Case Information
*1 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION
WILLIAM MORGAN, ELIZABETH NORDEN, ) Case No. 20 C 2189 DAVID VAUGHT, DORIS DAVENPORT, )
ANDREA RAILA, JACKSON PALLER, ) Hon. Charles R. Norgle, Sr., COMMITTEE FOR THE ILLINOIS DEMOCRACY ) Presiding Judge AMENDMENT, an unincorporated political )
association, ) Hon. M. David Weisman,
) Magistrate Judge Plaintiffs, )
)
v. )
)
JESSE WHITE, in his official capacity as )
Illinois Secretary of State, DEVON REID, in his )
official capacity as Evanston City Clerk, )
KAREN A. YARBROUGH, in her official )
capacity as Cook County Clerk, )
WILLIAM J. CADIGAN, KATHERINE S. )
O’BRIEN, LAURA K. DONAHUE, )
CASSANDRA B. WATSON, WILLIAM R. HAINE, )
IAN K. LINNABARY, CHARLES W. SCHOLZ, )
WILLIAM M. MCGUFFAGE, in their official )
capacities as Board Members for the Illinois )
Board of Elections, )
) Hon. Rebecca R. Pallmeyer, Defendants. ) Emergency Judge MEMORANDUM OPINION AND ORDER
Plaintiffs are Illinois registered voters who seek to circulate (1) “an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution” and/or (2) “an initiative petition for a local government referendum in Evanston, Illinois pursuant to Article VII, Section 11 of the Illinois Constitution.” (Am. Compl. [26] ¶¶ 3–8.) 1 Plaintiffs wish to qualify these referenda for placement on the November 3, 2020 gеneral election ballot. To do so, they must satisfy certain petition collection requirements set forth in the Illinois Constitution and the Illinois Election Code. On April 7, 2020, 1 Plaintiffs also include the Committee for the Illinois Democracy Amendment, “an unincorporated political association registered as a ballot initiative committee with the Illinois State Board of Elections.” ( ¶ 9.)
Plaintiffs filed this lawsuit “to enjoin or modify Illinois petition collection requirements for initiative referendums to be placed on the November 3, 2020 general election ballot . . . in light of the current public health emergency caused by the novel coronavirus” and Governor J.B. Pritzker’s stay-at-home orders. ( ¶ 1.) Defendants are the Illinois Secretary of State (Jesse White); the Evanston City Clerk (Devon Reid); the Cook County Clerk (Karen A. Yarbrough); and members of the Illinois State Board of Elections.
On April 9, 2020, Plaintiffs filed an emergency motion for a preliminary or permanent injunction [4] seeking to modify certain petition collection requirements, extend the deadline for submitting the initiative petition under Article XIV, Section 3 of the Illinois Constitution, and reduce the number of signatures required to qualify bоth initiative petitions for placement on the November 3, 2020 general election ballot. 2 The court held a hearing by telephone on April 17, 2020 and denied the motion. Plaintiffs filed an emergency motion for reconsideration “in light of new developments and to correct the record” on April 28, 2020 [29]. The court denied that motion, as well, after a further telephone hearing on May 7, 2020. This order briefly memorializes the reasons for that ruling.
BACKGROUND
A. Illinois Election Laws
Plaintiffs seek to propose an amendment to the Illinois Constitution, pursuant to a procedure established in Article XIV, Section 3 of the Illinois Constitution. That Article provides:
Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. . . . A petition shall contain the text of the proposed amendment and the date of the general election at which the proposed amendment is to be submitted, shall have been signed by the petitioning electors not more than twenty-four months preceding that general election and shall be filed with the Secretary of State at least six months before that general election. The procedure for determining the validity and sufficiency of a petition shall be provided by law.
2 This matter is assigned to the Honorable Charles R. Norgle, Sr. Judge Pallmeyer is addressing this matter as emergency judge, for purposes of this motion only, pursuant to paragraph 7 of Third Amended General Order 20-0012.
