Sangmeister v. Woodard
| Decision Date | 07 November 1977 |
| Docket Number | 77-1366 and 76-1953,Nos. 77-1365,s. 77-1365 |
| Citation | 565 F.2d 460 |
| Parties | George E. SANGMEISTER et al., Plaintiffs-Appellees, v. Clara Hartley WOODARD, County Clerk of Will County, Illinois, Defendant- Appellant, The State Board of Elections of the State of Illinois, Intervening Defendant-Appellant. William WALSH, Plaintiff-Appellee, v. The BOARD OF ELECTION COMMISSIONERS OF CHICAGO et al., Defendants-Appellants, Illinois Association of County Clerks and Recorders, Intervening Defendant- Appellant. Stephen J. CULLITON, Plaintiff-Appellee, v. The BOARD OF ELECTION COMMISSIONERS OF the COUNTY OF DuPAGE, and Raymond MacDonald, William Toerpe, Jr., and Jean McNamara, Individually and as Commissioners of the Board of Election Commissioners of the County of DuPage, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard A. Devine, John H. Bickley, Jr., Michael L. Levinson, Andrew M. Raucci, Chicago, Ill., Thomas C. Kelleghan, Wheaton, Ill., Joseph S. Wright, Jr., Chicago, Ill., for defendant-appellant.
Joseph M. Cernugel, Joliet, Ill., James T. Ryan, John Tobias Dixon, Chicago, Ill., Thomas Sisul, Downers Grove, Ill., Maurice J. McCarthy, Chicago, Ill., for plaintiffs-appellees.
Before SPRECHER, TONE and BAUER, Circuit Judges.
This appeal challenges the decisions of two district courts holding that the practice by Illinois County Clerks of placing their own political party in the first or top position on voting ballots in all general elections violates the equal protection clause.
This appeal actually involves three different suits brought against three different County Clerks or County Boards of Election Commissioners in Illinois. Initially, there is the consolidated appeal of two district court cases, Sangmeister v. Woodard (Will County) and Culliton v. DuPage County Board of Election Commissioners (DuPage County), reported at 419 F.Supp. 126 (N.D.Ill.1976). However, the Sangmeister case was itself a consolidated trial of two actions; the other suit was Walsh v. Board of Election Commissioners (Cook County).
Although the cases were consolidated for this appeal, the Culliton case is in a somewhat different procedural posture before this court and so it will be discussed separately. Culliton was filed and tried prior to the November 1976 general election. Plaintiff was a Democratic Party candidate for State's Attorney of DuPage County, Illinois. Defendant is a body of three Commissioners, the County Clerk as Chairman and two others selected by the Circuit Court of DuPage County one person representing each major party in accordance with Ill.Rev.Stat., 1975, ch. 46, § 6-21. Thus, the majority of that Board represents the Republican Party.
The plaintiff's complaint alleged that the defendant Board "has always placed the Republican Party candidates on the first line of the ballot, and the Democratic Party candidates and the Independent candidates have always been placed in the second or on lower lines of the ballot." The complaint characterized this practice as "arbitrary, preferential, discriminatory treatment" in violation of the equal protection clause of the Constitution and requested for relief, inter alia, a preliminary injunction enjoining the defendants from deciding the placement of candidates on the ballot in the November 1976 election by unconstitutional means.
A hearing was held on September 16, 1976 which the Docket describes as a "hearing held on motion for preliminary injunction." 1 Subsequent to the hearing the District Court entered on the Docket for September 20, 1976 "(p) reliminary injunction granted for plaintiff with opinion to follow." In that opinion, the district court accepted the expert testimony of Dr. Samuel A. Kirkpatrick, professor of political science at Oklahoma University, to the effect that there was a favorable effect created by first or top ballot placement. The court also found that plaintiff had been intentionally denied equal access to the top ballot position. Based on those two findings, the district court held that the Board's practice did violate the Constitution.
The district court's remedy required the Board of Election Commissioners to employ an impartial, public drawing to decide ballot placement for each party. In addition, the court ordered the defendants to devise a rotational ballot placement procedure for future elections.
A public lottery was used by the DuPage County Board of Election Commissioners for placing candidates on the ballot in the November 1976 general election. The Board now appeals from the rest of the district court's order.
