Krislov, Clinton A. v. Rednour, Wanda L. , 226 F.3d 851 ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 99-3801
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.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 96 C 674--Elaine E. Bucklo, Judge.
Argued April 20, 2000--Decided September 5, 2000
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, 525 U.S. 182
(1999), which declared a similar ballot-access
law unconstitutional, the district court granted
summary judgment for the candidates. The Board
appeals, arguing that the plaintiffs do not have
standing, that Buckley does not control this
case, and that the law in question is narrowly
tailored to serve a compelling interest. We
affirm.
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 candidate 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, 946 F. Supp. 563, 569 (N.D. Ill. 1996).
Both the candidates and the Board moved for
summary judgment, which the district court
initially granted for the Board. Krislov v.
Rednour, 980 F. Supp. 267 (N.D. Ill. 1997).
Later, it vacated that decision and granted
summary judgment for the candidates in light of
the Supreme Court’s decision in Buckley v.
American Constitutional Law Foundation,
Incorporated, 525 U.S. 182 (1999) (invalidating
Colorado’s requirement that petition circulators
for ballot initiatives be registered voters of
the State). Krislov v. Rednour, No. 96-C-674,
1999 WL 1794035 (N.D. Ill. July 7, 1999). The
district court enjoined the Board from enforcing
the offending portions of 5/7-10 and entered a
final judgment pursuant to Federal Rule 54(b).
The Board appeals.
II.
A. Standing and Mootness
The Board first challenges the summary judgment
on standing and mootness 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,
504 U.S. 555, 560-61 (1992); State of Wis. v.
F.E.R.C., 192 F.3d 642, 646 (7th Cir. 1999).
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 were 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, 486 U.S. 414, 424 (1988).
Second, because they were prohibited from using
non-registered and non-resident circulators, they
were limited in the choice and number of people
to carry their message to the public. See
Citizens Against Rent Control/Coalition for Fair
Housing v. Berkeley, 454 U.S. 290, 294 (1981)
("by collective effort individuals can make their
views known, when, individually, their voices
would be faint or lost"). This injured the
plaintiffs by limiting the size of the audience
the candidates could reach and reducing the
quantum of speech about the candidates’ political
views that otherwise could be generated. Meyer,
486 U.S. at 421-22. Also, as we discuss in more
detail below, the candidates claim to have been
deprived of their right to expressively associate
with non-registered or non-resident citizens who
were willing to circulate petitions on their
behalf. See California Democratic Party v. Jones,
120 S. Ct. 2402, 2408 (2000); Tashjian v.
Republican Party of Conn., 479 U.S. 208, 215
(1986) (the First Amendment protects the right of
party members to associate and organize with
nonmembers to achieve political goals); Kusper v.
Pontikes, 414 U.S. 51, 56-57 (1973) ("unduly
restrictive state election laws may so impinge
upon freedom of association as to run afoul of
the First and Fourteenth Amendments"). Thus, the
fact that the candidates garnered enough
signatures to be placed on the ballot does not
negate the other injuries they may have suffered.
These alleged injuries are directly traceable to
5/7-10, thereby satisfying the causation element
of standing.
As to redressability, the candidates must only
show that the requested relief will likely cure
the alleged injury. Gillespie v. City of
Indianapolis, 185 F.3d 693, 701 (7th Cir. 1999).
Put differently, the plaintiffs must show that
they would benefit in a tangible way from the
district court’s intervention. See Friends of the
Earth, Inc. v. Gaston Copper Recycling Corp., 204
F.3d 149, 162 (4th Cir. 2000) (citing Warth v.
Seldin, 422 U.S. 490, 508 (1975)). Because the
district court has the ability to enjoin the
enforcement of the statute, the harm is
sufficiently redressable in this suit. See
Friends of the Earth, Inc., 204 F.3d at 162.
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, 410 U.S. 752, 756 n.5 (1973) (case
was not moot although date of primary had passed
and plaintiffs were eligible to participate in
the election where their case was capable of
repetition but likely to evade review); Patriot
Party of Allegheny County v. Allegheny City of
Dept. of Elections, 95 F.3d 253, 257 (3d Cir.
1996). This exception to the mootness doctrine is
applicable, as in the present case, where the
challenged situation is likely to recur and the
same complaining party would be subjected to the
same adversity. In re Associated Press, 162 F.3d
503, 511 (7th Cir. 1998); Orion Sales, Inc. v.
