Cook County Republican Party et al v. Board of Election Commissioners for the City of Chicago et al

Filing 64

MEMORANDUM Opinion and Order. Signed by the Honorable Milton I. Shadur on 9/14/2016:Mailed notice(clw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

COOK COUNTY REPUBLICAN PARTY and
CHICAGO REPUBLICAN PARTY,
Plaintiffs,
v.
BOARD OF ELECTION COMMISSIONERS
FOR THE CITY OF CHICAGO, et al.,
Defendants.

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Case No. 16 C 6598

MEMORANDUM OPINION AND ORDER
Cook County Republican Party and Chicago Republican Party (collectively the "GOP")
filed this action under 42 U.S.C. § 1983 ("Section 1983"), charging asserted violations of their
First and Fourteenth Amendment rights. Both the GOP and two of the defendants, Frances
Sapone ("Sapone") and Sammy Tenuta ("Tenuta"), have filed cross-motions for summary
judgment seeking declaration of their respective rights and legal relations pursuant to 28 U.S.C.
§ 2201 ("Section 2201," the federal Declaratory Judgment Act). As for the remaining
defendants, the Board of Election Commissioners for the City of Chicago, Marisel Hernandez,
William Kresse and Jonathan Swain (collectively "the Board"), they have opted not to weigh in
on the current cross-motions -- but because this opinion pronounces a final judgment in the case,
they are bound by its terms as well.
Summary Judgment Standards
Every Rule 56 movant bears the burden of establishing the absence of any genuine issue
of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)). For that purpose courts

consider the evidentiary record in the light most favorable to nonmovants and draw all
reasonable inferences in their favor (Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th
Cir. 2002)). Courts "may not make credibility determinations, weigh the evidence, or decide
which inferences to draw from the facts" in resolving motions for summary judgment (Payne v.
Pauley, 337 F.3d 767, 770 (7th Cir. 2003)). But a nonmovant must produce more than "a mere
scintilla of evidence" to support the position that a genuine issue of material fact exists (Wheeler
v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)) and "must come forward with specific facts
demonstrating that there is a genuine issue for trial" (id.). Ultimately summary judgment is
warranted only if a reasonable jury could not return a verdict for the nonmovant (Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
One more complexity could be added where, as here, cross-motions for summary
judgment are presented. Under the same principles as stated in the preceding paragraph, this
Court must adopt a dual perspective that it has often referred to as Janus-like: As to each motion
the nonmovant's version of any disputed facts would have to be credited, and that could on
occasion lead to the denial of both motions. Fortunately that is not a risk here, because all
relevant facts are undisputed.
Background
In March 2016 the GOP -- concerned about infiltration by what it believed could be
"carpetbagging" candidates for ward committeeman posts who were in fact Democratic
operatives -- added this provision (hereafter "Section 3") to its bylaws shortly before the
March 15 primary election:
Section 3: A vacancy shall exist in the office of Republican committeeman in any
ward or township in which an elected or appointed committeeman votes, or has
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voted, in the primary for another political party in the previous 8 years.
At that primary election Sapone and Tenuta stood for election as the Republican 29th and 36th
ward committeemen respectively and -- unsurprisingly, for they ran unopposed -- received the
most votes in their wards. But because both Sapone and Tenuta had voted in Democratic Party
primaries within the previous eight years, the Chairman of the Cook County Republican Central
Committee declared those Republican committeeman offices vacant pursuant to Section 3.
At that same primary election no Republican candidate appeared on the ballot for the
office of United States Representative for the 7th Congressional District. For such a vacancy to
be filled, Illinois law (10 ILCS 5/7-61) 1 requires the political party involved, among other steps,
to hold a meeting to nominate a candidate. So on April 13 Republican ward committeemen from
election precincts within the 7th Congressional District held a nominating meeting at which they
selected Jeffrey A. Leef ("Leef") as their nominee for Congress. Though the 29th and 36th
wards were included within the 7th Congressional District, the GOP did not notify Sapone and
Tenuta of the meeting because of the Section 3 declaration that they did not validly serve as
committeemen.
That determination by the GOP prompted Sapone to file an objection to Leef's
nomination on the ground that she and Tenuta were entitled to notice of the April 13 meeting. 2
This action was filed by the GOP after the initial hearing on that objection resulted in a
recommendation by the hearing officer that the Board exclude Leef from the ballot. On July 12
this Court entered a temporary restraining order ("TRO") enjoining the Board from conducting
1

