NORMAN v. REED
Legal provision: Association
IN THE SUPREME COURT OF THE UNITED STATES
BARBARA J. NORMAN, ET AL., Petitioners v. DOROTHY REED, ET AL., and COOK COUNTY OFFICERS ELECTORAL BOARD, ET AL., Petitioners v. DOROTHY REED, ET AL.
Nos. 90-1126, 90-1435
October 7, 1991
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 1:55 p.m.
ROBERT E. PINCHAM, JR. ESQ., Chicago, Illinois; on behalf of the Petitioners Barbara Norman, et al.
KENNETH L. GILLIS, ESQ., First Assistant State's Attorney, Chicago, Illinois; on behalf of the Petitioners Cook County Electoral Board, et al.
GREGORY A. ADAMSKI, ESQ., Chicago, Illinois; on behalf of the Respondent.
CHIEF JUSTICE REHNQUIST: We will hear argument next in No. 90-1126, Barbara Norman v. Dorothy Reed, and 90-1435, Cook County Officers Electoral Board v. Dorothy Reed.
Mr. Pincham, you may proceed.
ORAL ARGUMENT OF ROBERT E. PINCHAM ON BEHALF OF THE PETITIONERS BARBARA J. NORMAN, ET AL.
MR. PINCHAM: Mr. Chief Justice, may it please the Court:
We are here today because the Democratic Party, partisan politics, continues to permeate the Illinois judiciary up to and including the Illinois Supreme Court.
The October 12, 1990, order of the Illinois Supreme Court completely disregarded this Court's precedent in Illinois State Board of Elections v. Socialist Workers Party and Moore v. Ogilvie. More importantly, not only did it disregard the precedent previously set by this Court, but it was a flagrant and blatant attempt to limit political opposition to the existing Democratic Party machine.
I hasten to point out to this Court that the Harold Washington Party is now the second largest political party in the city of Chicago and of the municipality of Chicago. It regularly out-polls the Republican Party, for example, and today offers the only viable alternative to the Democratic Party in the city of Chicago.
QUESTION: Mr. Pincham, is it the same party? I mean that's one of the controversies here.
MR. PINCHAM: Indeed it is, Your Honor. I hasten to point out to Your Honor that the Illinois legislature has promulgated no statute or regulation controlling the expansion of an established political party from one jurisdiction or one subdivision of the State into the next. The striking of the entire Harold Washington Party from the ballot was a judicially contrived remedy by the four Democratic Party justices of the Illinois Supreme Court, and indeed, contradicted the rule of law as previously set forth by that court in Anderson v. Schneider.
QUESTION: How do -- how do we know that it was the same party?
MR. PINCHAM: The record is --
QUESTION: All the record says, if I recollect it, is that the city Harold Washington Party had no objection to the use of the name.
MR. PINCHAM: Actually it went further than that, Your Honor. The leader of the city Harold Washington Party and the founder of that party appeared before the county officers electoral board, and went even further and said not only is it the same party, I give my permission to expand this party outside of the municipality of Chicago and into suburban Cook County. The record is clear on that point.
Moreover, and I hasten to point out to Your Honor, that there is no competing group here saying no, this isn't the Harold Washington Party, we are. There is but one Harold Washington Party, and references to the contrary by opposing counsel are simply misrepresentations of the fact. There is but one Harold Washington Party, and it now seeks to expand beyond the city limits of Chicago and into Cook County.
The question then becomes --
QUESTION: Was that evident to those who had to make the initial judgment --
MR. PINCHAM: Yes, Your Honor.
QUESTION: -- as to whether the party had the proper number of signatures? I mean, in retrospect, maybe we can say, well it is one in the same. But was that evident to those that had to make the judgment?
MR. PINCHAM: Yes, indeed it was.
QUESTION: From what?
MR. PINCHAM: From the testimony of Mr. Timothy Evans and from the affidavits that were submitted to the Cook County Officers Electoral Board. And they, in fact, so found in their opinion.
QUESTION: You're talking about testimony before the election board.
MR. PINCHAM: Before the Cook County Officers Election Board, that is correct. That testimony was given.
QUESTION: Where is that?
MR. PINCHAM: Where in the record before you?
QUESTION: Yes. And you don't have to give it right away, but before you're done, if you could refer me to that part of the record, I'd be --
MR. PINCHAM: Certainly, I'd be more than happy to, Your Honor.
QUESTION: What did the supreme court of your State say about this matter, about the party?
MR. PINCHAM: Frankly, Your Honor, that's one of the reason's we're here. They said nothing. They simply entered an order striking the Harold Washington Party from the ballot, and in that order stated that they would write an opinion in the near future. That opinion has never been written. We don't know why that opinion was never written. I point out to Your Honor --
QUESTION: Well, so you don't know why they struck the Harold Washington Party?
MR. PINCHAM: We know the reasons that the dissenters gave for disagreeing, but the opinion analyzing the reasons for striking the Harold Washington Party were not fully set forth in an opinion. What the -- four Democratic Party judges of the Illinois Supreme Court in effect ruled is that, contrary to the prior precedent of this Court, this political party much have, not 25,000 petition signatures, but 50,000 signatures, and that those 50,000 signatures must be divided geographically 25,000 from the city of Chicago, and 25,000 from suburban Cook County outside the city of Chicago.
I point out to Your Honor that the total number of signatures required statewide for the entire State of Illinois is only 25,000 signatures. Thus, the ruling of the Illinois Supreme Court would not only require twice the number of signatures, but would require those signatures be obtained from a smaller portion of the State than, of course, the entire State itself.
So in ruling that --
QUESTION: So you think they couldn't write the opinion, that's why they never wrote it. It would not write itself, you think.
MR. PINCHAM: I think that the -- to be perfectly candid and frank with Your Honor, I think that the opinion would have been an embarrassment to the justices of the Illinois Supreme Court.
QUESTION: Well, the court also changed, though, didn't they? I mean, there were new justices so --
MR. PINCHAM: Yes, Your Honor, but it did not change between the date that Justice Stevens issued the initial stay or the date upon which the full Court issued the stay and December 6. The court had 2 months within which to write that opinion. And of course, that opinion was not written. Moreover, had the court acted in good faith, or intended to act in good faith, it could have asked this Court, for example, to stay its proceedings and to give it an opportunity to write its opinion so that this Court would have the benefit of the analysis of the four Democratic Party justices of the Illinois Supreme Court. But that, too, was not done.
