Lee, David v. Keith, John , 463 F.3d 763 ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4355
DAVID LEE,
Plaintiff-Appellant,
v.
JOHN KEITH, in his official capacity as
Chairman of the Illinois State Board of Elections,
JESSE SMART, in his official capacity as
Vice-Chairman of the Illinois State Board of Elections,
WANDA REDNOUR, in her official capacity as a member
of the Illinois State Board of Elections, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court
for the Central District of Illinois.
No. 04 C 3042—Jeanne E. Scott, Judge.
____________
ARGUED JUNE 9, 2006—DECIDED SEPTEMBER 18, 2006
____________
Before RIPPLE, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. In 1975 and 1979 Illinois adopted
two significant changes to its ballot access laws for inde-
pendent candidates. First, the deadline for independents to
file nominating petitions was pushed back from 92 days
before the November general election to the same deadline
that applies to partisan candidates—92 days before the
March primary, or 323 days before the November general
2 No. 05-4355
election. Second, the signature requirement for independent
candidates was doubled, from 5% of the vote in the last
general election for the office sought to 10%. These changes
had a dramatic impact. Before 1975, independent candi-
dates for the state legislature qualified for the ballot
occasionally, though not frequently. Since 1980, how-
ever—the year following the second of these changes—not
a single independent candidate for state legislative office
has qualified for ballot access.
David Lee wanted to run as an independent candidate for
the Illinois State Senate in 2004. When it became clear to
Lee that he could not muster the required number of
signatures by the deadline so distant from the general
election, he abandoned his campaign bid and filed this
lawsuit against the members of the Illinois State Board
of Elections to challenge the ballot access restrictions. He
asserted that the restrictions violated his First and Four-
teenth Amendment rights as a candidate and voter
by erecting an unconstitutionally high barrier to ballot
access for independent candidates running for the state
legislature. The district court upheld the challenged
statutes.
We reverse. In combination, the ballot access require-
ments for independent legislative candidates in Illi-
nois—the early filing deadline, the 10% signature require-
ment, and the additional statutory restriction that disquali-
fies anyone who signs an independent candidate’s nominat-
ing petition from voting in the primary—operate to uncon-
stitutionally burden the freedom of political association
guaranteed by the First and Fourteenth Amendments.
Ballot access barriers this high—they are the most restric-
tive in the nation and have effectively eliminated independ-
ent legislative candidacies from the Illinois political scene
for a quarter of a century—are not sustainable based on the
state’s asserted interest in deterring party splintering,
factionalism, and frivolous candidacies.
No. 05-4355 3
I. Background
The relevant facts are not in dispute. Illinois law requires
an independent candidate for the General Assembly—the
State Senate and House of Representatives—to qualify for
the general election ballot by collecting the signatures of
registered voters in his or her legislative district equal to at
least 10% of the number of votes cast in that district during
the last general election. See 10 ILL. COMP. STAT. 5/10-3
(2004). Anyone who signs an independent’s petition is
disqualified from voting in the primary election. See 10 ILL.
COMP. STAT. 5/7-43(c). Aspiring independent candidates
must file their nominating petitions with the required
number of valid signatures by the same deadline that
applies to partisan candidates: 92 days before the primary,
which is 323 days before the general election. See 10 ILL.
COMP. STAT. 5/7-12(1). This early deadline for independent
candidates was adopted in 1975, see 1975 Session Laws,
Act 79-1100 at 3400; the prior deadline was 92 days before
the general election. All signatures must be collected within
the 90 days immediately preceding the filing deadline. See
10 ILL. COMP. STAT. 5/10-4.
Prior to 1979 when the 10% requirement was adopted, see
1979 Session Laws, Act 81-155 at 816, Illinois law required
independent candidates to collect registered voter signa-
tures equal to only 5% of the votes cast in the previous
general election. The record reflects that from 1956 through
1978, 16 independent General Assembly candidates quali-
fied for the general election ballot. But after Illinois doubled
the signature requirement to 10% in 1979, only three
independents qualified in the 1980 election, and no inde-
pendent legislative candidate has qualified for the ballot
since then.
General Assembly candidates who are not affiliated with
an established political party may also qualify for the
general election ballot by filing as “new party” candidates.
A new party candidate must collect signatures from regis-
tered voters in his or her district totaling at least 5% of the
4 No. 05-4355
number of votes cast in that district during the last general
election and must submit these signatures 134 days before
the general election. See 10 ILL. COMP. STAT. 5/10-2; 10 ILL.