Further citations to that statute (referred to in this opinion as the "Election Code") will
take the form "Code § --," omitting the prefatory "10 ILCS 5/7-."
2

It is undisputed that the Illinois election laws require notice to all actual committeemen.
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further hearings or issuing any decision in the Board's Proceeding No. 2016-EB-RES-01
(referred to as Sapone v. Leef) until further order of this Court. Shortly thereafter the GOP filed
for a preliminary injunction, which this Court granted. Recognizing the need to resolve this
matter in time to allow ballots to be printed for the upcoming November election, this Court
requested that the parties file abridged motions for summary judgment. As stated at the outset,
the active adversaries now seek summary judgment as to the GOP's Section 1983 claims and a
declaration of their respective rights and legal relations pursuant to Section 2201.
Section 1983 Claims and the Declaratory Judgment Act
To state a claim for relief under Section 1983, the GOP must show (1) misconduct that
"was committed by a person acting under the color of state law" and (2) that as a result of that
misconduct it was deprived of "a right secured by the Constitution and laws of the United States"
(West v. Atkins, 487 U.S. 42, 48 (1988)). As to the first required showing, there is no dispute
that the Board acted under the color of state law. And as to the second, because the GOP
contends that those actions compromised the party's First and Fourteenth Amendment rights, it
seeks as a remedy an order permanently enjoining the Board from conducting hearings in Sapone
v. Leef and a declaration of its rights pursuant to Section 2201:
[A]ny court of the United States, upon the filing of an appropriate pleading, may
declare the rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought. Any such
declaration shall have the force and effect of a final judgment or decree and shall
be reviewable as such.
On that score Wilton v. Seven Falls Co., 515 U.S. 277, 286 (1995) teaches:
Since its inception, the Declaratory Judgment Act has been understood to confer
on federal courts unique and substantial discretion in deciding whether to declare
the rights of litigants.

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And as the seminal opinion in Aetna Life Ins. Co. of Hartford, Conn. v. Haworth, 300 U.S. 227,
240-41 (1937) put it:
The controversy must be definite and concrete, touching the legal relations of
parties having adverse legal interests.
First Amendment Rights
It is well settled that the First Amendment's freedom of association guaranty protects the
rights of political parties to select their leaders freely. As Eu v. San Francisco County
Democratic Cent. Comm., 489 U.S. 214, 229-30 (1989) (internal citations and quotation marks
omitted) has explained:
As we noted in Tashjian [v. Republican Party of Conn., 479 U.S. 208, 224
(1986)], a political party's determination of the structure which best allows it to
pursue its political goals, is protected by the Constitution. Freedom of association
also encompasses a political party's decisions about the identity of, and the
process for electing, its leaders.
To that end courts carefully constrain governmental interference with a party's business
of choosing its members and leaders. Any such "heav[y] burden on a political party's
associational freedom" is "unconstitutional unless it is narrowly tailored to serve a compelling
state interest" (California Democratic Party v. Jones, 530 U.S. 567, 582 (2000)).
Sapone and Tenuta contend that invalidating Section 3 would impose a "lesser burden"
on the GOP's associational rights and that such invalidation is constitutionally permissible if it
serves a "correspondingly weighty" state interest (S. Mem. 6). 3 On that score they attempt to
seek support from Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997), which upheld
a Minnesota law banning "fusion candidates" (candidates who appear on multiple parties'