More importantly, or perhaps equally importantly, the Illinois Supreme Court did not distinguish its own prior opinion in Anderson v. Schneider. We are, of course, sensitive to the precarious and perhaps irreconcilable dilemma of co-petitioner Cook County Officers Electoral Board. They find themselves in the untenable position of trying to reconcile self-contradictory language of the statute.
First, the statute provides that the entire petition shall contain not more than 25,000 signatures as the minimum requirement. Elsewhere, in the same section of the statute, Section 10-2, it provides that each component of the petition shall provide 25,000 --
QUESTION: So I take it your principal argument is that the each component portion of the statute is invalid.
MR. PINCHAM: Well, as the three Republican justices of the court pointed out, that need not be reached. However, and I also point out to this --
QUESTION: Well, but is that one of your principal contentions before us?
MR. PINCHAM: That it is invalid? Absolutely. Absolutely.
QUESTION: Now, what's your best authority for that?
MR. PINCHAM: It is invalid because this Court said in the Socialist Workers Party case and in Moore v. Ogilvie, that it is unconstitutional to require a third political party to obtain more signatures on its petition, nominating petition ballots, than are required for an entire State.
QUESTION: Suppose that in your case the requirement was for a total of 25,000 signatures, roughly apportioned between the suburban and the city area, so you could have, say 40, percent of your signatures from the suburban area and 60 percent of the city. What result there?
MR. PINCHAM: That, too, would be unconstitutional --
MR. PINCHAM: -- under this Court's ruling in Moore v. Ogilvie, because then you would in effect give veto power to suburban voters as the Harold Washington Party expands from the city. Where the Harold Washington Party is strongest --
QUESTION: And that is so even if the signature requirement were in proportion to the number of registered voters in each of the districts?
MR. PINCHAM: No. That, perhaps would correct that constitutional infirmity. But I hasten to point to Your Honor, the statute does not say that. The legislature --
QUESTION: Well, I'm trying to find out the rationale for your argument so that if we do decide to write an opinion we can.
MR. PINCHAM: I base my argument and the rationale of my argument on this Court's prior decisions in Moore v. Ogilvie and Socialist Workers Party, along with the rationale employed by the Illinois Supreme Court in Anderson v. Schneider, where, in that case, the court ruled that even if the party failed to file a full slate, for one reason or another, the remedy is not to exclude the entire party from the ballot. And that is the rationale that I urge upon this Court at this time.
We further point to this Court that in ruling on the objections, the Cook County Officers Electoral Board considered the fact that the objections themselves were not properly obtained. While the Cook County Officers Electoral Board ruled that they did not consider the manner in which they were obtained to be fraudulent, it is clear that false affidavits were submitted to the County Officers Electoral Board with those objections through the nominating petition of the Harold Washington Party. Generally, such false affidavits submitted to a tribunal will result in the objections for other document being stricken in its entirety. That was not done here.
Had that been done, of course, we would not have the problem that we're faced with today. In reviewing the statute, I would point out to Justice Kennedy that the burden of analyzing the statute has been removed from this Court. The Illinois Supreme Court, the highest tribunal of the State of Illinois, has interpreted that State statute in a manner that is repugnant to the Constitution as previously set forth by this Court's rulings in Anderson -- I'm sorry, in Socialist Workers Party and Moore v. Ogilvie.
So as we stand here today, Your Honor, we urge upon this Court to enforce its own prior decision over the Illinois Supreme Court, which did not deem fit to bless us with its opinion before the justices changed, nor have they taken any effort subsequent to that change to rehear the case and to provide us with an opinion.
QUESTION: Mr. Pincham, can I ask you this question? There are really two different issues, as I understand, well, putting aside the name problem for a minute, just the 50,000 vote requirement. The 50,000 vote requirement applies to the commissioners who are elected from the suburbs and to the officers like State's Attorney who ran county wide. They had to have 50. But you also challenge, as I understand -- under the Illinois Supreme Court's holding -- under the Illinois Supreme --
MR. PINCHAM: The county-wide offices would only require 25,000. Those county commissioners running from the city of Chicago itself would require 25,000 and those running from suburban Cook County would require 25,000. Those running county wide could combine their signatures with either one or the other.
QUESTION: No, but the effect of the Illinois Supreme Court's decision, as I understand it, is to disqualify the entire ballot.
MR. PINCHAM: That's correct.
QUESTION: Even though those running for like State's attorney had more than 25,000.
MR. PINCHAM: Absolutely, Your Honor.
QUESTION: Because they, in effect, require 50,000 for those offices. And I understand your position on those officers and on the county commissioners running from the suburbs -- rather from the city -- from the city.
But now with respect to the county commissioners running from the county only, the suburban area, they did not get 25,000 signatures from the suburbs.
MR. PINCHAM: That is correct.
QUESTION: And you nevertheless contend they are entitled to be on the ballot, too. This is a point in which you differ with the election board.
MR. PINCHAM: That is exactly correct, Your Honor.
QUESTION: And I don't think you've explained why the Socialist Party case supports you with respect to those candidates.
MR. PINCHAM: The ruling of this Court was that, as we understand it and we have read it and as it has set forth by other courts, including the Seventh Circuit Court of Appeals, is that the total number of signatures, the total number for the entire petition, is 25,000. It has never been suggested, and in fact, the same section of the statute that provides for each component to have 25,000, also says that the entire petition shall not be -- shall not be required to exceed 25,000. So it can't be both. The language of the statute itself is self-contradictory. And that alone would invalidate the statute.
QUESTION: We shouldn't be involved in interpreting the Illinois statue. Is there any Federal constitutional requirement that would prohibit the State of Illinois from saying that if you want to run from the suburbs of Cook County for a position on the county board representing the suburbs only, that you must get 25,000 signatures from the suburbs? What in the Federal Constitution prohibits that?
MR. PINCHAM: The brief of amicus curiae, American Civil Liberties Union, addresses that at great length. First of all, when you ask me about the constitutional requirement, the equal protection clause of the Fourteenth Amendment, the freedom of association under the First Amendment, the liberty provision of the Fourteenth Amendment all would seem to suggest that that would be unconstitutional in that it requires the Harold Washington Party to obtain more signatures from a smaller geographical unit, that is suburban Cook County, than would be required for the entire State.
We also point out the obvious that -- Chicago itself is, of course, within Cook County.
