Tripp v. Scholz, 16-3469.

• Decision Date: 06 October 2017
• Docket Number: No. 16-3469.,16-3469.
• Citation: 872 F.3d 857
• Parties: Tabitha TRIPP, et al., Plaintiffs-Appellants, v. Charles W. SCHOLZ, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

872 F.3d 857

Tabitha TRIPP, et al., Plaintiffs-Appellants,

v.Charles W. SCHOLZ, et al., Defendants-Appellees.

No. 16-3469.

United States Court of Appeals, Seventh Circuit.

Argued September 18, 2017

Decided October 6, 2017

Rehearing and Rehearing En Banc Denied November 9, 2017

Vito A. Mastrangelo, Attorney, Mt. Vernon, IL, for Plaintiffs-Appellants.

Mary Ellen Welsh, Attorney, OFFICE OF THE ATTORNEY GENERAL, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.

Before Flaum, Bauer, and Sykes, Circuit Judges.

Flaum, Circuit Judge.

In 2014, Illinois Green Party members Tabitha Tripp ("Tripp") and Gary Shepherd ("Shepherd") sought to appear on the Illinois general election ballot as candidates for state representative in the 118th and 115th representative districts, respectively. Because the Illinois Election Code deemed the Green Party a "new" political party in both districts, both Tripp and Shepherd were required to obtain nomination petition signatures equaling 5% of the number of voters in the prior regular election for state representative in their district. The Election Code further required that such signatures be collected in the ninety days preceding the nomination petition deadline and that each petition signature sheet be notarized. Neither Tripp nor Shepherd collected a sufficient number of notarized signatures during the ninety-day collection period. As a result, the Illinois State Board of Elections ("ISBE"), which supervises the administration of Illinois's election laws, ruled that neither candidate would appear on the general election ballot.

Following Tripp and Shepherd's ballot disqualification, plaintiffs filed suit in federal court, arguing that Illinois's new party ballot restrictions violated the First and Fourteenth Amendments of the United States Constitution, both facially and as applied to the 118th and 115th districts. Following cross-motions by both parties, the United States District Court for the Southern District of Illinois granted summary judgment in favor of defendants. Plaintiffs now appeal the district court's ruling. For the reasons stated below, we affirm.

I. Background

Ballot access in Illinois elections, both state and federal, is regulated by the Illinois Election Code. See generally 10 Ill. Comp. Stat. §§ 5/1-1 – 5/30-3. The Election Code divides political parties into two categories: (1) "established" parties; and (2) "new" parties. In the context of state representative elections, an established party is defined as a party that, during the last election for that office, "polled more than 5% of the entire vote cast" in the respective representative district. Id. § 5/10-2.¹ All non-established parties are considered new parties. See id.

The Election Code imposes multiple requirements on new parties seeking to place state representative candidates on the general election ballot in a particular representative district. Three such requirements are relevant here. First, the party must obtain petition signatures from at least 5% of the number of voters in the district who voted in the previous regular election for that office (hereinafter the "5% signature requirement"). Id. By contrast, an established party must collect only 500 signatures for its candidate to appear on the primary election ballot. Id. § 5/8-8. Second, petition signatures must be collected during the "90 days preceding the last day for the filing of the petition" for nomination (hereinafter the "ninety-day petitioning window"). Id. § 5/10-4. Finally, nominating petitions must contain a notarized affidavit at the bottom of each petition signature sheet in which that sheet's circulator (the individual who obtained the petition signatures) indicates either the dates on which he or she circulated that sheet (or the first and last dates on which the sheet was circulated), or certifies that none of the signatures on the sheet were signed more than ninety days before the last day for the filing of the petition (hereinafter the "notarization requirement"). Id. The circulator's affidavit must also certify that each signature on that sheet was signed in the circulator's presence, is genuine, and, to the best of the circulator's knowledge and belief, is from a "duly registered voter[ ]" of the relevant district. Id. The ninety-day petitioning window and notarization requirement apply to candidates of both new and established parties. Compare id. § 5/8-8, with id. § 5/10-4.

New parties that fail to satisfy these requirements may have their candidates disqualified from appearing on the ballot. Voters, however, may still cast write-in votes for the candidates on election day.

