Stone et al v. Neal et al

Filing 110

MEMORANDUM Opinion and Order Signed by the Honorable Robert M. Dow, Jr on 7/8/2013. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JAY STONE, FREDERICK K. WHITE,
FRANK L. COCONATE, DENISE DENISON,
BILL “DOC” WALLS, and HOWARD RAY,
Plaintiffs,
v.
BOARD OF ELECTIONS COMMISSIONERS
FOR THE CITY OF CHICAGO, et al.,
Defendants.

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Case No. 10-cv-7727
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Plaintiffs Jay Stone, Frederick K. White, Frank L. Coconate, Denise Denison, Bill
“Doc” White, and Howard Ray filed this action challenging the constitutionality of an Illinois
statute, 65 ILCS 20/21-28(b), which requires Plaintiffs and other individuals seeking to be
placed on the municipal ballot for mayor, city clerk, or city treasurer to obtain 12,500
signatures from legal voters of the City of Chicago. In December 2010, Plaintiffs moved for a
preliminary injunction prohibiting the Board from enforcing the requirement in the municipal
election on February 22, 2011. In ruling on Plaintiffs’ motion for a preliminary injunction, the
Court concluded that the 12,500 signature requirement of 65 ILCS 20/21-28(b) passes
constitutional muster. Plaintiffs appealed, and the Seventh Circuit dismissed Plaintiffs’ appeal
as moot. Plaintiffs then returned to district court to begin anew.
Plaintiffs’ third amended complaint for declaratory, equitable, and monetary relief
suggests that two additional statutes, alone or in combination with the minimum signature
requirement, create an impermissible burden on ballot access.1 Currently before the Court is
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Plaintiffs’ third amended complaint drops Frank Coconate as a plaintiff.

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Defendant’s motion to dismiss Plaintiff’s third amended complaint [102]. For the reasons set
forth below, the Court grants Defendant’s motion [102].
I.

Background
Plaintiffs’ first three complaints challenged a statutory requirement that petitions filed

by candidates seeking to get on the ballot for election to the office of mayor, clerk or treasurer
of the City of Chicago be signed by at least 12,500 registered voters of the City (65 ILCS
20/21-28(b)). Ruling on a preliminary injunction based on the second amended complaint, the
Court concluded that “it is abundantly clear from the long line of cases cited by the Board that
Illinois’ requirement that candidates for the offices of mayor, clerk and treasurer in the City of
Chicago submit petitions containing signatures of 12,500 voters * * * passes constitutional
muster under existing controlling precedent.” See Memorandum Opinion and Order (“Mem.
Op.”) at 13.2 Accordingly, the Court held that “Plaintiffs have no likelihood of success in
proving the unconstitutionality of the current 12,500 signature requirement (which is equal to
2.7% of the voters who voted in the last election, or less than 1% of the registered voters in
Chicago) absent a change in controlling law.” Id. at 14.
Plaintiffs’ third amended complaint continues to challenge the constitutionality of the
12,500 signature requirement “for reasons which include that it acts in concert with two other
significant ballot restrictions (a one signature requirement and a 90-day collection period), and
that such additional restrictions amplify the burden of the signature requirement.” Third
Amended Complaint (“TAC”) at 1-2. Notwithstanding the Court’s prior ruling that the statute
passes constitutional muster under controlling precedent, Plaintiffs also maintain the 12,500

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The Court incorporates by references the legal authorities and analysis set forth in the Court’s
memorandum opinion and order denying Plaintiffs’ motion for preliminary injunction.

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signature requirement in and of itself is “onerous, restrictive and unconstitutional.” TAC, ¶¶
13-14, 23-29.
Plaintiffs also contend, as they did in their first and second amended complaints, that
the “Election Code does not bar Chicago voters from signing more than one petition as in
signing for more than one candidate,” but the Board nevertheless imposes such a “notion” or
“policy,” which adversely affected them. TAC, ¶30. Contradicting that assertion, Plaintiffs
also claim that the Board enforces 10 ILCS 5/10-3, a statute that limits voters to signing one
petition.

TAC, ¶ 34.

