Gill et al v. Scholz et al

Filing 15

OPINION: Plaintiffs' Motion for Preliminary Relief (d/e 4 ) is GRANTED. Defendants are ENJOINED from enforcing the Illinois Election Code's signature requirement against David M. Gill, independent candidate for U.S. Representative in the 13th Congressional District in light of the fact that he has obtained 8,593 valid signatures and shown a modicum of support. Consequently, because it appears Gill otherwise qualifies to be on the ballot, this ruling requires that Gill remain on the ballot. (SEE WRITTEN OPINION) Entered by Judge Sue E. Myerscough on 8/25/2016. (GL, ilcd)

E-FILED

Thursday, 25 August, 2016 11:40:00 AM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DAVID M. GILL, DAWN MOZINGO,
DEBRA KUNKEL, LINDA R.
GREEN, DON NECESSARY, and
GREG PARSONS,

)
)
)
)
)
Plaintiffs,
)
)
v.
)
)
CHARLES W. SCHOLZ, sued in his )
official capacities as the
)
Chairman of the Illinois State
)
Board of Elections and of the
)
State Officers Electors Board;
)
ERNEST L. GOWEN, sued in his
)
official capacities as Vice)
Chairman of the Illinois State
)
Board of Elections and of the
)
State Officers Electors Board;
)
BETTY J. COFFRIN, CASSANDRA )
B. WATSON, WILLIAM M.
)
McGUFFAGE, JOHN R. KEITH,
)
ANDREW K. CARRUTHERS,
)
WILLIAM J. CADIGAN, sued in
)
their official capacities as
)
Members of the Illinois State
)
Board of Elections and Members )
of the State Officers Electoral
)
Board; and STEVE SANDVOSS,
)
sued in his official capacity as the )
Executive Director, Illinois State )
Board of Elections,
)
)
Defendants.
)
Page 1 of 26 

No. 16-cv-03221

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
On August 1, 2016, David Gill, an independent candidate for
U.S. Representative in the 13th Congressional District of Illinois,
and Dawn Mozingo, Debra Kunkel, Linda R. Green, Don Necessary
and Greg Parsons, duly registered voters in the 13th Congressional
District, filed a Complaint for Declaratory Judgment and
Preliminary and Permanent Injunction (d/e 1) against members of
the Illinois State Board of Elections and the State Officers Electoral
Board in their official capacity. Plaintiffs allege that several
provisions of the Election Code violate the First and Fourteenth
Amendments to the U.S. Constitution. Specifically, Plaintiffs
challenge: (1) the notarization requirement; (2) the 5% minimum
signature requirement, as applied, in light of the fact that the
district is rural and geographically large; (3) the 5% minimum
signature requirement, as compared to the signature requirements
for other candidates; and (4) the cumulative effect of the 5%
minimum signature requirement, the 90-day signature gathering
period, and the splitting of population centers in the large, rural
district.
Page 2 of 26 

On August 18, 2016, Plaintiffs filed their Motion for Temporary
Restraining Order or Preliminary Injunction (d/e 4). The Court set
an expedited briefing schedule and held an evidentiary hearing on
August 24, 2016. The Court now GRANTS Plaintiffs’ Motion for
Preliminary Injunction.
I. BACKGROUND
On June 27, 2016, Gill filed with the Illinois State Board of
Elections a Statement of Candidacy as an independent candidate
for U.S. Representative. The Statement of Candidacy was
accompanied by a nominating petition containing the signatures
and addresses of 11,348 persons representing themselves to be
registered voters within Illinois’s 13th Congressional District. Gill
contends that he began collecting signatures on the very first day
allowed by law. He and 18 other circulators collected the 11,348
signatures.
On July 5, 2016, Jerrold Stocks of Mt. Zion filed an Objector’s
Petition against Gill’s petition alleging, in part, that Gill did not
have a sufficient number of valid signatures. On July 22, 2016,
David Herman, the hearing examiner for the State Officers Electoral
Board, issued his recommendation, finding that a record
Page 3 of 26 

