Monday, July 31, 2006
Protect Marriage Suit Against Petition Gathering Restrictions
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Protect Marriage Illinois, et al., )
Plaintiffs, )
)
v. ) No. 06 C 3835
)
David D. Orr, Cook County Clerk, et al., ) MEMORANDUM
) Honorable Elaine B. Bucklo, Judge Presiding
) Magistrate Judge Morton Denlow
Defendants. )
______________________________________________________________________________
MEMORANDUM IN SUPPORT OF MOTIONS FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I. STATEMENT OF FACTS
The Illinois Election Code 10 ILCS 1-1 et seq. gives the people the ability to petition the Legislature to adopt an advisory question of public policy. ILCS 5/28-1 through 5/28-13. Plaintiff Protect Marriage Illinois (“PMI”) initiated a petition defining marriage for presentation to the voters in the November 2, 2006 general election. The Advisory Question reads: “Shall the Illinois General Assembly submit an amendment to Article IX of the Illinois State Constitution to the voters of the State of Illinois at large at the next General Election stating as follows: ‘To secure and preserve the benefits of marriage for our society and for future generations of children, a marriage between a man and a woman is the only legal union that shall be valid or recognized in this State’?” (Exhibit 1) (“PMI Petition”). In order to be submitted to the voters for their approval or disapproval, the petition must contain signatures of registered voters equaling at least 8% of the votes cast in the last gubernatorial election. ILCS 5/28-9. The signatures must be submitted at least 6 months before the General Election at which the petition is to be submitted and not be circulated more than two years before that election. Id. If the voters approve of the Advisory Question, it may or may not be acted upon by the general assembly. In this case, the PMI petition was required to contain approximately 283,000 signatures. PMI timely filed the Statewide Petition with the State Board of Elections (“SBE”) on May 8, 2006, with approximately 347,000 signatures. (Exhibit 4 of Declaration of Plaintiff David E. Smith.)
Illinois law treats citizen initiated statewide advisory questions and statewide candidate nominating petitions and new party nominating petitions differently. For example, the state requires that each petition sheet for a statewide referendum contain only signatures from registered voters of a single election jurisdiction, and that all the petition sheets for a single jurisdiction be bound together before filing. 10 ILCS 5/28-9. The result of this requirement is that if a person signs the petition on the wrong sheet, his or her signature will “not be counted toward the minimum number of signatures required to qualify the . . . statewide advisory public question for the ballot.” 10 ILCS 5/28-9. This provision alone has resulted in the invalidation of more than 20,000 signatures for the Protect Marriage Illinois referendum. (Exhibit 11.)
The requirement that all signatures on a petition sheet be from a single election jurisdiction does not apply to other kinds of petition efforts in Illinois. For example, signatures on petitions for a new statewide political party or independent statewide candidates for political office or new statewide parties are not limited to sheets with only signatures from the same jurisdiction. 10 ILCS 5/7-10, 10-2, 10-4. Moreover, signatures on petitions relating to public questions for political districts involving more than one election jurisdiction but not statewide, are not limited to sheets with other signatures from the same election jurisdiction. 10 ILCS 5/28-3, 28-5, 28-6, 28-7.
Another regulation that applies only to constitutional amendments and advisory questions of public policy is that each signature on the petition “reasonably compares” with the signature shown on that person’s registration record card.” (10 ILCS 5/28-11(2). There is no such requirement for any other petition effort in Illinois whether it is for statewide political parties or candidates (10 ILCS 5/7-10, 10-2, 10-4), or petitions relating to public questions for political subdivisions (10 ILCS 5/28-3, 28-5, 28-6, 28-7), except a public question initiative submitted pursuant to Const. Ill. 1970, sec. 3, art. XIV. The requirement as applied to statewide advisory petitions, leaves it to the judgment of each election jurisdiction official examining signatures in each of the 115 election jurisdictions to determine what “reasonably compares” might mean.
The SBE deleted approximately 10,000 signatures from the petition because the signature on the petition did not, according to individual election officials in each jurisdiction, “reasonably compare” to the signature on the voter registration card. Another approximately 10,000 signatures were deleted from the petition because they were “out-of-jurisdiction” signatures. Still another 44,000 signatures were deleted as not registered at the address opposite their signature. (Exhibit 11.) The SBE made no attempt to notify any of these voters that their signatures had been stricken. (Exhibits 7, 9 and 10.) The SBE then projected that 91.1% of the total number of signatures on the petition would be valid, (Exhibit 12), which was approximately 3.9% below the 95% validity required. (Exhibit 12.) The SBE then found that the petition was presumptively invalid. Id.
The SBE is required to conduct an evidentiary hearing pursuant to 10 ILCS 5/28-12 to allow the petition proponent, PMI, to present evidence to rebut the SBE’s presumption of invalidity. There is no provision that allows petition signers to present evidence that their signature is valid. The hearing will begin August 5, 2006 in front of a single hearing examiner. The SBE will begin an en banc evidentiary hearing on August 11, 2006, using primarily the report and recommendation of the hearing examiner. Following that hearing, the SBE will issue a final order declaring the validity or invalidity of the petition. But, PMI is unable to present sufficient to rebut the presumption without a favorable ruling on some of the issues raised in this cause. (Exhibit 11.)
ARGUMENT
II. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION SHOULD ISSUE IN THIS CAUSE.
Preliminary injunctive relief may be issued when the movant has: 1) a reasonable likelihood of success on the merits ; 2) no adequate remedy at law or the movants would be irreparably harmed in the absence of an injunction; 3) the threatened injury to the movants outweighs that which the injunction would inflict on the defendant; and when 4) granting such an injunction would not “disserve the public interest.” Cox v. City of Chicago, 868 F.2d 217, 219 (7th Cir. 1989); O'Connor v. Board of Education, 645 F.2d 578, 580 (7th Cir. 1981); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir. 1984). Reasonable likelihood of success upon the merits directly effects how much weight is given to the balancing of harms, Hyatt Corp. v. Hyatt Legal Services, 736 F.2d 1153, 1159 (7th Cir. 1984), and requires only that the movant’s “chances are better than negligible…,” Roland Machinery Co., 749 F.2d at 386. (quoting Omega Satellite Products Co, v, City of Indianapolis, 694 F.2d. 119, 123 (7th Cir. 1982). “The purpose of [preliminary injunctive relief] is to preserve the object of controversy in its then existing condition, i.e., to preserve the status quo.” EEOC v. Janesville, 630 F.2d 1254, 1259 (7th Cir. 1980). “The decision whether to grant a temporary restraining order lies within the discretion of th[e] Court.” Saukstelis v. Chicago, 1989 U.S. Dist. LEXIS 15298 (N.D. Ill. 1989). A temporary restraining order and preliminary injunction should be granted in this cause for the reasons set forth below.
A. THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
a. THE STATE’S REGULATIONS VIOLATE PLAINTIFFS’ FIRST AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION.
i. The State’s Regulations Violate the Plaintiffs’ Rights to Petition the Government
The initiative petition in Illinois represents the quintessential mechanism to petition the government for redress of grievances. In Illinois, the voters are not initiating law. Instead, they are collectively making their voices known to the state legislature to change Illinois law. This right “comprehends demands [by citizens] for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners, and of their views on politically contentious matters.” Streif v. Bovinette, 88 Ill.App.3d 1079, 1082 (1980) (citation omitted).
The right to petition has been deemed “the most precious of the liberties safeguarded by the Bill of Rights.” B&K Const. Co. v. N.L.R.B., 536 U.S. 516, 524 (2002). “The right to petition is cut from the same cloth as the other guarantees of [the First Amendment], and is an assurance of a particular freedom of expression. McDonald v. Smith, 472 U.S. 479, 482 (1985). And it even predates the guarantees of freedom of speech, assembly, equal protection and due process since its origin is in the Magna Carta which granted the barons the right to petition the King of England for redress in 1215. A.D. Bedell Wholesale Co., Inc. v. Phillip Morris, Inc., 263 F.3d 239 (3rd Cir., 2001). Indeed, the right to petition “is implicit in the very idea of government, republican in form.” McDonald, 472 U.S. at 482. (citation omitted). “A citizen’s right to communicate and to address his government in matters which he deems to be important cannot be lightly subjected to restraint.” Streif v. Bovinette, 88 Ill.App.3d 1079, 1083 (1980) (citing cases); Citizens Against Rent Control Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 294 (1981) (“regulation of First Amendment rights is always subject to exacting judicial review”).
The burdens that the state imposes on the people’s ability to petition the government by advisory petition are severe. See Exhibit 8, Declaration of Plaintiff David E. Smith. This is particularly true for the circulators of the petition.
It should be noted that the very requirement in 10 ILCS 5/28-9 that the petition must contain the signatures of registered voters equaling at least 8% of the votes cast in the last gubernatorial election, is constitutionally suspect, even without the other burdens the Election Code imposes on such petitions. Unlike nominations for candidates for statewide office and for new political parties, the petition proponents in this case did not have a set and unfluctuating number of signatures to obtain. 10 ILCS 5/10-3 and 10 ILCS 5/10-2. Rather, the proponents were required to obtain some 283,000 signatures of registered voters statewide, a number more than eleven times the amount required of those seeking statewide office or a new political party.
The State can provide no justification for this exceedingly high number of required signatures, and particularly not when the other restrictions of Article 28 of the Election Code applying to statewide advisory petitions are factored in. This court has before it competent evidence in the Smith affidavit and otherwise, establishing the grave burdens placed upon the circulators of the subject question. The United States Supreme Court has previously stricken unjustifiably high signature requirements (see Illinois State Board of Elections v. Socialist Worker Party, 440 U.S. 173, 99 S.Ct. 983 (1979)). Here, the signature amount is eleven times that required for other statewide matters, and may increase as population does. Either alone, or in conjunction with the other burdens imposed on the petition circulators and the resulting adverse affect upon voters, this court should strike the statutory scheme.
Additionally, the requirement that all signatures on a petition sheet be limited to one election jurisdiction necessarily limits the size of the audience a petition circulator can reach. It cannot be disputed that the best locations for collecting petition signatures are public events that draw large crowds, such as churches or sporting events. The larger the event, the more likely that there will be attendees from multiple election jurisdictions. Public events with a broad appeal often attract audiences from all over the state. There are 102 counties in Illinois and 9 boards of election commissioners, one of which is a county board of election commissioner; thus, there is a total of 110 different election jurisdictions. Accordingly, for a petition circulator to have the ability to reach any attendee with whom he or she may interact, the circulator would have to carry petition sheets for each election jurisdiction that might be represented at the event. Such an approach is impracticable, for petition circulators must be able to engage potential signers quickly and have the petition ready for signing. See, e.g., Exhibit 8, Declaration of Plaintiff David E. Smith.
