Acevedo et al v. Cook County Officers Electoral Board et al

Filing 17

MEMORANDUM Opinion and Order Signed by the Honorable Elaine E. Bucklo on 1/24/2018. Mailed notice. (mgh, )

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

Edward “Eddie” Acevedo, et al.,

)
)
)
)
)
)
)
)
)
)
)
)
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Plaintiffs,

v.
The Cook County Officers
Electoral Board et al.,
Defendants.

No. 18 C 293

Memorandum Opinion and Order
Plaintiffs are candidates for public office in Cook County
who seek to have their names included on the ballot in the
Democratic Party primary election to be held on March 20, 2018.
The

Illinois

Election

Code

provides

that

candidates

for

the

offices plaintiffs seek must submit a petition for nomination
containing “at least the number of signatures equal to 0.5% of
the qualified electors of [their] party who cast votes at the
last

preceding

general

election

in

Cook

County.”

This

requirement means, for the 2018 election cycle, that plaintiffs
Acevedo and Raila (candidates for Cook County Sheriff and Cook
County

Assessor,

respectively)

had

to

obtain

8,236

qualified

signatures, while plaintiffs Shaw, Stroger, Joyce, Williams, and

1

Avila

(candidates

for

Commissioner

of

the

Metropolitan

Water

Reclamation District of Greater Chicago) had to obtain 8,075
qualified signatures to be included on the Democratic primary
ballot.
provision

See
of

10
the

ILCS

5/7-10(d)(1),

Illinois

5/7-10(g).

Election

Code

A

separate

establishes

that

candidates for statewide office are required to submit petitions
containing a minimum of 5,000 qualified signatures. 10 ILCS 5/710(a).
The
petition

complaint
with

alleges

signatures

that

facially

each
in

plaintiff
excess

of

submitted
the

a

relevant

minimum requirement. But signature records examinations by the
Cook County Clerk and the Chicago Board of Election Commissioner
determined that each petition but Raila’s (which evidently is
still under challenge) fell short of the required number of
valid signatures. All plaintiffs, however, obtained more than
the 5,000 valid signatures that would have qualified them for
inclusion

on

the

Democratic

primary

election

had

they

been

running for statewide office.
Plaintiffs claim that their exclusion from the Democratic
primary ballot pursuant to 10 ILCS 5/7-10 violates the First
Amendment

and

the

Equal

Protection

Clause

of

the

Fourteenth

Amendment under Illinois State Board of Elections v. Socialist
Workers Party, 440 U.S. 173 (1979), Norman v. Reed, 502 U.S. 279
(1992), and Gjersten v. Board of Election Com’rs for City of
2

Chicago, 791 F.2d 472 (7th Cir. 1986). They seek temporary and
permanent injunctive relief in the form of an order enjoining
defendants from enforcing any signature requirement greater than
5,000 for the offices they seek and compelling defendants to
include

their

Ballot.

Before

restraining

names
me

order

on
is

and

the

March

20,

plaintiffs’
preliminary

2018

motion

Democratic
for

injunction,

a

which

Party

temporary
has

been

briefed and argued at hearings on January 16 and 23, 2018.1 For
the reasons that follow, the motion is denied.
Because
Workers

plaintiffs’

Party,

a

brief

central

reliance

summary

of

that

is
case

on
is

Socialist
helpful.

Socialist Workers Party involved a challenge to the Illinois
Election Code in the context of a special general election for
Mayor

of

political

Chicago.
parties

At
and

the

time,

independent

the

statute

candidates

required
for

new

statewide

office to obtain 25,000 signatures to appear on the ballot. 440
U.S. at 175. New parties and independent candidates for office
in political subdivisions of the state, by contrast, required
signatures of at least 5% of the number of voters who voted in

1

Although plaintiffs’ motion is styled, “Emergency Motion for Ex
Parte Temporary Restraining Order,” defendants were present at
both of the hearings, and the Illinois State Board of Elections
and its individual members filed a written response to the
motion. In both the caption and the text of their reply,
plaintiffs restyle the motion as one for both a temporary
restraining order and a preliminary injunction. Accordingly, I
construe their motion as seeking both forms of relief.
3

the

previous

subdivision.