examination concluded Gill had 8,593 valid signatures. Because
that number was less than the statutorily required number of
10,754, Herman recommended that Gill’s name not appear on the
General Election ballot.
The State Officers Electoral Board has scheduled a hearing for
August 26, 2016 to act on Herman’s recommendation. August 26,
2016 is also the last day for the State Board of Elections to certify
the names of the candidates for the General Election ballot to the
county clerks. 10 ILCS 5/7-60; 10 ILCS 5/10-14.
Pursuant to the Illinois Election Code, Gill, as an independent
candidate, was required to file nomination papers signed by
qualified voters of the district equaling not less than 5% nor more
than 8% of the number of persons who voted in the preceding
regular election in such district. 10 ILCS 5/10-3 (but not to exceed
the lesser of 1% of the voters who voted in the preceding Statewide
general election or 25,000). According to the 2016 Candidates
Guide, an independent candidate for the 13th Congressional
District for the 2016 election needed 10,754 valid signatures. See
State of Illinois Candidate’s Guide 2016, http:/www.elections.il.gov
(last visited August 25, 2016). In redistricting years, an
Page 4 of 26 

independent candidate need only obtain 5,000 signatures. 10 ILCS
5/10-3.
The signatures cannot be gathered more than 90 days before
the last day for the filing of petitions. 10 ILCS 5/10-4. In addition,
the circulator of the petition must certify that the signatures on
each sheet of the petition were signed in his presence, were
genuine, and, to the best of his knowledge, were signed by
registered voters in the district. The certification must be sworn
before a notary (the “notarization requirement”). See 10 ILCS 5/104. Nomination papers that are “in apparent conformity with the
provisions of this Act” are deemed to be valid unless an objection is
made. 10 ILCS 5/10-8.
In contrast, an established party candidate—which is a party
that polled more than 5% of the entire vote cast in the State in the
last general election—running for U.S. Representative only needed
to obtain signatures from qualified primary electors “equal to 0.5%
of the qualified primary electors of his or her party in his or her
congressional district.” 10 ILCS 5/7-10(b). According to the 2016
Candidates Guide, the Republican candidate for U.S.
Representative in the 13th Congressional District had to obtain 739
Page 5 of 26 

signatures and the Democratic candidate had to obtain 733
signatures to appear on the primary ballot. The established party
candidate had to collect the signatures in a 90-day period and
comply with the notarization requirement. 10 ILCS 5/7-10.
II. LEGAL STANDARD
A preliminary injunction is “an exercise of a very far-reaching
power, never to be indulged in except in a case clearly demanding
it.” Girl Scouts of Manitou Council, Inc. v. Girl Scouts of the United
States of America, Inc., 549 F.3d 1079, 1085 (7th Cir. 2008)
(citations and quotations omitted). A party seeking to obtain a
preliminary injunction must demonstrate: (1) a reasonable
likelihood of success on the merits; (2) that no adequate remedy at
law exists; and (3) he will suffer irreparable harm if the injunction is
not granted. See Planned Parenthood of Ind., Inc., v. Comm’r of
Ind. State Dept. of Health, 699 F.3d 962, 972 (7th Cir. 2012); Girl
Scouts, 549 F.3d at 1096 (likelihood of success on the merits
means a “better than negligible chance” on at least one of the
claims and is an “admittedly low requirement”).
If these threshold conditions are met, the district court then
weighs the balance of the harm to the parties if the injunction is
Page 6 of 26 

granted or denied. Planned Parenthood, 699 F.3d at 972. That is,
the court must consider the irreparable harm to the plaintiff if the
preliminary injunction is wrongfully denied versus the irreparable
harm to the defendant if the preliminary injunction is wrongfully
granted. Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir.
2015). Finally, the Court must consider the public interest (nonparties) in denying or granting the injunction. Planned Parenthood,
699 F.3d at 972.
The likelihood of success on the merits affects the balance of
the harms analysis. That is, the more likely a plaintiff will win on
the merits, the less the balance of irreparable harm needs to favor
the plaintiff’s position. Planned Parenthood, 699 F.3d at 972; see
also Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S., Inc.,
549 F.3d 1079, 1100 (7th Cir. 2008). This balancing test requires
that the court “exercise its discretion ‘to arrive at a decision based
on a subjective evaluation of the import of the various factors and a
personal, intuitive sense about the nature of the case.’” Girl Scouts
of Manitou, 549 F.3d at 1086 (quoting Lawson Prods., Inc. v. Avnet,
Inc., 782 F.2d 1429, 1436 (7th Cir. 1986)). Whether to grant a
preliminary injunction is within the court’s discretion. Ashcroft v.
Page 7 of 26 

