AF-default



No. A16 -

IN THE SUPREME COURT OF THE UNITED STATES

DAVID M. GILL, DAWN MOZINGO, DEBRA KUNKEL,

LINDA R. GREEN, DON NECESSARY, and GREG PARSONS,

Petitioners,

v.

CHARLES W. SCHOLZ, ERNEST L. GOWEN, BETTY J. COFFRIN, CASSANDRA B. WATSON, WILLIAM M. McGUFFAGE, JOHN R. KEITH, ANDREW K. CARRUTHERS, WILLIAM J. CADIGAN, sued in their official capacity as Members of the Illinois State Board of Elections and the State Officers Electors Board, and STEVE SANDVOSS, sued in his official capacity as the Executive Director, Illinois State Board of Elections,

Respondents.

Application To Vacate Stay of District Court’s

Election-Related Preliminary Injunction

To The Honorable Elena Kagan

Associate Justice of the Supreme Court of the United States and

Circuit Justice For The Seventh Circuit

|JAMES C. LINGER |SAMUEL J. CAHNMAN |ANDREW FINKO |

|Counsellor at Law |Attorney at Law |Attorney at Law |

|1710 South Boston Avenue |915 S. Second St. |180 West Washington St. |

|Tulsa, OK 74119-4810 |Springfield, IL 62704 |Suite 400 |

|Tel (918) 585-2797 |Tel (217) 528-0200 samcahnman@ |Chicago IL 60602 |

|bostonbarristers@ | |Tel (773) 480-0616 |

|Counsel of Record | |finkolaw@fastmail.fm |

Counsel for Petitioners

Dated: September 22, 2016

Table of Contents

Application to Vacate Stay 2

Introduction 3

Statement of Jurisdiction 5

Statement of Facts 6

Argument 8

I. Respondent Board of Elections Failed to Make a Strong Showing That it Was Likely to Succeed on the Merits of its Interlocutory Appeal of the District Court's Preliminary Injunction Order. 8

II. The Respondent Board of Election Would Not Have Been Irreparably Injured Absent a Stay Pending Resolution of the Appeal. 15

III. Issuance of the Stay Pending Appeal Would and Has Substantially Injured Other Parties. 17

IV. The Public Interest Lies With The Name Of A Candidate Being On The Ballot, Who Has Shown a Large Modicum Of Support By Gathering 15 Times As Many Signatures As Are Required Of The Candidates Who Are On The Ballot. 18

Conclusion – Relief Requested 19

Certificate of Service 20

Appendix

Exh. A – Order staying preliminary injunction pending appeal (9/9/2016)

Exh. B – District Court Preliminary Injunction Order (Dkt. 15) 8/25/2016

Exh. C – Court of Appeals Order denying: en banc relief; vacatur of stay:

and motion to expedite briefing and decision (9/20/2016)

Exh. D – Affidavit of Richard Winger

Exh. E – Affidavit of Richard Winger (Supplemental)

Exh. F – Illinois House Debate Transcript, 6/24/1983

Application To Vacate Stay

Pursuant to U.S. Supreme Court Rules 21, 22 and 23, Petitioners, David M. Gill, Dawn Mozingo, Debra Kunkel, Linda R. Green, Don Necessary and Greg Parsons (herein “Petitioners”) apply to vacate the stay order the United States Court of Appeals for the Seventh Circuit entered Friday, September 9, 2016, staying enforcement of the District Court’s election related preliminary injunction order pending resolution of the Respondents’ interlocutory appeal of said injunction (“Stay Order” attached hereto as Exhibit A).

The preliminary injunction entered August 25, 2016 by the United States District Court for the Central District of Illinois, enjoined Respondents from enforcing Illinois’ 10,754 signature requirement against independent U.S. House candidate, Petitioner, David M. Gill (attached hereto as Exhibit B). It further ordered that because Petitioner Gill “has obtained 8,593 valid signatures and shown a modicum of support,” that Gill remain on the November 8, 2016 general election ballot.

The next business day after entry of the Stay Order, on Monday, September 12, 2016 Petitioners filed their Emergency Petition For Immediate Vacatur of Stay and Expedited Initial En Banc Hearing Thereon. On September 20, 2016 the Court of Appeals denied said emergency petition, and also denied Petitioners’ emergency motion to expedite the underlying appeal, so as to yield a decision on the merits prior to the November 8th election (Order attached hereto as Exhibit C).

