William B. Shipley v. Chicago Board of Elections ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-3511
WILLIAM B. SHIPLEY, NINA MARIE,
and KATHERINE WUTHRICH,
Plaintiffs-Appellants,
v.
CHICAGO BOARD OF ELECTION COMMISSIONERS
and JAMES M. SCANLON,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16-cv-07424 — John Robert Blakey, Judge.
____________________
ARGUED JANUARY 7, 2020 — DECIDED JANUARY 27, 2020
____________________
Before BRENNAN, SCUDDER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. Claims of election fraud are not new
in Illinois. Plaintiffs William B. Shipley and Katherine Wuth-
rich were credentialed election monitors in Chicago during
the 2016 Illinois primary election and Plaintiff Nina Marie
voted in the election. They allege that during the statutorily
mandated post-election audit of electronic voting machines,
2 No. 17-3511
they witnessed rampant fraud and irregularities by the Chi-
cago Board of Election Commissioners’ (the “Board”) em-
ployees conducting the audit. Plaintiffs filed suit in federal
court under 42 U.S.C. § 1983 alleging this post-election audit
fraud violated their right to vote.
The problem with Plaintiffs’ allegations, however, is that
Illinois law expressly precludes the findings of the post-elec-
tion audit from changing or altering the election results. In
other words, no matter how improper the Board employees’
conduct was during the audit, it could not have affected Plain-
tiffs’ right to vote. For this reason, the district court dismissed
the complaint for failure to state a claim. And for the same
reason, we affirm the district court’s judgment.
I. Background
The Illinois Election Code, 10 Ill. Comp. Stat. 5/1-1 et seq.,
provides for the use of Direct Recording Electronic Voting
Systems (DREVS), or, more simply, electronic voting, in elec-
tion precincts during regular and early voting. 10 Ill. Comp.
Stat. 5/24C-1. The electronic voting equipment must be capa-
ble of “instantaneously recording such votes, storing such
votes, producing a permanent paper record and tabulating such
votes at the precinct or at one or more counting stations.” Id.
(emphasis added). The permanent paper record is, as its name
suggests, a paper upon which the machine prints an image of
the votes cast on each ballot electronically recorded on that
machine. Id. § 24C-2. The permanent paper records are then
preserved in the same manner as paper ballots and “shall be
available as an official record for any recount, redundant
count, or verification or retabulation of the vote count.” Id.
§ 24C-12. After the polls close, the DREVS equipment tabu-
lates the total votes and produces an “In-Precinct Totals
No. 17-3511 3
Report,” or a precinct return. Id. The precinct return includes
“the number of ballots cast and votes cast for each candidate
and public question and shall constitute the official return of
each precinct.” Id. § 24C-15.
After an election, the Board randomly tests a small per-
centage—five percent to be exact—of the electronic voting
equipment in service during that election. Section 24C-15 of
the Code, which is at the heart of this appeal, provides the
procedure for the post-election audit of the electronic voting
equipment.
A. The five percent audit
Section 24C-15 covers three topics, as indicated by its title:
“Official Return of Precinct,” “Check of Totals,” and “Audit.”
The section does not contain subdivisions, internal headings,
or otherwise obviously subdivide the topics, but a read of the
section quickly reveals its structure. The first paragraph deals
with the Official Return of Precinct and the Check of Totals,
which are irrelevant for purposes of this appeal.
The second paragraph in section 24C-15 outlines the five
percent audit procedure that we are concerned with here.
“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.” 10 Ill. Comp. Stat. 5/24C-15. The State
Board of Elections, not the local election authority, randomly
selects, based on a mathematical formula, the precincts and
voting devices to be tested. The local election authority
though—here, the Board—conducts the five percent audit.
