Harlan et al v. Scholz et al

Filing 48

MEMORANDUM Opinion Signed by the Honorable Samuel Der-Yeghiayan on 9/27/2016. Mailed notice(cc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICK HARLAN, et al.,
Plaintiff,
No. 16 C 7832

v.

CHARLES W. SCHOLZ, et al.
Defendants.

MEMORANDUM OPINION
SAMUEL DER-YEGHIAYAN, District Judge
This matter is before the court on Plaintiff Patrick Harlan's (Harlan) and

Plaintiff Crawford County Republican Central Committee's motion for a preliminary
injunction. For the reasons stated below, the motion for a preliminary injunction is
granted.

BACKGROUND
ln2014, the Illinois General Assembly passed legislation for a pilot program
for Election Day Registration, and the legislation was signed by the Governor. After
the 2014 general election, new legislation (SB 172) passed for a permanent Election

Day Registration System (EDR) on strict party-line votes in both houses of the
General Assembly, with all affirmative votes coming from Democratic legislators

and all "nay" votes coming from Republican legislators. SB 172 was signed into

law by the outgoing Democratic Governor. Under the terms of the EDR, counties

with

a population

of 100,000 or more andlor counties with electronic polling books

are required to provide voters with the option of registering at any polling place on

election day. Counties with a population of 100,000 or less that do not have
electronic polling books are not required to provide voters with the option of
registering at any polling place on election day. Plaintiffs have provided evidence
showing that EDR options such as the polling place registration option significantly
increases voter turnout. Plaintiffs contend that, as a result, voter turnout in small

counties without electronic polling books

will not be properly

represented in the

elections. Plaintiffs also contend that the EDR will likely have partisan effects,
benefitting Democratic candidates who primarily draw their support from counties

with populations of 100,000 or more. Harlan is a Republican candidate for the
United States House of Representatives in the

17th

Illinois Congressional District,

which includes one high population county and portions of three other highpopulation counties and the entirety of ten low-population counties. Plaintiffs have
brought this lawsuit to protect the rights of United States citizens in the lowpopulation counties without electronic polling books to ensure that they have the
same opportunity to vote as voters in high-population counties. Plaintiffs contend

that the EDR violates the equal protection rights of voters in low-population counties

without electronic polling books. Plaintiffs request that the court enter a preliminary

injunction ordering Defendants to direct election authorities in all 102 Illinois
counties not to implement the EDR option of registration at precinct polling

locations. An amicus brief has been filed in this case on behalf of the Action Now
Institute, Asian Americans Advancing Justice - Chicago, Change Illinois, Chicago
Votes, Common Cause Illinois, The Illinois Coalition for Immigrants and Refugee
Rights, and the Illinois Public Interest Research Group (collectively referred to

as

"AAAJ Parties"). An amicus brief has also been filed by the American Civil
Liberties Union of Illinois and other voting rights organizations (collectively
referred to as "ACLU Parties"). The court has considered all the arguments made in
the Amicus Briefs in ruling on the instant motion.

DISCUSSION

I.

Initial Requirements
A party seeking a preliminary injunction must initially establish: (1) "that

absent a preliminary injunction, it

will

suffer irreparable harm in the interim period

prior to final resolution of its claims," (2) "that traditional legal remedies would be
inadequate," and (3) "that its claim has some likelihood of succeeding on the

merits." Girl Scouts of Manitou Council, Inc. v. Girl Scouts of
549 F.3d 1079,1086 (7th

tJ.S. of America, Inc.,

cir. 2008); Turnell v. CentiMark Corp.,796F.3d 656,

661-62 (7th Cir. 2015). If the moving party fails to satisff any of the above

elements, the court must deny the motion for a preliminary injunction. Girl Scouts,
549 F.3d at 1086.

A.

Irreparable Harm/ Inadequate Legal Remedy

Plaintiffs contend that if a preliminary injunction is not granted they will
suffer irreparable harm and will have no adequate legal remedy. Plaintiffs have
shown that in the upcoming election Illinois citizens in low-population counties

without electronic polling books will have their right to vote significantly curtailed
in comparison to citizens in high-population counties and counties with electronic

polling books. Plaintiffs have shown that Illinois voters will suffer a concrete harm
that is much more than speculative. The impairment of that right to vote in the
upcoming election and loss of the ability to effectively participate in choosing
elected officials cannot be later rectified in this action. It would not be practical for

this court to order all elections in Illinois to be redone at the conclusion of this case

if Plaintiffs succeed in the instant action. Nor can the impairment of the fundamental
and intangible right to vote be quantified in money damages at the conclusion of this

case. Plaintiffs have shown that absent the entry of a preliminary injunction certain

United States citizens in Illinois will suffer irreparable harm and will lack an
adequate legal remedy.

