Rebecca A. Kerlin et al v. Chicago Board of Elections et al
MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 4/3/2017. Mailed notice(gel, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
REBECCA A. KERLIN, et al.,
Case No. 16-cv-7424
CHICAGO BOARD OF ELECTIONS
and JAMES M. SCANLON,
Judge Robert Blakey
MEMORANDUM OPINION AND ORDER
Plaintiffs Rebecca Kerlin, William Shipley, Michelle Gale, Katherine
Wuthrich, and Claire Tobin (collectively, the “Plaintiff Monitors”) served as election
monitors in Chicago during the March 15, 2016 Illinois primary election. Plaintiff
Nina Marie cast an electronic ballot in downtown Chicago during the election’s
early voting program.
On July 21, 2016, Plaintiffs filed suit in this Court seeking declaratory and
injunctive relief against the Chicago Board of Elections (“BOE”) and its General
Counsel, James Scanlon (“Scanlon”) (collectively, “Defendants”). Plaintiffs allege
that Defendants’ actions both during and after the election violated their right to
vote (Count I) and their rights to freedom of association and to petition the
government (Count II). On November 8, 2016, Defendants jointly moved under
Federal Rule of Civil Procedure 12(b)(6) to dismiss Plaintiffs’ Amended Complaint
for failure to state a claim. Defs.’ Mot. Dismiss . For the reasons explained
below, Defendants’ motion is granted in part and denied in part.
The Illinois Election Code and Direct Recording Electronic
The Illinois Election Code authorizes election precincts to use Direct
Recording Electronic Voting Systems (“Electronic Voting Systems”) during both
regular and early voting. 10 ILCS § 5/24C-1. When an Electronic Voting System is
utilized, voters cast votes via an electronic ballot display “with mechanical or
electro-optical devices that can be activated by the voters to mark their choices for
the candidates of their preference and for or against public questions.” Id. These
voting devices are ostensibly capable of: (1) electronically recording and storing
ballots; (2) tabulating votes; and (3) producing a permanent paper record for each
ballot cast. Id.
After each voter completes his or her electronic ballot, the Electronic Voting
System records an image of the completed ballot, and, upon request, prints the
permanent paper record, which shows the votes cast in readable form.
§§ 5/24C-2, 5/24C-12.
The permanent paper record for each respective ballot
contains a unique, randomly assigned identifying number that corresponds to the
number randomly assigned by the voting system to each ballot as it is electronically
Permanent paper records are preserved and secured by election
officials in the same manner as traditional paper ballots, and are available as an
official record for any recount, redundant count, or verification or retabulation of
the vote count. Id. at § 5/24C-12.
In addition to creating the permanent paper record, the Electronic Voting
System also independently records each vote cast for or against any candidate and
for or against any public question. Id. at § 5/24C-11(u). Upon the close of voting,
these vote totals are tabulated by the Electronic Voting System and an “In-Precinct
Totals Report” is generated for return to the election authority. Id. at § 5/24C-12.
This report includes the total number of ballots cast for each candidate and public
question and constitutes the official return of each precinct. Id. at § 5/24C-15.
To ensure the accuracy of the automatic counts generated by Electronic
Voting Systems, the Illinois Election Code requires each election authority to, inter
alia, test the voting devices and equipment in five percent of the precincts within
each election jurisdiction, as well as five percent of the voting devices used in early
These tests are conducted after Election Day, but prior to the
proclamation of election results. Id.
The tests consist of counting individual votes recorded on the permanent
paper record of each ballot and comparing the totals with the results tabulated by
the Electronic Voting System. Id. If any error is detected, the Illinois Election Code
requires the cause to be “determined and corrected,” and an errorless count to be
made before election results are officially canvassed and proclaimed.
Furthermore, if either: (1) an error is detected and corrected; or (2) an errorless
count cannot be conducted because there continues to be a discrepancy between the
count from the permanent paper records and the results produced by the Electronic
Voting System, the election authority must “immediately prepare and forward to
the appropriate canvassing board a written report explaining the results of the test
and any errors encountered.” Id. This report must be made available for public
By statute, advance written notice of the time and place of these tests must
be provided to the State Board of Elections, the State’s Attorney, appropriate law
enforcement agencies, the county chairman of each established political party, and,
of particular relevance here, “qualified civic organizations.” Id. Representatives of
these institutions are permitted to attend the tests. Id.