Plaintiffs assert that the “one signature” rule, independent of the

signature requirement (or the 90-day collection rule), is a “significant” ballot restriction and
“amplified the restrictive and onerous” signature requirement, thereby abridging their First
Amendment rights. TAC, Count I, ¶¶ 34-35.
Plaintiffs’ third claim, asserted for the first time, is that the prohibition against
obtaining signatures more than 90 days before the last day for filing petitions (10 ILCS 5/104), independent of the signature requirement or the one-signature rule, is “a significant ballot
restriction.” TAC, Count I, ¶ 36. They contend that the 90-day collection rule “amplified the
restrictive and onerous” signature requirement and abridges Plaintiffs’ First Amendment rights.
TAC, Count I, ¶¶ 36-37. Finally, Plaintiffs suggest that the denial of injunctive relief “may not
have occurred” but for an alleged “representation” by the Board’s counsel that the Board “had
not imposed or does not impose a one-signature requirement.” TAC, ¶¶ 19-21. Plaintiffs
contend that they were harmed by the Board “having mislead [sic] the District Court as to the
one-signature requirement,” resulting in the abridgement of their rights under the First
Amendment. TAC, Count I, ¶ 49.

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Count I of the third amended complaint alleges that the 12,500 signature requirement
abridges Plaintiffs’ rights under the First Amendment; Count II alleges that Plaintiffs were
deprived of their substantive due process as to freedom of speech and association, harmed by
loss of money, resources and time “attempting to and securing signatures,” and deprived of
their right to see on the ballot the names of their candidates; and Count III alleges that
Plaintiffs were deprived of their right to petition the government. All three counts seek relief
in the form of “a declaratory ruling that the 12,500 [signature] requirement is unconstitutional”
and judgment against Defendant for costs and attorney’s fees.
II.

Legal Standard for Rule 12(b)(6) Motion to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the

sufficiency of the complaint, not the merits of the suit. See Gibson v. City of Chicago, 910
F.2d 1510, 1520 (7th Cir. 1990) (citations omitted). To survive a Rule 12(b)(6) motion to
dismiss, a complaint must satisfy the requirements of Rule 8. Fed. R. Civ. P. 8. First, the
complaint must 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 Atlantic Corp. v. Twombly, 550
U.S. 544, 545 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957). Second, the factual
allegations in the complaint must be sufficient to raise the possibility of relief above the
“speculative level,” assuming that all of the allegations in the complaint are true. E.E.O.C. v.
Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007) (quoting Bell Atlantic, 550
U.S. at 555, 569 n.14). “[O]nce a claim has been stated adequately, it may be supported by
showing any set of facts consistent with the allegations in the complaint.” Bell Atlantic, 550
U.S. at 579-80. "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

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need detailed factual allegations, a plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do." Id. at 555 (citations, quotation marks, and brackets
omitted).
III.

Analysis
Plaintiffs Jay Stone, Frederick K. White, Bill “Doc” Walls, and Howard Ray submitted

nominating petitions seeking to be placed on the ballot as candidates for mayor of the City of
Chicago in the municipal election on February 22, 2011. Walls met the statutory requirement
of 12,500 presumptively valid signatures and was a candidate listed on the February 2011
mayoral ballot. The other Plaintiffs did not meet the requirement and were not on the ballot:
Stone filed 250 signatures; White filed approximately 10,200 signatures; and Ray filed 2,625
signatures.

Plaintiffs Denise Denson and Bill Walls asserted that not having the other

Plaintiffs’ names on the February ballot will abridge their First Amendment rights.
The 12,500 signature statutory requirement is found in 65 ILCS 20/21-28(b), which
became effective August 22, 2005.

The statute—“Nomination by petition”—provides in

relevant part as follows: “(b) All nominations for mayor, city clerk, and city treasurer in the
city shall be by petition. Each petition for nomination of a candidate must be signed by at least
12,500 legal voters of the city.” 65 ILCS 20/21-28(b). Prior to the enactment of this 12,500
signature provision, state law required 25,000 signatures or a number not less than five percent
of the number of voters who voted in the last election for City office, whichever was less.3 As

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One state representative explained the legislature’s approach when discussing the statute in question:
[W]hat we will have is signature requirements of a good deal less than one-half of one
percent for someone running for Mayor of the City of Chicago or other city offices
* * * * The earlier requirement to run for Mayor of the City of Chicago, 25 thousand
signatures, was almost a full percent of the populous and we thought that was too high.

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further explained below, the prior signature requirement of 25,000—double the current
requirement—repeatedly has been upheld by the United States Supreme Court and the Seventh
Circuit.
Plaintiffs, other than Walls, were unable to meet the lower threshold of support required
by the Illinois statute and now ask the Court to hold the State’s signature requirement
unconstitutional. Plaintiffs also contend that the 12,500 signature requirement for mayor, city
clerk, and city treasurer of Chicago, together with a “one signature” rule and a “90 day
collection period,” are individually and collectively unconstitutional.
A.