B. Likelihood of Success

on the Merits

4

Plaintiffs argue that there is a likelihood of success on the merits in this case.
The "Constitution and the laws of the United States are the supreme law of the

land." Shelby County, Ala v. Holder, 133 S.Ct. 2612, 2623 (2013)(quoting U.S.
Const., Art.

VI, cl.2).

ooone
The Supreme Court has referred to the "right to vote" as

of the most fundamental rights of our citizens."l Bartlett v. Strickland,556 U.S.
10 (2009);

Grffin

l,

v. Roupas, 385 F.3d 1128,1132 (7thCir.2004)(stating that there

is an implied constitutional right to vote). The l5th, 19th, 24th, and26th
Amendments of the United States Constitution all provide that the rights of citizens

of the United States to vote shall not be denied or abridged based on various

classifications. The States in this federal system are given "broad powers to
determine the conditions under which the right of suffrage may be exercised."
Shelby County, Ala,733 S.Ct. at2623 (internal quotations omitted)(quoting

Carrington v. Rash,380 U.S. 89, 91 (1965)). However, the Equal Protection Clause
continues to protect the right to vote and "the manner of its exercise." Bush v. Gore,
531 U.S. 98, 104-05 (2000F. Voters have "the right to vote on equal terms" and

' The founding fathers suggested that the right to vote was not only a fundamental right
but a sacred right. Samuel Adams stated that a citizen who is voting should remember that the
citizen "is executing one of the most solemn trusts in human society for which he is accountable
to God and his country." http://foundersquotes.com.
2 The founders of this nation relied in part on the concept of equality in voting in a
democracy as f,rrst recorded in Ancient Greece. The casting of ballots in a voting process is seen
as early as 490 B.C. in a painting on terracotta cup on which Greek leaders are shown using
stones to vote as to whether Ajax or Odysseus should receive Achilles' armor. Ancient Greeks in
fact used voting pebbles called Vrtqog (psephos) which were believed to have been dropped into
ums to execute a vote. www.getty.edu/arllcollection/objects/12078: blogs.getty.edu/iris/votingwith-the-ancient-greeks; Gavin Betts and Alan Henry, Complete Ancient Greek 438 (2010).

"the State may not, by later arbitrary and disparate treatment, value one person's
vote over that of another." Id.
Under the United States Constitution, the right to equal protection does not
belong to any political party or group. The right to equal protection belongs to all

United States citizens without regard to their background or political affiliation. The
Supreme Court has held that in evaluating

"alaw respecting the right to vote -

whether it governs the voter qualifications, candidate selection, or the voting
process," the court should employ the standard set forth in Burdick v. Takushi, 504

U.S. 428 (1992). Crawford v. Morion County Election Bd., 553 U.S. 181,204
(2008)(Sc alia, J . concurring). Unde r that standard, a balancing test is applied to
assess whether the burden to voting rights is a severe burden.

Id.; Bush,53l U.S. at

104-05 (quoting Reynolds v. Sims,377 U.5.533 (1964) for the proposition that "the

right of suffrage can be denied by a debasement or dilution of the weight of a
citizen's vote just as effectively as by wholly prohibiting the free exercise of the
franchise"). A burden is deemed to be a severe burden if it "go[es] beyond the mere
inconvenient." Crawford,553 U.S. at205. A court should "weigh the character and
magnitude of the asserted injury to the rights protected by the" Constitution "that the

plaintiff seeks to vindicate against the precise interests put forward by the State

as

justifications for the burden imposed by its rule." Burdick,504 U.S. at 434 (internal
quotations omitted)(quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (19S3)).