Testing for the March 15, 2016 Illinois Primary Election
From March 23, 2016 through March 29, 2016, the Chicago BOE tested the
required five percent of the Electronic Voting Systems used in the March 15, 2016
Am. Compl.  ¶ 18.
One or more of the Plaintiff Monitors were
credentialed by a qualified civic organization to attend each test performed. Id. ¶
According to Plaintiffs, the BOE conducted the tests by having one BOE
employee read aloud votes from the permanent paper record of individual ballots.
Id. ¶ 20. Meanwhile, another BOE employee created a written tally sheet of the
oral vote count.
Plaintiffs contend, however, that the total vote counts
tabulated by the Electronic Voting System were printed on these tally sheets before
the test count began. Id. Moreover, BOE employees tallied the oral vote count in
pencil, allowing for erasures. Id. Plaintiffs allege that the combination of the preprinted vote totals and the use of pencils allowed BOE employees to alter tallies
from the oral vote count so that they matched vote totals tabulated by the
Electronic Voting System. Id.
Plaintiffs allege that, throughout the testing process, multiple BOE
employees tallied oral vote totals that departed significantly from the results
generated by the Electronic Voting Systems. Id. ¶ 22. BOE employees did not,
however, undertake the steps required by statute (i.e. determine, correct, and report
the error encountered). Id. ¶ 23. Instead, BOE employees intentionally altered
tally numbers to match the results that had already been placed on the tally sheets,
regardless of the oral vote count from the permanent paper record. Id. Specifically,
BOE employees changed votes from one candidate to another, added or subtracted
votes from candidates, and stopped counting votes once they reached the result that
was pre-printed on the tally sheet. Id. ¶ 31. BOE employees then falsely reported
that no inconsistencies were discovered.
Plaintiffs claim that these
improprieties were pervasive throughout the “test counts” for Electronic Voting
Systems from the March 15, 2016 primary election. Id. ¶ 24.
Additionally, Plaintiffs allege that BOE employees took active measures to
“hinder or outright prevent” the Plaintiff Monitors from monitoring and recording
the improprieties as they occurred. Id. ¶ 25. Plaintiffs claim, for example, that
BOE employees physically obstructed the Plaintiff Monitors from observing
employees perform the tests and prevented Plaintiffs from photographing or
documenting the results of the tallies until any discrepancies were fraudulently
Plaintiffs claim that when they challenged these actions, BOE
employees and their supervisors—including Scanlon—refused to acknowledge or
correct any of the discrepancies. Id. ¶ 26.
Following the testing process, several of the Plaintiff Monitors attended an
April 5, 2016 BOE meeting in order to notify BOE commissioners of Plaintiffs’
observations before election results were certified. Id. ¶ 27. Plaintiffs claim that
the gathering was supposed to be an open meeting subject to public comment. Id.
Plaintiffs allege, however, that the BOE commissioners prevented the Plaintiff
Monitors from presenting evidence of their observed irregularities. Id. Instead, the
BOE immediately closed public comment, certified the election results, and
adjourned the meeting in less than two minutes. Id.
A motion to dismiss under Rule 12(b)(6) “challenges the sufficiency of the
complaint for failure to state a claim upon which relief may be granted.” Gen. Elec.
Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 1080 (7th Cir. 1997). A
motion to dismiss tests the sufficiency of a complaint, not the merits of a case.
Autry v. Northwest Premium Servs., Inc., 144 F.3d 1037, 1039 (7th Cir. 1998). To
survive a motion to dismiss, a complaint must first 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 Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Second, the complaint must contain “sufficient factual matter” to “state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Twombly, 550 U.S. at 570). That is, the allegations must raise the
possibility of relief above the “speculative level.”