Signature Requirement

Without question, “[t]he First Amendment protects the right of citizens to associate and
form political parties for the advancement of common political goals and ideals.” Timmons v.
Twin Cities Area New Party, 520 U.S. 351, 357 (1997). “On the other hand, it is also clear that
States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots
to reduce election- and campaign-related disorder.” Id. at 358. As the Supreme Court has
explained, “As a practical matter, there must be a substantial regulation of elections if they are
to be fair and honest and if some sort of order, rather than chaos, is to accompany the
democratic process.” Storer v. Brown, 415 U.S. 724, 730 (1974). The right to vote and the
right of citizens to associate for political purposes are among the more fundamental

We thought that created a situation which many people who might legitimately stand
for that office would not be able to meet the signature requirement. And we think
12,500 gives people a much better opportunity to stand for one of those municipal
offices in Chicago.
94th Ill. Gen. Assembly, House Proceedings, May 28, 2005, at 11-12 (Statements of Representative
Currie).

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constitutionally protected rights, but those rights are not absolute. Munro v. Socialist Workers
Party, 479 U.S. 189, 193 (1986).
Reasonable restrictions may be imposed on candidates because states have an interest
in requiring a demonstration of qualification in order for the elections to be run fairly and
effectively. Id. This is not only a state’s interest; it is a duty to ensure an orderly electoral
process. Libertarian Party of Illinois v. Rednour, 108 F.3d 768, 774 (7th Cir. 1997). States
have a strong interest in preventing voter confusion by limiting ballot access to candidates who
can demonstrate a measurable quantum of support or a level of political viability. Lee v. Keith,
463 F.3d 763, 769 (7th Cir. 2006). The “preliminary demonstration of a ‘significant modicum
of support’ furthers the state’s legitimate interest of ‘avoiding confusion, deception, and even
frustration of the democratic process at the general election.’” Rednour, 108 F.3d at 774
(quoting Jenness v. Fortson, 403 U.S. 431, 442 (1971)). The Supreme Court in Munro held
that a state is not required to make a particularized showing of the existence of voter confusion,
ballot overcrowding, or the presence of frivolous candidacies prior to the imposition of such
reasonable restrictions on ballot access. Munro, 479 U.S. at 194-95. “To demand otherwise
would require a state’s political system to sustain some damage before it could correct the
problem, deprive state legislatures of the ability to show foresight in avoiding potential
deficiencies, and inevitably lead to endless litigation regarding the sufficient amount of voter
confusion and ballot overcrowding needed to warrant ballot access restrictions.” Rednour, 108
F.3d at 774 (citing Munro, 479 U.S. at 195-96).
Applying the balancing test articulated in Anderson v. Celebrezze, 460 U.S. 780, 788
(1983), a court must weigh “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

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“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 plaintiffs’ rights.” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson, 460
U.S. at 789). A regulation that severely burdens First Amendment rights must be justified by a
compelling interest and must be narrowly tailored to serve that interest. Anderson, 460 U.S. at
789.

On the other hand, a state law that imposes only “reasonable, nondiscriminatory

restrictions” upon the protected rights passes constitutional muster if it serves important state
regulatory interests. Burdick, 504 U.S. at 434.
The Supreme Court repeatedly has recognized that states have a legitimate interest in
regulating the number of candidates appearing on the ballot as a means “to forestall frivolous
candidacies and concomitant ‘laundry list’ ballots that merely serve to confuse the voter[.]”
Lubin v. Panish, 415 U.S. 709, 718 (1974). Long lists of marginal candidates discourage voter
participation and confuse and frustrate those who wish to seriously participate in the electoral
process. Id.; see also Storer v. Brown, 415 U.S. at 732-33 (“the State understandably and
properly seeks to prevent the clogging of its election machinery, avoid voter confusion, and
assure that the winner is the choice of a majority, or at least a strong plurality, of those voting,
without the expense and burden of runoff elections”). As the Seventh Circuit noted in Protect
Marriage Illinois v. Orr, 463 F.3d 604, 607 (7th Cir. 2006), if a state was required to list
everyone who wanted to stand for office, “ballots would be the size of telephone books.” In
addition to limiting the number of candidates so that states and other governmental bodies can
run fair, effective, and organized elections, states have a legitimate interest in “avoiding
confusion, deception, and even frustration of the democratic process at the general election.”
Rednour, 108 F.3d at 774 (quoting Jenness, 403 U.S. at 442); see also Lee v. Keith, 463 F.3d at

