United States District Court, N.D. Illinois, Eastern Division
REBECCA A. KERLIN, et al., Plaintiffs,
CHICAGO BOARD OF ELECTIONS and JAMES M. SCANLON, Defendants.
MEMORANDUM OPINION AND ORDER
ROBERT BLAKEY UNITED STATES DISTRICT JUDGE.
Rebecca Kerlin, William Shipley, Michelle Gale, Katherine
Wuthrich, and Claire Tobin (collectively, the
“Plaintiff Monitors”) served as election monitors
in Chicago during the March 15, 2016 Illinois primary
election. Plaintiff Nina Marie cast an electronic ballot in
downtown Chicago during the election's early voting
21, 2016, Plaintiffs filed suit in this Court seeking
declaratory and injunctive relief against the Chicago Board
of Elections (“BOE”) and its General Counsel,
James Scanlon (“Scanlon”) (collectively,
“Defendants”). Plaintiffs allege that
Defendants' actions both during and after the election
violated their right to vote (Count I) and their rights to
freedom of association and to petition the government (Count
II). On November 8, 2016, Defendants jointly moved under
Federal Rule of Civil Procedure 12(b)(6) to dismiss
Plaintiffs' Amended Complaint for failure to state a
claim. Defs.' Mot. Dismiss . For the reasons
explained below, Defendants' motion is granted in part
and denied in part.
The Illinois Election Code and Direct Recording Electronic
Illinois Election Code authorizes election precincts to use
Direct Recording Electronic Voting Systems (“Electronic
Voting Systems”) during both regular and early voting.
10 ILCS § 5/24C-1. When an Electronic Voting System is
utilized, voters cast votes via an electronic ballot display
“with mechanical or electro-optical devices that can be
activated by the voters to mark their choices for the
candidates of their preference and for or against public
questions.” Id. These voting devices are
ostensibly capable of: (1) electronically recording and
storing ballots; (2) tabulating votes; and (3) producing a
permanent paper record for each ballot cast. Id.
each voter completes his or her electronic ballot, the
Electronic Voting System records an image of the completed
ballot, and, upon request, prints the permanent paper record,
which shows the votes cast in readable form. Id. at
§§ 5/24C-2, 5/24C-12. The permanent paper record
for each respective ballot contains a unique, randomly
assigned identifying number that corresponds to the number
randomly assigned by the voting system to each ballot as it
is electronically recorded. Id. Permanent paper
records are preserved and secured by election officials in
the same manner as traditional paper ballots, and are
available as an official record for any recount, redundant
count, or verification or retabulation of the vote count.
Id. at § 5/24C-12.
addition to creating the permanent paper record, the
Electronic Voting System also independently records each vote
cast for or against any candidate and for or against any
public question. Id. at § 5/24C-11(u). Upon the
close of voting, these vote totals are tabulated by the
Electronic Voting System and an “In-Precinct Totals
Report” is generated for return to the election
authority. Id. at § 5/24C-12. This report
includes the total number of ballots cast for each candidate
and public question and constitutes the official return of
each precinct. Id. at § 5/24C-15.
ensure the accuracy of the automatic counts generated by
Electronic Voting Systems, the Illinois Election Code
requires each election authority to, inter alia,
test the voting devices and equipment in five percent of the
precincts within each election jurisdiction, as well as five
percent of the voting devices used in early voting.
Id. These tests are conducted after Election Day,
but prior to the proclamation of election results.
tests consist of counting individual votes recorded on the
permanent paper record of each ballot and comparing the
totals with the results tabulated by the Electronic Voting
System. Id. If any error is detected, the Illinois
Election Code requires the cause to be “determined and
corrected, ” and an errorless count to be made before
election results are officially canvassed and proclaimed.
Id. Furthermore, if either: (1) an error is detected
and corrected; or (2) an errorless count cannot be conducted
because there continues to be a discrepancy between the count
from the permanent paper records and the results produced by
the Electronic Voting System, the election authority must
“immediately prepare and forward to the appropriate
canvassing board a written report explaining the results of
the test and any errors encountered.” Id. This
report must be made available for public inspection.
statute, advance written notice of the time and place of
these tests must be provided to the State Board of Elections,
the State's Attorney, appropriate law enforcement
agencies, the county chairman of each established political
party, and, of particular relevance here, “qualified
civic organizations.” Id. Representatives of
these institutions are permitted to attend the tests.