QUESTION: Is it more or the same?
QUESTION: But the statewide officers only need to get 25,000.
MR. PINCHAM: That's correct.
QUESTION: So it's the same.
MR. PINCHAM: But we're being asked to get 50,000 for county-wide office.
MR. PINCHAM: Because the Supreme Court has determined that --
QUESTION: But you're saying that -- you're in effect saying that it must be unconstitutional to divide Cook County into Chicago and the suburban area.
MR. PINCHAM: No, sir, not at all. That's not what's unconstitutional about it. What's unconstitutional is requiring the excessive number of signature petitions, in effect giving suburban voters veto power over the expansion of the Harold Washington Party.
QUESTION: We're just talking about the -- Justice Stevens is just talking about those officers running for places on the suburban.
MR. PINCHAM: He asked about those as well as the county-wide offices. Perhaps I should clarify.
QUESTION: I did originally. I said I understand your position on the county-wide officers and on the commissioner residents of Chicago who are elected.
MR. PINCHAM: Yes, sir.
QUESTION: I'm asking for further enlightenment only with respect to your argument pertaining to the county commissioners elected from the suburbs. I think that's the point in which you differ with the election board.
MR. PINCHAM: That is correct. That is correct. We don't know what that provision would provide, Your Honor, because the supreme court of our State has not addressed that adequately to give us any insight.
QUESTION: Well, if they say that you didn't get on the ballot at all because you didn't get a sufficient number of votes --
MR. PINCHAM: Signatures.
QUESTION: -- signatures in the suburban area, you got fewer than 25,000 in the suburban area.
MR. PINCHAM: That's correct.
QUESTION: Now if the State may constitutionally divide Cook County into city and suburban area, and say each area -- signatures from each area must be over 25,000, what's wrong with that?
MR. PINCHAM: Because that then requires the expansion of the party to produce 50,000 rather than the 25,000 signatures. But more -- which is the statewide requirement. So you now have a party running county wide, getting 25,000 signatures for suburban Cook County, 25,000 for the City of Chicago, which is also within Cook County, and using --
QUESTION: Does that mean that if they got 26,000 in Chicago they wouldn't need any signatures in the suburbs to run a slate in the suburbs?
MR. PINCHAM: No, not at all. Not at all. But we don't know how many to produce from the suburbs and how many to produce from the city to give us the total number of signatures of 25,000. And our State Supreme Court has not given us the insight into that question.
Thank you, Your Honor.
QUESTION: Thank you, Mr. Pincham.
Mr. Gillis, we'll hear now from you.
ORAL ARGUMENT OF KENNETH L. GILLIS ON BEHALF OF THE PETITIONERS COOK COUNTRY OFFICERS ELECTORAL BOARD, ET AL.
MR. GILLIS: Mr. Chief Justice, may it please the Court:
If I might follow up on the last question. There are two districts in Cook County, the large City of Chicago and the large suburban area. Each has over a million registered voters.
The -- after this Court's ruling in 1979 in the Socialist Workers case, Illinois put a cap of 25,000 signatures on any large district. So that's what you need in this case. In this case, the Harold Washington Party did obtain 25,000 -- in fact, 44,000 -- signatures in the city of Chicago. And these petitions had two components, the county-wide candidates at the top, and the city of Chicago candidates also on the same petition. So my client, the electoral board ruled that they had qualified to run county-wide at-large candidates as well as candidates in the city of Chicago for county commissioner.
On the other hand, and this is the one point we differ with the Harold Washington Party, the Harold Washington Party only filed 7,800 signatures in the suburban area, or about one-half of 1 percent of the million and some registered voters there are in the area. The Cook County Electoral Board held that that did not show a modicum of support, and hence did not let them on the ballot in the suburban area.
What the Illinois Supreme Court seems to have done, although they did not use these words, is to apply what's known in Illinois law as the complete slate requirement. It amounts to a rule that if any one of your candidates is off, they all go off. The Illinois Supreme Court's order stated that since there were not sufficient signatures in the suburbs, all the candidates went off.
This Court's order of last October 25th stayed that order and upheld the order of my client, the electoral board, which says if you qualify in the city, and you can show a modicum of support there, those candidates go on. And also the at-large candidates went on. It seems to me that the Illinois Supreme Court's order, and the feeling behind that, could be shown in a dissenting opinion in a 1977 Illinois case called Anderson v. Schneider. That shows the workings of the complete slate rule, or the -- at least the thoughts of some of the justices about that.
I submit that is a harsh rule and one that intends to block ballot access.
QUESTION: Mr. Gillis, is the question concerning that rule one of the ones included in the petition for certiorari?
MR. GILLIS: I believe it was. The grant of certiorari was general and I believe that it covers the complete slate requirement. It's in the last page of the appendix.
QUESTION: Now your client, which as I understand it, is the Board of Elections --
MR. GILLIS: Right. The Cook County Officers Electoral --
QUESTION: -- held or decided that the Harold Washington Party candidates did not qualify for the -- is it the Sanitary District Offices -- where the suburbs elect, and they simply represent the suburbs only.
MR. GILLIS: Well, that issue did not get by -- that was not decided by the Illinois Supreme Court, so I do not believe that issue is before the Court. But they ruled an insufficient number of signatures on those petitions.
QUESTION: Well, the Supreme Court of Illinois didn't upset that determination, did it?
MR. GILLIS: No. They were held insufficient.
QUESTION: Mr. Gillis, it may well be a harsh rule, but what is wrong with a State rule that does not require you to run on a slate? If they required you to run on slate, and then said if you -- you must run on a slate and everybody on the slate must get all the votes, then that would be, in effect, requiring more than 25,000 votes. But if they just say it's up to you, you can run on a slate or not. However, if you chose to run on a slate, everybody on that slate must be properly qualified. Why is that an unconstitutional rule?
MR. GILLIS: I think to run with a political party, to run with other persons of a like mind set and a like platform, is a political advantage. If you said that these people can just run individually, I think that puts them in an inferior position when facing other -- the established political parties that have a banner and have a number of candidates.
QUESTION: Well, that may be, but it seems to me a State can say, you know, voters are going to be misled. They think their voting for a slate when, you know, when in fact some of the people on that slate don't make it. They might have voted differently. They might have signed the petitions differently. You don't know how many people would have signed the petitions for these individuals. They signed for them as members of a slate.