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769. As the Supreme Court held in Lubin v. Panish, “[t]he means of testing the seriousness of
a given candidacy may be open to debate; the fundamental importance of ballots of reasonable
size limited to serious candidates with some prospects of public support is not.” 415 U.S. at
715.
A state can “impose reasonable restrictions on access, as by requiring * * * that the
would-be candidate demonstrate significant support for his candidacy by submitting thousands
(or, depending on the size of the electorate, tens or even hundreds of thousands) of petitions in
order to prevent the voter confusions that would be engendered by too long a ballot.” Protect
Marriage Illinois, 463 F.3d at 607-08. To reach the requisite 12,500 signatures, a potential
candidate need obtain signatures from fewer than 1% of the registered voters in Chicago.
While acquiring the requisite signatures undoubtedly requires effort and some resources, not
every candidate expressing a desire to become a candidate for these offices is entitled as a
matter of right to a place on the ballot. As the Supreme Court said in Lubin, “[a] procedure
inviting or permitting every citizen to present himself to the voters on the ballot without some
means of measuring the seriousness of the candidate’s desire and motivation would make
rational voter choices more difficult because of the size of the ballot and hence would tend to
impede the electoral process.” 415 U.S. at 715.
In rejecting Plaintiffs’ identical challenge to the 12,500 signature requirement in their
motion for preliminary injunction, the Court cited numerous federal court decisions upholding
similar provisions in other states’ laws against constitutional attack (see 1/10/11 Mem. Op. at
11, fn. 6). Those decisions make it “abundantly clear from the long line of cases *** that
Illinois’ requirement that candidates for the offices of mayor, clerk and treasurer in the City of
Chicago submit petitions containing signatures of 12,500 voters, which is less than 3% of the

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voters who voted in the last city election and less than 1% of the number of registered voters in
Chicago, passes constitutional muster under existing, controlling precedent.”

Id. at 13.

Plaintiffs nevertheless once again argue that the 12,500 signature requirement “is onerous and
restrictive” and is “so high that it effectively bars the development of candidacies of unknown
persons.” (TAC, ¶¶ 13, 24, 41). The Court previously rejected that contention, noting that the
“history and the facts” arising out of the February 2011 municipal election did not support
Plaintiffs. 1/10/11 Mem. Op. at 8. Specifically, this Court observed that in the 2007 Municipal
General Election, in which the 12,500 signature requirement first applied, seven candidates
appeared on the municipal ballot: three for mayor; three for city clerk; one for treasurer. Id.
There were 15 individuals who obtained at least 12,500 signatures for the 2011 election for the
position of mayor alone, nine of whom survived petition challenges. Id. The Court observed
that “[t]he number of candidates meeting the signature requirement ‘illustrates that the
requirements do not pose an insurmountable obstacle’ to the municipal ballot,” Id. (quoting
Rednour, 108 F.3d at 775).
Both the Seventh Circuit and the U.S. Supreme Court have addressed similar and more
restrictive signature requirements and held them to be constitutionally sound. Based on those
decisions, this Court reasoned that the “12,500 signature requirement is not an unreasonable
means of measuring the seriousness of the candidate’s desire and motivation to gain ballot
access in a city containing over 1.3 million registered voters.” 1/10/11 Mem. Op. at 8; see also
Lubin v. Panish, 415 U.S. 709, 718 (1974) (“[a] procedure inviting or permitting every citizen
to present himself to the voters on the ballot without some means of measuring the seriousness
of the candidate’s desire and motivation would make rational voter choices more difficult
because of the size of the ballot and hence would tend to impede the electoral process”). The

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Court ruled that Plaintiffs “had no likelihood of success in proving the unconstitutionality of
the current 12,500 signature *** absent a change in controlling law.” Id. There has been no
change in the controlling law since that determination by this Court. In the face of the
overwhelming Supreme Court and Seventh Circuit case law to the contrary, Plaintiffs cannot
establish that 65 ILCS 20/21-28(b) is unconstitutional.
B.

90-Day Collection Period

Plaintiffs’ third amended complaint does not identify or reference the source of the “90
day collection period” of which they complain. There is, however, a provision in § 10-4 of the
Election Code (10 ILCS 5/10-4), which provides, “No petition sheet shall be circulated more
than 90 days preceding the last day provided in Section 10-6 for the filing of such petition.”
This provision was added to Section 10-4 in 1984 by Public Act 83-1055. Thus, the “90 day
collection period” was in effect in four (Norman v. Reed, 502 U.S. 279 (1992); Lee v. Keith,
463 F.3d 763; Rednour, 108 F.3d 768; and Black v. Cook County Officers Electoral Board,
750 F. Supp. 901 (N.D. Ill. 1990)) of the six cases in which the courts, post-1984, addressed
the constitutionality of signature requirements more onerous than the 12,500 signature
requirement at issue here. In three of those cases, the courts held that such signature
requirements were constitutional, despite the fact those signatures were subject to the 90-day
collection period. In the other case, Lee v. Keith, the Seventh Circuit decided that Illinois’
signature collection procedures, operating in tandem with other ballot access restrictions for
independent candidates – characterized by the court as being of “unrivaled severity” – could
not withstand constitutional scrutiny. 463 F.3d at 769.
In Lee, the Seventh Circuit appeared most concerned with two changes made to Illinois
law in 1975 and 1979. First, the deadline for independent candidates to file nominating

