Jay Stone v. Board of Election Commissione

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-2733
JAY STONE, et al.,
Plaintiffs-Appellants,
v.
BOARD OF ELECTION COMMISSIONERS
FOR THE CITY OF CHICAGO,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 10-cv-7727 — Robert M. Dow, Jr., Judge.
____________________
ARGUED FEBRUARY 19, 2014 — DECIDED APRIL 25, 2014
____________________
Before BAUER, FLAUM, and HAMILTON, Circuit Judges.
FLAUM, Circuit Judge. Candidates for Chicago mayor must
submit nominating petitions signed by at least 12,500 regis-
tered voters to appear on the ballot for the general election.
In this case, we consider whether Chicago’s ballot access
scheme violates rights guaranteed by the First and Four-
teenth Amendments. The district court, concluding that the
2 No. 13-2733
scheme was constitutional, dismissed the case for failure to
state a claim. We affirm.
I
Under Illinois law, candidates for Chicago mayor, city
treasurer, or city clerk must gather signatures from 12,500
“legal voters of the city” to have their name printed on the
ballot. 65 ILCS 20/21-28(b). This figure amounts to just under
1% of the 1.3 million or so registered voters in Chicago. As a
proportion of active voters, the number is somewhat higher;
12,500 is approximately 2.7% of the number of votes cast in
the 2007 mayoral election and 2.1% of those cast in 2011. The
precise percentages are not so important—in practice, can-
didates are advised to give themselves some margin for er-
ror, in case of subsequent legal challenges, see Krislov v. Red-
nour, 226 F.3d 851, 859–60 (7th Cir. 2000)—but, as we shall
see, they are helpful to situate Chicago’s requirement among
other ballot access schemes that have been subject to consti-
tutional challenge. Candidates have ninety days in which to
gather their signatures, 10 ILCS 5/10-4, and voters may not
sign more than one nominating petition for the same office
in a single election cycle, 10 ILCS 5/10-3; 65 ILCS 20/21-28(c).
Chicago’s most recent general election took place in Feb-
ruary 2011. Twenty candidates submitted nominating peti-
tions to run for mayor. See Eric Zorn, My Early Line on the
Mayor’s Race, Chi. Tribune (Nov. 23, 2010),
http://blogs.chicagotribune.com/news_columnists_ezorn/201
0/11/earlyline.html. Among the hopefuls were four of the
plaintiffs: Howard Ray, Jay Stone, William Walls, and
Fredrick White. (The fifth plaintiff, Denise Denson, is a Chi-
cago voter.) Of the four candidate-plaintiffs, however, only
Walls gathered enough signatures to appear on the February
No. 13-2733 3
ballot. Ray, Stone, and White managed just 2625, 250, and
10,200 valid signatures, respectively, and were disqualified. 1
The plaintiffs promptly sued to enjoin the 12,500-
signature requirement and declare it unconstitutional. On
January 10, 2011, the district court denied their motion for a
preliminary injunction. The plaintiffs filed an interlocutory
appeal, but by the time the case reached our court the Febru-
ary election had come and gone—Rahm Emanuel prevailed,
Walls came in sixth—and we dismissed their appeal as moot.
643 F.3d 543 (7th Cir. 2011).
The lawsuit then returned to the district court, where the
plaintiffs amended their complaint to encompass not just the
12,500-signature requirement itself, but also the ninety-day
window for collecting signatures and the rule that a given
voter cannot sign more than one candidate’s petition in any
election cycle. The plaintiffs claimed that these requirements
“amplified” the already-heavy burden of gathering the sig-
natures. The district court, however, concluded that their
claims had been “soundly rejected by extensive Supreme
Court and Seventh Circuit precedent” and on the defend-
ant’s motion dismissed the case. 955 F. Supp. 2d 886, 900
(N.D. Ill. 2013). Once again, the plaintiffs appeal.
II
We review the legal sufficiency of the plaintiffs’ com-
plaint de novo, accepting all well-pleaded allegations as true
and making the usual inferences in their favor. Navarro v.