MR. GILLIS: I really see no State interest in requiring a complete slate. The -- what is required --
QUESTION: That's not my hypothetical. They do not require a complete slate. They just say if you chose to go as a slate, and that's how you get your petitions signed, then, by George, every member of that slate has to be qualified, otherwise, you've misrepresented what you're doing.
MR. GILLIS: Well, one vice to that is Moore v. Ogilvie, which if you required them to get a complete slate in both the city and the county, a party could be quite popular and show a modicum of support in one district, but not in the other. If you would --
QUESTION: You're not listening to -- I am not requiring them to get a slate. You don't have to get a slate. If you want to run individually, you may. But if you run on a slate, everybody on your slate has to be qualified. Now what's wrong with that?
MR. GILLIS: I think it's -- I'm sorry, I think it violates the requirement that if a person -- party qualifies in one district that they should be on the ballot as happened in this case. And if -- that there, in this case, the petitioners chose to run under a party banner. And I think that's their right.
QUESTION: Well, isn't it true also that in this case, the petitions, at least the ones at the beginning of the appendix, for the 19 candidates, were the 19 that were elected either from Chicago or county wide. And the seven others, who were just from the suburbs, were on an entirely different petition.
MR. GILLIS: That's right. And that that was the one --
QUESTION: So there wasn't any danger of the kind of confusion.
QUESTION: Mr. Gillis, do I take it you are not here supporting the decision of the Cook County Electoral Board across the board, so to speak?
MR. GILLIS: No, I am. I am supporting.
QUESTION: You are. And you are supporting its decision to exclude the suburban candidates running for suburban offices only?
MR. GILLIS: Yes, because only 7,008 signatures were brought forth and the board found that that does not show a modicum of support. To the --
QUESTION: Would 25,000 signatures have been the required number in the suburban area for suburban candidates?
MR. GILLIS: Right. That would be about 2-1/2 percent.
QUESTION: Mr. Gillis, you know, I simply can't find in the questions presented, in either petition, a question on the whole slate question. Am I overlooking one of the questions?
MR. GILLIS: When the supreme court -- I'm sorry, I may have used a shorthand, but when the Supreme Court held that by failing to qualify in the suburbs --
QUESTION: The Illinois Supreme Court?
MR. GILLIS: The Illinois Supreme Court's order said you failed to get enough signatures in the suburbs, then you're off the ballot entirely. That is the workings of what we call in Illinois the complete slate requirement.
QUESTION: Well, that may be, but I guess what we're looking at here, as far as I know, are the questions presented in these blue petitions. And I simply fail to see a question presenting that complete slate requirement. Am I missing one?
MR. GILLIS: Well, it is wrapped up in the issue about whether it's constitutionally permissible to take the complete -- to take the Harold Washington Party off the ballot. That's how it's phrased in the petition.
QUESTION: Which question do you say covers it?
MR. GILLIS: The first one: whether it's constitutionally impermissible to knock the Harold Washington Party off the ballot. Because it imposes conditions that there's no compelling State interest. What's at work there is the State rule that if one candidate is off, they all go off. And that's illustrated, as I said in Anderson v. Schneider.
QUESTION: Well, that would -- you were reading from your argument, not your question.
MR. GILLIS: Yes.
QUESTION: I think that's part of the confusion.
MR. GILLIS: Going to Justice Steven's point about the name, that is displayed in a transcript of August 21st at page 25, and August 24th at page 4. The Cook County Officers Electoral Board interpreted Section 10-5, one of the members said that 10-5 did not even apply to this. And they found -- the board found that there was no violation of 10-5.
I think what's implicit in that is the Court's opinion in Eu v. San Francisco, which states that political parties ought to be allowed to fashion their own business if that doesn't interfere with some compelling State interest such as the manner of running elections or things of that nature.
QUESTION: Well, what would be your position on a State law which required a complete slate within say, just the city of Chicago? Say they required -- say they had 25,000 signatures, but they were required to run a complete slate of officers?
MR. GILLIS: I don't think there's any State interest. I think that would be constitutionally impermissible. The only thing that Mr. Adamski --
QUESTION: Is it because it's not indicative of the existence of a viable party that it can field candidates for all of the ballot positions?
MR. GILLIS: I think it's discriminatory against new political parties. Established political parties don't have to do that. The Illinois Supreme Court has held in the case I've been citing, Anderson v. Schneider, that if one candidate goes off, in some instances the others go on. And I think basically there's no compelling State interest, no good reason, to knock all of the candidates off if one happens to go off or be found unqualified for the ballot.
And in this case it works a further vexatious result that these candidates brought forth 44,000 signatures and enough to qualify under Illinois law, and oops, because they did not qualify in one district, they could be off. This could go on in many jurisdictions. We just have to find one county or one State representative district where somebody doesn't qualify, and you could disqualify the whole ticket, I think that's just constitutionally impermissible.
It's another hoop to make new political parties jump through that existing political parties do not have to.
The name issue, I think the board found the name was not improper. The trial court affirmed on that issue. And I submit that the political party should be allowed to manage its own business.
If there's no other questions, I thank the Court and ask the Court to affirm the decision of the Cook County Officers Electoral Board.
QUESTION: Thank you, Mr. Gillis.
Mr. Adamski, we'll hear now from you.
ORAL ARGUMENT OF GREGORY A. ADAMSKI ON BEHALF OF THE RESPONDENTS
MR. ADAMSKI: Mr. Chief Justice, may it please the Court:
The Illinois Supreme Court said nothing about complete slate. The issue concerning the complete slate is simply this. That seven people who were on this ticket did not get enough nomination signatures. As a result of that, the nomination petition that was submitted for the formation of the new political party, that is the county-wide Harold Washington Party, was not in proper form. The fact that the Illinois Supreme Court struck it down was for that very reason.
There were three things before the Illinois Supreme Court. The first issue was the Harold Washington Party use -- the use of the Harold Washington Party name by this new political party. The second was the 25 signature requirement for each of the units. And the third was the propriety of the form -- of the petition. And on behalf of my clients, who were objectors to these petitions, the Illinois Supreme Court was correct in all three instances.
Now unfortunately, I don't know what the reasons were for their decisions, but I can read their decisions, and I believe their decisions are correct.
Concerning the name violation, the petition that was actually submitted here was a petition for a new political party. It was a petition for a new political party that was called the Harold Washington Party. Mr. Evans, in fact --
QUESTION: May I ask at that point, is that the petition at page 4 of the joint appendix?