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petitions was pushed back from 92 days before the November general election to 92 days
before the March primary, or 323 days before the November general election. 463 F.3d at 764.
The Lee court observed this was “by far the earliest filing deadline in the nation” for
independent candidates.

Id. at 768.

Second, the signature requirement for independent

candidates was doubled, from 5% of the vote in the last general election for the office sought,
to 10%. Id. at 764. The court noted that among the 28 states in the nation that required
independent candidates to collect signatures from registered voters equal to a specified
percentage of the vote cast in the previous general election, Illinois’ 10% signature requirement
stood alone: “it is the only one that exceeds 5%.” Id. at 766. The Lee court noted the
“dramatic impact” that these two changes had on ballot access: “Before 1975, independent
candidates for the state legislature qualified for the ballot occasionally, though not frequently.
Since 1980, however – the year following the second of these changes – not a single
independent candidate for state legislative office was qualified for ballot access.” Id. at 765.
The Lee court ultimately held the early filing deadline, the 10% signature requirement, and the
restriction disqualifying an independent candidate’s petition signers from voting in the
primary, combined to severely burden a candidate’s rights. Id. at 772.
This case is not Lee. First, this case does not involve the early filing deadline for
certain candidates that Lee found to be problematic. Second, the percentage required for ballot
access in Lee was substantially higher than the percentage resulting from the 12,500 signature
requirement.4 Third, the Lee court pointed to the fact that not a single candidate had been able
to successfully overcome the hurdles imposed by the combined ballot access restrictions as

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This signature requirement – which is equal to 2.7% of the voters who voted in the last election, or
less than 1% of registered voters in Chicago (1/10/11 Mem. Op. at 7, 12) – is far less than the 5%
threshold that the Supreme Court and many courts have found to be constitutionally adequate and
significantly lower than the 10% threshold at issue in Lee.

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compelling evidence they were impermissibly burdensome. As this Court previously observed,
nine candidates met the requirements for the position of mayor in the February 2011 General
Municipal Election, undermining the argument that the restrictions presented an
“insurmountable obstacle” to the municipal ballot.
Looking at cases beyond Lee, in American Party of Texas v. White, the Supreme Court
held that a 55-day period for circulating petitions in the State of Texas was not “an unduly
short time” for collecting 22,000 signatures. 415 U.S. 767, 787 (1974). The Court estimated
22,000 signatures could have been collected at a rate of 400 per day. “Constitutional
adjudication and common sense are not at war with each other, and we are thus unimpressed
with arguments that burdens like those imposed by Texas are too onerous, especially where
two of the original party plaintiffs themselves satisfied these requirements.” Id. Particularly
pertinent here, the Court determined that 55 days was enough to collect 22,000 signatures
notwithstanding the fact Texas had a law providing that a voter may not sign more than one
petition for the same office and was barred from signing any petitions if he voted at either
primary election of any party at which a nomination was made for that office, thus limiting the
available pool of petition signers. Id. at 788.
In Nader v. Keith, 2004 WL 1880011, *6 (N.D. Ill. 2004), aff’d, 385 F.3d 729 (7th Cir.
2004), the court examined American Party of Texas and commented, “In short, the Supreme
Court has upheld against constitutional challenge a scheme virtually indistinguishable from the
Illinois scheme that is at issue in this case. It is true that Illinois’ deadline is twelve days
earlier than the one at issue in American Party of Texas—132 days before the election as
opposed to 120. But Illinois, unlike the Texas statute examined in that case, does not limit
petition circulation to a fifty-five day period.” The court also observed, “Illinois provided a