I LL . C ONST . art. XIV, § 3; see also 10 ILCS 5/28-9. Thus, for their proposed amendment to qualify for placement on the November 3, 2020 general election ballot, Plaintiffs were required to submit 363,813 initiative рetition signatures to the Illinois Secretary of State by May 3, 2020. (Am. Compl. ¶ 37.) Because the petition must be signed by electors “not more than twenty-four months preceding [the] general election” and “filed with the Secretary of State at least six months before” that election, the 18-month window in which Plaintiffs were to gather signatures was set to close less than four weeks after Plaintiffs initiated this action.
Article VII, Section 11 of the Illinois Constitution authorizes a process for citizens who wish to circulate an initiative petition for a local government referendum, as well. It provides:
(a) Proposals for actions which are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the electors by resolution of the governing board of a unit of local government or by petition of electors in the manner provided by law.
(b) Referenda required by this Article shall be held at general elections, except as otherwise provided by law. Questions submitted to referendum shall be adopted if approved by a majority of those voting on the question unless a different requirement is specified in this Article.
I LL . C ONST . art. VII, § 11; see also 10 ILCS 5/28-7. For the Evanston local government referendum to qualify for placement on the November 3, 2020 general election ballot, Plaintiffs must submit 2,800 signatures to the Evanston City Clerk by August 3, 2020. (Am. Compl. ¶ 38.) 3
The Illinois Election Code also imposes signature collection requirements. The Code states that at the bottom of each sheet of an initiative petition, the circulator must add a sworn statement “certifying that the signatures on that sheet . . . were signed in his or her presence.” 10 ILCS 5/28-3. It also requires that the original petition sheets, rather than photocopies or duplicates, be filed with the aрpropriate election authorities. ; see also 10 ILCS 5/28-9. These are among the requirements Plaintiffs seek to enjoin. ( See, e.g. , Am. Compl., Prayer for Relief.) 3 The parties do not explain how they arrived at this number, but both sides agree that Plaintiffs need 2,800 signatures by August 3, 2020. *4 B. Defendants
According to Plaintiffs’ allegations, the members of the Illinois State Board of Elections are the only Defendants “empowered to enforce and administer Illinois election laws.” (Am. Compl. ¶ 13.) Plaintiffs allege that the Evanston City Clerk “is authorized to accept filings of local government initiative referendums for Evanston pursuant [to] Article VII, Section 11 of [the] Illinois Constitution and to certify those referendums to the Cook County Clerk for ballot placement,” and that the Cook County Clerk’s office “is responsible for placing on the election ballot any Article VII initiative referendum questions certified by the clerks of suburban Cook County municipalities, including the Evanston City Clerk.” ( Id. ¶¶ 11–12.) Finally, Plaintiffs allege that the Illinois Secretary of State “is constitutionally authorized to accept filings of petitions for constitutional amendments pursuant to Article XIV, Section 3 of the Illinois Constitution.” ( Id. ¶ 10.)
The Illinois Secretary of State, for his part, has еxplained that he “does not enforce the petition collection requirements at issue here.” (Def. White Resp. (“White Resp.”) [20] at 1.) Rather, once proposed constitutional amendments are filed with the Secretary of State, he “deliver[s] such petition[s] to the State Board of Elections” within one business day. ( (quoting 10 ILCS 5/28-9).) After the State Board of Elections resolves any objections to the petitions (White Resp. at 1 (citing 10 ILCS 5/28-4)), the Secretary of State “ensures that any proposed amendments are published in newspapers throughout the State (in multiple languages) and that pamphlets describing the amendments are mailed to every mailing address in the State (again, in multiple languages).” (White Resp. at 1.) The Secretary of State’s deadline for publishing the proposed amendments in newspapers and mailing the related pamphlets is “at least one month before the election (October 3, 2020).” (Decl. of Amy Williams in Supp. of White Resp. (“Williams Decl.” [20-1] ¶¶ 3, 8.) To meet the October 3, 2020 deadline, the Secretary of State must “start[] working in early May, shortly after the petition filing deadline.” ( Id. ¶ 4.) *5 C. Plaintiffs’ Petition Circulation Efforts
Of the seven Plaintiffs, just one—William Morgan—claims to have “begun an initiative petition drive” before filing this lawsuit. (Am. Compl. ¶ 3.) The remaining Plaintiffs allege that they “wish[ ] to circulate” petitions. (Am. Compl. ¶¶ 3–8.) And although Plaintiff Morgan alleges that he has begun the process, he offered no evidence showing when he began those efforts or how many signatures he has collected. ( See id .; see generally Morgan Decl., Ex. 1 to Compl. [1- 2], Ex. 1 to Am. Compl. [26-1].) The court notes that Morgan’s ballot initiative committee was created on April 1, 2020, eight days before he filed this suit. ( See Ex. A to Def. Bd. of Elections Resp. [21-1].) The remaining Plaintiffs also offer no evidence concerning the number of signatures, if any, they hаve collected to date for the relevant initiative petitions. ( See generally Exs. 2–6 to Compl. [1-3–1-7]; Exs. 2–6 to Am. Compl. [26-2–26-6].)