This Application is extremely urgent because Thursday, September 29, 2016 early voting begins in Illinois, and ballots begin to be mailed to voters requesting mail in ballots.

The Seventh Circuit’s Order staying the district court’s preliminary injunction pending resolution of Respondents’ appeal, combined with their denial of the Petitioners’ very reasonable request to expedite the underlying appeal, to obtain a resolution of it prior to the election, necessarily spells the death knell of Petitioners’ case, which specifically sought injunctive relief to prevent Petitioner Gill’s removal from the November 8th ballot. In light of the fact that under the normal briefing schedule, Respondents’ reply brief will not be due until after November 8th, and oral argument will be even later, the Seventh Circuit’s stay order has the effect of being a final decision on the merits of this "interlocutory appeal," without briefing or oral argument.

The emergency relief sought here will restore the status quo ante as it existed on the day the preliminary injunction order was entered. This relief is not available from any other court. See Supreme Court Rule 23.3.

Introduction

At issue are the First and Fourteenth Amendment rights of voters and the candidate to remain on the November 8, 2016 general election ballot. The Illinois Election Code imposes wildly varying signature requirements for certification to the ballot in the 13th Congressional District of Illinois. If a candidate’s nomination papers are not challenged by a voter, the Respondents do not review signatures, and will certify a candidate with 1 or 2 or any number of signatures, or even zero signatures as has occurred, according to the record of this case (Plaintiffs’ Exhibit 3, Hearing, 8/24/16).

Established political party candidates must submit less than 740 signatures to gain a place on the ballot. During years following redistricting, independent candidates are required to submit 5,000 signatures. This election, Petitioner Gill, was required by the Respondents to submit at least 10,754 signatures of voters from a largely rural district encompassing 14 counties in central Illinois. Petitioner Gill, submitted over 11,300 signatures, but was challenged by a voter affiliated with a competing candidate. After the Respondents compared signatures and voter data to their database, the Respondents determined that Gill had 8,593 valid signatures.

Arguing that 8,593 valid signatures was a sufficient modicum of support; that no U.S. House candidate in Illinois had ever overcome a general election signature requirement of 10,754 or more; and that Respondents had no valid interest in requiring 10,754 signatures, Petitioners were successful on the merits of a preliminary injunction. On August 25, 2016, the District Court for the Central District of Illinois enjoined Respondents from enforcing the Illinois Election Code’s signature requirement against Petitioner Gill, and ordered that he remain on the ballot.

The Respondents filed their notice of appeal the next day, on August 26, 2016, which sought only review of the District Court’s granting of the preliminary injunction. In addition, Respondents that day filed their motion for stay of enforcement of the preliminary injunction pending resolution of the appeal of the preliminary injunction. On September 9, 2016, a three judge panel of the Court of Appeals granted Respondents’ motion to stay the preliminary injunction pending resolution of the appeal. By staying enforcement of the preliminary injunction, the Respondents were able to then remove Petitioner Gill’s, name from the ballot for the November 8, 2016 general election, despite the district court’s preliminary injunction directing that Petitioner Gill’s name remain on the ballot.

However, the Respondents did not file a motion for expedited appeal, and their brief would be due on October 5, 2016, with Petitioner’s brief due November 5, 2016, and Respondents’ reply fourteen days thereafter, and beyond the November 8, 2016 electtion.

Petitioners promptly sought an initial en banc hearing and vacatur of the Seventh Circuit’s stay order, and requested an expedited en banc hearing thereon due to impending election deadlines. Petitioners also moved to expedite the Respondents’ underlying appeal of the preliminary injunction, so as to yield a decision before the November 8th election so that it would not be moot if the preliminary injunction that Petitioner Gill remain on the ballot was affirmed. Petitioners acted with urgency because military, overseas and absentee ballots would be mailed on September 24, 2016, and early voting would commence on September 29, 2016, along with ballots being mailed in the United States to voters who had requested them.

The same three judge panel issued its order on September 20, 2016, which denied en banc review, denied the request for vacatur of the stay and denied Petitioners’ request for an expedited appeal with a decision on the merits before the November 8, 2016 general election.

The two decisions of the three judge panel of the Seventh Circuit – granting of the stay pending appeal, and denial of the request for expedited consideration – effectively is a decision on the merits of the appeal of the preliminary injunction decision. If a decision is not rendered before the November 8, 2016 general election, the appeal, and the preliminary injunction are both rendered moot.

