Nader, Ralph v. Keith, John R. ( 2004 )

IN THE
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
________________________
No. 04–3183
RALPH NADER, et al.,
Plaintiffs-Appellants,
v.
JOHN KEITH, et al.,
Defendants-Appellees.
__________________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 04 C 4913—Matthew F. Kennelly, Judge.
__________________________
Argued September 20, 2004—Decided September 22, 2004*
__________________________
Before POSNER, WOOD, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Ralph Nader, joined by his cam-
paign committee and two registered Illinois voters who support
his candidacy, brought this suit to require the State of Illinois
to place his name on the ballot for the forthcoming Presidential
election. He appeals to us from the district court’s denial of a
preliminary injunction that would order the state to do that.
We have expedited the parties’ briefing and our consideration
of the appeal because of the short time remaining to the elec-
tion.
* This opinion is being released in typescript; a printed version will follow.
No. 04–3183 2
The suit challenges, as violations of the First and Four-
teenth Amendments, Munro v. Socialist Workers Party, 479
U.S. 189, 193 (1986); Anderson v. Celebrezze, 460 U.S. 780,
786–88 (1983); Bullock v. Carter, 405 U.S. 134, 142–44 (1972);
Libertarian Party of Illinois v. Rednour, 108 F.3d 768, 772–
73 (7th Cir. 1997), three provisions of the Illinois Election Code
that have in combination prevented Nader from qualifying for
a place on the ballot. The first provision requires any candidate
who has not been nominated by a party that received at least 5
percent of the votes in the most recent statewide election to ob-
tain nominating petitions signed by at least 25,000 qualified
voters. 10 ILCS 5/10–2, –3. The second provision requires that
the address on each petition be the address at which the peti-
tioner is registered to vote. Id., 5/3–1.2. And the third requires
that the petitions be submitted to the state board of elections
at least 134 days before the election. Id., 5/10–6. The deadline
this year was thus June 21. Only two states, Texas and Ari-
zona, had an earlier deadline.
Nader declared his candidacy on February 22, which gave
him four months to drum up support for his presidential bid,
though a provision of the election code that he does not chal-
lenge required him to wait until the ninetieth day before the
expiration of the June 21 deadline to begin circulating the ac-
tual petition forms for signature. 10 ILCS 5/10–4. On June 21
he turned in 32,437 petitions. More than 19,000 of these were
challenged by defendant John Tully, whom Nader describes as
a “minion” of the Illinois Democratic Party. The principal
ground for challenging a petition was that the petitioner wasn’t
registered to vote at the address shown on it. After state ad-
ministrative hearings, 12,327 petitions were struck, which
brought Nader’s total below 25,000. Nader’s campaign contin-
ued to obtain petitions after the June 21 deadline, and by Au-
gust 19, when the district court held a hearing on the motion
for a preliminary injunction, another 7,000 or so had been col-
lected, but the election authorities refused to consider them be-
cause they were untimely.
Nader also sued in state court, where he sought a ruling
that the refusal of the election board to certify his candidacy
No. 04–3183 3
violated Illinois state law. That proceeding is pending, and the
board argues frivolously that its pendency requires dismissal of
Nader’s federal suit by virtue of the doctrine of Younger v. Har-
ris, 401 U.S. 37 (1971). That decision and cases following it,
such as our Majors case on which the board particularly relies,
Majors v. Engelbrecht, 149 F.3d 709 (7th Cir. 1998), hold (with
irrelevant exceptions) that if a person is believed to have vio-
lated a state law, the state has instituted a criminal, discipli-
nary, or other enforcement proceeding against him, and he has
a federal defense, he cannot scurry to federal court and plead
that defense as a basis for enjoining the state proceeding. Ohio
Civil Rights Comm’n v. Dayton Christian Schools, Inc., 477
U.S. 619, 626–28 (1986); Middlesex County Ethics Committee v.
Garden State Bar Ass’n, 457 U.S. 423, 432 (1982); Hoover v.