Emerson Radio Corp., 148 F.3d 840, 842 (7th Cir.
1998). Because at least Krislov has articulated
an interest in pursuing the Democratic Party’s
nomination for other elective offices, we have no
doubt that this case meets these requirements.
Hence, the candidates have standing to bring this
action and mootness is not a bar to the suit.
B. First Amendment
The First Amendment, made applicable to the
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,
354 U.S. 476, 484 (1957). Associating for the
purpose of placing a candidate on the ballot is
one of the actions protected by the First
Amendment; indeed the circulation of petitions
for ballot access "involves the type of
interactive communication concerning political
change that is appropriately described as ’core
political speech.’" Meyer, 486 U.S. at 421-22;
see Timmons v. Twin Cities Area New Party, 520
U.S. 351, 357 (1997); Illinois State Bd. of
Elections v. Socialist Workers Party, 440 U.S.
173, 184 (1979). Restrictions on ballot access,
therefore, can violate several constitutionally
protected interests. See, e.g., Illinois State
Bd. of Elections, 440 U.S. at 184 (restrictions
on ballot access implicate the right to associate
for political purposes, the right to vote, and
the right to express political preferences);
Williams v. Rhodes, 393 U.S. 23, 30 (1968).
Like most rights, however, the candidates’ First
Amendment rights are not absolute. Burdick v.
Takushi, 504 U.S. 428, 433 (1992); Munro v.
Socialist Workers Party, 479 U.S. 189, 193
(1986). The Constitution does not prohibit the
States from enacting laws which incidentally
burden candidates, for such a proscription would
similarly preclude the regulation of elections
and efforts to ensure their integrity. Because
elections must be regulated to remain free from
fraud and coercion, some latitude is given to
regulations designed to serve these purposes. See
California Democratic Party, 120 S. Ct. at 2406-
07; Toledo Area AFL-CIO Council v. Pizza, 154
F.3d 307, 325 (6th Cir. 1998). The Constitution
itself grants the States broad powers to regulate
the time, place, and manner of elections,
including primary elections. U.S. Const. art. I,
sec. 4, cl. 1; see Oregon v. Mitchell, 400 U.S.
112, 118 (1970) (age minimum); Pope v. Williams,
193 U.S. 621, 632, 633 (1904) (residency
restriction); Campbell v. Buckley, 203 F.3d 738,
743 (10th Cir. 2000). In assessing whether a
State election law impermissibly burdens First
Amendment rights, we examine the character and
magnitude of the burden and the extent to which
the law serves the State’s interests. Burdick,
504 U.S. at 434; Anderson v. Celebrezze, 460 U.S.
780, 789 (1983). Laws imposing severe burdens
must be narrowly tailored to serve compelling
state interests, but lesser burdens receive less
exacting scrutiny. California Democratic Party,
120 S. Ct. at 2412; Timmons, 520 U.S. at 358.
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
minimal. 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, 213 F.3d 1132, 1137 (9th Cir.
2000); Weir v. Nix, 114 F.3d 817, 820 (8th Cir.
1997).
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, 82 F. Supp. 2d at 75 (Party chairman
conceded campaign needed to obtain up to six
times the required number of signatures to ensure
that enough signatures survive technical
challenges). And the number of signatures a
candidate is required to obtain is just one of
several important considerations. See Buckley,
525 U.S. at 193 n.15; Storer v. Brown, 415 U.S.
724, 740 (1974). Even though the candidates in
this case ultimately obtained ballot access, in
the process their rights were substantially
burdened. The uncontested record indicates that
their ballot access took a lot of time, money and
people, which cannot be characterized as
minimally burdensome. In addition, the candidates
contend that the statute installs other barriers:
it inhibits their right to ballot access; it
burdens their right to associate with a class of
circulators; it limits their ability to choose
the methods of political speech they consider
most effective for their campaigns; and it
reduces their ability to disseminate their
message to a wider audience. Thus, even an
election law which required a candidate to obtain
only a relatively small number of signatures
could still burden First Amendment rights if it
also precluded the candidate from utilizing a
large class of potential solicitors to convey his
message, or if it substantially restricted the
candidate’s ability to choose the means of
conveying his message. Meyer, 486 U.S. at 421-22.
