Clinton A. Krislov, individually and on behalf of all others similarly situated, and Joan A. Sullivan, Plaintiffs-Appellees,
v.
Wanda L. Rednour, Chairman of the State Board of Elections, Hannelore Hulsman, Vice Chairman of the State Board of Elections, Ronald D. Michaelson, Executive Director of the State Board of Elections, et al., Defendants-Appellants.
No. 99-3801
In the United States Court of Appeals For the Seventh Circuit
Argued April 20, 2000
Decided September 5, 2000
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 96 C 674--Elaine E. Bucklo, Judge.[Copyrighted Material Omitted][Copyrighted Material Omitted][Copyrighted Material Omitted]
Before Manion, Rovner, and Williams, Circuit Judges.
Manion, Circuit Judge.
Clinton Krislov and Joan Sullivan were candidates in the March 1996 Illinois Democratic Party primary elections for the United States Senate and the seventh congressional district for the United States House of Representatives, respectively. They initially obtained the required number of signatures to be placed on the ballot. Supporters of other candidates, however, objected to some of the signatures because they were gathered by circulators who were not registered voters in Illinois or the seventh district, as required by Illinois law. After expending substantial time, effort and money, Krislov and Sullivan managed to salvage enough signatures to remain on the ballot, although Krislov voluntarily decided to exit the Senate race before the primary. Krislov and Sullivan sued the Illinois Board of Elections, claiming that requiring signature gatherers to be registered voters of the relevant political subdivision violates the First and Fourteenth Amendments of the United States Constitution. After the Supreme Court issued its decision in Buckley v. American Constitutional Law Foundation, Incorporated,
I.
Clinton Krislov is an Illinois attorney who sought the nomination of the Democratic Party for one of the United States Senate seats in the March 1996, Illinois primary election. Joan Sullivan is a retired systems analyst who was one of ten candidates seeking the Democratic nomination for the United States House of Representatives seat for the seventh congressional district in the same 1996 primary election. Wanda Rednour and the rest of the defendants-appellants are members of the Illinois State Board of Elections, which supervises the administration of Illinois election laws. 10 ILCS 5/1A-1. Krislov and Sullivan ("the candidates") brought this suit against the Board members in their official capacities to enjoin enforcement of the Illinois nomination petitions statute. 10 ILCS 5/7-10. In particular, they complain about two restrictions on their use of nominating petition circulators: (1) that the circulator must be a registered voter; and (2) that the circulator must be registered to vote in the same political subdivision for which the candidate is seeking office, which for Krislov would be the entire State of Illinois, while for Sullivan it is the seventh congressional district. 10 ILCS 5/7-10.1
Under the statute, the candidate must obtain the required number of signatures: at least 5,000 but not more than 10,000 for the Senate race, and for the congressional race, .5% of the qualified primary electors of the candidate's party in the congressional district. 10 ILCS 5/7-10(a), (b). Both Krislov and Sullivan acknowledge that they were able to do this with their own resources. But they point out that they did not always get to use the circulators of their choice. That is, they had supporters who were not registered to vote in Illinois, but who were willing to gather signatures for them and speak on their behalf while soliciting signatures. They couldn't utilize these people, however, because any signatures gathered by non-resident, non- registered solicitors would have been invalidated under 5/7-10.
Candidates who are successful in garnering the required number of signatures must then file them with the State, which both candidates did. At this point, the party organization can scrutinize the signatures and possibly challenge them. According to the plaintiffs, the established political parties have extensive resources for carrying out these challenges, while the unendorsed candidates frequently cannot marshal the same efforts, thus ending their candidacies. When signatures are challenged, a candidatе can opt to employ limited campaign resources to defend the validity of the signatures (rather than spend the time and money on the campaigns), or he can ignore the challenge and face the real possibility of not appearing on the ballot. According to the plaintiffs, this is exactly the scenario they faced in the present case.2
In Krislov's case, many of the 10,000 signatures he filed were challenged by allies of his Party- supported primary opponent (and eventual winner). Sullivan's signatures faced similar challenges. Among the complaints lodged against the signatures was the charge that circulators of some petitions were not registered voters in the relevant political districts. The candidates were forced to devote significant amounts of time, money, personnel, and energy responding to the challenges during the two months preceding the primary election. This prevented the candidates from devoting these resources to getting their message out to the public.
