Flowers v. Illinois State Board of ElectionsFlowers v. Illinois State Board of Elections
This is a case about the constitutionality of Illinois‘s ballot access requirements for independent Congressional candidates. Plaintiff Randy Flowers is an aspiring United States Congressman in Illinois‘s 17th Congressional District. He contends that the signature requirements for ballot access in Illinois are unconstitutional with respect to independent candidates in that district. Now before the Court is Defendant Illinois State Board of Elections‘s (the “ISBE“) motion to dismiss, ECF No. 26, Flowers‘s motion for leave to file a response thereto, ECF No. 31, and his motion for leave to file a second amended complaint (“SAC“), ECF No. 30. For the following reasons, the motion to dismiss is GRANTED IN PART and DENIED IN PART, the motion for leave to file a response is GRANTED, and the motion for leave to file a SAC is DENIED. Also before the Court is Flowers‘s proposed reply in support of his motion to file a SAC, ECF No. 36, which the Court construes as a motion for leave to file. For the following reasons, this motion is GRANTED IN PART and DENIED IN PART.
Eligibility for ballot access for Congressional candidates in Illinois is governed by the Illinois Election Code. See
The Election Code imposes accompanying regulations on filing and signature collection. Candidates for nomination by an established political party must file their petitions not more than 141 nor less than 134 days prior to the primary election.
The ISBE raises four primary arguments for dismissal: (1) the FAC names only the ISBE as a defendant but Flowers‘s claim against the ISBE is barred by sovereign immunity, see Mot. Dismiss 4-7, (2) the FAC fails to comply with Federal Rule of Civil Procedure 8‘s requirement that a complaint contain “a short and plain statement of the claim,” id. at 7-8, (3) the FAC fails to state a claim for relief on the merits, id. at 8-13, 15-21, and (4) Flowers lacks standing and his claims are unripe, id. at 14-15. Flowers failed to file a response by May 18, 2026, the response deadline, but filed two motions on May 21, 2026: a motion for leave to file a SAC and a motion for leave to file a response to the ISBE‘s motion to dismiss. The next day, Flowers filed a proposed response to the motion to dismiss, and on May 26, 2026, he filed a proposed SAC, ECF No. 34. Defendants did not respond to the motion for leave to file a response out of time, but they oppose the motion for leave to file a SAC because it does not cure the deficiencies in the FAC. See generally Resp. Mot. Leave File Resp., ECF No. 35. Flowers then filed a reply in
DISCUSSION
I. Motion for Leave to File a Reply
Under the Court‘s Local Rules “[a] reply to the response is only permitted with leave of Court.” Civil LR 7.1(B)(3). “Replies may be allowed for reasons including the non-movant‘s introduction of new and unexpected issues in his response, and the interest of completeness.” Magnuson v. Exelon Corp., 658 F. Supp. 3d 652, 658 (C.D. Ill. 2023) (alterations and quotation marks omitted). “[T]he Court does not typically permit the moving party to file a reply in order to introduce new arguments or evidence that could have been included in the motion itself, or to rehash the arguments made in the motion.” Shefts v. Petrakis, No. 10-cv-1104, 2011 WL 5930469, at *8 (C.D. Ill. Nov. 29, 2011). Since Flowers did not request permission before filing his proposed reply, he did not explain why a reply is appropriate. Much of the reply is not even related to his motion to file a SAC. Instead, nearly the entirety of the proposed reply serves as an argument on the merits of his constitutional claim. See Reply 1-6, 8-13, 15-18. It also seeks to correct a mistake in Flowers‘s response to the motion to dismiss, id. at 17, and responds to Defendants’ claim that he used artificial intelligence to write his brief, id. at 13-15. Flowers only briefly advances reasons that the SAC is appropriate. Id. at 6-8. In the interest of completeness, the Court GRANTS IN PART and DENIES IN PART leave to file a reply. The Court will consider only the portions of Flowers‘s reply correcting a mistake in his previous filing and supporting his motion for leave to file a SAC. See id. at 6-8, 17.
Since Flowers has already amended his complaint once, he may only do so for a second time with leave of the court or consent of Defendants.