Neal, 716 F.3d 425, 429 (7th Cir. 2013).
1 A sixth plaintiff, Frank Coconate, sought to run for city clerk in 2011; he
filed only 61 signatures and was also disqualified. Coconate dropped out
of the case when the plaintiffs filed their third amended complaint.
4 No. 13-2733
A
It is well-settled that “[t]he impact of candidate eligibility
requirements on voters implicates basic constitutional
rights” to associate politically with likeminded voters and to
cast a meaningful vote. Anderson v. Celebrezze, 460 U.S. 780,
786 (1983). But “not all restrictions … on candidates’ eligibil-
ity for the ballot impose constitutionally-suspect burdens.”
Id. at 788. “States may, and inevitably must, enact reasonable
regulations of parties, elections, and ballots to reduce elec-
tion- and campaign-related disorder.” Timmons v. Twin Cities
Area New Party, 520 U.S. 351, 357 (1997).
The Supreme Court has often stated that in this area
there is no “litmus-paper test” to “separate valid from inva-
lid restrictions.” Anderson, 460 U.S. at 789 (quoting Storer v.
Brown, 415 U.S. 724, 730 (1974)). Rather, a court must make a
practical assessment of the challenged scheme’s justifications
and effects:
[A] court … must first consider the character and
magnitude of the asserted injury to the rights protect-
ed by the First and Fourteenth Amendments that the
plaintiff seeks to vindicate. It then must identify and
evaluate the precise interests put forward by the State
as justifications for the burden imposed by its rule. In
passing judgment, the [c]ourt must not only deter-
mine the legitimacy and strength of each of those in-
terests; it also must consider the extent to which those
interests make it necessary to burden the plaintiff’s
rights. Only after weighing all these factors is the re-
viewing court in a position to decide whether the
challenged provision is unconstitutional.
No. 13-2733 5
Id.; see also Navarro, 716 F.3d at 430; Lee v. Keith, 463 F.3d 763,
768 (7th Cir. 2006).
Practically speaking, much of the action takes place at the
first stage of Anderson’s balancing inquiry. If the burden on
the plaintiffs’ constitutional rights is “severe,” a state’s regu-
lation must be narrowly drawn to advance a compelling
state interest. Burdick v. Takushi, 504 U.S. 428, 434 (1992). If
the burden is merely “reasonable” and “nondiscriminatory,”
by contrast, the government’s legitimate regulatory interests
will generally carry the day. Id. Even this rule can only take
us so far, though, for there is no “litmus test for measuring
the severity of a burden that a state law imposes,” either.
Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008).
B
With these principles in mind, we turn to Chicago’s ballot
access scheme. The plaintiffs argue that requiring candidates
to collect 12,500 signatures in ninety days severely burdens
“Average Joes” and “Janes”, outsider candidates who cannot
draw on an existing political infrastructure or afford to hire
persons (called “circulators”) to collect signatures on their
behalf. They also argue that Chicago’s requirements are
much more onerous than those in other large cities. For ex-
ample, they tell us that Los Angeles requires mayoral candi-
dates to obtain 1000 signatures in twenty-five days—that
number can be reduced to 500 if the candidate pays a $300
filing fee. Also, unlike Chicago, Los Angeles apparently al-
lows voters to sign more than one nominating petition in a
given election. See Los Angeles, Cal., Election Code §§ 307,
309, 310 (2012), available at http://cityclerk.lacity.org/election/
Election_Code.pdf.
6 No. 13-2733
Illinois enacted its 12,500-signature requirement, now
codified at 65 ILCS 20/21-28(b), in August 2005. This change
appears to have been the legislature’s attempt to make the
electoral process more open, not less—before 2005, interest-
ed candidates had to amass twice as many signatures
(25,000) to get on the ballot. See Findings and Decision Re-
garding the Nomination Papers of Jack J. McInerney ¶10.I,
No. 03-EB-MUN-1 (Bd. of Election Comm’rs of City of Chi.