The single election jurisdiction limitation also makes it less likely that referendum proponents will garner the number of signatures necessary to place the question on the ballot. By limiting the size of the audience circulators can reach, and by disallowing signatures on a sheet with signatures from another election jurisdiction, 10 ILCS 5/28-9 interferes with the ability to collect the burdensome number of signatures required to place a question of public policy on the ballot. Moreover, Illinois puts a special disability on collecting signatures to petition the government for the redress of grievances that it does not place on other petitions. For example, statewide candidate petitions do not have a State Board conformity examination random sample signature examination requirement. 10ILCS 5/28-10. It is only public questions that have the conformity examination and State Board random sample signature requirement. The state cannot possibly have a valid interest in crippling the people’s right to ask for a change in law, while not placing the same burden on candidates running for public office. “In its journey to ensure the integrity of the electoral process, a state legislature must march across the hallowed ground on which fundamental first amendment rights take root. The terrain must be negotiated with circumspection and care: disparities, in whatever guise, are not casually to be condoned.” Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 43 (1st Cir. 1993). The state simply cannot constitutionally justify putting special disabilities on the people’s right to petition the legislature for the adoption of a constitutional amendment without meeting strict scrutiny. Id.
ii. The State’s Regulations Substantially Burden Plaintiffs’ Core Political Speech
The Supreme Court has h
eld that the activity of obtaining signatures on petitions for a citizen initiative is core political speech. Meyer v. Grant, 486 U.S. 414, 420 (1988). The Court observed that “[t]he circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” Id. at 421. The Court held that the fact that the law permitted the proponents to use other methods to obtain signatures did “not take their speech through petition circulators outside the bounds of First Amendment protection” because it “restrict[ed] access to the most effective, fundamental, and perhaps economical avenue of political discourse . . . .” Id. at 424. Moreover, “there is practically universal agreement that a major purpose of [the First Amendment] was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Thus, regulations on the speech involved in this case mandates the strictest constitutional scrutiny possible. Indeed, it requires exacting scrutiny “at its zenith.” Meyer, 486 U.S. at 422.
The challenge in Meyer involved a Colorado statute that made it a felony to pay petition circulators. The Court held that the prohibition:
restricts political expression in two ways: First, it limits the number of voices who will convey appellees’ message and the hours they can speak and, therefore, limits the size of the audience they can reach. Second, it makes it less likely that appellees will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion.
Id. at 422-23 (emphasis added; footnote omitted). The state’s interest in protecting the integrity of the initiative process did “not justify the prohibition because the State has failed to demonstrate that it is necessary to burden appellees’ ability to communicate their message in order to meet its concerns.” Id. at 426.
In Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), the Supreme Court reiterated its Meyer holding in overturning additional Colorado initiative regulations. The Court held that petition circulators could not be limited to registered voters for the same reasons that Colorado could not prohibit paying for circulators – the regulation limited communication of the proponents’ message and reduced the chances of qualifying an initiative for the ballot. Id. at 194; see also Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000) involving an Illinois statewide candidate petition.
As noted above, the separate jurisdiction requirement for signatures puts a heavy burden on PMI’s circulators (Exhibit 8.) Indeed, disallowing signatures on a sheet with signatures from another jurisdiction places an impermissible burden on core political speech. Meyer, 486 U.S. at 422-23. In this case, it has interfered with substantially more speech than necessary to accomplish any legitimate state interest. See Krislov, 226 F.3d at 864 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
If the State’s concern is with the administrative convenience of getting petition signatures to the relevant election jurisdiction for a determination of validity, it could accomplish that purpose without impermissibly burdening speech. For example, the State could require that when a petition sheet contains signatures of multiple jurisdictions, initiative proponents must submit a copy of the sheet to each jurisdiction represented. The State could even require that proponents identify which signatures are from that jurisdiction. Such a procedure would place no administrative burden on the State, and would permit petition circulators to make full use of their one-on-one contact opportunities to convey their message to potential signatories without the hindrance of searching for the proper jurisdiction sheet.
iii. The State’s Regulations are an Unconstitutional Content-Based Restriction of Plaintiffs’ Rights to Freedom of Speech.
Illinois has placed content-based restrictions on speech by treating initiative petitions differently than candidate petitions. Content-based restrictions are subject to “the most exacting scrutiny.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994); see also Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1009 (9th Cir. 2003) (holding that a content-based restriction is subject to strict scrutiny). In Turner, the Supreme Court defined content-based restrictions as regulations “that suppress, disadvantage, or impose differential burdens upon speech because of its content.” 512 U.S. at 642. If the regulation “cannot be applied without reference to [the] content of the communication,” then the regulation is content based. Bayless, 320 F.3d at 1009.
Illinois imposes a “differential burden” on initiative petitions that it does not impose on petitions for a new statewide political party or statewide candidates for political office, which are not limited to sheets with other signatures from the same jurisdiction. 10 ILCS 5/7-10, 10-2,
10-4. Signatures on petitions relating to public questions for political subdivisions of the state involving more than one election jurisdiction are not limited to sheets with other signatures from the same election jurisdiction. 10 ILCS 5/28-3, 28-5, 28-6, 28-7. What is more, no other petition in the state grants election officials unbridled discretion to determine if a signature “reasonably compares” to the voter’s registration card. 10 ILCS 5/28-11(2). Whether a particular petition must be subject to the burdens of the Illinois regulation cannot be determined “without reference to [the] content of the communication.” If it is a candidate petition, or any other petition, it is not subject to these restrictions. Only if it is a petition for a statewide advisory question or constitutional voter initiated question is the petition subject to these additional restrictions. Thus, initiative petitions are placed at a disadvantage solely because of the content of their speech.
Justice Thomas recognized that a regulation burdening initiative petitions that does not burden candidate petitions is a content-based restriction in Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 209 (1999) (Thomas, J., concurring). In Buckley, a group of Colorado citizens challenged a law that required initiative petition circulators to wear an identification badge, but did not put the same burden on candidate petition circulators. Id. at 209-10. Thomas found that the restriction was a content-based regulation of speech: “[T]he category of burdened speech is defined by its content—Colorado’s badge requirement does not apply to those who circulate candidate petitions, only to those who circulate initiative or referendum proposals.” Id. (citing Boos v. Barry, 485 U.S. 312, 321 (1988)).
Similarly, in Burson v. Freeman, 504 U.S. 191, 198 (1992), the Supreme Court held that a Tennessee regulation was a content-based restriction that prohibited the display or distribution of campaign materials and the solicitation of votes within 100 feet of the entrance of a polling place. Id. at 193. The Court held that the regulation was content-based because whether the speaker was prohibited from speaking was based solely on the content of his speech: “Whether individuals may exercise their free speech rights near polling places depends entirely on whether their speech is related to a political campaign . . . the First Amendment’s hostility to content-based regulation extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an entire topic.” Id. at 197.
The state simply may not treat advisory petitions differently from other petitions simply because they are advisory petitions. To do so is unambiguously content-based regulation of free speech that must meet strict scrutiny.
iv. The Statutes At Issue Are Overbroad And Plaintiffs May
Assert The Rights Of The Petition Signers.
The 10 ILCS 5/28-10 and 11 requirements for a State Board conformity examination random sampling for signature validity as to whether the signature reasonably compares or whether the signer is registered at the address opposite his signature on the petition are targeted only to voter initiated public questions provided for in 10 ILCS 5/28-10. Such statutes for targeting severely impacts, both facially and as applied, the First and Fourteenth Amendments. While these State investigations fatally impact many of the petition signers, in this instance, they also fatally impact upon the Plaintiff PMI because they are preventing the petition question from appearing upon the ballot. The effect of these State actions is to defeat the petition because PMI cannot obtain sufficient evidence, as required by 10 ILCS 5/28-12 to rebut a presumption of invalidity without this court holding in favor of Plaintiffs’ in at least some of the issues raised here.
A statute is overbroad when “there [is] a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court ….” Bd. of Airport Comm’rs of Los Angeles v. Jews for Jesus, 482 U.S. 569, 574 (1987). Here, the statutes at issue compromise the First Amendment rights, as well as other constitutional rights, of literally thousands of petition signers. And, those petition signers cannot even appear before the SBE on their own behalf, not only because they are not allowed to do so by 10 ILCS 5/28-12. Thus, the constitutional rights of thousands of Illinois citizens are nullified before they are ever able to vindicate their rights in time for their signatures to be counted on the petition. The application of the rule stated to our facts would seem to require a finding by this Court that the statutes are facially and as applied overbroad.
And, with regard to Plaintiffs’ standing to assert the rights of the petition signers, plaintiffs have challenged the State’s regulations facially and as applied as being overbroad. The overbreadth doctrine allows plaintiffs to challenge the State’s regulations on behalf of others not before the Court. Bd. of Airport Comm’rs of Los Angeles v. Jews for Jesus, 482 U.S. 569, 574 (1987). The Supreme Court has noted that to bring a challenge on behalf of a third party, “the crucial issues are whether [the plaintiff] satisfies the requirement of “injury-in-fact” and whether it can be expected satisfactorily to frame the issues in the case.” Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984). A plaintiff can be expected to satisfactorily frame issues in the case if he or she has a “sufficiently concerted interest in the outcome of the case.” Powers v. Ohio, 499 U.S. 400, 410-11 (1991). ). Here, Plaintiffs have article three standing in their own right, and certainly have sufficient interest in the outcome of the case, as the petition sponsors, to satisfactorily frame the issues.
Furthermore, plaintiffs also stand in a special relationship with petition signers, and thus can bring claims on their behalf on that basis as well. See Griswold v. Connecticut, 381 U.S. 479, 481 (1965) (physician and director of Planned parenthood allowed to challenge statute on behalf of patient); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (owners of private school allowed to assert rights of potential pupils and parents); Clark v. City of Lakewood, 259 F.3d 996, 1010-11 (9th Cir. 2001) (holding that the owner of an adult entertainment establishment had overbreadth standing to pursue a First Amendment challenge against provisions of an ordinance that required the employees of such establishments to obtain a license because the licensing scheme-although not directly applicable to the owner-threatened his business's viability). Indeed, most of the petition signers will never know that their signatures have been invalidated because the State gives them no notice or opportunity to be heard. Thus, the Plaintiffs must be allowed to assert those rights for them, lest petition signer’s constitutional rights be irretrievably lost.
v. The State Cannot Meet Strict Scrutiny.
