Libertarian Party of Illinois v. John Cunningham , 872 F.3d 518 ( 2017 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 16-1667 & 16-1775
LIBERTARIAN PARTY OF ILLINOIS, et al.,
Plaintiffs-Appellees.
v.
CHARLES W. SCHOLZ, et al.,
Defendants-Appellants.
____________________
Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12-CV-02511 — Andrea R. Wood, Judge.
____________________
ARGUED FEBRUARY 24, 2017 — DECIDED SEPTEMBER 22, 2017
____________________
Before EASTERBROOK, KANNE, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Illinois law prevents political parties
from fielding candidates on election ballots unless they meet
certain conditions. One condition is known as the full-slate
requirement: If a party hasn’t attained sufficient voter sup-
port in past elections, it must field candidates for all offices
on the ballot in the political subdivision in which it wishes to
compete. So in the 2012 election, the Libertarian Party of
Illinois could field a candidate for county auditor in Kane
2 Nos. 16-1667 & 16-1775
County only if it also proposed candidates for circuit clerk,
recorder, prosecutor, coroner, board chairman, and school
superintendent.
In this suit under 42 U.S.C. § 1983, the Libertarian Party
argues that the full-slate requirement violates its right of
political association under the First and Fourteenth
Amendments. The district judge agreed and entered judg-
ment invalidating the requirement. On appeal Illinois con-
tends that the full-slate requirement is justified by its inter-
ests in political stability, preventing ballot overcrowding,
and avoiding voter confusion.
We affirm the district court. The core of the fundamental
right to political association is the right to band together in a
political party to advance a policy agenda by electing the
party’s members to office. That necessarily includes the
party’s right to access the ballot and its candidates’ right to
appear on the ballot under the party banner. For a minor
party and its nominees, Illinois’s full-slate requirement
extinguishes those rights unless the party fields candidates
in races it may want no part of. This is a severe burden on
fundamental constitutional rights, and Illinois hasn’t offered
a compelling state interest to justify it. Indeed, by incentiviz-
ing minor parties to manufacture frivolous candidacies as a
means to an end, the full-slate requirement actually thwarts
the interests Illinois invokes.
I. Background
Like other states, Illinois classifies general-election can-
didates into three groups: those affiliated with an “estab-
lished” political party, those affiliated with a “new” political
party, and those running as independents. If a candidate is
Nos. 16-1667 & 16-1775 3
affiliated with a party, whether established or new, the party
name appears alongside the candidate’s name on the ballot.
A party becomes established through a strong electoral
performance. If a party’s candidate in the most recent guber-
natorial election received more than 5% of the vote, the party
is established throughout the state. 10 ILL. COMP. STAT. 5/10-2
(2010). A party can also attain established status on a more
limited basis. If its candidate (or candidates collectively)
received more than 5% of the vote in a particular race in the
most recent statewide election—for example, the race for
Illinois Comptroller or Illinois Secretary of State—then the
party becomes established for statewide elections. Likewise,
if a party received more than 5% of the vote in a congres-
sional or county race in the last election, it becomes estab-
lished for congressional districts or for that county. 1 Id.
1 The statute provides in part:
A political party which, at the last general election for
State and county officers, polled for its candidate for
Governor more than 5% of the entire vote cast for
Governor, is hereby declared to be an “established polit-
ical party” as to the State and as to any district or politi-
cal subdivision thereof. A political party which, at the
last election in any congressional district, legislative dis-
trict, county, township, municipality or other political
subdivision or district in the State, polled more than 5%
of the entire vote cast within such territorial area or po-
litical subdivision, as the case may be, has voted as a
unit for the election of officers to serve the respective ter-
ritorial area of such district or political subdivision, is
hereby declared to be an “established political party”
within the meaning of this Article as to such district or
political subdivision.
4 Nos. 16-1667 & 16-1775
A party that isn’t established can access the ballot only as
a new party. Attaining new-party status involves different
hurdles. Unlike in any other state, new parties in Illinois
must submit a full slate of candidates, one for each race in
the relevant political subdivision. 2 Id. Additionally, the party
must gather a minimum number of signatures on nominat-
ing petitions. For state offices, the number is the lower of
25,000 or 1% of votes cast in the preceding statewide elec-
tion. For county offices, the number is 5% of the votes cast in
the county’s preceding election. Id. The new-party petition—
with signatures and a full slate—must be filed between
134 and 141 days before the election. 10 ILL. COMP. STAT. 5/10-
6 (2010).