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considerably longer period of time to qualify for the ballot than the statutory scheme approved
in American Party of Texas *** Nader had at least three good months *** to obtain the
necessary signatures—a full month longer than the period approved in American Party of
Texas.” Id. Using a calculation similar to that made by the Supreme Court in American Party
of Texas, the court estimated that the candidate “had to collect about 280 valid signatures per
day for ninety days to qualify; if he had only 100 canvassers for the entire state of Illinois, this
would require each canvasser to obtain only three valid signatures per day.” Id. The court
concluded that the requirements were not unduly onerous and did not impose a “severe”
restriction on ballot access of the type necessary to trigger heightened scrutiny.
On appeal, the Seventh Circuit assumed that 40,000 petition signatures would need to
be collected (to supply a comfortable margin in the event of challenges) and estimated that 100
canvassers could have collected that number averaging 4 or 5 signatures a day. Nader, 385
F.3d at 736. The Seventh Circuit concluded, “If Nader could not recruit 100 canvassers in
Illinois, his electoral prospects were dismal indeed.” Id. Here, the Plaintiffs-candidates needed
to collect 12,500 signatures in 90 days, which is equivalent to 139 signatures per day. Adopting
the same method of calculation as used in American Party of Texas and Nader, four signatures
per day could have been collected by 35 circulators (or “canvassers” as the courts have referred
to them) over the 90 days to meet the minimum signature requirement for mayor, clerk, or
treasurer of the City of Chicago.
Given the Supreme Court’s holding in American Party of Texas and subsequent
authority, Plaintiffs’ challenge to the 90-day circulation period cannot succeed. Plaintiffs’ third
amended complaint does not plausibly assert facts demonstrating that the 90-day circulation
period, either separately or in combination with the 12,500 signature requirement, “severely”

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burdens candidates’ access to the ballot.

Any such burden is not unduly onerous, and

moreover, is justified by Illinois’ interest in regulating access to the ballot.
C.

One-Signature Rule

Plaintiffs contend that the “Election Code does not bar Chicago voters from signing
more than one petition as in signing for more than one candidate.” TAC at ¶30. They aver that
the Board (as opposed to the Code) has implemented such a policy. Notwithstanding this oftrepeated allegation, Plaintiffs later take the irreconcilable position that the Board enforces a
state statute, 10 ILCS 5/10-3, which limits voters to the signing of one petition. TAC at ¶34.
Defendant maintains that irrespective of which way Plaintiffs have pleaded, their challenge to
the constitutionality of a requirement that limits voters to signing only one candidate’s petition
for the offices of mayor, clerk and treasurer in the City of Chicago fails.
65 ILCS 20/21-28 governs the nomination by petition of candidates for the offices of
mayor, city clerk, city treasurer, and alderman in the City of Chicago. The challenged 12,500
minimum signature requirement is found in § 20/21-28(b). Plaintiffs’ assertion that the one
signature rule found in the Election Code does not apply to nominating petitions governed by §
20/21-28 fails to account for subsection (c) of that statute, which provides that all petitions
thereunder “shall conform in other respects to the provisions of the election and ballot laws
then in force in the City of Chicago concerning the nomination of independent candidates for
public office by petition.” 65 ILCS 20/21-28(c). Section 20/21-28(c) by its express terms
looks to other statutes for additional requirements, and it specifically looks to and incorporates
the statutes applicable to the nomination of independent candidates.

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Section 10-3 of the Election Code applies to nomination of independent candidates. 10
ILCS 5/10-3. According to Section 10-3, each voter signing a nomination petition “may
subscribe to one nomination for such office to be filled, and no more.” Id. Consistent with the
Board’s 2011 Election Information Pamphlet & Calendar, to which Plaintiffs cite in their third
amended complaint, § 20/21-28(c) expressly makes applicable the limitation in § 10-3 of the
Election Code (that a person may not sign more than one nominating petition for each office)
to nominating petitions governed by § 20/21-28. In addition, § 10-3.1 of the Election Code (10
ILCS 5/10-3.1) states, “[T]he provisions of this Article 10 relating to independent candidate
petition requirements shall apply to nonpartisan petitions to the extent they are not inconsistent
with the requirements of such other statutes or ordinances” (emphasis added). Elections for
mayor, city clerk and city treasurer in the City of Chicago are nonpartisan – no political party
affiliation is permitted. 65 ILCS 20/21-5, 20/21-12, 20/21-32. The provisions in Article 10
regarding the nomination of independent candidates are not inconsistent with the requirements
for the nomination papers for mayor, city clerk and city treasurer, and therefore apply to those
petitions. And as noted above, 65 ILCS 20/21-28(c) incorporates provisions of Article 10
where 65 ILCS 20/21-28 does not otherwise specify. Putting all of this together, the “one
signature” rule of Section 10-3 applies to candidates’ petitions for the offices of mayor, city
clerk and city treasurer in the City of Chicago elections.5 The requirement that voters may
subscribe to only one petition for mayor, clerk and treasurer is, therefore, not a mere “notion”
or “policy” (see TAC at ¶30, fn. 4), but rather is Illinois law.
Thus, Plaintiffs must demonstrate that the application of § 10-3 of the Election Code to
nominating petitions for Chicago’s municipal offices contributed to a constitutionally
5

The provision limiting each voter to signing “one nomination for each office to be filled and no more”
has been a part of Illinois law since at least 1891.