The State cannot possibly show a compelling interest in subjecting citizen initiated advisory opinions for a constitutional amendment to special restrictions that are not applied to other types of petitions. “[A] regulation perfectly reasonable and appropriate in the face of a given problem is highly capricious if that problem does not exist.” Home Box Office, Inc v. FCC, 567 F.2d 9, 36 (D.C. Cir. 1977). It is well-settled that “[m]ere speculation of harm does not constitute a compelling state interest.” Consolidated Edison Co. of New York, Inc. v. Public Serv. Comm’n of N.Y., 447 U.S. 530, 543 (1980). The State “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Turner Broad. Sys., Inc. v. FCC., 512 U.S. 622, 664 (1994); Bernal v. Fainter, 467 U.S. 216, 227-228 (1984) (“Without a factual underpinning, the State’s asserted interest lacks the weight we have required of interests properly denominated as compelling”).
If anything, the state would have more of an interest in ensuring the validity of candidate petitions or political party petitions, since their ultimate success or failure at the ballot box will have a direct impact on the government. An advisory opinion is only effective if the Legislature adopts it. At the very least, the state would have the same interest in ensuring the validity of candidate and political party petitions, or petitions relating to public questions for political subdivisions of the state involving more than one election jurisdiction, as it does to advisory petitions for a constitutional amendment.
Moreover, there is not even a rational basis, much less a compelling interest for the state’s special regulations on advisory petitions for a constitutional amendment. For example, the requirement that each election official determine if the signature of the petition signer “reasonably compares” with his or her registration card flies in the face of the customary presumption of validity for signatures. See, e.g., First Nat’l Bank v. Bernius, 127 Ill. App. 3d 193, 198-99 (Ill. Ct. App. 1984) (recognizing that under the Uniform Commercial Code, signatures are presumed to be valid); see also Comment to 810 ILCS 5/3-308 (“The Presumption [that signatures are valid] rests upon the fact that in ordinary experience forged or unauthorized signatures are very uncommon”). Instead giving this same presumption of validity to petition signers for a constitutional advisory question, the State subjects them to arbitrary and standardless scrutiny. The State simply does not have a compelling interest in applying these special restrictions to an advisory question, especially when it does not place them on all but any other petition in Illinois except statewide constitutional voter initiated petition described in 10 ILCS 5/28-9..
b. THE STATE’S REGULATIONS VIOLATE PLAINTIFFS’ EQUAL PROTECTION RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
i. The Regulations Must Survive Strict Scrutiny Because They Infringe Upon a Fundamental Right.
The Equal Protection Clause of the Fourteenth Amendment requires the States to treat all similarly-situated persons equally. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). As noted above, petitions signers for petitions for an advisory opinion are treated differently that petition signers for all but one statewide constitutional initiative, than for any other petition in Illinois. Not only is this disparate treatment a violation of Free Speech, it is also a violation of the Equal Protection Clause of the Fourteenth Amendment. In Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 (1972), the Supreme Court held that content-based restrictions violate Fourteenth Amendment equal protection because they treat different forms of speech differently. See also Burson v. Freeman, 504 U.S. 191, 197 n.3 (1992) (“Content-based restrictions also have been held to raise Fourteenth Amendment equal protection concerns because, in the course of regulating speech, such restrictions differentiate between types of speech”). Moreover, because the differential treatment affects fundamental rights like free speech, the right to vote, and the right to petition the government, they are subject to strict scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1988).
ii. The Regulations Violate Plaintiffs’ Equal Protection Rights Because They Lack Objective Standards.
The statute at issue in this case (10 ILCS 5/28-11) grants the government unbridled discretion in determining whether a signature is valid. The law requires each election official to “[d]etermine if the signature of the person who signed the petition reasonably compares with the signature shown on that person’s registration record card.” 10 ILCS 5/28-11(2) (emphasis added). Each election official, in his or her sole discretion, must determine if signatures of petition signers are valid by comparing them to the signer’s registration record card. 10 ILCS 5/29-11(2). The only “standard” is that the signature should “reasonably compare” to the registration record card. Id. This leaves each election official in the state to subjectively determine how a signature “reasonably compares” to the registration record card. See Exhibit 6 which provides selected examples of invalid signatures found valid in Chicago as well as the standards which an expert handwriting examiner would follow. While Plaintiffs do not argue only should expert handwriting examiners, Plaintiffs do argue that a specific signature comparison standard be set and that training be required of the election authority employees doing the comparisons.
The Supreme Court in Bush v. Gore, 531 U.S. 98, 103 (2000), found that standardless manual recount procedures in the presidential election violated equal protection because each county decided what constituted a valid vote. “The problem inheres in the absence of specific standards to ensure its equal application.” Id. at 106; see also Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972) (vague laws give decision makers unbridled discretion). So too “has the lack of standards in our case adversely impacted our Plaintiffs.
As Plaintiffs have shown by expert evidence, there are multiple reasons why a signature on the registration record card may differ from the petition signature. (Exhibit 6.) Signatures on registration record cards reflect the signer’s signature at the time of registration, even though the initiative petition may be signed years later. As Plaintiffs’ expert testified, the passage of time changes a person’s signature, whether it is from ill health or simply advanced age. The conditions under which a voter signs an initiative petition may differ substantially from when he or she signed the voter registration card. Moreover, petitions are often signed while standing and holding a clipboard or signed in a hurry as in cold weather with gloves on. It is not surprising that a signature made under such conditions will differ substantially from one signed while sitting at a table or desk, as is usually the case with voter registration cards. These factors can change a signature so that it may not “reasonably compare” with the original, as well as other factors described in Exhibit 6.
Even though the standards vary from jurisdiction to jurisdiction and there are several reasons that a signature on a petition will often differ from a voter registration card, there is no way for an individual petition signer to rehabilitate his or her signature by introducing extrinsic evidence. There is absolutely no safeguard in the Board’s procedures to prevent nullification of a petition signer’s signature in the sole discretion of individual election officials. A voter’s signature can be disqualified solely based on the subjective opinion that the signature does not “reasonably compare” to the voter registration card. His determination is final subject only to the ability in terms of money and manpower of the petition proponent to gather the evidence to overcome this “finality.”. Equal Protection requires that the petition signer’s voice will not be nullified by such a standardless system.
c. 10 ILCS 5/28-9 VIOLATES PLAINTIFFS’ DUE PROCESS RIGHTS UNDER OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
It is well established that the government may not deprive one of “life, liberty or property” without due process of law. See U.S. Constitution, Amendment Fourteen ; Goldberg v. Kelly, 397 U.S. 254, 263 (1970); Morrissey v. Brewer, 408 U.S. 471 (1972). The concept of due process does not necessarily prohibit the state from depriving an individual of one of these rights but requires the government to implement procedures to protect the public from erroneous and/or arbitrary deprivations. See Carey v. Piphus, 435 U.S. 247, 259 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property”); see also id., at 266. (noting “the importance to organized society that procedural due process be observed,” and emphasizing that “the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant's substantive assertions”).
While the right to due process may be “absolute,” it is also “flexible and calls for such procedural safeguards as the situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997)(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Given this flexibility, the Supreme Court has established an analytical framework in order to examine this issue. In Hamdi v. Rumsfeld , 542 U.S. 507 (2004), the Supreme Court reaffirmed Mathews v. Eldridge, 424 U.S. 319, 335 (1976) stating:
Mathews dictates that the process due in any given instance is determined by weighing “ the private interest that will be affected by the official action” against the Government's asserted interest, “including the function involved” and the burdens the Government would face in providing greater process. 424 U.S., at 335, 96 S.Ct. 893. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of “the risk of an erroneous deprivation” of the private interest if the process were reduced and the “ probable value, if any, of additional or substitute safeguards.”
The Northern District of Illinois consolidated the above considerations by balancing the following three factors: 1. the private interest that will be affected by the official action; 2. the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, and 3. the Government’s interest. See Zessar v. Helander, 2006 WL 642464 (N.D. Ill 2006). When the issues presented in this case are viewed through the template set out above, it is clear that 10 ILCS 5/28-9 violates the Plaintiffs’ due process rights. Moreover, as noted above, 10 ILCS 5/28-12 prevents a petition signer whose signature has been held invalid from undertaking his or her own defense. Since 10 ILCS 5/28-12 only allows the petition proponent, PMI, to defend, the injured signer is further vexed with respect to due process. Such petition signers should not be made subject to the vagaries of a non-profit organization’s ability to raise money and to recruit the volunteers it takes with regard to the PMI petition signer signature rehabilitation efforts. Furthermore, such work must be done on-site at the office of the election jurisdictions in order to obtain the signature on file of the registered voters as well as to cause a search for a missing voter registration card. And, such work may only be done during the business hours of the jurisdiction’s office - - a further impediment to recruiting volunteers, especially those who must work for a living. See petition signer Exhibits 7, 9 and 10 wherein the signers would like to undertake their own defense.
i. Plaintiffs’ Fundamental Liberty Interests Require Substantial Due Process Protection.
Fundamental liberty interests or entitlements upon which the very well-being of an individual is dependent, like the right to vote, warrant a strict adherence to due process procedures. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). “Because voting is a fundamental right, the right to vote is a ‘liberty’ interest that may not be confiscated without due process.” Raetzel v. Parks\Bellemont Absentee Election Bd., 762 F.Supp. 1354, 1354 (D. Ariz. 1990).
For constitutional purposes, signatures such as those used for petitions have been treated the same as actual votes. Green v. City of Tucson, 340 F.3d 891, 897 (9th Cir. 2003). Signatures, like votes, are “an expression of a registered voter’s will.” Id. While a petition does not involve a traditional choice between candidates, it does implicate a decision between alternative choices. Padilla v. Lever, 429 F.3d 910, 921 (9th Cir. 2005). As discussed at length herein, the statutes cited also violates Plaintiffs’ fundamental right to free speech. Consequently, the government must establish adequate procedural safeguards to insure against erroneous and/or arbitrary exclusions of valid signatures. Fundamental concepts of due process mandate that once a signature is deemed to be invalid, the affected person should be notified and afforded an opportunity to be heard on the matter. Moreover, decision making officials should have objective guidelines by which to review applicable signatures. Finally, petition signers should be allowed to undertake their own defense.
ii. The Statutes Failure to Provide Plaintiffs’ Timely Notice and a Right to be Heard Will Lead to Erroneous and/or Arbitrary Exclusions.