MR. ADAMSKI: Yes, it is.
QUESTION: And the only names on that are the 19 candidates who either ran from the city or ran county wide. Is that --
MR. ADAMSKI: Yes. And then if you look at the next page, there's -- you are correct, Justice, that there were -- there are two separate petitions here. One petition is for the city and one petition is for the county.
But this is a party formation party. This is a party formation issue, Your Honor. These people were forming a party to run concerning county issues, the needs of the county, the goals of the county, the aspirations of the county. And it's not unreasonable, and it's certainly -- it certainly is not, I believe, unconstitutional that the State of Illinois requires that if you're going to run in the county, and the county has more than one political subdivision, that you have to come up with -- a modicum of support. In this instance, 25,000 signatures.
QUESTION: Maybe that's right. But just -- because I'm really a little puzzled by it. The first of the two petitions is the one that has the candidates who did get the 25,000 signatures.
MR. ADAMSKI: That's correct.
QUESTION: And the second is the group that go the 7,800 or whatever it is.
MR. ADAMSKI: That's correct.
QUESTION: Now, were they two separate petitions, or are they two parts of the same petition?
MR. ADAMSKI: They were submitted as part of the same petition, I believe.
QUESTION: I see. And so that you're saying the failure to qualify in the one part should disqualify the part --
MR. ADAMSKI: That's correct. That's correct because they're running as a party. And the fact is that when you form -- the law gives special benefits the --
QUESTION: But you would not have been able to make the argument if they'd simply omitted the second part? If they had confined their petition to page 1 and left page 2 out entirely, then you would have no objection?
MR. ADAMSKI: No, I would have a different objection. And that is there is a section of the statute that says you have to put forward a complete slate of candidates for all positions -- for all offices that are to be filled. So in order for them to have complied with the electoral --
QUESTION: For all offices to be filled throughout the State or throughout the area from -- throughout the area that you're petitioning from?
MR. ADAMSKI: For that -- for the particular contest that you are petitioning to run in.
QUESTION: In the particular context on page 1 was county wide and commissioners from Chicago.
MR. ADAMSKI: But the contest included the election of commissioners from the city and from the suburbs.
QUESTION: Well, it also included running for Governor, possibly, too.
MR. ADAMSKI: It didn't. The fact is that the section of the -- I believe it's 10-5, the section of the electoral code that concerns this issue specifically says that you must put forth a complete slate. And that has been upheld in Anderson v. Schneider.
QUESTION: A complete slate for all county officers?
MR. ADAMSKI: All county officers and county commissioners. For everyone who is running in that particular political subdistrict election at that time. And the idea of that, if I may suggest this to the Court, is that you not only want to show that people that you have 25,000 voters, or a modicum of support, you not only want to show that you have that modicum of support from both areas, but you want to show that you have people in both areas who will represent both areas. And the idea here is that there are 10 --
QUESTION: And you couldn't form a new political party to elect just those members of the county commission from Chicago?
MR. ADAMSKI: That's correct. I don't believe that the Illinois electoral code gives that advantage to --
QUESTION: And that must be true or the supreme court wouldn't have ruled the way it did.
MR. ADAMSKI: Well, the supreme court could have ruled otherwise.
QUESTION: Isn't it -- The supreme court could have come down on other grounds then. The supreme court could say that because -- and I suggest to you this is what the supreme court did conclude did conclude -- that the petition was in improper form, that the entire petition was not properly presented because it did not have candidates.
QUESTION: Isn't it -- aren't their instances in Illinois where the two major parties don't put up complete slates?
MR. ADAMSKI: Yes.
QUESTION: Well then, what is the justification if the major parties aren't subject to the complete slate rule, for requiring it of a new party?
MR. ADAMSKI: Well, Your Honor, this goes to the issue that this Court has addressed in Anderson and in the other, what we'll call classification scheme, cases. The --
QUESTION: You're referring to the Supreme Court of Illinois' decision in the Anderson case?
MR. ADAMSKI: No, I'm referring to Anderson v. Celebrezzi, this Court's decision.
The fact is that there is an interest in promoting the two-party system and I believe that Monroe stands for that proposition. I believe that there's language to that effect in Socials Workers. The State has a right to set up certain restrictions in allowing new parties. Now there's a gigantic advantage, and the State of Illinois favors, in fact, party formation. There's a gigantic advantage to running as a party, because the party only has to come up with 25,000. It only has to comply with the number of votes -- signatures on the nominating ballots for the district in which it is running. If individuals ran, if you are running as an Independent, you have to come up with 25,000 each yourself.
So what the State does is, the State of Illinois makes a determination. We can run the whole spectrum of ballot access here. There can be no ballot access or you can have complete ballot access. And the State of Illinois says for new party formation it's 25,000. And the additional price that you have to pay to get that advantage is that you have to show us that you have a full slate of candidates that you -- that you can field people of common interest, common goals --
QUESTION: I think that in our cases, the talk about a two-party system as being a valid electoral goal, we were talking in terms of requiring new parties to do almost as much, or perhaps as much, as the established parties. But Illinois requires a new party to do more, apparently.
MR. ADAMSKI: Well, Your Honor, the fact is that all the States that require new parties to come up with certain -- a number of nominating petitions require those new parties to do more than a party where that for instance --
QUESTION: Well, where there's been a past track record --
MR. ADAMSKI: Right.
QUESTION: -- of support.
MR. ADAMSKI: No, that isn't what I was going to say, if I may excuse you. In the instance --
QUESTION: You don't have to excuse me, just say what you were going to say.
MR. ADAMSKI: In the instance where no one has run for an officer, in the instance where say, an office has been held by Democratic Party holders for years and years and years, and there is no Republican Party holder, there's no restriction there. And there's a restriction -- there's a greater restriction on the person who's coming into that area.
QUESTION: But supposing that there has been no republican candidate in a particular part of Chicago for many, many years. And then the Republicans want to start having a candidate there. They're not subject to this full slate requirement, are they?
MR. ADAMSKI: No, they're not because they're an established party. And that -- if it please the Court, that is the price that Illinois puts on new parties. If you're going to come in and be a new party, if you're going to take advantage of this liberal 25,000 requirement, then you simply have to have a full slate of people.