Plaintiffs contend that they could not have started collecting signatures for the Illinois Democracy Amendment before March 31, 2020. ( See Plaintiffs’ Reply in Supp. of Emergency Mot. for Reconsideration (“Reply”) [36] ¶ 11.) 4 That was the deadline for the Illinois Joint Commission on Lobbying and Ethics Reform—which the Illinois General Assembly created in November 2019—to “examin[e] current Illinois legislation regarding ethics reform, solicit[] feedback from experts and the general public, and release[] a final reрort with its review and recommendations.” (Am. Compl. ¶ 21.) According to Plaintiffs, the Commission determined that “due to the COVID-19 pandemic,” it could not meet its deadline and “would therefore make no recommendations on lobbying and ethics reform.” ( Id. ¶ 30.) This announcement, Plaintiffs argue, was the “impetus” for the initiative petition concerning the Illinois Democracy Amendment. (Reply ¶ 11; Apr. 17, 2020 Hrg. Tr. at 7:15–19.)
4 Plaintiffs do not advance this argument for the Evanston local government referendum.
DISCUSSION
A. Standing
“[A] plaintiff seeking relief in federal court must first demonstrate that he has standing to
do so.”
Gill v. Whitford
,
First, Plaintiffs have not demonstrated that their injury is traceable to the challenged
actions of аny of the Defendants.
See Lujan
,
Plaintiffs attempt to excuse their inaction by observing that in a handful of past election cycles, petition circulators collected all required signatures in the two months before the deadline—the approximate amount of time that remained to qualify the Illinois Democracy Amendment for the general election ballot before the stay-at-home order commenced. ( See, e.g. , May 7, 2020 Hrg. Tr. [39], at 11:15–21 (citing Vaught Decl., Ex. 3 to Am. Compl. [26-3] ¶ 5).) But the Governor did not issue his stay-at-home order until mid-March, well less than two months before the May 3, 2020 deadline. Nothing in the record supports an inference that, absent that order, Plaintiffs would have been able to collect necessary signatures in the weeks between the issuance of the order and May 3. Morgan, the only Plaintiff who had begun the process at all, offered no evidenсe that he had collected a single signature before this suit was filed in early April.
Plaintiffs have further undermined any argument that the Defendants’ actions are causally connected to their injuries by repeatedly contending that the stay-at-home order is the “state action” that itself violated the Constitution in that the order “basically clipped off two” of the 18 months allotted for signature collection. (May 7, 2020 Hrg. Tr. at 7:11–16; 13:20–14:2.) But it was Governor Pritzker, not the Illinois Board of Election Commissioners, who imposed the stay- at-home order, and Plaintiffs have not named the Governor as a Dеfendant. Plaintiffs’ claims against the remaining Defendants are infirm for other reasons, as well: Neither the Evanston City Clerk, the Cook County Clerk, nor the Illinois Secretary of State is authorized to administer or enforce Illinois election laws. As the Evanston City Clerk points out, the law allows it to perform only one function in the referendum process: “allow the petitions to be filed.” (Def. Reid Resp. [14] at 6.) The Evanston City Clerk has never argued that it “will not accept petitions signed by a number of qualified electors.” ( ) Similarly, the Cook County Clerk states that it “has no role in the referendum proсess.” (Def. Yarbrough Resp. [17] at 2–3.) It merely places certified *8 referendum questions on the ballot. ( See Am Compl. ¶ 12; Def. Yarbrough Mot. to Dismiss [19] at 6 (stating that the County Clerk “is not authorized to accept filings of initiative referendums,” “certify such referendums,” or “enforce and administer Illinois election laws with respect to the filing of referendums”).) And the Secretary of State is responsible only for delivering petitions to the Board, publishing proposed amendments in newspapers, and mailing pamphlets describing those amendments.