ACLU, 542 U.S. 656, 664 (2004) (noting that the Supreme Court
and appellate courts review preliminary injunctions for an abuse of
discretion); but see Turnell, 796 F.3d at 662 (noting that a “district
court may abuse its discretion by making a clear factual error or a
mistake of law”).
III. ANALYSIS
Plaintiffs seek a preliminary injunction prohibiting Defendants
from enforcing the challenged provisions of the Illinois Election
Code against Gill. They also ask that the Court direct Defendants
to include Gill’s name as an independent candidate for U.S.
Representative in the 13th Congressional District on the ballot in
the November general election. Alternatively, Plaintiffs ask that, in
compensation for the undue burden imposed by the challenged
provisions, Defendants be required to give Gill additional time to
gather petition signatures from registered voters and allow him to
file the additional petition sheets without requiring notarization for
each sheet.

Page 8 of 26 

A.

Plaintiffs have established a likelihood of success on the
merits
Ballot access restrictions infringe citizens’ rights to associate

for political purposes and the rights of qualified voters to cast their
votes effectively. See Munro v. Socialist Workers Party, 479 U.S.
189, 193 (1986); Libertarian Party of Ill. v. Rednour, 108 F.3d 768,
773 (7th Cir. 1997) (the rights to cast one’s vote effectively and
associate for political purposes derive from the First and Fourteenth
Amendments). The Equal Protection Clause is implicated when
ballot restrictions disproportionately and unjustifiably burden
certain types of candidates. Jones v. McGuffage, 921 F Supp.2d
888, 895 (N.D. Ill. 2013); but see Rednour, 108 F.3d at 776 (noting
that it is comparing apples to oranges when one compares the
Illinois Election Code’s petitioning requirements for an established
party’s candidate in a primary election to the petitioning
requirements for a new party candidate in the general election
because an established party has shown a modicum of support by
having obtained at least 5% of the vote in the prior general election
and obtaining signatures of .5% of qualified voters to appear on the
primary ballot).
Page 9 of 26 

Nonetheless, the rights to vote and associate for political
purposes are not absolute. Rednour, 108 F.3d at 773. States have
a valid and important interest in regulating elections. Tripp v.
Smart, No. 14-cv-0890, 2014 WL 4457200, at *3 (S.D. Ill. Sept. 10,
2014) (hereinafter, Tripp I) (“A fair and effective electoral process
has long been recognized as a legitimate state interest”).
Specifically, a state has an interest in avoiding ballot overcrowding
and voter confusion, detecting and preventing voter fraud,
modernizing election procedure, and avoiding confusion, deception,
and frustration of the democratic process. Id. (citing cases).
Moreover, states may condition ballot access to minor-party and
independent candidate upon a showing of a modicum of support.
Rednour, 108 F.3d at 775.
In Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), the
United States Supreme Court enunciated the standard by which the
constitutionality of a ballot access statute is determined.
Specifically, the court must “consider the character and magnitude
of the asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindicate”
against the justification put forward by the State for imposing its
Page 10 of 26 

rule. Anderson, 460 U.S. at 789. In addition, the court must
consider the legitimacy and strength of the State’s justifications and
the extent to which the State’s interests make it necessary to
burden the plaintiff’s rights. Id.
If the restrictions the plaintiff challenges are “severe,” the
court will apply heightened scrutiny. See Rednour, 108 F.3d at 773
(finding that Illinois’s 5% petitioning requirement for new political
parties was not severe on its face and ultimately finding that the
restriction was not unconstitutional). That is, the State must show
that the regulation is narrowly tailored and justified by a compelling
interest. Stone v. Bd. of Election Comr’rs for City of Chi., 750 F.3d
678, 681 (7th Cir. 2014) (finding Chicago’s mayoral ballot scheme
that required nominating petitions signed by at least 12,5000
registered voters to appear on the ballot was constitutional). When
a restriction is not severe, the court need only determine whether
the State “has important interests that sufficiently justify the
burden” on the plaintiff’s rights. Rednour, 108 F.3d at 773; see
also Crawford v. Marion Cnty. Election Bd., 553 U.S. 118, 191
(2008) (there is no “litmus test for measuring the severity of a
burden that a state law imposes”). The ultimate question on
Page 11 of 26 