If the Seventh Circuit’s stay is not lifted, Respondents will have prevailed in their appeal, without briefing or a decision on the merits. Petitioners are irreparably harmed through enforcement of the stay both because Petitioner Gill’s, name will not be printed upon the November 8, 2016 general election ballot, and further harmed because they are stripped of their due process right to submit briefs, present legal argument, and obtain a decision on the merits of Respondents’ appeal.

Petitioners have exhausted all other remedies, and respectfully request relief from this Court as their last resort.

STATEMENT OF JURISDICTION

Jurisdiction in the United States District Court for the Central District of Illinois was proper under 28 U.S.C. §§ 1331, 1343(a)(3) and 1343(a)(4). Jurisdiction of the interlocutory order of the District Court, granting the Petitioners’ request for a preliminary injunction was proper in the United States Court of Appeals for the Seventh Circuit under 28 U.S.C. § 1292(a)(1). Jurisdiction over the Stay Order of the Seventh Circuit is proper in this Court under 28 U.S.C. §§ 1254(1) and 1651.

STATEMENT OF FACTS

The facts presented in this appeal are uncontroverted. Petitioners presented their evidence through the affidavits of Petitioner Gill and Richard Winger. (Winger affidavits attached as Exhibits D and E)[1]. Winger is a recognized ballot access expert who has testified in cases before the 7th Circuit, and in over half the states. Petitioners made both witnesses available to testify at the August 24, 2016 preliminary injunction hearing, but the Respondents accepted the affidavits as direct testimony, and declined the opportunity to cross examine the witnesses. Petitioners presented no evidence. (Hearing trans. at 6-7)

The other five Petitioners besides Gill are voters of the 13th Congressional District, who wish to vote for Gill. Eight of the Respondents are members of the Illinois State Board of Elections (ISBE), which also sits as the State Officers Electoral Board to hear and decide ballot challenges. The ninth Respondent is the executive director of the ISBE.

Petitioner Gill first ran for the office of U.S. Representative for Illinois’ 13th Congressional District in 2012, receiving 136,032 votes. He had 1,002 votes, or 0.3%, less than his opponent. (Dkt. 5, p. 3-4). For the current election, Gill started collecting signatures on March 27, 2016, the first day Illinois law permitted independent candidates to commence circulating petitions. Gill collected nearly 5,000 signatures or 45% of the 11,368 signatures filed. The remaining signatures were collected by 18 circulators. (Exhibit D) The District Court called Candidate Gill’s signature gathering “a Herculean effort.” (Trans. at 18.)

Until February 1, 1984 there was no time restriction on when candidates could circulate signature petitions. In 1983 the Illinois legislature enacted Public Act 83-1055 (SB 1218), restricting signature collection to 90 days before filing, and the legislative debate shows this was enacted to limit ballot access for non-party organization and non-incumbent candidates. (IL House Debate 6/24/83, p. 93, Exhibit “B” to Dkt. 5 and attached hereto as Exhibit F)

Gill’s signature requirement was 10,754 but no U.S. House candidate had ever overcome that signature requirement in Illinois. Gill was found by a State hearing examiner to have 8,593 valid signatures. Only one U.S. House candidate in Illinois has ever overcome a signature requirement of that amount or more, and that was H. Douglas Lassiter in 1974. However, this occurred before the 90-day restriction on signature collecting was enacted. (Exhibit A at 13-14).

Only three other states have signature requirements of over 10,000 for U.S. House candidates to gain access to the general election ballot: North and South Carolina, and Georgia. However, the Carolinas have no time restriction on the signature gathering, and Georgia allows six months to gather signatures, twice as long as Illinois. (Exhibit E)

An independent candidate for the U.S. Senate in Illinois has to obtain five times more signatures than an established party candidate. (Exhibit A at 25). However, an independent candidate for the U.S. House has to obtain almost 15 times more signatures than the established party candidate. (Dkt. 1, Exhibit A). Also, the 25,000 signature requirement for independent U.S. Senate candidates is 0.694% of the last U.S. Senate vote, whereas an independent U.S. House candidate must secure the signatures of 5% of the last U.S. House vote. (Dkt. 1 at 15-16).

