Citizens for John W. Moore Party v. Board of Election Commissioners of the City of Chicago, Defendants , 781 F.2d 581 ( 1986 )

COFFEY, Circuit Judge.

This order constitutes a certification of a question of law to the Supreme Court of Illinois.

Plaintiff John W. Moore was a democratic candidate in the March, 1982, primary election for the office of state senator for the 16th Legislative District. Although Moore and his supporters circulated petitions for his candidacy, he withdrew his name for the state senate nomination one month before the primary. After withdrawing his nomination for the office of state senator, Moore and his supporters decided to form a new political party (Citizens for John W. Moore Party) and to circulate petitions to place Moore on the ballot for the general election in November, 1982, as a candidate for the Illinois House of Representatives in the 31st House District. To qualify for a place on the ballot, Moore was required to collect 1,500 valid signatures; Moore collected 3,829 signatures.

The Board of Election Commissioners invalidated 1,493 signatures for reasons unrelated to this appeal. 975 signatures were invalidated because Moore had previously circulated nominating petition sheets in the democratic primary. After the signatures were invalidated, Moore was 139 signatures short of qualifying for a place on the ballot.

In invalidating the 975 signatures collected by Moore, the Board relied on Ill.Rev. Stat. ch. 46, § 10-4 (1981), which provides in relevant part: “No person shall circulate or certify petitions for candidates for more than one political party, or for an independent candidate or candidates in addition to one political party, to be voted upon at the next primary or general election.” The Board set aside the signatures Moore had collected because the Moore Party was the second party for which Moore had solicited signatures in the 1982 election season (the democratic party was the first party).

Moore filed suit in the Federal District Court arguing that § 10-4 violated the First and Fourteenth Amendments and the Equal Protection Clause of the United States Constitution and was unconstitutionally vague. The district court rejected all of his arguments, 599 F.Supp. 662. As part of the analysis of the First and Fourteenth Amendment claims, the district court found that § 10-4 forwarded three state interests: (1) the state interest in insisting that intra-party competition be settled before the general election to avoid factionalism and party splintering; (2) the state interest in avoiding election abuse; and (3) the state interest in preventing voter confusion. As to the voter confusion interest, the district court wrote:

“The circulator provision is designed to provide stability. Voter confusion can easily occur (here in the same area) as circulators are allowed to switch sides in the same campaign. Abuse or at least confusion can occur if professional circu-lators serve competing interests espousing divergent views. Just as voters may be limited to nominating one candidate or supporting one party in a primary election, and candidates may be limited to running under the banner of one party, so too are circulators, whose importance to a political party or campaign is significant, limited to campaigning on behalf of one political party or independent candidate in the same election. The circulator restriction provision is a permissible integral part of an overall legislative scheme to regulate elections.”

Moore renewed his equal protection, First and Fourteenth Amendment, and vagueness arguments in the United States Court of Appeals. As to the state’s interest in preventing voter confusion, the question was raised whether “no person” in § 10-4 applies to signatures gathered by candidates. If the statute does not apply to candidates, the Board acted improperly in invalidating the 975 signatures collected by Moore. If, on the other hand, the statute applies to candidates, questions are raised as to whether the statute serves an important government interest when applied to candidates and whether the statute directly interferes with the candidate’s ability to communicate with the voters. Our research has failed to reveal controlling precedent by the Supreme Court of Illinois on the question of whether “no person” in Ill.Rev.Stat. ch. 46, § 10-4 (1981) applies to signatures gathered by candidates. Accordingly, pursuant to Rule 20 of the Illinois Supreme Court Rules (adopted August 30, 1983) this court respectfully requests the Supreme Court of Illinois to provide this court with instructions concerning the following question of law which may be determinative in this case:

Does Ill.Rev.Stat. ch. 46, § 10-4 (1981) apply to signatures gathered by candidates for office?

The Clerk of this court will transmit to the Supreme Court of Illinois a certified copy of this order; a copy of the briefs and appendix submitted to this court; and, if necessary, the record in this matter.

Question Certified