election
Id.

at

for

offices

175-76.

within

This

that

scheme

political

produced

the

“incongruous result” that to gain access to the ballot, a new
party or independent candidate in the City of Chicago or Cook
County needed substantially more signatures—nearly 36,000 for
the

election

at

issue

in

Socialist

Workers

Party—than

a

similarly situated party or candidate for statewide office. Id.
at 176-77. The Court acknowledged that states have “a legitimate
interest in regulating the number of candidates on the ballot,”
because

the

state

had

advanced

“no

reason,

much

less

a

compelling one” for imposing a higher burden on candidates for
Chicago and Cook County offices than it did for candidates to
state offices, it held that the discrepancy violated the Equal
Protection Clause. Id. at 186.
Plaintiffs argue that under Socialist Workers Party, any
ballot access law whose application in any given election cycle
yields,

as

requirement
candidates

it
for

has

here,

candidates

seeking

a

numerically

seeking

statewide

office

greater

county
must

be

office

signature
than

supported

for
by

a

compelling state interest. Read in isolation, Socialist Workers
Party

arguably

supports

that

proposition.

But

the

Seventh

Circuit has declined to read the case so broadly. See, e.g.,
Bowe v. Board of Election Com’rs of City of Chicago, 614 F.2d
1147 (1980); Gjersten v. Board of Election Com’rs for City of
4

Chicago, 791 F.2d 472 (7th Cir. 1986); and Stone v. Board of
Election

Com’rs

for

City

of

Chicago,

750

F.3d

678

(2014).

Moreover, the Supreme Court’s subsequent decisions in Anderson
v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504
U.S. 428 (1992), have clarified and refined the framework for
evaluating challenges to ballot restriction measures. Under the
analysis established in those cases, plaintiffs have not shown
their

entitlement

to

a

temporary

restraining

order

or

a

preliminary injunction.2
In Bowe, the Seventh Circuit rejected the argument that
Socialist Workers Party “stands for the broad proposition that a
state may never impose a higher signature requirement for an
office of a smaller subdivision than the requirement imposed for
any office of a larger subdivision.” 614 F.2d at 1151. The Bowe
plaintiffs sought to enjoin the application of provisions of the
Illinois

Election

Code

imposing

a

10%

minimum

signature

requirement on candidates for the office of Ward Committeeman in
Chicago—which,

depending

on

the

ward,

meant

between

834

and

2,280 signatures—while candidates for State Central Committeeman
required a fixed minimum of only 100 signatures to qualify for
the

ballot.

Id.

at

1150.

The

court

2

noted

that

“the

state’s

To establish their entitlement to preliminary relief, plaintiffs
must show, among other things, that they are likely to succeed
on the merits of their claim. Jones v. Markiewicz-Qualkinbush,
842 F.3d 1053, 1058 (7th Cir. 2016).
5

interests in preserving the integrity of its electoral process
and

regulating

the

number

of

candidates

on

the

ballot

are

compelling,” then went on to observe that the Supreme Court “has
consistently

taken

an

intensely

practical

and

fact-oriented

approach to deciding these election cases.” Id. at 1151-52. For
these

reasons,

it

rejected

the

plaintiffs’

request

for

injunctive relief in the absence of a fully developed factual
record “as to the circumstances, background and operation of the
statute in question.” Id. at 1152.
Bowe’s essential teaching is that courts must examine the
facts of each case, including “the actual historical impact of
the

statute.”

Id.

(citing

Jenness

v.

Fortson,

403

U.S.

