Illinois State Board of Elections v. Socialist Workers Party – Oral Argument – November 06, 1978

Media for Illinois State Board of Elections v. Socialist Workers Party

Audio Transcription for Opinion Announcement – February 22, 1979 in Illinois State Board of Elections v. Socialist Workers Party

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Warren E. Burger:

We’ll hear arguments next in Illinois State Board of Elections against the Socialist Workers Party.

Mr. Levinson, you may proceed whenever you’re ready.

Michael L. Levinson:

Mr. Chief Justice and may it please the Court.

This case arises as a result of a special mayoral election held in the City of Chicago on June 7th, 1977.

The plaintiffs — appellees alleged that Sections 10-2 and 10-3 of Chapter 46, Illinois Revised Statutes unconstitutionally deprived them of their equal protection of the laws.

In this case, they were required under the 5% minimum signature requirement to obtain approximately 36,000 signatures while statewide candidates independent new political party candidates running for state office need only 25,000 signatures.

The trial court below issued a permanent injunction against requiring more than 25,000 signatures for all future elections.

The Court of Appeals affirmed the District Court’s opinion.

Notwithstanding the objection of the appellant during the course of the proceedings, the U.S. Labor Party entered into a private agreement with the Chicago Board of Elections Commissioners to further lower the signature requirements from 25,000 to 20,000 and to extend the filing period from 64 days before the election to 50 days before the election.

The Court of Appeals declined to resolve this letter issue on the grounds of mootness.

Appellant submits that it is crucial that this case presents a serious threat to the viability of three established doctrines of this Court, stare decisis, summary affirmance and mootness.

With respect to summary — I am sorry, with respect to stare decisis, appellant submits that the issues involved in this appeal, namely the discrepancy between 25,000 signatures required for independents and new political party candidates running statewide and the 5% signature requirement for all other offices in the state was presented in the jurisdictional statement in Jackson v. Ogilvie, it was presented to this Court and we have at issue the same statute which was challenged in Jackson v. Ogilvie.

It was presented to this Court and we have at issue the same statute which was challenged in Jackson v. Ogilvie.

We have the same defendant which was sued in Jackson v. Ogilvie.

We have the same office being sought which is Mayor and in the essence, we argue that the same statute is again being relitigated.

We argue in our briefs that the principle stare decisis and the interest of uniformity and predictability should have guided the lower courts into affirming the constitutionality of that statute.

We also suggest that the law of the case although not on all fours necessarily with this case should be expanded to include a situation where an identical statute is being challenged and in effect we maintain the same script as being presented.

The actors are different but the roles are the same.

We have an independent candidate running for Mayor in the City of Chicago.

William H. Rehnquist:

Was the case you were referring to as summary affirmance here?

Michael L. Levinson:

Yes, sir.

William H. Rehnquist:

And we’ve said, haven’t we that our summary affirmances are in our own jurisprudence entitled to less weight than are fully written out opinion for the Court?

Michael L. Levinson:

No, sir.

I do not construe that.

I have — in this Court, I’ve construed that summary affirmances have precedential value and that the State of —

William H. Rehnquist:

They do — all I’m suggesting is that whereas in the — in Hicks against Miranda, I think we said that they were binding on lower court — lower federal courts in cases like Edelman against Jordan, we have said they were entitled to some weight but not the same weight that a fully written out opinion would be, would it?

Michael L. Levinson:

Mr. Justice Rehnquist, as I understand or as appellant is maintaining that perhaps the ratio decidendi or the rule of law which is to be gleaned from a summary affirmance is very difficult in the absence of an opinion.

But as Justice White stated in Hicks versus Miranda, “votes to affirm summarily and to dismiss for one of a substantial federal question, it hardly needs comments or votes on the merits of the case.

Lower courts are bound by summary decisions by this Court until such time as the Court informs them that they are not.

Byron R. White:

But you — don’t you at least agree that the — that prior summary actions are not entitled to the same way here in this Court?

William J. Brennan, Jr.:

In other words —

Michael L. Levinson:

In terms of this Court — yes, sir.

William J. Brennan, Jr.:

Even though the lower court —

Michael L. Levinson:

Yes, sir.

William J. Brennan, Jr.:

Your hands is bound by it when it gets here —

Michael L. Levinson:

Yes, sir.

I —

William J. Brennan, Jr.:

— we can ignore it.

Michael L. Levinson:

Hopefully not.

William J. Brennan, Jr.:

No, we can’t.

Michael L. Levinson:

Yes, you can.

Of course you can.

Potter Stewart:

Well, we can’t.

Michael L. Levinson:

But that would —

Potter Stewart:

Maybe we’re quibbling about words.

We — we probably can’t ignore it.

We have to —

Michael L. Levinson:

You would have to —

Potter Stewart:

— mention it but it has as my Brother Brennan suggests, less precedential controlling weight here in this Court.

Michael L. Levinson:

Yes in this Court, it does.

Potter Stewart:

Than a fully developed court opinion —

Michael L. Levinson:

That’s true.

Potter Stewart:

— what the case would have.

Michael L. Levinson:

For the appellees to succeed in this case, appellants submit would require overturning the Jackson summary affirmance.

John Paul Stevens:

Mr. Levinson —

Warren E. Burger:

This is based not just on the fact that it is not a fully developed opinion necessarily but this case that hasn’t had plenary treatment was full briefing in oral argument in this Court.