Illinois is the only state which allows candidates who file less than the required number of signatures on the ballot if no objector’s petition is filed against the nomination papers. (Exhibit D)

ARGUMENT

This Court has jurisdiction under 28 U.S.C. § 1254(1) and the All Writs Act, 28 U.S.C. § 1651. A “Circuit Justice has jurisdiction to vacate a stay where it appears that the rights of the parties to a case pending in the court of appeals, which case could and very likely would be reviewed here upon final disposition in the court of appeals, may be seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion that the court of appeals is demonstrably wrong in its application of accepted standards in deciding the issue of the stay.” Western Airlines, Inc. v. International Board of Teamsters, 480 U.S. 1301, 1305 (1987) (O'Connor, J., in chambers) (citation omitted). See also Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 134 S.Ct. 506 (2013) (Scalia, J., concurring).

When deciding whether to issue a stay in the first instance, the Seventh Circuit was required to consider four factors: (1) whether the Board of Elections made a strong showing that it was likely to succeed on the merits, (2) whether the Board of Elections would have been irreparably injured absent a stay, (3) whether issuance of a stay would substantially injure other parties, and (4) where the public interest might lay. See e.g., Nken v. Holder, 556 U.S. 418, 434 (2009), Hilton v. Braunskill, 481 US 770, 776-777 (1987), American Hosp. Supply Corp. v. Hospital Products Ltd., 780 F. 2d 589, 594-595 (7th Cir. 1985) and Cavel Int’l, Inc. v. Madigan, 500 F.3rd 544, 547 (7th Cir. 2007).

The first two factors, whether the Board of Elections made a strong showing that it was likely to prevail and would otherwise suffer irreparable harm, are “the most critical.” Nken,556 U.S. at 434. The motion for stay filed by Respondents with the Seventh Circuit did not meet the burden of proof ordinarily required for a stay pending appeal.

The Seventh Circuit has adopted a sliding scale approach for both issuance of preliminary injunctions and issuance of a stay by a court of appeals and although different rules of procedure govern the power of district courts and courts of appeal, “under both Rules, however, the factors regulating issuance of a stay are generally the same.” Id. at 547.

Here, the Seventh Circuit demonstrably erred both in concluding that the Respondent Board of Elections had made a strong showing that it would prevail on the merits and in concluding that the Board of Elections was threatened with irreparable harm. Regarding the latter, the District Court's preliminary injunction was entered long before ballots had to be made ready. Including Gill's name on the ballot therefore could not have threatened the Board in any way. The District Court entered its preliminary injunction August 25, 2016. The first day ballots had to be printed and mailed to uniformed and overseas voters, who had requested a ballot, was September 23 or 24, 2016, pursuant to the Uniform Overseas Citizens' Absentee Voting Act (UOCAVA). Even under that Act, the Board of Elections could have requested a waiver due to the ballot being litigated. Further, the Respondent Board of Election does not print any ballots. That is done by the local election authorities.

I. Respondent Board of Elections Failed to Make a Strong Showing That it Was Likely to Succeed on the Merits of its Interlocutory Appeal of the District Court's Preliminary Injunction Order.

The matter before the Seventh Circuit is an “interlocutory” appeal, seeking review of the district court’s order granting Petitioners’ motion for preliminary injunction. The district court’s 26 page order contained the court’s findings of fact and analysis of legal issues, before concluding that:

Defendants are ENJOINED from enforcing the Illinois Election Code's signature requirement against David M. Gill, independent candidate for U.S. Representative in the 13th Congressional District in light of the fact that he has obtained 8,593 valid signatures and shown a modicum of support. Consequently, because it appears Gill otherwise qualifies to be on the ballot, this ruling requires that Gill remain on the ballot.

(Exhibit B)

"[T]he sole purpose of such a stay [pursuant to Federal Rule of Appellate Procedure 8(a)(2)] is to preserve the status quo pending appeal so that the appellant may reap the benefit of a potentially meritorious appeal."

30 Am.Jur.2d, Executions and Enforcement of Judgments § 34 (2003).

Courts of appeal ordinarily give substantial deference to a district court's decision to grant a preliminary injunction insofar as that decision involved the discretionary acts of weighing evidence or balancing equitable factors. US v. Baxter Healthcare Corp., 901 F.2d 1401, 1407, (7th Cir. 1990), citing Lawson Products, Inc. v. Avnet, Inc., 782 F.2d 1429 (7th Cir.1986); American Hosp. Supply Corp. v. Hospital Products Ltd., 780 F.2d 589, 594-595 (7th Cir. 1985). See also: Michigan State A. Phillip Randolph Inst. v. Johnson, _ F.3d _, 2016 WL 4376429 at *3:

Under the abuse-of-discretion standard, '[t]he injunction will seldom be disturbed unless the district court relied upon clearly erroneous findings of fact, improperly applied the governing law, or used an erroneous legal standard.' citing Mascio v. Pub. Emps. Ret. Sys of Ohio, 160 F.3d 310, 312 (6th Cir. 1998).