431

(1971)). In ballot access cases such as this, courts must look
at

“the

actual

impact

of

the

signature

requirement”

in

the

context of the state’s election scheme as a whole. Id. “The
ultimate

question,”

the

court

explained,

is

whether

“a

reasonably diligent candidate could be expected to be able to
meet

the

(citing

requirements
Storer

plaintiffs

have

v.

and

Brown,

offered

gain

a

415

U.S.

none

of

place

on

724,

the

the
742

facts

ballot.”
(1974)).

that

would

Id.
Yet,
be

necessary to undertake that analysis and to conclude that the
Illinois Election Code unfairly burdens their interest in access
to the ballot. Instead, they argue that the numbers themselves—
that is, the comparison between the signature requirements that
6

apply to them and the signature requirement that applies to
statewide

candidates—establishes

a

prima

facie

constitutional

violation. But Bowe rejects precisely that argument.
Nevertheless, plaintiffs insist that

Bowe

supports their

claim, seizing on the passage in which the court characterized
Socialist Workers Party

as “an exception to the more common

fact-oriented approach in this area, an exception warranted by
the

extreme

and

incongruous

operation

of

the

statute

in

question.” Id. Plaintiffs argue that the Illinois Election Code
produces an even more “extreme and incongruous” result in this
case,

since

higher

their

than

signature

statewide

requirements

candidates’

are

more

signature

than

60%

requirements,

whereas Socialist Workers Party struck down a requirement that
was

only

44%

higher

than

the

one

that

applied

to

statewide

candidates. This argument is not well-taken, however, because it
obscures
plaintiffs

the

crucial

fact

challenge

in

that

this

the
case

signature
are

minimums

several

the

orders

of

magnitude smaller, in absolute values, than the ones at issue in
Socialist Workers Party. The distinction is critical.
I am mindful that plaintiffs are not challenging the 0.5%
signature

requirement,

or

even

the

absolute

number

that

percentage yields, as overly burdensome on its face, and that
their

challenge

is

instead

to

the

disparity

between

their

requirement and the one that applies to candidates for statewide
7

office.3 But as Anderson and its progeny confirm, the first step
of

the

inquiry

individual
Anderson,

is

rights
460

U.S.

to

ask:

burdened
at

to
by

789

what
the

(courts

extent

state’s
“must

are

fundamental

election

first

scheme?

consider

the

character and magnitude of the asserted injury to the rights
protected
weighing

by

the

these

First

against

and
the

Fourteenth
state’s

Amendments”

asserted

before

countervailing

interests).
Indeed,

as

the

Seventh

Circuit

recently

observed,

“[p]ractically speaking, much of the action takes place at the
first stage of Anderson’s balancing inquiry.” Stone v. Board of
Election Com’rs for City of Chicago, 750 F.3d 678, 681 (7th Cir.
2014).

Stone

concerned

a

challenge

to

the

Illinois

Election

Code’s provisions establishing a 12,500 signature minimum for
3

At oral argument, plaintiffs’ counsel emphasized that nearly
all of the candidates who have been challenged in the upcoming
election are women or minorities. See, e.g., Tr. of 01/16/2018
Hr’g. at 9:22-24 (“every single candidate that has been
challenged besides one is a woman or a minority”); 13:12-13
(“all the people challenged besides one are women and
minorities”); Tr. of 1/23/2018 Hr’g. at 17:2-4 (“everybody
challenged countywide at large, besides one person, was a
minority and a woman. All the remaining challenges are
minorities or women.”). To be clear, however, their complaint
does not claim that the challenged provisions of the Illinois
Election Code create suspect race- or gender-based classes, or
that the statute discriminates against them based on their race
and/or gender. Indeed, none of the cases plaintiffs cite
concerns allegedly race- or gender-discriminatory election laws.
Their theory, rooted exclusively in Socialist Workers Party and
its
progeny,
is
that
the
statute
creates
geographic
classifications that have no rational relation to any legitimate
state interest.
8