So the number of signatures the candidates were
required to gather is not the only relevant
consideration.
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,
525 U.S. at 193 n.15 (considering the number of
potential circulators who were disqualified from
soliciting signatures). The Board concedes that,
when counting only Illinois residents who are
adults, the number of those not registered or
those not living in the seventh congressional
district is in the millions, and that does not
include potential out-of-state solicitors. By
substantially reducing the number of potential
solicitors, the Illinois "requirement reduces the
voices available to convey political messages."
Buckley, id. at 210 (Thomas, J., concurring); see
Buckley v. Valeo, 424 U.S. 1, 50 (1975)
("legislative restrictions on advocacy of the
election or defeat of political candidates are
wholly at odds with the guarantees of the First
Amendment"). By preventing the candidates from
employing millions of potential advocates to
carry their political message to the people of
Illinois, the statute places a formidable burden
on the candidates’ right to disseminate their
message. Buckley, 525 U.S. at 193 n.15
(impermissible burden placed on speech where
state law barred less than one million potential
circulators).
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, 454 U.S. at 300; see
generally, Boy Scouts of Am. v. Dale, 120 S. Ct.
2446 (2000). This right is "especially important
in preserving political and cultural diversity
and in shielding dissident expression from
suppression by the majority." Roberts v. United
States Jaycees, 468 U.S. 609, 622 (1984);
Marshall v. Allen, 984 F.2d 787, 800 (7th Cir.
1993) (freedom of association protects
individual’s interest in associating with others
to advance political views). "Political
association is at the core of the First
Amendment, and even practices that only
potentially threaten political association are
highly suspect." McCloud v. Testa, 97 F.3d 1536,
1552 (6th Cir. 1996). Although the Illinois
provision does not go so far as to specifically
prohibit candidates from associating with
individuals who are not residents of Illinois or
who are not registered to vote, it still
substantially burdens this right of association
by preventing the candidates from using
signatures gathered by these circulators in an
attempt to reserve a place on the ballot. By
doing so, the law inhibits the expressive utility
of associating with these individuals because
these potential circulators cannot invite voters
to sign the candidates’ petitions in an effort to
gain ballot access./5 This, in turn, prevents
these individuals from being used as conduits for
disseminating the candidates’ brand of political
speech.
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 the 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. 119 S. Ct. at 643.
Accordingly, while an analysis of the burden a
law places on First Amendment rights is
situation-specific, the similarity between these
cases and the present one strongly suggests that
the Illinois statute severely burdens the
candidates’ rights.
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 distinction, 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 easily 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, 486 U.S. at 424. Therefore,
contrary to the Board’s argument, the fact that
the regulation leaves open other possibilities of
expression (circulators who are registered
residents) does not mean that the law is not
burdensome. Id.; see Hill v. Colorado, 120 S. Ct.
2480, 2524 (2000) (Kennedy, J., dissenting) ("Our
foundational First Amendment cases are based on
the recognition that citizens, subject to rare
exceptions, must be able to discuss issues, great
or small, through the means of expression they
deem best suited to their purpose. It is for the
speaker, not the government, to choose the best
means of expressing a message."). To the extent
the Illinois law prevents candidates from using
the people they consider to be the best means of
carrying their message to the public, it places a
substantial burden on the candidates’ ability to
convey their political ideas, even if it only
restricts the candidate from using a few
circulators. Along these lines, Krislov asserted
in an affidavit that he had friends who were
willing and able to help, but who were
effectively excluded from helping because of the
Illinois statute. This necessarily burdened his
speech and associational interests, and we think
that this burden is substantial.
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., 489 U.S. 214,
225 (1989); Libertarian Party of Ill. v. Rednour,
108 F.3d 768, 773 (7th Cir. 1997). The question
of whether the Board’s asserted interests qualify
as compelling is one of law; where the material
facts are undisputed, the necessity of the chosen
means also involves a question of law. We review
both of these questions de novo. (WIN) Washington
Initiative Now, 213 F.3d at1137; Citizens
Concerned About Our Children v. School Bd. of
Broward County, Fla., 193 F.3d 1285, 1292 (11th
Cir. 1999) (per curiam); Peterson v. Minidoka
County Sch. Dist. No. 331, 118 F.3d 1351, 1357,
amended, 132 F.3d 1259 (9th Cir. 1997). We assess
whether the state’s interest is substantial by
examining the specific facts of the case.
