Tuesday, August 08, 2006
Protect Marriage Federal Appellate Court Filing
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
Protect Marriage Illinois, Peter L. LaBarbera, )
David E. Smith, and Robert Pajor, Sheryl )
Amato and Cynthia Smith for themselves and )
on behalf of all others similarly situated, ) ) )
Plaintiffs-Appellants )
)
v. ) ) )
David D. Orr, Cook County Clerk; Langdon )
Neal, Theresa Petrone and Richard Cowen, )
Members of the Chicago Board of Election ) Commissioners; and Lance Gough, its )
Executive Director; Jesse Smart, Chairman, )
Wanda L. Rednour, Vice-Chairman, )
William M. McGuffage, Bryan A. Schneider, )
Albert Porter, Patrick Brady, Robert Walters )
and John R. Keith, Members of the Illinois )
State Board of Elections; and Daniel White, its )
Executive Director, ) )
Defendants-Appellees )
Appellate Docket No: _________
EMERGENCY MOTION FOR PRELIMINARY INJUNCTION
AND EXPEDITED APPEAL
Plaintiffs-Appellants, by counsel, move this honorable Court for an Emergency Preliminary Injunction pursuant to Rule 8 of the Federal Rules of Appellate Procedure and Circuit Rule 8 and an Expedited Appeal Pursuant to Rule 2 of the Federal Rules of Appellate Procedure and Circuit Rule 2 based on the following:
PRELIMINARY INJUNCTION
1. Plaintiffs-Appellants have sought and have been denied preliminary injunctive
relief in the District Court below. The basis for this denial is reflected in a written order entered on August 2, 2006. Plaintiffs-Appellants seek an immediate appeal to this Court. A copy of the Notice of Appeal dated August 2, 2006 is attached hereto as Exhibit A. A copy of the order of Judge Elaine E. Bucklo dated August 2, 2006 is attached as Exhibit B.
2. Federal Rule of Appellate Procedure 8(a)(c) provides a mechanism for this Court
to issue and order “suspending, modifying, restoring, or granting an injunction while an appeal is pending.” This Court has applied this rule when the District Court has denied an application for a preliminary injunction. In Aurora Bancshares Corporation v. Weston, 777 F.2d 385, 387 (7th Cir. 1985) this Court stated:
Rule 8(a) of the Federal Rules of Appellate Procedure authorizes us to grant a motion for an injunction pending appeal. If the district judge had denied the request for a preliminary injunction after the balancing of merits and harms required by our decision in Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir.1984), we could review his decision and decide whether there was sufficient likelihood of overturning it and sufficient evidence of irreparable harm to the plaintiffs from denying interim relief not offset by irreparable harm to the defendants from granting it to warrant our issuing the preliminary injunction pending appeal. (citing Adams v. Walker, 488 F.2d 1064 (7th Cir.1973)). Therefore, pursuant to Rule 8 Plaintiffs-Appellants move this Court to issue a preliminary injunction staying all state proceedings pending the outcome of this appeal.
3. Plaintiffs-Appellants also request an immediate hearing on this motion at the
Courts’ earliest convenience.
EXPEDITED APPEAL
4. Along with the injunctive relief sought herein, Plaintiffs-Appellants seek an
expedited appeal. Because the issues presented in this case are time sensitive and involve First and Fourteenth Amendment issues, an expedited appeal schedule is appropriate. Highway J Citizens Group v. Mineta, 349 F.3d 938 (7th Cir. 2003) (Expedited appeal appropriate in case were plaintiffs were seeking to prevent opening of bridge); Second City Music, Inc., v. City of Chicago, 333 F.3d 846 (7th Cir. 2003) (Expedited appeal granted in case involving licensing case which implicated First Amendment).
5. This case presents urgent issues which need to be addressed immediately due to
the circumstances of this case. As discussed herein, there is a hearing scheduled by the State Board of Elections for August 5, 2006, the validity of which hinges on the determination of the issues raised here. There will be a final hearing on August 11, 2006. Thus, Plaintiffs-Appellants request that this Court consider this Appeal on an expedited based pursuant to Federal Rule of Appellate Procedure 2.