Testing for the March 15, 2016 Illinois Primary
March 23, 2016 through March 29, 2016, the Chicago BOE tested
the required five percent of the Electronic Voting Systems
used in the March 15, 2016 primary. Am. Compl.  ¶
18. One or more of the Plaintiff Monitors were credentialed
by a qualified civic organization to attend each test
performed. Id. ¶ 19.
to Plaintiffs, the BOE conducted the tests by having one BOE
employee read aloud votes from the permanent paper record of
individual ballots. Id. ¶ 20. Meanwhile,
another BOE employee created a written tally sheet of the
oral vote count. Id. Plaintiffs contend, however,
that the total vote counts tabulated by the Electronic Voting
System were printed on these tally sheets before the test
count began. Id. Moreover, BOE employees tallied the
oral vote count in pencil, allowing for erasures.
Id. Plaintiffs allege that the combination of the
preprinted vote totals and the use of pencils allowed BOE
employees to alter tallies from the oral vote count so that
they matched vote totals tabulated by the Electronic Voting
allege that, throughout the testing process, multiple BOE
employees tallied oral vote totals that departed
significantly from the results generated by the Electronic
Voting Systems. Id. ¶ 22. BOE employees did
not, however, undertake the steps required by statute (i.e.
determine, correct, and report the error encountered).
Id. ¶ 23. Instead, BOE employees intentionally
altered tally numbers to match the results that had already
been placed on the tally sheets, regardless of the oral vote
count from the permanent paper record. Id.
Specifically, BOE employees changed votes from one candidate
to another, added or subtracted votes from candidates, and
stopped counting votes once they reached the result that was
pre-printed on the tally sheet. Id. ¶ 31. BOE
employees then falsely reported that no inconsistencies were
discovered. Id. Plaintiffs claim that these
improprieties were pervasive throughout the “test
counts” for Electronic Voting Systems from the March
15, 2016 primary election. Id. ¶ 24.
Plaintiffs allege that BOE employees took active measures to
“hinder or outright prevent” the Plaintiff
Monitors from monitoring and recording the improprieties as
they occurred. Id. ¶ 25. Plaintiffs claim, for
example, that BOE employees physically obstructed the
Plaintiff Monitors from observing employees perform the tests
and prevented Plaintiffs from photographing or documenting
the results of the tallies until any discrepancies were
fraudulently “resolved.” Id. Plaintiffs
claim that when they challenged these actions, BOE employees
and their supervisors-including Scanlon-refused to
acknowledge or correct any of the discrepancies. Id.
the testing process, several of the Plaintiff Monitors
attended an April 5, 2016 BOE meeting in order to notify BOE
commissioners of Plaintiffs' observations before election
results were certified. Id. ¶ 27. Plaintiffs
claim that the gathering was supposed to be an open meeting
subject to public comment. Id. Plaintiffs allege,
however, that the BOE commissioners prevented the Plaintiff
Monitors from presenting evidence of their observed
irregularities. Id. Instead, the BOE immediately
closed public comment, certified the election results, and
adjourned the meeting in less than two minutes. Id.
motion to dismiss under Rule 12(b)(6) “challenges the
sufficiency of the complaint for failure to state a claim
upon which relief may be granted.” Gen. Elec.
Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074,
1080 (7th Cir. 1997). A motion to dismiss tests the
sufficiency of a complaint, not the merits of a case.
Autry v. Northwest Premium Servs., Inc., 144 F.3d
1037, 1039 (7th Cir. 1998). To survive a motion to dismiss, a
complaint must first 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
the complaint must contain “sufficient factual
matter” to “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570). That is, the allegations must raise the possibility of
relief above the “speculative level.”
E.E.O.C. v. Concentra Health Servs. Inc., 496 F.3d
773, 776 (7th Cir. 2007). A claim has facial plausibility
“when the pleaded factual content allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 556). The
plausibility standard “is not akin to a
‘probability requirement, ' but it asks for more
than a sheer possibility that a defendant has acted
unlawfully.” Williamson v. Curran, 714 F.3d
432, 436 (7th Cir. 2013). The “amount of factual
allegations required to state a plausible claim for relief
depends on the complexity of the legal theory alleged,
” but “threadbare recitals of the elements of a
cause of action, supported by ...