Flowers requests leave to amend in response to the ISBE‘s motion to dismiss, especially its “sovereign-immunity and pleading-structure objections that can be addressed through targeted amendments.” Mot. Leave File SAC 1. He identifies four amendments that the SAC will incorporate:
- Correct the caption and defendant naming to proceed under Ex parte Young by naming the appropriate Illinois State Board of Elections members and/or officers in their official capacities for prospective declaratory and injunctive relief, thereby curing any Eleventh Amendment and
42 U.S.C. § 1983 “person” issues identified in the Motion to Dismiss. - Remove any remedy-only “counts” and present declaratory and injunctive relief solely in the Prayer for Relief.
- Present each constitutional theory in a separate, clearly labeled count consistent with Rules 8(a) and 10(b), and streamline narrative allegations to focus on facts material to the Anderson-Burdick analysis and related Fourteenth Amendment claims.
- Verify and update all allegations concerning the identifies and titles of Board members and officials based on current public records, and correct any inadvertent clerical errors.
Id. at 2.
In this case, any of these four amendments would be futile because they would not change the merits of Flowers‘s complaint. The first three proposed amendments are unnecessary because “[t]he Federal Rules of Civil Procedure do not require a plaintiff to plead legal theories.”
III. Motion for Leave File Response Out of Time
The ISBE filed its motion to dismiss on May 4, 2026, meaning Flowers‘s deadline to respond was May 18, 2026. See Civil LR 7.1(B)(2) (imposing a 14-day deadline to respond to motions).
Flowers states that he “inadvertently missed the response deadline due to a good-faith calendaring oversight.” Mot. Leave File Resp. 1. Even if Flowers‘s neglect was careless, it is excusable. Defendants have not objected to Flowers‘s motion, suggesting there is no risk of prejudice. The delay lasted only three days and has not impacted judicial proceedings. The reason for the delay was within Flowers‘s control, but it was inadvertent and there is no indication that Flowers acted in bad faith. Accordingly, Flowers‘s motion for leave to file a response out of time is GRANTED.
IV. Motion to Dismiss
a. Legal Standard
A court may dismiss a complaint if it “fail[s] to state a claim upon which relief can be granted.”
As the Court explained when ruling on Flowers‘s motion for a preliminary injunction, this case, though nominally proceeding on numerous counts, is rightly subject to a single legal analysis. See May 11, 2026 Order 7-8. This test, referred to as the Anderson-Burdick test, evaluates whether, under the First and Fourteenth Amendments, the character and magnitude of the burden imposed by a state‘s election laws are justified by the underlying state interests. See id. at 7-9; Anderson v. Celebrezze, 460 U.S. 780, 788-89 (1983); Burdick v. Takushi, 504 U.S. 428, 434 (1992); Krislov v. Rednour, 226 F.3d 851, 859-60 (7th Cir. 2000). Because the Court has already clarified the theory under which Flowers may proceed, it does not find it necessary to address further any arguments related to other legal tests. And because the presence of extraneous counts in the FAC does not mask the gravamen of Flowers‘s complaint—especially since the Court‘s previous order clarified the operative legal theory in this case—the Court will not dismiss the FAC for failure to comply with the Rules 8 or 10 of the Federal Rules of Civil Procedure. The Court also addressed justiciability in its previous order. See May 11, 2026 Order 5-6. The ISBE‘s jurisdictional arguments are rejected for the reasons stated therein. The Court therefore proceeds to consider (a) the identity of the proper defendants, and (b) whether dismissal for failure to state a claim is proper on the merits.
i. Proper Parties
The ISBE makes a two-part argument: (1) the case cannot proceed against the ISBE because it is protected by sovereign immunity, and therefore (2) the case must be dismissed because the FAC lists no other defendants in the caption. See Mot. Dismiss 4-7.
Flowers does not contest the first component of the ISBE‘s argument. See Resp. Mot. Dismiss 8-9, ECF No. 33. He concedes that “the Board itself cannot be sued directly for
However, the Court does not accept the second component of the ISBE‘s argument.
Although the motion to dismiss was nominally brought only by the ISBE, for the sake of equity and judicial economy, the Court will consider the ISBE‘s merits arguments to determine whether Flowers‘s claim against the Board Members should be dismissed.