PROCEDURAL BACKGROUND
6. This case involves a challenge to the constitutionality of the Illinois Election
Code, 10 Ill. Comp. Stat. 1-1 et. seq. Plaintiffs-Appellants commenced this action with the filing of a summons and complaint and a motion for a preliminary injunction on July 18, 2006. (The complaint was subsequently amended). A copy of the Second Amended Complaint is attached as Exhibit C. The parties agreed on an expedited briefing schedule pursuant to which the Defendants-Appellees filed a motion to dismiss on July 28, 2006 . Plaintiffs-Appellants filed a memorandum in support of their preliminary injunction on July 31, 2006 at which time Defendants-Appellees also submitted a memorandum in opposition to the preliminary injunction.
Plaintiffs-Appellants submitted a memorandum in opposition to Defendants-Appellees’ motion to dismiss on August 1, 2006. Copies of these documents are attached hereto as Exhibits D, E, F and G respectively. As of August 1, 2006 all briefing on the relevant motions had been submitted to the District Court. On August 2, 2006, Judge Elaine E. Bucklo issue a written decision/order denying Plaintiffs-Appellants’ motion for a preliminary injunction and granting Defendants-Appellees’ motion to dismiss. See Exhibit B.
UNDERLYING FACTS
7. This case involves a petition to place an “advisory question of
public policy” on the election ballot in November, 2006. The Illinois Election Code 10 ILCS 1-1 et seq. gives voters the ability to prepare a petition for presentation to statewide to the voters for an advisory question of public policy. ILCS 5/28-1 through 5/28-13. Plaintiff Protect Marriage Illinois (“PMI”) initiated a statewide petition defining marriage for presentation to the Illinois voters in the November 7, 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’?”
8. This question is designed to be a petition to government for redress of grievances. Id. 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, the Illinois general assembly is under no obligation to act upon this petition for redress contained in the question. 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.
9. Illinois law treats citizen initiated statewide advisory questions (as well as citizen initiated statewide petitions for a constitutional amendment described in 10 ILCS 5/28-9), statewide candidate petitions and new party 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 5/28-10. 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,” since they will be deleted in a signature “conformity examination” conducted by the State Board. 10 ILCS 5/28-9 and 5/28-10. This provision alone has resulted in the invalidation of more than 20,000 signatures for the Protect Marriage Illinois referendum.
10. This requirement that all signatures on a statewide initiative 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 statewide candidate or a statewide new political party are not so limited to sheets with only signatures from the same election jurisdiction. 10 ILCS 5/7-10, 10-2, 10-4. Moreover, signatures on petitions relating to voter initiated petitions for political districts involving more than one election jurisdiction but not statewide, are not so limited. 10 ILCS 5/28-3, 28-5, 28-6, 28-7.
11. Another regulation that applies only to statewide initiative petitions 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). Again, there is no such requirement for any other petition. Id. This requirement leaves it to the discretion of each election jurisdiction employee examining signatures to interpret what “reasonably compares” might mean to him or her.
12. The SBE deleted approximately 10,000 signatures from the petition because the signature on the petition did not “reasonably compare.” An additional approximately 10,000 signatures were deleted from the petition because they were signed on the wrong sheet. Still another 44,000 signatures were deleted as not registered at the address shown opposite their signature on the petition sheet. The SBE made no attempt to notify any of these voters that their signatures had been stricken. The Election Code does not provide for notification to these voters. Still another regulation that applies to no other petitions is that the State Board conducts a random sampling of the petition to determine whether it has a signature validity rate in excess of 95%. If it does not, the petition is presumed invalid. If it does, its validity is held to be “inconclusive,” subject to a validity challenge under separate objection proceedings that may be brought by any legal voter. 10 ILCS 10-8, 10-9, 10-10. Following the completion of the random sampling, the SBE then projected that 91.1% of the total number of signatures on the petition would be valid. This percentage was approximately 3.9% below the 95% validity required. Id. The SBE found that the petition was presumptively invalid in the last week of June, 2006 following the completion of the random sampling. Id.
13. 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. But, there is no Election Code provision that allows petition signers to present evidence on their own behalf that his or her signature is actually 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. Id. But, PMI is unable to present sufficient evidence to the State Board’s hearing examiner to rebut the presumption at the August 5, 2006 hearing without a favorable ruling on some of the issues raised in this cause This is due to the 5 week period available to gather such evidence which must be done in the offices of the 110 election jurisdictions during business hours. 10 ILCS 5/4-6, 5/5-5 and 5/6-24. It is only in the election jurisdictions’ offices where the voter registration cards are maintained.
5/4-8, 5/5-7 and 5/6-35. These cards contain the signatures of the voters, as well as their addresses, i.e., the address required to match the address shown on the petition opposite the voter’s signature. These are the same records that were used by the election jurisdiction to determine whether the randomly selected signatures they examined reasonably compared and whether the address on the petition was the same as that shown on the voter registration card.
