Patrick Harlan, et al v. Charles Scholz, et al
Filing
Filed opinion of the court by Chief Judge Wood. The preliminary injunction entered by the district court on September 27, 2016, is hereby VACATED and the case is REMANDED to the district court for further proceedings consistent with the opinion. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and Ilana Diamond Rovner, Circuit Judge. [6859108-1] [6859108] [16-3547, 16-3597]
Case: 16-3547
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In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16‐3547 & 16‐3597
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.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 7832 — Samuel Der‐Yeghiayan, Judge.
____________________
ARGUED MAY 30, 2017 — DECIDED AUGUST 4, 2017
____________________
Before WOOD, Chief Judge, and RIPPLE and ROVNER, Circuit
Judges.
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WOOD, Chief Judge. This is a case of wait‐and‐hurry‐up, ra‐
ther 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 imple‐
mentation 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 prelimi‐
nary 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. 10 ILCS 5/5‐5. Over the
years, the General Assembly added such options as early vot‐
ing and an extended registration “grace period,” and in 2014
it experimented with a pilot program for election‐day regis‐
tration. See P.A. 98‐691. On January 12, 2015, the legislature
enacted P.A. 98‐1171, which took effect on June 1 of that year;
the new law again expanded voting opportunities. It ex‐
tended the registration grace period, which previously had
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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 elec‐
tion], 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 au‐
thority, 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 de‐
signed 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 bur‐
den on smaller counties, the legislature added an opt‐out pro‐
vision for counties with populations under 100,000 (“smaller
counties”). See 10 ILCS 5/4‐50, ¶ 5. Elections in Illinois are ad‐
ministered by county clerks, and in some cities, by Boards of
Election Commissioners; the State Board of Elections super‐
vises the overall process. 10 ILCS 5/1A‐8(12). If the county
maintains an electronic version of the paper pollbook (called
an “e‐pollbook”), 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 au‐
thority’s main office,” as well as at “a polling place in each
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municipality where 20% or more of the county’s residents re‐
side if the election authority’s main office is not located in that
municipality.” 10 ILCS 5/4‐50, ¶ 5(i) and (ii). The election au‐
thority 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 Popu‐
lation Estimates by County, UNITED STATES CENSUS BUREAU,
https://factfinder.census.gov/bkmk/table/ 1.0/en/PEP/ 2016/
PEPANNRES/0400000US17|0400000US17.05000. 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 popula‐
tion had access to this convenience, not counting those living
in smaller counties whose regular polling place was the elec‐
tion 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
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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
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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 court, and we granted
the stay on October 4. We also denied expedited briefing and
consolidated the appeals from the state officials (No. 16‐3547)
and the intervenor‐defendant (No. 16‐3597).
II
We heard oral argument in these appeals on May 30, 2017,
more than five months after the 2016 general election. That
naturally raises the question whether the case is moot: the
election for the 17th Congressional District in which Harlan
was running is over, the Democratic candidate (Cheri Bustos)
won decisively, and the primaries for the 2018 congressional
races will not take place until next year. By that time, the
counties encompassed within the 15th and 17th Districts may
have electronic pollbooks, eliminating any concern that voters
(Republican or otherwise) in those areas lack some
registration and voting options. Harlan takes the position that
the case was indeed rendered moot by the occurrence of the
November 8, 2016, general election. The Election Officials
point out that the preliminary injunction was not set to end
following that election, nor did the district court’s order self‐
destruct at that point. Indeed, although the district court’s
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opinion referred to the then‐upcoming election, it also
discussed the law’s ramifications on elections generally—a
topic in which the Crawford County Republican Central
Committee is undoubtedly interested. Although Harlan says
that we should read a termination date into the district court’s
injunction, we are wary of doing so. Such an action would be
inconsistent with Federal Rule of Civil Procedure 65(d),
which requires all injunctions to be self‐contained documents.
We think it best to take the injunction at face value and on that
basis determine what, if anything, is left of this case.
In order to obtain a preliminary injunction, a plaintiff must
show three things: (1) without such relief, he will suffer irrep‐
arable harm before his claim is finally resolved; (2) he has no
adequate remedy at law; and (3) he has some likelihood of
success on the merits. Girl Scouts of Manitou Council, Inc. v. Girl
Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1086 (7th Cir. 2008). If
the plaintiff can do that much, the court must then weigh the
harm the plaintiff will suffer without an injunction against the
harm the defendant will suffer with one. Ty, Inc. v. Jones Grp.,
Inc., 237 F.3d 891, 895 (7th Cir. 2001). In addition, the court
must ask whether the preliminary injunction is in the public
interest. Jones v. Markiewicz‐Qualkinbush, 842 F.3d 1053, 1058
(7th Cir. 2016). This type of relief must not lightly be granted:
the movant bears the burden of showing that it is warranted.
Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). On appeal,
however, we ask only whether the district court’s decision to
grant or deny a preliminary injunction represented an abuse
of discretion. Lawson Prods., Inc. v. Avnet, Inc., 782 F.2d 1429,
1437 (7th Cir. 1986).
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Taking the basic criteria in order, we look first at Harlan’s
showing of harm. His case rests exclusively on Hood’s testi‐
mony, which we summarized earlier. We conclude that his
opinion comes nowhere close to demonstrating that Illinois
voters would suffer any harm at all—let alone irreparable
harm—under the system set up by P.A. 98‐1171. Hood’s re‐
port barely considered the effect of the statute against the
backdrop of the rest of Illinois’s electoral system. At best, it
gave a 30,000‐foot view of some academic research and a table
of votes for the candidates of each major party in statewide
races in small and large counties. The district court did not
explain how that data related to the question before it.
Relying on a report from political scientists Roger Lorocca
and John S. Klemanski, Hood admitted that political science
research generally concludes that Election‐Day registration
has a positive effect on voter turnout. The same report indi‐
cated that “positive turnout effect … is less consistent across
age and residential groupings” when centralized Election‐
Day registration is used. Hood never said, however, which
groups of voters—older, younger, rural, urban, ethnic, etc.—
are statistically more or less likely to benefit from the same‐
day option. Hood also provided no information on the ques‐
tion whether Election‐Day registration in Illinois’s 20 more
heavily populated counties is more likely to increase voter
participation than centralized Election‐Day registration in the
smaller counties. Hood also failed to take early voting into ac‐
count, other than to say that it has been linked to negative
turnout in studies from states other than Illinois. Lastly,
Hood’s conclusion was far from definitive. He ended with
these observations, which we quote verbatim:
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Limiting access in 82 of the state’s counties … will
likely dampen any positive turnout effect relative
to larger counties where [Election‐Day registration]
will be implemented in all voting precincts.
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It is quite possible … that Illinois’s [Election‐Day
registration] scheme will have the added effect of
diminishing GOP votes.
But Hood did not quantify his predictions. As a result, the
court was in the dark about just how weak the “positive
turnout” would be in small counties or how comparatively
diminished Republican votes might be. And again, even
though Hood purported to assess the impact of the voter
registration law on Illinois counties, his report contained no
facts about voter registration rates by county or municipality.
That said, Hood did admit that the 20 counties required to
provide Election‐Day registration contain about 84 percent of
the state’s population. His testimony falls far short of
establishing a basis for finding that the law severely burdens
the smaller‐county residents. Without any other basis for
finding irreparable injury—and there was none—the district
court erred by deeming this element of the preliminary
injunction test satisfied.
If, contrary to our conclusion, there had been some reason
to find irreparable harm, we would move on to the question
whether anything but a preliminary injunction could remedy
that harm. We assume for the sake of argument that the an‐
swer to this question could be no—in other words, in that
counterfactual world, immediate relief would have been
needed.
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Last, we turn to likelihood of success on the merits. Here,
too, we find nothing in this record that supports a finding that
Harlan has any realistic chance of prevailing. We begin with
some background rules. In a pair of cases, the Supreme Court
addressed the constitutional rules that apply to state election
regulations. See Anderson v. Celebrezze, 460 U.S. 780 (1983);
Burdick v. Takushi, 504 U.S. 428 (1992); see also Crawford v.
Marion Cnty. Election Bd., 553 U.S. 181 (2008). Under the
Anderson‐Burdick test, the court must apply a flexible standard
that depends on the severity of the burden imposed by the
state law under consideration:
A court considering a challenge to a state election law
must weigh the character and magnitude of the as‐
serted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vin‐
dicate against the precise interests put forward by the
State as justifications for the burden imposed by its
rule, taking into consideration the extent to which
those interests make it necessary to burden the plain‐
tiff’s rights.
Burdick, 504 U.S. at 434 (quotation marks omitted). In Craw‐
ford, a plurality of the Court reiterated that “a court must iden‐
tify and evaluate the interests put forward by the State as jus‐
tifications for the burden imposed by its rule, and then make
the ‘hard judgment’ that our adversary system demands.”
553 U.S. at 190 (plurality opinion). (The other three Justices
concurred in the judgment on the ground that the burden im‐
posed by Indiana’s voter ID law imposed no special burden
on voters and thus the state law was constitutional. See id. at
204 (separate opinion of Scalia, J.).