Jan. 14, 2003), available at http://www.chicagoelections.com/
dm/general/document_2701.pdf; Steve Neal, Editorial,
Change Unfair Petition Rules: Candidates for City Offices Need
25,000 Signatures to Run, Chi. Sun-Times, July 29, 2002, at 25.
As one of the bill’s sponsors explained:
The earlier requirement to run for Mayor of the City
of Chicago, 25 thousand signatures, was almost a full
percent of the populace and we thought that was too
high.
We thought that created a situation [in] which many
people who might legitimately stand for that office
would not be able to meet the signature requirement.
And we think 12,500 gives people a much better op-
portunity to stand for one of those municipal offices
in Chicago.
94th Ill. Gen. Assembly, House Proceedings, May 28, 2005, at
12 (statement of Rep. Currie).
Although interesting, this history is by no means disposi-
tive; half of a severe burden can still be severe. (By the same
token, the fact that Los Angeles has chosen an arguably more
lenient approach to ballot qualification says little about the
burden imposed by Chicago’s scheme.) What is ultimately
No. 13-2733 7
important is not the absolute or relative number of signa-
tures required but whether a “reasonably diligent candidate
could be expected to be able to meet the requirements and
gain a place on the ballot.” Bowe v. Bd. of Election Comm’rs of
City of Chi., 614 F.2d 1147, 1152 (7th Cir. 1980) (citing Storer,
415 U.S. at 742). Like the district court, we find that the an-
swer to that question is yes.
“[B]allot access history is an important factor in deter-
mining whether restrictions impermissibly burden the free-
dom of political association.” Lee, 463 F.3d at 769. So it is in-
structive that, since 2005, a good number of candidates have
been able to satisfy Chicago’s ballot requirements. In fact,
nine mayoral candidates successfully obtained 12,500 valid
signatures for the February 2011 election, although three of
them dropped out before election day. Even six candidates is
a healthy field; Chicagoans had not had so many choices at
the polls since at least 1975. 2
We note too that one of the nine mayoral candidates who
qualified for the municipal general election in 2011, William
Walls, is a plaintiff in this case. Walls appeared on the ballot
in February and received 5343 votes. He now represents that
complying with the signature requirement, though achieva-
ble, was “onerous and restrictive.” But like the Supreme
Court in American Party of Texas v. White, we are skeptical of
claims that ballot access laws “are too onerous … where
2 Three mayoral candidates appeared on the general election ballot in
2007, four in 2003, two in 1999, four in 1995, and four in 1991. Interested
readers can find information about city elections dating back to 1975 by
visiting the Chicago Democracy Project, www.chicagodemocracy.org/
ChooseElection.jsp (last visited Apr. 24, 2014).
8 No. 13-2733
[one] of the original party plaintiffs” himself “satisfied these
requirements.” 415 U.S. 767, 787 (1974).
In short, the fact that nine candidates satisfied 65 ILCS
20/21-28(b) is powerful evidence that the burden of gather-
ing 12,500 signatures in ninety days is not severe. Compare
Lee v. Keith, where we struck down a signature requirement
for the Illinois legislature that not a single independent can-
didate had been able to satisfy in twenty-five years. 463 F.3d
at 765. The present case is more like Libertarian Party of Illi-
nois v. Rednour, 108 F.3d 768, 775 (7th Cir. 1997), in which
“two third-party candidates … gained access to the 1994 Illi-
nois general election ballot” under the challenged ballot
laws, leading us to conclude that “the requirements d[id] not
pose an insurmountable obstacle to the [petitioner’s] access.”
A twist which might be thought to differentiate our case
from Lee or Rednour—or, for that matter, from the Illinois bal-
lot access schemes previously considered by the Supreme
Court, see Norman v. Reed, 502 U.S. 279 (1992); Illinois Board of
Elections v. Socialist Workers Party, 440 U.S. 173 (1979); Jackson
v. Ogilvie, 325 F. Supp. 864 (N.D. Ill.), aff’d 403 U.S. 925 (1971);
Moore v. Ogilvie, 394 U.S. 814 (1969)—is that Chicago’s
mayoral elections are, by statute, nonpartisan. See 65 ILCS
20/21-5(a). This means that every office seeker, not just inde-
pendent or third-party candidates, must meet the same sig-
nature requirement in the same time frame and from the
same pool of voters.
