Jan Kowalski McDonald v. Cook County Officers Electora ( 2019 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued December 11, 2018
Decided January 2, 2019
Before
DIANE P. WOOD, Chief Judge
KENNETH F. RIPPLE, Circuit Judge
AMY C. BARRETT, Circuit Judge
No. 18-1609
JAN KOWALSKI MCDONALD, Appeal from the United States District
Plaintiff-Appellant, Court for the Northern District of Illinois,
Eastern Division.
v.
No. 1:18-cv-01277
COOK COUNTY OFFICERS
ELECTORAL BOARD, et al., John J. Tharp, Jr.,
Defendants-Appellees. Judge.
ORDER
Jan Kowalski McDonald, an Illinois attorney proceeding pro se, appeals the
district court’s denial of injunctive relief against the Cook County Officers Electoral
Board to keep her name on the May 2018 Democratic primary ballot as a candidate for
Cook County Clerk. We dismiss the appeal as moot.
Ms. McDonald sought to run for Cook County Clerk this past spring. To be
included on the Democratic primary ballot, Illinois law required that she submit a
petition for nomination containing “at least the number of signatures equal to 0.5
percent of the qualified electors of his or her party who cast votes at the last preceding
No. 18-1609 Page 2
general election in Cook County.” 10 ILCS 5/7-10(d)(1). Given the number of qualified
voters in the 2016 election, Ms. McDonald had to obtain 8,236 signatures to be included
on the ballot.
Ms. McDonald submitted a petition with 22,057 signatures. The Cook County
Clerk’s Office, which serves as the chief election authority for the county, examined
Ms. McDonald’s petition (as it does for any petition) and found that only 8,684 of the
signatures were valid. A private party later objected to the propriety of some of those
remaining signatures, see 10 ILCS 5/10-8, and the hearing officer assigned to the case
determined that many addresses had been altered. The Cook County Officers Electoral
Board, which hears objections to candidacies and petitions, held a hearing and adopted
the hearing officer’s recommendation. The Board invalidated more than 700 signatures,
leaving Ms. McDonald 320 signatures shy of the 8,236 necessary to qualify for the
primary. The Board voted unanimously to remove her name from the ballot.
Ms. McDonald brought this action alleging that her exclusion from the primary
ballot under 10 ILCS 5/7-10(d)(1) for failing to meet the 0.5 percent signature
requirement violated the First Amendment, the Equal Protection Clause of the
Fourteenth Amendment, and the Voting Rights Act. She sought a temporary restraining
order enjoining the Board from enforcing the 0.5 percent signature requirement that
kept her off the ballot because it was inconsistent with another subsection of the statute,
10 ILCS 5/7-10(a), which requires candidates for statewide office to obtain only 5,000
signatures to secure a spot on the ballot (as opposed to the 8,236 signatures
Ms. McDonald needed to collect for countywide office).1 Therefore, she asked the court
to order that her name be kept on the primary ballot.
1 Ms. McDonald principally relied on Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173
(1979). In that case, the Supreme Court determined that a provision of the Illinois election code that
required independent candidates and new political parties to obtain more than 25,000 signatures to
appear on the ballot for the Chicago mayoral election violated the Equal Protection Clause of the
Fourteenth Amendment. Id. at 186. Noting that this signature requirement was substantially higher than
a similarly situated candidate or party for statewide office needed, the Court held the provision
unconstitutional because the State Board of Elections had not advanced any compelling reason for
imposing a higher minimum-signature requirement on citywide candidates than on statewide
candidates. Id.; see also Gjersten v. Bd. of Election Comm'rs for City of Chi., 791 F.2d 472, 477 (7th Cir. 1986)
(determining that the state’s ten percent minimum-signature requirement for candidates seeking office of
ward committeeman was unconstitutional because the State Board of Elections did not advance any
compelling reason why a ward committeeman in Cook County had a higher signature requirement than
a township committeeman outside of Cook County).