14. PMI recruited and supervised volunteer manpower to collect the signatures on the petitions during the 18 months prior to the filing period. For PMI to conduct a verification of the findings of the election authorities as to signature validity, that volunteer manpower must be available to work during business hours in each of the 110 election jurisdiction offices. PMI was unable to recruit enough manpower to work during business hours.
BASIS FOR RELIEF
15. Plaintiffs contend that the petition process at issue in this case involves core
political speech and as such, the Board’s regulations must undergo strict scrutiny. Plaintiffs-Appellants position in this regard is reflected in the their memoranda of law both in support of their motion for preliminary injunction and in opposition to Defendants-Appellees’ motion to dismiss. See Exhibits E and G. Based on Plaintiffs-Appellants arguments therein, and the most recent legal authority on this issue, Plaintiffs-Appellants have a likelihood of success on the merits of this appeal.
16. The district court erred by denying Plaintiffs-Appellants motion for a preliminary injunction and dismissing their case in several ways. First, the court failed to recognize that this case involves regulations on core political speech that are subject to strict scrutiny. Slip Op. at 14-16. In reaching its decision, the court relied on the Seventh Circuit’s decision in Georges v. Carney, 691 F.2d 297 (7th Cir. 1982), for the proposition that because the state is not constitutionally required to allow the advisory petition, it was subject to less scrutiny. Slip Op. at 12-13. The court ignored that the rationale of Carney has clearly been repudiated by the Supreme Court, particularly in Meyer v. Grant, 486 U.S. 414, 420, 424-25 (1988).
17. The Court also ignored that the state has failed to establish that the danger of
fraud or any other interest exists to justify requiring that signatures on the petition “reasonably compare” to the signer’s voter registration card. The state does not apply that requirement to candidate petitions, or any other petition in Illinois. This requirement does not advance a legitimate much less compelling state interest. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“The risk of corruption perceived in cases involving candidate elections, simply is not present in a popular vote on a public issue”). Additionally, the court failed to recognize that requiring separate petition sheets for each jurisdiction directly violates the First Amendment because if interferes with petition solicitors’ ability to efficiently communicate the message of the petition and gather signatures.
18. Moreover, the system violates Plaintiffs-Appellants right to equal protection
because it gives each local election judge standardless discretion to determine if the signer’s signature reasonably compares with the voter registration card. Bush v. Gore, 531 U.S. 98, 103 (2000). Finally, the court erred in finding that the state is not violating petition signers’ right to due process by failing to give any notice or opportunity to be heard that their signatures are deleted from the petition. Slip Op. at 23-26.
19. Plaintiffs-Appellants’ will suffer irreparable harm in the absence of injunctive
relief. The petition at issue in this case is in danger of irreparable extinction. On Saturday, August 5, 2006, the Board will conduct a hearing wherein a hearing officer will receive evidence concerning “presumptively” invalid signatures. Unless the Plaintiffs-Appellants are able to overcome this presumption, the hearing officer will recommend to the full board that these signatures be removed and the petition will die.
20. Under the current unconstitutional regulatory guidelines, the Plaintiffs-Appellants cannot rebut the presumption of invalidity. Therefore, the Plaintiffs-Appellants need this Court to enjoin the proceedings while an expedited appellate review proceeds.
21. If this process is not enjoined, Plaintiffs-Appellants’ will lose the opportunity to participate in the upcoming election forever. By contrast, if this Court grants this application, the Defendants-Appellees will simply be delayed from conducting the hearing this Saturday, August 5th, 2006, until this matter can be reviewed on expedited appeal.
NOTICE TO DEFENDANTS’-APPELLEES’
22. Plaintiffs-Appellants’ counsel notified Defendants-Appellees’ counsel via email
concerning the filing of this motion on August 3, 2006 at approximately 10:30 CT. A copy of this motion was also provided by the same means prior to its filing on August 3, 2006.
WHEREFORE, based of the foregoing, Plaintiffs-Appellants respectfully request that this Court grant a preliminary injunction and expedited appeal.