E.E.O.C. v. Concentra Health
Servs. Inc., 496 F.3d 773, 776 (7th Cir. 2007). A claim has facial plausibility “when
the pleaded factual content allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 556). The plausibility standard “is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013). The
“amount of factual allegations required to state a plausible claim for relief depends
on the complexity of the legal theory alleged,” but “threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Limestone Dev. Corp. v. Vill. Of Lemont, 520 F.3d 797, 803 (7th Cir. 2008).
In evaluating the complaint, the Court accepts all well-pleaded allegations as true
and draws all reasonable inferences in favor of Plaintiff. Iqbal, 556 U.S. at 678.
Count I: Violation of the Right to Vote
Count I States a Claim under 42 U.S.C. § 1983
In Count I, Plaintiffs allege under 42 U.S.C. § 1983 that Defendants’ actions
deprived voters of their fundamental right to vote. Am. Compl.  ¶¶ 34, 44. A
plaintiff who seeks relief under § 1983 must establish that: (1) the alleged conduct
was committed by a person acting under color of state law; and (2) this conduct
deprived the plaintiff of rights, privileges, or immunities secured by the
Constitution or laws of the United States. Griffin v. Roupas, No. 02-cv-5270, 2003
WL 22232839, at *3 (N.D. Ill. Sept. 22, 2003), aff’d, 385 F.3d 1128 (7th Cir. 2004).
Defendants assert that Plaintiffs’ Amended Complaint fails the second prong of this
test. See Defs.’ Mot. Dismiss  4-5. The Court disagrees.
The Supreme Court has long held that voting “is of the most fundamental
significance under our constitutional structure.” Burdick v. Takushi, 504 U.S. 428,
433 (1992); Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173,
184 (1979). The “starting point” for the Court’s analysis, therefore, “is a recognition
that the Constitution protects the right of all qualified citizens to vote in state and
federal elections, and to have their votes counted without debasement or dilution.”
Hennings v. Grafton, 523 F.2d 861, 863-64 (7th Cir. 1975) (citing Reynolds v. Sims,
377 U.S. 533, 554 (1964); Hadley v. Junior College District of Metropolitan Kansas
City, 397 U.S. 50, 52 (1970)).
At the same time, the “very nature of the federal union contemplates
separate functions for the states.” Bodine v. Elkhart Cty. Election Bd., 788 F.2d
1270, 1272 (7th Cir. 1986).
The Constitution “was intended to preserve to the
States” the power to “establish and maintain their own separate and independent
governments, except insofar as the Constitution itself commands otherwise.”
Oregon v. Mitchell, 400 U.S. 112, 124 (1970).
Thus, when a plaintiff “invokes § 1983 in federal court to challenge the
conduct of a state or local election,” courts “must balance the protection of the right
to vote enshrined in the First and Fourteenth Amendments with the avoidance of
excessive entanglement of federal courts in state and local matters.” Parra v. Neal,
614 F.3d 635, 637 (7th Cir. 2010), as revised (July 19, 2010). If “every state election
irregularity were considered a federal constitutional deprivation, federal courts
would adjudicate every state election dispute, and the elaborate state election
contest procedures, designed to assure speedy and orderly disposition of the
multitudinous questions that may arise in the electoral process, would be
superseded by a section 1983 gloss.” Bodine, 788 F.2d at 1272.
In addition to harmonizing this principled tension, courts must remember the
practical truth that elections “are generally conducted by volunteers, rather than
trained professionals.” Id. For these volunteers, “whose experience and intelligence
vary widely,” and for whom the work of conducting elections “is at most an
avocation,” some “errors and irregularities” are inevitable.
anomalies, which exhibit “widely differing degrees of severity,” afford no
Bodine, 788 F.2d at 1272; Hennings, 523 F.2d at 865.
Rather, “state election laws must be relied upon to provide the proper remedy.”
Hennings, 523 F.2d at 865.
Accordingly, “not every election irregularity” will “give rise to a constitutional
claim and an action under section 1983.” Id. at 864; Barr v. Chatman, 397 F.2d
515, 516 (7th Cir. 1968) (“[A] complaint brought under 42 U.S.C. § 1983, which
alleges any voting irregularity, however slight, does not thereby automatically state
a claim for relief.”). Rather, election irregularities implicate § 1983 “only when
defendants have engaged in willful conduct which undermines the organic processes
by which candidates are elected.”