Notice and an opportunity to heard are elementary mechanisms designed to address government abuse and to reverse erroneous and/or arbitrary government action. In this case, the state has unilaterally rejected Plaintiffs’ signatures without providing notice to those signatories or an opportunity to be heard. Moreover, many signatures are specifically shown to have been erroneously held invalid. Marsh Exhibit 6 provides examples of such holdings from a sampling of selected signatures. Exhibits 7, 9 and 10 contain declarations by petition signer plaintiffs that no notice to defend was given and that they desire the right to undertake their own defense. “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” Fuentes v. Shevin, 407 U.S. 67, 81 (1972); Raetzel v. Parks\Bellemont Absentee Election Bd., 762 F.Supp. 1354, 1358 (D. Ariz. 1990) (“The right to notice and the opportunity to be heard ‘must be granted at a meaningful time.”) (quoting Fuentes, 407 U.S. at 81).
The fundamental nature of the rights at issue in this case requires that affected signers of the petition receive notice and opportunity to defend before the petition is finalized and the signatures made official. Any vindication after this point would fail to properly redress those affected. Indeed, the signatory’s right will have been “irremediably denied.” Zessar v. Helander, 2006 WL 642646 (N.D. Ill. 2006). The petition process requires, at least, that every eligible person have notice when their signatures have been invalidated so that they have an opportunity to redress their injury while their vote still means something.
In Zessar v. Helander, this Court determined that it was a violation of due process to reject an absentee voter ballot without giving the voter an opportunity to be heard before the election results were final. In Zessar, an absentee voter’s ballot was rejected because the election board determined that the signature on the absentee ballot did not match the voter’s signature on his voter registration card. Id. at *1. Although that determination was in error, the voter was not notified that his ballot had been rejected until after the election. Id. This Court held that the state was required to give “notice and a hearing, before rejecting an absentee ballot.” Id. at *5.
In that case the court pointed out that one possible way to remedy the defect could consist of a mailing within days of the rejected ballot wherein the voter would be invited to send back an affidavit correcting any deficiencies presented in the initial ballot. Similarly, the officials in this case could simply mail a document to the individuals whose signatures are questioned and give that person the opportunity to submit some form of documentation verifying the individual’s identity.
An Arizona federal district court came to the same conclusion when it was confronted with a similar question. In Raetzel v. Parks/Bellemont Absentee Election Board, 762 F. Supp. 1354 (D. Ariz. 1990), the court found that the state violated a voter’s right to due process because it failed to give a disqualified absentee voter notice and an opportunity to be heard before the election was final. Similar to this case, the state gave notice to a third party, but not the actual voter. Id. at 1357. The court held that because “notice [was] derivative through the political party… [u]nder the present statutory scheme, a voter whose vote is [ ] challenged and disqualified will remain unaware of the disqualification.” Id. The court noted “[t]he disqualified voter may never ascertain the justification for the rejection of their vote in order to cure the defect for future eligibility.” Raetzel, 762 F.Supp. at 1358. Thus, the court found that failure to notify the actual individual violated due process. Id. The procedures at issue in this case suffer the same defects. Like the absentee ballot procedure in Zessar and Raetzel, 10 ILCS 5\28-12 fails to provide the minimum due process required to protect the Plaintiffs’ fundamental rights.
iii. The Statutes Failure to Include Objective Standards to Guide the Deciding Officials in Examining Plaintiffs’ Signatures lead to Erroneous and/or Arbitrary Exclusions.
Clear and objective standards are also inherent in our concept of due process. In this case, 10 ILCS 5\28-12 vests unbridled discretion in government officials when deciding whether a signature on a petition “reasonably compares” to the signature on a voter registration card. The lack of objective standards leaves each individual decision maker to his or her subjective will as it relates to signature recognition. Moreover, there is no requirement that these individuals have any training or expertise in handwriting analysis which might qualify them to make these important decisions.
Procedural safeguards are the foundation of due process. The lack of adequate procedures creates an impermissible risk that government officials will interfere with a fundamental liberty interest either inadvertently or intentionally. There is a long line of cases which clearly illustrate the dangers associated with unbridled government discretion. Most of these cases arise in the free speech context when the exercise of that speech requires prior government approval. In Southeastern Promotions, LTD v. Conrad 420 U.S. 546, 559 (1975) the Supreme Court stated:
The settled rule is that a system of prior restraint avoids constitutional infirmity
only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.’ Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965). See United States v. Thirty-seven Photographs, 402 U.S. 363, 367, 91 S.Ct. 1400, 1403, 28 L.Ed.2d 822 (1971); Blount v. Rizzi, 400 U.S. 410, 419-421, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141-142, 88 S.Ct. 754, 756, 19 L.Ed.2d 966 (1968). See also Heller v. New York, 413 U.S. 483, 489-490, 93 S.Ct. 2789, 2793, 37 L.Ed.2d 745 (1973); Bantam Books, Inc. v. Sullivan, 372 U.S., at 70-71, 83 S.Ct. at 639; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957).
In the same manner, officials in this case have interfered with the Plaintiffs’ rights to petition the government through this referendum process. As noted above, the Supreme Court has recognized the petition process as core political speech deserving of the utmost protection. See infra, Section IAii. Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999); Meyer v. Grant, 486 U.S. 414, 421-22 (1988).
The lack of specific standards in this context makes erroneous and arbitrary signature
exclusions inevitable. Therefore, the “risk of erroneous deprivation[s] of fundamental rights far outweighs the states interest in preserving its current ad hoc method of particular signatures. iv. Only a minimal burden would be placed on the state if the
current procedure is changed to provide constitutionally mandated due process to the Plaintiffs.
Providing notice and an opportunity to correct the erroneous invalidation of signatures would not place a heavy burden upon the State. On the contrary, a simple verification card or a notice of signature invalidation could be sent to the affected party’s address stating the reason for the invalidation. The affected parties could provide exemplars of their signatures on a form provided. These person’s would then have their notice and opportunity to defend. The same would be done for a voter found to be not registered at the address opposite his name, to the address indicated on the petition sheet. The number of people to whom this “paper hearing” would apply would be minimal compared to the entire petition and their addresses in that only those signatures invalidated in the sample and whose signatures were erroneously removed, might possibly seek to correct the error; estimated to be about 20% of 9,923 invalidated sample signatures or 1,985 signatures would need to be contacted (in the instant case) (Exhibit 12).
The State could simply place notice in pre-determined newspapers listing those signatures which had been invalidated and allowing them opportunity to provide information on a form contained in the notice which would correct any error. Again, the number of people to which these methods would apply is a relatively small in the instant case because only those in the sample would be affected.
While the state’s burden would be light, the benefit upon the petition process would be substantial. By correcting the invalidation percentage - which is based upon the sample - thousands of signatures which would have been invalidated would be allowed. The State has an interest in promoting the most accurate and fair petition as possible. Therefore, changing the current procedures would place only a minimal burden on the State while providing the Plaintiffs the due process protections of notice and an opportunity to be heard.
The State could also implement objective standards to guide officials in regard to signature verification. Rather than using the vague standard that signatures must be “reasonably comparable” to those on the voter registration cards, the statute could articulate specific criterion which experts use to compare handwriting. Moreover, since one’s signature is presumed to be valid, deciding officials should carry the burden of indicating in writing the objective basis for the exclusion. This would reduce the number of signatures which would be erroneously or arbitrarily excluded. Furthermore, the State could also provide record search standards to guide the election authorities, such as requiring a cross search also of the hard copy of the signer’s voter registration card. This would also reduce the number excluded.
B. THE PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF AN INJUNCTION IS NOT GRANTED.
Irreparable harm is that which “cannot be prevented or fully rectified by the final judgment after trial….” Roland Machinery Co. 749 F.2d at 386. If this Court does not issue a temporary restraining order staying the August 5, 2006 evidentiary hearing before the Hearing Examiner, Plaintiffs’ constitutional rights will be forever lost if PMI cannot find sufficient competent evidence to overcome the presumption of invalidity and, as of this writing, it appears PMI cannot do it due to lack of wherewithal and manpower, despite its best efforts. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976); Christian Legal Soc'y v. Walker, 2006 WL 1881131 (7th Cir. 2006) (“The loss of First Amendment freedoms is presumed to constitute an irreparable injury”). Once signatures are nullified by the Board at the August 11, 2006 hearing and the Board’s decision in finalized, those signatures cannot be rehabilitated. Thus, it is necessary to preserve the Plaintiffs’ constitutional rights that this Court issue a preliminary injunction.
C. THE PUBLIC INTEREST WILL NOT BE DISSERVED NOR WILL THE DEFENDANTS BE HARMED BY THE ISSUANCE OF THE TRO.
The public will benefit from a TRO and preliminary injunction in favor of Plaintiffs. “[I]njunctions protecting First Amendment freedoms are always in the public interest.” Christian Legal Soc'y v. Walker, 2006 WL 1881131 (7th Cir. 2006). Protecting the Plaintiffs’ First Amendment rights will assure that the Plaintiffs’ do not lose their right to due process by having their signatures nullified without notice and opportunity to be heard, or their right to equal protection by having their signatures nullified by standardless procedures. This benefit will inure to all voters in the state, ensuring that their signatures in this election and future elections cannot be expunged by unconstitutional state regulations. Moreover, a delay in the finalization of the evidentiary hearing will not harm the plaintiffs, so long as the merits are resolved in time for the printing of ballots. Defendants will not deny the ballots need to be printed about 40 days before the November 2 general election, at least in the jurisdictions of the Cook County clerk and the Chicago election commission; or, before at least 35 days before the election due to a federal absentee ballot availability rule. Thus, the public interest will be served by the issuance of the TRO. And as noted above at Section 5.c.iv., an injunction will not harm the Defendants.
CONCLUSION
For the reasons given, these Plaintiffs pray their motions for a Temporary Restraining Order and then, for a Preliminary Injunction be granted.
DATE: July 28, 2006
Respectfully submitted,
____________________________________
One of Plaintiffs’ attorneys
Michael E. Lavelle, #1590723
Kevin E. Bry, #6200436
Attorneys for Plaintiffs
Lavelle & Motta, Ltd.