In the instant action, Plaintiffs have provided ample evidence showing that the

availabitity of polling place registration as part of the EDR results in a significant
increase in voter turnout. That in turn shows that in a low-population county

without electronic polling books there will be a significant decrease in voter turnout.
The voters in such counties would thus be at a severe disadvantage under the EDR as

it stands in Illinois. The EDR would result in much more than an inconvenience to
such voters. The EDR would severely burden their right to vote. Defendants argue

that the availability of polling place registration is merely an inconvenience because

EDR

will still be available in all counties in certain

locations other than polling

places. However, Defendants and the Amicus Briefs make clear how important the
polling place registration option is to voters in Illinois. That in turn shows how
important it is that voters in low-population counties without electronic polling
books not be denied that option. The polling place registration option is applied in
an arbitrary and disparate fashion among low-population counties in Illinois and is

not the type of "[o]rdinary and widespread" burden that was considered not to be

severe. Crawford,553 U.S. at205. The Intervening Party argues that the position
advocated by Plaintiffs

(Orr Resp.

will result in fewer United

States citizens in

Illinois voting.

l5). While it may be true that the polling place registration option can

assist voters in certain populous counties, that option cannot be provided at the
expense of lower population counties, thereby decreasing their political

representation in

Illinois. The application of this legislation favors the urban citizen

and dilutes the vote of the rural citizen. The Supreme Court has made it clear that

legislation cannot "restrict the political participation of some in order to enhance the
relative influence of others." McCutcheon v. Federal Election Com'n,134 S.Ct.

1434,l44l (2014). The magnitude of the impact of the EDR upon voters in lowpopulation counties without electronic voting books will be enormous and
Defendants have not provided sufficient justification to support imposing such a
hardship on United States citizens in

Illinois. Defendants

argue that the

geographical classifications are necessary for the implementation of the EDR. It is
possible for Illinois to implement voting registration laws in a disparate fashion
among geographical areas without violating the Equal Protection Clause. See

Grffin,385 F.3d at 1132 (stating when considering

absentee ballot rules that

"unavoidable inequalities in treatment, even if intended in the sense of being known
to follow ineluctably from a deliberate policy, do not violate equal protection").
However, at this preliminary stage in these proceedings, Defendants have not
provided adequate support for their position in this regard as to the facial
classification of the EDR and the disparate effect of its implementation. Defendants
and the Amicus Briefs both argue that the EDR promotes that goal in large-

population counties. While it is a desirable goal to make the voting process more

readily available to United States citizens in Illinois and to encourage them to vote,
that goal must apply equally to all United States citizens in Illinois.
Defendants also argue that the EDR merely imposes requirements on certain

counties and does not prohibit any county from employing the EDR. Although the

EDR does not technically prohibit low population counties without electronic

polling books from instituting the EDR, as Defendants acknowledge themselves,
lower population counties have limited resources. (DE 29:7). The de facto effect of
the EDR thus is to ensure that persons in certain larger and wealthier counties are

provided with EDR options that those in less affluent counties do not have. The

InterveningPafty explains in its response that Cook County has expended large sums
of money to implement the EDR. (Orr Resp.

l4).

In fairness and equity, such other

less affluent counties should not have their representation in elections lessened based

on their lack of such funds. The Intervening Party also argues that it

will

be difficult

to change the election registration rules at this juncture close to the elections. Such
an argument is not persuasive. This court should not be asked to wait until the next

election to address this issue of fairness and equality in voters' rights. Ensuring
equal protection of voters' rights knows no deadline. Justice demands that this court
act now in order to prevent unfairness in the upcoming elections. Constitutional

protections cannot be compromised solely for the purpose of expedience or
convenience. The court has balanced all pertinent interests under the Anderson-

Burdick balancing of interests test. Plaintiffs have thus shown that the EDR as it
stands with the polling place registration option severely restricts voters' rights

under the Anderson-Burdicfr balancing of interests test.3 Thus, based on the limited
3 If Harlan were
merely bringing the instant action solely to protect his candidacy rights,
the rational basis test would be applicable since "candidacy itself is not a fundamental right."

evidence presented at this early preliminary injunction stage, Plaintiffs have shown a

likelihood of success on the merits. When fundamental rights, such as voting, are
restricted, the courts generally apply the strict scrutiny standard and the court notes

that even under the rational basis test, at this phase of the proceedings, Plaintiffs
have presented sufficient evidence to show a likelihood of success on the merits.