3

Only one memoranda, that filed by the Sapone-Tenuta duo, is cited in this opinion. As
the text reflects, it is cited "S. Mem. --."
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ballots). In upholding the ban Timmons, id. at 363 reasoned that although the law may have
prevented a particular individual from appearing on a particular ballot, it did not severely burden
associational rights because it did not "restrict the ability of the New Party and its members to
endorse, support, or vote for anyone they like" and was "silent on parties' internal structure,
governance, and policymaking."
But Timmons itself torpedoes the Sapone-Tenuta attempted argument, for the bylaw in
this case is precisely the type of regulation that Timmons identifies as more burdensome than the
one at issue in that case. Wholly unlike the law at issue in Timmons, Section 3 pertains directly
to "internal structure, governance, and policymaking" by specifying the minimum level of party
affiliation required of those seeking party leadership positions. And under appropriate
circumstances (such as those surrounding the nomination of Leef for Congress at a meeting of
those party leaders), it is used to further the party's right to "endorse, support, or vote for anyone
they like."
In that respect California Democratic Party, 530 U.S. at 575 further emphasized that "In
no area is the political association's right to exclude more important than in the process of
selecting its nominee." Section 3 was enacted to effectuate the GOP's right to exclude from
leadership positions persons whom it quite understandably does not consider to be genuine
members of its party, an exclusion that in turn adds a layer of control over the types of party
affiliates involved in selecting its nominee for Congress. Such activity clearly fits into the
category of functions that the Supreme Court identified as protected by the First Amendment in
Timmons and California Democratic Party.
In another effort to prop up their untenable position with a weak reed (which an
examination proves to be no supportive reed at all), Sapone and Tenuta argue that state
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interference with Section 3 is a "lesser burden" because Illinois law already allows the GOP to
create nominating subcommittees that exclude ward committeemen who have voted in the
primaries of different parties (S. Mem. 11). But that contention is also self-defeating, for it seeks
to compel the GOP to achieve by indirection a self-regulating goal that it has elected to
accomplish in a straightforward way. Here the GOP has chosen to enact a bylaw that
automatically excludes certain individuals from ward committeeman positions, rather than going
through the effort to exclude those individuals from the nominating process each and every time
it becomes necessary. In sum, potential state interference with Section 3 does not qualify as a
"lesser burden," and this opinion will therefore examine it under a lens of strict scrutiny. 4
Having thus established that interfering with the GOP's application of Section 3 would
severely burden the party's First Amendment rights, this opinion turns to the question whether
Sapone and Tenuta have identified a compelling countervailing governmental interest. In that
regard Sapone and Tenuta proffer the position that such total interference -- the argued-for
invalidation of Section 3 -- would serve a compelling state interest because ward committeemen
perform the important public functions of nominating election judges and filling vacancies in the
Illinois General Assembly.
First, Sapone and Tenuta claim that the United States Constitution's Art. I, § 4 (the
"Elections Clause") affords states the authority to regulate the selection of election judges, which
in turn gives them the authority to regulate the selection of political party leaders who play a role