QUESTION: May I pursue that just a little. There are seven or eight offices -- I can't remember -- State's Attorney of Cook County, Assessor of Cook County, Clerk of Cook County, Sheriff of the County, Treasurer of Cook County, Superintendent of Eduction, and so forth. Supposing a party wanted to run for six of those, but not all seven or eight, whatever it is. The law would not permit them to qualify as a party unless they got 25,000 -- and what is the State interest in requiring all eight instead of just six or seven?
MR. ADAMSKI: The State interest is that the State while it encourages party formation wants to be certain that individuals -- that you put forth a full party. That you are putting forth for the voters --
QUESTION: Why doesn't that apply equally to the Republicans or the Democrats who might decide they haven't got a chance of electing the Clerk of Cook County for some reason -- maybe the incumbent is so terribly popular that they don't have to run a candidate. What is the State interest that justifies the disparate treatment?
MR. ADAMSKI: I don't know that you're correct that the Republican would not be subject to attack. I don't know -- or the Democrat, whoever it is --
QUESTION: Well, what's the State interest in making them run somebody that they know is going to lose, and they aren't going to spend any money trying to elect?
MR. ADAMSKI: Well, I -- there's no State interest in that. There's none.
I think the Court has taken in these cases -- the Court -- the language of the Court is that there is no litmus paper test. And the Court has looked in a fact-intensive basis into each one of these cases to see where the burdens are. Now the State's interest, and Mr. Justice White in the Monroe case specifically said and noted that this Court has never made a particularized review -- required a particularized proof from a State as to the needs, as to the State's interest in regulations, so long as those regulations are reasonable. And so the Court has to look on a factual basis, in effect, as to the reasonableness of these.
Now the requirement of 25,000 -- we've thrown that around, but in fact the requirement is a percentage requirement. It is the percentage requirement of 5 percent maxed out under the Socialist Workers case at 25,000. There is no evidence in this record, no evidence in this record whatsoever, that unduly burdened these people.
These people simply came in, they put their ballot -- they put their nominee -- nomination petitions in and made no effort or record that they had a difficulty to expand. Essentially what they're telling you here, what they're asking you to do is because they didn't comply with the law, they want you to strike the law down so they can run anywhere they want.
Now the State has an interest, and I think all the parties agree, the State has an interest in regulating these elections, and there's no, I suggest to the Court, there's no --
QUESTION: What -- I gather that though in this case because the suburban -- the party, new party didn't get enough signatures in the suburban area and they got plenty in the city.
MR. ADAMSKI: That's correct.
QUESTION: But nevertheless the new party couldn't run in either the city or the county.
MR. ADAMSKI: For the county positions. That's correct.
QUESTION: Yeah, for the county positions.
MR. ADAMSKI: That's correct.
QUESTION: In effect, then, the people who are running for county commissioners from Chicago, even though they had more than 25,000 votes -- or signatures, were off the ballot.
MR. ADAMSKI: That's correct.
QUESTION: Because there weren't 50,000 in the whole county.
MR. ADAMSKI: That's correct.
QUESTION: Why is -- why doesn't that violate our cases?
MR. ADAMSKI: Your Honor, the cases say that the State has a right to put restrictions on to show that a particular party has a modicum of support. These people were saying -- these people were representing to the public, and to their competitors in the other parties, that they were a party that had county-wide interests. They didn't. They didn't have --
QUESTION: But our cases also say that you can't require more support for a subdivision of the State than you require for the whole State. And the whole State you only require 25,000, whereas for Cook County you require 50,000.
MR. ADAMSKI: Unless --
QUESTION: How do you figure that?
MR. ADAMSKI: The case -- I think you're referring to the Socialist Workers case in particular, that case says unless there's a good reason. Socialist Workers was a situation, Your Honor, where because of this Court's decision in Moore, the City of Chicago had requirements for ballots, ballot nominations, three times greater than the State of Illinois. And this Court struck that down and in effect amended -- our legislature did it, but in effect amended the State law to say 25,000 was the cap. But in that very case, that 25,000 that this Court was talking about was the 25,000 from Chicago.
And this Court recognizes, Justice Stevens recognized in his footnote 3 of that opinion, that the 25,000 requirement was a requirement for all political subcomponents. Our law in Illinois requires if -- let's take for example one of our counties is called Sangamon County. It's in Springfield, Illinois. If these people wanted to go to Sangamon County, they'd have to -- and they wanted to form their new party there -- there's nothing in our law that stops them from doing that -- they'd have to come up with 5 percent of the people in Sangamon County.
If they're going to go around and form parties in every city and every county in the State, they're going -- I'm saying this to you, Your Honor, because I want you to understand we're talking about a lot more than 50,000 here. The fact is that before they get to go into those areas --
QUESTION: I understand, but Cook County is just one county. Sangamon and Cook County are two counties, and that's 50,000, and that's fine. 25,000 in each county. Cook county is just one county.
MR. ADAMSKI: Cook County has 900 -- 650,000 registered voters in the last election. The City of Chicago has 850,000. When you're looking -- let's take this first on the idea of reasonableness. When you're looking at the reasonableness of this, this is a drop in the bucket, I suggest to you.
When you're talking next about why have the difference, the difference is based upon this Court's discipline in all of its cases that says that the State has a right to demand that someone has a modicum of support. These people should not have the right, under our State law and under good representative participatory government and democracy, they should not have the right to simply go into any area they want and run their party, unless they have people there who are going to support them. And the 5 percent rule, I suggest to you is not unreasonable and does not unduly burden them.
QUESTION: It's only unreasonable when you require more from the county than you would to have for somebody to run statewide. I mean, yes, they are big numbers you gave me for the number of voters in Cook County and in the city of Chicago, which is part of Cook County, for the purposes of the breakout in counties, right? This is one county we're talking about.
MR. ADAMSKI: But the city of Chicago is a completely separate political subdistrict under the Illinois Electoral Board.
QUESTION: Of the county.
MR. ADAMSKI: Of the State. Of the State.
QUESTION: I take it you're really not arguing that they struck this whole -- that they disqualified the candidates from Chicago as well as from suburbia because they didn't get 50,000 votes?
MR. ADAMSKI: You wouldn't permit the people from Chicago who got their 25,000 votes to run in the election because the suburbanites didn't get enough votes.
MR. ADAMSKI: That's correct.
QUESTION: So you're really saying they were -- the Chicago people were disqualified because of the full slate rule.
MR. ADAMSKI: Well, I don't know --
QUESTION: Isn't that right?
