The New York Republican State Committee will hold a primary on March 7, 1996 in which it will select its delegates to the 1996 Republican National Convention. The rules of the National Republican Party mandate that three convention delegates are to be elected in each congressional district. To be eligible for the ballot under New York law, delegate candidates need to collect signatures from the lesser of five percent or 1250 of the enrolled Republicans in the delegates’ congressional district. The United States District Court for the Eastern District of New York (Korman, J.) issued an injunction on December 1,1995, striking down the “five percent or 1250” rule as a violation of the Fourteenth Amendment’s Equal Protection Clause and instituting in its place a “1.41 percent or 1250” rule. See Rockefeller v. Powers,
The Republican State Committee moved for an expedited appeal, so that delegate candidates who were in the process of collecting signatures for nominating petitions due on January 4, 1996, would know what the signature requirement was. On December 5, 1995, we granted the motion to expedite the appeal. On December 21, 1995, after oral argument, we vacated the injunction and announced that an opinion would follow.
I
The plaintiffs are enrolled New York Republicans, residing in the Tenth, Eleventh, Twelfth, and Fourteenth congressional dis
In presidential election years, the National Republican Party holds a convention at which it chooses its nominees for President and Vice-President, adopts a platform expressing Party policy positions, and takes care of internal Party affairs. Among other things, the delegates adopt the rules that govern delegate selection for the next convention. The rules adopted at the 1992 Convention provide that each state may send to the 1996 Convention six at-large delegates, several “victory bonus” delegates (assigned to states that voted Republican in the 1992 presidential election or that have prominent or numerous Republican officeholders), and three delegates “for each Representative” in the House of Representatives. Rules of the Republican Party (1992), Rule 31(a)(2). These last delegates “shall be elected by each [] Congressional district.” Id. Rule 32(b)(5). All delegates “shall be elected ... [i]n accordance with any applicable laws of a state, insofar as the same are not inconsistent with these rules.” Id. Rule 32(a)(1).
On August 8, 1995, the New York Legislature adopted Sessions Law 586 to govern the selection of delegates to national political party conventions in 1996. 1995 N.Y.Laws 586. Political parties must conduct their delegate selection processes under either section 2 or section 3 of the law. Id. § 1.
Section 3, the path traditionally associated with the Democratic Party, we are told, gives three choices: one, the party can select its delegates by holding a statewide presidential primary “in which the names of candidates [for President] appear on the ballot,” id. § 3(1)(a); two, it can hold direct elections for delegates in each congressional district, id. § 3(1)(b); three, it can decide on the party’s nominee by an internal party meeting or convention. Id. § 3(1)(c). If it chooses to elect delegates directly by congressional districts, delegate candidates must file petitions signed by the least of (i) 1,000 of the enrolled party voters in their district, (ii) 0.5 percent of such voters, or (iii) a number of such voters equal to 0.5 percent of all votes cast in the district in the 1992 New York Democratic presidential primary. Id. § 3(6)(c). None of the provisions of section 3 is challenged here.
Section 2, we are told, is the provision traditionally associated with the Republican Party, and it was in fact the one chosen by the Republican State Committee for its 1996 primary. Section 2, once chosen by the political party, requires that delegates be selected in direct elections conducted in each congressional district. Id. § 2(2)(a). When filing their candidacies under section 2, delegates either declare their alignment with a particular presidential candidate or declare themselves “uncommitted.” Id. § 2(4)(a). Their allegiance to a presidential candidate or then-uncommitted status is shown on the ballot next to their names. Id. § 2(4)(e). The business end of section 2 states: “Except as provided in this section and party rules and regulations, the provisions of the election law shall apply to elections conducted pursuant to this section.” Id. § 2(6).