One might therefore understand the nominating process
for Chicago mayor as roughly analogous to a nonpartisan
“blanket primary.” In a blanket primary, “the State deter-
mines what qualifications it requires for a candidate to have
a place on the primary ballot …. Each voter … may then vote
No. 13-2733 9
for any candidate, and the top two vote getters (or however
many the state prescribes) then move on to the general elec-
tion.” Cal. Democratic Party v. Jones, 530 U.S. 567, 585–86
(2000). Effectively, what Illinois has chosen to do in Chicago
is permit any mayoral contender to take part in a ninety-day
version of a blanket primary, and further prescribed that on-
ly those who receive 12,500 “votes”—that is, signatures—in
the process can advance to the general election. Cf. Munro v.
Socialist Workers Party, 479 U.S. 189 (1986) (approving of
Washington’s requirement that a minor-party candidate re-
ceive at least 1% of the vote in a blanket primary in order to
qualify for the ballot). As compared to a traditional party-
primary system, Chicago’s ballot access scheme could even
be seen as equalizing the burden between entrenched candi-
dates and outsiders, who now stand on the same footing for
ballot qualification purposes.
There is no need to pursue this analogy too far, however.
Chicago’s signature requirement is not a severe burden un-
der a traditional framework. Recall that 12,500 signatures is
about 1% of the total number of registered voters in Chicago
or (depending on turnout) about 2.5% of the votes cast in the
last mayoral election. The Supreme Court has approved of
signature requirements as high as 5% of the eligible voting
base. See Jenness v. Fortson, 403 U.S. 431, 442 (1971). Indeed,
the Court later approved of an Illinois requirement that mi-
nor-party candidates in the Cook County suburbs obtain
25,000 signatures to qualify for the ballot. 25,000 corre-
sponded to “only slightly more than 2%” of suburban vot-
ers,” which the Court observed was “a considerably more
lenient restriction than the [5% requirement] we upheld in
Jenness.” Norman, 502 U.S. at 295.
10 No. 13-2733
In light of cases like Jenness and Norman, we have said
that plaintiffs “cannot argue that” even a “5% petitioning
requirement is severe on its face.” Rednour, 108 F.3d at 775;
see also Lee, 463 F.3d at 771 (observing that Jenness sets some-
thing of an “outer limit” for signature requirements). And
the two other challenged features of Chicago’s scheme—the
ninety-day collection period and the one-voter, one-
signature rule—do not transform an otherwise reasonable
1% signature requirement into a severe one.
Ninety days does not strike us as an excessively short
time to collect 12,500 signatures, particularly when this
schedule applies equally to every candidate. We previously
saw no problem with a ninety-day window to collect 25,000
signatures. Nader v. Keith, 385 F.3d 729, 736 (7th Cir. 2004).
The Supreme Court has approved of a shorter period to col-
lect a similar number. White, 415 U.S. at 786–87 (fifty-five
days and 22,000 signatures). The law the Court upheld in
Jenness gave candidates twice as long to circulate petitions
(180 days) as Chicago does here, but the signature require-
ment (5% of eligible voters) was proportionally about five
times greater than Chicago’s. 403 U.S. at 433–434. And at
perhaps the furthest extreme, the Court has said that “gath-
ering 325,000 signatures in 24 days would not appear to be
an impossible burden,” at least so long as the pool of eligible
voters was large enough that the required percentage of sig-
natures was not more than 5%. Storer, 415 U.S. at 740.
Nor do we believe that the one-voter, one-signature rule
acts as a “suffocating restriction[] … upon the free circula-
tion of nominating petitions.” Jenness, 403 U.S. at 438. True, a
type of one-signature rule caused us some concern in Lee v.
