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Tripp v. Smart

United States District Court, S.D. Illinois

September 10, 2014

TABITHA TRIPP, GARY SHEPHERD, FELICIA HOLLY, VERA HOLLY, RENEE COOK, ILL. GREEN PARTY, and CANDACE A. DAVIS, Plaintiffs,
v.
JESSE R. SMART, in his official capacities, CHARLES W. SCHOLZ, in his official capacities, BRYAN A. SCHNEIDER, BETTY J. COFFRIN, HAROLD D. BYERS, CASSANDRA B. WATSON, WILLIAM M. McGUFFAGE, ERNEST L. GOWEN, and RUPERT T. BORGSMILLER, Defendants.

MEMORANDUM & ORDER

MICHAEL J. REAGAN, District Judge.

BACKGROUND

This case presents a facial and as-applied challenge to two requirements of Illinois' Electoral Code, individually and in their combined effect. Plaintiffs Gary Shepherd and Tabitha Tripp (of Illinois 115th and 118th Representative Districts, respectively) both failed to obtain the minimum number of signatures to appear on the upcoming November ballot as Green Party candidates. Plaintiffs dispute the constitutionality of the combined effects of (1) an Illinois law that requires "new party"[1] candidates to gather signatures from 5% of their district's eligible voters (10 ILCS 5/10-2, "the 5% minimum signature requirement"); and (2) that each sheet of signatures (containing a maximum of ten nominating petition signatures) be notarized (10 ILCS 5/10-4, "the notarization requirement"). The circulation period for placing a "new" party candidate on this year's November General Election ballot opened on March 25, 2014, and lasted 90 days.

Submitting the signatures they managed to collect, Shepherd and Tripp filed for candidacy on June 23, 2014. Neither met the 5% minimum (Shepherd submitted about 1, 800 of the approximately 2, 400 signatures he needed; Tripp also needed about 2, 400, but submitted approximately 1, 700). On July 28, 2014, the Illinois State Officers Electoral Board ("ISOEB") Hearing Examiner recommended that neither candidate appear on the upcoming November ballot. On August 22, 2014, the ISOEB held a hearing in which it adopted the Examiner's recommendation, and the General Election ballot was certified.

Plaintiffs filed this suit on August 13, 2014-almost five months after the circulation period began, and only nine days before their final ISOEB hearing (and ballot certification). On August 18, the instant Plaintiffs moved for a preliminary injunction. That motion, which ripened upon Defendants' response, is now before the Court. A companion case (filed by putative statewide Green Party candidates who were challenging three ballot access restrictions, including the notarization requirement) was filed in the Northern District of Illinois, where Judge John J. Tharp denied a preliminary injunction on August 21. (Docket No. 19-1; Summers v. Smart, ___ F.Supp.2d ___, 2014 WL 4124253 (N.D. Ill., Aug. 21, 2014)). Judge Tharp's well-reasoned order weighed the proper factors for preliminary injunctive relief ( see below ), and concluded that the "extraordinary" remedy of a preliminary injunction was unwarranted, especially considering the late hour at which the Northern District plaintiffs (who filed suit over a month before the instant Plaintiffs did) sought to be placed on the ballot.

The Court (which in the meantime had denied a motion it construed as one for a temporary restraining order seeking delay in ballot certification, see Doc. 22) held a hearing on the matter over the course of September 2 to September 4, 2014. The Court took evidence (in the form of documents and testimony from a Green Party officer) and heard argument from the parties.[2] Plaintiffs understandably attempted to minimize the tardiness of their lawsuit and motion, and adduced facts tending to show the burden placed on local Green Party candidates by the 5% signature requirement and notarization requirement. Defendants gave their own interpretation of the effects of the requirements. Among the evidence introduced and the Court's findings of fact:

• Richard Whitney, former Green Party gubernatorial candidate and current party chairman, testified that he and Plaintiffs' counsel were the only two registered notaries in the local Green Party organization during the signature period. Whitney testified that becoming a notary involved less than $100 in costs and a minimal time commitment, and that he did not become a notary until about 2/3 of the way through the signature window. There are over 4, 000 active notary publics in the counties covered by the 115th and 118th districts.
• While it was unclear exactly when Tripp and Shepherd began collecting signatures (remember, the period began on March 25), it was not the first day of the period. Though some evidence that collection did not begin until May, the Court finds signature collection began on or about April 20, 2014.
• The statutory deadline for printing ballots (so those ballots can be distributed to overseas armed forces members, among other things) is September 19, 2014. As of the hearing, no ballots had been printed, but about half the county clerks had sent proofs to printing vendors.
• Collecting signatures has become more difficult since the most recent Illinois redistricting. For example, new district lines bisect population centers (like Mount Vernon or Carbondale, Illinois), making it difficult for circulators and citizens at large events (like church meetings, farmers markets, sporting events, etc.) to identify precisely in which district they reside. This leads to longer average conversations between circulators and potential petitioners, and necessarily shrinks the number of conversations a circulator can have in a given amount of time. Plaintiffs assert there is simply "no time to pull out a map" and effectively gather signatures, especially in a setting like the 115th and 118th, where population density is not high.
• County clerks are responsible for printing the ballots. The 115th and 118th Districts, like many, cover parts of several different counties. For example, one county clerk may have to print several ballots, since each county may cover parts of two, three, or more Districts.
• About 30 people circulated for Plaintiffs Tripp and Shepherd (one, the other, or both of them).

Plaintiffs concede it is beyond the Court's power, at this juncture, to lower the 5% signature requirement to some other percentage, and ask instead that the Court place Shepherd and Tripp on the November ballot notwithstanding the lack of a final declaration declaring the 5% requirement and/or the notarization requirement unconstitutional. In other words, ...


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