Wagner, 47 F.3d 845, 848 (7th Cir. 1995); Storment v. O'Malley,
938 F.2d 86 (7th Cir. 1991); Anthony v. Council, 316 F.3d 412,
419–22 (3d Cir. 2003). That is not this case. Nader is not ac-
cused of having violated any state law, and the state has not
instituted any proceedings against him; he merely is pursuing
parallel remedies against the state’s refusal to certify him as a
candidate. Federal courts do sometimes stay their hand wh en
parallel state judicial or administrative proceedings are pend-
ing (“Colorado River” abstention, see, e.g., Clark v. Lacy, 376
F.3d 682, 685 (7th Cir. 2004); CIGNA Healthcare of St. Louis,
Inc. v. Kaiser, 294 F.3d 849 (7th Cir. 2002), or “Burford” ab-
stention, see, e.g., International College of Surgeons v. City of
Chicago, 153 F.3d 356, 361–65 (7th Cir. 1998)), but the election
board has made no effort to fit this case to that mold—and it
couldn’t, if only because of the time factor. Abstention would
almost certainly moot Nader’s case.
Nader argues that the three rules that in combination
ruled him off the ballot impose an unreasonable burden on
third-party and independent (nonparty) candidacy (though the
Libertarian Party’s candidate was able to qualify), and if this is
so the rules are unconstitutional. Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 357–59 (1997); Burdick v. Takushi,
504 U.S. 428, 432–34 (1992); Schulz v. Williams, 44 F.3d 48,
56 (2d Cir. 1994); Cromer v. South Carolina, 917 F.2d 819.
No. 04–3183 4
822–23 (4th Cir. 1990). Nader emphasizes the role that third
parties have played in American democracy. The Republican
Party started as a third party; and such third parties as the
Progressive Party of Theodore Roosevelt, LaFollette’s Progres-
sive Party, and the Reform Party have made significant contri-
butions to political competition, whether by injecting new ideas
or, in the case of the Republican Party, by actually displacing
one of the major parties.
So the barriers to the entry of third parties must not be set
too high; yet the two major parties, who between them exert
virtually complete control over American government, are apt
to collude to do just that. For like other duopolists they would
prefer not to be challenged by some upstart—although if a ma-
jor party believes that a third party will take more votes from
the other party than from itself, it will support that third party
(surreptitiously, because it’s supporting an ideological oppo-
nent), and the other party will oppose it (also surreptitiously,
because it’s opposing an ideological ally). That is why Nader
assumes that Tully is a “minion” of the Democratic Party—but
we should point out that there was no basis for joining him as a
defendant. Tully is not a state actor, and he is not conspiring
with the board of elections to keep Nader off the ballot.
It doesn’t follow from what we said about the importance
of preserving opportunities for the entry of new parties into the
political arena that it would be a good thing if there were no
barriers at all to third-party candidacies. A multiplication of
parties would make our politics more ideological by reducing
the influence of the median voter (who in a two-party system
determines the outcome of most elections), and this could be a
very bad thing. More mundanely, terminal voter confusion
might ensue from having a multiplicity of Presidential candi-
dates on the ballot—for think of the confusion caused by the
“butterfly” ballot used in Palm Beach County, Florida in the
2000 Presidential election. That fiasco was a consequence of
the fact that the ballot listed ten Presidential candidates. The
butterfly ballot was a folded punchcard ballot in which the ten
candidates for President were listed on facing pages. This un-
usual design was innocently adopted in order to enable the
No. 04–3183 5
candidates’ names to be printed in large type, in consideration
of the number of elderly voters in the county, while at the same
time placing all the candidates for each office in sight of the
voter at one time so that he would be less likely to overvote.
Another ballot design might have effectively disfranchised vot-
ers who had poor eyesight, or who cast their vote before realiz-
ing there were additional candidates for the same office on the
next page of the ballot, or who cast two votes for candidates for
the same office because they didn’t realize that candidates for
the same office appeared on different pages. But with names on
each side and the chads (the places in the ballot that the voter
punches out in order to vote) in the middle, it was easy to
punch the chad of the candidate on one of the facing pages
meaning to vote for the candidate on the opposite page. Appar-
ently a significant number of voters did just that: intending to
vote for Al Gore, they voted for Patrick Buchanan. With fewer
candidates, the “butterfly” design and resulting confusion
would have been avoided.
