Rebecca A. Kerlin et al v. Chicago Board of Elections et al

Filing 46

MEMORANDUM Opinion and Order Signed by the Honorable John Robert Blakey on 11/13/2017. Mailed notice(gel, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
REBECCA A. KERLIN, et al.,
Plaintiffs,

Case No. 16-cv-7424

v.
CHICAGO BOARD OF ELECTIONS and
JAMES M. SCANLON,

Judge John Robert Blakey

Defendants.
MEMORANDUM OPINION AND ORDER
Plaintiffs Rebecca Kerlin, William Shipley, Michelle Gale, Katherine
Wuthrich, and Claire Tobin served as election monitors in Chicago during the
March 15, 2016 Illinois primary election and observed the Chicago Board of
Election’s (BOE) audit of certain electronic voting machines. Plaintiff Nina Marie
voted electronically in Chicago during the primary election’s early voting period.
In July 2016, Plaintiffs sued BOE and its General Counsel, James Scanlon.
Plaintiffs allege that Defendants’ actions 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). Plaintiffs also seek declaratory and injunctive relief (Count
III).

In November 2016, Defendants jointly moved under Federal Rule of Civil

Procedure 12(b)(6) to dismiss Plaintiffs’ first amended complaint for failure to state
a claim. [18]. This Court granted that motion for Count II only. [31].

1

Plaintiffs filed their second amended complaint in June 2017.
Defendants moved to dismiss that complaint.

[41].

[39].

For the reasons explained

below, Defendants’ motion is granted.
I.

Background
This Court presumes familiarity with, and incorporates by reference, its

opinion partially granting Defendants’ first motion to dismiss. [31]. Thus, this
section describes only new developments since that last opinion.
After this Court partially granted Defendants’ first motion to dismiss,
Defendants filed a motion asking this Court to reconsider that decision.

[33].

Defendants asserted that, due to their lack of clarity in briefing the first motion to
dismiss, this Court made “an error of apprehension” in assessing the relevant
provisions of Illinois election law. Id. at 2. Defendants argued that, under Illinois
law, regardless of how BOE employees conducted the 5% post-election test or what
the test revealed, the test could not have changed the primary election results. Id.
Thus, Defendants reasoned, the 5% test did not affect anyone’s right to vote, and
the complaint should have been dismissed with prejudice. Id.
This Court held a hearing in May 2017 on Defendants’ motion to reconsider
and granted the motion in part, as stated in open court. [37]. During the hearing,
Plaintiffs conceded that BOE’s alleged violations “would have to affect the election
results and not simply an aspect of the audit” for their claims to be justiciable in
federal court. [41-1] at 9; see also id. at 13 (Among other things, Plaintiffs agreed
with the following question from this Court: “If the audit doesn’t change the

2

election, then you agree that there’s a serious problem with your complaint,
correct?”).

Plaintiffs orally moved to amend their complaint again while

acknowledging that the second amended complaint would “still be based on what
transpired at the post-election audit.” Id. at 12. This Court granted the oral motion
to file an amended complaint, id., and Plaintiffs filed their second amended
complaint a month later. [39].
II.

Legal Standard
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 does not test the merits of a case. Autry v. Nw. Premium Servs.,
Inc., 144 F.3d 1037, 1039 (7th Cir. 1998).

To survive a motion to dismiss, a

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), so the defendant has “fair notice”
of the claim “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)).
A complaint must also 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.” EEOC 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

3

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).
Thus, “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 a complaint, this Court
accepts all well-pleaded allegations as true and draws all reasonable inferences in
the plaintiff’s favor. Iqbal, 556 U.S. at 678. This Court is not, however, required to
accept a complaint’s legal conclusions as true. Brooks v. Ross, 578 F.3d 574, 581
(7th Cir. 2009). Rule 12(b)(6) limits this Court’s consideration to “allegations set
forth in the complaint itself, documents that are attached to the complaint,
documents that are central to the complaint and are referred to in it, and
information that is properly subject to judicial notice.” Williamson, 714 F.3d at 436.
III.

Analysis
Plaintiffs claim that BOE violated their right to vote by, among other things,

improperly changing votes to produce an errorless 5% test count and “canvassing
and certifying” inaccurate election results as official, despite knowing that those
results were inaccurate. [39] ¶ 41. Defendants counter that they have no power to
count ballots or certify election results other than the returns that election officers
complete. [41] at 3. More fundamentally, Defendants argue again that the results

4

of the 5% test could not possibly have changed the election results, so the 5% test
did not affect Plaintiffs’ right to vote in any way. Id. at 1.
A.

Illinois Election Law

Two provisions of Illinois election law largely govern the outcome of this case:
10 ILCS 5/24C-15 and 10 ILCS 5/22-9.1. The latter provision matters only because
section 24C-15 refers to it, so this Court will address section 24C-15 first.