COMP. STAT. 5/10-6. Voters who sign the new party candi-
date’s petition must affirmatively declare their intention to
form a new party. See 10 ILL. COMP. STAT. 5/10-2, ¶ 4. As
with independent candidates, new party candidates must
collect signatures within the 90 days immediately preceding
the filing deadline. See 10 ILL. COMP. STAT. 5/10-4. Other
than having the required number of registered voters sign
nominating petitions and declare their intention to form a
new party, candidates running for General Assembly under
a new party banner need not establish any formal party
machinery or field a slate of candidates for any additional
offices. But if a new party candidate wins the general
election, he or she must organize the party’s members to
hold a primary election in order to appear on subsequent
general election ballots for reelection. See Vasquez v. Mun.
Officers Electoral Bd., 450 N.E.2d 1379, 1381-82 (Ill. App.
Ct. 1983).
By way of comparison to the other 49 states, Illinois’s
deadline for independent legislative candidates to file
signed nominating petitions—323 days before the general
election—was by far the earliest for the 2004 election.
Ohio’s March 1, 2004 deadline was the next earliest, but
even that was two-and-a-half months later than Illinois’s
December 15, 2003 cutoff. Thirty-nine states set their filing
deadlines at June 1 of the election year or later.1
Illinois’s signature requirement—at least as it applied to
Lee during the 2004 election—was likewise more stringent
than any other state’s. The easiest comparison is with the
1
A handful of states did not elect state legislators in 2004, so the
dates and numbers we cite for filing deadlines and signature
requirements are based on the laws that governed those states’
most recent legislative elections, either in 2002 or 2003.
No. 05-4355 5
27 states that, like Illinois, require independent candidates
to collect signatures from registered voters equal to a
specified percentage of the votes cast in the previous
general election. Among this group of 28 states, Illinois’s
10% signature requirement stands alone: it is the only
one that exceeds 5%.
Some states require independent candidates to collect
signatures equal to a percentage of all registered voters
in the district. Georgia and South Carolina have the most
demanding requirements among this group, requiring
signatures equal to 5% of the number of registered voters in
the district. Five percent of all registered voters may
be more or less than 10% of all votes cast in the preced-
ing general election, so a useful comparison with Illinois’s
laws requires a bit of arithmetic. The record shows Lee
needed to collect 6995 valid signatures to qualify for the
2004 general election ballot for the 44th Senate District. We
do not know how many voters were registered in Lee’s
district from September to December 2003 (the 90-day
window for Lee to collect signatures), but as of May 2005,
there were 144,970 registered voters. No one suggests this
number of total registered voters changed in any significant
way between 2003 and 2005, so we use the 2005 number for
our calculations.
The preliminary calculation is as follows: 6995 (the
number of signatures Lee was required to collect) divided by
144,970 (the number of total registered voters) equals .048
(rounded off). So for comparison purposes, Lee needed to
collect signatures from 4.8% of all registered voters in his
district. But any realistic analysis must also account for the
fact that voters who sign an independent’s petition cannot
vote in the primary election. In Illinois’s 44th Senate
District, 21,459 voters participated in the 2004 primary
election for State Senate. Based on the sensible assumption
that these voters would not have wanted to disqualify
themselves from primary participation by signing an
6 No. 05-4355
independent’s petition, we can subtract them from the
eligible pool of petition signers. Accordingly, 144,970 minus
the 21,459 primary voters leaves 123,511; 6995 divided by
123,511 equals about .057, or 5.7%. The result of all this
number crunching is that when measured as an approxi-
mate percentage of eligible registered voters, Illinois’s
signature requirement for Lee in 2004 was 5.7%.
After realizing he would not be able to collect the required
6995 signatures by the mid-December deadline, Lee quit his
bid for the State Senate and challenged the Illinois ballot
access statutes by filing suit against the members of the
Illinois State Board of Elections.2 The parties filed cross-
motions for summary judgment, and the district court
entered judgment for the defendants, relying largely on this
court’s opinion in Stevenson v. State Board of Elections,
794 F.2d 1176 (7th Cir. 1986). Lee appeals.
II. Discussion
We review the district court’s entry of summary judgment
de novo and draw all reasonable inferences in favor of the
nonmoving parties. Scaife v. Cook County, 466 F.3d 735,
738-39 (7th Cir. 2006). Summary judgment should
be entered only where there is no genuine dispute as to any
material fact and the moving party is entitled to judgment
as a matter of law. FED. R. CIV. P. 56(c); Scaife, 466 F.3d at
739.