No. 18-1609 Page 3
The district court construed her motion as a request for a preliminary injunction
and denied relief. The court determined that Ms. McDonald could not establish a
reasonable likelihood of success on the merits of her claim (i.e., that the 0.5 percent
signature requirement is unconstitutional). To succeed on the merits, according to the
district court, Ms. McDonald had to demonstrate that the signature requirement
severely burdened her constitutional rights. See Burdick v. Takushi, 504 U.S. 428, 434
(1992). A burden is severe when no “reasonably diligent candidate could be expected to
be able to meet the requirements and gain a place on the ballot.” Stone v. Bd. of Election
Comm’rs for City of Chi., 750 F.3d 678, 682 (7th Cir. 2014) (quoting Bowe v. Bd. of Election
Comm’rs of City of Chi., 614 F.2d 1147, 1152 (7th Cir. 1980)). The district court believed
that Ms. McDonald undermined her argument that no reasonably diligent candidate
could meet the requirement because she herself was close to obtaining the necessary
number of signatures. The court also pointed out that at least eight candidates running
for Cook County offices were able to obtain the requisite number of valid signatures.
The district court finally explained that this circuit (as well as the Supreme Court) has
upheld signature requirements more demanding than the one complained of here.
Ms. McDonald appealed the district court’s order, and we directed the parties to
file supplemental briefing on a jurisdictional question: whether the motion denied by
the district court was for a temporary restraining order, the denial of which is not
appealable. See Wheeler v. Talbot, 770 F.3d 550, 552 (7th Cir. 2014). We determined that
Ms. McDonald’s appeal was from a denial of a preliminary injunction and allowed the
appeal to proceed to briefing. Order, McDonald v. Cook Cnty. Officers Electoral Bd., No.
18-1609 (7th Cir. Apr. 4, 2018).
Ms. McDonald now argues that the signature requirement is severely
burdensome, especially for a candidate such as herself who do not join a “slate.”2 The
Board counters that Ms. McDonald’s claim is moot because the primary election is over.
We agree with the Board; there is no longer a live case to adjudicate because a
decision on the merits would not change the status quo. See Stone v. Bd. of Election
Comm’rs for City of Chi., 643 F.3d 543, 544–45 (7th Cir. 2011); Gjertsen v. Bd. of Election
Comm’r of City of Chi., 751 F.2d 199, 202 (7th Cir. 1984). Ms. McDonald sought to enjoin
the Board to keep her name on the March 2018 primary ballot, but that primary
occurred nine months ago. She also asks that we order that her name be printed on the
2 In Illinois, a petition may contain the names of two or more candidates for offices within the State,
county, or judicial district from the same established party. See Illinois State Board of Elections,
2018 Candidate’s Guide 51 (April 4, 2018).
No. 18-1609 Page 4
November 2018 general election ballot, but that election has also passed. Her case is
moot because the relief that she specifically sought in the district court in her motion for
interlocutory relief—an order that she be included on the ballot—would not affect the
results of an election that has already happened.
In her reply brief, Ms. McDonald asserts that the passage of an election does not
render an election-related challenge moot if the claim is capable of repetition yet evades
review. This exception applies where: “(1) the challenged action is in its duration too
short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable
expectation that the same complaining party will be subject to the same action again.”
F.E.C. v. Wisconsin Right to Life, Inc., 551 U.S. 449, 462 (2007) (quoting Spencer v. Kemna,
523 U.S. 1, 17 (1998)).
Ms. McDonald’s appeal does not satisfy the exception because her action does
not evade review. Before us is an interlocutory appeal; Ms. McDonald’s underlying suit
is still live in the district court.3 She may continue to litigate her suit seeking a
declaratory judgment that the signature requirement is unconstitutional, as well as
damages caused by the Board’s alleged violation of her civil rights. In those
proceedings, she will be able to obtain review of the signature requirement before the
next election for Cook County Clerk in 2022. See Stone, 643 F.3d at 545 (because the
plaintiff was able to obtain review of the signature requirement before the next
applicable election, the case did not fall within the “capable of repetition, yet evading
review” exception).
We therefore dismiss Ms. McDonald’s appeal of the district court’s denial of
injunctive relief as moot.
APPEAL DISMISSED
3 Indeed, the parties proceeded to brief the Cook County Officers Election Board’s motion to dismiss
filed after the primary election.