218 N. Jefferson St., Suite 102
Chicago, IL 60661
312-559-0600
Facsimile: 312-559-1335
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
Protect Marriage Illinois, et al., )
Plaintiffs, )
)
v. ) No. 06 C 3835
)
David D. Orr, Cook County Clerk, et al., ) MEMORANDUM
) Honorable Elaine B. Bucklo, Judge Presiding
) Magistrate Judge Morton Denlow
Defendants. )
______________________________________________________________________________
MEMORANDUM IN SUPPORT OF MOTIONS FOR TEMPORARY
RESTRAINING ORDER AND PRELIMINARY INJUNCTION
I. STATEMENT OF FACTS
The Illinois Election Code 10 ILCS 1-1 et seq. gives the people the ability to petition the Legislature to adopt an advisory question of public policy. ILCS 5/28-1 through 5/28-13. Plaintiff Protect Marriage Illinois (“PMI”) initiated a petition defining marriage for presentation to the voters in the November 2, 2006 general election. The Advisory Question reads: “Shall the Illinois General Assembly submit an amendment to Article IX of the Illinois State Constitution to the voters of the State of Illinois at large at the next General Election stating as follows: ‘To secure and preserve the benefits of marriage for our society and for future generations of children, a marriage between a man and a woman is the only legal union that shall be valid or recognized in this State’?” (Exhibit 1) (“PMI Petition”). In order to be submitted to the voters for their approval or disapproval, the petition must contain signatures of registered voters equaling at least 8% of the votes cast in the last gubernatorial election. ILCS 5/28-9. The signatures must be submitted at least 6 months before the General Election at which the petition is to be submitted and not be circulated more than two years before that election. Id. If the voters approve of the Advisory Question, it may or may not be acted upon by the general assembly. In this case, the PMI petition was required to contain approximately 283,000 signatures. PMI timely filed the Statewide Petition with the State Board of Elections (“SBE”) on May 8, 2006, with approximately 347,000 signatures. (Exhibit 4 of Declaration of Plaintiff David E. Smith.)
Illinois law treats citizen initiated statewide advisory questions and statewide candidate nominating petitions and new party nominating petitions differently. For example, the state requires that each petition sheet for a statewide referendum contain only signatures from registered voters of a single election jurisdiction, and that all the petition sheets for a single jurisdiction be bound together before filing. 10 ILCS 5/28-9. The result of this requirement is that if a person signs the petition on the wrong sheet, his or her signature will “not be counted toward the minimum number of signatures required to qualify the . . . statewide advisory public question for the ballot.” 10 ILCS 5/28-9. This provision alone has resulted in the invalidation of more than 20,000 signatures for the Protect Marriage Illinois referendum. (Exhibit 11.)
The requirement that all signatures on a petition sheet be from a single election jurisdiction does not apply to other kinds of petition efforts in Illinois. For example, signatures on petitions for a new statewide political party or independent statewide candidates for political office or new statewide parties are not limited to sheets with only signatures from the same jurisdiction. 10 ILCS 5/7-10, 10-2, 10-4. Moreover, signatures on petitions relating to public questions for political districts involving more than one election jurisdiction but not statewide, are not limited to sheets with other signatures from the same election jurisdiction. 10 ILCS 5/28-3, 28-5, 28-6, 28-7.
Another regulation that applies only to constitutional amendments and advisory questions of public policy is that each signature on the petition “reasonably compares” with the signature shown on that person’s registration record card.” (10 ILCS 5/28-11(2). There is no such requirement for any other petition effort in Illinois whether it is for statewide political parties or candidates (10 ILCS 5/7-10, 10-2, 10-4), or petitions relating to public questions for political subdivisions (10 ILCS 5/28-3, 28-5, 28-6, 28-7), except a public question initiative submitted pursuant to Const. Ill. 1970, sec. 3, art. XIV. The requirement as applied to statewide advisory petitions, leaves it to the judgment of each election jurisdiction official examining signatures in each of the 115 election jurisdictions to determine what “reasonably compares” might mean.
The SBE deleted approximately 10,000 signatures from the petition because the signature on the petition did not, according to individual election officials in each jurisdiction, “reasonably compare” to the signature on the voter registration card. Another approximately 10,000 signatures were deleted from the petition because they were “out-of-jurisdiction” signatures. Still another 44,000 signatures were deleted as not registered at the address opposite their signature. (Exhibit 11.) The SBE made no attempt to notify any of these voters that their signatures had been stricken. (Exhibits 7, 9 and 10.) The SBE then projected that 91.1% of the total number of signatures on the petition would be valid, (Exhibit 12), which was approximately 3.9% below the 95% validity required. (Exhibit 12.) The SBE then found that the petition was presumptively invalid. Id.
The SBE is required to conduct an evidentiary hearing pursuant to 10 ILCS 5/28-12 to allow the petition proponent, PMI, to present evidence to rebut the SBE’s presumption of invalidity. There is no provision that allows petition signers to present evidence that their signature is valid. The hearing will begin August 5, 2006 in front of a single hearing examiner. The SBE will begin an en banc evidentiary hearing on August 11, 2006, using primarily the report and recommendation of the hearing examiner. Following that hearing, the SBE will issue a final order declaring the validity or invalidity of the petition. But, PMI is unable to present sufficient to rebut the presumption without a favorable ruling on some of the issues raised in this cause. (Exhibit 11.)
ARGUMENT
II. A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION SHOULD ISSUE IN THIS CAUSE.
Preliminary injunctive relief may be issued when the movant has: 1) a reasonable likelihood of success on the merits ; 2) no adequate remedy at law or the movants would be irreparably harmed in the absence of an injunction; 3) the threatened injury to the movants outweighs that which the injunction would inflict on the defendant; and when 4) granting such an injunction would not “disserve the public interest.” Cox v. City of Chicago, 868 F.2d 217, 219 (7th Cir. 1989); O'Connor v. Board of Education, 645 F.2d 578, 580 (7th Cir. 1981); Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380, 386 (7th Cir. 1984). Reasonable likelihood of success upon the merits directly effects how much weight is given to the balancing of harms, Hyatt Corp. v. Hyatt Legal Services, 736 F.2d 1153, 1159 (7th Cir. 1984), and requires only that the movant’s “chances are better than negligible…,” Roland Machinery Co., 749 F.2d at 386. (quoting Omega Satellite Products Co, v, City of Indianapolis, 694 F.2d. 119, 123 (7th Cir. 1982). “The purpose of [preliminary injunctive relief] is to preserve the object of controversy in its then existing condition, i.e., to preserve the status quo.” EEOC v. Janesville, 630 F.2d 1254, 1259 (7th Cir. 1980). “The decision whether to grant a temporary restraining order lies within the discretion of th[e] Court.” Saukstelis v. Chicago, 1989 U.S. Dist. LEXIS 15298 (N.D. Ill. 1989). A temporary restraining order and preliminary injunction should be granted in this cause for the reasons set forth below.
A. THE PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS.
a. THE STATE’S REGULATIONS VIOLATE PLAINTIFFS’ FIRST AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION.
i. The State’s Regulations Violate the Plaintiffs’ Rights to Petition the Government
The initiative petition in Illinois represents the quintessential mechanism to petition the government for redress of grievances. In Illinois, the voters are not initiating law. Instead, they are collectively making their voices known to the state legislature to change Illinois law. This right “comprehends demands [by citizens] for an exercise by the Government of its powers in furtherance of the interest and prosperity of the petitioners, and of their views on politically contentious matters.” Streif v. Bovinette, 88 Ill.App.3d 1079, 1082 (1980) (citation omitted).
The right to petition has been deemed “the most precious of the liberties safeguarded by the Bill of Rights.” B&K Const. Co. v. N.L.R.B., 536 U.S. 516, 524 (2002). “The right to petition is cut from the same cloth as the other guarantees of [the First Amendment], and is an assurance of a particular freedom of expression. McDonald v. Smith, 472 U.S. 479, 482 (1985). And it even predates the guarantees of freedom of speech, assembly, equal protection and due process since its origin is in the Magna Carta which granted the barons the right to petition the King of England for redress in 1215. A.D. Bedell Wholesale Co., Inc. v. Phillip Morris, Inc., 263 F.3d 239 (3rd Cir., 2001). Indeed, the right to petition “is implicit in the very idea of government, republican in form.” McDonald, 472 U.S. at 482. (citation omitted). “A citizen’s right to communicate and to address his government in matters which he deems to be important cannot be lightly subjected to restraint.” Streif v. Bovinette, 88 Ill.App.3d 1079, 1083 (1980) (citing cases); Citizens Against Rent Control Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 294 (1981) (“regulation of First Amendment rights is always subject to exacting judicial review”).
The burdens that the state imposes on the people’s ability to petition the government by advisory petition are severe. See Exhibit 8, Declaration of Plaintiff David E. Smith. This is particularly true for the circulators of the petition.
It should be noted that the very requirement in 10 ILCS 5/28-9 that the petition must contain the signatures of registered voters equaling at least 8% of the votes cast in the last gubernatorial election, is constitutionally suspect, even without the other burdens the Election Code imposes on such petitions. Unlike nominations for candidates for statewide office and for new political parties, the petition proponents in this case did not have a set and unfluctuating number of signatures to obtain. 10 ILCS 5/10-3 and 10 ILCS 5/10-2. Rather, the proponents were required to obtain some 283,000 signatures of registered voters statewide, a number more than eleven times the amount required of those seeking statewide office or a new political party.
The State can provide no justification for this exceedingly high number of required signatures, and particularly not when the other restrictions of Article 28 of the Election Code applying to statewide advisory petitions are factored in. This court has before it competent evidence in the Smith affidavit and otherwise, establishing the grave burdens placed upon the circulators of the subject question. The United States Supreme Court has previously stricken unjustifiably high signature requirements (see Illinois State Board of Elections v. Socialist Worker Party, 440 U.S. 173, 99 S.Ct. 983 (1979)). Here, the signature amount is eleven times that required for other statewide matters, and may increase as population does. Either alone, or in conjunction with the other burdens imposed on the petition circulators and the resulting adverse affect upon voters, this court should strike the statutory scheme.
Additionally, the requirement that all signatures on a petition sheet be limited to one election jurisdiction necessarily limits the size of the audience a petition circulator can reach. It cannot be disputed that the best locations for collecting petition signatures are public events that draw large crowds, such as churches or sporting events. The larger the event, the more likely that there will be attendees from multiple election jurisdictions. Public events with a broad appeal often attract audiences from all over the state. There are 102 counties in Illinois and 9 boards of election commissioners, one of which is a county board of election commissioner; thus, there is a total of 110 different election jurisdictions. Accordingly, for a petition circulator to have the ability to reach any attendee with whom he or she may interact, the circulator would have to carry petition sheets for each election jurisdiction that might be represented at the event. Such an approach is impracticable, for petition circulators must be able to engage potential signers quickly and have the petition ready for signing. See, e.g., Exhibit 8, Declaration of Plaintiff David E. Smith.