4

It must however be stressed, as more than amply demonstrated by the extended analysis
of and comparison between the respective arguments offered up by the adversaries here (an
analysis and comparison engaged in both up to this point and hereafter in this opinion), that this
is not a close case at all -- that the GOP would prevail by a wide margin under any standard of
proof.
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in the judges' selection. It is true that the Elections Clause delegates broad authority to the states
to regulate their own elections ("The times, places, and manner of holding elections for Senators
and Representatives, shall be prescribed in each state by the legislature thereof . . ."). As a
threshold matter, however, in Tashjian, 479 U.S. at 217 the Supreme Court flatly rejected the
proposition that the Elections Clause allows states to meddle in private political parties, for "[t]he
power to regulate the time, place, and manner of elections does not justify, without more, the
abridgment of fundamental rights, such as the right to vote, or, as here, the freedom of political
association."
With that proposed overreading of the Elections Clause having been dispatched, analysis
turns to the question whether Sapone and Tenuta have provided "more" that can justify state
interference with the GOP's First Amendment entitlement to freedom of association. Sapone and
Tenuta state correctly that election judges are integral to maintaining the integrity of elections in
Illinois (S. Mem. 13). Pursuant to Code §§ 14-3.1 and 14-3.2, Illinois election judges are
selected by local boards of elections from certified lists of individuals furnished by the county
chairman or ward committeemen of the two leading political parties. Illinois certainly has
authority to prescribe statutorily the role of ward committeemen of political parties in selecting
election judges. What the state does not have, however, is the statutory authority to prescribe -- a
subject about which the Election Code is silent -- limits on the qualifications that a political party
may require of its ward committeemen.
Ward committeemen also play a role in filling vacancies in the General Assembly, a role
that Sapone and Tenuta contend confers their entitlement to interfere in order to serve what they
view as a compelling state interest. In that respect Kluk v. Lang, 125 Ill. 2d 306, 326, 531
N.E.2d 790, 799 (1988) has recognized that the statutory role "arguably confer[s] indicia of
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public agency" on political party committees. But Kluk, id. at 331, 531 N.E.2d at 801 (emphasis
added) expressly distinguished the special status conferred by statute on such committees when
they are carrying out their appointment duties from that of political parties when they are
performing their regular functions:
And though political party committees may be private entities in many contexts,
the extensive responsibility given them by the Election Code in connection with
appointments to legislative vacancies, pursuant to a constitutional mandate to
preserve the political party affiliation of the former incumbent as to the successor
legislator, takes them at least as far from private status as was [another
commission in an earlier Illinois Supreme Court case] . . . In addition, the
Election Code elsewhere clearly implies that the party committees in their
appointment capacity are to be considered public agencies.
Indeed, the unique appointment duties discussed in Kluk are clearly an exception that
proves the rule. Twelve years before Kluk was decided, People ex rel. Rudman v. Rini, 64 Ill. 2d
321, 356 N.E. 2d 4 (1976) invalidated a different statute that transferred the power to appoint
individuals to fill vacancies in county offices and county board seats to political parties precisely
because "the State's sovereign power to appoint public officers could not be conferred upon
private persons or groups" (Kluk, 125 Ill.2d at 325, 531 N.E.2d at 798). But in upholding the
law dealt with in Kluk, the Illinois Supreme Court found it necessary there to distinguish the
Rudman decision at great length -- and to do so in a way that made obvious the parallelism
between this case and Rudman, not this case and Kluk.
In particular it should be emphasized that Kluk, 125 Ill. 2d at 326, 531 N.E.2d at 799
(emphasis added) relied on the procedures set forth in the appointment statute that imposed extra
accountability on parties during the appointment process and "indicia of public agency when
they are performing their duties under the statute." Kluk clearly limited the "public agency"
character of political parties to those special instances when the parties are fulfilling their
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statutorily-imposed duties to appoint members of the General Assembly. By sharp contrast, the
functions of organizing and nominating candidates that are at issue in this case are inherently
internal responsibilities of a political party. Thus the nomination of Leef as the party's "standard
bearer" candidate for Congress is a quintessential function of the GOP as a private political
party, a function that plainly does not confer any "indicia of public agency" and just as plainly
does not abrogate associational protections provided by the First Amendment.
When push comes to shove, defendants' arguments are reduced to the impermissible
position that because political parties perform a number of important functions in Illinois, the
state should have broader authority to regulate their internal workings than the United States
Constitution allows. But the purported "compelling state interests" advanced by Sapone and
Tenuta -- the recommendation of election judges and the authority to fill vacancies in the
General Assembly by appointment -- involve functions and duties that are no better than
tangential to the party's essential inner workings. Although the state may be enabled to regulate
the manner in which political parties perform the external functions referred to by Sapone and
Tenuta, those functions are not at issue in this case. Instead, when it comes to the matters at
issue here -- particularly the qualifications that the parties set for internal leadership and the
manner in which parties select their nominees -- the Supreme Court has made it very clear in
California Democratic Party, 530 U.S. at 572-73 (internal citations and quotation marks omitted)
that the First Amendment overrides any potential state interference:
We have recognized, of course, that States have a major role to play in structuring
and monitoring the election process, including primaries. We have considered it
too plain for argument, for example, that a State may require parties to use the
primary format for selecting their nominees, in order to assure that intraparty
competition is resolved in a democratic fashion.
*