Since the Petitioners have prevailed on their motion for preliminary injunction before the district court, the weight of the evidence, or balancing of equitable factors, has been determined by the district court in favor of the Petitioners.

In determining whether the burden on ballot access is severe the Seventh Circuit has held that:

What is ultimately important is not the absolute or relative number of signatures required but whether a ‘reasonably diligent candidate could be expected to be able to meet the requirements and gain a place on the ballot.’ Bowe v Bd. of Election Comm’rs of City of Chicago, 614 F.2d 1147, 1163 (7th Cir. 1980) (citing Storer, 415 U.S. at 742).

Stone v Bd. of Elections Comm’rs of City of Chicago, 750 F. 3d 678,682 (7th cir 2014).

In Storer the U.S. Supreme Court acknowledged that “[p]ast experience will be a helpful, if not always, an unerring guide: it will be one thing if independent candidates have qualified with some regularity and quite a different matter if they have not.” Storer v. Brown, 415 U.S. 724, 742, 94 S. Ct. 1274, 1285 (1974).

Forty years after Storer, the Stone court found that because nine candidates met the 12,500 signature requirement for mayor of Chicago, that requirement was not severe. Instantly, no candidate for U.S. House in Illinois has ever overcome a signature requirement of 10,754 or more, and historically, only one U.S. House candidate in Illinois has ever overcome a general election signature requirement greater than the 8,593 (later reduced to 8,491) valid signatures the hearing examiner found Petitioner Gill had filed. However, that was in 1974, before Illinois enacted its 90 day restriction on signature collection.

In Lee v. Keith the Seventh Circuit struck down an excessive signature requirement for independent legislative candidates because no one had overcome the requirement from 1980 to 2006. Lee v. Keith, 463 F.2d 763, 771-772 (7th Cir. 2006). If no candidate for U.S. Representative has ever overcome the signature the 10,754 signature hurdle in Illinois, a reasonably diligent candidate could not be expected meet or exceed this requirement to gain a place on the ballot.

The Supreme Court held in Burdick v. Takushi, 504 U.S. 428 (1992) that when rights protected by the First and Fourteenth Amendments are subjected to severe restrictions, such as was presented to the district court below, the regulation must be narrowly drawn to advance a State interest of compelling importance. Instantly, there is no reason and certainly no compelling reason to deny ballot access to a candidate who filed 8,593 (or 8,491) valid signatures, particularly where the ballot would contain only two other candidates from the major parties, who had to each file fewer than 740 signatures.

Because Respondents would certify any candidate’s name to the ballot, regardless of the number of signatures, where an objector’s petition is not filed, it is clear that Illinois has no interest in avoiding ballot overcrowding, or in making sure candidates have a modicum of support before being allowed on the ballot. Our Supreme Court has observed that interest in political stability ‘does not permit a State to completely insulate the two-party system from minor parties’ or independent candidates’ competition and influence” Timmons v. Twin Cities Area New Party, 520 U.S. 351,366-87 (1997).

In arguing that because the Supreme Court upheld a 5% signature requirement in Jenness v Fortson, 403 U.S. 431 (1971) the instant signature requirement is constitutional, the Respondents employed a “litmus-paper test” to separate valid from invalid ballot access restrictions that our Supreme Court rejected in Anderson v Celebreeze, 460 U.S. 780, 789 (1983). The 11th Circuit Court of Appeals recently condemned this approach in Green Party of Georgia v. Georgia, 551 Fed. Appx 982 (11th Cir. 2014).

In Green Party of Georgia, supra, the district court initially dismissed the complaint, asserting that Georgia’s 1% in 180-day signature requirement for presidential candidates was constitutional because Jenness had upheld a 5% signature requirement. Id.

The Eleventh Circuit then reversed and remanded because the district court employed the prohibited “litmus-paper test.” Id. On remand the Georgia district court determined that even a 1% requirement had such a severe impact that strict scrutiny applied, and held the 1% requirement unconstitutional because it violated the First and Fourteenth Amendments. Green Party of Georgia v. Kemp, 2106 WL 1057022, 19 (N.D.Ga. 2016). As a remedy, the district court reduced the signature requirement from 1%, which was in excess of 50,000 signatures, down to 7,500 signatures collected from anywhere in the state of Georgia within 180 days.