Defendants present several reasons to dismiss Flowers‘s complaint, but the crux of their argument is that Supreme Court and Seventh Circuit precedent clearly establishes that Illinois‘s ballot access requirements are constitutional. See Mot. Dismiss 15-21. As the Court reasoned in its prior order, the case law strongly suggests that Defendants’ assessment is correct. See generally May 11, 2026 Order.4
The Supreme Court has explained that ballot access requirements may run afoul of First and Fourteenth Amendment rights to free speech and association, equal protection of the laws, and effective voting. See Anderson, 460 U.S. at 786 n.7; Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979). Courts assess whether these rights are violated by applying a balancing test wherein courts must examine “the character and magnitude of the burden and the extent to which the law serves the State‘s interests.” Krislov, 226 F.3d at 859-60 (citing Anderson, 460 U.S. at 789; Burdick, 504 U.S. at 434). Under this test, courts first determine “the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Burdick, 504 U.S. at 434. This is ultimately a question of “whether a reasonably diligent candidate could be expected to be able to meet the requirements and gain a place on the ballot.” Stone v. Bd. of Election Comm‘rs for Chi., 750 F.3d 678, 682 (7th Cir. 2014) (quotation marks omitted). Courts then apply a sliding-scale scrutiny wherein the level of scrutiny depends on the extent of the burden. Burdick, 504 U.S. at 434. If the regulation severely restricts constitutional rights, then “the regulation must be ‘narrowly drawn to advance a state interest of compelling importance.‘” Id. (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). “But when a
Applying this standard, all levels of courts have repeatedly found that ballot access restrictions similar to those imposed by the Election Code are constitutional. Courts have upheld similar signature requirements, see, e.g., Jenness v. Fortson, 403 U.S. 431, 432, 442 (1971) (upholding Georgia requirement that independent candidates submit a petition signed by “at least 5% of the number of registered voters at the last general election for the office in question“); Am. Party of Tex. v. White, 415 U.S. 767, 788-90 (1974) (upholding Texas provision requiring independent candidates to submit signatures of either 3% or 5%—depending on the office—of the vote cast for governor in that district in the last election); Libertarian Party of Ill. v. Rednour, 108 F.3d 768, 775 (7th Cir. 1997) (“[The plaintiff] cannot argue that the 5% petitioning requirement is severe on its face.“), petitioning windows, see, e.g., Nader v. Keith, 385 F.3d 729, 736-37 (7th Cir. 2004) (90 days); Stone, 750 F.3d at 680, 684 (90 days); Am. Party of Tex., 415 U.S. at 786 (55 days), filing deadlines, Jenness, 403 U.S. at 433-34 (finding ballot access restrictions including a filing deadline the second Wednesday in June constitutional); Nader, 385 F.3d at 735-36 (affirming denial of motion seeking to enjoin ballot access requirement that, inter alia, third party candidates file nominating petition 134 days before the general election), and restrictions on who can sign or circulate petitions, see, e.g., Stone, 750 F.3d at 680, 684 (considering scheme in which “voters may not sign more than one nominating petition for the same office in a single election cycle“); Am. Party of Tex., 415 U.S. at 778, 789 (considering scheme requiring signatures to be administered and signed with a notarized oath and barring those who voted in party primaries from signing independent petitions); Nader, 385 F.3d at 731, 734 (considering
Moreover, several courts have specifically held that identical or nearly identical versions of the Illinois Election Code are constitutional. See generally Tripp v. Scholz, 872 F.3d 857 (7th Cir. 2017) (affirming grant of summary judgment); Gill v. Scholz, No. 3:16-cv-03221-SLD-EIL, 2022 WL 992729 (C.D. Ill. Mar. 31, 2022) (granting summary judgment), vacated and remanded on mootness grounds sub nom. Gill v. Linnabary, 63 F.4th 609 (7th Cir. 2023); Stevo v. Keith, No. 08-3162, 2008 WL 4059051 (C.D. Ill. Aug. 27, 2008) (denying motion for preliminary injunction and granting motion to dismiss), aff‘d, 546 F.3d 405 (7th Cir. 2008); Davis v. Smart, No. 14-3224, 2015 WL 1208787 (C.D. Ill. Mar. 13, 2015) (granting motion to dismiss).
Flowers‘s most forceful claims to the contrary hold little sway. First, he argues that Navarro v. Neal, 716 F.3d 425 (7th Cir. 2013), is dispositive because it struck down as unconstitutional Illinois‘s 5% signature requirement as applied to an independent congressional candidate. Resp. Mot. Dismiss 2, 15-19. But that is not what the Navarro court did. In Navarro, the Seventh Circuit held that
Second, Flowers‘s arguments rooted in the geography and weather of the 17th District do little to persuade the Court that he faces a severe burden. As the Court has already noted, the 17th District is “large, but not uniquely so.” Id. at 15. In fact, the geography of its population centers is such that “[e]nlisting circulators even in only the four largest population centers in the 17th District would provide access to a substantial amount of the district‘s population with very little travel.” Id. at 16. With respect to the climate of the 17th District, “Flowers gives no reason to believe the weather during the petitioning window is constitutionally relevant,” id., and even if it were, “the weather described by Flowers is not so extreme as to meaningfully alter the Court‘s analysis” since “it is not unreasonable to expect aspiring United States congressmen to continue their campaign activity despite the presence of wind and/or rain.” Id. at 16-17.
