Cook Cnty. Republican Party v. Pritzker

• Decision Date: 17 September 2020
• Docket Number: Case No. 20-cv-4676
• Citation: 487 F.Supp.3d 705
• Parties: COOK COUNTY REPUBLICAN PARTY, Plaintiff, v. J.B. PRITZKER et al., Defendants, and DCCC, Intervenor-Defendant.
• Court: U.S. District Court — Northern District of Illinois

487 F.Supp.3d 705

COOK COUNTY REPUBLICAN PARTY, Plaintiff,

v. J.B. PRITZKER et al., Defendants,andDCCC, Intervenor-Defendant.

Case No. 20-cv-4676

United States District Court, N.D. Illinois, Eastern Division.

Signed September 17, 2020

Brian Kelsey, James Joseph McQuaid, Liberty Justice Center, Chicago, IL, for Plaintiff.

Sarah Hughes Newman, Illinois Attorney General, Hal Dworkin, Office Of Illinois Attorney General, Chicago, IL, for Defendant J. B. Pritzker.

Erin Walsh, Office of the Illinois Attorney General, Michael T. Dierkes, Illinois Attorney General's Office, Chicago, IL, for Defendants Charles W. Scholz, Ian K. Linnabary, William J. Cadigan, Laura K. Donahue, William R. Haine, William M. McGuffage, Katherine S. O'Brien, Casandra B. Watson.

Jessica Megan Scheller, Paul Leo Fangman, Cook County State's Attorney's Office, Chicago, IL, for Defendant Karen A. Yarbrough.

Adam Wells Lasker, Lasker Law LLC, Chicago, IL, for Defendants Marisel A. Hernandez, William J. Kresse, Jonathan T. Swain.

Abha Khanna, Pro Hac Vice, Jonathan Patrick Hawley, Pro Hac Vice, Steven Sun Beale, Pro Hac Vice, Perkins Coie, LLP, Seattle, WA, Jyoti Jasrasaria, Pro Hac Vice, Marc E. Elias, Pro Hac Vice, Perkins Coie LLP, Washington, DC, Kathleen A. Stetsko, Perkins Coie LLP, Chicago, IL, for Defendant DCCC.

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

Robert M. Dow, Jr., United States District Judge

Nearly two months after Illinois amended its Election Code in light of the ongoing COVID-19 pandemic, the Cook County Republican Party ("Plaintiff") filed a complaint [1] challenging certain of these amendments and moved for a preliminary injunction [5]. Because election authorities must soon mail absentee ballots, Plaintiff's delay in filing suit and requesting injunctive relief manufactured an emergency of sorts, requiring expedited briefing and ruling. The Court has now considered all briefing on the matter in order to promptly rule on the motion for preliminary injunction [5]. In doing so, the Court recognizes the importance of safely managing a public health crisis and the difficulty faced by chief executives and legislatures in balancing competing interests during such emergencies. See Jacobson v. Massachusetts , 197 U.S. 11, 29, 25 S.Ct. 358, 49 L.Ed. 643 (1905) ; Elim Romanian Pentecostal Church v. Pritzker , 962 F.3d 341, 347 (7th Cir. 2020). The Court also is mindful of the critical importance of secure elections to a functioning democracy. Plaintiff's claims raise concerns about election security, but in the end its contentions amount to legislative policy disagreements and unsupported speculation about potential criminal conduct. The "Constitution is not an election fraud statute," Bodine v. Elkhart Cnty. Election Bd. , 788 F.2d 1270, 1271 (7th Cir. 1986), and the May Amendments amount to "quintessentially * * * legislative judgment[s] with which we judges should not interfere unless strongly convinced that the legislative judgment is grossly awry." Griffin v. Roupas , 385 F.3d 1128, 1131 (7th Cir. 2004). As described in more detail below, Plaintiff fails to demonstrate that it will suffer irreparable harm absent injunctive relief or that it has some likelihood of success on the merits. Thus, the Court denies Plaintiff's motion for a preliminary injunction [5].

I. Background

In May of this year, the Illinois General Assembly made "certain modifications to the administration and conduct of the elections for the November 2020 general election" in order to "protect the safety, health, and rights of the people of Illinois" during the ongoing COVID-19 pandemic. 2020 Ill. Legis. Serv. Pub. Act 101-642 ("May Amendments"). Governor Pritzker signed the May Amendments into law on June 16, 2020. Id. Relevant here,¹ these modifications

• State that "any vote by mail ballot received by an election authority shall be presumed to meet the requirements of Articles 17, 18, and 19" of the Election Code, 10 Ill. Comp. Stat. 5/2B-20(b) ;

• Require election authorities to "accept any vote by mail ballot returned, including ballots returned with insufficient or no postage," id. at 5/2B-20(e)

• Permit election authorities to "establish secure collection sites for the postage-free return of vote by mail ballots," id. ;

• Require that three out of three election judges agree that a "signature on the certification envelope and the signature used by the election authority for verification purposes do not match or the certification envelope contains a signature but not in the proper location" in order to reject a mail-in ballot based on the signature, id. at 5/2B-20(c);

• Permit individuals 16 and older to serve as election judges, id. at 5/2B-40(a);

• Permit voters casting provisional ballots 14 days to provide "the election authority with the necessary documentation" to cure the provisional ballot, id. at 5/2B-35(e);

• Extend observation of the 2020 General Election Day holiday to all state workers and close all government offices except for election authorities, id. at 5/2B-10; and

• Require the State Board of Elections to make electronic lists ("absentee voter lists") of the names and addresses of electors who were automatically sent an application for a mail-in ballot and of electors who applied for a mail-in ballot by specified dates "accessible to State and local political candidates and committees," id. at 5/2B-50(a).

