Socialist Workers Party v. CHICAGO BD. OF ELECTION COMMISSIONERS

• Decision Date: 14 March 1977
• Docket Number: No. 77 C 255,77 C 326.,77 C 255
• Citation: 433 F. Supp. 11
• Parties: SOCIALIST WORKERS PARTY et al., Plaintiffs, v. CHICAGO BOARD OF ELECTION COMMISSIONERS et al., Defendants. Gerald ROSE et al., Plaintiffs, v. John H. HANLY et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

433 F. Supp. 11

SOCIALIST WORKERS PARTY et al., Plaintiffs, v. CHICAGO BOARD OF ELECTION COMMISSIONERS et al., Defendants.

Gerald ROSE et al., Plaintiffs, v. John H. HANLY et al., Defendants.

Nos. 77 C 255, 77 C 326.

United States District Court, N. D. Illinois, E. D.

March 14, 1977.

Lance Haddix, Chicago, Ill., Ron Reosti, Detroit, Mich., for plaintiffs in No. 77 C 255.

John B. McCauley, Asst. Corp. Counsel, Chicago, Ill., for defendant Marcin.

Ian H. Levin, Foran, Wiss & Schultz, Michael Levinson, Chicago, Ill., for defendant Chicago Bd. of Election Commissioners and Ill. State Bd. of Elections.

William H. Luking, Jeffrey D. Colman and Jayne W. Barnard, Jenner & Block, Chicago, Ill., for plaintiffs in No. 77 C 326.

Ian H. Levin, Foran, Wiss & Schultz, Chicago, Ill., for defendants in No. 77 C 326.

MEMORANDUM OPINION

DECKER, District Judge.

I. Background

A special mayoral election has been scheduled for June 7, 1977, in Chicago to fill the vacancy caused by the death of the late mayor, Richard J. Daley. On January 13, 1977, the defendant in these two cases, the Chicago Board of Election Commissioners,¹ released the election calendar for this election. Among its specifics, it set the filing dates and signature requirements for petitions for independent candidates for mayor,² and for new political parties,³ i. e., parties other than the Democratic and Republican parties.

The defendants purported to follow the statutory requirements of the Illinois Election Code, Ill.Rev.Stat. ch. 46. Following Ill.Rev.Stat. ch. 46 § 10-6, they set the filing deadline for new political parties on April 4th, 64 days prior to the election. The filing date for independents was initially set on February 19th, the same day as required for candidates in the major party primaries.⁴

The pertinent language regarding signature requirements in § 10-2, applying to new parties, and § 10-3, applying to independents, is identical:

"not less than 5% of the number of voters who voted at the next preceding general election in such district or political subdivision in which such district or political subdivision voted as a unit for the election of officers to serve its respective territorial area."⁵

Nonetheless, the defendants used the voting figures from the April 1, 1975, mayoral election to compute the requirement for independents, and used figures from the November 2, 1976, general election to determine the requirement for new political parties. Thus, the defendants required that new political parties had to contain 63,373 valid signatures on their petitions, while independents were only required to present petitions with 35,947 signatures.⁶

These two suits were filed by supporters of new political parties and independent candidates seeking access to the ballot to challenge the constitutionality of the Board's determinations.

Case No. 77 C 255 was brought by the Socialist Workers Party and challenges in its first two counts the signature requirements and filing deadlines set for new political parties. Case No. 77 C 326 was brought by the United States Labor Party, and by Gerald Rose, an individual who alleges that he desires to run as an independent in the mayoral election.⁷ This case challenges the requirements set out for both new parties and independents. Rose v. Hanly was brought before this court as related to the earlier filed case. Although the two have not been formally consolidated, they raise essentially overlapping factual and legal issues, and the defendants have filed an identical reply brief in support of both of their motions to dismiss.

In the course of this litigation the defendants have agreed, for the purposes of this special election, to modify these requirements. Independent candidates are now given an extension until April 4th, the deadline set for new parties, to file their petitions. And new political parties are only to be required to submit 35,947 valid signatures, the same amount as required of the independents. Thus, the signature requirements and filing deadlines are now identical for independents and new political parties in the forthcoming election.

Both cases seek injunctive and declaratory relief. As noted, there are pending motions to dismiss in both actions, and both sets of plaintiffs have briefed motions for injunctive relief.