Thurgood Marshall:

It is?

Michael L. Levinson:

Mr. Chief —

Warren E. Burger:

And therefore —

Thurgood Marshall:

Isn’t that the case?

Warren E. Burger:

— well, we can ignore theoretically any opinion of the Court, we give less weight to the summary, dispositions, isn’t that the way you read Hicks against Miranda?

We’re free to give less weight to it.

Michael L. Levinson:

Mr. Chief Justice, as I read Hicks versus Miranda and the Mandel decision that there is less constraint on this honorable court than to decide otherwise than were the case to receive plenary consideration.

But notwithstanding that point, you had quoted Mr. Chief Justice Burger and I’d like to read from the quote in Torres versus New York State Department of Labor, “When we summarily affirm without opinion, the judgment of a three-judge court, we affirmed the judgment not necessarily the reasoning by which it was reached”.

Therefore, what appellees are suggesting in this case is that the summary affirmance was nothing more than an adoption of the opinion of the lower court in Jackson v. Ogilvie and what appellants are urging on this Court, is that the same issue which is being raised in this litigation was raised in Jackson v. Ogilvie.

It was part of the jurisdictional statement.

Its part of the appendix to the U.S. Labor Party’s brief, therefore, we could only assume that this Court considered it when it summarily affirmed the Jackson v. Ogilvie.

John Paul Stevens:

Mr. Levinson, would you help me on that precise point.

You have said that the same issue was raised which I take it means that in the Jackson case, there was an argument, not only that the 5% was unreasonable but the fact that 5% in the City of Chicago produced a higher number than the 25% — 25,000 in other parts of the state, was that precise?

Michael L. Levinson:

Yes it was, Mr. Justice Stevens.

John Paul Stevens:

But you didn’t quote that part in your brief.

You didn’t — you just “language” that refers to the fact that the 5% goes to 58,000.

You don’t quote anything that refers to discrepancy between 58,000 and 25,000.

Michael L. Levinson:

As I recall Your Honor, in our briefs we do maintain that the issue was presented to this —

John Paul Stevens:

You say that but you don’t cite anything in the jurisdictional statement that supports your statement, that’s what puzzled me.

Michael L. Levinson:

I see.

Well, I believe we cite it in the briefs Your Honor.

Byron R. White:

Just one sentence (Voice Overlap)?

John Paul Stevens:

What part of your brief?

Michael L. Levinson:

No, it’s more than one sentence.

Although, the lower court —

Byron R. White:

The lower —

John Paul Stevens:

Are you —

Byron R. White:

— the District Court here said there was only one sentence and that it — that — and it was only a passing mention, wasn’t discussed, etcetera.

Michael L. Levinson:

Yes, that with all due respect to the lower court I think that is not a totally accurate statement because in the later opinion of the Court he says, well it was mentioned in passing in a brief but attached is appendix D to the U.S. Labor Party’s brief is the memorandum of the Attorney General of the State of Illinois and this Court will note that it’s more just one sentence.

Byron R. White:

Yes.

Michael L. Levinson:

It’s a significant argument.

It was made both in the lower court and we suggest in this Honorable Court by virtue of the jurisdictional question.

Now even were this Court —

John Paul Stevens:

Mr. Levinson, —

Michael L. Levinson:

Yes, sir.

John Paul Stevens:

— it’s really quite important that I do know exactly what you’re relying on.

You relying on Appendix D to the Labor Department’s brief?

Michael L. Levinson:

Yes.

John Paul Stevens:

It was an argument made in the United States District Court, is that as I understand it correctly?

Michael L. Levinson:

Yes, but this was —

John Paul Stevens:

Was there anything — what was argued in this Court and that it was the same argument that was being made here today?

Michael L. Levinson:

Well, this Court did not grant plenary consideration therefore the jurisdictional statement which contained the memorandum of the Attorney General was an issue presented based on the doctrines of this Court in Hicks and Mandel if it’s an issue which has been presented to this Court.

John Paul Stevens:

Who commence —

Michael L. Levinson:

The lower courts are bound by —

John Paul Stevens:

— the argument in this Court that your opponents now rely on?

Michael L. Levinson:

I’m sorry Your Honor.

John Paul Stevens:

Who advanced the argument in this Court in Jackson against Ogilvie that your opponents now rely on?

Michael L. Levinson:

The appellants Jackson attached the memorandum of the Attorney General to his jurisdictional statement because the Attorney —

John Paul Stevens:

Then he make the argument other than attaching a document that shows it was argued in the District Court?

Did he make the argument —

Michael L. Levinson:

There was no oral —

John Paul Stevens:

— in this Court?

Michael L. Levinson:

Well, by attaching it to the jurisdictional —

John Paul Stevens:

That’s — that’s the extent of the argument that was made in the other case.

Michael L. Levinson:

Well, cause no plenary consideration was given.

John Paul Stevens:

Well but — alright.

Michael L. Levinson:

Since no —

John Paul Stevens:

But that is the sentence?

Michael L. Levinson:

— plenary consideration was given, the only way it could be presented to the Court, we —

John Paul Stevens:

I suppose the argument could have been advanced in jurisdictional statement itself and said we think the decision is wrong for this reason.