Finally, the conditions to ballot access for independent
candidates are similar to those for new parties except that
the full-slate requirement doesn’t apply. See id. § 5/10-3 (2010);
id. § 5/10-6. So if a candidate’s party meets the signature
requirement before the petition deadline but doesn’t field a
full slate, the candidate can run as an independent.
In the 2012 election, the Libertarian Party attempted to
nominate Julie Fox as its candidate for auditor of Kane
County. But the Libertarian Party wasn’t established, and it
met neither the signature requirement nor the full-slate
requirement necessary to receive the new-party designation.
The Libertarian Party, Fox, and one of Fox’s supporters sued
10 ILL. COMP. STAT. 5/10-2 (2010).
2 The statute provides that a new-party petition “shall at the time of
filing contain a complete list of candidates of such party for all offices to
be filled in the State, or such district or political subdivision as the case
may be, at the next ensuing election then to be held.” Id.
Nos. 16-1667 & 16-1775 5
Illinois election officials in federal district court under
42 U.S.C. § 1983, challenging the full-slate requirement.3
(The defendants were sued in their official capacities, so we
refer to them collectively as “Illinois.”) Ruling on cross-
motions for summary judgment, the judge held that the full-
slate requirement violates the First and Fourteenth Amend-
ments. Illinois appealed.
II. Discussion
We review a summary judgment de novo. Estate of
Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017). Sum-
mary judgment is appropriate when there is no genuine
dispute of material fact and the moving party is entitled to
judgment as a matter of law. FED R. CIV. P. 56(a). Before
addressing the merits, however, we take up a jurisdictional
question of standing.
A. Standing
The Constitution empowers federal courts to adjudicate
cases or controversies. U.S. CONST. art. III, § 2, cl. 1. The
Article III case-or-controversy limitation confines the federal
judiciary to “the traditional role of Anglo–American courts,
which is to redress or prevent actual or imminently threat-
ened injury to persons caused by private or official violation
of law.” Summers v. Earth Island Inst., 555 U.S. 488, 492 (2009).
The doctrine of standing enforces this limitation. Id. To
establish standing, a plaintiff must demonstrate “(1) an
injury in-fact; (2) fairly traceable to the defendant’s action;
3 The Libertarian Party challenges the full-slate requirement both as
applied and facially. Because the requirement applies in the same way to
all minor parties and their candidates, the suit is best understood as a
facial challenge.
6 Nos. 16-1667 & 16-1775
and (3) capable of being redressed by a favorable decision
from the court.” Parvati Corp. v. City of Oak Forest, 630 F.3d
512, 516 (7th Cir. 2010).
Illinois argues that a judgment favorable to the
Libertarian Party wouldn’t redress its injury: The Party
didn’t meet the signature requirement, so it would have
been barred from the 2012 ballot even in the absence of the
full-slate requirement. 4 This argument misconceives the
Libertarian Party’s injury. It isn’t simply that the Party
couldn’t run its candidate for county auditor in the 2012
election. It’s that Illinois law imposes a burdensome condi-
tion on the Party’s exercise of its right of political associa-
tion; that is, the Party’s injury is its inability to access the
ballot unless it fields a full slate of candidates. That requirement
persists and stands as an ongoing obstacle to ballot access.
In other words, the full-slate requirement raises the cost
of ballot access to minor parties. It’s a barrier to entry that
operates directly on the Libertarian Party and is a continuing
burden on its ability to field candidates for statewide and
countywide office. As we’ve consistently held, that’s an
injury easily sufficient to support a suit for prospective
relief. See, e.g., Krislov v. Rednour, 226 F.3d 851, 857 (7th Cir.
2000) (holding that the plaintiffs had standing because being
“required to allocate additional campaign resources … in
itself can be an injury to First Amendment rights”); Nader v.
4 Illinois doesn’t argue that the controversy is moot, and it isn’t. See Storer
v. Brown, 415 U.S. 724, 737 n.8 (“The … election is long over … but this
case is not moot, since the issues properly presented … will persist as
the … statutes are applied in future elections. This is, therefore, a case
where the controversy is capable of repetition, yet evading review.”)
(internal quotation marks omitted).