Applying the Jenness decision in a vacuum is inappropriate because of factual differences. For example, aside from the percentage of signatures, Georgia has fewer restrictions on signature collection than Illinois, and two candidates had overcome the signature requirement in 1966 and 1968. Jenness v. Fortson, 403 U.S. 431, 438-439 (1971). Whereas instantly no candidate has overcome the 10,754 signature requirement.

Georgia allowed six months to collect signatures, double the time Illinois allows. Further, Georgia imposed “no suffocating restrictions whatever upon the free circulation of nominating petitions” as discussed in Jenness. Id. at 438. Illinois imposes suffocating restrictions in Section 10-4 of the Election Code (10 ILCS 5/10-4) and the threat of an objection being filed to the signature petitions (10 ILCS 5/10-8). The threat of an objection effectively compounds Illinois’ restrictions because candidates would need to gather one and one-half to two times more signatures than stated under the Election Code, to insure that after review and deletion of invalid voter signatures, there remain enough “valid” voter signatures to meet the Election Code requirement. Importantly, unlike Illinois, which requires that each petition sheet must contain a circulator’s affidavit that is notarized (10 ILCS 5/10-4), in Georgia “[n]o signature on a nominating petition need be notarized.” Id.

Assuming arguendo that the 5% signature requirement was constitutional when enacted, it has become unconstitutional through legislated changes. Specifically, in 1983, the Illinois legislature restricted the signature gathering to a 90-day period, to protect incumbents. In the House debate on the Amendment that added the 90-day restriction to the bill, the sponsor in his closing argument said:

[I]t’s very clear what the Amendment is attempting to do. It’s trying to protect all of the members of the House who are down here doing the people’s business while somebody is back in your district circulating petitions, and if he has enough time, there won’t be any petitions left for you to circulate or to sign. I think it’s a good Amendment. I move for the adoption of Amendment 2 to Senate Bill 1218

IL House debate 6/24/83, p. 95. (Exhibit F)

Opponents of the 90-day restriction amendment argued it limited ballot access, was a roadblock in the way of people who wanted to run, and hurt candidates who did not have political party organizations. Id. at 93. All candidate petition gathering in Illinois is governed by the same 90 day period, whether the requirement is for 25 signatures, or 25,000 signatures.

Our Supreme Court pointed out the importance a time limit restriction has on the constitutionality of a signature requirement when it pointed out in footnote 2 in Mandel v Bradley, that it had recognized in Storer v. Brown that such a limitation, when combined with other provisions of the election law, might invalidate the statutory scheme. Mandel v Bradley, 432 U.S. 173, 177 (1977).

It is instructive that the only three US House candidates in the entire country who overcame a signature requirement of 10,754 or more, and all three had more time to collect signatures than Illinois’ 90-day duration. (See Winger Supplemental Affidavit attached as Exhibit E). One had 189 days and the other two had no time restrictions. Petitioner Gill’s, campaign collected valid signatures at the rate of 95.47 a day. In 23 more days, he would have had more than the required 10,754. Thus, but for the legislature’s enactment of the 90-day rule, targeted at independents like him, Petitioner Gill would have met the 10,754 requirement.

The Respondents are unlikely to win their interlocutory appeal of the preliminary injunction because courts are required to evaluate ballot restrictions together and assess their combined effect on voters’ and candidates’ political association rights. Lee, supra at 770 and Nader v. Keith, 385 F.3d 729,735 (7th Cir. 2004) The fatal combination here making it very unlikely the Respondents will win their appeal is the extremely high signature requirement both in an absolute sense and compared to other signature requirements; the restriction on collecting signatures to a mere 90 days; and that fact that no candidate, let alone “a reasonably diligent candidate” has ever been able to overcome the signature requirement at issue and gain a place on the ballot.

II. The Respondent Board of Election Would Not Have Been Irreparably Injured Absent a Stay Pending Resolution of the Appeal.

Respondents’ motion for stay pending appeal that was filed before the Seventh Circuit did not explain how Respondents would be irreparably harmed, absent entry of an order staying the preliminary injunction for the duration of the appeal. Respondents were afforded the opportunity to present evidence before the district court, but waived that right, and presented no facts in support of their arguments, including no evidence regarding any irreparable harm.