Michael L. Levinson:

Well, there —

John Paul Stevens:

But that was not done, as I understand it.

Michael L. Levinson:

There was a crossover.

It is stated in the jurisdictional statement that we — or attaching the memorandum opinion of the Attorney General and it’s incorporated within the jurisdictional statement.

Michael L. Levinson:

He attaches it as appendix B to the Jackson v. Ogilvie jurisdictional statement.

This is for the reason stated therein.

We are including that as apart of our argument so he is incorporating by reference the position of the Attorney General, i.e. that the discrepancy between statewide candidates and less than statewide candidates invidiously discriminates them in violation of equal protection.

It’s very clear from the jurisdictional statement Your Honor.

John Paul Stevens:

I just don’t understand if that’s clear why you didn’t quote any of these in your brief.

I’ll look at this jurisdictional statement.

Michael L. Levinson:

We did mention, as I recall in our brief Your Honor.

Even if this Court were to conclude that the Jackson and Jenness decisions were not controlling, we further urge that this Court should find for appellants on the grounds of the 5% signature requirements satisfied the compelling state interest.

The Jenness v. Fortson case appellant submits is a watershed case where this Court upheld as satisfying the compelling state interest test, signature requirement of the 5% of the registered voters.

Whereas in Illinois, it is 5% not of the registered voters but actually the voters who voted at the last general election, and normally voter turn out as a 50%.

Storer v. Brown sustained a 5% signature requirement.

There is in the interest of doctrinal continuity that this 5% requirement which this Court has sustained be maintained.

In fact, appellees are suggesting it chipping away of the 5% and they rely on Lendall v. Jernigan and appellant suggests that they are overstating their case.

In the Lendall v. Jernigan case, the State of Arkansas failed to satisfy according to this Court the compelling state interest test.

It was a 10% requirement.

The Court did note that in the City of Littlerock, 50 signatures were required whereas in a larger state senatorial district, more signatures were required.

But that was not the reason that the Court, this Court we suggest, struck down Landell v. Jernigan.

The reason it was struck down is that 10% was too high.

Illinois has 5% which is not too high and most important, the District Court took 25,000 signatures and superimposed that as a maximum on the 5% signature requirement.

We submit that there is no authority whatsoever for this.

This Court in Landell v. Jernigan did not take the 50 signature maximum for the City of Littlerock, Arkansas and say that was the most signatures that can be required.

You merely struck down the 10% signature requirement.

If I may now address myself to the question of mootness, the resolution of the question of the authority of an election agency to lower signature requirements and extend filing periods is capable of repetition yet evading review.

We maintain that a resolution of this question will determine the rights of the litigants particularly the Chicago Board of Election commissioners.

They maintain that they have the right in special elections to deviate from the statute to lower these statutory signature requirements, to extend filing dates, this brings in a personal factor but the statute was universalistic and fair to everyone, they entered into a private agreement and we feel that even though the election is over, based on this Court’s decisions in American Party of Texas versus White, Storer v. Brown, Moore versus Ogilvie, that this issue was still viable and that a — and that this issue should be resolved.

William H. Rehnquist:

You’re not arguing for consideration of the second issue that the Court of Appeals considered the agreement between the labor party and the Chicago Board, are you?

Michael L. Levinson:

We are arguing that the doctrine of mootness has been given lip service by the lower courts but that the issue was not moot and that it should be remanded.

William H. Rehnquist:

But to say — unless I am — got the wrong brief here or something, this — that the Seventh Circuit did hold that part of the case was moot.

Michael L. Levinson:

That’s right.

William H. Rehnquist:

And you don’t disagree with that holding?

Michael L. Levinson:

Yes, we do.

We disagree with that portion of the Seventh Circuit opinion which held that the issue to — the issue of lowering signature requirements in favor of one political party and not in favor of another, the U.S. Libertarian Party sought to intervene and obtained ballot access with 18,000 signatures and the Courts said “No”.

And the Chicago board didn’t agree to 18,000 but they agreed to 20 for the U.S. Labor Party.

We felt that was an issue which was capable of repetition yet evading review and that the —

William H. Rehnquist:

But the Seventh Circuit found otherwise, didn’t it?

Michael L. Levinson:

This did not resolve the issue on the ground of mootness.

They declined to resolve that issue.

William H. Rehnquist:

One, did they — did not resolve the substance of the issue because they —

Michael L. Levinson:

That’s correct.

William H. Rehnquist:

— concluded it was moot.

Michael L. Levinson:

That’s correct sir.

William H. Rehnquist:

And isn’t there are some reason for us thinking that the Seventh Circuit probably knows what the Cook County Board of Elections might do in the future better than we do?

Michael L. Levinson:

No, sir.

I would say that death, disqualification, removal from office, any number of contingencies might cause another special election and I don’t think any of us can foresee the future.

I think it’s a viable potentiality that may occur in the future and that the Court of Appeals would not necessarily know the motivations of the Chicago Board of Election Commissioners and we feel that —

Potter Stewart:

Oh, Mr. Levinson, if —

Michael L. Levinson:

Yes, sir.

Potter Stewart:

— we agree with you that the Court of Appeals for the Seventh Circuit was in error in considering this second issue moot then we should do no more than on that branch of the case remand it to the Court of Appeals —

Michael L. Levinson:

Yes, sir.

