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

STONE v. BOARD OF ELECTION COMMISSIONERS FOR THE CITY OF CHICAGO (May 4, 2011)

The City of Chicago requires that mayoral candidates collect 12,500 registered voter signatures over a 90 day period in order to be listed on the ballot. A number of individuals brought suit in federal court, alleging constitutional violations. In late 2010, the plaintiffs moved for a preliminary injunction. They sought to prohibit enforcement of the signature requirement for the February 2011 election. Judge Dow (N.D. Ill.) denied their request for an injunction. Plaintiffs appeal.

In their opinion, Judges Kanne, Rovner, and Sykes dismissed. The Court noted that the February 2011 election had taken place two months before the appeal was even argued. The only relief plaintiffs sought in their motion for a preliminary injunction related to that election. The relief they seek is no longer available. The Court noted that it lacks the power to decide questions that cannot affect litigants’ rights. The Court noted the familiar "capable of repetition, yet evading review" mootness exception. But that exception does not apply here. The plaintiffs' claims will not evade review. Their underlying suit challenging the constitutionality of Chicago's signature requirement remains pending.

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JUDGE v. QUINN (September 24, 2010)

Barack Obama created a vacancy in the United States Senate when he resigned his seat in November of 2008. Apparently, he got a better job. Illinois’ governor appointed Roland Burris to serve the remaining years of his term. Two Illinois voters brought suit, alleging that Illinois violated the Seventeenth Amendment by failing to hold a popular election. In a June 16, 2010 opinion (opinion and intheiropinion), the Seventh Circuit affirmed the denial of a preliminary injunction. The Court held that the plaintiffs had shown a strong likelihood of success on the merits (that the Seventeenth Amendment requires an election to fill any Senate vacancy) but had failed to show irreparable harm, since there was still adequate time to hold the election. The district court then held a series of hearings, during which Illinois ultimately agreed to hold the election (after the Court denied a rehearing and rehearing en banc). The State put forth a proposal, agreed to by the plaintiffs, under which the special election would be held the same day as the already-scheduled general election for the same seat -- and the candidates on the special election ballot would be those same candidates as on the general election ballot. Senator Burris, whose name will not be on the general election ballot, objected. He wanted his name included on the special election ballot, either by collecting some designated number of signatures or simply by agreement. Judge Grady (N.D. Ill.) adopted the State's proposal. The governor issued a writ of election and the court issued its preliminary injunction. Senator Burris appeals.

In their opinion, Judges Rovner, Wood, and Tinder affirmed. The Court first turned to Burris' argument that the case presented a nonjusticiable political question. Only two of the Baker factors were relevant, said the Court, and it resolved both against Burris. First, there was not a "lack of judicially discoverable and manageable standards." The Seventeenth Amendment, state law, and past Illinois history provided the rules and standards. Second, the question is not within the exclusive province of the political branch. When constitutional rights are infringed by the inaction of a state, a federal court has the power to hear the case and fashion a remedy. The Court next addressed Burris' argument that the court interfered with the role of the Illinois General Assembly when it decided whose names would appear on the special election ballot. The Court held that Burris waived this argument by not raising it below -- but also concluded that, although the states have principal responsibility for controlling the procedural aspects of these elections, a district court has the power to fashion a remedy for a constitutional violation. Finally, the Court rejected the notion that the district court order was an unconstitutional ballot access restriction. There is nothing in the order that excludes a particular class of candidates and the order is narrowly tailored to affect only one election.

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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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JUDGE v. QUINN (June 16, 2010)

For 125 years after the founding of our country, the two senators from each state were chosen by that state's legislature. The Seventeenth Amendment changed that. It provided for the direct election of senators by the people. The Seventeenth Amendment also changed the method by which a Senate vacancy was addressed. It provided that the State executive issue writs of election. It added that the state legislature "may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." Barack Obama created such a vacancy when, after being elected President, he resigned his Senate seat on November 16, 2008. The governor of Illinois appointed Roland Burris as United States Senator from Illinois to serve out the almost 2 years remaining in Obama's term. Two Illinois registered voters brought suit pursuant to § 1983. They alleged that Illinois' failure to hold an election to fill the vacancy violates the Seventeenth Amendment. Judge Grady (N.D. Ill.) denied the preliminary injunction and dismissed the complaint without prejudice. Plaintiffs appeal.

In their opinion, Judges Rovner, Wood, and Tinder affirmed. The Court concluded that plaintiffs had standing. Their alleged injury was not a general grievance but a denial of their right to vote. The injury was traceable to the Governor's conduct and it could be redressed by a favorable decision. On the merits, the Court first addressed the likelihood of success prong of the preliminary injunction test. It looked to the language of the amendment: a) the principal clause obligated the state's executive to issue a writ of election in the event of a vacancy, b) the proviso clause preserved the executive's pre-amendment power to appoint a temporary replacement so as to maintain the state's representation in the Senate, and c) the Court concluded that the "as the legislature may direct" language in the proviso referred to the legislature's power to control the Senatorial election. Reading the clauses together, the Court held that the amendment requires the state to hold a popular election to fill a vacancy and requires the governor to issue a writ that includes a date for the election. The logistics of that election, however, are left to state law, including the legislature's power over the date of the election. Illinois has set the date for that election as the same date of the general election. The practical impact, therefore, is that the people of Illinois will elect a Senator to serve the remainder of Obama’s term (through January of 2011) and a successor to Obama in the same election. Given that it is plaintiffs' claim that the Governor has not issued that writ, the Court concluded that they had established a strong case of likelihood of success. Unfortunately for them, they had not shown any irreparable harm. Without a showing of irreparable harm, the district court did not abuse its discretion in denying the injunction.

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