Parra, 614 F.3d at 637 (internal quotations
omitted) (emphasis in original); see also Kozuszek v. Brewer, 546 F.3d 485, 488 (7th
Cir. 2008); Dieckhoff v. Severson, 915 F.2d 1145, 1148 (7th Cir. 1990); Kasper v. Bd.
of Election Comm’rs, 814 F.2d 332, 343 (7th Cir. 1987); Bodine, 788 F.2d at 1272.
“Willful conduct” means, “at a minimum, that the defendants acted with the intent
of subverting the electoral process or impairing a citizen’s right to vote.” Parra, 614
F.3d at 637.
The seminal Seventh Circuit cases on this issue best illustrate the above
standard in light of the particular facts presented here. In Hennings, voters in
Coles County, Illinois, alleged that malfunctioning electronic voting devices at
multiple precincts inaccurately tabulated votes in the 1974 election for county
offices. 523 F.2d at 862-63. In addition, the plaintiffs alleged that election officials
failed to provide paper ballots as a substitute; failed to exercise proper supervisory
oversight in checking access to the machines and preserving the results of the
election; and refused to conduct a statutory retabulation to determine the cause of
Id. at 863.
The plaintiffs claimed that, as a result of the
misfeasance, they were deprived of their right to vote.
The Seventh Circuit affirmed judgment in favor of the defendants. The court
found that, at most, the record showed “irregularities caused by mechanical or
human error.” Id. at 864. Equally important, such evidence lacked “invidious or
fraudulent intent.” Id. According to the court, “absent aggravating circumstances”
of fraud or other willful conduct, mere “[v]oting device malfunction, the failure of
election officials to take statutorily prescribed steps to diminish what was at most a
theoretical possibility that the devices might be tampered with, and the refusal of
those officials after the election to conduct a retabulation,” fell “far short of
constitutional infractions.” Id.
Over a decade after Hennings, the Seventh Circuit encountered a similar fact
pattern in Bodine. Bodine challenged the use of a computerized voting system for
the 1982 general election that electronically tabulated vote counts. Id. at 1271.
Prior to the election, the clerk of the county election board did not verify the
accuracy of computer program control cards or perform any tests to ensure the
proper functioning of the system. Id. When election officials started the actual
tabulation of votes, errors began to appear. Id. Multiple patchwork repairs (such
as changing control cards) were conducted to correct the problems, but no
comprehensive tests or evaluations were performed. Id. The plaintiffs, candidates
for state and federal offices that ultimately lost their respective races, sued the
clerk and the county election board, arguing that the absence of error-free computer
testing undermined the legitimacy of the computerized vote count. Id. The district
court granted summary judgment to the defendants, and the Seventh Circuit
The Seventh Circuit stated that the plaintiffs “alleged nothing more than
garden variety election irregularities that could have been adequately dealt with
through the procedures set forth in Indiana law.” Id. at 1272. At bottom, the
plaintiffs alleged that the defendants failed to “test, count, and certify in accord
with Indiana law.” Id. at 1273. Notably absent from the plaintiffs’ theory was “any
allegation that the computer control cards were somehow manipulated by the
defendants” to alter vote totals and thus undermine the election. Id. at 1272-73.
Rather, under the plaintiffs’ facts, the defendants merely placed the control cards
into the computerized voting system “with no knowledge of whether the program
would produce error,” and if so, “whether that error would be helpful to Republicans
or helpful to Democrats.” Id. According to the court, such evidence was “virtually
indistinguishable from the facts of Hennings” and showed, at most, “incompetence,”
or “willful neglect.” Id. Under § 1983, this is not enough.
Plaintiffs here allege, however, what those in Hennings and Bodine did not.
Plaintiffs not only claim that the Electronic Voting System used during the March
15, 2016 primary election inaccurately tabulated votes, but that BOE employees
affirmatively altered tally numbers derived from the permanent paper record so
that the recount totals would match the electronic results. Am. Compl.  ¶ 30.