MR. ADAMSKI: I don't know about a full slate rule. I know that the petition wasn't in proper form.
QUESTION: Why wouldn't you let the county people who got 25,000 -- the Chicago people who got 25,000 votes run on the ballot? Why couldn't they get on the ballot? Why?
MR. ADAMSKI: Your Honor, well, because that's not what the rules provide. If they want to run as independents, then each of them has to get 25,000 --
QUESTION: No, they want to run under the party name.
MR. ADAMSKI: But the party they put forward, and this goes back, I guess to what Justice Stevens was pointing out, the party that they ran for was a party that had more people in it than they had support from. And that made their petition infirm. It made their petition improper. It made their petition invalid.
QUESTION: Yeah, but it's because the party just didn't have candidates from suburbia that had enough votes.
MR. ADAMSKI: That's exactly why.
QUESTION: All right. And therefore, you disqualified the Chicago people as well.
MR. ADAMSKI: The Chicago people were running -- this is a county election, Your Honor. The Chicago people were running in a county election for county positions.
MR. ADAMSKI: And there's good reasons why you shouldn't let that happen. You shouldn't allow the city people -- in this instance, you shouldn't allow the city people to attempt to take over county positions without having support throughout the county. That seems to me to be axiomatic.
QUESTION: Yes, but you don't really mean that because on the position for State's Attorney or County Clerk, for example, you would accept 25,000 signatures all from Hyde Park or one tiny area in Chicago that would qualify them to run for State's Attorney, if they filed the right form.
MR. ADAMSKI: If they were a party?
MR. ADAMSKI: No. No, I don't agree with that. They were --
QUESTION: Even if they ran a full slate?
MR. ADAMSKI: If they ran a full slate --
QUESTION: But the people running for the offices I'm describing, all of the signatures came from a tiny area within the city of Chicago.
MR. ADAMSKI: Right.
QUESTION: Those petitions would still be good. Assuming --
MR. ADAMSKI: I agree with that. Yes, I do agree.
QUESTION: So that a candidate for a county-wide office does not have to have any support at all outside the city of Chicago to get on the ballot.
MR. ADAMSKI: So long as the candidate for county --
QUESTION: So long as the slate is -- you know, a complete slate.
MR. ADAMSKI: Yes. Yes.
QUESTION: So people in the city of Chicago do vote, say, for Treasurer of Cook County.
MR. ADAMSKI: Yes, Your Honor. The --
QUESTION: Well, excuse me. And the Board of County Commissions, they are county commissioners of Cook County.
MR. ADAMSKI: That's correct.
QUESTION: And some of them are elected from the city of Chicago.
MR. ADAMSKI: 10 of them are.
MR. ADAMSKI: That's correct.
QUESTION: So how is that a separate political sub -- I mean, I don't understand what you mean by a separate political subdivision if you have a Board of County Commissioners that governs both the county and the City of Chicago.
MR. ADAMSKI: For purposes of the county board elections, the statute -- and this is not just in Chicago, this is in any county that has a similar county board -- the statutes provide that if you have -- if you're running for more than one component, then you have to show a modicum of support from both components.
An example might be for the -- I'm not sure if this is accurate -- I'll give this example to the Court and tell you that I think it is, but the State Senate positions run for more than one county. You have to show a modicum of support from the various places that you run from that is outside the City of Chicago, in the southern areas of the State, the central areas of the State, and western areas of the State. So I don't think that that's unreasonable.
This is a county position and you need to show county support if you want to take advantage of the ameliorative party formation laws in the State of Illinois. If you want to run -- if a group of individuals want to run as a group of individuals, then each of them has to go and get that number of votes, 25,000 or 5 percent. But if they want to run together as a group and take advantage of this, this law, then they have to get the support from every component that there is.
The other point that I wanted to make about the factual basis here is that I said first that there's no reason to believe that the 25,000 requirement burdens anyone. There's no evidence to that effect before the Court.
Likewise, there's no evidence to the effect that the filing of a proper form burdens anyone. They simply didn't do that.
The Harold Washington Party is alive and well in Chicago. It has run in two city elections in the last 2 years and has done very well for itself.
The brief that I filed points out, and I don't think I need to go into much detail on this, that if they want to expand, the mechanisms are there for them to expand. They simply, in this case, did not follow those mechanisms. And I suggest to the court that there is nothing unreasonable about a requirement, the two requirements -- that you file a proper form and the requirement that you file 25,000 signatures from each unit to get to -- take advantage of the new party laws in Illinois.
QUESTION: Mr. Adamski, you don't contest that the Harold Washington Party is the Harold Washington Party, do you?
MR. ADAMSKI: I do.
QUESTION: You do.
MR. ADAMSKI: Yes, Your Honor, yes. It's not. It's not.
QUESTION: It's not.
MR. ADAMSKI: This Harold Washington Party is Mr. Pincham's Harold Washington Party. Mr. Evans ran in a special election against Mayor Daly in 1989, I believe, and he formed the Harold Washington Party for the City of Chicago. He never appointed any committeemen, he never held any caucuses, he never held any -- he had no primaries, nothing.
In August of 1990, Mr. Pincham came in with petitions at this time and at the time he ran on the Harold Washington Party -- Mr. Evans, by the way, was a functionary of the Democratic Party, he held an office in the Democratic Party of Cook County -- Mr. Pincham came in and filed these document. And the documents say that it's a new political party. The documents say that.
Now, at the hearing before the board, the electoral board, Mr. Evans testified that he had authorized it. Well, the law doesn't give Mr. Evans the right to authorize it. The law -- once parties are formed, parties are very serious matters, and once they are formed they are regulated by law. They had to hold a convention, they had to hold a caucus, they had to hold a primary. Mr. Evans only had authority to point interim committeemen under Section 10-2 of the Electoral Code, I believe.
QUESTION: I take it you are saying a political party is either a new one or an old one, and this was a new -- this had to be a new party.
MR. ADAMSKI: This is a party formation case.
QUESTION: It was said -- and then they said it was new when they filed their petition.
MR. ADAMSKI: No, they've taken the position -- they said it was new, yes.
QUESTION: Well, I mean -- they wanted to file a new -- for a new party.
MR. ADAMSKI: Since then they've taken the position that all they were really doing was expanding.
Be that as it may --
QUESTION: Oh, no wait. Could they have come into Cook County and said we are an old party?