The single election jurisdiction limitation also makes it less likely that referendum proponents will garner the number of signatures necessary to place the question on the ballot. By limiting the size of the audience circulators can reach, and by disallowing signatures on a sheet with signatures from another election jurisdiction, 10 ILCS 5/28-9 interferes with the ability to collect the burdensome number of signatures required to place a question of public policy on the ballot. Moreover, Illinois puts a special disability on collecting signatures to petition the government for the redress of grievances that it does not place on other petitions. For example, statewide candidate petitions do not have a State Board conformity examination random sample signature examination requirement. 10ILCS 5/28-10. It is only public questions that have the conformity examination and State Board random sample signature requirement. The state cannot possibly have a valid interest in crippling the people’s right to ask for a change in law, while not placing the same burden on candidates running for public office. “In its journey to ensure the integrity of the electoral process, a state legislature must march across the hallowed ground on which fundamental first amendment rights take root. The terrain must be negotiated with circumspection and care: disparities, in whatever guise, are not casually to be condoned.” Vote Choice, Inc. v. DiStefano, 4 F.3d 26, 43 (1st Cir. 1993). The state simply cannot constitutionally justify putting special disabilities on the people’s right to petition the legislature for the adoption of a constitutional amendment without meeting strict scrutiny. Id.
ii. The State’s Regulations Substantially Burden Plaintiffs’ Core Political Speech
The Supreme Court has h
eld that the activity of obtaining signatures on petitions for a citizen initiative is core political speech. Meyer v. Grant, 486 U.S. 414, 420 (1988). The Court observed that “[t]he circulation of an initiative petition of necessity involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” Id. at 421. The Court held that the fact that the law permitted the proponents to use other methods to obtain signatures did “not take their speech through petition circulators outside the bounds of First Amendment protection” because it “restrict[ed] access to the most effective, fundamental, and perhaps economical avenue of political discourse . . . .” Id. at 424. Moreover, “there is practically universal agreement that a major purpose of [the First Amendment] was to protect the free discussion of governmental affairs.” Mills v. Alabama, 384 U.S. 214, 218 (1966). Thus, regulations on the speech involved in this case mandates the strictest constitutional scrutiny possible. Indeed, it requires exacting scrutiny “at its zenith.” Meyer, 486 U.S. at 422.
The challenge in Meyer involved a Colorado statute that made it a felony to pay petition circulators. The Court held that the prohibition:
restricts political expression in two ways: First, it limits the number of voices who will convey appellees’ message and the hours they can speak and, therefore, limits the size of the audience they can reach. Second, it makes it less likely that appellees will garner the number of signatures necessary to place the matter on the ballot, thus limiting their ability to make the matter the focus of statewide discussion.
Id. at 422-23 (emphasis added; footnote omitted). The state’s interest in protecting the integrity of the initiative process did “not justify the prohibition because the State has failed to demonstrate that it is necessary to burden appellees’ ability to communicate their message in order to meet its concerns.” Id. at 426.
In Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), the Supreme Court reiterated its Meyer holding in overturning additional Colorado initiative regulations. The Court held that petition circulators could not be limited to registered voters for the same reasons that Colorado could not prohibit paying for circulators – the regulation limited communication of the proponents’ message and reduced the chances of qualifying an initiative for the ballot. Id. at 194; see also Krislov v. Rednour, 226 F.3d 851 (7th Cir. 2000) involving an Illinois statewide candidate petition.
As noted above, the separate jurisdiction requirement for signatures puts a heavy burden on PMI’s circulators (Exhibit 8.) Indeed, disallowing signatures on a sheet with signatures from another jurisdiction places an impermissible burden on core political speech. Meyer, 486 U.S. at 422-23. In this case, it has interfered with substantially more speech than necessary to accomplish any legitimate state interest. See Krislov, 226 F.3d at 864 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)).
If the State’s concern is with the administrative convenience of getting petition signatures to the relevant election jurisdiction for a determination of validity, it could accomplish that purpose without impermissibly burdening speech. For example, the State could require that when a petition sheet contains signatures of multiple jurisdictions, initiative proponents must submit a copy of the sheet to each jurisdiction represented. The State could even require that proponents identify which signatures are from that jurisdiction. Such a procedure would place no administrative burden on the State, and would permit petition circulators to make full use of their one-on-one contact opportunities to convey their message to potential signatories without the hindrance of searching for the proper jurisdiction sheet.
iii. The State’s Regulations are an Unconstitutional Content-Based Restriction of Plaintiffs’ Rights to Freedom of Speech.
Illinois has placed content-based restrictions on speech by treating initiative petitions differently than candidate petitions. Content-based restrictions are subject to “the most exacting scrutiny.” Turner Broad. Sys., Inc. v. F.C.C., 512 U.S. 622, 642 (1994); see also Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1009 (9th Cir. 2003) (holding that a content-based restriction is subject to strict scrutiny). In Turner, the Supreme Court defined content-based restrictions as regulations “that suppress, disadvantage, or impose differential burdens upon speech because of its content.” 512 U.S. at 642. If the regulation “cannot be applied without reference to [the] content of the communication,” then the regulation is content based. Bayless, 320 F.3d at 1009.
Illinois imposes a “differential burden” on initiative petitions that it does not impose on petitions for a new statewide political party or statewide candidates for political office, which are not limited to sheets with other signatures from the same jurisdiction. 10 ILCS 5/7-10, 10-2,
10-4. Signatures on petitions relating to public questions for political subdivisions of the state involving more than one election jurisdiction are not limited to sheets with other signatures from the same election jurisdiction. 10 ILCS 5/28-3, 28-5, 28-6, 28-7. What is more, no other petition in the state grants election officials unbridled discretion to determine if a signature “reasonably compares” to the voter’s registration card. 10 ILCS 5/28-11(2). Whether a particular petition must be subject to the burdens of the Illinois regulation cannot be determined “without reference to [the] content of the communication.” If it is a candidate petition, or any other petition, it is not subject to these restrictions. Only if it is a petition for a statewide advisory question or constitutional voter initiated question is the petition subject to these additional restrictions. Thus, initiative petitions are placed at a disadvantage solely because of the content of their speech.
Justice Thomas recognized that a regulation burdening initiative petitions that does not burden candidate petitions is a content-based restriction in Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 209 (1999) (Thomas, J., concurring). In Buckley, a group of Colorado citizens challenged a law that required initiative petition circulators to wear an identification badge, but did not put the same burden on candidate petition circulators. Id. at 209-10. Thomas found that the restriction was a content-based regulation of speech: “[T]he category of burdened speech is defined by its content—Colorado’s badge requirement does not apply to those who circulate candidate petitions, only to those who circulate initiative or referendum proposals.” Id. (citing Boos v. Barry, 485 U.S. 312, 321 (1988)).
Similarly, in Burson v. Freeman, 504 U.S. 191, 198 (1992), the Supreme Court held that a Tennessee regulation was a content-based restriction that prohibited the display or distribution of campaign materials and the solicitation of votes within 100 feet of the entrance of a polling place. Id. at 193. The Court held that the regulation was content-based because whether the speaker was prohibited from speaking was based solely on the content of his speech: “Whether individuals may exercise their free speech rights near polling places depends entirely on whether their speech is related to a political campaign . . . the First Amendment’s hostility to content-based regulation extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an entire topic.” Id. at 197.
The state simply may not treat advisory petitions differently from other petitions simply because they are advisory petitions. To do so is unambiguously content-based regulation of free speech that must meet strict scrutiny.
iv. The Statutes At Issue Are Overbroad And Plaintiffs May
Assert The Rights Of The Petition Signers.
The 10 ILCS 5/28-10 and 11 requirements for a State Board conformity examination random sampling for signature validity as to whether the signature reasonably compares or whether the signer is registered at the address opposite his signature on the petition are targeted only to voter initiated public questions provided for in 10 ILCS 5/28-10. Such statutes for targeting severely impacts, both facially and as applied, the First and Fourteenth Amendments. While these State investigations fatally impact many of the petition signers, in this instance, they also fatally impact upon the Plaintiff PMI because they are preventing the petition question from appearing upon the ballot. The effect of these State actions is to defeat the petition because PMI cannot obtain sufficient evidence, as required by 10 ILCS 5/28-12 to rebut a presumption of invalidity without this court holding in favor of Plaintiffs’ in at least some of the issues raised here.
A statute is overbroad when “there [is] a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court ….” Bd. of Airport Comm’rs of Los Angeles v. Jews for Jesus, 482 U.S. 569, 574 (1987). Here, the statutes at issue compromise the First Amendment rights, as well as other constitutional rights, of literally thousands of petition signers. And, those petition signers cannot even appear before the SBE on their own behalf, not only because they are not allowed to do so by 10 ILCS 5/28-12. Thus, the constitutional rights of thousands of Illinois citizens are nullified before they are ever able to vindicate their rights in time for their signatures to be counted on the petition. The application of the rule stated to our facts would seem to require a finding by this Court that the statutes are facially and as applied overbroad.
And, with regard to Plaintiffs’ standing to assert the rights of the petition signers, plaintiffs have challenged the State’s regulations facially and as applied as being overbroad. The overbreadth doctrine allows plaintiffs to challenge the State’s regulations on behalf of others not before the Court. Bd. of Airport Comm’rs of Los Angeles v. Jews for Jesus, 482 U.S. 569, 574 (1987). The Supreme Court has noted that to bring a challenge on behalf of a third party, “the crucial issues are whether [the plaintiff] satisfies the requirement of “injury-in-fact” and whether it can be expected satisfactorily to frame the issues in the case.” Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 958 (1984). A plaintiff can be expected to satisfactorily frame issues in the case if he or she has a “sufficiently concerted interest in the outcome of the case.” Powers v. Ohio, 499 U.S. 400, 410-11 (1991). ). Here, Plaintiffs have article three standing in their own right, and certainly have sufficient interest in the outcome of the case, as the petition sponsors, to satisfactorily frame the issues.
Furthermore, plaintiffs also stand in a special relationship with petition signers, and thus can bring claims on their behalf on that basis as well. See Griswold v. Connecticut, 381 U.S. 479, 481 (1965) (physician and director of Planned parenthood allowed to challenge statute on behalf of patient); Pierce v. Society of Sisters, 268 U.S. 510 (1925) (owners of private school allowed to assert rights of potential pupils and parents); Clark v. City of Lakewood, 259 F.3d 996, 1010-11 (9th Cir. 2001) (holding that the owner of an adult entertainment establishment had overbreadth standing to pursue a First Amendment challenge against provisions of an ordinance that required the employees of such establishments to obtain a license because the licensing scheme-although not directly applicable to the owner-threatened his business's viability). Indeed, most of the petition signers will never know that their signatures have been invalidated because the State gives them no notice or opportunity to be heard. Thus, the Plaintiffs must be allowed to assert those rights for them, lest petition signer’s constitutional rights be irretrievably lost.
v. The State Cannot Meet Strict Scrutiny.