California Democratic Party, 120 S. Ct. at 2413.
In evaluating the breadth of the law, we must
take into account the other mechanisms the State
currently employs to serve the statute’s purpose,
as well as other, less restrictive means it could
reasonably employ. Norman v. Reed, 502 U.S. 279,
293 (1992); Jenness v. Fortson, 403 U.S. 431, 442
(1971); Ayres v. City of Chicago, 125 F.3d 1010,
1016 (7th Cir. 1997). The State need not use the
least restrictive means available, as long as its
present method does not burden more speech than
is necessary to serve its compelling interests.
Ward v. Rock Against Racism, 491 U.S. 781, 799
(1989); Anderson, 460 U.S. at 789; Ayres, 125
F.3d at 1016.
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, 403 U.S. at 442; see Libertarian Party
of Ill., 108 F.3d at 775 (Illinois has an
important interest in ensuring that a new
political party has a modicum of support before
placing its candidates on the ballot); Prestia v.
O’Connor, 178 F.3d 86, 88 (2d Cir. 1999) (per
curiam). The problem here is that the law is not
narrowly tailored to serve this interest. In
fact, the law appears unnecessary, as the
signature quota--5,000 in the case of Krislov and
about 660 in the case of Sullivan--already
ensures that candidates have a minimum level of
support. See Lubin, 415 U.S. at 717 (signature
requirement for ballot access is the most common
means of testing a candidate’s level of support).
As long as the required number of signatures are
valid and they were obtained by an adult, what
more is needed? The Board does not suggest any
way in which its interests are not sufficiently
served by the signature quota. Thus the necessity
of 5/7-10’s residency and registration
requirements is dubious.
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, 405 U.S. at
143 (invalidating on equal protection grounds a
primary election filing fee where many "potential
office seekers lacking both personal wealth and
affluent backers are in every practical sense
precluded from seeking the nomination of their
chosen party, no matter how qualified they might
be, and no matter how broad or enthusiastic their
popular support"). Section 7-10 suffers from this
very defect. Under this provision, a candidate
who has reasonable support in his district might
be denied the possibility of being placed on the
ballot simply because his supporters who are
registered voters and who reside in the relevant
political subdivision may not have the time or
the energy to solicit signatures. Such a
candidate will be kept from disseminating his
message and might be denied ballot access despite
potential support from the electorate. This is
the rationale the Court used in Lubin v. Panish
when it invalidated a California law that
required candidates for primary elections to pay
a filing fee of $701.60. 415 U.S. at 710. The
Court dismissed the State’s asserted
justification--the need to ensure that candidates
have support among the electorate--because filing
fees "do not, in and of themselves, test the
genuineness of a candidacy or the extent of the
voter support of an aspirant for public office."
Id. at 717. Because the same is true of residency
or registration requirements for petition
circulators, section 7-10 also burdens much more
speech than is necessary to serve its purpose. We
therefore agree with the district court that this
law is not narrowly tailored to serve the Board’s
goals. Ward, 491 U.S. at 799 (a statute cannot be
narrowly tailored when it burdens "substantially
more speech than is necessary to further the
government’s legitimate interests").
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, 489 U.S. at 223; Anderson, 460 U.S. at 798 (a
law which restricts the flow of information
primarily to serve paternalistic interests "must
be viewed with some skepticism"); cf. 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484,
507 (1996) (state cannot prohibit commercial
speech in an effort to serve paternalistic
purpose where the chosen means has not been shown
to serve the state’s goal). Although the desire
to help candidates obtain valid signatures, and
thereby promote political speech, is a legitimate
state interest, it’s not clear that this interest
should be considered compelling or important.
Furthermore, we doubt this law is essential or
even well suited to the asserted interest. The
Board offers nothing to suggest that this law is
necessary, even though the residency and
registration requirements were added to the law
about 1979, giving the Board an opportunity to
compare petitions from before and after the
amendment to determine whether the law has
decreased the number of invalid signatures. The
Board also doesn’t attempt to show that residents
of a given congressional district know the
boundaries of that district to an appreciably
greater extent than non-residents. But even
assuming that this is true, a much more narrow
law--like one that required candidates to provide
all circulators with a map showing the boundaries
of the district--would be more effective. And as
to Krislov, State boundaries are easily
discernible and equally apparent to all
circulators, regardless of whether they reside in
Illinois or another State, which makes the
necessity of this provision even more
questionable.