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impermissible ballot access burden. As previously noted, far more onerous minimum signature
requirements, many with the same “one signature” limitation imposed by Section 5/10-3 or
similar statutes (see, e.g., Storer v. Brown; American Party of Texas v. White; Jackson v.
Ogilvie), have passed constitutional muster.

Furthermore, actual evidence of significant

candidate access to the 2011 municipal ballot, discussed at length in the Court’s denial of
Plaintiffs’ motion for preliminary injunction, negates Plaintiffs’ contention.
Independent analysis of the “one signature rule” yields the same conclusion. As the
Court previously recognized, one of the important state interests in ensuring an orderly
electoral process through signature requirements is to limit ballot access to serious candidates
who can demonstrate a significant modicum of support. See Rednour, 108 F.3d at 774. This
interest would be undermined if voters could sign multiple nomination petitions for an
unlimited number of candidates for the same office. To ensure that petitions truly reflect a
“significant modicum of support” for these municipal offices among the eligible voters of the
City electorate, the legislature imposes certain requirements on candidates’ petitions. For
example, the signatures must come from legal voters who are residents of Chicago.
Additionally, and relevant here, each voter is limited to providing only one signature on a
petition for each office. Such safeguards ensure that the candidates for office will meet the
legislatively determined “modicum of support” (12,500 voters) from the eligible electorate. A
minimum signature requirement would not serve this interest if anyone from anywhere could
sign a petition. The minimum signature requirement similarly would not have the desired
effect if potential voters could sign an unlimited number of petitions.
By way of illustration, suppose Candidate A and Candidate B each obtain 12,500
petition signatures. Assume there are 3,000 people who signed petitions for both candidates,

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ostensibly because there is no “one signature rule.” Assume further those 3,000 voters will
split their votes equally for Candidates A and B. In this hypothetical, each candidate’s true
support is really only 11,000 voters.

In other words, the actual community support for

Candidates A and B is less than the minimum level of support (12,500 voters) deemed
necessary by the legislature to earn a spot on the ballot. Put another way, the “one signature”
rule makes the minimum signature requirement a meaningful restriction.
In a footnote, Plaintiffs advance the proposition that “[v]oters have a First Amendment
right to champion for more than one candidate to ‘get on’ the ballot.” TAC at p. 9, fn. 2. The
Supreme Court’s reasoning in American Party of Texas suggests otherwise.

There, the

Supreme Court upheld a Texas statute prohibiting anyone who voted in a party primary from
signing the petition of any candidate of another party. Acknowledging that the pool of possible
supporters was reduced, the Court characterized this restriction as “nothing more than a
prohibition against any elector’s casting more than one vote in the process of nominating
candidates for a particular office.” 415 U.S. at 785. As the Court explained, “Electors may
vote in only one party primary; and it is not apparent to us why the new or smaller party
seeking voter support should be entitled to get signatures of those who have already voted in
another nominating primary and have already demonstrated their preference for other
candidates for the same office the petitioning party seeks to fill.” Id. The Court summarized,
“[t]hus, the state’s scheme attempts to ensure that each qualified elector may in fact exercise
the political franchise. He may exercise it either by vote or by signing a nominating petition.
He cannot have it both ways.” Id. (quoting Jackson v. Ogilvie, 325 F. Supp. at 867). The
Court saw nothing invidious in disqualifying those who have voted at a party primary from
signing petitions for another party seeking ballot position for its candidates for the same