The procedure for auditing, or testing, the electronic vot-
ing equipment is simple. The Board manually counts the
4 No. 17-3511
votes marked on the permanent paper record and then com-
pares those hand-tallied vote totals to the DREVS-generated
results. See 10 Ill. Comp. Stat. 5/24C-15. If there is a discrep-
ancy, “the cause shall be determined and corrected, and an
errorless count shall be made prior to the official canvass and
proclamation of election results.” Id. If, however, “an errorless
count cannot be conducted” and there continues to be a dif-
ference between the hand tally of the permanent paper record
and the electronically generated totals, the Board “shall im-
mediately prepare and forward to the appropriate canvassing
board a written report explaining the results of the test and
any errors encountered and the report shall be made available
for public inspection.” Id. Finally, section 24C-15 concludes by
expressly providing that 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 procedures set forth in Section
22-9.1 of this Code.” Id. The incorporated section 22-9.1 is dis-
cussed in greater detail below, but for now it is sufficient to
say that the discovery procedures cannot be used to affect
election results.
B. Plaintiffs’ allegations
After the March 15, 2016 primary election in Illinois, the
Board conducted the statutorily mandated five percent audit
from March 23, 2016, through March 29, 2016, at a storage fa-
cility in Chicago. Plaintiffs Shipley and Wuthrich were cre-
dentialed election monitors and attended one or more of these
audits. According to Plaintiffs, they observed troublesome be-
havior.
The Board performed the five percent audits by having
one Board employee read aloud the individual votes from the
permanent paper record while another employee would hand
No. 17-3511 5
record the votes on a tally sheet. The machine-generated final
vote count was allegedly preprinted at the top of the tally
sheet in bold—essentially, according to Plaintiffs, giving away
the answers to the test. The Board employees, Plaintiffs allege,
also used pencil to make the tally marks, permitting the em-
ployees to erase tallies at the end so that their test count would
match the preprinted final count. Or, similarly, employees
would add tallies at the end to make up any difference or just
stop counting once the test count reached the “target” vote
count. Plaintiffs also contend that Board employees actively
attempted to obscure Plaintiffs’ view of the tally sheets. This
improper conduct was “widespread and pervasive” through-
out the observed audits.
Troubled by their observations, Plaintiffs attended an
April 5, 2016 Board meeting for consideration of returns and
proclamation of the results of the primary election. They also
submitted their concerns to the Board in writing in advance
of the public meeting. But Plaintiffs allege that even though
the meeting was supposed to be open for public comment, the
Board closed public comment and did not allow Plaintiffs to
speak. The Board certified the returns and adjourned the
proclamation meeting in “less than two minutes.”
C. The district court proceedings
Plaintiffs1 filed a three-count complaint in federal court.
Count I, brought under 42 U.S.C. § 1983, alleged a violation of
the right to vote. Count II, also brought under § 1983, alleged
a violation of the rights of freedom of association and to peti-
tion the government. In Count III, Plaintiffs sought
1 Rebecca A. Kerlin, Michelle Gale, and Claire Tobin were also named
plaintiffs in the district court but withdrew from the case on appeal.
6 No. 17-3511
declaratory and injunctive relief, requesting that the court
permanently enjoin the Board from further violating the Illi-
nois Election Code.
The Board moved to dismiss pursuant to Federal Rule of
Civil Procedure 12(b)(6) for failure to state a claim. The district
court initially granted in part and denied in part the motion.
Specifically, the court dismissed Count II but found that
Counts I and III sufficiently stated a claim to survive dismis-
sal. The Board moved for reconsideration, suggesting that the
district court misapprehended its argument regarding the
right to vote claim due to “a lack of clarity” in the Board’s in-
itial motion to dismiss. The Board more clearly articulated its
argument that regardless of whether the post-election audit
was properly conducted, the audit cannot—by statute—be
used to amend or change any vote and thus the alleged im-
proprieties could not have affected anyone’s right to vote.
Plaintiffs then amended their complaint in response to the
motion to reconsider, adding some factual allegations in sup-
port of Count I and repleaded the dismissed Count II verba-
tim “to preserve the record for appellate purposes, if neces-
sary.” The Board again moved to dismiss.