In response to these challenges, as the March primary approached, Krislov initiated this suit as a class action under 42 U.S.C. sec. 1983, alleging a violation of his First and Fourteenth Amendment rights. Specifically, he alleged that because section 7-10 prevented him from using large numbers of non-registered residents to circulate his petitions, the law violated his right to freely associate with those potential circulators for the purpose of political expression. He claimed the law also violated his right to ballot access. Krislov bowed out of the race in February 1996, but continued to maintain this suit and sought class certification, in part because he expects to run for election in the future. Sullivan joined the suit in April 1996. The district court subsequently certified a class which includes all candidates whose nominations to a primary election ballot have been or will be challenged on the basis of 5/7-10. Krislov v. Rednour,
II.
A. Standing and Mootness
The Board first challenges the summary judgment on standing and mоotness grounds. In particular, it alleges that, because the candidates acquired enough signatures to appear on the respective ballots, they suffered no injury.
Article III of the Constitution provides that the judicial power of the courts extends only to cases or controversies. Therefore, parties seeking to invoke the jurisdiction of federal courts must show that they have standing to sue within the meaning of Article III. Standing has essentially three components. A plaintiff must show that he has suffered an "injury in fact," that the challenged action caused the injury, and that the injury can likely be redressed by the cause of action. Lujan v. Defenders of Wildlife,
Here, while the candidates were able to obtain enough signatures to appear on the ballot, they were injured in several different ways. By being denied use of non-registered, non-resident solicitors, they werе required to allocate additional campaign resources to gather signatures and were deprived of the solicitors (political advocates) of their choice. This in itself can be an injury to First Amendment rights. Meyer v. Grant,
As to redressability, the candidates must only show that the requested relief will likely cure the alleged injury. Gillespie v. City of Indianapolis,
As to mootness, everyone concedes the obvious, that the date of the primary election in which Krislov and Sullivan wished to participate has long since passed. Nevertheless, because the use of non-resident, non-registered solicitors is still prohibited by Illinois with respect to future elections, this case is capable of repetition yet evading review, a recognized exception to the mootness doctrine. Rosario v. Rockefeller,
B. First Amendment
The First Amendment, made applicable to thе States by the Fourteenth Amendment, prohibits States from enforcing laws "abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." U.S. Const. amend. I. This Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States,
Like most rights, however, the candidates' First Amendment rights are not absolute. Burdick v. Takushi,
1. The nature and extent of the burden.
The district court determined that 5/7-10 placed a substantial burden on the candidates' rights.3 The Board concedes that the regulation imposes some burden, but argues that it is minimаl. In cases where the material facts are undisputed, the character and extent of the statute's burden involves a question of law which we review de novo. (WIN) Washington Initiative Now v. Rippie,
In arguing that the regulation is only minimally burdensome, the Board mistakenly focuses solely on the fact that Krislov needed only 5,000 signatures statewide to be placed on the ballot, while Sullivan needed only about 660 from the district.4 In reality a candidate needs a surplus of signatures, because they will likely be challenged on any number of grounds, resulting in some, perhaps many, invalidations. See Molinari,
What is particularly important in this case, and what was correctly the focus of the district court's attention, is the number of people the registration and residency requirements exclude from gathering signatures and thus disseminating the candidates' political message. See Buckley,
The candidates' right to promote their political views is also intimately connected with their right of political association, fittingly called the right of expressive association. Citizens Against Rent Control,
The burden placed on the candidates' First Amendment rights is similar in character and magnitude to burdens which the Supreme Court has found to be weighty. For instance, in Meyer v. Grant the Court stated that the prohibition against paying circulators of initiative petitions burdened the free flow of ideas by limiting the number of voices who will convey the desired message, by reducing the size of the audience who might hear thе message, and by making it less likely that the requisite number of signatures will be obtained, which in itself inhibited further discussion of the relevant issues. Id. at 422-23. And recently, in Buckley v. American Constitutional Law Foundation, Incorporated, the Court held that a Colorado law placed a formidable burden on First Amendment rights because it permitted only registered voters of Colorado to circulate initiative petitions for ballot access.