severity is whether a reasonably diligent candidate could be
expected to meet the requirements and gain a place on the ballot.
Stone, 750 F.3d at 682 (“What is ultimately important is not the
absolute or relative number of signatures required but whether a
reasonably diligent candidate could be expected to be able to meet
the requirements and gain a place on the ballot.”) (quotations and
citations omitted).
Courts must consider the restrictions on candidacy together.
Nader v. Keith, 385 F.3d 729, 735 (7th Cir. 2004). This makes it
difficult for courts to rely on precedent because laws vary greatly
from state to state and the circumstances of each case—including
the evidence presented—are different. Id.; Green Party of Ga. v.
Ga., 551 F. App’x 982 (11th Cir. 2014) (unpublished) (past
decisions “‘do not foreclose the parties’ right to present the evidence
necessary to undertake the balancing approach outlined in
Anderson’”) (quoting Bergland v. Harris, 767 F.2d 1551, 1554 (11th
Cir. 1985)).
Plaintiffs argue that the signature requirement, combined with
the 90-day period for collecting signatures, the notarization
requirement, and size and rural nature of the 13th Congressional
Page 12 of 26 

District together impose a severe burden on Plaintiffs’ First and
Fourteenth Amendment rights. Plaintiffs assert that, given the
severe burden, Defendants must show a compelling reason for the
5% signature requirement. Plaintiffs contend Defendants cannot do
so.
In support of their position, Plaintiffs presented the affidavit of
Richard Winger, the publisher of Ballot Access News, a nonpartisan newsletter that reports on developments in ballot access
law. Winger has researched ballot access laws in all 50 states from
the year 1888 to the present. Winger states that Illinois is the only
state that allows candidates who file fewer than the required
number of signatures to get on the ballot if no one files an objector
petition against them. According to Winger, no candidate for U.S.
House in Illinois has ever “overcome” a general election signature
requirement of 10,754 signatures or more and only three have done
so in the entire country. By “overcome,” Winger means a candidate
who overcame an objector’s petition and appeared on the ballot.
Only one candidate in Illinois has ever “overcome” a general election
signature requirement of 8,593 or more in Illinois, and that was H.

Page 13 of 26 

Douglas Lassiter in the 15th Congressional District in 1974 (before
the 90-day collection period was enacted).
Winger further states that only three other states require
signatures of 10,000 or more for U.S. House Candidates to get on
the general election ballot: North Carolina, South Carolina, and
Georgia. The median number of signatures required for U.S. House
candidates petitioning to get on the general election ballot in all 435
House Districts is 1,000 and the average is 3,179. In 2016, 8,593
signatures would have gotten an independent U.S. House candidate
on the ballot in 88.5% of the House Districts.
Winger also states that a reasonably diligent candidate for
U.S. House could not be expected to meet a signature requirement
of 10,754 and gain a place on the ballot. He bases this on the fact
that, since 1890, only three U.S. House candidates have done this.
Additionally, as evidence that a candidate can get on the ballot
without any signatures at all, Plaintiffs submitted Larry (Lawrence)
Jo Cohen’s Statement of Candidacy. Cohen sought to be on the
primary ballot as a Democratic candidate for president in the 2016
Democrat primary. Two objectors filed a petition asserting that
Cohen did not file any signatures, but later withdrew their
Page 14 of 26 

objection. Cohen appeared on the ballot despite having submitted
no signatures. In addition, at the hearing, Plaintiffs’ counsel
represented that a U.S. Representative independent candidate on
the ballot in 2010, Clarence Desmond Clemons, only submitted
1,000 signatures but that no objections were filed.
Defendants argue that these types of restrictions have been
found constitutional in the past and, therefore, do not constitute a
severe burden. Defendants further assert that the challenged laws
are reasonable, nondiscriminatory regulations designed to protect
the integrity of the election process.
The Court recognizes that these and similar regulations have
been held constitutional in the past. See Jenness v. Fortson, 403
U.S. 431, 442 (1971) (Georgia’s requirement that an independent
candidate file a nominating petition signed by at least 5% of the
number of registered voters within a 180-day period was
constitutional); American Party of Tex. v. White, 415 U.S. 767
(1974) (Texas law requiring signatures totaling 1% of the votes cast,
which amounted to 22,000 signatures, in 55 days was
constitutional); Storer v. Brown, 415 U.S. 724, 740 (1974)
(independent candidates for President and Vice President under
Page 15 of 26 