Chicago’s mayoral candidates. Citing Bowe, the court held that
“[w]hat is ultimately important is not the absolute or relative
number of signatures required but whether a reasonably diligent
candidate could be expected to be able to meet the requirements
and gain a place on the ballot.” Id. at 682 (internal quotation
marks and citation omitted). The court then considered the fact
that nine mayoral candidates had achieved the required minimum
to be “powerful evidence that the burden of gathering 12,500
signatures in ninety days is not severe.” Id. at 683. In this
case, plaintiffs have offered no evidence to suggest that the
burden on them is severe, or even substantial. In fact, their
counsel

represented

eligibility
signature

is

that

still

record

although

undergoing

examination,

a

plaintiff

Raila’s

challenge,

she

“5,902

signatures

ballot

is,

after

beyond

the

required minimum.” Tr. of 01/23/2018 Hr’g. at 17:5-8. If that is
accurate, it cuts against the inference Stone requires.
Like

Bowe,

Stone

confirms

that

Socialist

Workers

Party

cannot be read to obviate plaintiffs’ burden of establishing,
through

prima

facie

restriction

on

their

plaintiffs,

is

not

evidence,

a

fundamental
to

the

constitutionally
rights.

contrary.

significant

Gjersten,

Gjersten

cited

concerned

by
a

challenge to a provision of the Illinois Election Code requiring
candidates for the office of ward committeeman in the City of
Chicago to submit nominating petitions with the signatures of
9

10% of the electors in their wards, while candidates for the
suburban office of township committeeman—substantively the same
office—needed the signatures of only 5% of the electors of their
townships.

791

F.2d

at

473,

476.

The

Seventh

Circuit

again

stated its view that Socialist Workers Party does not stand for
the

“broad

position

that

a

state

may

never

impose

a

higher

signature requirement for an office of a smaller subdivision
than

the

requirement

imposed

for

any

office

of

a

larger

subdivision.” Id. at 477 (quoting Bowe 614 F.2d at 1151). But
based on “the affidavits, the evidence of the statute’s effect
in past elections and the evidence presented during a two-hour
hearing on the motion for a preliminary injunction,” the court
concluded that the discrepancy in signature requirements did not
pass

constitutional

muster.

Plaintiffs

have

not

sought

to

present the kind of evidence on which the Gjersten court relied.
In fact, asked at oral argument whether the candidate field for
the offices plaintiffs seek had been larger in past election
cycles,

when

the

signature

requirement

was

less

than

5,000

(which, if so, might suggest that the higher minimums in the
2018

election

candidates’

cycle

ability

had
to

a

material

obtain

the

negative

necessary

effect

on

signatures),

plaintiffs had no clear answer. In the present posture of this
case, Gjersten supports defendants.

10

Further,
upheld

as

minimum

defendants
signature

point

out,

numerous

requirements

cases

have

substantially

more

burdensome than the 0.5% requirement that applies to plaintiffs.
See, e.g., Burdick, 504 U.S. at 435 and n. 4 (upholding Hawaii’s
“one percent of the State’s registered voters” requirement and
noting its approval of equally or more burdensome requirements)
(citing Norman v. Reed, 502 U.S. 279, 295 (1992); American Party
of Texas v. White, 415 U.S. 767 (1974); and Jenness v. Fortson,
403 U.S. 431 (1971)). See also Stone, 750 F.3d at 683 (observing
that

percentages

ranging

from

1%

to

as

high

as

5%

of

the

eligible voting base have been considered reasonable). Although
these

cases

indeed

do

not

establish

a

bright-line

rule

or

“litmus test” for constitutionality, they do reflect the range
of restrictions courts have considered to be reasonable. In the
face

of

these

decisions,

plaintiffs

must

come

forward

with

something more than dogged reliance on an expansive reading of
Socialist Workers Party to show that the signature requirement
the

Illinois

Election

Code

imposes

on

them

amounts

to

an

unreasonable burden on their fundamental rights. Because they
have not, and because Socialist Workers Party does not, without
more, transform a facially reasonable ballot restriction into an
Equal Protection violation each time one class of candidates in
a smaller political subdivision is subject to a more onerous

11

signature

uirement
requ

than

another
a

class

o
of

candidates

larger one, pl
r
laintiffs motion is deni
s’
n
ied.

ENT
TER ORDER
R:

E
Elaine E. Bucklo
.
United States D
District Judge
Dated: January 24, 201
y
18

12

in
n

a