We note as a preliminary matter that the parties do not
argue mootness; we are independently satisfied that we
have jurisdiction, even though Lee abandoned his bid
2
Although the defendants-appellees are the individual members
of the Illinois State Board of Elections, for ease of reference
we will refer to them collectively as “Illinois.”
No. 05-4355 7
for the Illinois State Senate before the November 2004
election and that election has been decided. Storer v.
Brown, 415 U.S. 724, 737 n.8 (1974) (“The . . . election is
long over . . . but this case is not moot, since the issues
properly presented, and their effects on independent
candidacies, will persist as the . . . statutes are applied in
future elections. This is, therefore, a case where the
controversy is capable of repetition, yet evading review.”)
(internal quotation marks and citations omitted); Nader
v. Keith, 385 F.3d 729, 735 (7th Cir. 2004) (“There would be
no question of [the candidate’s] standing to seek [an
injunction placing his name on the ballot] in advance of
the submission or even collection of any petitions.”); Tobin
for Governor v. Ill. State Bd. of Elections, 268 F.3d 517, 528-
29 (7th Cir. 2001) (“The cases that traditionally have fallen
within the ‘capable of repetition’ exception have involved
challenges to the validity of statutory provisions that will
continue to operate past the election in question.”). The
statutes Lee challenges thwarted his bid to appear on the
ballot and continue to restrict potential independent
candidacies for the Illinois General Assembly. We proceed
to the merits of the claim.
The First Amendment, as incorporated against the
states by the Fourteenth Amendment, “protects the right of
citizens ‘to band together in promoting among the electorate
candidates who espouse their political views.’ ” Clingman v.
Beaver, 544 U.S. 581, 586 (2005) (quoting Cal. Democratic
Party v. Jones, 530 U.S. 567, 574 (2000)). Accordingly, “the
impact of candidate eligibility requirements on voters
implicates basic constitutional rights.” Anderson v.
Celebrezze, 460 U.S. 780, 786 (1983). “The exclusion of
candidates . . . burdens voters’ freedom of association,
because an election campaign is an effective platform for
the expression of views on the issues of the day, and a
candidate serves as a rallying point for like-minded citi-
zens.” Id. at 787-88. Also, because “voters can assert their
8 No. 05-4355
preferences only through candidates or parties or both[,] .
. . [t]he right to vote is ‘heavily burdened’ if that vote may
be cast only for major-party candidates at a time when
other parties or other candidates are ‘clamoring for a place
on the ballot.’ ” Id. at 787 (quoting Lubin v. Panish, 415
U.S. 709, 716 (1974)).
Ballot access laws thus “place burdens on . . . 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.
Both of these rights, of course, rank among our most
precious freedoms.” Williams v. Rhodes, 393 U.S. 23, 30
(1968). Illinois’s filing deadline and signature requirements
must be addressed together and their constitutionality
determined on the basis of their combined effect on Lee’s
political association rights as a voter and candidate. Nader,
385 F.3d at 735 (citing Wood v. Meadows, 207 F.3d 708, 711
(4th Cir. 2000)).
Ballot access restrictions are evaluated under a flexible
standard that weighs the “ ‘character and magnitude of the
asserted injury to the rights protected by the First and
Fourteenth Amendments that the plaintiff seeks to vindi-
cate’ against ‘the precise interests put forward by the
State as justifications for the burden imposed by its rule,’
taking into consideration ‘the extent to which those inter-
ests make it necessary to burden the plaintiff’s rights.’ ”
Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting
Anderson, 460 U.S. at 789). “Under this standard, the
rigorousness of [the court’s] inquiry into the propriety of a
state election law depends upon the extent to which
a challenged regulation burdens First and Fourteenth
Amendment rights.” Burdick, 504 U.S. at 434. Restrictions
that “severely” burden the exercise of constitutional rights
must be “narrowly drawn to advance a state interest of
compelling importance.” Id. (quoting Norman v. Reed, 502
U.S. 279, 289 (1992)). But “reasonable, nondiscriminatory
No. 05-4355 9
restrictions” that impose less substantial burdens are
generally justified by the state’s “important regulatory
interests.” Id.
