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Tripp v. Smart

United States District Court, S.D. Illinois

August 17, 2016



          Michael J. Reagan United States District Court

         In 2014, Green Party members Tabitha Tripp and Gary Shepherd sought to appear on the upcoming Illinois General Election ballot as candidates for state representative-Tripp sought to appear as a candidate for the 118th district and Shepherd for the 115th district. At the time, the Green Party was an “unestablished” party under Illinois law, so Tripp and Shepherd needed signatures from 5% of the voters in their respective districts to get on the ballot. Like all candidates for the geographically large 118th and 115th districts, Tripp and Shepherd needed to collect those signatures in 90 days, and each sheet of signatures needed to be signed by the circulator who gathered them and then each sheet had to be notarized. Tripp and Shepherd didn’t collect enough signatures during the 90-day collection period, so the Illinois State Board of Elections ruled that they would not appear on the ballot.

         After the Board refused Tripp and Shepherd a place on the ballot, the two candidates, alongside the Illinois Green Party and a few of the candidates’ supporters, filed suit in this Court. The plaintiffs alleged that the 5% signature requirement for unestablished parties and the notarization requirement for all parties each violated the First Amendment and the Fourteenth Amendment of the United States Constitution. Failing that, the plaintiffs also claimed that the signature requirement and the notarization requirement-when taken with the 90-day time period for collecting signatures and Illinois’ 2011 decision to remap the district boundaries in a manner that split up a number of the state’s population centers-cumulatively burdened their ballot rights in an unconstitutional fashion. The plaintiffs wanted these ballot restrictions declared unconstitutional, and they also requested a preliminary injunction from the Court directing Illinois to list Tripp and Shepherd on the 2014 ballot. The Court denied the request for preliminary relief, and the case has since proceeded through discovery.

         Tripp, Shepherd, and the other plaintiffs have now moved for summary judgment, asking the Court to declare the 5% signature requirement, the notarization requirement, and the cumulative effect of some of Illinois’ election regulations as unconstitutional. Smart and the other Illinois State Board of Elections defendants, too, have moved for summary judgment, maintaining that the challenged restrictions survive constitutional challenge. For the reasons below, the defendants’ motion for summary judgment is granted, and plaintiffs’ motion for summary judgment is denied.


         In 2014, Tabitha Tripp and Gary Shepherd decided to run as Green Party candidates for state representative for their respective districts-Tripp for the 118th district, which covers 2.808 square miles and runs from the southernmost counties of Illinois to the northern county line of Hamilton County; and Shepherd for the 115th district, which covers 1, 808 square miles and stretches from the southwestern corner of Union County on the Mississippi River to the edge of Jefferson County. At that time, the Green Party had not received 5% of the vote in the last gubernatorial election or 5% of the vote in the last elections in the 115th and 118th districts, so the Green Party qualified as an “unestablished” party for Tripp and Shepherd’s purposes. The Illinois requirements for getting on an election ballot differ slightly based on whether a party is an established party or an unestablished party: unestablished party candidates need nominating signatures from 5% of the number of voters who vote at the next preceding regular election in their district to appear on the district’s ballot, while established party candidates need far less, the thinking being that established party candidates don’t need to demonstrate as much popular support given the party’s showing in the last election. There are other Illinois balloting requirements but those apply to both established parties and unestablished ones-both parties have 90 days to collect signatures from voters, both parties are subject to the same district boundaries for the relevant district, and both parties are required to submit signatures sheets with the circulator identified and the sheet notarized, so as to verify the circulator’s identity.

         Tripp and Shepherd could start collecting signatures in March 2014, and regardless of when they actually started collecting-there’s some question in the record as to whether Tripp and Shepherd both started collecting signatures in April 2014 or if one of them started a bit later-their efforts seemingly got off to a disappointing start. Tripp and Shepherd maintain that things went slow because of Illinois’ burdensome ballot regulations. Those regulations, according to Tripp and Shepherd, were a source of constant frustration for Tripp, Shepherd, their party, and their supporters in a number of ways. For one, Tripp and Shepherd had to obtain more signatures to get on the ballot then an established party, a requirement that stretched the Green Party’s resources. Once more, to get those signatures, Tripp, Shepherd, and their circulators had to tour through large rural districts with cities that were split up in the last Illinois redistricting, meaning that they had to endure some travel-related burdens and had to routinely hassle voters about their district of residency. Making matters worse, each circulator’s signature sheet had to be signed by the circulator and then notarized. To clear that hurdle, circulators had to independently obtain free or paid notary services, become notaries themselves, or attend Green Party notarization events.

         By mid-June 2014, Tripp and Shepherd still didn’t have the signatures they needed to make it onto their respective ballots, so then Green Party Chairman Rich Whitney sent an email to Tripp and Shepherd’s supporters. His email touted his recent success in obtaining signatures for Tripp and Shepherd at a large event in Metropolis, Illinois, but stressed that more needed to happen for the two to make it onto their ballots. Whitney encouraged circulators to do some door-to-door work to obtain signatures throughout the 115th and 118th districts, and reminded all involved that the signature collection effort really was “do-able” and wasn’t “that hard.” Despite Whitney’s efforts, Tripp and Shepherd still fell short when the signatures were due in late June. By the due date, Tripp needed 2, 399 signatures but only had about 1, 700 and Shepherd needed 2, 407 signatures but only had about 1, 800. Given the shortfall, the Illinois State Board of Elections rejected each candidate’s nominating papers.