Neither section 2 of Sessions Law 586 nor the Republican Party rules and regulations say anything about the signature require
The gravamen of the plaintiffs’ claim as it reaches us on appeal is that this signature requirement — the lesser of a fixed number or a fixed percentage in each congressional district — violates the Equal Protection Clause by discriminating against voters from congressional districts having relatively few enrolled Republicans. The plaintiffs explain this by statistics. New York has thirty-one congressional districts. Republicans are most numerous in the Third District in suburban Long Island: 158,097 Republicans are registered there. Since five percent of this number, 7905, exceeds 1250, the five percent threshold does not apply. Thus, Republican delegate candidates in the Third District need 1250 signatures to qualify for the ballot, a mere 0.79 percent of the district’s enrolled Republicans. In contrast, Republicans are least numerous in the Eleventh District in Brooklyn, where only 11,814 Republicans are registered. Since five percent of this number, 591, is fewer than 1250, Republican delegate candidates in the Eleventh District need only 591 signatures to qualify for the ballot.
The plaintiffs thus demonstrate that a smaller percentage of Republicans in the Third (as compared to the Eleventh) congressional district can secure a.spot on the ballot for a slate of candidates, and characterize this as a disparity of constitutional dimension. The indisputable arithmetic is that in districts like the Eleventh, having fewer than 25,000 enrolled Republicans, delegate candidates need the signatures of five percent of enrolled Republicans to get on the ballot, while in heavily Republican districts like the Third, delegate candidates need the signatures of (variously) only 0.81 percent (the Twenty-Second), 0.97 percent (the First) or 1.10 percent (the Nineteenth) of enrolled Republicans. Of the thirty-one districts, seven have an effective signature requirement for the 1996 primary of one percent or less, and sixteen (a majority) have a signature requirement of 1.41 percent or less.
According to the plaintiffs, the reason for this disparity in ballot choice is the disparity of burdens created by the split-level signature requirement. The plaintiffs claim that in the heavily-Republiean rural or suburban districts, where gathering signatures is as easy as “standing] in the mall or at the town grocer’s and solicit[ing] signatures from everyone who walks by,” the 1250 signature requirement softens an already easy job by reducing the required percentage of signatures well below five percent. On the other hand, the plaintiffs claim that in the largely urban districts with relatively few Republicans, where “a petition-carrier could wait for a week on Flatbush Avenue and not encounter a single Brooklyn Republican!”, the onerous five percent requirement is unmitigated.
However, as one can see from the 1988 data (taken from the plaintiffs’ appendix and set forth in the margin
Nevertheless, the district court agreed with the plaintiffs that the signature requirement created disparate levels of choice among districts, and that this disparity violated the Equal Protection Clause. The five percent or 1250 signature requirement “prevent[ed] ‘independent’ candidates from obtaining the requisite number of signatures,” said the court, and harmed “particular voters whose right to vote in a particular election is rendered meaningless.”
The district court thought that it had found such a way and embodied it in the injunction, explaining as follows. The “minimum modicum of support” rationale makes sense only if “the 1250 cap ... that liberalizes ballot access” was “an exception” to the five percent rule. Id. at 871. Under the framework established by New York’s Legislature, however, twenty-five of the thirty-one districts “benefit” from the 1250 cap while only six districts have to meet the five percent requirement. The 1250 cap is therefore the “rule”, reasoned the court, and the extra “burden” created by the five percent rule is the “exception.” Since the district court viewed the 1250 cap as having a liberalizing or ameliorative influence on the burden imposed by the five percent rule, the signature requirement scheme could be deemed “least restrictive” only if the 1250 voter cap becomes the exception to the percentage rule. The proper fix, according to the district court, was to replace five percent with 1.41 percent, because in the majority of the districts, delegate candidates were required to collect signatures from 1.41 percent or more of the district’s registered Republicans. See note 6, supra. In this way, the 1250 cap would be returned to its proper status as “an exception that liberalizes ballot access,” id. at 871, since it would now apply in a minority of the districts, and the 1.41 percent requirement would now be the “rule,” applying to sixteen of the thirty-one districts. See generally id. at 864-66, 871. The district court issued an injunction effectively requiring that the defendants enforce the signature requirement as if it were a “1.41 percent or 1250 rule.”
On December 21, 1995, we reversed and restored the five percent or 1250 signature requirement. This opinion explains why.