California law and noting that, standing alone, obtaining 325,000
signatures in 24 days “did not appear to be an impossible burden”
but requiring further proceedings to determine whether the
available pool was so diminished in size that the requirement was
too great of a burden); Stone, 750 F.3d at 684 (12,500 signatures in
90 days); Nader, 385 F.3d at 736 (25,000 signature in 90 days);
Tripp I, 2014 WL 4457200, at * 4 (noting the difficulty in relying on
precedent but noting that the “Seventh Circuit has explained that
the outer constitutional bounds of a signature requirement lie
somewhere close to a 5% minimum gathered in a mere 24 days”).
However, Plaintiffs have presented evidence suggesting that no
independent or new party candidate has been able to meet the 5%
signature requirement and such candidates have only gotten on the
ballot with fewer signatures because no objections were filed. See
Lee v. Keith, 463 F.3d 763, 770 (7th Cir. 2006) (noting the
importance of the historical record and finding the restrictions
severely burdened the plaintiff’s First and Fourteenth Amendment
rights based in part on the fact that, in 25 years, no independent
candidate had qualified for the general election ballot). While
Defendants have countered this with one instance in 2006 when a
Page 16 of 26 

moderate party candidate needed 13,950 signature and obtained
approximately 13,000 signatures, the Court nonetheless finds that
Plaintiffs have demonstrated a likelihood of success on the merits.
In addition, the fact that Defendants allow individuals on the ballot
with no or very few of the required signatures simply because no
objections are filed calls into question Defendants’ justification that
the 5% signature requirement is necessary.
Considering the evidence presented in this case, the Court
finds that, whether the Court applies heightened scrutiny or a
rational basis inquiry, Plaintiffs have shown a likelihood of success
on the merits. See, e.g., Tripp I, 2014 WL 4457200, at *4 (finding
some likelihood of success on challenge to the 5% signature
requirement and notarization requirement coupled with the
plaintiffs’ asserted problems with a rural, redrawn district).
The Court recognizes that United States District Judge
Michael J. Reagan in the Southern District of Illinois granted
summary judgment in favor of the defendants on a similar
challenge to the 5% signature requirement, notarization
requirement, and 90-day signature collection period. See Tripp v.
Smart, No. 14-cv-0890, 2016 WL 4379876 (S.D. Ill. Aug. 17, 2016)
Page 17 of 26 

(Tripp II). In that case, however, the plaintiff Illinois state
representative candidates only had to obtain approximately 2,400
signatures under the 5% requirement, and the defendants
presented evidence that other independent and minor party
candidates faced with the same restrictions were able to secure a
place on the ballot. Id. at *6. In contrast here, the evidence is that
independent and minor party candidates have not been able to meet
the requirements and such candidates get on the ballot only if no
objections to the nominating petitions are made or if it is a
redistricting year when only 5,000 signature are required.
B.

Plaintiffs have demonstrated that they have no adequate
remedy at law and will suffer irreparable harm if
preliminary relief is not granted.
To obtain a preliminary injunction, the movant must

“establish that it will be irreparably harmed if it does not receive
preliminary relief, and that money damages and/or an injunction
ordered at final judgment would not rectify that harm.” Abbott
Labs. V. Mead Johnson & Co, 971 F.2d 6, 16 (7th Cir. 1992). As
stated in Roland Machinery:
The absence of an adequate remedy at law is a
precondition to any form of equitable relief. The
requirement of irreparable harm is needed to take care of
Page 18 of 26 