Potter Stewart:

— for decision of the merits, is that right?

Michael L. Levinson:

Yes, sir.

Potter Stewart:

We shouldn’t attempt to decide the merits here.

Michael L. Levinson:

Right sir.

Potter Stewart:

Right.

Michael L. Levinson:

May I reserve the rest of time for rebuttal sir.

Warren E. Burger:

Very well.

Mr. Colman.

Jeffrey D. Colman:

Mr. Chief Justice and may it please the Court.

If I may begin by trying to answer the question that Justice Stevens was concerned about in Appendix C to the brief of appellees Gerald Rose, U.S. Labor Party at page 19 (a) in the appendix on the pages listed at the top, this is the jurisdictional statement filed in Jackson versus Ogilvie by the appellants.

In this jurisdictional statement as Mr. Levinson indicated, reference is made to the memorandum of law filed by the Attorney General in the District Court but if the Court will review page 19 (a), you’ll see the context in which the reference is made to the Attorney General’s memorandum.

Jeffrey D. Colman:

The appellants in Jackson versus Ogilvie raised two questions in this Court.

First, the question whether the 5% requirement for independent and new party candidates discriminated against those people vis-à-vis established political parties, democrats and republicans.

Second, they questioned whether the 5% requirement applied to independents and new political parties in Illinois was more onerous than in other states and it’s in that context that the appellants in Jackson versus Ogilvie said for a most persuasive answer to the foregoing inquiry, it is respectfully suggested.

Potter Stewart:

Are you not reading from 19 (a)?

Jeffrey D. Colman:

Yes, Your Honor.

Potter Stewart:

About where on the page?

Jeffrey D. Colman:

Oh, about a third of the way down.

Potter Stewart:

Alright.

Jeffrey D. Colman:

Two-fifths the way down.

Potter Stewart:

Alright.

Jeffrey D. Colman:

It is most respectfully suggested that this Court might properly look to and reasonably rely upon the response and pleadings and memorandum of law filed by the Attorney General.

That was the context of the reference in Jackson versus Ogilvie to the defendant’s memorandum filed in the District Court.

We submit and we believe that the opinions of this Court support this proposition that it would cause chaos if District Courts and state courts are forced to look to the record filed in this Court in order to determine whether a summary affirmance is binding on them.

Mr. Justice Brennan has spoken very persuasively to this matter on numerous occasions.

Potter Stewart:

Yes, but that’s been in dissent primarily, hasn’t it?

Jeffrey D. Colman:

That’s been in a concurring opinion in Mandel versus Bradley and in Mandel versus Bradley the majority per curiam opinion supports that position as well.

Warren E. Burger:

Well, unless it’s a five to four decision per curiam opinions don’t carry any weights.

Jeffrey D. Colman:

We would submit also that in Hicks versus Miranda, the opinion of Mr. Justice White in which he indicates that those issues properly presented to this Court are the issues that are binding on lower courts insofar as summary affirmances are concerned.

It’s hard for anyone to conceive that the segment on page 19 (a) in our brief that which was filed in the jurisdictional statements in Jackson versus Ogilvie properly presents to this Court the question that is before you today.

Byron R. White:

Which is what do you think?

Jeffrey D. Colman:

Which is whether Sections 10-2 and 10-3 of the Illinois Election Code which require local candidates in Chicago and Cook County who are independents or new political parties to obtain far in excess of 25,000 signatures to obtain ballot placement as opposed to a maximum 25,000 signature requirement for all other elections in State of Illinois.

If I may by hypothetical give you what is the reality in Illinois.

If I want to field an independent candidate for President of the United States, Attorney General of the State of Illinois, Governor of the State of Illinois or any other office outside of Chicago, I can satisfy the state’s needs by obtaining 25,000 signatures.

It’s only —

William H. Rehnquist:

Do you have to split them up among counties?

Jeffrey D. Colman:

No, Your Honor.

William H. Rehnquist:

So that you could get 25,000 signatures in Cook County.

Jeffrey D. Colman:

The reality — yes, Your Honor.

The reality is that 25,000 people can bind together in Cook County or in the City of Chicago and field an entire slate of candidates for statewide office, for President of the United States, for any office except those offices in Chicago where the 5% requirement would require them to get more than 25,000 signatures.

This is the absolutely irrational classification that is set forth in the statute.

Harry A. Blackmun:

I take it that Cook County is only Illinois county in which this could happen.

Jeffrey D. Colman:

That’s correct Your Honor.

That is correct.

In fact, the second most populous county in the state is the DuPage County and the 5% requirement in DuPage County would require 12,000 signatures.

The second most populous city in the State of Illinois is Rockford and the 5% requirement there requires 1500 signatures.

William H. Rehnquist:

Is that Rockford or Winnebago County?

Jeffrey D. Colman:

That’s in Rockford City.

The second most populous county is DuPage County.

John Paul Stevens:

Is Rockford bigger than Peoria?

Jeffrey D. Colman:

Excuse me?

John Paul Stevens:

Is Rockford bigger than Peoria?

Jeffrey D. Colman:

That’s according to the 1970 census, Your Honor which is the official census by which they go in 1970 Rockford had 31,000 votes cast for Mayor and that was the second highest vote at that time.

I’m sorry that was in the 1977 election but the population was the second highest.