Plaintiffs in Sangmeister were all candidates for office in Will and Cook Counties in the November 1976 general election. They all alleged that the practice of the Clerk in Will County and the Board in Cook County of placing the party of the Clerk in the first position on the ballot in general elections was unconstitutional and sought preliminary and permanent injunctions against the practice.
A hearing for a preliminary injunction was held on October 15, 1976 and the injunction was denied on the basis that there was too little time between the hearing date and the general election to award any relief.
On December 20, 1976, a trial was held before the district court. At that trial there were four witnesses: one expert for each side and the County Clerks of Will and Cook County. The plaintiffs' expert, Dr. Samuel A. Kirkpatrick 2 testified based on previous empirical studies done by other scholars 3 and his own research based on the Will County May 1976 primary election, "that on the average first place garners 3.3 percent more votes than second place." (Tr. at 110.) Dr. Kirkpatrick did recognize that there is a difference in ballot effect between primary and general elections and that he "would expect it to be somewhat reduced, perhaps by a percentage point, sometimes, maybe, as much as two percentage points." (Tr. at 118.)
The defendants' expert, Richard G. Smolka, a professor of government at American University, testified, based on his review of all previous studies on the effect of ballot placement on voting, that "there is virtually nothing at all been done on the subject much less anything been shown," and thus "there is absolutely no evidence upon which to base an opinion." (Tr. at 241.) He also testified that a rotational system for ballot placement would be a bigger administrative burden than it was worth given the lack of proven ballot placement effect on voting. (Tr. at 268.) 4
Both of the County Clerks, Clara Hartley Woodard of Will County and Stanley T. Kusper, Jr. of Cook County were called by plaintiffs as adverse witnesses. Both witnesses testified that they had always placed their party at the top of the ballot for county offices in accordance with the customary procedure of the County Clerks in Illinois. (Tr. at 13-14, 26-28.) They both felt that such a practice was permissible under Ill.Rev.Stat., 1975, ch. 46, § 16-3 which states:
The list of candidates of the several parties and any such list of independent candidates shall be placed in separate columns on the ballot in such order as the authorities charged with the printing of the ballots (County Clerks) shall decide . . . .
At the end of the hearing, the district court orally rendered its decision in favor of the plaintiffs. The court held that "the position on the ballot for that candidate would be a preferred position on a general election even though he might appear under a party name." (Tr. at 415.) In addition, the court found that the record "shows a discrimination against the candidates who are deprived of the top position on the ballot." (Tr. at 415.)
To remedy the constitutional violation, the court required a
rotation of the major parties' position on the general election ballot by precincts, even precincts with one major party at the top and the odd precincts with the other major party at the top.
(Tr. at 420). 5
The defendants have appealed both the court's finding of a constitutional violation and its remedy requiring the County Clerks to adopt a rotational system for deciding future ballot placement.
In the Culliton case there is some dispute regarding the exact nature of the district court's order. The hearing was set on a motion for a preliminary injunction and the Docket reads that a preliminary injunction hearing was held and that the court granted plaintiff's motion for a preliminary injunction. Nonetheless, the district court's memorandum opinion could be read as prescribing more permanent relief to plaintiff. 6 This court declines to so read the district court's opinion. It is our view that this case involves merely an appeal of the lower court's grant of a preliminary injunction as provided in 28 U.S.C. § 1292(a)(1) (1970). We affirm the preliminary injunction against defendants and remand to the district court for further proceedings on a permanent injunction to be conducted in accordance with the views expressed in the remaining portions of this opinion.
In reviewing the district court's order for a preliminary injunction, this court is mindful that it has "very limited scope of review," Gillespie & Co. v. Weyerhauser Co., 533 F.2d 51, 53 (2d Cir. 1976) (per curiam), and must merely "satisfy ourselves that the findings of the trial judge are not clearly erroneous, and that he has not abused the broad discretion which is his in determining whether to grant or withhold interlocutory relief." Brandeis Mach. & Supply Corp. v. Barker-Greene Co., 503 F.2d 503, 505 (6th Cir. 1974) (per curiam). In addition, since this relief is merely interlocutory and thus this case is yet to be heard in full on the merits, this court should "refrain from unnecessary comment on the evidence." Id.
Examining the record in this case, it seems clear that plaintiff has " raised questions going to the merits so serious, substantial, difficult and...
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