the case where although the ultimate relief that the
plaintiff is seeking is equitable, implying that he has no
adequate remedy at law, he can easily wait till the end of
trial to get that relief.
Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 386 (7th
Cir. 1984).
Here, Plaintiffs will have no adequate remedy at law if Gill is
not on the ballot. Moreover, they will be irreparably harmed. An
otherwise qualified candidate suffers irreparable harm if he is
wrongfully deprived of the opportunity to appear on an election
ballot. Jones, 921 F. Supp. 2d at 901. Similarly, voters who would
have voted for the candidate would also suffer irreparable harm.
Jones, 921 F. Supp. 2d at 901; see also Citizens for a Better Env’t v.
City of Park Ridge, 567 F.2d 689, 691 (7th Cir. 1975) (noting that
“even the temporary deprivation of First Amendment rights
constitutes irreparable harm in the context of a suit for an
injunction”). Therefore, Plaintiffs have shown they have no
adequate remedy at law and would suffer irreparable harm if
preliminary relief is not granted.

Page 19 of 26 

C.

The balance of the harms favors Plaintiffs.
When balancing the harms to the parties, the Court also

considers the public interest. And, as noted above, the likelihood of
success on the merits affects the balance of the harms. Planned
Parenthood, 699 F. 3d at 972.
Plaintiffs argue the impact on Defendants is negligible and
that the public is not harmed because the public does not have an
interest in keeping qualified candidates off the ballot.
Defendants argue that the harm to them and the public is
significant because States have a strong interest in preventing voter
confusion by limiting ballot access to serious candidates who can
demonstrate at least some level of political viability. Defendants also
argue that the federal courts should avoid unwarranted interference
with state elections.
The Court agrees that the ultimately resolution of this lawsuit
could result in harm in the form of impairing Illinois’s election
regulation scheme. See Johnson v. Cook Cnty. Officers Electoral
Bd., 680 F. Supp. 1229, 1233 (N.D. Ill. 1988) (noting that “[w[hile
the ultimate resolution of this lawsuit could severely impair Illinois’
election regulation scheme, the harm at issue here is that
Page 20 of 26 

engendered by a temporary injunction” which at most would require
the board to put on the ballot an individual who obtained 491 valid
signatures out of 500 needed) (emphasis in original). However, this
Court is only considering the preliminary relief of enjoining
Defendants from imposing the challenged regulations against Gill,
which would result in Gill being on the ballot. Putting a candidate
on the ballot who obtained 8,593 valid signatures for nomination
constitutes a negligible injury when compared against the
constitutional rights of Plaintiffs and the interests of the public. Id.
Allowing a candidate with 8,593 valid signatures would do minimal,
if any damages, to Defendants’ and the State’s interest in having
candidates on the ballot who have shown a modicum of support.
And while the Court recognizes Defendants’ interest in uniformity of
the law, the harm to Defendants in this instance is negligible
compared to the harm to Plaintiffs.
The Court recognizes the statement in Summers v. Smart, 65
F. Supp. 3d 556, 569 (N.D. Ill. 2014), that more speech and more
choice for voters are highly important but that the public interest is
not served when a federal court intervenes to override a valid ballotaccess requirement. Id. (referring to the signature requirement as a
Page 21 of 26 

valid requirement and further finding the public interest not served
by forcing the State to waive its 25,000 signature requirement
despite the Green Party’s delay in filing suit). However, in Jones,
the court granted a preliminary injunction after finding no public
interest existed in preserving a two-party ballot or excluding
qualified candidates. Jones, 921 F. Supp. 2d at 902 (finding the
more compelling public interest was the plaintiff’s expression and
associational rights). On the whole, the Court finds that the public
interest heavily favors Plaintiffs.
Defendants also argue that Plaintiffs’ delay in moving for a
preliminary injunction cuts against granting their motion. See
Nader, 385 F.3d at 736 (noting “it would be inequitable to order
preliminary relief in a suit filed so gratuitously late in the campaign
season” and after absentee ballots had already been mailed);
Summers, 65 F. Supp. 3d at 567(finding that the plaintiffs’ delay in
filing suit challenging certain restrictions created a situation where
the only relief the court could grant would essentially waive a valid
signature requirement rather than address the allegedly
unconstitutional provisions of the Election Code and, therefore, the
balance of harms weighed in favor of the State). But the Court
Page 22 of 26 

notes that Plaintiffs filed the lawsuit ten days after the hearing
examiner recommended Gill not be placed on the ballot. The Court
considers ten days, under the circumstances, to be a reasonable
amount of time in which to find and recruit an attorney and for the
attorney to research and prepare the complaint and the motion and
brief for a preliminary injunction. Moreover, Defendants were on
notice as to Plaintiffs’ legal challenge, and the likely time-sensitivity
relating to it, once Plaintiffs filed their complaint which also sought
preliminary relief. The delay in filing the preliminary injunction
motion does not outweigh the strong public interest in Plaintiffs’
favor. The Court finds that the balance of harms strongly favors
Plaintiffs.
D.