John Paul Stevens:

Well, let me go back once more if I may to pages 19 (a) and appendix D.

You pointed out that 19 (a) doesn’t articulate the argument that’s being debated right now.

I notice however on the last sentence of paragraph two on page 23 (a) does precisely identify the argument that you’re making.

Now, it could —

Jeffrey D. Colman:

I —

John Paul Stevens:

What?

Jeffrey D. Colman:

I’m sorry Your Honor.

Actually, it’s not a precise statement of the argument we’re making.

In that memorandum on page 23 (a), the Attorney General is drawing a distinction between the requirements for independents in the City of Chicago and for new political parties statewide.

Actually that was a complete misstatement of what Sections 10-2 and 10-3 require.

The proper articulation of the argument is that both independents and new political parties running in the City of Chicago are required to obtain more than 25,000 signatures and both independents and new political parties running statewide need obtain no more than 25,000 signatures.

So if we’re looking at page 23 (a), it does not even literally or specifically state the argument that’s before this Court.

It misstates the law.

John Paul Stevens:

It does state this — a similar argument then they break of —

Jeffrey D. Colman:

It alludes to it Your Honor.

John Paul Stevens:

But what was — where did it — it was — appendix D actually an appendix to the jurisdictional statement filed?

Jeffrey D. Colman:

It’s my understanding that it was.

John Paul Stevens:

I see.

Thank you.

Jeffrey D. Colman:

I stated earlier that in our view and as well in the view of the District Court and the Court of Appeals that this classification which requires independents and new political parties in Chicago and Cook County to obtain more than 25,000 signatures is irrational.

We of course maintain and the state board has never questioned us on this that rationality is not the test to be applied by this Court.

Fundamental rights are at stake in this case.

The Court has long acknowledged that the fundamental right to vote and the freedom of association contained within the First Amendment support a compelling state interest test whenever the state attempts to classify and legislate in an area that would deprive people of access to the ballot.

Byron R. White:

Well, is your argument here limited to the comparison with statewide offices?

Jeffrey D. Colman:

Yes, Your Honor.

Byron R. White:

Absent to 25,000 signature limit for — in other situations, would you be here or?

Jeffrey D. Colman:

No, Your Honor.

Byron R. White:

You don’t think the 5% requirement on its face or in the context of Illinois politics is unreasonably burdensome?

Jeffrey D. Colman:

We thought that it was within the context of the special mayoral election held last year.

Byron R. White:

Just being — but not generally.

Jeffrey D. Colman:

Generally this Court has upheld that.

And while I disagree with the opinion in Jenness versus Fortson I acknowledge that I would not be here.

Byron R. White:

Here you had only 81 days.

Jeffrey D. Colman:

That’s correct Your Honor.

Byron R. White:

But you’re not arguing that here — you’re not supporting the judgment on that ground here?

Jeffrey D. Colman:

That’s not crucial to the Court.

We would certainly assert it as an independent grounds for affirmance and we do in a footnote in our brief.

Potter Stewart:

Well, I thought that that is what you concede was decided in Jackson against Ogilvie.

Jeffrey D. Colman:

That was decided in Jackson versus Ogilvie Your Honor within the context of a general election.

Potter Stewart:

Yes.

Jeffrey D. Colman:

And if I may just —

Potter Stewart:

Which is simply an attack on the 5% requirement as such.

Byron R. White:

But there you had an unlimited amount of time —

Jeffrey D. Colman:

That’s correct.

Byron R. White:

— to get the signatures and here only 81 days.

Jeffrey D. Colman:

If I want to run for Mayor of the City of Chicago in 1999 I can go out and start collecting my signatures tomorrow.

Potter Stewart:

Do you expect to do that?

Jeffrey D. Colman:

No, Your Honor.

In this case, the state itself has determined that 25,000 satisfy the state’s interest in making sure that candidates for statewide office and for President of the United States have of a sufficient modicum of support.

And if I may choose again allude to something that Mr. Justice White said in cases that followed Dunn versus Blumstein, this Court has upheld a 50-day durational residency requirement.

We would submit that if Illinois for example had a 50-day durational residency requirement which was upheld by this Court, but then amended its statute to say that it would be 30 days for statewide offices or 30 for local offices whichever would be the state would have an obligation to justify the discriminatory treatment.

It may be able to satisfy that obligation in certain cases.

In this case however, it has only stated that they need a sufficient modicum of support and 25,000 signatures satisfies that requirement.

Now, with regard to the mootness claim, we believe that the Seventh Circuit Court of Appeals was correct.

The case before the Court today is different from all of the other mootness cases that had come before this Court in the election context.

Those cases all involved continuing statutory enactments where the statute itself would have effect in an election year and after that year after year after year.

The mootness question here is whether the State Board of Elections and the City Board of Elections have overlapping powers whether the City Board of Elections properly entered into a settlement agreement that specifically applied only to the special mayoral election back in 1977.

The Seventh Circuit Court of Appeals found that there was little likelihood of any recurring problem in this area and therefore dismissed the appeal on that question as moot.

If there are no further questions from the Court —

Byron R. White:

It could — suppose we disagreed — well, I’ll put it this way, did the Court of Appeals relied it all on the just as your burdensome in El Salvador, was the — was it — was this principal ground or the only ground the comparison?