This manipulation included adding or subtracting tallies from individual
candidates, changing votes from one candidate to another, or stopping the recount
process once the results matched the electronically tabulated vote totals, regardless
of whether uncounted permanent paper record ballots remained.
Id. ¶ 31.
addition, Plaintiffs allege that the same BOE employees took active measures to
obstruct Plaintiff Monitors from monitoring and recording the improprieties as they
occurred. Id. ¶ 25. Combined, such allegations go beyond the simple voting device
malfunction theories alleged in Hennings, or the “incompetence” and “willful
neglect” shown in Bodine. Rather, Plaintiffs plausibly assert the very “invidious or
fraudulent intent” and “manipulation” of vote totals deemed necessary by those
decisions. As a result, Plaintiffs have sufficiently pled a cause of action under §
1983 at this early stage of the proceedings.
In response, Defendants claim that Plaintiffs’ allegations stem from the
Illinois state Election Code, and a violation of a state law does not state a claim
under § 1983. Defs.’ Mem. Supp. Mot. Dismiss  4-5. Of course, “to invoke the
jurisdiction of the federal courts and to be entitled to relief therefrom,” Plaintiffs
“must allege more than the mere failure of state officials to follow state law”; they
must allege that Defendants “violated some federally protected or constitutionally
guaranteed right.” Moore v. Kusper, 465 F.2d 256, 258 (7th Cir. 1972). The two
concepts, however, are not mutually exclusive; Plaintiffs may plausibly allege a
violation of both state and federal regimes. So long as the latter is properly pled, it
“is no answer” that “state law could provide the relief sought.” Hennings, 523 F.2d
As discussed above, Plaintiffs have adequately pled, in addition to
violations of the Illinois Election Code, infringements of the right to vote under
§ 1983. Defendants’ argument, therefore, is unpersuasive.
Count I States a Monell Claim
Defendants alternatively argue that Count I fails to allege the existence of a
policy or custom necessary to support municipal liability under Monell v.
Department of Social Services of New York, 436 U.S. 658 (1978). Defs.’ Mot. Dismiss
 7-9. Although Monell subjects local governmental units to suit under 42 U.S.C.
§ 1983, respondeat superior will not suffice to impose liability. McTigue v. City of
Chicago, 60 F.3d 381, 382 (7th Cir. 1995). The municipality’s policy, not employees,
must be the source of the discrimination. Id.; Auriemma v. Rice, 957 F.2d 397, 399
(7th Cir. 1992) (“Municipalities are answerable only for their own decisions and
policies; they are not vicariously liable for the constitutional torts of their agents.”).
Consequently, a § 1983 complaint against a municipality “must plead the existence
of a custom or policy that was the direct cause of the deprivation of a federal right.”
Caldwell v. City of Elmwood, Ind., 959 F.2d 670, 673 (7th Cir. 1992). Specifically,
Plaintiffs must plead factual content that would allow the Court to plausibly infer
that: (1) they suffered the deprivation of a constitutional right; and (2) an official
custom or policy caused that deprivation. Barwicks v. Dart, No. 14-cv-8791, 2016
WL 3418570, at *2 (N.D. Ill. June 22, 2016).
Regarding the second element,
Plaintiffs must plead that the constitutional violation was caused by: (1) an express
municipal policy; (2) a widespread, though unwritten, custom or practice; or (3) a
decision by a municipal agent with final policymaking authority. Milestone v. City
of Monroe, Wis., 665 F.3d 774, 780 (7th Cir. 2011).
Once again, Defendants’ argument fails. A § 1983 municipal liability claim
“need not meet any heightened pleading standard, but rather must simply set forth
sufficient allegations to place the court and defendants on notice of the gravamen of
the complaint.” Latuszkin v. City of Chicago, 250 F.3d 502, 504 (7th Cir. 2001); see
also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit,
507 U.S. 163, 168 (1993). The Seventh Circuit explored the limits of this principle
in White v. City of Chicago, 829 F.3d 837, 839 (7th Cir. 2016), cert. denied sub nom.,
137 S. Ct. 526 (2016). In White, following a two-year narcotics investigation, the
defendant police officer applied for dozens of arrest warrants, including one for the
plaintiff. Id. In a later civil suit, the plaintiff claimed that the officer failed to
present the judge who issued the warrant with enough information to establish
probable cause for the arrest. Id. The plaintiff also alleged a Monell claim against
the City of Chicago for its supposed widespread practice of seeking arrest warrants
upon the basis of conclusory complaint forms.