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The Court acknowledged that election laws “inevitably af‐
fect[ ] … the individual’s right to vote and his right to associ‐
ate with others for political ends.” Burdick, 504 U.S. at 433–34.
When an election law severely burdens voters’ constitutional
rights, that law must be narrowly drawn to advance a com‐
pelling state interest. Id. But when the law “imposes only rea‐
sonable, nondiscriminatory restrictions upon the rights of
voters, the State’s important regulatory interests are generally
sufficient to justify the restrictions.” Id. at 434 (internal citation
omitted). Regulations falling somewhere between those ex‐
tremes—i.e. those that impose more than a minimal, but less
than a severe, burden on voting—are evaluated by comparing
the burden on the voters with the state’s interest and the
means it has chosen to advance that interest.
In our case, the district court applied strict scrutiny
because it was persuaded that the burden on voters in the
smaller counties was severe. But it is unclear on what,
precisely, the court relied in arriving at that conclusion. For
the reasons we already have reviewed, Hood’s contribution
did not fill that void. Also troubling is how Harlan’s attack
has shifted as this case has progressed. Hood’s report makes
politics front and center; its only analysis of P.A. 98‐1171
comes in a section titled “The Partisan Effects of Illinois’
Election‐Day Registration Statute.” This section discusses the
vote totals garnered by the two major parties, by large and
small counties. But on appeal Harlan concerns himself with
the impact of the law on voters in low‐population and rural
counties, as well as less affluent counties, with only passing
reference to partisan effects. But affluence is not a factor
mentioned in the law, and nothing suggests that it is
correlated with county size. We note that the state’s second‐
largest county is DuPage County, which abuts Cook County
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and Chicago. DuPage County includes some of the Midwest’s
most affluent communities and has traditionally been a
Republican stronghold. See DuPage County, Illinois,
https://en.wikipedia.org/wiki/DuPage_County,_Illinois. This
indicates that there is no necessary correlation between
affluence, county size, and a tendency to vote Democratic.
Finally, even if Harlan’s focus had remained steady, problems
would remain. The question whether an election regulation
places an unacceptable burden on voters is “not a factual
finding, but a legal determination subject to de novo review.”
Ohio Democratic Party v. Husted, 834 F.3d 620, 628 (6th Cir.
2016).
The Supreme Court held in both Burdick and Crawford that
it is wrong to assume that any regulation of the voting
process, no matter how trivial, must be assessed using strict
scrutiny, just because voting is a fundamental right. In fact,
Burdick squarely holds otherwise: “Petitioner proceeds from
the erroneous assumption that a law that imposes any burden
upon the right to vote must be subject to strict scrutiny. Our
cases do not so hold.” 504 U.S. at 432. It follows that not every
difference in treatment amounts to an Equal Protection
violation. See Crawford, 553 U.S. at 191 (opinion of Stevens, J.).
Perhaps recognizing that it was on thin ice, the district
court also concluded that even under rational‐basis review,
Harlan had some likelihood of succeeding on the merits. But
it provided no support for this conclusion, and we cannot find
any in the preliminary‐injunction record. Harlan offers no ev‐
idence of discriminatory intent, as opposed to evidence of
some differences in treatment. As the Supreme Court noted in
Anderson, any state election law, “whether it governs the reg‐
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istration and qualifications of voters, the selection of eligibil‐
ity of candidates, or the voting process itself, inevitably af‐
fects—at least to some degree—the individual’s right to vote
and his right to associate with others for political ends.”
460 U.S. at 788.
In light of the minimal harm posed by P.A. 98‐1171 and
Harlan’s failure to show a likelihood of success on the merits,
we conclude that the preliminary injunction should not have
issued. Our view is bolstered by the absence of any consider‐
ation of the public interest in the opportunity to register to
vote, and to vote. Even though P.A. 98‐1171 does not force
quite as many options on the smaller counties as it does on
the 20 largest counties, it permits every county to adopt the
default same‐day rules, and it provides realistic same‐day op‐
tions even in the smaller places. This, coupled with the lack of
any data about which groups are disadvantaged and how,
dooms the injunction.
III
Even if the preliminary injunction had been justified at the
time the district court entered it, the passage of time has
changed at least one thing: the urgency of injunctive relief.
There is plenty of time at this juncture for the district court to
consider this case without invoking its extraordinary equity
powers. The next election that will be affected by P.A. 98‐1171
is the off‐year primary election scheduled for March 20, 2018.
To the extent that this injunction is designed to address Illi‐
nois elections until the merits of the case are resolved, we con‐
clude that it must be vacated.
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The preliminary injunction entered by the district court on
September 27, 2016, is hereby VACATED and the case is re‐
manded to the district court for further proceedings con‐
sistent with this opinion.
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