In an attempt to refute this conclusion, the Board makes two arguments. First, it argues that Buckley and Meyer are distinguishable, as they involved ballot access petitions for initiatives and not candidates. This is not a particularly relevant distinсtion, however. To the extent it is relevant, it suggests that the burden on the candidates is even greater than that placed on those who circulate petitions for ballot initiatives. For the ballot initiative proponent will generally seek support for the one narrow issue presented in the initiative, while the typical candidate embodies a broad range of political opinions, and thus those who solicit signatures on their behalf must speak to a broader range of political topics. See Colorado Republican Fed. Campaign Comm. v. FEC, 518 U.S. 604, 629 (1996) (Kennedy, J., concurring and dissenting) (people often give effect to their views by selecting and supporting candidates who reflect those views); Lubin v. Panish, 415 U.S. 709, 716 (1974) (voters assert their preferences through candidates). Indeed, the Supreme Court has recognized that the primary election process often has the effect of determining a political party's position on a variety of significant issues. California Democratic Party, 120 S. Ct. at 2408. Thus, it is appropriate to say that "democracy in any populous unit of governance is unimaginable without the ability of citizens to band together in promoting among the electorate candidates who espouse their political views." Id. By precluding a class of people from soliciting signatures on behalf of a particular candidate, the Illinois law has the potential to squelch a greater quantity and broader range of political speech than laws which only restrict initiative proponents. So this distinction provides no support for the Board's position, and certainly doesn't convince us that the Illinois law doesn't burden the candidates' rights.
Illinois next argues that any burden on the candidates is exaggerated, because although the law might prevent millions of people from soliciting signatures on the candidates' behalf, it is unrealistic to presume that even a few of those individuals restricted by the law were actually interested in circulating petitions for these candidates. It is undoubtedly true that most people excluded from soliciting signatures would likely not be avid supporters. But this fact actually underscores the candidates' argument that the law severely burdens them. Candidates who do not have broad support must count on only a few supporters, and if they are not registered to vote or do not live in the district, the already small pool of volunteers will evaporate, thus greatly limiting the candidates' ability to disseminate their message and obtain the required signatures. By contrast, candidates with the full support of established parties might еasily afford to have non-voting citizens excluded from the much larger pool of potential petition circulators. According to the Board's argument, the law is not particularly restrictive because it might only prevent the candidates from using one or two solicitors. But for some minor candidates, parting with one or two avid circulators could significantly impact their campaigns.
Furthermore, a candidate is entitled, for the most part, to have the spokesperson of his choice. "Government may regulate the manner of speech in a content-neutral way but may not infringe on an individual's right to select the means of speech." Foti v. City of Menlo Park, 146 F.3d 629, 641-42 (9th Cir. 1998). "The First Amendment protects appellees' right not only to advocate their cause but also to select what they believe to be the most effective means for so doing." Meyer,
Section 7-10 places a substantial burden on the candidates' First Amendment rights by making it more difficult for the candidates to disseminate their political views, to choose the most effective means of conveying their message, to associate in a meaningful way with the prospective solicitors for the purposes of eliciting political change, to gain access to the ballot, and to utilize the endorsement of their candidacies which can be implicit in a solicitor's efforts to gather signatures on the candidates' behalf. Accordingly, to survive, the statute must withstand exacting scrutiny.6
2. Compelling interests and narrow tailoring.
Laws which place a substantial burden on First Amendment rights may still withstand heightened scrutiny if they are narrowly tailored to serve a compelling state interest. Eu v. San Francisco County Democratic Central Comm.,
The Board asserts that three interests are served by 5/7-10. First, the law ensures that the candidates have a significant level of support in the community to merit ballot access so as to avoid confusion and deception. The Supreme Court has held that this is an important interest. Jenness,
Furthermore, even if the Board's interest in assuring a threshold level of support were not served by other means, it is obvious that the "fit" between the end to be served by the statute and the means selected to achieve it is not particularly tight, as the provision potentially excludes candidates who have support among the electorate, or who might have support if they could get out their message. Laws which could prevent viable candidates from being elected are at odds with the very foundation of our representative democracy. Bullock,
The Board next asserts that, by requiring solicitors to reside in the same district in which the candidate is seeking office, the law makes it more likely that they will be aware of the boundaries of the district and will thus solicit only valid signatures. This interest is largely paternalistic, as its underlying premise is that the State needs to protect candidates because they aren't savvy enough to find solicitors who can read a street map, and thereby refrain from soliciting signatures in areas outside the relevant district. Of course, there is no per se bar to paternalistic laws, but they are highly suspect when they also burden speech. Eu,