II. Justiciability and the Effect of Recent Supreme Court Cases on Equal Protection

Defendants have not raised any challenge to the justiciability of an election law challenge as a political question. This defense has been clearly rejected by the Supreme Court. Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Wesberry v. Sanders, 376 U.S. 1, 5-7, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964); Baker v. Carr, 369 U.S. 186, 208-237, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).

They do, however, argue that the plaintiffs cannot challenge their implementation of the state statutes where it cannot be shown that there was any purposeful invidious discrimination. They cite the statement of the Seventh Circuit that

"To establish a denial of equal protection a candidate for public office must allege and prove the existence of an intentional or purposeful discrimination by the election authorities in which one class is favored over another." Baum v. Lunding, 535 F.2d 1016, 1018 (7th Cir. 1976).

Baum, however, dealt with a challenge to a regulation which authorized group petitions for candidates seeking to run together as a "slate". However, after consideration of the merits of plaintiff's claim, the Seventh Circuit found that the regulation was not in fact discriminatory against individual candidates, and was based on justifiable policy grounds. It sustained the trial court's conclusion that the complaint was frivolous. Neither Baum, nor Briscoe v. Kusper, 435 F.2d 1046 (7th Cir. 1970), also cited by the defendants, deals with claims of discriminatory rules regarding ballot access. Such challenges have been repeatedly brought under the equal protection clause, including Jackson v. Ogilvie, 325 F.Supp. 864 (N.D.Ill. 1971), the case upon which the Board's defense is focused. See also the numerous cases dealing with similar challenges, cited infra.

Going beyond these cases, the defendants argue that the recent Supreme Court cases of Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977), have established discriminatory intent as an element of all equal protection based claims. Arlington Heights states that "proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." at 265, 97 S.Ct. at 563.

Both of these cases dealt with situations in which officials effected policies which had a discriminatory impact. The Court felt that this was insufficient to sustain a case for denial of equal protection in the absence of "proof that a discriminatory purpose has been a motivating factor in the decision." at 265-266, 97 S.Ct. at 563.

These cases may be distinguished on several grounds. First, the defendants in Washington v. Davis, and Arlington Heights were able to show that they disregarded racial considerations and considered matters relating solely to job qualifications in hiring and community needs in zoning. However, in the instant case, the challenged policy was the implementation of a law designed to discriminate against frivolous candidacies and parties. The challenged portions of the Election Code are deliberately structured to deny access to the ballot to certain members of the classification in which the plaintiffs are placed by the law. The racial impact in the two Supreme Court cases was found to be incidental;⁸ the special burdens placed upon the defendants' classes and challenged in these cases are the central point of the statutory scheme.⁹

That these special requirements are more onerous than those placed upon major party candidates or statewide candidates does not per se prove a violation of equal protection, but it does put into issue the reasonableness of the classifications and the burdens.

Furthermore, the defendants ignore the fact that the instant cases assert due process claims raising first amendment issues. Defendants are in error when they assert that questions of ballot access are cognizable only under the equal protection clause. In Williams v. Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968), the court was faced with a challenge to Ohio's statutory scheme for qualifying third parties on the ballot. The court noted

"the state laws place burdens on two different, although overlapping, kinds of rights — the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms. We have repeatedly held that freedom of association is protected by the First Amendment. And of course this freedom protected against federal encroachment by the First Amendment is entitled under the Fourteenth Amendment to the same protection from infringement by the States." 393 U.S. at 30-31, 89 S.Ct. at 10.

Since Williams courts have repeatedly considered the First Amendment claims raised by challenges to state ballot laws. American Party of Texas v. White, 415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974); Storer v. Brown, 415 U.S. 724, 94 S.Ct. 1274, 39 L.Ed.2d 714 (1974); Jenness v. Fortson, 403 U.S. 431, 91 S.Ct. 1970, 29 L.Ed.2d 554 (1971); Riddell v. National Democratic Party, 508 F.2d 770 (5th Cir. 1975); Smith v. Cherry, 489 F.2d 1098 (7th Cir. 1973); McCarthy v. Kirkpatrick, 420 F.Supp. 366 (W.D.Mo.1976); Bendinger v. Ogilvie, 335 F.Supp. 572 (N.D.Ill.1971); Jackson v. Ogilvie, supra.

III. Ripeness

Noting that the deadlines for filing petitions have not yet passed, the defendants...