The State cannot possibly show a compelling interest in subjecting citizen initiated advisory opinions for a constitutional amendment to special restrictions that are not applied to other types of petitions. “[A] regulation perfectly reasonable and appropriate in the face of a given problem is highly capricious if that problem does not exist.” Home Box Office, Inc v. FCC, 567 F.2d 9, 36 (D.C. Cir. 1977). It is well-settled that “[m]ere speculation of harm does not constitute a compelling state interest.” Consolidated Edison Co. of New York, Inc. v. Public Serv. Comm’n of N.Y., 447 U.S. 530, 543 (1980). The State “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.” Turner Broad. Sys., Inc. v. FCC., 512 U.S. 622, 664 (1994); Bernal v. Fainter, 467 U.S. 216, 227-228 (1984) (“Without a factual underpinning, the State’s asserted interest lacks the weight we have required of interests properly denominated as compelling”).
If anything, the state would have more of an interest in ensuring the validity of candidate petitions or political party petitions, since their ultimate success or failure at the ballot box will have a direct impact on the government. An advisory opinion is only effective if the Legislature adopts it. At the very least, the state would have the same interest in ensuring the validity of candidate and political party petitions, or petitions relating to public questions for political subdivisions of the state involving more than one election jurisdiction, as it does to advisory petitions for a constitutional amendment.
Moreover, there is not even a rational basis, much less a compelling interest for the state’s special regulations on advisory petitions for a constitutional amendment. For example, the requirement that each election official determine if the signature of the petition signer “reasonably compares” with his or her registration card flies in the face of the customary presumption of validity for signatures. See, e.g., First Nat’l Bank v. Bernius, 127 Ill. App. 3d 193, 198-99 (Ill. Ct. App. 1984) (recognizing that under the Uniform Commercial Code, signatures are presumed to be valid); see also Comment to 810 ILCS 5/3-308 (“The Presumption [that signatures are valid] rests upon the fact that in ordinary experience forged or unauthorized signatures are very uncommon”). Instead giving this same presumption of validity to petition signers for a constitutional advisory question, the State subjects them to arbitrary and standardless scrutiny. The State simply does not have a compelling interest in applying these special restrictions to an advisory question, especially when it does not place them on all but any other petition in Illinois except statewide constitutional voter initiated petition described in 10 ILCS 5/28-9..
b. THE STATE’S REGULATIONS VIOLATE PLAINTIFFS’ EQUAL PROTECTION RIGHTS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
i. The Regulations Must Survive Strict Scrutiny Because They Infringe Upon a Fundamental Right.
The Equal Protection Clause of the Fourteenth Amendment requires the States to treat all similarly-situated persons equally. City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985). As noted above, petitions signers for petitions for an advisory opinion are treated differently that petition signers for all but one statewide constitutional initiative, than for any other petition in Illinois. Not only is this disparate treatment a violation of Free Speech, it is also a violation of the Equal Protection Clause of the Fourteenth Amendment. In Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 (1972), the Supreme Court held that content-based restrictions violate Fourteenth Amendment equal protection because they treat different forms of speech differently. See also Burson v. Freeman, 504 U.S. 191, 197 n.3 (1992) (“Content-based restrictions also have been held to raise Fourteenth Amendment equal protection concerns because, in the course of regulating speech, such restrictions differentiate between types of speech”). Moreover, because the differential treatment affects fundamental rights like free speech, the right to vote, and the right to petition the government, they are subject to strict scrutiny. Clark v. Jeter, 486 U.S. 456, 461 (1988).
ii. The Regulations Violate Plaintiffs’ Equal Protection Rights Because They Lack Objective Standards.
The statute at issue in this case (10 ILCS 5/28-11) grants the government unbridled discretion in determining whether a signature is valid. The law requires each election official to “[d]etermine if the signature of the person who signed the petition reasonably compares with the signature shown on that person’s registration record card.” 10 ILCS 5/28-11(2) (emphasis added). Each election official, in his or her sole discretion, must determine if signatures of petition signers are valid by comparing them to the signer’s registration record card. 10 ILCS 5/29-11(2). The only “standard” is that the signature should “reasonably compare” to the registration record card. Id. This leaves each election official in the state to subjectively determine how a signature “reasonably compares” to the registration record card. See Exhibit 6 which provides selected examples of invalid signatures found valid in Chicago as well as the standards which an expert handwriting examiner would follow. While Plaintiffs do not argue only should expert handwriting examiners, Plaintiffs do argue that a specific signature comparison standard be set and that training be required of the election authority employees doing the comparisons.
The Supreme Court in Bush v. Gore, 531 U.S. 98, 103 (2000), found that standardless manual recount procedures in the presidential election violated equal protection because each county decided what constituted a valid vote. “The problem inheres in the absence of specific standards to ensure its equal application.” Id. at 106; see also Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972) (vague laws give decision makers unbridled discretion). So too “has the lack of standards in our case adversely impacted our Plaintiffs.
As Plaintiffs have shown by expert evidence, there are multiple reasons why a signature on the registration record card may differ from the petition signature. (Exhibit 6.) Signatures on registration record cards reflect the signer’s signature at the time of registration, even though the initiative petition may be signed years later. As Plaintiffs’ expert testified, the passage of time changes a person’s signature, whether it is from ill health or simply advanced age. The conditions under which a voter signs an initiative petition may differ substantially from when he or she signed the voter registration card. Moreover, petitions are often signed while standing and holding a clipboard or signed in a hurry as in cold weather with gloves on. It is not surprising that a signature made under such conditions will differ substantially from one signed while sitting at a table or desk, as is usually the case with voter registration cards. These factors can change a signature so that it may not “reasonably compare” with the original, as well as other factors described in Exhibit 6.
Even though the standards vary from jurisdiction to jurisdiction and there are several reasons that a signature on a petition will often differ from a voter registration card, there is no way for an individual petition signer to rehabilitate his or her signature by introducing extrinsic evidence. There is absolutely no safeguard in the Board’s procedures to prevent nullification of a petition signer’s signature in the sole discretion of individual election officials. A voter’s signature can be disqualified solely based on the subjective opinion that the signature does not “reasonably compare” to the voter registration card. His determination is final subject only to the ability in terms of money and manpower of the petition proponent to gather the evidence to overcome this “finality.”. Equal Protection requires that the petition signer’s voice will not be nullified by such a standardless system.
c. 10 ILCS 5/28-9 VIOLATES PLAINTIFFS’ DUE PROCESS RIGHTS UNDER OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
It is well established that the government may not deprive one of “life, liberty or property” without due process of law. See U.S. Constitution, Amendment Fourteen ; Goldberg v. Kelly, 397 U.S. 254, 263 (1970); Morrissey v. Brewer, 408 U.S. 471 (1972). The concept of due process does not necessarily prohibit the state from depriving an individual of one of these rights but requires the government to implement procedures to protect the public from erroneous and/or arbitrary deprivations. See Carey v. Piphus, 435 U.S. 247, 259 (1978) (“Procedural due process rules are meant to protect persons not from the deprivation, but from the mistaken or unjustified deprivation of life, liberty, or property”); see also id., at 266. (noting “the importance to organized society that procedural due process be observed,” and emphasizing that “the right to procedural due process is ‘absolute’ in the sense that it does not depend upon the merits of a claimant's substantive assertions”).
While the right to due process may be “absolute,” it is also “flexible and calls for such procedural safeguards as the situation demands.” Gilbert v. Homar, 520 U.S. 924, 930 (1997)(quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). Given this flexibility, the Supreme Court has established an analytical framework in order to examine this issue. In Hamdi v. Rumsfeld , 542 U.S. 507 (2004), the Supreme Court reaffirmed Mathews v. Eldridge, 424 U.S. 319, 335 (1976) stating:
Mathews dictates that the process due in any given instance is determined by weighing “ the private interest that will be affected by the official action” against the Government's asserted interest, “including the function involved” and the burdens the Government would face in providing greater process. 424 U.S., at 335, 96 S.Ct. 893. The Mathews calculus then contemplates a judicious balancing of these concerns, through an analysis of “the risk of an erroneous deprivation” of the private interest if the process were reduced and the “ probable value, if any, of additional or substitute safeguards.”
The Northern District of Illinois consolidated the above considerations by balancing the following three factors: 1. the private interest that will be affected by the official action; 2. the risk of an erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards, and 3. the Government’s interest. See Zessar v. Helander, 2006 WL 642464 (N.D. Ill 2006). When the issues presented in this case are viewed through the template set out above, it is clear that 10 ILCS 5/28-9 violates the Plaintiffs’ due process rights. Moreover, as noted above, 10 ILCS 5/28-12 prevents a petition signer whose signature has been held invalid from undertaking his or her own defense. Since 10 ILCS 5/28-12 only allows the petition proponent, PMI, to defend, the injured signer is further vexed with respect to due process. Such petition signers should not be made subject to the vagaries of a non-profit organization’s ability to raise money and to recruit the volunteers it takes with regard to the PMI petition signer signature rehabilitation efforts. Furthermore, such work must be done on-site at the office of the election jurisdictions in order to obtain the signature on file of the registered voters as well as to cause a search for a missing voter registration card. And, such work may only be done during the business hours of the jurisdiction’s office - - a further impediment to recruiting volunteers, especially those who must work for a living. See petition signer Exhibits 7, 9 and 10 wherein the signers would like to undertake their own defense.
i. Plaintiffs’ Fundamental Liberty Interests Require Substantial Due Process Protection.
Fundamental liberty interests or entitlements upon which the very well-being of an individual is dependent, like the right to vote, warrant a strict adherence to due process procedures. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Frankfurter, J., concurring). “Because voting is a fundamental right, the right to vote is a ‘liberty’ interest that may not be confiscated without due process.” Raetzel v. Parks\Bellemont Absentee Election Bd., 762 F.Supp. 1354, 1354 (D. Ariz. 1990).
For constitutional purposes, signatures such as those used for petitions have been treated the same as actual votes. Green v. City of Tucson, 340 F.3d 891, 897 (9th Cir. 2003). Signatures, like votes, are “an expression of a registered voter’s will.” Id. While a petition does not involve a traditional choice between candidates, it does implicate a decision between alternative choices. Padilla v. Lever, 429 F.3d 910, 921 (9th Cir. 2005). As discussed at length herein, the statutes cited also violates Plaintiffs’ fundamental right to free speech. Consequently, the government must establish adequate procedural safeguards to insure against erroneous and/or arbitrary exclusions of valid signatures. Fundamental concepts of due process mandate that once a signature is deemed to be invalid, the affected person should be notified and afforded an opportunity to be heard on the matter. Moreover, decision making officials should have objective guidelines by which to review applicable signatures. Finally, petition signers should be allowed to undertake their own defense.
ii. The Statutes Failure to Provide Plaintiffs’ Timely Notice and a Right to be Heard Will Lead to Erroneous and/or Arbitrary Exclusions.