Keith, but for reasons that do not apply here. Lee involved a
No. 13-2733 11
requirement that independent candidates for the Illinois leg-
islature collect signatures equal in amount to 10% of the
votes cast in the last election. The petitions were due ninety-
two days before the party primaries. Anyone who signed an
independent’s petition, however, was disqualified from vot-
ing in the primaries. 463 F.3d at 765. We concluded that
“[o]nly the most committed supporters of an independent
candidate would be willing to sign on condition of primary
disenfranchisement, especially so early in the political sea-
son.” Id. at 771.
The choice Chicago voters face is not nearly so fraught.
The city’s nomination scheme applies across the board, not
just to independents; every candidate files his or her nomi-
nating petition at the same point in the election cycle. As a
result, a voter who signs her preferred candidate’s petition is
not disadvantaged in any other aspect of the electoral pro-
cess; she simply participates in nominating candidates on
par with all eligible voters. In this context, the one-voter,
one-signature rule is “nothing more than a prohibition
against any elector’s casting more than one vote in the pro-
cess of nominating candidates for a particular office.” White,
415 U.S. at 785; cf. Storer, 415 U.S. at 741 (“[A] State may con-
fine each voter to one vote in one primary election.”).
Again, nine mayoral candidates, including one of the
plaintiffs, successfully qualified for the ballot in the 2011
election—far more than we would expect from an electoral
system designed to “freeze the political status quo.” Jenness,
403 U.S. at 438. And Chicago’s signature requirement, even if
it is stricter than other large cities’ approaches, fits comforta-
bly within the range of schemes that our court and the Su-
preme Court have previously held to be constitutional.
12 No. 13-2733
While it can be “difficult to rely heavily on precedent in
evaluating [ballot] restrictions, because there is great vari-
ance among the states’ schemes,” Nader, 385 F.3d at 735, here
both case law and common sense point in the same direc-
tion. We therefore hold that Chicago’s ballot access rules for
mayoral candidates impose only “reasonable, nondiscrimi-
natory restrictions” on voters’ and candidates’ constitutional
rights. Burdick, 504 U.S. at 434.
From this point, our conclusion that Chicago’s scheme is
constitutional quickly follows. There is no question that the
12,500-signature requirement and accompanying rules
“serve the important, interrelated goals of preventing voter
confusion, blocking frivolous candidates from the ballot, and
otherwise protecting the integrity of elections.” Navarro, 716
F.3d at 431; see also Anderson, 460 U.S. at 788 n.9 (“The State
has the undoubted right to require candidates to make a pre-
liminary showing of substantial support in order to qualify
for a place on the ballot.”). The plaintiffs complain that there
is no evidence that a more crowded ballot would in fact
cause voter confusion, but on this point the Supreme Court
has been clear: legislatures do not need to make “a particu-
larized showing of the existence of voter confusion, ballot
overcrowding, or the presence of frivolous candidacies prior
to the imposition of reasonable restrictions on ballot access.”
Munro, 479 U.S. at 194–95. Even a “speculative concern that
altering the challenged signature requirement would lead to
a large number of frivolous candidates … and, consequently,
voter confusion is sufficient.” Navarro, 716 F.3d at 432.
In Protect Marriage Illinois v. Orr, 463 F.3d 604 (7th Cir.
2006), we said that:
No. 13-2733 13
A state is not required to list everyone who wants to
stand for office.… It can impose reasonable re-
strictions on access, as by requiring … that the would-
be candidate demonstrate significant support for his
candidacy by submitting thousands (or, depending on
the size of the electorate, tens or even hundreds of
thousands) of petitions in order to prevent the voter
confusion that would be engendered by too long a
ballot.”