To

interpret an Illinois statute, this Court must apply Illinois statutory construction
principles. See In re Crane, 742 F.3d 702, 707 (7th Cir. 2013). Illinois courts focus
on determining and giving effect to the legislature’s intent when interpreting a
statute. Gen. Motors Corp. v. Pappas, 950 N.E.2d 1136, 1146 (Ill. 2011). Statutory
language, given its plain meaning and “construed in connection with every other
section” of the statute, best demonstrates the legislature’s intent.

Id.

When

statutory language is unambiguous, courts must interpret the language consistent
with its plain meaning. Id.; see also United States v. Marcotte, 835 F.3d 652, 656
(7th Cir. 2016) (“When a statute is unambiguous, our inquiry starts and stops with
the text.”) (internal quotation marks omitted).
Section 24C-15 covers multiple distinct subjects, as previewed in its title:
“Official Return of Precinct; Check of Totals; Audit.” This Court addresses each
subject in the same order that the statute presents them.
1.

Official Return of Precinct

Section 24C-15 begins by explaining that the precinct return generated by
the Direct Recording Electronic Voting System (DREVS) machines “shall constitute

5

the official return of each precinct.” That DREVS return lists the number of ballots
cast and the votes cast for each candidate and each public question. Id. Separate
from the DREVS return, the election authority must provide voter registration,
ballot application, and vote totals for each precinct. Id.
2.

Check of Totals

Next, Section 24C-15 orders the election authority to check those
registration, application, and vote totals against the DREVS return’s totals. Id. If
there is “an obvious discrepancy” between the DREVS return’s totals and the
election authority’s totals, the election authority “shall have the ballots for that
precinct audited to correct the return.” Id.
Neither the DREVS return’s totals nor the election authority’s totals come
from the 5% test. In fact, the statute does not make its first mention of the 5% test
until much later in the text. § 24C-15. What is more, the procedures for auditing
and correcting the return “shall apply prior to and after” the results are proclaimed,
but the 5% test must occur before the proclamation, as explained below.

Id.

Construing this part of section 24C-15 within the context of the full statute, Pappas,
950 N.E.2d at 1146, shows that the instruction “to correct the return” is unrelated
to the 5% test, given the clear differences in both chronology and metrics.
Section 24C-15 then provides that the “certificate of results, which has been
prepared and signed by the judges of election after the ballots have been tabulated,
shall be the document used for the canvass of votes for such precinct.” The statute
requires an audit to correct the return if, during the canvass of votes: (1) a

6

discrepancy exists between the certificate of results and the unofficial results; or (2)
a discrepancy exists between the certificate of results and the totals reflected on the
certificate of results. Id. Again, neither the certificate of results nor the unofficial
results comes from the 5% test under section 24C-15. Thus, this second instruction
“to correct the return” remains unrelated to the 5% test.
Likewise, BOE possesses no authority to change the election results based
upon the 5% test. As a statutory creature, BOE derives its powers “solely from a
legislative grant of authority.” Geer v. Kadera, 671 N.E.2d 692, 698 (Ill. 1996). 1
Section 24C-15 authorizes BOE to canvass votes solely with the certificates of
results prepared by judges of election, not with BOE’s findings during the 5% test.
Plaintiffs correctly point out that section 24C-15 mentions correcting returns in
multiple places, but those corrections are not driven by, or connected to, the 5% test.
3.

Five Percent Test

Lastly, section 24C-15 sets forth the 5% test, beginning as follows: “Prior to
the proclamation, the election authority shall test the voting devices and equipment
in 5% of the precincts within the election jurisdiction, as well as 5% of the voting
devices used in early voting.” Notably, given the structure of the statute (which
lacks headers and other obvious dividers between topics), this sentence begins the
first new paragraph in the statute. That new paragraph effectively separates the
5% test procedures from the result-verification provisions described above.

Geer mentions canvassing boards, 671 N.E.2d at 698, which the Illinois legislature abolished in 10
ILCS 5/1-8. Any mentions of canvassing boards in cases or statutes now refer to the election
authority with jurisdiction over the political subdivision. § 1-8. For Chicago, that means BOE.
1

7

Next, the statute describes the procedures both for conducting the test and
choosing which devices to test. Id. The election authority must “print the results of
each test count” and if “any error is detected, the cause shall be determined and
corrected, and an errorless count shall be made prior to the official canvass and
proclamation.”

Id.