Whether measured by comparison to the ballot access
requirements in the other 49 states or by the stifling effect
they have had on independent legislative candidacies
since their inception, the combined effect of Illinois’s ballot
access requirements for independent General Assembly
candidates falls on the “severe” end of this sliding scale.
The mid-December filing deadline—with the general
election still nearly 11 months away—is by far the earliest
deadline in the nation. The next earliest filing date is
Ohio’s; its March 1 deadline falls about two-and-a-half
months later than Illinois’s and substantially precedes the
deadlines set by the great majority of states, 39 of which do
not require independents to file until June 1 of the election
year or later.
Illinois’s signature requirement also exceeds those of
all other states. Of the states that require independents
to collect signatures equal to a specified percentage of votes
cast in the last general election, Illinois is the only state
that requires more than 5%. As it applied to Lee during the
2004 election, Illinois’s 10% signature requirement even
outstrips the demands of the two states (Georgia and South
Carolina) that require candidates to collect signatures from
5% of all registered voters. When converted to a percentage
of registered voters eligible to sign Lee’s petition, the
Illinois requirement was 5.7%. That represents a 14%
increase over Georgia’s and South Carolina’s 5% require-
ments and gives Illinois the distinction of having both the
most demanding signature collection requirement and by
far the earliest filing deadline of all 50 states.
Unsurprisingly, the unrivaled severity of these ballot
access restrictions has had the effect of thoroughly exclud-
ing independent General Assembly candidates from Illi-
10 No. 05-4355
nois’s ballots. Three independents did manage to qualify for
the ballot during the first election governed by the in-
creased signature requirement. But in the 12 election cycles
since 1980, not a single independent legislative candidate
has qualified. The Supreme Court has held that ballot
access history is an important factor in determining
whether restrictions impermissibly burden the freedom
of political association: “Past experience will be a helpful, if
not always unerring, guide: it will be one thing if independ-
ent candidates have qualified with some regularity and
quite a different matter if they have not.” Storer, 415 U.S.
at 742. The “inevitable question for judgment” is whether “a
reasonably diligent independent candidate [could] be
expected to satisfy the signature requirements, or will it be
only rarely that the unaffiliated candidate will succeed in
getting on the ballot?” Id. Not only are unaffiliated legisla-
tive candidacies rare in Illinois, in the last 25 years they
have been nonexistent.
Because Illinois’s ballot access requirements combine to
severely burden the rights of candidates and voters to
launch and support independent candidacies, they must
be “narrowly drawn” to advance a “compelling” state
interest. Burdick, 504 U.S. at 434; see also Timmons v.
Twin Cities Area New Party, 520 U.S. 349, 358 (1997).
Illinois asserts two primary interests it says are served
by its ballot access restrictions: preventing intraparty feuds
and excessive factionalism from invading the gen-
eral election and assuring that candidates whose names
appear on the general election ballot have a significant
modicum of support.
There is no question that states have a strong interest
in confining party infighting to the primary election and
reserving the general election for major political struggles.
See Timmons, 520 U.S. at 367; Burdick, 504 U.S. at 439.
States also have a strong interest in preventing voter
No. 05-4355 11
confusion by limiting ballot access to serious candidates
who can demonstrate at least some level of political viabil-
ity. See Anderson, 460 U.S. at 788 n.9; Jenness v. Fortson,
403 U.S. 431, 442 (1971). We need not decide whether these
interests can be considered “compelling” because Illinois
has not demonstrated that its early filing deadline and high
signature requirement, taken together, are narrowly drawn
to the advancement of these interests.
Illinois devoted much of its brief to arguing that we need
not even engage in the foregoing analysis and should reject
Lee’s challenge—to the filing deadline at least—as a matter
of stare decisis based on Stevenson v. State Board of
Elections, 794 F.2d at 1177. It is true that Stevenson
rejected a challenge to Illinois’s early filing deadline for
independents, but that decision does not control the out-
come here for at least three reasons. First, the plaintiffs in
Stevenson challenged only the early filing deadline; they did
not ask this court to consider the deadline in conjunction
with Illinois’s demanding signature requirement and its
corresponding rule that disqualifies anyone who signs an
independent’s nominating petition from voting in the
primary. This distinction is important because we are
required to evaluate challenged ballot access restrictions
together, not individually, and assess their combined effect
on voters’ and candidates’ political association rights.
Nader, 385 F.3d at 735. An early filing deadline coupled
with a less burdensome signature requirement may well
pass constitutional muster, depending on their combined
effect on political association rights.