II
The defendants argue that this case is nonjusticiable because the plaintiffs are inviting us to meddle in the internal affairs of a political party. However, the statutory signature requirement scheme at issue is not an internal party rule, and is easily classified as state action. The defendants’ justiciability arguments therefore fail.
Under the National Republican Party rules, most of the delegates to the national convention are selected by registered Republicans in each of the nation’s 435 congressional districts. The plaintiffs do not challenge this implicit determination by the Republican Party that a geographically diverse delegate group improves its choice of presidential and vice-presidential candidates. Rather, they challenge the State’s signature requirement process, embodied in Sessions Law 586 and New York Election Law § 6-136. The rules adopted by the National Republican Party and by the Republican State Committee have no five percent minimum, no 1250 cap, and in fact no signature requirement at all. The requirement, as applied to the 1996 primary, is purely a product of two state laws. We conclude that the signature requirement scheme challenged by the plaintiffs constitutes state action that courts may examine to ensure that it does not violate the Equal Protection Clause.
True, the State offered the Republican State Committee a choice of schemes, and the particular scheme at issue is being employed because it was chosen by the Committee. Although the Republican State Committee is therefore the but-for cause of the supposed disparity, the Committee’s selection of one of two state-offered options does not abrogate the state action. Pursuant to Sessions Law 586, the State has determined that the five percent or 1250 signature requirement is an appropriate way to make sure that only delegate candidates with a modicum of support make it on the ballot. The fact that the State Republican Committee agrees with the State that this is an appropriate ballot access rule does not change our analysis. We do not consider the justiciability of a challenge to the State Republican Committee’s choice of the option embodied in section 2. The challenge here is to state laws that create (although they do not necessarily impose) the five percent or 1250 signature requirement.
In Bullock v. Carter,
In reaching our conclusion that this is state action, we are also guided by our prior decision in Montano v. Lefkowitz,
Even though the State had not enacted or specified the nominating process, we held that “New York’s delegation to the various parties of the right to nominate candidates for special elections renders the party seleetion process state action.” Id. at 383 (citations omitted); see also id. at 383 n. 7 (“[W]e join with most commentators and many lower courts in holding that when the state grants political parties the right to nominate candidates and then gives those nominees special access to the ballot, the parties’ procedures constitute state action.” (internal quotations and citations omitted)).
The argument for state action is stronger here than in Montano. Here, the State itself created the scheme at issue. Faced with an allegedly unconstitutional act of the State, we inspect it. See Gray v. Sanders,
Ill
The defendants argue that the plaintiffs lack standing. To establish a case or controversy under Article III, “[1] the plaintiff must have suffered an injury in fact ..., [2] there must be a causal connection between the injury and the conduct complained of ..., [and 3] it must be likely, as opposed to merely speculative, that the inju
This argument is insupportable in light of Northeastern Florida Chapter of Associated General Contractors v. City of Jacksonville,
The plaintiffs claim that the five percent or 1250 formula operates to restrict their choice in Republican presidential primaries. If their statistical arguments are credited, voters living in districts with relatively few Republicans would likely have a more narrow choice of delegates pledged to the various presidential candidates. Under Northeastern Florida, they need not establish that, absent the current rule, they necessarily would see more candidates on their ballot. Their claim that the rule decreases the likelihood that they will have choices among delegates amounts to a sufficient pleading of “injury in fact” and a “causal connection.”
The redressability requirement is also satisfied, although not perhaps by the redress the plaintiffs would prefer. The district court imposed a 1.41 percent requirement for half the districts, and plaintiffs seek an across-the-board 0.79 percent requirement. We have some reservations about each of those remedies, since we suspect that the selection of a particular percentage requirement is legislative rather than judicial activity. However, a court redressing the plaintiffs’ claim could certainly strike down the 1250 signature alternative, leaving a five percent requirement across-the-board (which no one seems to want); or it could strike down section 2 of Sessions Law 586 in its entirety, leaving the Republican Party with the other option in the statute—the one apparently associated with the Democratic Party. We conclude therefore that the plaintiffs’ claim, if it exists, could be redressed.