Third, Flowers argues that the 5% signature requirement is unconstitutional because it is substantially higher than the signature requirement for established party candidates. See Resp. Mot. Dismiss 24. This, too, is unavailing since comparing the two requirements is “to compare apples with oranges.” Libertarian Party of Ill., 108 F.3d at 776. As the Court stated in its prior order, “Flowers ignores the reality that established party candidates must traverse a primary process, which itself establishes support for the eventual nominee. Moreover, it is not self-evident that the signature requirement for independent candidates is more burdensome than the primary gauntlet faced by established party candidates.” May 11, 2026 Order 21; see also Libertarian Party of Ill., 108 F.3d at 776 (“The two petitioning requirements contain different percentages because they are used at two different times for two different purposes.“).
Flowers raises two factual allegations that previous cases have not assessed. First, he maintains that no independent candidate for United States Representative has ever satisfied Illinois‘s 5% signature requirement. See FAC 2 (“No independent congressional candidate has ever succeeded in meeting the signature threshold imposed by
Second, Flowers alleges that up to 60% of signatures are routinely invalidated by the State of Illinois and that, as a result, the burden of the Election Code is substantially higher than the 5% signature requirement suggests on its face. FAC 5. The Seventh Circuit has stated that the best way to evaluate the burden imposed by signature invalidation “is to determine the total number of petitions that a [candidate] would have to submit in order to be reasonably confident of having enough valid ones to get on the ballot.” Nader, 385 F.3d at 734. In Nader, the invalidation process was found to not pose an excessive burden because, even if one-third of signatures were invalidated, the plaintiff only needed to collect signatures equal to “slightly more than one-half of one percent of the number of registered voters in Illinois.” Id. In this case, however, if 60% of signatures were invalidated, then Flowers would have to obtain a greater number of signatures than required by the prior version of the Election Code found unconstitutional in Lee. See Lee, 463 F.3d at 772 (holding that ballot access restrictions including 10% signature requirement was unconstitutional).
In combination, Flowers‘s allegations about signature invalidation and the failure of previous independent candidates to meet the 5% signature requirement, if true, suggest that the Election Code imposes a greater burden on his candidacy than that assessed in any cases cited by Defendants or by the Court in its prior order. It is therefore appropriate for this case to proceed to discovery to give the parties an opportunity to gather evidence proving or disproving these factual allegations.
Accordingly, Defendants’ motion to dismiss, ECF No. 26, is GRANTED IN PART and DENIED IN PART. Plaintiff Randy Flowers‘s claims against the Illinois State Board of Elections and Jessie Poole are DISMISSED. The Clerk is directed to terminate these defendants on the docket. Flowers‘s constitutional claim brought under the First and Fourteenth Amendments may proceed against the remaining Defendants, members of the Illinois State Board of Elections. Any claims brought under other constitutional provisions or legal theories are DISMISSED. Flowers‘s motion for leave to file a response, ECF No. 31, is GRANTED. His motion for leave to file a second amended complaint, ECF No. 30, is DENIED. Flowers‘s proposed reply, ECF No. 36, construed as a motion for leave to file, is GRANTED IN PART and DENIED IN PART.
The Court notes that, in recent filings, Flowers has included defendants in the caption who were not named in the operative complaint. See, e.g., Mot. Leave File Resp. 1, ECF No. 31 (naming Bernadette Matthews, Jeremy Kirk, and Rick S. Terven). The current Defendants in this case are only the following individuals named in the First Amended Complaint, ECF No. 24: Cassandra B. Watson, Cristina Cray, Laura K. Donahue, Tonya L. Genovese, Catherine S. McCrory, Jack Vrett, and Jennifer M. Ballard Croft. If Flowers wishes to add additional parties, the Court grants limited leave to amend within fourteen days only for the purpose of naming additional defendants.
Entered this 20th day of July, 2026.
s/ Sara Darrow
SARA DARROW
UNITED STATES DISTRICT JUDGE