The Board also claims that this provision will at leаst help ensure the integrity of the election process, which as a general proposition is certainly a compelling interest. Timmons, 520 U.S. at 358. It argues that the residency requirement might increase the probability that only valid signatures will be collected, thus ensuring that candidates will not obtain ballot access unless they have valid signatures. But a resident would likely be at the same risk of obtaining an invalid signature (e.g., the signer's registration had expired) as would a non-resident. Like the Supreme Court, we think that the dangers to the electoral system envisioned by the Board are particularly remote when simply gathering signatures, and thus this interest might not be so important at this early stage in the election process as to justify the burden imposed. Meyer,
The Board also contends that the law ensures that candidates have sufficient in-state support from the electorate. There seems to be three facets to this interest. First, the law ensures that candidates have a minimum of local support before they are placed on the ballot. We have already discussed this intеrest above, and regardless of how the argument is repackaged, the means chosen to serve this concern are not narrowly tailored. Second, the Board asserts an interest in allowing only Illinois voters to influence Illinois politics. If this means that the law is designed to ensure that only Illinois residents have a say in electing their representatives, nobody questions the legitimacy or weight of this interest. See Holt Civic Club v. City of Tuscaloosa,
To the extent this law is designed to serve a third interest--preventing citizens of other States from having any influence on Illinois elections--we question its legitimacy. Such laws are harmful to the unity of our Nation because they penalize and discriminate against candidates who wish to associate with and utilize the speech of non-residents. Allowing citizens of the other forty-nine States to circulate petitions increases the opportunity for the free flow of political ideas. In some cases this might entail the introduction of ideas which are nоvel to a particular geographic area, or which are unpopular. But the First Amendment "was designed to secure the widest possible dissemination of information from diverse and antagonistic sources and to assure unfettered interchange of ideas for the bringing about of political and social change desired by the people." Buckley v. Valeo, 424 U.S. at 49 (internal punctuation omitted). This surely includes ideas from citizens of other States, and especially political ideas. Because circulating nominating petitions necessarily entails political speech, it follows that the First and Fourteenth Amendments compel States to allow their candidates to associate with non- residents for political purposes and to utilize non-residents to speak on their behalf in soliciting signatures for ballot access petitions. Cf. Warren v. Fairfax County, 196 F.3d 186, 190 (4th Cir. 1999) (en banc) (law which precludes non-residents from using public forum violates First Amendment); Vannatta v. Keisling,
III.
Because 10 ILCS sec. 5/7-10 prevents political candidates from fully associating with individuals who are not registered to vote in the relevant political subdivisions to circulate nominating petitions, and because it greatly minimizes the candidates' ability to disseminate one type of political speech through these individuals, the provision substantially burdens the candidates' First Amendment rights. It cannot withstand exacting scrutiny because although it helps ensure that candidates have a modicum of support among the electorate, it is not narrowly tailored to serve this or any other compelling interest. Therefore, the district court's decision to grant summary judgment for the candidates is
AFFIRMED.
Notes:
Notes
By requiring that circulators be registered voters living in the seventh district, section 7- 10 creates an anomaly. Under the Qualifications Clause, not even candidates for the seventh district seat are required to live in the district. U.S. Const. art. I, sec. 2, cl.2 (requiring only that a Representative be twenty- five years-old, a citizen for seven years, and "an Inhabitant of that State in which he shall be chosen"). The Constitution also does not require candidates to be registered to vote, either generally or in a specific district. Recently, the Ninth Circuit invalidated a California law that required candidates for eleсted office to reside in that State at the time nominating petitions were filed, because States do not have the authority to supplement the constitutional requirements for the U.S. House of Representatives. Schaefer v. Townsend, 215 F.3d 1031 (9th Cir. 2000).
This difficult process is not unique to Illinois. See Molinari v. Powers,
Of course, the restriction also affects the rights of potential solicitors (unregistered non- residents) and those who might hear their message. See Sweezy v. State of N.H. by Wyman,
Neither the candidates nor the Board specifically offers the exact number of signatures Sullivan needed to appear on the ballot, but they agree that it was about 660.
As this court has previously noted, prohibiting candidates from using signatures gathered by forbidden circulators does not specifically preclude these circulators from speaking for the candidates. Citizens for John W. Moore Party v. Board of Election Comm'rs of the City of Chicago,
We note that even if the statute did not place a substantial burden on First Amendment rights we would still subject it to exacting scrutiny because it places more than a minimal burden on core political speech. See Meyer,
This is not to say that a State could never regulate non-citizen circulators. Thus, for example, to ensure the integrity of the process, States might require non-citizens to register with the Board of Elections and agree to submit to the jurisdiction of Illinois courts. See Buckley,