Nos. 16-1667 & 16-1775 7
Keith, 385 F.3d 729, 736 (7th Cir. 2004) (observing that a
candidate could challenge certain ballot-access restrictions
before attempting to comply with them because “it was
certain that it would cost him more to [comply with the re-
strictions] than if the challenged provisions were invalidat-
ed”) (emphasis added); Lee v. Keith, 463 F.3d 763, 767 (7th
Cir. 2006) (asserting jurisdiction over an independent candi-
date’s suit because the challenged statutes “continue to
restrict potential independent candidacies”). We proceed to
the merits.
B. Full-Slate Requirement
The First Amendment, which constrains state-
government action by incorporation through the Fourteenth
Amendment, “protects the right of citizens to associate and
to form political parties for the advancement of common
political goals and ideas.” Timmons v. Twin Cities Area New
Party, 520 U.S. 351, 357 (1997). That right “means little if a
party can be kept off the election ballot and thus denied an
equal opportunity to win votes.” Williams v. Rhodes, 393 U.S.
23, 31 (1968). Further, because “voters can assert their pref-
erences only through candidates or parties,” their right to
vote “is heavily burdened if that vote may be cast only for
major-party candidates at a time when other parties or other
candidates are clamoring for a place on the ballot.” Anderson
v. Celebrezze, 460 U.S. 780, 787 (1983) (internal quotation
marks omitted).
Laws restricting a party’s ballot access thus burden two
rights: “the right of individuals to associate for the ad-
vancement of political beliefs, and the right of qualified
voters, regardless of their political persuasion, to cast their
8 Nos. 16-1667 & 16-1775
votes effectively. Both of these rights, of course, rank among
our most precious freedoms.” Williams, 393 U.S. at 30.5
We evaluate ballot-access restrictions by weighing
“the character and magnitude of the asserted
injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff
seeks to vindicate” against “the precise inter-
ests put forward by the State as justifications
for the burden imposed by its rule,” taking into
consideration “the extent to which those inter-
ests make it necessary to burden the plaintiff’s
rights.”
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson,
460 U.S. at 789).
Under this flexible standard, the level of scrutiny de-
pends on the regulation at issue: the more severely it bur-
dens constitutional rights, the more rigorous the inquiry into
its justifications. Id. Nondiscriminatory restrictions that
impose only slight burdens are generally justified by the
need for orderly and fair elections. Id. at 433–34. But given
the importance of the rights at stake, a severe restriction on a
party’s access to the ballot must be “narrowly tailored to
serve a compelling state interest.” Wash. State Grange v.
Wash. State Republican Party, 552 U.S. 442, 451 (2008) (quota-
tion marks omitted).
5 The Libertarian Party also challenges the full-slate requirement under
the Equal Protection Clause of the Fourteenth Amendment. Because the
requirement is unconstitutional on other grounds, we don’t address this
claim.
Nos. 16-1667 & 16-1775 9
We have little difficulty concluding that the full-slate re-
quirement severely burdens the First Amendment rights of
minor parties, their members, and voters. As a condition for
ballot access, the requirement forces minor parties to find
and recruit candidates for races they want nothing to do
with. In many instances the minor party must locate candi-
dates for relatively obscure offices like county recorder or
coroner. Moreover, in order to support candidates genuinely
interested in winning (Illinois assures us that the full-slate
requirement isn’t meant to produce sham candidacies), a
party must devote to each candidate the funding and other
resources necessary to operate a full-fledged campaign. To
take the example of Fox’s candidacy for Kane County audi-
tor, running a fully funded candidate for each Kane County
office would have increased the Libertarian Party’s costs
sevenfold.
The full-slate requirement similarly burdens the right of
a candidate to run as the standard bearer for his party.
Although a party’s failure to submit a full slate doesn’t
prevent the candidate from accessing the ballot as an inde-
pendent, party-affiliated campaigns and independent cam-
paigns “are entirely different and neither is a satisfactory
substitute for the other.” Storer v. Brown, 415 U.S. 724, 745
(1974). To give just one example, a party loyal who must run
an independent campaign is denied the ability to quickly
communicate information about his views and values
through association with his party.
Relying on two Supreme Court cases, Illinois argues that
parties and candidates have no right to appear next to each
other on the ballot. See Timmons, 520 U.S. 351; Wash. State
Grange, 552 U.S. 442. But those cases—neither of which
10 Nos. 16-1667 & 16-1775
involved a regulation limiting ballot access—do not stand
for that principle. In Timmons a minor party challenged
Minnesota’s antifusion statute, which prevented a person
from running as the candidate for two parties in the same
election. 520 U.S. at 353–54. The statute barred the minor
party from nominating its chosen candidate because he’d
already filed as a candidate for the state Democratic party.