Id. at 607–08. Illinois has chosen to require just that for the
office of Chicago mayor. The state’s approach undoubtedly
places some burden on candidates and their supporters, who
must work to gather the necessary signatures. But the
scheme leaves room for reasonably diligent candidates to get
on the ballot even as it directly furthers the state’s legitimate
interests in avoiding ballot overcrowding and preventing
voter confusion. These interests are strong enough to justify
the reasonable, nondiscriminatory burden on the plaintiffs’
First and Fourteenth Amendment rights.
C
At oral argument, the plaintiffs placed a great deal of
weight on Mandel v. Bradley, 432 U.S. 173 (1977) (per curiam),
although they failed to cite it in their opening brief (they did
not file a reply). That case involved a constitutional chal-
lenge to Maryland’s ballot access rules for independents. The
three-judge district court had felt bound by an earlier case,
Tucker v. Salera, 424 U.S. 959 (1976), in which the Supreme
Court summarily affirmed a lower-court decision striking
down Pennsylvania’s ballot access scheme solely because the
scheme required independents to submit signatures far in
advance of the general election. 432 U.S. at 175. The district
14 No. 13-2733
court in Mandel believed that Salera obligated it to strike
down Maryland’s law, which contained a similar early-filing
deadline. Id. But the Supreme Court emphasized that “a
summary affirmance is an affirmance of the judgment only,”
so that Salera’s rationale could “not be gleaned solely from
the opinion below.” Id. at 176. Furthermore, it noted that
Maryland’s scheme was distinguishable from Pennsylvania’s
because Maryland gave candidates a longer period to gather
signatures. Id. at 177. Accordingly, the Court returned the
case to the district court so it could “undertake an independ-
ent examination of the merits.” Id.The plaintiffs also directed our attention to an un-
published case in which the Eleventh Circuit reversed the
district court for reasoning, in effect, that “if a 5% [signature]
requirement was constitutional, [Georgia’s] lower 1% re-
quirement must also be constitutional.” Green Party of Ga. v.
Georgia, No. 13-11816, 2014 WL 30742, at *1 (11th Cir. Jan. 6,
2014) (per curiam). This analysis, the court noted, employed
just the “type of ‘litmus-paper test’ the Supreme Court re-
jected in Anderson [v. Celebrezze].” Id. at *2 (quoting 460 U.S.
at 789).
Neither of these cases is relevant here. If the district court
had dismissed this case merely because other, more numer-
ous signature requirements than Chicago’s had previously
been held constitutional, or if it had relied largely on reason-
ing “gleaned” from summary affirmances, we might agree
that reversal would be appropriate. But that is not what
happened at all. The district court applied Anderson v. Cele-
brezze’s balancing test (the same test the Supreme Court in
Mandel and the Eleventh Circuit in Green Party of Georgia or-
dered the district court to apply on remand), duly balanced
No. 13-2733 15
the burden on voters’ rights against the state’s interests, and
determined—correctly—that the plaintiffs had not stated a
plausible claim for relief. As in Gjersten v. Board of Election
Commissioners, we are confident that the district court “ap-
plied no ‘litmus-paper test.’” 791 F.2d 472, 477 (7th Cir. 1986).
Also at oral argument, plaintiffs’ counsel stressed that,
because this case was dismissed at such an early stage,
judgments about what might or might not be burdensome
are premature. He urged us to send the case back to the dis-
trict court, so his clients could build a record on the signa-
ture requirement’s severity. Yet there is nothing remarkable
about granting a motion to dismiss in an election-law case if
careful consideration of the complaint shows that the plain-
tiff has not stated a claim. See, e.g., Navarro, 716 F.3d at 425;
Libertarian Party of N.D. v. Jaeger, 659 F.3d 687 (8th Cir. 2011);
Lawrence v. Blackwell, 430 F.3d 368 (6th Cir. 2005); Rubin v.
City of Santa Monica, 308 F.3d 1008 (9th Cir. 2002); Wit v. Ber-
man, 306 F.3d 1256 (2d Cir. 2002). Having determined that
Chicago’s ballot access scheme is constitutional, there is no
need to remand the case for further proceedings.
* * *
The judgment of the district court is
AFFIRMED.