Upon reconsideration, and in light of the new motion to
dismiss, the district court agreed with the Board. “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 out-
come of an error in the 5% test count is a public[ly] available
written report.” The court therefore dismissed Count I be-
cause “[n]o matter how flagrantly [the Board] might have
doctored the numbers during its 5% test, that test’s results
could not possibly have affected the election results under
No. 17-3511 7
Illinois law.” As to Count II, the district court incorporated its
previous memorandum and opinion dismissing the count,
which found that Plaintiffs’ allegations did not identify with
whom Plaintiffs were prevented from associating with or any
interference with “petitioning” the government. With the dis-
missal of Counts I and II, the court dismissed Count III be-
cause there was no longer a claim of a deprivation of any fed-
eral constitutional right to support federal jurisdiction.
The court dismissed the complaint with prejudice because
Plaintiffs did not request leave to replead and, in any event,
any attempt to replead would be futile.2
II. Discussion
We review a district court’s grant of a motion to dismiss
for failure to state a claim de novo. Chicago Studio Rental, Inc.
v. Illinois Dep’t of Commerce, 940 F.3d 971, 977 (7th Cir. 2019).
We accept well-pleaded facts as true and draw all reasonable
inferences in the plaintiffs’ favor. Id. To survive a motion to
dismiss, the complaint must “state a claim to relief that is
plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the rea-
sonable inference that the defendant is liable for the miscon-
duct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Plaintiffs allege the deprivation of three constitutional
rights: the right to vote, freedom of association, and the right
to petition the government.3 The focus of Plaintiffs’ lawsuit,
2Plaintiffs do not challenge that the dismissal was with prejudice or
argue that they should be given another opportunity to replead.
3
Plaintiffs’ opening brief makes a cursory, two-sentence reference to
an equal protection claim. To the extent Plaintiffs assert an equal
8 No. 17-3511
and their briefing, is the right to vote claim, but we will ad-
dress each constitutional claim in turn, along with the equita-
ble relief claim.
A. Right to vote
It is undeniable that the right to vote is a fundamental
right guaranteed by the Constitution. See, e.g., Burdick v. Taku-
shi, 504 U.S. 428, 433 (1992). The right to vote is not just the
right to put a ballot in a box but also the right to have one’s
vote counted. United States v. Mosley, 238 U.S. 383, 386 (1915).
“The right to vote can neither be denied outright, nor de-
stroyed by alteration of ballots, nor diluted by ballot-box
stuffing.” Reynolds v. Sims, 377 U.S. 533, 555 (1964) (internal
citations omitted). Plaintiffs cannot state a claim for a viola-
tion of the right to vote, though, because the five percent audit
cannot alter or discard any vote cast. The Illinois Election
Code compels this conclusion.
Because we are interpreting an Illinois statute, we apply
Illinois’s principles of statutory construction. See Doe v. Arch-
diocese of Milwaukee, 772 F.3d 437, 440–41 (7th Cir. 2014)
(“When interpreting a state statute, we apply the same prin-
ciples of statutory construction that a state court would ap-
ply.”). In Illinois, the “primary objective in construing a stat-
ute is to ascertain and give effect to the intent of the legisla-
ture.” JPMorgan Chase Bank, N.A. v. Earth Foods, Inc.,
939 N.E.2d 487, 490 (Ill. 2010). “The plain language of a statute
is the most reliable indication of legislative intent.” Id.
“[W]hen the language of the statute is clear, it must be applied
protection claim on appeal, they have waived the right to argue that claim
because they failed to present it to the district court. See Hale v. Victor Chu,
614 F.3d 741, 744 (7th Cir. 2010).
No. 17-3511 9
as written without resort to aids or tools of interpretation.”
DeLuna v. Burciaga, 857 N.E.2d 229, 236 (Ill. 2006). The analysis
here starts and stops with the plain language of section 24C-
15 and, as incorporated therein, section 22-9.1.
