Citizens for John W. Moore Party v. Board of Election Com'rs of City of Chicago, 85-1012

• Decision Date: 13 January 1986
• Docket Number: No. 85-1012,85-1012
• Citation: 781 F.2d 581
• Parties: CITIZENS FOR JOHN W. MOORE PARTY, et al., Plaintiffs-Appellants, v. BOARD OF ELECTION COMMISSIONERS OF the CITY OF CHICAGO, et al., Defendants- Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 581

781 F.2d 581

CITIZENS FOR JOHN W. MOORE PARTY, et al., Plaintiffs-Appellants, v. BOARD OF ELECTION COMMISSIONERS OF the CITY OF CHICAGO, et al., Defendants- Appellees.

No. 85-1012.

United States Court of Appeals Seventh Circuit.

Argued Sept. 12, 1985.

Decided Jan. 13, 1986.

Laura A. Kaster, Jenner & Block, Chicago, Ill., for plaintiffs-appellants.

James M. Scanlon, General Counsel State Bd. of Elections, Chicago, Ill., for defendants-appellees.

Before COFFEY, EASTERBROOK and RIPPLE, Circuit Judges.

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, Sec. 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 Sec. 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 Sec. 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 circulators 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 Sec. 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, Sec. 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, Sec. 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

EASTERBROOK, Circuit Judge, dissenting.

John Moore ran afoul of a statute providing that "no person shall circulate or certify petitions for candidates of more than one political party ... to be voted upon at the next primary or general election." Ill.Rev.Stat. ch. 46 Sec. 10-4. The court has asked the Supreme Court of Illinois to tell us whether Sec. 10-4 applies to signatures gathered by (as well as for) a candidate for office. That court is entitled to express puzzlement at our request. The statute says "no person," and by all accounts Moore is a person.

The order of certification may enable our court to avoid a constitutional question. Courts properly turn somersaults to avoid difficult constitutional issues. Yet there are limits to creative avoidance. For example, a court may not frustrate legitimate applications of a statute in the name of avoiding constitutional issues. United States v. Riverside Bayview Homes, Inc., --- U.S. ----, ----, 106 S.Ct. 455, 457, 88 L.Ed.2d 419 (1985); Henry J. Friendly, Benchmarks 207-12 (1967). This case illustrates these limits.

The Board of Election Commissioners of Chicago applied the statute to Moore and disqualified the signatures he gathered in his second try for office, under a second party banner, during the 1982 election season. So far as I can tell, Moore did not argue before the Board that he is not a "person" within the meaning of Sec. 10-4. The Board's application of Sec. 10-4 to Moore is consistent with the construction placed on the statute by the State Board of Elections. A Candidates' Guide, which contains the State Board's advice about the meaning of the statute, draws no distinction between candidates and other circulators.

We have a statute that is clear, applied consistently by the state officials charged with applying it. That makes a sufficient case for treating the statute as meaning what it says. United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 179, 101 S.Ct. 453, 461, 66 L.Ed.2d 368 (1980); Harrison v. PPG Industries, Inc., 446 U.S. 578, 589, 100 S.Ct. 1889, 1896, 64 L.Ed.2d 525 (1980); Swain v. Pressley, 430 U.S. 372, 378-79, 97 S.Ct. 1224, 1228-29, 51 L.Ed.2d 411 (1977). Legislative history might cut the other way, but there is no published legislative history in Illinois, and the testimony the district judge received concerning the legislative history did not hint that Illinois drew a distinction between candidates and other people that has so far eluded the state officials charged with enforcing the statute. The decisions of intermediate courts in Illinois also might undermine the clarity of the statute, but none has construed Sec. 10-4.

Moore apparently agrees with the state's construction of this statute. His complaint argues that Sec. 10-4 applies to all persons and is therefore unconstitutional. He did not ask the district court to draw a distinction between candidates and other persons. He did not argue that the state officials have misconstrued the statute. The district court held a full trial, and this issue did not arise; the court's opinion treats this as a constitutional attack on a statute with an agreed meaning. Moore has been consistent. His briefs in this court do not mention the possibility of distinguishing between candidates and other persons. He has not suggested certification; the state has not suggested abstention.

This is not to say that Moore thinks the statute clear; to the contrary he argues that it is unconstitutionally vague. But his arguments are based on different problems. Moore insists that the statute may not apply to dual circulations for major parties, or to circulations for a party and then an independent candidacy. He says that the statute does not necessarily apply to circulation for one party in a primary election and another for the general election. Although Moore is represented by highly skilled counsel who looked at this statute through a microscope, counsel did not find the particular "ambiguity" the majority sees. Counsel presumed the application of Sec. 10-4 to candidates and used that application as the fulcrum of her attack: for example, "Section 10-4 prohibited Moore from communicating with his constituents by circulating his petitions" (Reply Br. 14). The question whether Sec. 10-4 applies to candidates entered this litigation for the first time in questions posed by the court to counsel at oral argument.

So the Supreme Court of Illinois may wonder why we have asked for its views on the construction of an unambiguous statute that has been...