Dated: August 3, 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
Benjamin W. Bull
Glen Lavy
Brian W. Raum
Dale Schowengerdt
ALLIANCE DEFENSE FIND
15333 North Pima Rd., Suite 165
Scottsdale, AZ 8526
(480) 444-0020
FOR THE SEVENTH CIRCUIT
Protect Marriage Illinois, Peter L. LaBarbera, )
David E. Smith, and Robert Pajor, Sheryl )
Amato and Cynthia Smith for themselves and )
on behalf of all others similarly situated, ) ) )
Plaintiffs-Appellants )
)
v. ) ) )
David D. Orr, Cook County Clerk; Langdon )
Neal, Theresa Petrone and Richard Cowen, )
Members of the Chicago Board of Election ) Commissioners; and Lance Gough, its )
Executive Director; Jesse Smart, Chairman, )
Wanda L. Rednour, Vice-Chairman, )
William M. McGuffage, Bryan A. Schneider, )
Albert Porter, Patrick Brady, Robert Walters )
and John R. Keith, Members of the Illinois )
State Board of Elections; and Daniel White, its )
Executive Director, ) )
Defendants-Appellees )
Appellate Docket No: _________
EMERGENCY MOTION FOR PRELIMINARY INJUNCTION
AND EXPEDITED APPEAL
Plaintiffs-Appellants, by counsel, move this honorable Court for an Emergency Preliminary Injunction pursuant to Rule 8 of the Federal Rules of Appellate Procedure and Circuit Rule 8 and an Expedited Appeal Pursuant to Rule 2 of the Federal Rules of Appellate Procedure and Circuit Rule 2 based on the following:
PRELIMINARY INJUNCTION
1. Plaintiffs-Appellants have sought and have been denied preliminary injunctive
relief in the District Court below. The basis for this denial is reflected in a written order entered on August 2, 2006. Plaintiffs-Appellants seek an immediate appeal to this Court. A copy of the Notice of Appeal dated August 2, 2006 is attached hereto as Exhibit A. A copy of the order of Judge Elaine E. Bucklo dated August 2, 2006 is attached as Exhibit B.
2. Federal Rule of Appellate Procedure 8(a)(c) provides a mechanism for this Court
to issue and order “suspending, modifying, restoring, or granting an injunction while an appeal is pending.” This Court has applied this rule when the District Court has denied an application for a preliminary injunction. In Aurora Bancshares Corporation v. Weston, 777 F.2d 385, 387 (7th Cir. 1985) this Court stated:
Rule 8(a) of the Federal Rules of Appellate Procedure authorizes us to grant a motion for an injunction pending appeal. If the district judge had denied the request for a preliminary injunction after the balancing of merits and harms required by our decision in Roland Machinery Co. v. Dresser Industries, Inc., 749 F.2d 380 (7th Cir.1984), we could review his decision and decide whether there was sufficient likelihood of overturning it and sufficient evidence of irreparable harm to the plaintiffs from denying interim relief not offset by irreparable harm to the defendants from granting it to warrant our issuing the preliminary injunction pending appeal. (citing Adams v. Walker, 488 F.2d 1064 (7th Cir.1973)). Therefore, pursuant to Rule 8 Plaintiffs-Appellants move this Court to issue a preliminary injunction staying all state proceedings pending the outcome of this appeal.
3. Plaintiffs-Appellants also request an immediate hearing on this motion at the
Courts’ earliest convenience.
EXPEDITED APPEAL
4. Along with the injunctive relief sought herein, Plaintiffs-Appellants seek an
expedited appeal. Because the issues presented in this case are time sensitive and involve First and Fourteenth Amendment issues, an expedited appeal schedule is appropriate. Highway J Citizens Group v. Mineta, 349 F.3d 938 (7th Cir. 2003) (Expedited appeal appropriate in case were plaintiffs were seeking to prevent opening of bridge); Second City Music, Inc., v. City of Chicago, 333 F.3d 846 (7th Cir. 2003) (Expedited appeal granted in case involving licensing case which implicated First Amendment).
5. This case presents urgent issues which need to be addressed immediately due to
the circumstances of this case. As discussed herein, there is a hearing scheduled by the State Board of Elections for August 5, 2006, the validity of which hinges on the determination of the issues raised here. There will be a final hearing on August 11, 2006. Thus, Plaintiffs-Appellants request that this Court consider this Appeal on an expedited based pursuant to Federal Rule of Appellate Procedure 2.