Section 24C-15 provides that if, during the five percent au-
dit of the electronic voting equipment,
an errorless count cannot be conducted and
there continues to be difference in vote results
between the certificate of results produced by
the Direct Recording Electronic Voting System
and the count of the permanent paper records
or if an error was detected and corrected, the
election authority shall immediately prepare
and forward to the appropriate canvassing
board a written report explaining the results of
the test and any errors encountered and the re-
port shall be made available for public inspec-
tion.
10 Ill. Comp. Stat. 5/24C-15. In simpler terms, the statute ex-
pressly contemplates the possibility of discrepancy in the fi-
nal test count and offers only one option: a written report.
Nothing in section 24C-15 permits the Board to use the results
of the five percent audit to in any way change, correct, or even
question the official precinct returns, the certificate of results,
or the proclamation of election results.
If this plain reading of section 24C-15 was not clear
enough on its face, the provision concludes by stating that the
“results of this post-election test shall be treated in the same
manner and have the same effect as the results of the
10 No. 17-3511
discovery procedures set forth in Section 22-9.1 of this Code.”
Id. So we turn to section 22-9.1.
Section 22-9.1 governs the ability of a candidate to petition
for discovery within five days after the last day for proclama-
tion of the results of an election. A petition for discovery in-
cludes a request to test a portion of the automatic tabulating
equipment. But, critical to the effect of the five percent audit,
the
results of the examination and count shall not
be certified, used to amend or change the ab-
stracts of the votes previously completed, used
to deny the successful candidate for the same of-
fice his certificate of nomination or election, nor
used to change the previously declared result of
the vote on a question of public policy.
10 Ill. Comp. Stat. 5/22-9.1. The incorporation by reference of
section 22-9.1 forecloses any argument that Plaintiffs may
have had that section 24C-15 leaves open the possibility to
challenge the official election results. Taken together, section
22-9.1 reaffirms the conclusion that section 24C-15’s five per-
cent audit procedure cannot affect votes.
Plaintiffs devote most of their time to arguing that the dis-
trict court ignored their allegations and demanded a higher
degree of factual pleading than the federal rules require.
Plaintiffs miss the forest for the trees. The issue is not one of
facts, but one of law. No matter how factually detailed, egre-
gious, or willful the misconduct alleged, the five percent audit
cannot affect the election results under Illinois law. Therefore,
Plaintiffs cannot state a plausible claim that the Board de-
prived them of their right to vote.
No. 17-3511 11
We note, parenthetically, that this does not mean that all
allegations of misconduct during a five percent audit are
without recourse entirely. Indeed, such allegations may state
a claim for violation of the Illinois Election Code. But that is a
state law claim for a violation of state law, not a federal claim
for a violation of constitutional rights. “A violation of state
law does not state a claim under § 1983,” and, more specifi-
cally, “a deliberate violation of state election laws by state
election officials does not transgress against the Constitu-
tion.” Kasper v. Bd. of Election Comm’rs of the City of Chicago,
814 F.2d 332, 342 (7th Cir. 1987) (citing Snowden v. Hughes,
321 U.S. 1, 11 (1944)); Hennings v. Grafton, 523 F.2d 861, 864
(7th Cir. 1975) (“It is not every election irregularity, however,
which will give rise to a constitutional claim and an action
under section 1983. Mere violation of a state statute by an elec-
tion official, for example, will not.”). Plaintiffs may have other
avenues available to raise their complaints, but federal court
is not one of them.
B. Waiver of remaining constitutional claims
Plaintiffs also claim that the Board violated their constitu-
tional rights to freely associate and to petition the govern-
ment. But on appeal, Plaintiffs offer only a few cursory sen-
tences in support of their freedom of association and right to
petition the government claims, buried in the middle of other
arguments, and without any adequate explanation at all that
would aid our review. “We will not fill this void by crafting
arguments and performing the necessary legal research.”
Fednav Int’l Ltd. v. Cont’l Ins. Co., 624 F.3d 834, 842 (7th Cir.