The Board also claims that this provision will
at least 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, 486 U.S. at 427 (risks of
deceit and fraud are more remote at the petition
stage than at the time of balloting). Regardless,
when "the Government defends a regulation on
speech as a means to . . . prevent anticipated
harms, it must do more than simply posit the
existence of the disease sought to be cured."
Turner Broadcasting Sys., Inc. v. F.C.C., 512
U.S. 622, 664 (1994) (internal quotations
omitted). It must show that the "recited harms
are real, not merely conjectural" and that the
regulation will in fact materially alleviate the
anticipated harm. Id. The Board is unable to do
this in light of the fact that the residency
requirement is largely duplicative of its other
requirements, and that circulators certify to the
best of their knowledge that the signatures are
valid. See 10 ILCS 5/10-4, 5/7-10. Furthermore,
this interest is ultimately served by the
Illinois process for challenging invalid
signatures, which we discussed above.
Importantly, the Board doesn’t argue that its
interest in obtaining valid signatures is greatly
assisted by the residency restriction, or even
that it is necessary to achieve this goal.
Because the same ends can be achieved just as
easily (and probably more effectively) through
other means already in existence, the residency
and registration requirements are unnecessary.
And because those other means do not burden the
candidate’s speech and associational interests to
the extent the residency and registration
requirements do, the residency and registration
requirements of section 7-10 cannot be described
as narrowly tailored to serve these asserted
interests.
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 interest 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, 439 U.S. 60, 68-69 (1978)
("a government unit may legitimately restrict the
right to participate in its political processes
to those who reside in its borders"). But this
interest in selecting and electing a candidate is
already adequately served by several other
provisions. Specifically, three other provisions
state that only Illinois voters may sign
nominating petitions, vote in primary elections,
and vote in the general election. See 10 ILCS
5/7-10 (nominating petitions); 10 ILCS 5/7-43
(primary elections); 10 ILCS 5/3-1 (general
elections). Because only the signatures on the
petition are counted, there is no apparent reason
for the circulator to also be a registered voter
residing in the district. This makes section 7-10
superfluous, and thus not narrowly tailored to
serve this interest.
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 novel 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,
151 F.3d 1215, 1218 (9th Cir. 1998) (law which
prohibits candidates from accepting campaign
contributions from anyone living outside the
candidate’s voting district violates the First
Amendment); Whitmore v. FEC, 68 F.3d 1212, 1215
(9th Cir. 1995). Therefore, section 7/10 is not
narrowly tailored to serve a compelling state
interest. It therefore violates the First
Amendment rights of the candidates and its
enforcement must be enjoined./7
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.
/1 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 elected 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).
/2 This difficult process is not unique to Illinois.
See Molinari v. Powers, 82 F. Supp. 2d 57, 62-63
(E.D.N.Y. 2000) (describing challenges brought
against the nominating petitions of Republican
presidential candidate Steve Forbes by the New
York Republican State Committee).
/3 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,
354 U.S. 234, 251 (1957) ("History has amply
proved the virtue of political activity by
minority, dissident groups, who innumerable times
have been in the vanguard of democratic thought
and whose programs were ultimately accepted.").
But because none of these potential circulators
has joined the candidates in seeking relief from
the Illinois statute, like the district court we
confine our analysis to the interests of the
candidates.
/4 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.
/5 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,
794 F.2d 1254, 1260 (7th Cir. 1986). But by
making an invitation to sign the petition a
thoroughly futile act, it does prevent some
highly valuable speech from having any real
effect. Robbed of the incentive of possibly
obtaining a valid signature, candidates will be
unlikely to utilize non-registered, non-resident
circulators to convey their political message to
the public.
/6 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, 486 U.S. at
421-22 (circulating petitions for ballot access
involves core political speech); see also
McIntyre v. Ohio Elections Comm., 514 U.S. 334,
348 (1995) (laws that burden core political
speech are subject to exacting scrutiny).
/7 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, 119 S. Ct. at 644. And if the use of
non-citizens were shown to correlate with a high
incidence of fraud, a State might have a
compelling interest in further regulating non-
citizen circulators. But the Board does not
assert these interests.