In Their Opinion : Seventh Circuit Court of Appeals Commentary : Lawyer & Attorney Michael E. Rigney : Kelley Drye & Warren Law Firm

PARRA v. NEAL (June 23, 2010)

Ambrosio Medrano filed the necessary papers to get his name listed as a candidate for 25th Ward Chicago alderman on the February 2007 ballot. Several voters challenged his papers. They asserted that his prior felony conviction prevented him from holding office. The Election Board and the circuit court sided with Medrano. Paper and electronic ballots were prepared with his name. Just four days before the election, the Illinois Supreme Court reversed the circuit court. It ordered the Election Board to either remove Medrano’s name from the ballot or, if it remained, to disregard any votes cast for him. The Election Board had insufficient time to correct the ballots. Instead, it posted signs in three languages at all polling places and distributed individual notices to every voter in the ward in which his name was on the ballot. The signs and notices explained that a vote for Medrano would not be counted. Nevertheless, Medrano received 178 votes. Eight of those voters brought an action pursuant to § 1983 claiming that the Election Board violated equal protection by disregarding their votes. Judge Darrah (N.D. Ill.) granted summary judgment to defendants. Plaintiffs appeal.

In their opinion, Judges Manion, Rovner, and Tinder affirmed. The Court emphasized the reluctance of a federal court to become entangled in state election matters. A § 1983 action can therefore prevail only if the defendants acted willfully and intended to undermine the voting process or impair the plaintiffs' voting rights. The Court found no proof -- or even allegation -- of wrongdoing on the part of the Election Board. In fact, it did what it had to do by following the mandate of the Supreme Court.

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STEVO v. KEITH (October 1, 2008)

Allen Stevo would like to enter the 2008 race for a seat in the U.S. Congress from the Tenth Congressional District in Illinois as an independent candidate. Illinois law generally requires an independent candidate to submit with his or her petition a number of signatures equal to 5% of the number of votes cast in the district in the last election. This requirement does not apply, however, in the first election after each decennial census. Each census is followed by a redistricting, which prevents the application of the 5% rule since there is no prior voting history for the newly drawn districts. For these elections, Illinois requires a flat 5,000 signatures. The 2008 election is not such an election. A resident of the district challenged Stevo’s petition on the ground that it failed to meet the 5% requirement. Stevo admits that he does not meet the 5% target, but it is undisputed that he submitted in excess of 5,000 signatures. He filed suit, claiming that the 5% requirement denies equal protection of the laws and that the 5,000 signature requirement should be applied to all elections. The district court dismissed the complaint for failure to state a claim. Stevo appeals.

In their opinion, Judges Cudahy, Posner, and Flaum affirmed. The panel notes that Stevo does not challenge the 5% requirement in a vacuum. Instead, he argues that it is the acceptability of the 5,000 signature target in some circumstances that makes the 5% target arbitrary. Thus, the Supreme Court’s decision in Jenness v. Fortson, which held that a 5% requirement is permissible, does not control. The state’s position is that it must have a proxy for the 5% target after redistricting because it would be impossible to calculate in a newly drawn district. The Court, however, cited favorably to an Indiana procedure in which the votes from the individual precincts making up the new district are used to arrive at a fairly good approximation of the district vote. There are other reasons, however, for the state’s approach. The Court referred to the “disorienting” nature of a redistricting event, requiring both candidates and voters to adjust. It may be more difficult to get signatures in such an environment and thus Illinois imposes the reduced flat 5,000 signature requirement. The Court considered the approach Illinois took to reduce the signature requirement to be “crude.” In fact, in one district, the flat 5,000 signature requirement is actually more difficult to meet than the 5% would have been, because of the low number of voters in the district. Nevertheless, the Court considered Stevo’s solution at least as arbitrary, if not more so. The imperfect Illinois solution is now used only once in every ten years. Stevo would apply it to every congressional election. Not only is Stevo’s proposal not so far superior to the State’s as to implicate the Constitution, the Court found that is likely less superior.

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