2010); see also Fed. R. App. P. 28(a)(8)(A) (requiring appel-
lant’s argument to contain “appellant’s contentions and the
reasons for them, with citations to the authorities and parts of
12 No. 17-3511
the record on which the appellant relies”). Arguments that are
underdeveloped, cursory, and lack supporting authority are
waived. Uncommon, LLC v. Spigen, Inc., 926 F.3d 409, 419 n.2
(7th Cir. 2019) (“As briefed, the argument is terse, free of legal
citation, and vague. It is therefore waived.”); Crespo v. Colvin,
824 F.3d 667, 674 (7th Cir. 2016) (“Moreover, perfunctory and
undeveloped arguments, and arguments that are unsup-
ported by pertinent authority, are waived (even where those
arguments raise constitutional issues).” (quotations omitted)).
Plaintiffs’ arguments on appeal are woefully undeveloped
and therefore waived.
Even if we were to forgive the waiver, Plaintiffs fare no
better on the merits. Plaintiffs have failed to state a plausible
claim that the Board violated their right to freely associate or
their right to petition the government. We briefly address
each constitutional claim.
1. Freedom of association
The Constitution protects two forms of free association.
“The first, freedom of expressive association, arises from the
First Amendment and ensures the right to associate for the
purpose of engaging in activities protected by the First
Amendment.” Montgomery v. Stefaniak, 410 F.3d 933, 937 (7th
Cir. 2005) (citing Roberts v. United States Jaycees, 468 U.S. 609,
617–18 (1984)). “The second, freedom of intimate association,
protects the right ‘to enter into and maintain certain intimate
human relationships.’” Id. (quoting Roberts, 468 U.S. at 617).
We assume that Plaintiffs assert the first variety. The freedom
of expressive association accords “protection to collective ef-
fort on behalf of shared goals” to help “in preserving political
and cultural diversity and in shielding dissident expression
from suppression by the majority.” Roberts, 468 U.S. at 622.
No. 17-3511 13
Certainly, Plaintiffs allege a collective effort to monitor elec-
tions on behalf of their shared goal to promote election integ-
rity. But Plaintiffs do not allege how they were prevented
from associating or with whom they were prevented from as-
sociating. Without more, Plaintiffs have failed to state a claim
that the Board violated their right to freedom of association.
2. Right to petition the government
“The right to petition the government for redress of griev-
ances is found in the First Amendment to the Constitution.”
Hilton v. City of Wheeling, 209 F.3d 1005, 1006 (7th Cir. 2000).
“The right to petition allows citizens to express their ideas,
hopes, and concerns to their government and their elected
representatives ….” Borough of Duryea v. Guarnieri, 564 U.S.
379, 388 (2011). Although “various levels of public participa-
tion in various kinds of policy decisions may be” sensible, the
Supreme Court “has never held, and nothing in the Constitu-
tion suggests it should hold, that government must provide
for such participation.” Minnesota State Bd. for Cmty. Colls. v.
Knight, 465 U.S. 271, 285 (1984). “[T]he rights to speak, associ-
ate, and petition [do not] require government policymakers to
listen or respond to individuals’ communications on public
issues.” Id. “So while the government may not interfere with
the right to petition, it need not grant the petition, no matter
how meritorious it is.” Hilton, 209 F.3d at 1007 (internal cita-
tions omitted).
Plaintiffs’ primary, if not only, allegation regarding the
right to petition the government is that they were prevented
from publicly commenting at the April 5, 2016 proclamation
meeting before the Board certified the precinct returns. But
elsewhere in the amended complaint, Plaintiffs allege that
they voiced their objections to the Board shortly after the five
14 No. 17-3511
percent audit and before the meeting, and also that they sub-
mitted their observations in writing in advance of the public
meeting. “A petition conveys the special concerns of its au-
thor to the government and, in its usual form, requests action
by the government to address those concerns.” Borough of
Duryea, 564 U.S. at 388–89. Thus, Plaintiffs’ own allegations
doom their claim. Plaintiffs were in fact able to petition the
Board for redress of their grievances. That the Board did not
take any action, or at least to the satisfaction of Plaintiffs, is of
no moment. It seems, as best we can discern, that Plaintiffs’
only complaint is that they were not able to petition the Board
at their desired time and place, not that they were prohibited
from petitioning the government. And without any help from
Plaintiffs on this score, we decline to read any further into
their claim.