The court thus has grave doubts concerning Plaintiffs’ standing to sue any of the named Defendants. For the sake of completeness, however, the court addresses the merits of Plaintiffs’ request for injunctive relief, as well.
B. Preliminary Injunction
Temporary restraining orders and preliminary injunctions are extraordinary and drastic
remedies that “should not be granted unless the movant, by a clear showing, carries the burden
of persuasion.”
Mazurek v. Armstrong
,
1. Likelihood of Success on the Merits / Irreparable Harm Plaintiffs challenge the Illinois requirеments for circulating and qualifying initiative petitions for the November 3, 2020 ballot as a violation of their First Amendment rights to petition and speech. 5 Specifically, Plaintiffs contend that, because circulating initiative petitions is not an essential activity under the Governor’s stay-at-home order, the combination of the COVID-19 pandemic and the Governor’s order make it impossible for initiative petition circulators to gather and personally witness handwritten signatures. (Pls.’ Mot. for Prelim. Inj. [6] at 5.) Therefore, Plaintiffs argue, certain Illinois petition requirements—including handwritten signatures, a notаrized affidavit from the petition circulator confirming that he personally witnessed the signatures (“witness requirement”), the May 3, 2020 filing deadline, the need to obtain 363,813 signatures, and the need to bind and file all petition pages in one book (“binding requirement”)— severely limit their ability to exercise their First Amendment rights under the circumstances. ( at 6.)
There is no federal constitutional right to place referenda on the ballot. 6
Jones v.
Markiewicz-Qualkinbush
,
6 For this reason, among others, Plaintiffs’ case is distinguishable from
Libertarian
Party of Ill. v. Pritzker
, No. 20 C 2112,
Jones
,
In current circumstances (of the COVID-19 pandemic and the Governor’s order requiring
social distancing), the combination of the handwritten signature, number of signatures, and
witness requirements arguably inhibit communicative conduct—specifically, Plaintiffs’ ability to
сirculate petitions. The filing deadline and binding requirements, in contrast, do not inhibit
Plaintiffs’ ability to
circulate
petitions even under the current circumstances, nor do they affect
who may engage in political speech. Instead, these provisions establish procedures that limit
Plaintiffs’ access to the ballot and are therefore subject to the reasoning laid out by the Seventh
Circuit in
Jones
.
See McIntyre v. Ohio Elections Comm’n
, 514 U.S. 334, 345 (1995)
(distinguishing between statutory provisions that “control the mechanics of the electoral process”
and “regulation[s] of pure speech”). Because Plaintiffs do not argue that these restrictions
*11
distinguish by viewpoint or content, the filing deadline and binding requirements are subject to
rational basis review.
See Jones
,
Plaintiffs’ challenge to the handwritten signature, number of signatures, and witness
requirements is more weighty because, under the circumstances of the COVID-19 pandemic, the
combined effect of these requirements arguably limit Plaintiffs’ ability to circulate petitions—a type
of core political speech.
See Meyer
,
The second type of harm discussed in Meyer occurs when a law “makes it less likely that [petition circulators] will garner the number of signatures necessary to place the matter on the *12 ballot, thus limiting their ability to make the matter the focus of statewide discussion.” at 423. Plaintiffs contend that they have been unable to colleсt any signatures since the Governor’s stay- at-home order took effect on March 20, 2020 and therefore that the witness and handwritten signature requirements inhibit their ability to obtain the necessary 363,813 signatures. (Pls.’ Mot. for Prelim. Inj. at 5–6.) For reasons described earlier, however, the court is unable to conclude that it is state action that has precluded Plaintiffs’ efforts. They have been free to circulate and gather signatures since November 2018, yet of the seven Plaintiffs, just one had even begun the effort prior to the Governor’s order, and that single Plaintiff (Morgan) offered no evidenсe that he had collected any signatures prior to the issuance of that Order. Morgan’s own ballot initiative committee was not created until April 1, 2020. ( See Ex. A to Board Resp. [21-1].)