PROCEDURAL BACKGROUND
6. This case involves a challenge to the constitutionality of the Illinois Election
Code, 10 Ill. Comp. Stat. 1-1 et. seq. Plaintiffs-Appellants commenced this action with the filing of a summons and complaint and a motion for a preliminary injunction on July 18, 2006. (The complaint was subsequently amended). A copy of the Second Amended Complaint is attached as Exhibit C. The parties agreed on an expedited briefing schedule pursuant to which the Defendants-Appellees filed a motion to dismiss on July 28, 2006 . Plaintiffs-Appellants filed a memorandum in support of their preliminary injunction on July 31, 2006 at which time Defendants-Appellees also submitted a memorandum in opposition to the preliminary injunction.
Plaintiffs-Appellants submitted a memorandum in opposition to Defendants-Appellees’ motion to dismiss on August 1, 2006. Copies of these documents are attached hereto as Exhibits D, E, F and G respectively. As of August 1, 2006 all briefing on the relevant motions had been submitted to the District Court. On August 2, 2006, Judge Elaine E. Bucklo issue a written decision/order denying Plaintiffs-Appellants’ motion for a preliminary injunction and granting Defendants-Appellees’ motion to dismiss. See Exhibit B.
UNDERLYING FACTS
7. This case involves a petition to place an “advisory question of
public policy” on the election ballot in November, 2006. The Illinois Election Code 10 ILCS 1-1 et seq. gives voters the ability to prepare a petition for presentation to statewide to the voters for an advisory question of public policy. ILCS 5/28-1 through 5/28-13. Plaintiff Protect Marriage Illinois (“PMI”) initiated a statewide petition defining marriage for presentation to the Illinois voters in the November 7, 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’?”
8. This question is designed to be a petition to government for redress of grievances. Id. 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, the Illinois general assembly is under no obligation to act upon this petition for redress contained in the question. 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.
9. Illinois law treats citizen initiated statewide advisory questions (as well as citizen initiated statewide petitions for a constitutional amendment described in 10 ILCS 5/28-9), statewide candidate petitions and new party 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 5/28-10. 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,” since they will be deleted in a signature “conformity examination” conducted by the State Board. 10 ILCS 5/28-9 and 5/28-10. This provision alone has resulted in the invalidation of more than 20,000 signatures for the Protect Marriage Illinois referendum.
10. This requirement that all signatures on a statewide initiative 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 statewide candidate or a statewide new political party are not so limited to sheets with only signatures from the same election jurisdiction. 10 ILCS 5/7-10, 10-2, 10-4. Moreover, signatures on petitions relating to voter initiated petitions for political districts involving more than one election jurisdiction but not statewide, are not so limited. 10 ILCS 5/28-3, 28-5, 28-6, 28-7.
11. Another regulation that applies only to statewide initiative petitions 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). Again, there is no such requirement for any other petition. Id. This requirement leaves it to the discretion of each election jurisdiction employee examining signatures to interpret what “reasonably compares” might mean to him or her.
12. The SBE deleted approximately 10,000 signatures from the petition because the signature on the petition did not “reasonably compare.” An additional approximately 10,000 signatures were deleted from the petition because they were signed on the wrong sheet. Still another 44,000 signatures were deleted as not registered at the address shown opposite their signature on the petition sheet. The SBE made no attempt to notify any of these voters that their signatures had been stricken. The Election Code does not provide for notification to these voters. Still another regulation that applies to no other petitions is that the State Board conducts a random sampling of the petition to determine whether it has a signature validity rate in excess of 95%. If it does not, the petition is presumed invalid. If it does, its validity is held to be “inconclusive,” subject to a validity challenge under separate objection proceedings that may be brought by any legal voter. 10 ILCS 10-8, 10-9, 10-10. Following the completion of the random sampling, the SBE then projected that 91.1% of the total number of signatures on the petition would be valid. This percentage was approximately 3.9% below the 95% validity required. Id. The SBE found that the petition was presumptively invalid in the last week of June, 2006 following the completion of the random sampling. Id.
13. 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. But, there is no Election Code provision that allows petition signers to present evidence on their own behalf that his or her signature is actually 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. Id. But, PMI is unable to present sufficient evidence to the State Board’s hearing examiner to rebut the presumption at the August 5, 2006 hearing without a favorable ruling on some of the issues raised in this cause This is due to the 5 week period available to gather such evidence which must be done in the offices of the 110 election jurisdictions during business hours. 10 ILCS 5/4-6, 5/5-5 and 5/6-24. It is only in the election jurisdictions’ offices where the voter registration cards are maintained.
5/4-8, 5/5-7 and 5/6-35. These cards contain the signatures of the voters, as well as their addresses, i.e., the address required to match the address shown on the petition opposite the voter’s signature. These are the same records that were used by the election jurisdiction to determine whether the randomly selected signatures they examined reasonably compared and whether the address on the petition was the same as that shown on the voter registration card.