*
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*

What we have not held, however, is that the process by which political parties
select their nominees are, as respondents would have it, wholly public affairs that
States may regulate freely. To the contrary, we have continually stressed that
when States regulate parties' internal processes they must act within limits
imposed by the Constitution.
Illinois Law
With all of that said, though, in the interest of completeness this opinion goes on to treat
with the Sapone-Tenuta contention that the enforcement of Section 3 somehow violates the
Election Code, which states that ward committeemen "shall continue as such committeemen until
the date of the primary to be held in the second year after their election" (Code § 8(b)) and sets
forth conditions for vacancies of ward committeemen that include conviction of a felony (Code
§ 8(k)) or death, resignation or ceasing to reside within the ward (Code § 8-5). 5 But none of
those provisions or anything else in Illinois law prohibits the rights of political parties to
establish additional conditions under which the position of committeeman becomes vacant, as
the GOP has done here by applying Section 3 to vacate the positions claimed by Sapone and
Tenuta.
Nor do state laws concerning "party-switching" somehow render the GOP's bylaw invalid
or unenforceable. On that score Sapone and Tenuta point to two Illinois Supreme Court opinions
that uphold the General Assembly's authority to regulate party-switching time limits and to
interpret the state law related to those limits, but neither of those opinions is persuasive on the
issue posed by this case.
5

Lest the ensuing text discussion be misunderstood, however, it must be recognized that
the legal effect of what has gone before is that even if that contention were to merit an
affirmative answer, that reading of the Election Code would have to give way to the alreadyruled-upon supremacy of the GOP's federal constitutional rights. In that sense this Illinois Law
section of this opinion might well be viewed as unnecessary surplusage.
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First, Sperling v. County Officers Electoral Bd., 57 Ill. 2d 81, 86, 309 N.E.2d 589,
591-92 (1974) held that two-year party switching restrictions for voters were unconstitutional,
while it and merely affirmed en route that the legislature may impose such restrictions on
political candidates. Importantly, Sperling does not in any way limit the party-switching
regulation of nominees and party leadership as the business of the legislature alone. Moreover,
this dictum in Sperling, id. at 86, 309 N.E.2d at 591 also supports the spirit of the GOP's position
on its right to regulate party-switching of the type practiced by Sapone and Tenuta:
We believe that standards governing party changes by candidates may and should
be more restrictive than those relating to voters generally.
Second, Hossfield v. Illinois State Bd. of Elections, 238 Ill. 2d 418, 428-29, 939 N.E.2d
368, 374-75 (2010) likewise offers Sapone and Tenuta no help. That case upheld a state
senator's right to submit nomination papers as a voting Republican when six months earlier he
had voted on a Democratic ballot -- a ruling based on the fact that the no-switch rule had been
eliminated from the Election Code and no other regulations existed to prohibit his actions. In so
ruling the Illinois Supreme Court lamented (Hossfeld, id. at 429-30, 939 N.E.2d at 375 (quoting
Sperling)):
Though we agree with Hossfield that party-switching restrictions on candidates
for public office are an important protection in the electoral process, "[s]uch
restrictions and establishment of the periods of time involved are, within
constitutional limitations, matters for legislative determination."
Just so, this Court is not at liberty here to dictate or second guess the internal party-switching
bylaws of the GOP, because doing so would violate the First Amendment.