The district court below, in its August 25, 2016 Opinion granting Petitioner’s motion for preliminary injunction evaluated the facts and argument, and found that the harm to Respondents was minimal, explaining this finding as follows:

Putting a candidate on the ballot who obtained 8,593 valid signatures for nomination constitutes a negligible injury when compared against the constitutional rights of Plaintiffs and the interests of the public. Id. Allowing a candidate with 8,593 valid signatures would do minimal, if any damages, to Defendants’ and the State’s interest in having candidates on the ballot who have shown a modicum of support. And while the Court recognizes Defendants’ interest in uniformity of the law, the harm to Defendants in this instance is negligible compared to the harm to Plaintiffs. (Exhibit B at 26)

The district court also referenced Johnson v. Cook Cnty. Officers Electoral Bd. which noted that “[w]hile the ultimate resolution of this lawsuit could severely impair Illinois’ election regulation scheme, the harm at issue here is that engendered by a temporary injunction” which at most would require the board to put on the ballot an individual who obtained 491 valid signatures out of 500 needed (emphasis in original). Johnson v. Cook Cnty. Officers Electoral Bd., 680 F.Supp. 1229, 1233 (N.D. Ill. 1988).

The district court undertook the requisite sliding scale analysis in its consideration of the request for a preliminary injunction, and explained as follows:

Here, Plaintiffs will have no adequate remedy at law if Gill is not on the ballot. Moreover, they will be irreparably harmed. An otherwise qualified candidate suffers irreparable harm if he is wrongfully deprived of the opportunity to appear on an election ballot. Jones, 921 F. Supp. 2d at 901. Similarly, voters who would have voted for the candidate would also suffer irreparable harm. Jones, 921 F.Supp.2d at 901; see also Citizens for a Better Env’t v. City of Park Ridge, 567 F.2d 689, 691 (7th Cir. 1975) (noting that “even the temporary deprivation of First Amendment rights constitutes irreparable harm in the context of a suit for an injunction”). Therefore, Plaintiffs have shown they have no adequate remedy at law and would suffer irreparable harm if preliminary relief is not granted.

(Exhibit B at 19)

In their Seventh Circuit motion for stay pending appeal, Respondents argued that there would be voter confusion that might occur if a third candidate is added to a ballot with two major party candidates, and that voters who may cast a vote for Petitioner, Gill, “would have wasted their vote and they would not have had an opportunity to choose a different candidate.”

However, such argument makes no sense, specifically because there are only three potential candidates, each with unique names and their political party designations or “independent” designation below each name. Similarly, voters who desire to vote for a major party candidate will always have that choice, and not be deprived thereof. For the state to argue that Petitioner Gill’s, supporters would have wasted their vote is circuitous and illogical, and hypothetically assumes that such voters would have (a) voted if their candidate was not on the ballot, and (b) cast a vote for a competing candidate. There is no support for Respondents purported harm to supporters of Petitioner Gill, who would certainly much rather see their candidate’s name on the ballot.

Because the Respondents would incur no financial loss from the preliminary injunction, the district court found the proper amount of security to be zero. (Exhibit B at 26)

As such, Respondents have articulated no credible and irreparable harm that would befall them, as members of the State Board of Elections, if Petitioner Gill’s, name appeared on the ballot for the November 8, 2016 general election, as was ordered by the district court.

The Seventh Circuit’s order granting the Respondents’ motion for stay pending appeal did not apply the sliding scale analysis, or for that matter, recite any of the bases for the Seventh Circuit’s decision to grant the motion for stay pending appeal. In fact, it provided no analysis of the applicable factors at all, and simply ordered “that the motion for stay is GRANTED. The district court’s order enjoining defendants from enforcing the Illinois Election Code signature requirement against David M. Gill is STAYED pending resolution of this appeal.” (Exhibit A)

III. Issuance of the Stay Pending Appeal Would and Has Substantially Injured Other Parties.

Petitioner, David Gill, submitted signatures of over 11,000 signers, to which an objection was filed, and the Respondents determined that Petitioner, Gill, had over 8,000 valid signatures. The district court ordered that Petitioner’s name not be removed from the ballot, because he demonstrated “Herculean efforts,” showed that he indeed was reasonably diligent and showed that he had a modicum of support from voters of the 13th Congressional District.