As a remedy, the Court enjoins Defendants from enforcing
the Illinois Election Code’s 5% signature requirement
against Gill.
Having found that Plaintiffs meet the requirements for

preliminary relief, the Court must fashion an appropriate remedy.
The Court will not preliminarily remedy any issues pertaining to the
notarization requirement and the 90-day period. Gill appears to
have satisfied the notarization requirement, and, therefore, any
preliminary relief granted would have no effect on Gill. Summers,
Page 23 of 26 

65 F. Supp. 3d at 565. In addition, extending the time to obtain
additional signatures would heavily burden Defendants, who must
certify the ballots by August 26, 2016 and mail ballots overseas by
September 23, 2016. Granting such relief would tip the balance of
harms in favor of Defendants. Id.
That leaves only the signature requirement. Gill obtained
8,593 signatures. At this stage of the litigation, the Court will not
attempt to determine what an appropriate signature requirement
might be, as the Court may ultimately find the challenged
regulations constitutional. However, because Plaintiffs have met
the requirements for preliminary relief, the Court will enjoin
Defendants from enforcing the Illinois Election Code’s 5% signature
requirement against Gill. The Court finds it telling that the
signature requirement for U.S. Representative independent
candidates in redistricting years is 5,000, and it appears that three
independent candidates managed to obtain those signatures in
2012.1 Gill far exceeded 5,000 valid signatures.

 Of course, it is entirely possible that those three candidates had less than
5,000 signatures and no one objected. The parties did not provide any
evidence on this. But see Tripp II, 2016 WL 4379876, at *6 (S.D. Ill. Aug. 17,
2016) (noting that 13th Congressional District of Illinois candidate John
Hartman in 2012 submitted 821 notarized sheets containing up to ten
1

Page 24 of 26 

In addition, for United States Senator, an established party
candidate must obtain signatures of not less than 5,000 or more
than 10,000 primary electors of his or her party 10 ILCS 5/7-10(a).
Independent candidates must obtain signatures of a minimum of
1% of the number of voters who voted in the preceding statewide
General election or 25,000 qualified voters of the state, whichever is
less. 10 ILCS 5/10-3. According to the 2016 Candidate Guide, an
independent candidate for U.S. Senate had to obtain 25,000
signatures, or five times more than the established party candidate.
Applying that same proportion here, if an independent candidate for
U.S. Representative has to obtain five times more signatures than
the established party candidate, he would have had to obtain 3,695
signatures (taking the 739 signatures the Republican candidate had
to obtain and multiplying that number by five). Again, Gill easily
meets that requirement.
E.

The Court finds no security is necessary at this time.
Defendants were not prepared at the hearing to address

whether security would be required in this case. See Fed.R.Civ.P.

nominating signatures per sheet, suggesting he filed more than 5,000
signatures.

Page 25 of 26 

65(c) (“The court may issue a preliminary injunction . . . only if the
movant gives security in an amount that the court considers proper
to pay and costs and damages sustained by any party found to
have been wrongfully enjoined or restrained.”). Defendants may
submit additional briefing on that issue. At this time, the Court
finds that the proper amount is zero.
IT IS HEREBY ORDERED THAT:
(1) Plaintiffs’ Motion for Preliminary Relief (d/e 4) is
GRANTED.
(2) Defendants are ENJOINED from enforcing the Illinois
Election Code’s signature requirement against David M. Gill,
independent candidate for U.S. Representative in the 13th
Congressional District in light of the fact that he has obtained 8,593
valid signatures and shown a modicum of support. Consequently,
because it appears Gill otherwise qualifies to be on the ballot, this
ruling requires that Gill remain on the ballot.
ENTER: August 25, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
Page 26 of 26