Id. at 354. The minor party alleged that the statute violated
its political-association rights by denying it the ability to
appear next to its candidate of choice on the ballot.
In rejecting that argument, the Supreme Court observed
the obvious: A party never has the option to select just
anyone as its candidate because a “particular candidate
might be ineligible for office, unwilling to serve, or, as here,
another party’s candidate.” Id. at 359. The Court thus em-
phasized that antifusion laws “do not directly limit the
party’s access to the ballot” but merely “reduce the universe
of potential candidates who may appear on the ballot as the
party’s nominee only by ruling out those few individuals”
already running with another party. Id. at 363. The full-slate
requirement, on the other hand, does directly limit minor
parties’ ballot access. Far from entailing nothing more than a
slight drop in the pool of candidates from which a party can
choose, it prevents minor parties from affiliating with anyone
on the ballot unless they mount numerous additional cam-
paigns.
Washington State Grange was a forced-association case.
The state of Washington adopted an initiative providing that
primary-election ballots would identify each candidate with
his self-designated party preference. 552 U.S. at 444. The law
didn’t allow a party to prevent a candidate from designating
Nos. 16-1667 & 16-1775 11
it as his party preference. In a preenforcement facial chal-
lenge, the state Republican Party argued that the statute
violated its associational rights by usurping its right to
nominate its own candidates and by forcing it to appear on
the ballot alongside candidates it didn’t approve. Id. at 448.
The Supreme Court upheld the statute, reasoning that
Washington might print the ballots in a manner that clarified
the one-way nature of the party-preference designation. Id.
at 455–56. That possibility was enough to defeat the facial
challenge. Id. at 457. But the Court expressly declined to
consider any ballot-access implications the statute might
carry because those issues were outside the question pre-
sented. Id. at 458 n.11. Neither Timmons nor Washington State
Grange questioned the long-recognized right of political
parties to access the ballot.
Because the full-slate requirement—the only one of its
kind in the country—severely burdens the First Amendment
rights of minor parties and their members, it must be “nar-
rowly drawn to advance a state interest of compelling
importance.” Norman v. Reed, 502 U.S. 279, 289 (1992). Illinois
invokes three state interests in defense of the requirement:
promoting political stability, avoiding overcrowded ballots,
and preventing voter confusion. See Storer, 415 U.S. at 732
(affirming the validity of those objectives). Illinois empha-
sizes that these interests are served by reserving the ballot
for parties with at least a modicum of public support.
No one doubts that Illinois’s stated interests are compel-
ling in the abstract, but the full-slate requirement doesn’t
advance them. By creating unwanted candidacies, the
requirement increases political instability, ballot overcrowd-
ing, and voter confusion. As Illinois would tell it, the re-
12 Nos. 16-1667 & 16-1775
quirement exogenously sorts minor parties into two camps:
those that have a bench of ready candidates for every race
and those that don’t. But like other laws, the full-slate re-
quirement shapes the behavior of those it binds. Whatever
its aim, the requirement forces a minor party to field unseri-
ous candidates as a condition of nominating a truly commit-
ted candidate. The Libertarian Party, for example, might
have filled the six other Kane County slots with Fox’s friends
or relatives.
In reality, then, the full-slate requirement does not ensure
that only parties with a modicum of support reach the ballot.
Instead it ensures that the only minor parties on the ballot
are those that have strong public support or are willing and
able to find enough frivolous “candidates” to comply with
the law. To be sure, the full-slate requirement—like any
regulation that increases the cost of ballot access—reduces
the likelihood that a feeble party will secure a ballot position.
But Illinois’s interest in reserving the ballot for strong parties
is directly served by the signature requirement. That regula-
tion—which at 5% of votes cast in the preceding election is
restrictive in its own right—suffices to winnow out weak
parties. Finally, the full-slate requirement doesn’t prevent
ballot overcrowding or voter confusion; to the contrary—it
clutters the ballot with numerous candidates who wouldn’t
otherwise run and who may or may not be sincerely inter-
ested in public office.
The full-slate requirement severely burdens fundamental
constitutional rights and is not narrowly tailored to a com-
pelling state interest. We AFFIRM the judgment of the district
court.