Less obviously, third-party candidates would themselves
be harmed if there were no barriers to including such candi-
dates on the ballot. It is to the Libertarian Party’s advantage
that if Nader’s challenge fails, its candidate will be the only in-
dependent candidate for President on the ballot. If there were
98 independent candidates, none could hope for a nontrivial
vote.
So there have to be hurdles to getting on the ballot and the
requirement of submitting a minimum number of nominating
petitions is a standard one. In a state the size of Illinois—the
population exceeds 12 million, of whom more than 7 million are
registered voters—requiring a third-party candidate to obtain
25,000 signed nominating petitions cannot be thought exces-
sive. Jenness v. Fortson, 403 U.S. 431 (1971), upheld a Georgia
law that required petitions from 5 percent of the registered
voters—in Illinois that would mean 350,000 petitions! Equally
stringent requirements have been upheld in other cases. See
American Party of Texas v. White, 415 U.S. 767, 783–84 (1974);
Libertarian Party v. Rednour, supra, 108 F.3d at 775; cf. Pres-
No. 04–3183 6
tia v. O’Connor, 178 F.3d 86, 87–89 (2d Cir. 1999); compare
Storer v. Brown, 415 U.S. 724, 739–40 (1974).
And especially in a state as notorious for election fraud as
Illinois, see, e.g., “Voting Rights Act: Criminal Violations,”
Hearings Before Subcomm. on the Constitution of the S. Comm.
on the Judiciary, 98th Cong., 1st Sess. 4 (1983) (testimony of
Dan Webb, U.S. Attorney for the Northern District of Illinois);
Dayna L. Cunningham, “Who Are to Be the Electors? A Reflec-
tion on the History of Voter Registration in the United States,”
9 Yale L. & Policy Rev. 370, 396–97 (2001); Todd J. Zywicki,
“The Law of Presidential Transitions and the 2000 Election,”
2001 B.Y.U.L. Rev. 1573, 1607–08 (2001), the fact that the
nominating petitions that a candidate submits have actually
been signed by registered voters has to be verified. If the peti-
tion were not required to contain any identifying information
(such as date of birth, mother’s maiden name, or, the identifier
that Illinois has chosen, the address at which the petitioner is
registered to vote), there would be no practical impediment to a
person’s signing the name of anyone he knew to be a registered
voter.
Other states may be able to rely on an honor system; Ore-
gon, for example, has switched to a system of all-mail voting.
O.R.S. § 254.465. But “what works in the state of Oregon
doesn’t necessarily work in Illinois, especially in light of the
colorful history of vote fraud we’ve seen,” Andrew Zajac, “Wider
Access to Absentee Ballots Sought; Lawsuit Challenges Illinois
Voting Law,” Chi. Tribune, Sept. 8, 2004, p. 11 (quoting the
general counsel of the state election board); for voting by mail
makes vote fraud much easier to commit. Michael Moss, “Ab-
sentee Votes Worry Officials As Nov. 2 Nears,” N.Y. Times,
Sept. 13, 2004, p. A1. An additional reason to insist that the
petitioner list his current address is that if he has moved out of
the county in which he is registered without re-registering, he
may be ineligible to vote and therefore ineligible to execute a
nominating petition.
Of course a law requiring verification could require so
much or such esoteric information that most petitions would be
invalidated. The best way of evaluating this danger is to de-
No. 04–3183 7
termine the total number of petitions that a third party would
have to submit in order to be reasonably confident of having
enough valid ones to get on the ballot. Almost one-third of the
Nader petitions were invalidated. So if instead of 32,000 peti-
tions his campaign had collected 37,500 and a third had been
invalidated, there would have been 25,000 valid petitions, and
Nader would be on the ballot. If 25,000 is not an excessive
number to require, neither is 40,000 (to provide an extra mar-
gin of error), for that is only slightly more than one-half of one
percent of the number of registered voters in Illinois.
But is it reasonable to require that the required number of
nominating petitions all be collected by June 21 when the elec-
tion is not until November 2? June 21 preceded both major par-
ties’ conventions, and depending on what occurred there a
third-party candidacy might generate a degree of support that
it could not have attracted earlier. The problem is that time
has to be allowed between the deadline for petitions and the
election to enable challenges to the validity of the petitions to
be made and adjudicated and then to enable a ballot to be
printed and distributed that will contain the names of all the
candidates—and the ballot must be printed well before the
election so that it can be distributed to registered voters who
vote by absentee ballot.