Id. at 841.
The district court
originally held that the plaintiff failed to state a Monell claim because his complaint
only stated that the officer who arrested him “acted in accordance with a
widespread practice of the police department of the City of Chicago when seeking a
warrant.” Id. at 843. According to the district court, this conclusory statement was
not enough “to draw the reasonable inference that the City maintained a policy,
custom, or practice that deprived [the plaintiff] of his constitutional rights.” Id.
The Seventh Circuit found the district court’s ruling to be in error. Id. Citing
Leatherman, the court held that the plaintiff’s complaint—which cited his
individual claim against the officer and further alleged that the officer’s conduct
was “in accordance with a widespread practice”—“was enough to satisfy the ‘short
and plain statement of the claim’ requirement of Rule 8(a)(2).”
Id. at 844.
According to the court, the plaintiff “was not required to identify every other or even
one other individual who had been arrested pursuant to a warrant obtained through
the complained-of process.” Id. (citing Jackson v. Marion County, 66 F.3d 151, 15253 (7th Cir. 1995)) (emphasis added).
Here, Plaintiffs have sufficiently pled a Monell claim at this point in the
proceedings. As discussed above, the Amended Complaint  adequately alleges
that Plaintiffs suffered a constitutional deprivation of their right to vote during the
March 15, 2016 Illinois primary election.
Plaintiffs further allege that such
deprivations are part “of a broader trend of inconsistencies in ‘official’ results
generated by Direct Recording Electronic Voting Systems, in this election and
previous elections.” Am. Compl.  ¶ 32. In Plaintiffs’ view, Defendants conduct
was “pervasive and widespread,” and the result of the BOE’s “de facto policy,
practice, and procedure of willfully disregarding citizens’ right to vote.” Id. Under
White, this is sufficient for the purposes of Rule 12(b)(6).
At summary judgment, of course, impropriety from a single incident may not
give rise to a Monell claim. See Wilson v. Cook Cty., 742 F.3d 775, 780 (7th Cir.
2014) (stating that although the Seventh Circuit “has not adopted any bright-line
rules for establishing what constitutes a widespread custom or practice, it is clear
that a single incident—or even three incidents—do not suffice.”). At this stage,
however, Plaintiffs “need only allege a pattern or practice, not put forth the full
panoply of evidence from which a reasonable factfinder could conclude such a
pattern exists.” Barwicks, 2016 WL 3418570, at *4. In other words, Plaintiffs “need
only plead that the alleged incident is one of many” occurring in Chicago and “that a
widespread practice” gave rise to those incidents. Id. at *5. Plaintiffs have done so.
Although Plaintiffs’ claim, “like many § 1983 claims, may not have merit,” this does
not justify the “granting of a motion to dismiss in advance of giving [Plaintiffs] a
chance to prove [their] allegations.” Hampton v. City of Chicago, No. 96-cv-3480,
1997 WL 790590, at *5 (N.D. Ill. Dec. 17, 1997).
For the reasons stated above, Defendants’ Motion to Dismiss  Count I is
denied. The remaining objections raised in Defendants’ motion are best addressed
by a more developed record. Defendants argue, for example, that it was “impossible
for any irregularities that occurred during the audit to affect the previously decided
and announced election results.” Defs.’ Mot. Dismiss  5. Defendants, however,
neglect to develop the state law on this issue, and at this preliminary stage, the
Court must generally confine its inquiry “to the factual allegations set forth within
the four corners of the operative complaint.” Hakim v. Accenture United States
Pension Plan, 656 F. Supp. 2d 801, 809 (N.D. Ill. 2009). 1 The Court’s ruling, of
course, takes no position regarding the strength of Plaintiffs’ cause of action. At
present, it is enough to say that Plaintiffs have sufficiently pled a plausible claim
for relief under § 1983.