Finally, we reject the defendants’ argument that, because “the best party” to bring this claim is a delegate candidate, not non-candidate voters, the plaintiffs lack “prudential standing.” Voters have standing to bring claims alleging that their district was unconstitutionally drawn because they suffer “special harms” from this constitutional violation. United States v. Hays, — U.S. -, -,
IV
To obtain a preliminary injunction in this Circuit,
the moving party must show (1) the likelihood of irreparable injury, and (2) either (a) likelihood of success on the merits, or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly in the movant’s favor.
Tough Traveler, Ltd. v. Outbound Prods.,
The district court held that the State’s five percent or 1250 rule does not withstand strict scrutiny. It chose the strict scrutiny test by applying Illinois State Bd. of Elections v. Socialist Workers Party,
Restrictions on access to the ballot burden two distinct and fundamental rights, “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.” Williams v. Rhodes, [393 U.S. 23 , 30, [89 S.Ct. 5 , 10,21 L.Ed.2d 24 ] (1968) ]_ By limiting the choices available to voters, the State impairs the voters’ ability to express their political preferences ....
When such vital individual rights are at stake, a State must establish that its classification is necessary to serve a compelling interest.
Id. at 184,
The injury claimed by the plaintiffs is that on March 7, 1996, they and other voters in districts with few Republicans will likely have fewer delegate slates from which to choose, as compared with their fellow Republicans who live in heavily Republican districts. The plaintiffs characterize this alleged decrease in choice as a virtual denial of their funda
The plaintiffs’ statistical evidence does not establish, however, that the five percent signature requirement significantly limits their choices as compared with voters living in districts subject to the 1250 signature requirement. Specifically, the evidence does not indicate a causal connection between the challenged regulation and the alleged injury. True, a choice of one, or none, is arguably no choice at all. But a closer look at all of the districts substantially undermines the plaintiffs’ argument. There appears to be no appreciable correlation between the number of registered Republicans and the incidence of “no choice” (ie., one or no candidate) ballots. While the seventeen districts with the fewest Republicans (the bottom half of the districts) included seven single-candidate districts, the seventeen districts with the most Republicans (the top half) included four districts with one candidate and three with none.
There does appear to be a correlation between (a) the districts with more than two candidates on the ballot and (b) the number of registered Republicans in those districts; none of the fifteen least Republican districts had more than two candidates on the ballot. But we think that the difference between three slates and two slates is decidedly less significant than the difference between two slates and one slate. The contention that the fundamental right to vote is infringed in single-candidate districts (where there is arguably no choice) is a very different contention (and a much stronger one) than the contention that the fundamental right to vote is infringed in districts with two candidates on the ballot. Thus, the plaintiffs ultimately fail to prove this point by failing to show a correlation between single-candidate districts and the effective percentage signature requirement in those districts.
The plaintiffs’ equal protection argument also fails because it focuses exclusively on the choice of presidential candidates, and focuses not at all on the delegate slates. Even if it is true that Republican voters in a district with few Republicans are less likely to have a choice on their primary ballot than voters in a heavily Republican district, the plaintiffs
Not only will there be thirty-one different elections, but the elections will produce ninety-three different delegates rather than one presidential candidate. Theoretically, these ninety-three delegates could be pledged to as many as thirty-one different presidential candidates; or the delegates might be split, forty-eight for one candidate and forty-five for another. Some districts may elect delegates who are uncommitted. Delegates pledged to a particular candidate who thereafter drops out of the presidential race may arrive at the convention uncommitted, or committed (or brokered) to someone else.
Although popular attention may well focus on the number of delegates pledged to each candidate at the convention, the delegates themselves will also cast votes on platform issues and issues of party governance. No doubt, the chief purpose of many voters will be to send a message on presidential candidates. But that does not mean that we must treat these thirty-one elections as if they were a straw poll.