Read in context, the last sentence directs the election

authority—in the event of an error—to correct the test count, not to change election
results from the official canvass to match the test count. If the election authority
cannot conduct an errorless test count, or if the authority detects and corrects an
error, section 24C-15 dictates that the authority “shall immediately prepare” a
report “explaining the test results,” which will be made publically available. Id.
Most importantly for this case, section 24C-15 ends by defining the practical
significance of the 5% test: “The results of this post-election test shall be treated in
the same manner and have the same effect as the results of the discovery procedure
set forth in Section 22-9.1 of this Code.” Id. In turn, section 22-9.1 provides that
the results of the discovery procedure:
shall not be certified, used to amend or change the
abstracts of the votes previously completed, used to deny
the successful candidate for the same office his certificate
of nomination or election, nor used to change the
previously declared result of the vote on a question of
public policy.
Simply put, the plain text of section 22-9.1 unambiguously says that the discovery
procedure’s results, and thus the 5% test’s results, cannot change election results.
Under Illinois law, the only outcome of an error in the 5% test count is a publically
available written report. § 24C-15.
8

B.

Count I

In Count I, Plaintiffs claim that BOE violated their right to vote by, among
other things, changing votes to produce an error-free 5% test count and certifying
results that it knew were inaccurate. Upon review of section 24C-15, however, this
Court rejects Plaintiffs’ construction of the statute and their claim that the 5% test
affected any election results. For example, Plaintiffs rely upon language from the
“Check of Totals” section requiring the election authority to “have the ballots for
that precinct audited to correct the return” in the face of “an obvious discrepancy
regarding the total number of votes cast in any precinct.” [42] at 5. But as the
statutory language noted above demonstrates, the 5% test is distinct from the other
areas covered in section 24C-15. Essentially, Plaintiffs cite inapplicable language
out of context, and then try to apply it indiscriminately to the 5% test. The law
requires a different approach to statutory interpretation.
In the end, the “serious problem” with Plaintiffs’ complaint that this Court
identified during the May hearing persists here. [41-1] at 13. Even taking all of
Plaintiffs’ allegations as true and drawing all inferences in Plaintiffs’ favor, Iqbal,
556 U.S. at 678, Plaintiffs do not allege a plausible claim that BOE violated their
right to vote. No matter how flagrantly BOE might have doctored the numbers
during its 5% test, that test’s results could not possibly have affected the election
results under Illinois law. § 22-9.1. Accordingly, this Court dismisses Count I.
C.

Count II

9

This Court dismissed Count II in its prior opinion. Plaintiffs replead Count
II here without any substantive changes solely to preserve their record for appeal.
[39] at 19. Thus, Count II is dismissed for the same reasons stated in this Court’s
prior opinion. [31] at 18–22.
D.

Count III

In Count III, Plaintiffs request declaratory judgment against Defendants on
various questions, such as whether BOE properly performed the 5% test under
Illinois law; Plaintiffs also ask this Court to enjoin BOE from further violating
Illinois law. [39] ¶¶ 76, 83. This Court may entertain a claim for declaratory or
injunctive relief only when a case or controversy exists between the parties,
“consistent with the Constitution’s general limitation on the jurisdiction of the
federal courts.” Cent. States, Se. & Sw. Areas Health & Welfare Fund v. Am. Int’l
Grp., Inc., 840 F.3d 448, 451 (7th Cir. 2016); see also Simic v. City of Chicago, 851
F.3d 734, 740 (7th Cir. 2017).
With the dismissal of Counts I and II, no federal case or controversy remains
between these parties. Plaintiffs failed to state a claim that Defendants deprived
them of any federal constitutional rights. While Plaintiffs might have remedies
under Illinois law if BOE behaved as alleged, that issue is not for this Court to
resolve here. Under 28 U.S.C. § 1367(c)(3), this Court also declines to exercise
jurisdiction over Count III, because this Court has “dismissed all claims over which
it has original jurisdiction.” Count III is dismissed.

10

E.

Leave to Replead

Defendants argue that this Court should dismiss Plaintiffs’ second amended
complaint with prejudice, [41] at 2, and Plaintiffs do not request leave to replead
any claims. See [42]. Defendants’ unopposed request is granted.
Rule 15(a) dictates that trial courts “should freely give leave [to amend] when
justice so requires,” but that command can be outweighed by factors such as undue
delay, bad faith, and futility. Fish v. Greatbanc Trust Co., 749 F.3d 671, 689 (7th
Cir. 2014). Amending the complaint again would be futile here, so justice does not
require giving leave to amend. Plaintiffs did not attempt to bolster Count II in their
second amended complaint even though this Court previously dismissed that count,
and Count I turns purely upon statutory construction. By extension, amending
Count III would be futile, because Count III depends upon the other counts to
establish a case or controversy between the parties. In light of the above, this Court
does not grant Plaintiffs leave to replead any claims.
IV.

Conclusion
Defendants’ motion to dismiss [41] is granted with prejudice.

Civil case

terminated.
Dated: November 13, 2017
Entered:

____________________________________
John Robert Blakey
United States District Judge
11