MR. ADAMSKI: I believe they could have, yes. I believe that they could have filed nominating petitions for the formation of the Harold Washington Party in Cook County, yes.
QUESTION: I thought that you're a new party if you are new in the elective unit that the election pertains to. They were -- they had to --
MR. ADAMSKI: They are new.
QUESTION: Well, okay. That's why they said they were a new party. Of course they were a new party in Cook County, in suburban Cook County.
MR. ADAMSKI: The were a new party. They were a new party.
QUESTION: Before you were criticizing them for being a new party, now you say yeah, of course, they were a new party. Well which is it?
MR. ADAMSKI: They were Mr. Pincham -- I've taken a -- maybe I just --
QUESTION: Even if Evans -- even if Alderman Evans had come in, he would have been a new party under your view.
MR. ADAMSKI: Yes.
QUESTION: Because the old party was just formed for the city of Chicago.
MR. ADAMSKI: Right. That's correct.
QUESTION: And you're now talking about a new political unit.
MR. ADAMSKI: That's correct.
QUESTION: So there had to be a new party.
MR. ADAMSKI: That's correct. That's exactly right.
QUESTION: So the distinction isn't between the Evans Harold Washington Party and the Pincham Harold Washington Party. It's the distinction between the Chicago Harold Washington Party and anything else.
MR. ADAMSKI: That's correct.
QUESTION: Now, what evidence is there that -- did the Supreme Court of Illinois say that this party was not qualified to use the Harold Washington name?
MR. ADAMSKI: Yes.
QUESTION: It didn't say why, but it said that.
MR. ADAMSKI: Yes. It did not say why.
QUESTION: And you would say because it was a new party and a new party can't use the same name as an old party.
MR. ADAMSKI: It can use somebody else's name. The party continuity issue there is a different issue. You can't -- they can't come forward and say we're going to use somebody else's name when the name's already been -- in use. They can't do that.
QUESTION: Well, they're forming a new party and they want to use an old party's name. Can they do that?
MR. ADAMSKI: No.
QUESTION: And is that basis for the Supreme Court of Illinois judgment?
MR. ADAMSKI: I'd like to think so.
QUESTION: Now, wait a minute. Of course a new party can use an old party's name.
MR. ADAMSKI: If it has the permission of the old party.
QUESTION: It depends on what you mean by a new party. A new party in the political unit, in the sense that it's new to that political unit, can use the name of an old party from another political unit. You mean a party cannot expand in your State?
MR. ADAMSKI: A party can expand, but it has to be the same party. They weren't the same party. This was a brand new political party.
QUESTION: Oh, you're saying that it was new in that sense, that it is not the same party.
MR. ADAMSKI: If there's no more questions, I would --
QUESTION: Weren't there findings against you on that? Didn't the board simply find that it was the same party?
MR. ADAMSKI: Yes. The board found that it was the same party. The circuit court, which reviewed it de novo, essentially affirmed the board. I don't think that circuit court made any findings on that issue, but it essentially affirmed the board.
I would ask that the Court affirm the decision of the Illinois Supreme Court. And I thank you.
CHIEF JUSTICE REHNQUIST: Thank you, Mr. Adamski.
The case is submitted.
(Whereupon, at 2:48 p.m., the case in the above-entitled matter was submitted.)
Argument of Speaker
Mr. Speaker: The opinion of the Court in No. 90-1126, Norman versus Reed and a companion case will be announced by Justice Souter.
Argument of Justice Souter
Mr. Souter: This case comes to us on writ of certiorari to the Supreme Court of Illinois to review constitutional challenges to the Illinois law setting requirements replacing the names of candidates of the new political party on the voting ballot.
The Harold Washington Party has been an established political party in the City of Chicago since 1989.
In 1990, the petitioners in this action tried to expand the party to Cook County by preparing a list of candidates in November 1990 county elections and gathering nominating signatures from thousands of county residents.
The support, however, was geographically uneven, they collected many more signatures from the urban district of Cook County then from the County's suburban district.
The Supreme Court of Illinois denied petitioners' access to the Cook County ballot on two state law grounds.
First, it ruled that petitioners could not organize under the name Harold Washington Party in Cook County because there already was an established party by that designation in the City of Chicago.
Second, the court held that petitioners' failure to gather 25,000 nominating signatures from the suburban district of Cook County has qualified their candidates for all county officers, not just those representing the suburban district.
We state the mandate of the State Supreme Court and permitted petitioners to fill rather Harold Washington Party candidates for all Cook County offices except those representing the suburban district.
We then granted certiorari to determine whether their candidates were entitled to the places on the ballot that a state order effectively gave them.
Although we affirm the portion of the State Supreme Court's decision denying petitioners the right to fill candidates for the suburban district offices, we reverse as to all other matters considered by the State Court and we remand for consideration of one further issue on which the State Court did not rule.
The First Amendment protects the right of citizens to create and develop new political parties.
Thus, the state must justify restrictions on access of new parties to state and local ballots.
We hold that Illinois did not have sufficient grounds for keeping candidates running under the name of the Harold Washington Party off the entire Cook County ballot.
To the extent that Illinois law would keep new party candidates in one locality from ever adapting the name of an established party in another locality would unreasonably and unconstitutionality suppress the growth of any new party that could not run a statewide campaign.
Now, the state's interest in preventing voter confusion can be served by requiring candidates to get formal permission to use the name from the established party they seek to represent.
Here, the record reveals that the Harold Washington Party established in Chicago had authorized petitioners to use the party name in Cook County.
We also hold that the state may not constitutionally require petitioners as a prerequisite to filling any candidates for county office to gather 25,000 nominating signatures from each of the County's two electoral districts.
That rule would effectively make petitioners collect 50,000 signatures to fill their stated candidates whereas, those organizing new party solely for statewide elections would need to gather only 25,000.
Illinois does not have a good reason for asking organizations of new local parties to show twice as much populous support as organizations of statewide parties.
Thus, while the Harold Washington Party's lack of suburban support justifies keeping its candidates off the ballot for suburban district offices is not a proper basis for disqualifying its candidates for other county offices.
We remand the case to the Supreme Court of Illinois to address an issue that it did not resolve earlier which was whether petitioners' failure to list candidates for judicial office in Cook County disqualifies their candidates for other county officers to what has been referred to as the state's complete slate requirement.
Justice Scalia has filed a dissenting opinion.
Justice Thomas has taken no part in the consideration and decision of the case.