Notice and an opportunity to heard are elementary mechanisms designed to address government abuse and to reverse erroneous and/or arbitrary government action. In this case, the state has unilaterally rejected Plaintiffs’ signatures without providing notice to those signatories or an opportunity to be heard. Moreover, many signatures are specifically shown to have been erroneously held invalid. Marsh Exhibit 6 provides examples of such holdings from a sampling of selected signatures. Exhibits 7, 9 and 10 contain declarations by petition signer plaintiffs that no notice to defend was given and that they desire the right to undertake their own defense. “For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.” Fuentes v. Shevin, 407 U.S. 67, 81 (1972); Raetzel v. Parks\Bellemont Absentee Election Bd., 762 F.Supp. 1354, 1358 (D. Ariz. 1990) (“The right to notice and the opportunity to be heard ‘must be granted at a meaningful time.”) (quoting Fuentes, 407 U.S. at 81).
The fundamental nature of the rights at issue in this case requires that affected signers of the petition receive notice and opportunity to defend before the petition is finalized and the signatures made official. Any vindication after this point would fail to properly redress those affected. Indeed, the signatory’s right will have been “irremediably denied.” Zessar v. Helander, 2006 WL 642646 (N.D. Ill. 2006). The petition process requires, at least, that every eligible person have notice when their signatures have been invalidated so that they have an opportunity to redress their injury while their vote still means something.
In Zessar v. Helander, this Court determined that it was a violation of due process to reject an absentee voter ballot without giving the voter an opportunity to be heard before the election results were final. In Zessar, an absentee voter’s ballot was rejected because the election board determined that the signature on the absentee ballot did not match the voter’s signature on his voter registration card. Id. at *1. Although that determination was in error, the voter was not notified that his ballot had been rejected until after the election. Id. This Court held that the state was required to give “notice and a hearing, before rejecting an absentee ballot.” Id. at *5.
In that case the court pointed out that one possible way to remedy the defect could consist of a mailing within days of the rejected ballot wherein the voter would be invited to send back an affidavit correcting any deficiencies presented in the initial ballot. Similarly, the officials in this case could simply mail a document to the individuals whose signatures are questioned and give that person the opportunity to submit some form of documentation verifying the individual’s identity.
An Arizona federal district court came to the same conclusion when it was confronted with a similar question. In Raetzel v. Parks/Bellemont Absentee Election Board, 762 F. Supp. 1354 (D. Ariz. 1990), the court found that the state violated a voter’s right to due process because it failed to give a disqualified absentee voter notice and an opportunity to be heard before the election was final. Similar to this case, the state gave notice to a third party, but not the actual voter. Id. at 1357. The court held that because “notice [was] derivative through the political party… [u]nder the present statutory scheme, a voter whose vote is [ ] challenged and disqualified will remain unaware of the disqualification.” Id. The court noted “[t]he disqualified voter may never ascertain the justification for the rejection of their vote in order to cure the defect for future eligibility.” Raetzel, 762 F.Supp. at 1358. Thus, the court found that failure to notify the actual individual violated due process. Id. The procedures at issue in this case suffer the same defects. Like the absentee ballot procedure in Zessar and Raetzel, 10 ILCS 5\28-12 fails to provide the minimum due process required to protect the Plaintiffs’ fundamental rights.
iii. The Statutes Failure to Include Objective Standards to Guide the Deciding Officials in Examining Plaintiffs’ Signatures lead to Erroneous and/or Arbitrary Exclusions.
Clear and objective standards are also inherent in our concept of due process. In this case, 10 ILCS 5\28-12 vests unbridled discretion in government officials when deciding whether a signature on a petition “reasonably compares” to the signature on a voter registration card. The lack of objective standards leaves each individual decision maker to his or her subjective will as it relates to signature recognition. Moreover, there is no requirement that these individuals have any training or expertise in handwriting analysis which might qualify them to make these important decisions.
Procedural safeguards are the foundation of due process. The lack of adequate procedures creates an impermissible risk that government officials will interfere with a fundamental liberty interest either inadvertently or intentionally. There is a long line of cases which clearly illustrate the dangers associated with unbridled government discretion. Most of these cases arise in the free speech context when the exercise of that speech requires prior government approval. In Southeastern Promotions, LTD v. Conrad 420 U.S. 546, 559 (1975) the Supreme Court stated:
The settled rule is that a system of prior restraint avoids constitutional infirmity
only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system.’ Freedman v. Maryland, 380 U.S. 51, 58, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965). See United States v. Thirty-seven Photographs, 402 U.S. 363, 367, 91 S.Ct. 1400, 1403, 28 L.Ed.2d 822 (1971); Blount v. Rizzi, 400 U.S. 410, 419-421, 91 S.Ct. 423, 429, 27 L.Ed.2d 498 (1971); Teitel Film Corp. v. Cusack, 390 U.S. 139, 141-142, 88 S.Ct. 754, 756, 19 L.Ed.2d 966 (1968). See also Heller v. New York, 413 U.S. 483, 489-490, 93 S.Ct. 2789, 2793, 37 L.Ed.2d 745 (1973); Bantam Books, Inc. v. Sullivan, 372 U.S., at 70-71, 83 S.Ct. at 639; Kingsley Books, Inc. v. Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957).
In the same manner, officials in this case have interfered with the Plaintiffs’ rights to petition the government through this referendum process. As noted above, the Supreme Court has recognized the petition process as core political speech deserving of the utmost protection. See infra, Section IAii. Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999); Meyer v. Grant, 486 U.S. 414, 421-22 (1988).
The lack of specific standards in this context makes erroneous and arbitrary signature
exclusions inevitable. Therefore, the “risk of erroneous deprivation[s] of fundamental rights far outweighs the states interest in preserving its current ad hoc method of particular signatures. iv. Only a minimal burden would be placed on the state if the
current procedure is changed to provide constitutionally mandated due process to the Plaintiffs.
Providing notice and an opportunity to correct the erroneous invalidation of signatures would not place a heavy burden upon the State. On the contrary, a simple verification card or a notice of signature invalidation could be sent to the affected party’s address stating the reason for the invalidation. The affected parties could provide exemplars of their signatures on a form provided. These person’s would then have their notice and opportunity to defend. The same would be done for a voter found to be not registered at the address opposite his name, to the address indicated on the petition sheet. The number of people to whom this “paper hearing” would apply would be minimal compared to the entire petition and their addresses in that only those signatures invalidated in the sample and whose signatures were erroneously removed, might possibly seek to correct the error; estimated to be about 20% of 9,923 invalidated sample signatures or 1,985 signatures would need to be contacted (in the instant case) (Exhibit 12).
The State could simply place notice in pre-determined newspapers listing those signatures which had been invalidated and allowing them opportunity to provide information on a form contained in the notice which would correct any error. Again, the number of people to which these methods would apply is a relatively small in the instant case because only those in the sample would be affected.
While the state’s burden would be light, the benefit upon the petition process would be substantial. By correcting the invalidation percentage - which is based upon the sample - thousands of signatures which would have been invalidated would be allowed. The State has an interest in promoting the most accurate and fair petition as possible. Therefore, changing the current procedures would place only a minimal burden on the State while providing the Plaintiffs the due process protections of notice and an opportunity to be heard.
The State could also implement objective standards to guide officials in regard to signature verification. Rather than using the vague standard that signatures must be “reasonably comparable” to those on the voter registration cards, the statute could articulate specific criterion which experts use to compare handwriting. Moreover, since one’s signature is presumed to be valid, deciding officials should carry the burden of indicating in writing the objective basis for the exclusion. This would reduce the number of signatures which would be erroneously or arbitrarily excluded. Furthermore, the State could also provide record search standards to guide the election authorities, such as requiring a cross search also of the hard copy of the signer’s voter registration card. This would also reduce the number excluded.
B. THE PLAINTIFFS WILL SUFFER IRREPARABLE HARM IF AN INJUNCTION IS NOT GRANTED.
Irreparable harm is that which “cannot be prevented or fully rectified by the final judgment after trial….” Roland Machinery Co. 749 F.2d at 386. If this Court does not issue a temporary restraining order staying the August 5, 2006 evidentiary hearing before the Hearing Examiner, Plaintiffs’ constitutional rights will be forever lost if PMI cannot find sufficient competent evidence to overcome the presumption of invalidity and, as of this writing, it appears PMI cannot do it due to lack of wherewithal and manpower, despite its best efforts. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976); Christian Legal Soc'y v. Walker, 2006 WL 1881131 (7th Cir. 2006) (“The loss of First Amendment freedoms is presumed to constitute an irreparable injury”). Once signatures are nullified by the Board at the August 11, 2006 hearing and the Board’s decision in finalized, those signatures cannot be rehabilitated. Thus, it is necessary to preserve the Plaintiffs’ constitutional rights that this Court issue a preliminary injunction.
C. THE PUBLIC INTEREST WILL NOT BE DISSERVED NOR WILL THE DEFENDANTS BE HARMED BY THE ISSUANCE OF THE TRO.
The public will benefit from a TRO and preliminary injunction in favor of Plaintiffs. “[I]njunctions protecting First Amendment freedoms are always in the public interest.” Christian Legal Soc'y v. Walker, 2006 WL 1881131 (7th Cir. 2006). Protecting the Plaintiffs’ First Amendment rights will assure that the Plaintiffs’ do not lose their right to due process by having their signatures nullified without notice and opportunity to be heard, or their right to equal protection by having their signatures nullified by standardless procedures. This benefit will inure to all voters in the state, ensuring that their signatures in this election and future elections cannot be expunged by unconstitutional state regulations. Moreover, a delay in the finalization of the evidentiary hearing will not harm the plaintiffs, so long as the merits are resolved in time for the printing of ballots. Defendants will not deny the ballots need to be printed about 40 days before the November 2 general election, at least in the jurisdictions of the Cook County clerk and the Chicago election commission; or, before at least 35 days before the election due to a federal absentee ballot availability rule. Thus, the public interest will be served by the issuance of the TRO. And as noted above at Section 5.c.iv., an injunction will not harm the Defendants.
CONCLUSION
For the reasons given, these Plaintiffs pray their motions for a Temporary Restraining Order and then, for a Preliminary Injunction be granted.
DATE: July 28, 2006
Respectfully submitted,
____________________________________
One of Plaintiffs’ attorneys
Michael E. Lavelle, #1590723
Kevin E. Bry, #6200436
Attorneys for Plaintiffs
Lavelle & Motta, Ltd.
218 N. Jefferson St., Suite 102
Chicago, IL 60661
312-559-0600
Facsimile: 312-559-1335
# posted by Cal Skinner : 7:06 AM