Plaintiffs have not established that it is state law, rather than their own 16-month delay, that imposes a severe burden on their First Amendment rights, even in the context of the COVID- 19 pandemic. Cf. Stone , 750 F.3d at 682 (“What is ultimately important is . . . whether a reasonably diligent candidate could be expected to be able to meet the requirements and gain a place on the ballot.”). Indeed, with respect to the City of Evanston, Plaintiffs have presented no evidence of any severe burden; the deadline for gathering signatures there does not expire until August 3. The court concludes Plaintiffs have not established a likelihood of success on their claims or that the balance of hardships, discussed below, favors this motion.
2. Balance of Harm and Public Interest
Even if putting a constitutional amendment to the voters is not a First Amendment right,
see Jones
,
And despite Plaintiffs’ contention to the contrary, the relief they request may appears likely to result in concrete harm to Defendants. In a similаr case in the Central District of Illinois, the court noted that “[t]he Illinois constitution and state and federal law set out duties that must be performed by the ISBE Defendants and the Secretary of State.” Bambenek v. White , No. 20 C 3107, 2020 WL 2123951, at *5 (C.D. Ill. May 1, 2020) (citing 42 U.S.C. 1973-ff-1 et seq. ; I LL . C ONST . art. XIV, § 3; 10 ILCS 5/28-5). Plaintiffs’ requested extension “would make it extremely difficult, if not impossible, for those defendants to fulfill their constitutionally and statutorily mandated obligations.” Id. As Defendants have explained, much time is needed to verify signatures and ensure that objections to them can be filed and reviewed. See 10 ILCS 5/28-4 (rules regarding objections to proposed constitutional amendments). Additional statutory duties include publishing the proposed amendment in newspapers statewide at least one month before the election and creating a pamphlet, which explains the proposed amendment and includes arguments for and against it, that is mailed to every address in the state at least one month before the election. (Williams Decl. ¶¶ 3–12.) The newspaper publication and pamphlets must be translated into many different languages, the process for which is supposed to begin in mid-May. ( ) Delays may also jeopardize the state’s ability to comply with the Uniformed and Overseas Citizens Absentee Voting Act, which requires that military ballots be mailed to troops forty-five days prior to the election. 42 U.S.C. § 1973-ff-1 et seq.
Preventing Defendants from being able to fulfill these statutory duties not only imposes
harm on them but also appears contrary to the public interest
. See Planned Parenthood of Ind.
,
Plaintiffs are correct that this court and those in other jurisdictions have granted relief, similar in part to what Plaintiffs request here, in other election law challenges generated by state stay-at-home orders. See, e.g., Libertarian Party of Ill. v. Pritzker , No. 20 C 2112, 2020 WL 1951687 (N.D. Ill. April 23, 2020) (easing ballot access requirements for new party and independent candidates). Significantly, however, for new party and independent candidates in Illinois, “the ‘window’ for gathering such signatures opened at nearly the same time that Governor Pritzker first imposed restrictions.” at *4. In contrast, Plaintiffs here were free to begin collecting signatures fоr their referenda in November 2018—more than a year before any coronavirus-related disruptions had begun. See 10 ILCS 5/28-9 (emphasis added) (“Such petition [for proposed amendments] shall have been signed by the petitioning electors not more than 24 months preceding the general election . . . .”). Moreover, constitutional amendments are subject to several requirements—such as the preparation of explanatory pamphlets, translation into several languages, see Williams Decl., and publication in newspapers statewide one month before the election, 5 ILCS 20/2—that do not apply to new party or indeрendent candidates.
Plaintiff Morgan here began the referendum process at the eleventh hour, and the other Plaintiffs have not effectively begun it at all. They have not made a compelling showing that the court should require public officials to upend the statutory and constitutional timetable for that process. In sum, neither the balance of harms nor the public interest favors granting Plaintiffs’ requested injunction.
CONCLUSION For the foregoing reasons, the court denies Plaintiffs’ Emergency Motion for Reconsideration in Light of New Developments and to Correct the Record [29].
ENTER: Date: May 18, 2020 ____________________________
REBECCA R. PALLMEYER United States District Judge