Count II: Violation of Right to Freedom of Association and to
Petition the Government
Count II alleges that Defendants’ infringed upon Plaintiffs’ rights to freedom
of association and to petition the government “in one or more of the following ways”:
Physically obstructing the Plaintiff Monitors from
viewing the individual performing the tallies[;]
For the same reasons, the Court must decline to rule on Scanlon’s qualified immunity claim. See
Defs.’ Mot. Dismiss  13-14.
photographing or otherwise documenting the results of
the tally sheets[;]
[B]ending or obscuring . . .tally sheets in a manner
to shield them from the Plaintiff Monitors’ view[;]
Making hostile comments when the Plaintiff
Monitors requested that they cease the foregoing
activities and refusing to acknowledge or correct any of
the aforementioned improprieties and discrepancies;
Deliberately misleading the Plaintiff Monitors
[who] appeared at the April 5, 2016 BOE meeting . . . and
preventing the Plaintiff Monitors from commenting prior
to [certifying] the returns;
Swiftly bringing the certification of the results to a
vote . . . without permitting the Plaintiff Monitors the
opportunity to object to, or publically comment on, the
procedures at the 5% “test counts” – despite the fact that
they knew these Plaintiffs had attended the public
meeting for this very purpose . . . ; and
Otherwise attempt[ing] to hinder or impede the
Plaintiff Monitors’ ability to monitor the 5% “test counts”
as authorized by statute.
Am. Compl.  ¶ 48.
Count II Fails to State a Freedom of Association Claim
Count II fails to state a proper freedom of association claim against either
The Constitution “protects two distinct forms of free association.”
Montgomery v. Stefaniak, 410 F.3d 933, 937 (7th Cir. 2005). The first, freedom of
intimate association, “protects the right ‘to enter into and maintain certain intimate
human relationships,’” id. (quoting Roberts v. United States Jaycees, 468 U.S. 609,
617-18 (1984)), including marriage, procreation, education of one’s children, and
cohabitation with one’s relatives. Marshall v. Allen, 984 F.2d 787, 799 (7th Cir.
1993). The freedom of intimate association “receives protection as a fundamental
element of personal liberty, and as such is protected by the due process clauses.”
Montgomery, 410 F.3d at 937 (internal citations and quotations omitted).
second form of free association, freedom of expressive association, “arises from the
First Amendment and ensures the right to associate for the purpose of engaging in
activities protected by the First Amendment,” id., including speech, assembly,
exercise of religion, and the petition for redress of grievances. Marshall, 984 F.2d at
Here, although Count II is clearly based solely upon expressive association,
the Court fails to see how Defendants’ purported conduct infringed upon that right.
Of course, excessive government encroachments “can take a number of forms.”
Roberts v. U.S. Jaycees, 468 U.S. 609, 622 (1984).
The government may, for
example, seek to impose penalties or withhold benefits from individuals because of
their membership in a disfavored group, see Healy v. James, 408 U.S. 169, 180-184
(1972); require disclosure of membership in a group seeking anonymity, see Brown
v. Socialist Workers ‘74 Campaign Committee, 459 U.S. 87, 91-92 (1982); compel
membership of one who significantly affects the group’s ability to advocate its
viewpoint, see Christian Legal Soc’y. v. Walker, 453 F.3d 853, 862 (7th Cir. 2006); or
interfere with the internal organization or affairs of the group.
See Cousins v.
Wigoda, 419 U.S. 477, 487-88 (1975). No such actions, however, are alleged here,
and the Court is unaware of any case that recognizes a similar freedom of
association claim based upon analogous facts. Indeed, from the face of the Amended
Complaint, it is not even clear with whom Plaintiffs believe they were prevented
from associating. Without more (and there is no more here), Plaintiffs’ freedom of
association claim fails to satisfy Rule 8’s pleading standards.
Count II Fails to State a Petition the Government Claim
The First Amendment creates a right to petition the government—including
state and local government—for a redress of grievances. Ogurek v. Gabor, 827 F.3d
567, 568 (7th Cir. 2016).