Second, as we have noted, the Supreme Court has
instructed us to give significant weight to the historical
impact of ballot access restrictions. Storer, 415 U.S. at 742.
Twenty years have passed since Stevenson, and in that time
not a single independent General Assembly candidate has
qualified for the general election ballot. Given the impor-
12 No. 05-4355
tance of the historical record to the constitutional equation,
two decades of complete exclusion of independents places
this case in a markedly different context from that in
Stevenson.
Finally, and relatedly, we note that this court’s opinion in
Stevenson summarily adopted the district court’s reasoning,
adding for emphasis that the facts at issue in the case
“epitomiz[ed] factionalism and intraparty squabbling. It is
exactly this type of chaos that a state may constitutionally
regulate in the interest of an orderly and informed electoral
process.” Stevenson, 794 F.2d at 1177. The facts were these:
former Illinois Senator Adlai E. Stevenson, the lead plain-
tiff in Stevenson, won his party’s nomination for governor in
the 1986 primary but then defected from his party’s slate
and wanted to run as an independent because of his
dissatisfaction with the party’s nominee for lieutenant
governor. Stevenson v. State Bd. of Elections, 638 F. Supp.
547, 548-49 (N.D. Ill. 1986). The early filing deadline for
independents precluded an independent run and Stevenson
sued. The district court rejected his challenge to the early
filing deadline on the strength of the state’s interest in
promoting political stability and discouraging party splin-
tering and unrestrained factionalism. Id. at 553. This court
summarily affirmed. Stevenson, 794 F.2d at 1177.
In contrast to Stevenson, the context here carries no
baggage of intraparty feuding. Illinois does not suggest that
Lee is anything other than a bona fide independent who
wants nothing to do with any political party. Stevenson is
thus distinguishable, for all the foregoing reasons. The very
early mid-December filing deadline for independents must
be evaluated together with the other ballot access restric-
tions that apply to independents in Illinois: the 10%
signature requirement and the provision that disqualifies
any voter who signs an independent’s petition from voting
in the primary.
No. 05-4355 13
We conclude that these ballot access requirements, in
combination, severely burden First and Fourteenth Amend-
ment rights and are not narrowly drawn to advance Illi-
nois’s interest in avoiding the political instability of party
splintering and excessive factionalism and the ballot clutter
of frivolous candidacies. We do not question that these are
important state interests; they have long been recognized as
such. Timmons, 520 U.S. at 366-67; Burdick, 504 U.S. at
439; Anderson, 460 U.S. at 788 n.9; Storer, 415 U.S. at 736.
But the Supreme Court has also observed that the interest
in political stability “does not permit a State to completely
insulate the two-party system from minor parties’ or
independent candidates’ competition and influence,”
Timmons, 520 U.S. at 366-67, and that is effectively what
Illinois has done.
Illinois maintains that its 10% signature requirement
is not a significant burden on independent candidates; its
argument in this regard centers on Jenness, 403 U.S. at
442. In Jenness, the Supreme Court rejected a challenge to
Georgia’s requirement that independent candidates sub-
mit signatures from 5% of registered voters. The Court’s
holding in Jenness was based in part on the absence of any
further restrictions on independent candidates in Georgia;
the Court specifically noted that although Georgia’s 5%
requirement was “somewhat higher than the percentage
of support required to be shown in many States as a
condition for ballot position, . . . this is balanced by the fact
that Georgia has imposed no arbitrary restrictions whatever
upon the eligibility of any registered voter to sign as many
nominating petitions as he wishes.” Id. (footnote omitted).
Unlike the Georgia statutory scheme approved in Jenness,
Illinois law does not permit unlimited signing of nominating
petitions. See 10 ILL. COMP. STAT. 5/7-43 (voters who sign an
independent’s petition may not vote in the primary elec-
tion); 10 ILL. COMP. STAT. 5/7-10 (voters may not sign
petitions for candidates of more than one party). Disqualify-
14 No. 05-4355
ing a voter who signs an independent candidate’s nominat-
ing petition from voting in the primary election severely
burdens the voting and political association rights of the
petition signer. Only the most committed supporters of an
independent candidate would be willing to sign on condition
of primary disenfranchisement, especially so early in the
political season.
As we have noted, when Illinois’s restrictions on peti-
tion signers are taken into account, the signature require-
ment for Lee in 2004 was 5.7% of eligible registered voters,
a 14% increase over the 5% figure approved in Jenness.