The other flaw with the plaintiffs’ argument is that the disparity in percentage requirements — which, they contend, unconstitutionally burdens their fundamental right to vote — provides them with a substantial benefit. The same statistics used by the plaintiffs to discount the value of a Republican vote in the Eleventh District can plausibly demonstrate the enhanced value and power of each such vote. If every registered Republican in the Eleventh District voted in a primary, each voter would have 1/11,814th of a say in deciding who the convention delegates would be. In the Third District, however, each voter has only 1/158,097th of a say in making the same decision. In a congressional election — for which state law allows use of the same formula — this advantage enjoyed by Republicans in the Eleventh District is offset by the fact that a Republican nominee in the heavily Democratic Eleventh is much less likely to arrive in Congress than a Republican nominee in the Third. In electing convention delegates, however, the Eleventh District’s advantage remains undiluted. Thus the 11,814 registered Republicans in the Eleventh District (constituting 0.4 percent of the total number of registered Republicans in the State) send the same number of delegates to the national convention as the 158,097 registered Republicans in the Third (constituting 5.8 percent of statewide registered Republicans). Using this dynamic, the vote of the Eleventh District Republicans in Brooklyn is fourteen times more powerful than the vote of their fellow Republicans in Long Island’s Third District.
This case is therefore markedly different from Socialist Workers Party, relied on by the district court to support its determination that strict scrutiny is the appropriate test here. Socialist Workers Party concerned the right of voters to cast their votes in a general election for a wide variety of parties and candidates, other than those nominated by the two major parties. Without these choices, socialist workers could not “cast their votes effectively.”
At most, the plaintiffs can show that the signature requirement makes it less likely that they will have a broad choice in a primary among potentially uncommitted delegates to a national party convention. The case most analogous (in fact almost identical) to this one is Hewes v. Abrams,
Here, the plaintiffs’ right to vote is certainly not “precluded].” Nor do we believe, after reviewing the plaintiffs’ evidence and the nature of this election, that the disparity in the percentage signature requirements significantly burdens their right to vote. We therefore hold that strict scrutiny does not apply.
V
We apply a rational basis analysis. See McDonald v. Board of Election Comm’rs.,
Under the district court’s logic, a numerical cap would, in virtually all cases, be an unconstitutional approach for a state to take in balancing the desire for liberal ballot access with the need to ensure that candidates achieve some modicum of support. As the plaintiffs point out in their cross-appeal, the district court’s 1.41 percent solution creates its own disparity, the “deviation of two to one between the maximum percentage [1.41 percent] and the minimum percentage [0.79 percent].” The plaintiffs argue that this disparity is unjustifiable and that the only way to end it is to enforce a 0.79 percent or 1250 formula: that is, to adopt as the percentage requirement the lowest percentage of voters able to field a slate of delegates in any district under the statutory formula. In that district, the Third, the 1250 signatures required equals 0.79 percent of registered Re
There is another rational justification for the ballot access rule that is quite strong. As we have discussed, each vote in a district with relatively few Republicans is given much more weight that an individual vote in heavily Republican districts. Thus, a state may rationally require candidates in those districts to get support from a higher proportion of voters, and may rationally expect that the opportunity to elect the same number of delegates with many fewer votes will furnish an incentive for candidates to circulate petitions. In this way, a state counterbalances the disproportionate weight that each Republican’s vote has in a less populous district. Still another rational justification might be based on a state’s conclusion that 1250 signatures reflect a greater level of support in more rural districts, where people are widely dispersed and where the actual collection process may be more arduous. We do not need to decide whether each of these government interests by itself would support the signature requirement. Together, they certainly constitute sufficient, legitimate governmental interests to which New York’s five percent or 1250 formula is rationally related.
We do not express any opinion as to the wisdom of the five percent requirement. That decision is for the state legislature and the Republican Party, not the federal courts.
The plaintiffs have failed to prove either a likelihood of success on the merits or sufficiently serious questions going to the merits. Therefore, the judgment of the district court is reversed, and the order is vacated.
Notes
. On November 22, 1995, the district court held a hearing on the plaintiffs' preliminary injunction motion. On November 27, the court announced that it would issue an injunction and delivered an oral opinion from the bench explaining its reasons. On December 1, the injunction issued. On December 13, after we had granted the defendants’ motion for an expedited appeal and had received the first set of briefs, the district court filed a thorough written opinion explicating the reasons it had given from the bench on November 27.