14. PMI recruited and supervised volunteer manpower to collect the signatures on the petitions during the 18 months prior to the filing period. For PMI to conduct a verification of the findings of the election authorities as to signature validity, that volunteer manpower must be available to work during business hours in each of the 110 election jurisdiction offices. PMI was unable to recruit enough manpower to work during business hours.
BASIS FOR RELIEF
15. Plaintiffs contend that the petition process at issue in this case involves core
political speech and as such, the Board’s regulations must undergo strict scrutiny. Plaintiffs-Appellants position in this regard is reflected in the their memoranda of law both in support of their motion for preliminary injunction and in opposition to Defendants-Appellees’ motion to dismiss. See Exhibits E and G. Based on Plaintiffs-Appellants arguments therein, and the most recent legal authority on this issue, Plaintiffs-Appellants have a likelihood of success on the merits of this appeal.
16. The district court erred by denying Plaintiffs-Appellants motion for a preliminary injunction and dismissing their case in several ways. First, the court failed to recognize that this case involves regulations on core political speech that are subject to strict scrutiny. Slip Op. at 14-16. In reaching its decision, the court relied on the Seventh Circuit’s decision in Georges v. Carney, 691 F.2d 297 (7th Cir. 1982), for the proposition that because the state is not constitutionally required to allow the advisory petition, it was subject to less scrutiny. Slip Op. at 12-13. The court ignored that the rationale of Carney has clearly been repudiated by the Supreme Court, particularly in Meyer v. Grant, 486 U.S. 414, 420, 424-25 (1988).
17. The Court also ignored that the state has failed to establish that the danger of
fraud or any other interest exists to justify requiring that signatures on the petition “reasonably compare” to the signer’s voter registration card. The state does not apply that requirement to candidate petitions, or any other petition in Illinois. This requirement does not advance a legitimate much less compelling state interest. See First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 790 (1978) (“The risk of corruption perceived in cases involving candidate elections, simply is not present in a popular vote on a public issue”). Additionally, the court failed to recognize that requiring separate petition sheets for each jurisdiction directly violates the First Amendment because if interferes with petition solicitors’ ability to efficiently communicate the message of the petition and gather signatures.
18. Moreover, the system violates Plaintiffs-Appellants right to equal protection
because it gives each local election judge standardless discretion to determine if the signer’s signature reasonably compares with the voter registration card. Bush v. Gore, 531 U.S. 98, 103 (2000). Finally, the court erred in finding that the state is not violating petition signers’ right to due process by failing to give any notice or opportunity to be heard that their signatures are deleted from the petition. Slip Op. at 23-26.
19. Plaintiffs-Appellants’ will suffer irreparable harm in the absence of injunctive
relief. The petition at issue in this case is in danger of irreparable extinction. On Saturday, August 5, 2006, the Board will conduct a hearing wherein a hearing officer will receive evidence concerning “presumptively” invalid signatures. Unless the Plaintiffs-Appellants are able to overcome this presumption, the hearing officer will recommend to the full board that these signatures be removed and the petition will die.
20. Under the current unconstitutional regulatory guidelines, the Plaintiffs-Appellants cannot rebut the presumption of invalidity. Therefore, the Plaintiffs-Appellants need this Court to enjoin the proceedings while an expedited appellate review proceeds.
21. If this process is not enjoined, Plaintiffs-Appellants’ will lose the opportunity to participate in the upcoming election forever. By contrast, if this Court grants this application, the Defendants-Appellees will simply be delayed from conducting the hearing this Saturday, August 5th, 2006, until this matter can be reviewed on expedited appeal.
NOTICE TO DEFENDANTS’-APPELLEES’
22. Plaintiffs-Appellants’ counsel notified Defendants-Appellees’ counsel via email
concerning the filing of this motion on August 3, 2006 at approximately 10:30 CT. A copy of this motion was also provided by the same means prior to its filing on August 3, 2006.
WHEREFORE, based of the foregoing, Plaintiffs-Appellants respectfully request that this Court grant a preliminary injunction and expedited appeal.
Dated: August 3, 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
Benjamin W. Bull
Glen Lavy
Brian W. Raum
Dale Schowengerdt
ALLIANCE DEFENSE FIND
15333 North Pima Rd., Suite 165
Scottsdale, AZ 8526
(480) 444-0020
# posted by Cal Skinner : 9:53 AM