Granting of the stay by the Seventh Circuit then allowed the Respondents to disregard the preliminary injunction order, and actually remove Gill’s name form the November 8, 2016 general election ballot. Amended ballot certifications were then promptly issued by the Respondents to all fourteen election authorities within the 13th Congressional District of Illinois, which omitted Petitioner, Gill’s, name.

The harm of enforcing the Seventh Circuit’s stay pending appeal is far greater to the voters of the 13th Congressional District, who were deprived of the opportunity to vote for a popular candidate.

It is far easier for the Respondents to honor the preliminary injunction, and certify ballots that include Petitioner Gill’s, name. In this scenario if Petitioners do not prevail on the merits before the district court, any votes cast for Petitioner, Gill, would simply not be counted. This is a far simpler course for the Respondents. If Petitioner, Gill’s, name is removed from the ballot now, but he later prevails before the district court, because the court of appeals denied Petitioners’ motion to expedite the appeal, such ruling would come after the November 8, 2016 election, putting the validity of the election without Gill’s name being printed upon the ballot at issue. The only real remedy at that point would be, a costly special election for the 13th Congressional District of Illinois.

Ideally, if Respondents certified the ballot in the 13th Congressional District to include Gill’s name upon it, and Gill later did not prevail, then the only voters who would become disenfranchised, would be Petitioner Gill’s supporters and signers of his nomination petitions.

IV. The Public Interest Lies With The Name Of A Candidate Being On The Ballot, Who Has Shown a Large Modicum Of Support By Gathering 15 Times As Many Signatures As Are Required Of The Candidates Who Are On The Ballot.

The district court noted that Jones v. McGuffage, 921 F.Supp.2d 888, 902 (N.D.Ill. 2013), “granted a preliminary injunction after finding no public interest existed in preserving a two-party ballot, or excluding qualified candidates. (Jones, Id.) (finding the more compelling public interest was the plaintiff’s expression and associational rights).” The district court then concluded: “On the whole, the Court finds that the public interest heavily favors Plaintiffs (Petitioners herein)” (Exhibit B at 22) (emphasis added)

The public is served by including Petitioner Gill’s name upon the November 8, 2016 general election ballot. Voters who support a different candidate would be unaffected, and would not be prevented from voting for the candidate of their choice. There still remain many voters who vote strictly upon party lines, regardless of the candidate that is on the ballot, and these voters will be unaffected.

However, 11,300+ people or 8,400+ voters who signed Candidate Gill’s nominating petitions expressed their support for independent Candidate Gill to be on the ballot, and have First Amendment rights to organize and nominate the candidate of their choice, and to see that candidate’s name on the ballot. Vacating the order for stay of the preliminary injunction would protect those First Amendment rights.

The public interest is served by inclusion, rather than exclusion, particularly when the candidate, such as Petitioner Gill, has shown “Herculean efforts” to overcome historically insurmountable ballot access barriers.

CONCLUSION

For the above reasons, Petitioners respectfully request entry of an order vacating the Seventh Circuit’s order staying the district court’s preliminary injunction.

Respectfully submitted:

Petitioners, DAVID M. GILL, et al.

By: _______________

JAMES C. LINGER

Counsel of Record

|JAMES C. LINGER |SAMUEL J. CAHNMAN |ANDREW FINKO |

|Counsellor at Law |Attorney at Law |Attorney at Law |

|1710 South Boston Avenue |915 S. Second St. |180 West Washington St. |

|Tulsa, OK 74119-4810 |Springfield, IL 62704 |Suite 400 |

|Tel (918) 585-2797 |Tel (217) 528-0200 |Chicago IL 60602 |

|bostonbarristers@ |samcahnman@ |Tel (773) 480-0616 |

|Counsel of Record | |finkolaw@fastmail.fm |

Certificate of Service

The undersigned certifies that on September 22, 2016, that he caused the foregoing Application To Vacate Stay of District Court’s Election-Related Preliminary Injunction to be filed with the Clerk for the U.S. Supreme Court, 1 First Street N.E., Washington, D.C., and that on this same date, a PDF copy was also emailed to counsel, Deputy Solicitor General, Brett Legner, blegner@atg.state.il.us and placed into the U.S. Postal Service for delivery to Brett Legner at 100 W. Randolph Street, 13th Floor, Chicago, IL 60602.

s/ Andrew Finko

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[1] Affidavits previously filed on behalf of Petitioners are attached hereto as Exhibits D and E.

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