Jeffrey D. Colman:

The Court of Appeals adopted the equal protection analysis that the District Court engaged in and that was limited essentially to the disparity between 25,000 statewide —

Byron R. White:

So what if we disagreed with you?

Wouldn’t — to be consistent with Storer in terms of burdensomeness, shouldn’t it be remanded?

Jeffrey D. Colman:

We would agree —

Byron R. White:

We wouldn’t decide — we wouldn’t decide that issue here.

Jeffrey D. Colman:

Well, we would agree that it was burdensome given the factual context, the limited number of time.

Byron R. White:

Well, you would argue it was burdensome.

Yes.

Jeffrey D. Colman:

I’m sorry.

Yes, we would argue that.

Byron R. White:

But — but to that issue, I would suppose it should be decided in the first instance in the lower courts, shouldn’t it?

Jeffrey D. Colman:

That was the issue that we entered into a settlement agreement on Your Honor.

The way this whole thing came about —

Byron R. White:

I know but there’s a permanent injunctions outstanding.

Jeffrey D. Colman:

That’s correct and the permanent injunction says —

Byron R. White:

And the question is should the permanent injunction be outstanding for a reason other than the reason given in the lower courts?

Jeffrey D. Colman:

It should not if this Court —

Byron R. White:

Oh, I know but shouldn’t it be decided there first?

We shouldn’t address the validity of the 5% requirement drawn on, should we?

Jeffrey D. Colman:

The — no, you should not.

And the only basis for the permanent injunction was the District Court’s finding that a requirement that you obtain more than 25,000 signatures did not meet the state’s necessary obligation.

Its obligation show what it — what was required to meet the constitutionally permissible standards.

William H. Rehnquist:

Mr. Colman, under our practice, isn’t it usual if a Court of Appeals decides that an issue decided by a District Court is moot we don’t simply dismiss the appeal but we direct that the complaint be dismissed?

Jeffrey D. Colman:

In this case Your Honor the only thing that was found to be moot by the Court of Appeals was the settlement agreement.

Not the — there’s a permanent injunction as Mr. Justice White notes that is in effect and is in operation in tomorrow’s election in Illinois and in next year’s election and that was based on the equal protection analysis.

Your Honor is correct in terms of what the law would be if the entire case was found to be moot.

William H. Rehnquist:

Well, but this is half the case.

This is a different issue than — in the other half of the case in — the Court of Appeals found that this part of the case was moot —

Jeffrey D. Colman:

That’s correct.

William H. Rehnquist:

— but in — because of the agreement that it had been entered into.

Jeffrey D. Colman:

Because the election had passed because this as an agreement entered —

William H. Rehnquist:

Simply because the election had passed and the usual capable of repetition principle didn’t apply here.

Jeffrey D. Colman:

That’s correct.

William H. Rehnquist:

Well then why shouldn’t it have remanded with instructions to dissolve the injunction, dismiss the complaint as to that aspect of the case?

Jeffrey D. Colman:

It could have remanded with instructions to dissolve settlement agreement, the order entered in March 17th but that order itself says that it applies only to the June 1977 election.

It is of absolutely no precedential value by its own terms.

I — Your Honor is correct, that would be the normal process but in this particular case, the order itself died in June of 1977.

So there was no necessity for doing that.

Thank you, Your Honor.

Warren E. Burger:

Very well.

Mr. Reosti.

Ronald Reosti:

Mr. Chief Justice and may it please the Court.

It’s my contention that there is a basis for determining that the 5% requirement in Cook County and in Chicago in the context of Illinois politics and in the context of the history of the Illinois election law is too burdensome.

Byron R. White:

Well now, do you suggest that that issue decided in the Court of Appeals?

Ronald Reosti:

No.

I wouldn’t suggest that Your Honor.

Byron R. White:

Are you saying that we should decide it if we were to reject the equal protection argument?

Ronald Reosti:

I’m saying if this Court decides to reject the equal protection argument that it can be decided on its face.

Byron R. White:

Well, I know we could but the —

Ronald Reosti:

And sure with this case.

Byron R. White:

— half of that — a good part of that kind of a judgment is some feel for local politics.

Ronald Reosti:

I think Your Honor that the 20th — the history of the application of the 25,000 signature requirement on a statewide basis provides this Court with ample basis for determining that given the effectiveness of the 25,000 signature requirement that the additional burden in light of the significance of that burden would be clearly unnecessary.

Byron R. White:

Well, but the party has seemed to have been unable to satisfy it on prior occasions.

Ronald Reosti:

I’m sorry, Your Honor.

Byron R. White:

The 5%, they’ve been able to — its not — hasn’t been — it hasn’t prove them practical, has it?

Ronald Reosti:

Your Honor, in Cook County it has proved the impossible.

In other words, no candidate according to the record in this case, no candidate whether a third party or an independent has ever qualified for office in Cook County by meeting the 5% requirement.

Furthermore, only one candidate in the history of the law since 1931 prior to the decision below, only one candidate has ever qualified for office in Chicago by meeting this requirement.

So that if you take all of the elections for Cook County and Chicago together, only once has anyone ever met that qualification.

So it is a substantial burden.

When we look at the burden in terms of Cook County alone, the additional signatures required, just the increment alone would equal 4% of the total electorate.

