaintiffs were deprived of their right to petition the government. All three counts seek relief in the form of " a declaratory ruling that the 12,500 [signature] requirement is unconstitutional" and judgment against Defendant for costs and attorney's fees.

II. Legal Standard for Rule 12(b)(6) Motion to Dismiss

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint, not the merits of the suit. See Gibson v. City of Chicago,910 F.2d 1510, 1520 (7th Cir. 1990) (citations omitted). To survive a Rule 12(b)(6) motion to dismiss, a complaint must satisfy the requirements of Rule 8. Fed.R.Civ.P. 8. First, the complaint must provide " a short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), such that the defendant is given " fair notice of what the * * * claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Second, the factual allegations in the complaint must be sufficient to raise the possibility of relief above the " speculative level," assuming that all of the allegations in the complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atlantic, 550 U.S. at 555, 569 n.14). " [O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Bell Atlantic, 550 U.S. at 579-80. " While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not ...

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