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Finally, the Sapone-Tenuta contention that Section 3 unconstitutionally deprived citizens
who voted for Sapone and Tenuta of the right to vote does not ring the bell either, 6 for the
holding in Tully v. Edgar, 171 Ill. 2d 297, 305-06, 664 N.E.2d 43, 48-50 (1996), which Sapone
and Tenuta cited in claimed support of their position, plainly does not prohibit the GOP's
application of Section 3. Tully, id. at 305, 664 N.E.2d at 48 declared unconstitutional the
application of a term limit statute to end the term of trustees for the University of Illinois
retroactively, reasoning that it would "operate[ ] as a 'post-hoc' negation of the right to vote"
because it would nullify the result of a valid election. Although there are similarities between
the facts in Tully and in this case, two key differences exist.
For one thing (and importantly), Tully dealt with a state statute that impinged on the
rights of state citizens to vote for occupants of public office, while here the regulation at issue is
the internal bylaw of a private political party that dictates the qualifications of ward
committeemen who are not government officials (a contrast held to be meaningful in McCaster
v. Greenwood, 328 Ill. App. 3d 643, 646, 766 N.E.2d 666, 669 (5th Dist. 2002)). Second, this
case concerns decisions by a private political party about governance completely internal to the
organization, while by contrast Tully involved a restriction on the office of trustee of a public
university, a subject of great importance to citizens of the state irrespective of their party
affiliations.
In sum, even apart from the overriding impact of the First Amendment, Illinois state law
does not justify invalidating Section 3 and in turn voiding Leef's nomination. None of the state

6

Whether Sapone and Tenuta have standing to advance such an argument, based as it is
on the claimed rights of others, is an interesting legal question on its own. This opinion will not,
however, address that subject -- it is unnecessary to the result announced here on other grounds.
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laws cited by Sapone and Tenuta bars the GOP from applying its Section 3 to vacate their
positions as committeemen.
And at the risk of needless repetition, even were that not the case the United States
Constitution's Supremacy Clause (its Art. VI, § 2) clearly dictates that state law cannot be
applied in violation of the Constitution. Without question, the First Amendment vigorously
protects political parties' freedom of association -- a freedom that encompasses their ability to
choose their members and their leaders (Eu, 489 U.S. at 229) and to select their own standard
bearer, rights for which the First Amendment reserves a "special place" and accords "special
protection" (California Democratic Party, 530 U.S. at 575).
For the reasons set forth in this opinion, to apply Illinois law to invalidate the Section 3
bylaw, which would in turn retain for Sapone and Tenuta their invalidly-obtained positions as
ward committeemen, would violate the First Amendment's freedom of association clause.
Although that decision obviates the need to address the Fourteenth Amendment's Due Process
Clause, a few words on that subject will be added.
Due Process
This Court's August 2, 2016 memorandum opinion and order (Dkt. No. 47) held that the
GOP had shown a strong likelihood of success on its due process claim against the Board. As
stated at the outset of this opinion, the Board has opted for bystander status on the current crossmotions, and the issue was not addressed in the Sapone-Tenuta motion for summary judgment.
Hence for the reasons set out in this Court's Dkt. No. 47 opinion, it reconfirms that further
proceedings by the Board in the matter of Sapone v. Leef would violate the GOP's due process
rights.

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Conclusion
This Court grants summary judgment in favor of the GOP on all its claims (Dkt. No. 58)
and denies summary judgment to Sapone and Tenuta in all respects (Dkt. No. 60). In accordance
with the Declaratory Judgment Act, this Court hereby declares:
1. Section 3 is valid, and compliance with Section 3 is a necessary qualification
for seating and recognition as a Republican ward committeeman
notwithstanding any provision of the Election Code.
2. Frances Sapone is not the Republican ward committeeman for the 29th Ward
of Chicago by virtue of her disqualification for that office under Section 3.
3. Sammy Tenuta is not the Republican ward committeeman for the 36th Ward
of Chicago by virtue of his disqualification for that office under Section 3
4. Defendants Chicago Board of Election Commissioners and Marisel
Hernandez, William Kresse and Jonathan Swain, sitting as an electoral board,
are permanently enjoined from conducting hearings in Sapone v. Leef,
Proceeding No. 2016-EB-0.
This is a final judgment in this action.

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: September 14, 2016

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