But how much time? One hundred thirty-four days—
almost four and a half months—seems awfully long. Too long,
seems to be the judgment of 47 of the other 49 states. A 120-
day deadline was upheld in American Party of Texas v. White,
supra, 415 at 787 n. 18, but it had not been separately chal-
lenged and it was not separately discussed. In Anderson v.
Celebrezze, supra, on which the plaintiffs primarily rely, the
Court invalidated a seven-month deadline, and though it was
much longer than Illinois’s 134 days and Ohio had not argued
that it needed that much time “to allow petition signatures to
be counted and verified or to permit November general election
ballots to be printed,” id. at 800, the Court noted, though non-
committally, that the district court had found that 75 days
should be enough. Id. at 800 n. 28. The Court also emphasized
that deadlines that states set for qualifying to be a candidate in
No. 04–3183 8
a national election must be scrutinized with particular care be-
cause such deadlines have effects outside the states imposing
them; a strong third-party showing could sway the outcome of
the Presidential election. Id. at 794–95.
Restrictions on candidacy must, moreover, be considered
together rather than separately. Wood v. Meadows, 207 F.3d
708, 711 (4th Cir. 2000). (This, incidentally, makes it difficult
to rely heavily on precedent in evaluating such restrictions, be-
cause there is great variance among the states’ schemes.) The
fewer the petitions required to put a candidate on the ballot
and the harder it is to challenge a petition (and so the lower
the number of petitions above the minimum that a candidate
must submit in order to be on the safe side), the shorter the
deadline for submitting petitions can be made without unduly
burdening aspiring candidates. Illinois requires a substantial
though not paralyzing number of petitions, makes challenges
easy rather than hard (since a discrepancy between the ad-
dress on the petition and the address at which the petitioner is
registered is likely to be pretty common even without fraud),
and sets a tight deadline for submitting a qualifying number.
In these circumstances, the tightness of the deadline can be
questioned.
But we must not overlook another variable in a system of
ballot access, and that is the procedure for resolving challenges
to nominating petitions. The more extensive the procedure that
a state provides, the more time the state will need in order to
determine whether a candidate has qualified. Illinois, perhaps
out of sensitivity to the state’s history of voting fraud, has de-
cided to allow candidates to respond to challenges, and this de-
cision requires pushing back the deadline for submitting peti-
tions by increasing the amount of time required to determine
whether the candidate has obtained the requisite number of
valid petitions. A state that employed a purely ex parte proce-
dure for resolving challenges could set a later deadline for
submission of petitions. But Nader does not question the ap-
propriateness of the state’s entitling him to rebut challenges to
his nominating petitions. With 19,000 challenges to consider
one by one and the Nader campaign entitled to rebut all
No. 04–3183 9
19,000, the board of elections needed a significant amount of
time for resolving challenges and only after doing so could it
print up the ballots (unless it printed a double set of ballots—
one with, one without, Nader’s name, an expedient that has not
been suggested). At argument Nader’s lawyer claimed that the
19,000 challenges could all have been resolved within five to
eight days. That seems preposterous and in any event no at-
tempt has been made to substantiate the figure.
Well, even given the expanded procedure, is 134 days
really a reasonable period for resolving challenges and printing
and distributing ballots? Couldn’t that be done quicker? Maybe
so, but Nader has not presented evidence that would enable a
court to prescribe a shorter period. We cannot micromanage
the regulation of the electoral process to the degree he seeks.
Even if he has a better case on the merits than we think,
he has not made a persuasive case for the extraordinary rem-
edy of a preliminary injunction against a state agency. Re-
member that between the expiration of the statutory deadline
and August 19, his campaign collected another 7,000 petitions.
Were August 19 the deadline instead of June 21, we do not
think it would be argued that the deadline was still too tight;
nor do we understand Nader to be making such an argument,
or to be arguing that if that were the deadline he would have
collected more than 39,437 petitions (32,437 + 7,000). If a third
of those are invalid, he is perilously close to the 25,000 mini-
mum. Yet he argues not that the state election board should
verify the 7,000, but that that number, though it undoubtedly
includes many invalid petitions, should be added to his 20,182
total of verified petitions, carrying him above the 25,000
threshold. That is an improper procedure; his proposing it sug-
gests that he is pessimistic that he actually has 25,000 valid
petitions.