. There are also plaintiffs from the First, Third, Fourth, Twenty-Eighth, and Twenty-Ninth congressional districts, but they are unaffected by the injunction's reduction of the percentage signature requirement from five percent to 1.41 percent. They join the argument on cross-appeal that the percentage signature requirement should be lowered still further, to 0.79 percent, a reduction that would affect all of them but the plaintiff from the Third District (where the effective percentage is already 0.79 percent).
. The district court did not address the First Amendment claim. Rockefeller,
. While section 2 thus incorporates wholesale the New York State election law provisions, section 3 picks and chooses between the election law provisions it incorporates, and omits § 6-136. See 1995 N.Y.Laws 586, § 3(6)(a).
. Both parties seem to proceed on the assumption that the signature rule in fact applies to an entire "slate” of three delegate candidates, representing the same presidential candidate, and that each delegate candidate need not gather five percent or 1250 signatures. Neither party explains how the statutory terms can be interpreted this way. See 1995 N.Y.Laws 586, § 2(4)(a); N.Y.Elect.Law § 6-136(3); see also 1995 N.Y.Laws 586, § 2(4)(f). We accept for this case the parties’ statement that the signature requirement applies to a "slate” of delegate candidates, without concluding that the laws must be read in this way.
. The statistics regarding all thirty-one districts are as follows:
Rank Registered % Republicans Needed Republicans on Petition 158,097 153,824 148,319 148,013 143,555 137,952 136,788 129,111 124,260 116,360 114,008 113,561 112,797 112,442 102,232 88,350 86,470 85,213 85,062 0.79 0.81 0.84 0.84 0.87 0.91 0.91 0.97 1.01 1.07 1.10 1.10 1.11 1.11 1.22 1.41 1.45 1.47 1.47 i m (O N N) m KJ M to OJ to NI Kl
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*B = Bush, D = Dole, K=Kemp, R=Robertson, N = None.
. At oral argument, the plaintiffs' counsel speculated that the absence of delegate candidates on the ballots in those districts was caused by various technical requirements that eliminated enough signatures so as to disqualify all the petitions filed.
. The district court’s opinion does not examine the plaintiffs' data closely. The court bases the injunction on the assumption that the data means what the plaintiffs claim it means. See Rockefeller,
. The district court employed the strict scrutiny test to strike down the signature requirement scheme, but also concluded that the scheme was unconstitutional "[ujnder any test — strict scrutiny, balancing of interests, or rational basis.” Rockefeller,
.The injunction as originally issued affected only the Tenth, Eleventh, Twelfth, and Fourteenth congressional districts, since only these districts were represented by plaintiffs in this lawsuit. On December 13, presidential candidate Steve Forbes's motion to intervene as a plaintiff was granted. An attorney for the Forbes for President Committee alleged that Forbes delegates could definitely meet the 1.41 percent signature requirement, but that "there is a substantial likelihood” that they could not meet the five percent requirement in those districts where it would apply. After Forbes intervened, the district court issued a new order extending the
. In arguing that this case is non-justiciable, the defendants cite to several cases, all of which are distinguishable. In Democratic Party v. Wisconsin,
[I]t is not for the courts to mediate the merits of this dispute. For even if the State were correct, a State, or a court, may not constitutionally substitute its own judgment for that of the Party. A political party’s choice among the various ways of determining the makeup of a State's delegation to the party’s national convention is protected by the Constitution. And as is true of all expressions of First Amendment freedoms, the courts may not interfere on the ground that they view a particular expression as unwise or irrational.
Id. at 123-24,
Also distinguishable are O'Brien v. Brown,
. The defendants cite to our per curiam opinion in Clark v. Rose,
. The statute required an absolute number of signatures (25,000) for statewide elections, but for elections in a political subdivision of the state (like Chicago), it required signatures from five percent of the number of voters in the previous election.
After that case, Illinois did in fact set a 25,000 signature requirement for general elections, both statewide and within political subdivisions. See Norman v. Reed, 502 U.S. 279, 292,
. Although' the Court applied the strict scrutiny test, it would appear that the law would not have survived a rational basis test either.