Now 4% as we know is very close to the maximum amount of signatures that this Court has ever said is permissible on the part of the state.

So it’s very close to the very maximum burden that this Court has allowed the state to impose on these very fundamental rights.

And yet this is just the increment alone.

If we’re going to look at the increment, we must look at the need for the increment.

That need it seems to me has to be viewed in the context of the fact that the State of Illinois has fashioned a less drastic alternative for protecting its interest which at least on a statewide level has served those interests very well since 1931.

There are certainly methods in the record to suggest that the application was 25,000 maximum for a much larger population as resulted in bedsheet ballots as resulted in the inclusion of frivolous candidates on a statewide level.

Byron R. White:

What do you —

Ronald Reosti:

There is no reason for —

Byron R. White:

What do you understand to be the justification offered by the state for a greater signature requirement in Cook County elections?

Ronald Reosti:

None whatsoever.

They indicate that the only requirement for the 5% in Cook County is to test the fact that the candidate has a modicum — they put it as some community support.

I assume that they mean a significant modicum of community support.

Certainly, if a candidate on a statewide level with 25,000 supporters has a significant modicum of support, the interest must be the same then a candidate in Cook County or Chicago with 25,000 supporters must in the terms of Illinois’ —

Byron R. White:

But you don’t understand this — you don’t under —

Ronald Reosti:

— history.

Byron R. White:

— you don’t understand the state ever do have said anymore than that.

Ronald Reosti:

They — I do not understand them to have ever said any more than that.

Byron R. White:

In fact the record —

William H. Rehnquist:

Maybe an independent candidate in Cook County just needs a lot bigger base of support than a statewide candidate.

Ronald Reosti:

He may need a lot bigger base of support to win but it doesn’t need a bigger base of support to become a legitimate candidate.

A legitimate candidate is a legitimate candidate in the context of Illinois.

The difference between this case and Jenness is that the Court did not have before it a state fashioned alternative as it does here.

The fact of the matter is Illinois and it says, this is the test that we’re going to apply on a statewide basis to determine, who’s a serious not frivolous candidate?

William H. Rehnquist:

Could a state say that in a large county we have the hypothetically two well-established political machines of the regular parties and an independent just doesn’t have much of a chance there and so we’re going to require more for him run in that particular county or city than we would statewide where he — independent has a much larger base to draw on statewide.

Ronald Reosti:

Well, —

William H. Rehnquist:

It maybe a rather cynical approach but could a state say that for constitutional purposes?

Ronald Reosti:

I don’t think so because it is cynical.

And I think basically that when a state puts forth the reason for burdening the very important fundamental rights which are at issue that that interest than they puts forth has to be as — has to not be cynical, has to be as real and concrete and related to its legitimate interest as the burden that it’s putting on those rights.

William H. Rehnquist:

But those could be both cynical and real.

Ronald Reosti:

Well, I don’t see any relationship between any of the interest that this Court has indicated, our legitimate state interest which justified burdening the fundamental rights at issue here.

And the interest of ensuring that someone is going to get on the ballot that they’re going to win which I take it is the essence of that argument.

John Paul Stevens:

Mr. Reosti.

Ronald Reosti:

I don’t think the Court has ever gone that far.

John Paul Stevens:

Mr. Reosti, if I may ask a background question, when did this discrepancy in the statute arise?

How long was this statute read this way, do you know?

Ronald Reosti:

It’s read this way since 1931.

By the way, it should be noted that the state has twice in recent years had a chance to amend the statute and do something about the 25,000 signature requirement.

In each of the case, —

John Paul Stevens:

And that you should (Voice Overlap) —

Ronald Reosti:

— they’ve kept it, they’ve kept the 25,000.

John Paul Stevens:

It’s also rather interesting that now I’m seeing this appendix D again, the Governor of Illinois and the Attorney General of Illinois took the position the statute was unconstitutional (Voice Overlap) —

Ronald Reosti:

That’s correct.

John Paul Stevens:

— didn’t they?

Ronald Reosti:

That’s correct.

John Paul Stevens:

My Brother remarked of.

Ronald Reosti:

Yes, sir.

Ronald Reosti:

Well, if there aren’t any questions, thank you.

Warren E. Burger:

Very well.

Do you have anything further Mr. Levinson?

Michael L. Levinson:

Yes, Mr. Chief Justice.

With regard to the 5% signature requirement, it’s not solely directed at Cook County.

It is applicable at all 102 counties in the state in excess of 1200 municipalities, 8000 townships.

So it’s not solely directed to the City of Chicago or the County of Cook.

William H. Rehnquist:

But to resolve the statute is that in Cook County, you need more signatures to run as a countywide candidate than you do to run in the State of Illinois as a statewide candidate.

Now, how does the state justify that?

Michael L. Levinson:

If — I suggest that some historical staging is necessary in terms of a justification.

The approach taken by the general assembly with regard to statewide candidates was somewhat different with regard to any and all other candidates, local, township, county and so forth.

It was both based on geographic considerations as well as signatures.

There was a requirement of 200 voters from at least 50 counties plus 25,000 signatures.

This Court in Moore versus Ogilvie on the basis of the one man, one vote struck down the 200 voters requirement.

Statute was amended and it provided that not more than 13,000 signatures may come from any one county to be counted towards the 25,000 signatures.

