Weisberg v. Powell

Citation417 F.2d 388
Decision Date17 October 1969
Docket NumberNo. 17824.,17824.
PartiesBernard WEISBERG, Plaintiff-Appellant, v. Paul POWELL, Individually and as Secretary of State of Illinois, et al., Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Jack Joseph, David Goldberger, John Henry Schlegel, Robert G. Johnston, Chicago, Ill., for plaintiff-appellant.

William J. Scott, Atty. Gen. of Illinois, John Galvin, Chicago, Ill., John E. Cassidy, Jr., Sp. Asst. Atty. Gen., Peoria, Ill., James G. Andros, Chicago, Ill., for defendants-appellees.

Before HASTINGS, Senior Circuit Judge, FAIRCHILD and CUMMINGS, Circuit Judges.

Rehearing En Banc Denied October 17, 1969.

PER CURIAM.

The Illinois legislature has called a state constitutional convention, to meet December 8, 1969.1 Two members are to be elected from each of 58 state senatorial districts. The election, to be held November 18, is to be nonpartisan. Each voter has two votes. In districts where five or more persons qualified as candidates, a primary was held September 23, with the four receiving the greatest number of votes surviving the primary.

This case concerns the order in which candidates' names were listed on the primary ballot in the 50 districts where a primary was held and will be listed on the election ballot in the eight other districts. In the districts where a primary was held, the nominees are to be listed on the election ballot in the order of the number of votes received at the primary, with the highest first. There has been no challenge to that order of listing, and we are not concerned with it.

Plaintiff Bernard Weisberg is a candidate suing (under 42 U.S.C. § 1983) on behalf of himself and other candidates as a class. Defendant Paul Powell is Secretary of State of Illinois. Six other defendants, together with Mr. Powell, are the members of the State Electoral Board. The statute required that board to certify the primary ballot on or before August 12, and the election ballot on or before October 11.

The order of listing for both the primary ballot and the election ballots in districts where no primary was to be held is prescribed in sec. 5. The rule is that the "name of the person first filing his nominating petition with the Secretary of State shall be certified first on the ballot, and the names of the other candidates shall be listed in the order that their nominating petitions were filed with the Secretary of State."

The first day for filing was July 7 and the last July 11. This action was begun July 9. The substance of plaintiff's claim is that the secretary improperly arranged the order of filing so as to discriminate in favor of candidates endorsed by party organizations by giving them the best places on the ballot. Plaintiff sought an injunction against certifying the order of listing on the ballot until some fair method had been employed "to eliminate the effects of defendant's unconstitutional conduct."

On July 25, the district court, after trial, dismissed the action "for want of equity." Plaintiff appealed, and, after refusal in the district court, applied to this court for an injunction pending appeal. We found a sufficient probability of merit and on August 8 issued an injunction. We enjoined certification of the order of names for the primary unless the order be redetermined by a method specified in our order. We found that such method would remedy the discrimination which had made it impossible to determine fairly which candidates in fact were first to file.

We are informed that the State Electoral Board redetermined the order of names, using the method we specified, and certified the primary ballot. The primary has been held. The appeal is not moot, however, because there are eight districts where there was no primary and where the form of ballot has apparently not yet been certified.

The facts, in large measure, are undisputed. The statute said that July 7 (a Monday) was the "First day for candidates to file petitions in the office of the Secretary of State." The regular business hours were from 8 a. m. to 5 p. m.

The secretary's office had made special arrangements with the Springfield post office for delivery of mail on Sunday, July 6. Petitions received in that mail were treated as if presented at 8 a. m. Monday. Where petitions for several candidates in one district were received on Sunday, the Secretary of State considered them tied for first filing, and decided the order of filing according to his own preference among those several candidates.

182 petitions were received in the mail on July 6 and treated as filed at or immediately after 8 a. m. on July 7. 105 petitions were personally presented by candidates or representatives of candidates who were waiting in line when the office opened at 8 a. m. on July 7. These were received and filed in order, but after those received by mail July 6. Some of these 105 persons had been waiting since 6 p. m. Sunday.2 14 petitions were received by mail later on July 7 and 20 personally presented. 197 were filed by mail or in person July 8 through 11. 518 were filed in all.3 The issue here involves the first 182. There is no claim that any others were filed out of order.

It is clear that many candidates who inquired about how to file were not told they could file by mail and that there was an advantage in filing by mail the weekend before July 7. Mr. Powell said he told people who telephoned him or called on him in person to be sure to come to Springfield and drop their petitions in the mail on Sunday. Apparently the practice of picking up mail the weekend before the filing date and giving preference to it has been followed in party primaries in the past and is known to the experienced. But we may infer that the secretary did not volunteer this information to newcomers except to candidates to whom he might wish to give preference. There is no hint of it in the statute nor the "Election Calendar" which was handed out nor in many of the letters responding to inquiries.

There is unrefuted testimony that in many districts the first and second places were given by Mr. Powell to candidates endorsed by the organization of one of the two major parties, although in more instances they were Democrats, which is Mr. Powell's affiliation. Mr. Powell testified: "I gave preference to people that I knew, where there was a tie; and I had no communication from the Regular Democratic Organization of Cook County. I did not have to have it." And: "After thirty years in the Legislature and five years in the Secretary of State's office, I think names are familiar to me, both Democrats and as Republicans, as to people that have been in state government and people active in their government."

We think there can be no real question but that Mr. Powell employed the device of the Sunday mail pickup to give top ballot position to people he preferred to have elected and that he saw to it that the people he wanted to prefer were informed that they should file by mail on Sunday.4

The Illinois statute prescribed that ballot positions shall be governed by the order of filing. This may well not be the wisest rule for awarding the advantages or disadvantages of position on the ballot. But it is at least a method based on competition among persons with presumably equal chances: "First to come, first served." The device followed by the secretary subverts this principle, first, by informing some and leaving others in ignorance that mail received in Springfield on Sunday will be treated as arriving first during business hours on Monday, and second, by choosing favorites among those who get their petitions into the Sunday mail.

All the candidates were entitled, under the state law, to be treated alike. Where that is so, they have a federally protected right to the application and enforcement of the state law without intentional or purposeful discrimination among them.5

Defendants point out that plaintiff and the others in his class are seeking redress in their interest as candidates rather than as voters or persons generally subject to the laws of Illinois; that the offices sought are state and not federal; and that the constitutional convention will not adopt a constitution, but only propose one for popular ratification. They contend that because of these facts the principles developed in Baker v. Carr6 and decisions stemming therefrom, including Moore v. Ogilvie,7 have no application here.

We consider it unnecessary to decide whether the principles referred to give support to plaintiff's case. Defendants rely upon the holding of Snowden8 that the right to a state office "is not one secured by the Fourteenth Amendment and affords no basis for a suit brought under the sections of the Civil Rights Acts relied upon, * * *." But what we have here is a situation the Court found was not present in Snowden, but which it clearly said would be repressible as a violation of the equal protection clause.

"The unlawful administration by state officers of a state statute fair on its face, resulting in its unequal application to those who are entitled to be treated alike, is not a denial of equal protection unless there is shown to be present in it an element of intentional or purposeful discrimination. This * * * may be shown by extrinsic evidence showing a discriminatory design to favor one individual or class over another * * *."9

"Where discrimination is sufficiently shown, the right to relief under the equal protection clause is not diminished by the fact that the discrimination relates to political rights."10

The Secretary of State may well have been sincere in his belief that persons with experience in government and with standing in one of the parties are best qualified to write a constitution, but the sincerity of his reason for tipping the scales in their favor does not undermine, but rather supports, the proposition that the discrimination was purposeful and intentional.

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