It also is unlikely that the 134-day rule, though it could
prevent some third-party candidates, and perhaps even Nader
in different circumstances, from having a reasonable shot at
collecting the qualifying number of nominating petitions, could
have made a difference to Nader’s ability to collect petitions in
this year’s election campaign. Long before the June deadline it
No. 04–3183 10
was not only certain who the major parties’ candidates would
be but their positions were well known, the candidates were
campaigning vigorously, there was a high level of public inter-
est in the campaign, Nader himself had been campaigning
since February, and he has long been a well-known national
figure with more name recognition than Senator Kerry had be-
fore Kerry entered the Democratic primary. If he could not ob-
tain nominating petitions from (realistically, to supply a com-
fortable margin of error) 40,000 of Illinois’s 7 million registered
voters, the implication is that his popular appeal in Illinois in
the forthcoming election is slight. With 90 days to collect the
40,000 petitions, and 100 canvassers working to collect them,
each canvasser would have to collect an average of only 4 to 5 a
day (40,000 ÷ 90 ÷ 100 = 4.44). If Nader could not recruit 100
canvassers in Illinois, his electoral prospects were dismal in-
deed.
Moreover, it would be inequitable to order preliminary re-
lief in a suit filed so gratuitously late in the campaign season.
It wasn’t filed until June 27, only a little more than four
months before the election. If when he declared his candidacy
back in February Nader had thought as he now does that the
Illinois Election Code unconstitutionally impaired his chances
of getting a place on the ballot, he could easily have filed suit at
the same time that he declared his candidacy—especially as he
had filed a similar suit the last time he ran for President, in
2000, when he obtained a preliminary injunction that got him
on the Illinois ballot by allowing him to submit petitions col-
lected after the deadline, Nader 2000 Primary Committee v. Il-
linois State Board of Elections, No. 00 C 4401 (N.D. Ill. 2000),
though no final judgment was ever entered. There would be no
question of his standing to seek such relief in advance of the
submission or even collection of any petitions. Krislov v. Red-
nour, 226 F.3d 851, 857–58 (7th Cir. 2000); cf. Jenness v. Fort-
son, supra, 403 U.S. at 432 (assuming standing). For while he
could not have known before June 21 whether he could comply
with the election code, it was certain that it would cost him
more to do so than if the challenged provisions were invali-
dated.
No. 04–3183 11
By waiting as long as he did to sue, and despite the
strenuous efforts by the district court and this court to expedite
the litigation, Nader created a situation in which any remedial
order would throw the state’s preparations for the election into
turmoil. Absentee ballots have already been mailed to voters
who will be overseas on election day, see 42 U.S.C. § 1973ff-
2(e)(2), and the remaining absentee ballots will be mailed on
September 23. 10 ILCS 5/19–4, 5/16–5.01; State Board of Elec-
tions, State of Illinois Election and Campaign Finance Calen-
dar 2004, pp. 27–30, http://www.elections.state.il.us/ElecInfo/
Pages/Downloads/PDF/2004cal.pdf. At argument Nader’s law-
yer offered no reason for the delay in filing the suit.
We are mindful that the right to stand for office is to some
extent derivative from the right of the people to express their
opinions by voting, e.g., Munro v. Socialist Workers Party, su-
pra, 479 U.S. at 193; it was doubtless to remind us of this that
Nader’s lawyers added two prospective voters as plaintiffs. But
nothing is more common than for the denial of an injunction to
harm innocent nonparties, such as people who would like to
vote for Nader but unlike the two voter plaintiffs are not com-
plicit in his decision on the timing of the suit. But there are in-
nocents on the other side as well—namely the people who will
be harmed if a last-minute injunction disrupts the Presidential
election in Illinois. And Nader’s supporters can of course cast
write-in votes for him in November.
So, all things considered, we cannot say that the district
judge abused his discretion in refusing to issue a preliminary
injunction.
AFFIRMED.