C. Equitable relief
Finally, Plaintiffs sought a declaration regarding the par-
ties’ legal rights and liabilities with respect to the Board’s al-
leged noncompliance with section 24C-15 and a permanent
injunction enjoining the Board from further violating the Illi-
nois Election Code. The district court found that having dis-
missed the constitutional claims, no “federal case or contro-
versy” remained to support jurisdiction and dismissed the de-
claratory judgment count. Plaintiffs now argue on appeal, for
the first time, that state law remedies are inadequate to ad-
dress “the violations to federal and constitutional rights” al-
leged in this lawsuit. The argument was not presented to the
district court and is therefore waived. Owens v. Auxilium
Pharm., Inc., 895 F.3d 971, 974 (7th Cir. 2018). Notwithstanding
the issue of waiver, Plaintiffs’ argument fails.
No. 17-3511 15
The Declaratory Judgment Act permits a federal court to
award a declaratory judgment only in “a case of actual con-
troversy.” 28 U.S.C. § 2201(a). This is the same case-or-contro-
versy limitation placed on federal jurisdiction under Arti-
cle III. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127
(2007). Federal courts have “no supervisory powers and no
authority to instruct the Board how to follow state law.”
Kasper, 814 F.2d at 342.
And with respect to the prospective injunctive relief Plain-
tiffs’ seek, the future harm “must be both real and immediate,
not conjectural or hypothetical.” City of Los Angeles v. Lyons,
461 U.S. 95, 102 (1983) (quotations omitted). “For purposes of
standing to seek injunctive relief against future harm, courts
generally assume that litigants ‘will conduct their activities
within the law and so avoid prosecution and conviction.’”
Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (quot-
ing O’Shea v. Littleton, 414 U.S. 488, 497 (1974)). Without the
dismissed constitutional claims, Plaintiffs “have alleged noth-
ing more than garden variety election irregularities that could
have been adequately dealt with through the procedures set
forth in [Illinois] law.” Bodine v. Elkhart Cty. Election Bd.,
788 F.2d 1270, 1272 (7th Cir. 1986).
D. Motion to strike
There is one other matter we must address: the Board’s
pending motion to strike Plaintiffs’ appellate reply brief.
Plaintiffs asked this court for leave to amend their filed reply
brief and indicated that Plaintiffs wished to “add newly
found case law and any associated analysis to their reply
brief.” We denied the motion and in unequivocal terms “de-
cline[d] to permit the appellants to make substantive changes
to their reply brief at this late stage.” Plaintiffs were, however,
16 No. 17-3511
permitted to correct the procedural deficiencies in their reply
brief that the clerk previously identified. Plaintiffs willfully
disregarded our order and went ahead and resubmitted their
reply brief with numerous substantive changes, without any
signal they did so. This prompted the instant motion to strike
and we took the motion with the case.
Given our preceding discussion and our holding, we deny
the Board’s motion as moot. In doing so, we do not counte-
nance Plaintiffs’ behavior. “A party must file one brief with
the court, and to alter one version without informing the court
is unethical.” Khan v. Midwestern Univ., 879 F.3d 838, 846 (7th
Cir. 2018). We remind counsel, though we should not have to,
that they must comply with the court’s orders.
III. Conclusion
Section 24C-15, and section 22-9.1 by incorporation, of the
Illinois Election Code precludes the post-election audit of five
percent of the electronic voting equipment from affecting any
vote cast or the ultimate election results, and thus Plaintiffs
cannot state a right to vote claim. Plaintiffs simply do not
plead a plausible claim that the Board violated their right to
freely associate or right to petition the government. We there-
fore affirm the district court’s dismissal of Plaintiffs’ second
amended complaint with prejudice.