This right “is cut from the same cloth” as the other
guarantees of the First Amendment, McDonald v. Smith, 472 U.S. 479, 482 (1985),
and thus, “is similar to the right of free speech.” Gray v. Lacke, 885 F.2d 399, 412
(7th Cir. 1989).
As a result, courts analyze an alleged violation of the petition
clause “in the same manner as any other alleged violation of the right to engage in
Id. (quoting Phares v. Gustafsson, 856 F.2d 1003, 1009 (7th Cir.
In broad terms, Plaintiffs allege that Defendants infringed upon their right to
petition the government: (1) during the testing process itself; and (2) during the
April 5, 2016 BOE meeting. Am. Compl.  ¶ 48. Plaintiffs’ allegations regarding
the former do not support a claim. Plaintiffs specifically allege that BOE employees
(including Scanlon): (1) physically obstructed the Plaintiff Monitors from viewing
the Electronic Voting Systems audit; (2) prevented the Plaintiff Monitors from
photographing or otherwise documenting the results of tally sheets; (3) bent or
obscured tally sheets in a manner to shield them from the Plaintiff Monitors’ view;
and (4) made hostile comments when the Plaintiff Monitors requested that BOE
employees cease the foregoing activities. Id. The first three allegations do not
describe “petitioning” activity; they merely relate to Plaintiffs’ attempts to observe
and document the testing process. See R.A.V. v. City of St. Paul, Minn., 505 U.S.
377, 382 (1992) (stating that the First Amendment protects the freedom of speech
and expressive conduct). The fourth allegation does assert petitioning activity, but it
also acknowledges that BOE employees received Plaintiffs’ complaints; Plaintiffs’
objection stems from the employees’ refusal to correct any of the discrepancies. As
such, the asserted claim is without merit.
Although the government “may not
interfere with the right to petition,” it “need not grant the petition, no matter how
meritorious it is.” Hilton v. City of Wheeling, 209 F.3d 1005, 1007 (7th Cir. 2000).
Plaintiffs’ allegations as they relate to the April 5, 2016 BOE meeting are
To the extent Plaintiffs sue Scanlon in his individual capacity,
Plaintiffs make no allegation that Scanlon was personally involved in preventing
the Plaintiff Monitors from speaking prior to the certification of election results.
See Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983) (“An individual cannot
be held liable in a § 1983 action unless he caused or participated in an alleged
constitutional deprivation.”) (emphasis in original). To the extent Plaintiffs sue
Scanlon in his official capacity, such claims are redundant with Plaintiffs claim
against the BOE. See Schmidling v. City of Chicago, 1 F.3d 494, 495 n.1 (7th Cir.
1993) (“A lawsuit against Mayor Daley in his official capacity is the same as a
lawsuit against the City of Chicago.”); Williams v. City of Chicago, No. 94-cv-3350,
1994 WL 594674, at *4 (N.D. Ill. Oct. 29, 1994) (“A suit against a local government
official in his or her official capacity is redundant and unnecessary when the
municipality is also being sued.”). That claim, however, is also flawed, because the
Amended Complaint is void of any assertion that the BOE’s suppression of public
comment constituted a widespread practice rather than an isolated occurrence.
Under Monell, this is not enough. See Wilson v. Cook Cty., 742 F.3d 775, 780 (7th
In sum, the above pleading defects, considered collectively, require dismissal
of Count II. As it relates to both Defendants, Count II does not allege a cognizable
freedom of association claim, nor a government petition claim for Defendants’
actions during the testing process. As to Plaintiffs’ allegations regarding the April
5, 2016 BOE meeting, Count II likewise fails to allege personal involvement by
Scanlon, or a widespread practice by the Chicago BOE. Accordingly, Defendants’
Motion to Dismiss  Count II is granted.
Count III: Declaratory Judgment and Injunctive Relief
Apart from claiming that Count III depends upon the survival of Counts I
and II, Defendants make no other argument as to why Count III should be
dismissed. Because Count I remains, Defendants’ Motion to Dismiss  Count III
For the reasons discussed above, Defendants’ Motion to Dismiss  is
granted as to Count II and denied as to Counts I and III.
Date: April 3, 2017
John Robert Blakey
United States District Judge
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