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Harlan v. Scholz

United States Court of Appeals, Seventh Circuit

August 4, 2017

Patrick Harlan and Crawford County Republican Central Committee, Plaintiffs-Appellees,
v.
Charles W. Scholz, Chairman, Illinois State Board of Elections, et al. Defendants-Appellants, and David D. Orr, Cook County Clerk, Intervening Defendant-Appellant.

          Argued May 30, 2017

         Appeals from the United States District Court for the Northern District of Illinois, Eastern Division. No. 16 C 7832 - Samuel Der-Yeghiayan, Judge.

          Before Wood, Chief Judge, and Ripple and Rovner, Circuit Judges.

          WOOD, Chief Judge.

         This is a case of wait-and-hurry-up, rather than its more familiar cousin, hurry-up-and-wait. With just two and a half months before the November 2016 general election, Patrick Harlan, the Republican Party's candidate for an Illinois congressional seat, and the Crawford County (IL) Republican Central Committee, filed this lawsuit and promptly sought a preliminary injunction against the implementation of a state law that allows voters to register and vote on Election Day itself. Generally speaking, the law gives more options for same-day registration and voting for residents of counties with populations of 100, 000 or more than it does for those who live in smaller counties. The plaintiffs contended that the difference violated their rights under the Fourteenth Amendment's Equal Protection Clause. The district court agreed with them and issued the injunction; this court granted a stay of that injunction. We now vacate the preliminary injunction altogether.

         I

         The law that inspired this litigation is one in a series of measures the Illinois General Assembly has enacted in recent years to facilitate the process of voting for the state's citizens. Traditionally, Illinois's deadline for registering to vote was 28 days before the election in question. 10ILCS 5/5-5. Over the years, the General Assembly added such options as early voting and an extended registration "grace period, " and in 2014 it experimented with a pilot program for election-day registration. See PA. 98-691. On January 12, 2015, the legislature enacted PA. 98-1171, which took effect on June 1 of that year; the new law again expanded voting opportunities. It extended the registration grace period, which previously had ended on the third day before an election, to include Election Day, resulting in the following system:

During this grace period [within 28 days of the election], an unregistered qualified elector may register to vote, and a registered voter may submit a change of address form, in person at the office of the election authority, at a permanent polling place established under section 19A-10, at any other early voting site beginning 15 days prior to the election, at a polling place on election day, or at a voter registration location specifically designed for this purpose by the election authority.

10 ILCS 5/4-50, ¶ 1 (emphasis added). The law also permits the voter to cast his or her ballot at the place of registration, even if that is not the person's normal precinct. Id. ¶ 2.

         Recognizing that this expansion of options might be a burden on smaller counties, the legislature added an opt-out provision for counties with populations under 100, 000 ("smaller counties"). See 10 ILCS 5/4-50, ¶ 5. Elections in Illinois are administered by county clerks, and in some cities, by Boards of Election Commissioners; the State Board of Elections supervises the overall process. 10 ILCS 5/1A-8(12). If the county maintains an electronic version of the paper pollbook (called an "e-polibook"), the 2015 law requires it to offer election-day registration at all precinct polling places no matter what the county's size. Smaller counties that do not have e-pollbooks are not required under the legislation to offer election-day registration at all polling places, although they may include that option if they wish. But even if they opt not to do so, they must still offer election-day registration at "the election authority's main office, " as well as at "a polling place in each municipality where 20% or more of the county's residents reside if the election authority's main office is not located in that municipality." 10 ILCS 5/4-50, ¶ 5(i) and (ii). The election authority may also establish other grace periods and voting sites on election days, so long as it gives proper notice of its action. Id. ¶ 5.

         Illinois has 102 counties. Twenty of those counties have populations of 100, 000 or more; those 20 counties are home to approximately 84% of the state's residents. See Illinois Population Estimates by County, United States Census Bureau, https://factfinder.census.gov/bkmk/table/ 1.0/en/PEP/ 2016/ PEPANNRES/0400000US17I0400000US17.05000. In addition, Grundy County, Brown County, Stark County, and the city of Danville offered election-day registration for the 2016 general election. In total, therefore, nearly 85% of the state's population had access to this convenience, not counting those living in smaller counties whose regular polling place was the election authority's main office or at the designated location in a city with more than 20% of the county's population.

         Plaintiff Patrick Harlan was, at the time this suit was filed, the Republican candidate for the United States House of Representatives for Illinois's 17th Congressional District, which lies along the state's western border. The Crawford County Republican Central Committee, which is also a plaintiff, is located in the 15th District, in southeastern Illinois. We refer to them collectively as "Harlan, " as there is no material difference in the arguments they are advancing. On August 4, 2016-more than 18 months after P.A. 98-1171 became law, about four and a half months after the March 2016 primary (which was administered in accordance with P.A. 98-1171), and only 96 days before the general election-Harlan filed this action. He contended that P. A. 98-1171, codified at 10 ILCS 5/4-50, violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, because (as he sees it) the law disadvantages voters in smaller counties that do not have e-pollbooks, and thus comparatively boosts Democratic voter turnout.

         On August 9, Harlan moved for a preliminary injunction barring election officials throughout the state from implementing the Election-Day registration system. The time for waiting apparently had expired; Harlan wanted the court to hurry. His motion argued that the law needed to be enjoined immediately so that no county would offer precinct-level registration in the upcoming November election, but he placed no time limit on the requested injunction. In support of his request, he offered only the opinion of M.V. Hood, a political scientist at the University of Georgia. Hood reported that Illinois is the only state that uses this two-tiered system. He also said that research shows that Election-Day registration has a positive effect on turnout; that the positive effect is not consistent across all age and residential groups; and that it is "quite possible" that Democratic candidates would be disproportionately benefited. Conspicuously absent from his report was data about eligible but not registered voters, their party affiliation, the distribution of those potential voters across large and small population counties, or some quantification or description of the burden (such as the distance) created by the tiered system. Harlan provided no other support-not even a single affidavit from a would-be voter.

         The district court granted the requested relief on September 27, 2016. The preliminary injunction ordered the election authorities in all 102 counties not to implement the Election-Day registration option at precinct polling places. It contained no language limiting it to the 2016 election. Defendants-the Chairman of the Illinois State Board of Elections, the other members of the Board, and the Cook County Clerk (who had intervened)-filed a notice of appeal that day, and also asked the district court to stay the preliminary injunction pursuant to Federal Rule of Civil Procedure 62(c). (We refer to the defendants collectively as the Election Officials.) The district court denied their motion on September 29; they renewed it in this ...


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