In the case of Communist Party of Illinois versus State Board of Elections, the Seventh Circuit Court of Appeals again on the basis of one man, one vote struck down the 13,000 signature requirement.

Therefore the 25,000 signatures is just a vestigial remnant of a plan which was based on geographic plus signature requirements, a totally different scheme than the 5% which was uniform, applicable to all municipalities, townships and counties.

William H. Rehnquist:

You say if the Courts had simply let the legislative plan alone from the beginning it would be a lot more rational than it is now?

Michael L. Levinson:

Well, I believe Justice — Mr. Justice — oh, I better not guess.

There was one justice who dissented in Moore versus Ogilvie claiming that there was a rational basis for a geographic distribution and there was conflict of constitutional principles.

That was one of the justices of this Court.

We are only suggesting that the appellees are urging in this Court that a new classification be created, that in populous areas, less than 5% signatures be required but in rural areas, 5% be required. So they are in fact urging a new classification if in fact 25,000 become superimposed as a sealing because then you only need two or 3%.

Byron R. White:

Well, do — you think you just have to go about it in by percentages?

Michael L. Levinson:

Yes, I think if the general assembly had struck 25,000 and made 5% the minimum signature requirement for statewide candidates, we wouldn’t be here today based Jenness, based on the recent decisions of this Court.

Byron R. White:

I know but the state has and it said 25,000 is enough for statewide.

Michael L. Levinson:

That’s right.

Byron R. White:

And now why isn’t that enough in Cook County?

Michael L. Levinson:

Because in all other areas —

Byron R. White:

What justification do you have for the distinction?

Michael L. Levinson:

I have no justification other than there were two different legislative schemes.

Michael L. Levinson:

One based on geographic support and signature requirement and for all —

Byron R. White:

And a percentage.

Michael L. Levinson:

And a percentage.

Well, no percentage statewide.

For all other —

Byron R. White:

Yes.

Michael L. Levinson:

— units to local government, and townships and counties, it was 5%.

Two separate schemes to court action, the one man, one vote principle has eroded away the bulk of the (Voice Overlap) —

Byron R. White:

How long was the 5% requirement been?

Michael L. Levinson:

It’s been there a number of years.

It’s been a number of years, I think.

Byron R. White:

What was the 1931 date that someone mentioned?

Michael L. Levinson:

That was the 25,000 signature requirement.

Byron R. White:

And — and has the 5% been as —

Michael L. Levinson:

Almost as long, yes sir?

Thurgood Marshall:

Well, Mr. Levinson (Voice Overlap) —

Byron R. White:

What would have been — what would have been — how many signatures would the 5% have amounted to in 1931?

Michael L. Levinson:

I don’t have those figures.

I’m sorry sir.

Byron R. White:

It might have been less —

Michael L. Levinson:

Yes.

Byron R. White:

— than 25.

Michael L. Levinson:

It might have been.

Yes, sir.

Yes, Mr. Justice.

Thurgood Marshall:

Now my question was that the — all this time, the legislature has been meeting they could change it.

Michael L. Levinson:

They could’ve changed and they could’ve increased it.

Thurgood Marshall:

They could have prevented us from destroying it all, did they?

Michael L. Levinson:

That’s true.

I have only one short point to add.

Michael L. Levinson:

With regard to the facts of this case, the signature requirements in Jackson v. Ogilvie were 60,000.

In this instant case, there were 36,000.

There was a restriction on signers of petitions of independent and new political parties that they must not have voted in the previous primary.

Section 10-4 of the Election Code was amended and there was no longer a restriction.

The facts are much more favorable to the state in the context of this case than Jackson v. Ogilvie.

And as a con —

Byron R. White:

What was your position in Jackson v. Ogilvie?

Michael L. Levinson:

We were not created.

There was no State Board of Elections.

Byron R. White:

But what — did the state take a position?

Michael L. Levinson:

Yes.

They argued against the constitutionality of the Act and this Court did not accept that argument.

There was no fact finding done by the lower court.

We were denied a hearing in violation of Rule 65.

Questions have been propounded by this Honorable Court as what has been the history.

How may candidates have been allowed on?

A new political party candidates and independents in certain statements had been made.

I would ask that this Court treat those statements with caution.

They are outside the record and what we requested, never received was a hearing wherein the plaintiffs would have been required to put on a case to show that they couldn’t have met the signature requirements and what the history was and to our knowledge, a minor political parties have gained access to the Chicago ballot as well as independent candidates in the past.

Warren E. Burger:

But you’re telling us that no hardship was shown then.

Michael L. Levinson:

Exactly.

Warren E. Burger:

No basis for any conclusion on that.

Michael L. Levinson:

Right.

The burden was shifted Mr. Chief Justice that the state board approved its case when the plaintiffs never had approved their case whatsoever in terms of showing any restrictions, in terms of the time period.

The environment had significantly changed since Jackson v. Ogilvie and we believe in favor of the appellees.

And unless there are questions from the Court, I’d like to thank you.

Potter Stewart:

Incidentally, I was a dissenter in Moore against Ogilvie, I —

Michael L. Levinson:

Yes, I wanted to use your dissent.

Okay, you felt that there was a rational distinction.

Potter Stewart:

Mr. Justice Harlan was showing me —

Michael L. Levinson:

Yes.

Thank you sir.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.