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offices. See also Storer v. Brown, 415 U.S. at 741 (confirming the reasoning of American
Party of Texas: “we have no doubt about the validity of disqualifying from signing an
independent candidate’s petition all those registered voters who voted a partisan ballot in the
primary, although they did not vote for the office sought by the independent”).
In this case, the language of the statute in question makes apparent the legislature’s
intention to limit a voter to one nomination for each office. Voters cannot sign petitions for
more than one party (10 ILCS 5/7-10), nor may they vote in more than one primary election
(10 ILCS 5/7-44); each voter, by his primary vote, is limited to nominating one candidate for
each office for the general election ballot. Likewise, once a voter has signed one independent
candidate’s petition, he may not sign another candidate’s petition. This is consistent with the
principle of “one person, one vote.”
Plaintiffs have not presented plausible facts demonstrating that the limitation of signing
one candidate petition per office, either separately or in combination with the 12,500 signature
requirement, “severely” burdens candidates’ access to the ballot. Again, ample case law
demonstrates the futility of the claims asserted in the third amended complaint. The burden
imposed by the legislature—and there is indeed a burden on potential candidates for mayor,
clerk, and treasurer of the City of Chicago—is, according to a wealth of precedent, justified by
Illinois’ legitimate interests in requiring that candidates demonstrate a sufficient modicum of
support of voters in the community before access to the ballot is warranted. As the Court
pointed out in denying Plaintiffs’ motion for preliminary injunction, in view of cases upholding
a 5% signature requirement, the fact that it may be more difficult to qualify for a spot on the
mayoral ballot in Chicago than in many other large cities raises an issue of public policy for the
General Assembly, not a matter for redress under the Constitution.

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D.

Alleged Misrepresentation To The Court

Instead of offering legal authority in support of their position, Plaintiffs in their
response brief spend the majority of the brief accusing Defendant of intentionally and willfully
misleading Plaintiffs, the Court, and the Seventh Circuit about the one-signature rule. The
record does not support such a conclusion.
At the preliminary injunction hearing on Plaintiffs’ original claim, the Court asked if
there was a limitation that a person could sign only one petition in a non-partisan race, and
counsel for the Board stated, “I’m not aware there is such.” (1/4/11 Transcript, Dkt. #59-1, at
p. 30). As subsequently clarified by the Board, there was a rule applicable to the 2011 mayoral
election. Contrary to Plaintiffs’ repeated accusations, the Court’s view is that the Board’s
counsel did not “misrepresent” anything; rather, he represented that he was unaware of the
rule. Under the time constraints of addressing the constitutionality of the 12,500 signature
requirement—the Court received this case on December 17, 2010, set a briefing schedule on
Plaintiffs’ motion for injunctive relief, held a hearing on January 4, 2011, allowed Plaintiffs to
amend their complaint on January 6, 2011, and then issued a decision denying the request for
injunctive relief on January 10, 2011—the Board’s counsel evidently did not focus on the
tangential and undeveloped issue of whether a “one signature rule” applied, particularly since
Plaintiffs themselves suggested that there was no such rule.6 The Board’s counsel was, at

6

The pleadings history and record reflect the contradictory positions taken by Plaintiffs as to whether
there is such a rule. In Plaintiffs’ second amended complaint, filed 1/6/11 (prior to the Court’s ruling
on Plaintiffs’ motion for preliminary injunction), Plaintiffs asserted: “The Election Code does not bar
Chicago voters from signing more than one position as in signing for more than one candidate.” Then,
in the summer of 2011, Plaintiffs argued in a motion to reconsider that “[t]he booklet/pamphlet * * *
bolsters the very argument [plaintiffs] made in their District Court Brief * * * that there is a one
signature ballot access restriction imposed by the Chicago Board of Elections.” See Plaintiffs’ Motion
to Reconsider, Dkt. #64, pp. 7-8. Then, in direct contradiction to that representation, on July 26, 2011,
Plaintiffs’ counsel told this Court, “Your Honor, there isn’t any legislation in my professional opinion
that says to the Board of Elections ‘You must impose a one signature rule.’” Finally, in the proposed

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worst, simply mistaken and did not “intentionally” or “willfully” mislead the Court. Moreover,
as discussed above, the law confirming that there is indeed a “one signature rule” was (and is)
equally accessible to both side in this litigation.
III.

Conclusion
For the reasons stated above, the Court grants Defendant’s motion to dismiss Plaintiffs’

third amended complaint [102]. By attempting to assert claims based on arguments and
theories soundly rejected by extensive Supreme Court and Seventh Circuit precedent, Plaintiffs
fail to demonstrate a viable legal basis for any of those claims. This being Plaintiffs’ fourth
bite at the apple, no further amendments are warranted and this case is dismissed with
prejudice.

Dated: July 8, 2013

______________________________
Robert M. Dow, Jr.
United States District Judge

third amended complaint, filed 10/25/11, Plaintiffs presented an inherently inconsistent position:
Plaintiffs initially allege there is a statutorily imposed one-signature rule enforced by the Board (Dkt.
#71, pp. 5-6, ¶¶ 12-13), then, in the same pleading, contend that “the Election Code does not bar
Chicago voters from signing more than one petition as in signing for more than one candidate.” (Id., p.
9, ¶22).

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