         Tripp, Shepherd, their party, and their supporters were convinced that Tripp and Shepherd missed their ballots not because they lacked popular support but because Illinois’ ballot restrictions imposed a severe burden on their ballot access rights. In August 2014, they filed a complaint in this Court against a number of Illinois State Board of Elections officials, seeking a preliminary injunction requiring Tripp and Shepherd to be placed on the ballot, as well as permanent injunctive relief concerning Illinois’ ballot restrictions. The collection of plaintiffs asserted that two provisions of the Illinois Election Code-the circulator notarization requirement and the 5% minimum signature requirement-violated the free speech and association clauses of the First Amendment and the equal protection clause of the Fourteenth Amendment, both as applied to unestablished parties in the 115th and 118th districts and facially to all. They also claimed that there was a constitutional problem with the signature and notarization requirements when those requirements were considered in combination with the 90-day time period for obtaining signatures and the State of Illinois’ 2011 decision to redraw many of the representative districts, including the 115th and 118th districts, in a manner that split up some of the districts’ population centers.

         In September 2014, the Court denied the plaintiffs’ motion for a preliminary injunction, ruling that the 2014 election would go forward without Tripp and Shepherd on their respective ballots. The case then proceeded through discovery, and at the end of that, the parties filed cross motions for summary judgment. The Court held a hearing on those motions in July 2015 and then accepted supplemental briefing concerning a few election law cases that were decided around the time period of the hearing as well as briefing regarding the preclusive effect of any ruling in this case that was dependent on Tripp and Shepherd’s purported lack of diligence-in other words, the candidates’ alleged failure to start collecting signatures at the beginning of the 90-day period. The cross motions for summary judgment are now before the Court for review.


         The parties’ cross motions for summary judgment are mirror images of each other-Tripp, Shepherd, their party, and their supporters maintain that some of Illinois’ ballot restrictions violate the First Amendment and the Fourteenth Amendment, while Smart and the other Illinois Board of Election officials named as defendants insist that Illinois’ requirements clear constitutional scrutiny. The Court’s task, when faced with cross motions like that, is to take each motion “one at a time, ” construing “all facts and draw[ing] all reasonable inferences in favor of the non-moving party” for each motion. Advance Cable Co., LLC v. Cincinnati Ins. Co., 788 F.3d 743, 746 (7th Cir. 2015). After parsing the motions, summary judgment is proper only if one of the movants shows that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014). If one of the movants makes that showing, summary judgment can be entered for that side; if neither makes that showing, the case must go to trial. Continental Airlines, Inc. v. United Airlines, Inc., 277 F.3d 499, 511 n.7 (4th Cir. 2002).

         The Court will start with Smart’s motion for summary judgment, and his threshold argument that some or all of this case is moot because the 2014 election already occurred. The Court says “some or all” because it isn’t entirely clear whether Smart is arguing that all of the injunctive relief requested is moot or if plaintiffs’ request for relief concerning the 2014 election alone is moot. To the extent Smart is arguing that the election-related injunctive relief is moot, he is of course correct. The Court denied the plaintiffs’ request for a preliminary injunction and the 2014 election went forward as scheduled, so the Court can’t order Tripp and Shephard to be placed on the ballot this late in the game. That said, the rest of the case isn’t moot. The plaintiffs are challenging the ballot restrictions that they claim kept Tripp and Shepherd off the ballot, and that is the kind of claim that ducks mootness even when the election has occurred-election controversies being capable of repetition yet usually evading review. E.g., Storer v. Brown, 415 U.S. 724, 737 n.8 (1974); Lee v. Keith, 463 F.3d 763, 767 (7th Cir. 2006); Tobin for Gov. v. Ill. State Bd. of Elec., 268 F.3d 517, 528-29 (7th Cir. 2001).

         With mootness dealt with, the Court can address the merits of Smart’s motion for summary judgment. Smart begins with the plaintiffs’ First Amendment as applied challenge, arguing that the 5% signature requirement, the notarization requirement, and the bulk of Illinois’ election regulations taken cumulatively don’t violate the plaintiffs’ First Amendment ballot access rights. The Constitution does not in so many words confer a right to get oneself onto a ballot or to vote for the person of one’s choice on a ballot, but the First Amendment, as incorporated against the states by the Fourteenth Amendment, does so implicitly by way of the speech and association clauses. E.g., Clingman v. Beaver, 544 U.S. 581, 586 (2005); Anderson v. Celebrezze, 460 U.S. 780, 786 (1983). That said, citizens aren’t the only ones with ballot-related rights-the states have their own right to manage the ballot process. E.g., Gelb v. Bd. of Elections of City of New York, 224 F.3d 149, 153 (2d Cir. 2000); Duncan v. Poythress, ...

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