.In due process cases after Socialist Workers Party and in equal protection cases before it, the Supreme Court has consistently held that, even though "[ejlection laws will invariably impose some burden upon individual voters,” Burdick v. Takushi,
Rather, as the Court made clear in Norman v. Reed,
The critical question, as the Court made clear prior to Socialist Workers Party and has reiterated forcefully since, is "the extent to which a challenged regulation burdens First and Fourteenth Amendment [voting] rights.” Burdick,
As applied to the equal protection context, this would mean that, if ballot access rules affected two groups of people differently, such that different "appreciable” (or "significant,” “substantial," or "severe”) burdens were imposed on the fundamental right to vote of the two groups, then strict scrutiny would apply. We need not decide today whether the disparity between the burdens would need to be “severe,” to borrow from the Supreme Court’s "Due Process/First Amendment” cases, see Burdick,
. The only claim before us on appeal is whether the ballot access restrictions violate the plaintiffs' rights under the Equal Protection Clause. Although the plaintiffs did not make the claim directly that New York’s ballot access rules impose an undue burden on their voting rights, the suggestion that the percentage requirement in certain districts is unreasonably high does surface occasionally in the briefs, and was certainly made at oral argument. The plaintiffs also contended (primarily at oral argument) that the burden was higher than the five percent or 1250 requirement might suggest, because technical challenges to a candidate’s signatures are invariably mounted by the Republican Party, effectively requiring candidates to collect three times the number of signatures necessary to get on the ballot. Such an argument is premised on First Amendment or due process rights, not equal protection rights, because these technical requirements apply uniformly throughout the state and thus raise questions about the severity of the burden generally. While the technical requirements may make it three times more difficult to get on the ballot in a small district, it is also three times more difficult in a large district. This challenge is not on appeal because the preliminary injunction was based solely on the equal protection claim. In addition, because we have not been presented with a due process claim, we cannot know whether the burden imposed by
. The Eleventh, Sixteenth, and Eighteenth districts were subject to the five percent rule, and the Tenth district was subject to the 1250 cap.
. These districts are subject to the 1250 cap, and thus slates of delegates are required to collect less than five percent of registered Republican signatures in order to get on the ballot.
. According to a table in the defendants' appendix, multiple delegate slates filed petitions in the Twenty-Eighth, Twenty-Ninth, and Thirty-Fourth districts. But according to the plaintiff's appendix, which reprints the Republican State Committee’s list of delegates on the ballot, none of the delegate slates in these three districts made it to the ballot. Any conclusion about the significance of their elimination from the ballot requires considerable speculation. Such speculation, if we were willing to pursue it, could cut either way. For example, lack of approved candidates may mean that the requisite number of signatures was so hard to obtain (perhaps because the districts are rural or expansive) that candidates could not get a sufficient margin of
. A look at the numbers bears out this observation. Assume that each of two candidates has a slate of delegates on the ballot in each district. If all the registered Republicans in the eight most heavily Republican districts vote for candidate A, and fifty-one percent of the registered Republicans in the other twenty-three districts vote for candidate B, then A will win the putative "presidential primary” by a commanding seventy-one percent to twenty-nine percent margin. But B will have won a landslide (seventy-four percent to twenty-six percent) in the election of delegates.
. In fact, this was one part of the plaintiffs' claim below, at least for the four plaintiffs from districts heavily populated with Republicans (including one plaintiff from the Third District). The district court's injunction does not affect this claim, it is not dealt with in the district court’s
. In fact, under one reading of Socialist Workers Party, that case requires us to uphold this signature percentage requirement rather summarily. As discussed at note 14, supra, after applying strict scrutiny, the Court constructively edited the five percent signature requirement for Illinois political subdivisions, converting it to a "five percent or 25,000, whichever is less” requirement. Thus, while the Court struck down one disparity — Illinois could not simultaneously require 35,000 signatures in Chicago (five percent) and 25,000 signatures in Illinois (0.5 percent) — it allowed another to remain.