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Monday, July 22, 2019

Seventh Circuit affirms summary judgment for ISBE

By Heather Isringhausen Gvillo | Oct 13, 2017

The Seventh Circuit Court of Appeals affirmed summary judgment for several Illinois State Board of Elections officials in a suit filed by the Green Party over excess candidate requirements for unestablished parties in Illinois.

In an Oct. 6 opinion, Judge Joel M. Flaum affirmed an order from Chief Judge Michael J. Reagan of the U.S. District Court for the Southern District of Illinois, granting summary judgment for the defendants and denying summary judgment for the Green Party and two candidates. Appellate Judges William J. Bauer and Diane S. Sykes concurred.

Illinois Green Party members Tabitha Tripp and Gary Shepherd sought to appear on the Illinois general election ballot as candidates for state representative in the 118th and 115th representative districts in 2014.

Tripp sought to appear on the ballot for the 118th district, which stretches from the southernmost counties of Illinois – Alexander, Pulaski and Massac – to the boundary of Hamilton County. It also bisects Jackson County and extends to the Indiana border.

Shepherd sought to appear on the ballot for the 115th district, which stretches from the southwest corner of Union County to the northern edge of Jefferson County.

Because the Green Party was deemed a new political party in both districts by the Illinois Election Code, both were required to obtain nomination petition signatures totaling 5 percent of the number of voters in the prior regular election for state representative in each of the respective districts.

Tripp would have had to obtain at least 2,399 signatures, and Shepherd needed to obtain at least 2,407.

They were also required to collect the signatures 90 days before the nomination petition deadline, and each signature sheet must be notarized. The 90-day petition window for the 2014 election ran from March 25 to June 23.

According to the opinion, established parties must only obtain 500 signatures for its candidate to appear on the primary election ballot. However, the 90-day petitioning window applies to both new parties and established parties.

Neither Tripp nor Shepherd collected a sufficient number of notarized signatures during the collection period. Tripp obtained roughly 1,700 signatures, and Shepherd amassed approximately 1,800 signatures.

As a result, the Illinois State Board of Elections, or ISBE, ruled that neither candidate would appear on the general election ballot.

The ballots ended up with only one candidate for state representative for the 118th district and two candidates for the 115th district.

Voters may still cast write-in votes for candidates on Election Day. Tripp received 67 write-ins and Shepherd received 160.

In August 2014, Tripp, Shepherd, the Illinois Green Party and several prospective voters filed suit in the U.S. District Court for the Southern District of Illinois against several ISBE officials following the disqualification, arguing that the new party ballot restrictions violated their First and Fourteenth Amendment rights.

They originally sought a preliminary injunction requiring Tripp and Shepherd to be placed on the ballot, and permanent injunction relief regarding the new party ballot access restrictions.

Reagan denied their motion for a preliminary injunction in September 2014.

Then at the close of discovery, both parties filed cross-motions for summary judgment.

Reagan granted summary judgment for the defendants on Aug. 17, 2016. The plaintiffs appealed.

Affirming Reagan’s ruling, Flaum wrote that a party’s right to access the ballots and its candidates’ rights to appear on the ballots are not absolute as the Constitution grants the states “broad authority to regulate the conduct of elections.”

He also wrote that the 5 percent signature requirement does not violate the First or Fourteenth Amendment.

He explains that in 2002, a Green Party candidate successfully petitioned to appear on the ballot in the 115th district. Then in 2012, the Green Party got candidates on ballots in both the 5th and 12th districts.

“This serves as ‘powerful evidence’ that the burden of satisfying the 5% signature requirement is not severe,” Flaum wrote.

Flaum also notes the Seventh Circuit’s previous finding that comparing the petitioning requirements is like comparing “apples with oranges.”

The court previously held that a new party has not yet demonstrated significant support, while an established party had already received 5 percent of the votes in the previous election.

“Thus it is neither irrational nor unfair to require a candidate from a new party to obtain a greater percentage of petition signatures to appear on the general election ballot than a candidate from an established party for the primary election ballot,” the opinion states. “The two petitioning requirements contain different percentages because they are used at two different times for two different purposes.”

Flaum also wrote that the notarization requirement does not violate the First Amendment.

The plaintiffs argue that notarization is an extra step requiring additional time that could have been spent petitioning and collecting signatures. They also argue that people refused to circulate petitions because of the notarization requirement.

Flaum wrote that “there are no major limitations on who can become a notary in Illinois, and the time and expense necessary ‘is not extreme,’”

“In sum, although Illinois’s notarization requirement certainly imposes some logistical burden on plaintiffs’ ballot access rights, it cannot be fairly characterized as ‘severe,’” he wrote.

He adds that the Seventh Circuit has previously noted that Illinois is “notorious for election fraud,” and notarization helps eliminate fraudulent signatures.

Flaum also wrote that the requirements in conjunction with the 90-day petitioning window “does not dramatically tilt the constitutional scales.”

He explains that with the 30-plus circulators Tripp and Shepherd utilized to help obtain signatures, each circulator only needed to average less than one signature per day in order to meet the required thresholds.

“Even in the rural settings of the 118th and 115th districts, such a burden cannot be deemed severe,” he wrote.

U.S. District Court for the Southern District of Illinois case number 3:14-cv-890

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Illinois State Board of Elections U.S. Court of Appeals for the Seventh Circuit