II. Balancing Phase
If the moving party satisfies all of the initial requirements for a preliminary
injunction, the court must "proceed[] to the balancing phase of the analysis." Girl
Scouts,549 F.3d at 1086. During this phase, the court should balance:

(l)

the

potential harm to the parties, (2) the likelihood of success on the merits, and (3) the

public interest. Id.; Turnell,796 F.3d at 662. The court should employ "a sliding
scale approach: [t]he more likely the plaintiff is to win, the less heavily need the

balance of harms weigh in his favor; the less likely he is to win, the more need it

weigh in his favor." Girl Scouts, 549 F.3d at 1086 (intemal quotations
omitted)(quoting Roland Mach. Co. v. Dresser Indus., Lnc.,749 F.2d 380, 389 (7th

Cir. 1984)).

A.

Balancing of Harms and Likelihood of Success

Plaintiffs contend that a balancing of the harms favors the entry of

Judge v. Quinn, 624

F

.3d 352, 361 17'h Cir. 201 0).

l0

a

preliminary injunction. Plaintiffs have shown that a significant number of United
States citizens in low-population counties without electronic polling books

will

be

harmed by the EDR. While Defendants and the Amicus Briefs argue that limiting
the EDR

will

reduce the available options for voting in certain populous counties,

the unavailability of such an option for citizens in certain counties is not actually a

harm. It is in reality the removal of an unfair advantage from some United States
citizens in Illinois that levels the election playing field, and is consistent with the
Equal Protection Clause. The equal protection under the United States Constitution
does not disappear or evaporate just because a legislation might be a benefit to

certain United States citizen voters in a certain geographic area. Plaintiffs have
shown that a balancing of the harms favors granting the motion for a preliminary

injunction. On the consideration of the likelihood of success, Plaintiffs have made

a

primafacie showing that SBl72, and more specifically the EDR on its face is
unconstitutionally discriminatory to United States citizenvoters in low-population
counties, and that the application of such legislation dilutes the votes in low-

population counties. Defendants have failed to provide any rational basis for the
discriminatory legislation or the disparate application of the legislation. In regard to
the likelihood of success, Plaintiffs have shown at this initial stage of these
proceedings that there is a strong likelihood that they

B. Public

Interest

l1

will prevail in this action.

Plaintiffs contend that the public interest supports the entry of a preliminary

injunction. The public interest is served by ensuring that all Illinois voters have an
equal opportunity to vote in

Illinois. The EDR polling place registration option as it

now stands gives an unfair advantage to voters in certain counties. While
Defendants and the Amicus Briefs provide extensive analysis on the needs of voters

in the populous counties in Illinois, Illinois is made up of more than the Chicago
metropolitan area and other high population areas. Equality under the law does not
end at the city

limits. The Constitution guarantees equal voting rights to all United

States citizens in

Illinois, not simply those in counties that have the highest

populations and have organizations such as those represented in the Amicus Briefs to
stand up for their enhanced voting rights. Defendants themselves acknowledge that

"smaller-population counties" have "more limited resources." (Orr Resp. 7). The

ability of United States citizens to vote should not be determined by the level of
financial resources of the county in which they reside
Based upon the evidence presented, the harm to Plaintiffs is irreparable in the
absence of any alternative remedy. The Amicus Brief by the ACLU Parties has
elected to take no position on the merits of Plaintiffs' claim that the current EDR
system violates the Equal Protection Clause, but suggests that

enter injunctive

if this court were to

relief the court should simply grant an injunction that

extends EDR

to local polling places statewide. (DE 25:1). While ACLU Parties' suggestion

might or might not be an alternative remedy, this court will not legislate

t2

as

to voters'

rights. Illinois has acted to institute the legislation for EDR and this court's proper
role is to determine whether such legislation and/or implementation of such
legislation violates the Constitution. The court also notes that such a step might also
impose an untenable financial burden on various counties in the State of Illinois.
Defendants argue that a preliminary injunction is an extraordinary remedy. Such a
remedy is precisely the relief that is most appropriate in a case such as this where a
fundamental right under the Constitution is impacted. Therefore, the public interest

factor clearly supports the entry of a preliminary injunction. Based on all of the
above, Plaintiffs' motion for a preliminary injunction is granted.

CONCLUSION
Based on the foregoing analysis, Plaintiffs' motion for a preliminary

injunction is granted.

,

Samuel Der-Yeghiayan
United States District Court Judge

Dated:

September 27, 2016

l3