The 118th representative district (in which Tripp sought to appear on the general election ballot) is located in the southeast corner of the state. Covering approximately 2,808 square miles, the district stretches from the southernmost counties of Illinois—Alexander, Pulaski, and Massac—to the northern boundary of Hamilton County. It bisects Jackson County in the west and extends to the Indiana border in the east. The 115th representative district (in which Shepherd sought to appear) is located northwest of the 118th district. It covers approximately 1,810 square miles, from the southwest corner of Union County on the Mississippi River to the northern edge of Jefferson County. By contrast, sixteen other Illinois representative districts extend less than ten square miles, while seventy-three districts cover less than 100 square miles.

Before the 2010 census, boundaries for the 118th and 115th districts generally followed county lines. In 2011, however, the State of Illinois redrew many of its representative district boundaries, including those of the 118th and 115th. This redistricting split the City of Carbondale, which previously fell entirely in the 115th district, across the 115th and 118th districts.²

In 2014, Tripp and Shepherd, both members of the Illinois Green Party, sought to appear on the upcoming Illinois general election ballot as Green Party candidates for state representative in Illinois's 118th and 115th representative districts, respectively. At the time, the Illinois Green Party was considered a new party in both districts. Consequently, Tripp and Shepherd were required to satisfy the Illinois Election Code's new party nomination requirements, including the 5% signature requirement, ninety-day petitioning window, and notarization requirement.

The ninety-day petitioning window ran from March 25 to June 23, 2014. To satisfy the 5% signature requirement, Tripp needed to obtain at least 2,399 petition signatures; Shepherd needed to obtain at least 2,407. By the filing petition deadline, however, Tripp had amassed only approximately 1,700 signatures, gathered by 34 circulators on 199 notarized petition sheets. Shepherd's 30 circulators fared only slightly better, obtaining approximately 1,800 signatures on 205 notarized sheets. Due to Tripp and Shepherd's signature shortfalls, the ISBE ruled that neither candidate would appear on the general election ballot in their respective districts.

Following Tripp and Shepherd's disqualification, the 2014 general election ballot for the 118th representative district included the name of only one candidate for state representative (a result that also occurred in 2010 and 2012). The ballot for the 115th district included the names of two candidates (although only one candidate appeared in 2012). Tripp and Shepherd ultimately received 67 and 106 write-in votes respectively, but neither were elected to office.

In August 2014, Tripp, Shepherd, the Illinois Green Party, and certain of its prospective voters (collectively, "plaintiffs") filed a complaint in the United States District Court for the Southern District of Illinois against a number of ISBE officials. Plaintiffs originally sought a preliminary injunction requiring Tripp and Shepherd to be placed on the general election ballot, as well as permanent injunctive relief regarding Illinois's new party ballot access restrictions. Plaintiffs asserted that the Election Code's 5% signature requirement and notarization requirement violated the Free Speech and Association Clauses of the First Amendment and the Equal Protection Clause of the Fourteenth Amendment, both facially and as applied to the 118th and 115th districts. Plaintiffs further challenged the constitutionality of the signature and notarization requirements when considered in conjunction with the ninety-day petitioning window and geographical challenges presented by the 118th and 115th districts following Illinois's 2011 redistricting.

In September 2014, the district court denied plaintiffs' motion for a preliminary injunction, ruling that the 2014 general election would go forward without Tripp and Shepherd on their respective ballots. Subsequently, upon the close of discovery, both parties filed cross-motions for summary judgment. On August 17, 2016, the district court granted defendants' motion, denied plaintiffs' cross-motion, and entered judgment in favor of defendants. This appeal followed.

II. Discussion

We review a district court's grant of summary judgment de novo. C.G. Schmidt, Inc. v. Permasteelisa N. Am. , 825 F.3d 801, 805 (7th Cir. 2016). Summary judgment is appropriate if the movant "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Spurling v. C & M Fine Pack, Inc. , 739 F.3d 1055, 1060 (7th Cir. 2014) (quoting Fed. R. Civ. P. 56(a) ). A genuine dispute of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where, as here, the parties file cross-motions for summary judgment, all reasonable inferences are drawn in favor of the party against whom the motion at issue was made. Dunnet Bay Constr. Co. v. Borggren , 799 F.3d 676, 688 (7th Cir. 2015).

A. The...