Moreover, we note that Georgia law provided a signature
collection period twice as long as Illinois’s (180 days) and a
filing deadline six months closer to the general election
(mid-June). Jenness, 403 U.S. at 433-34. These are material
differences. If the Court was at its outer limit in approving
Georgia’s 5% requirement in Jenness, then Illinois’s more
stringent signature requirement and the additional burdens
of a shorter collection period and much earlier filing
deadline place the Illinois scheme outside any safe harbor
Jenness might be construed to have created.
In any event, Illinois’s assertion that the 10% signature
requirement for independents is not burdensome is sim-
ply inconsistent with the state’s political history. Prior to
the enactment of the 10% requirement, independent
legislative candidates qualified for the ballot with some
regularity. Since 1980, the year following the imposition
of the 10% requirement, the combined effect of the state’s
ballot access restrictions has been to completely eliminate
competition from independent legislative candidacies.
Finally, Illinois contends that even if its early filing
deadline and hefty signature requirement combine to
impose too great a burden on independent candidates, Lee’s
claim must fail because he could qualify for the ballot by
meeting the less onerous requirements for “new party”
No. 05-4355 15
candidates. As we have noted, Illinois law allows candidates
to form a new political party and appear on the November
ballot if they collect signatures from registered voters equal
to 5% of the votes cast at the last general election and file
those signatures 134 days before the general election. See
10 ILL. COMP. STAT. 5/10-2, ¶ 2 (5% signature requirement);
10 ILL. COMP. STAT. 5/10-6 (filing deadline 134 days before
general election). Illinois also has a “sore loser” provi-
sion—not at issue here—that bars partisan primary losers
from entering the general election as newly minted new
party candidates. See 10 ILL. COMP. STAT. 5/10-2, ¶12.
We disagree that the new party option operates as a
sort of constitutional safety valve for independent candi-
dates. It is true that Lee could access the ballot by launch-
ing the “David Lee Party,” declare his candidacy the party’s
sole objective, and make an initial appearance on the
November ballot without establishing any official
party machinery. See Stevenson, 794 F.2d at 1179
(Easterbrook, J., concurring). But a sham “party” formed
solely for the purpose of a single candidate’s election is good
for one election only. Illinois law requires that a successful
new party candidate must organize his or her party’s
members and hold a nominating primary contest when the
time comes for reelection. See Vasquez, 450 N.E.2d at 1381-
82. This forces the new party candidate and his or her
supporters to associate as a political party even though
their true intention is to advance an independent candi-
dacy.
In addition, voters who sign a new party candidate’s
nominating petitions must declare their intention to form a
new political party. 10 ILL. COMP. STAT. 5/10-2. Running
under a new party banner thus forces an independent
candidate such as Lee to “consider himself a party man,
surrendering his independent status,” and obliges Lee’s
supporters to “giv[e] up [their] ties with another party or
sacrific[e] [their] own independent status, even though
16 No. 05-4355
[their] possible interest in the new party centers around a
particular candidate for a particular office.” Storer, 415 U.S.
at 745-46. The Supreme Court has observed that the
compelled partisan association inherent in the new party
route to ballot access makes it an inadequate substitute for
independent candidates: “political party and the independ-
ent candidate approaches to political activity are entirely
different and neither is a satisfactory substitute for the
other.” Id. at 745. Independent candidates and their
supporters are entitled to maintain their independent
status; for true independents, the new party option does not
provide an acceptable alternative means of accessing the
ballot.
Accordingly, we hold that the ballot access restrictions
Illinois places on independent General Assembly candi-
dates—the early filing deadline and the 10% signature
requirement, together with the corresponding restriction
disqualifying an independent candidate’s petition signers
from voting in the primary—combine to severely burden
Lee’s First and Fourteenth Amendment rights as a candi-
date and voter. We also conclude that Illinois has not
demonstrated the combined restrictions are narrowly drawn
to advance the state’s interest in minimizing
party splintering, excessive factionalism, and ballot clutter.
We do not presume to suggest a new ballot access scheme
that will pass constitutional muster; Illinois can make its
own judgment about how to remedy its ballot access laws.
We leave that task to the political branches of the state
government.
The judgment of the district court is REVERSED and the
case is REMANDED for entry of judgment for the plaintiff,
David Lee.
No. 05-4355 17
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—9-18-06