On August 10, 2020—nearly two months after enactment of the May Amendments—Plaintiff filed a complaint [1] against Governor Pritzker, Board Members of the Illinois State Board of Elections, Cook County Clerk Karen Yarbrough, and the Commissioners of the Chicago Board of Election Commissioners. The Court later granted DCCC's unopposed motion to intervene as a Defendant [15]. (Although Defendants have filed multiple briefs, the Court refers to them collectively as "Defendants" throughout this opinion.) Plaintiff alleges that the May Amendments violate the First and Fourteenth Amendments and Article III, Section 4 of the Illinois Constitution by enabling voter-dilution disenfranchisement (Count I) and direct disenfranchisement (Count II). [1, at 16–19]. Specifically, Plaintiff alleges that the May Amendments permit "ballot harvesting," which, according to Plaintiff, is "the practice by which paid, political operatives collect ballots from voters and return them to the election authority." [6, at 3]. Plaintiff claims that such a practice enables "a paid, partisan operative [to] collect Democratic mail-in ballot applications and ballots to ensure that they are turned in and counted and [to] collect Republican mail-in ballot applications and ballots to ensure that they are not." [1, at 11]. As detailed further below, Plaintiff also asserts that the May Amendments will cause other forms of fraud, such as individuals impersonating voters and election judges intentionally accepting fraudulent mail-in ballots. [Id. , at 17–19]. Plaintiff also contends that by permitting the distribution of absentee voter lists and by overwhelming the Postal Service with mail-in ballots, the May Amendments violate Article III, Section 4 of the Illinois Constitution, which calls for the "secrecy of voting" (Count III). [Id. , at 19]. Simultaneous with filing its complaint, Plaintiff moved for a preliminary injunction, requesting that the Court enjoin the May Amendments. [5].

II. Analysis

A. Standing

As a preliminary matter, Defendants assert that Plaintiff does not have standing to seek injunctive relief. [42, at 5–10] [49, at 13–23]. "To assert standing for injunctive relief, [Plaintiff] must show that [it is] under an actual or imminent threat of suffering a concrete and particularized ‘injury in facts’; that this injury is fairly traceable to the [Defendants’] conduct; and that it is likely that a favorable judicial decision will prevent or redress the injury." Common Cause Indiana v. Lawson , 937 F.3d 944, 949 (7th Cir. 2019). Defendants argue that Plaintiff lacks standing primarily because it cannot meet the injury-in-fact requirement. This prong requires that Plaintiff show that it "is immediately in danger of sustaining some direct injury" and that "the injury or threat of injury must be both ‘real and immediate,’ not ‘conjectural' or ‘hypothetical.’ " City of Los Angeles v. Lyons , 461 U.S. 95, 102, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (finding no injury in fact warranting injunctive relief because man allegedly previously put in illegal chokehold by police could not demonstrate that he would again be subject to illegal chokehold); see also Clapper v. Amnesty Int'l USA , 568 U.S. 398, 414, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013) (finding no injury in fact based on "potential future surveillance" when plaintiff could not demonstrate that such injury was "certainly impending").

Here, Plaintiff's alleged injury arises from potential fraud resulting from the May Amendments. For example, Plaintiff asserts that partisan operatives will collect but fail to submit Republican ballots; that state workers with election day off will impersonate voters; and that election judges will accept mail-in ballots with fraudulent signatures if those ballots likely contain Democratic votes. [1, at 16–19]. But apart from a citation to the "notorious" history of election fraud in Illinois in the last century (see Nader v. Keith , 385 F.3d 729, 733 (7th Cir. 2004) ), the examples of such fraudulent activity referenced in Plaintiff's briefs come from other states: North Carolina [see 6, at 7; 55, at 4 n.2], Indiana [see 6, at 7-8], New Jersey [see 55, at 8-10], and Georgia [see id. at 12-13]. The isolated incidents cited lend support to the proposition that over time voter fraud rates have "remained infinitesimally small." [See 49, at 35] (quoting Wendy R. Weiser & Harold Ekeh, The False Narrative of Vote-by-Mail Fraud , BRENNAN CENTER FOR JUSTICE (Apr. 10, 2020), https://www.brennancenter.org/our-work/analysis-opinion/false-narrative-vote-mail-fraud). They also raise...