OCTOBER TERM, 1991
Syllabus
NORMAN ET AL.
v. REED ET AL.
CERTIORARI TO THE SUPREME COURT OF ILLINOIS No. 90-1126. Argued
October 7, 1991-Decided January 14, 1992*
Illinois citizens wishing to establish a "new political party"
may field candidates for statewide office after collecting the
signatures of 25,000 eligible voters, and they may field candidates
solely for offices in a large "political subdivision" upon
collecting the signatures of 25,000 subdivision voters. Ill. Rev.
Stat., ch. 46, § 10-2. However, when a subdivision comprises large
separate districts from which some of its officers are elected,
party organizers seeking to fill such offices must collect 25,000
signatures from each district.
Ibid. A new political party
becomes an "established political party" if it receives 5% of the
vote in the next election, but a party that has not engaged in a
statewide election can become "established" only in a subdivision
where it has fielded candidates. Petitioners sought to expand the
Harold Washington Party (HWP), an established party in Chicago, to
Cook County, a subdivision comprising two electoral districts: a
city district and a suburban district. Before the 1990 elections,
they presented the county with a petition containing 44,000
signatures from the city district and 7,800 signatures from the
suburban district and a slate of candidates for both at-large and
district-specific seats. Respondent Reed and other voters
(collectively, Reed) filed objections with the Cook County Officers
Electoral Board (Board). The Board rejected Reed's claim that §
1O-5-which prohibits a new party from bearing an established
party's name-prevented petitioners from using the HWP name, holding
that § 10-5's purpose was to prevent persons not affiliated with a
party from latching on to its name, thus causing voter confusion
and denigrating party cohesiveness, and that these dangers were not
present here since one Evans-the only HWP candidate to run in
Chicago's most recent election-had authorized petitioners to use
the name. The Board also found that petitioners' failure to gather
25,000 signatures from the suburbs disqualified the HWP candidates
wishing to run for suburban-district seats, but not those running
for city-district and countywide offices, and that petitioners'
failure to designate HWP candidates for judicial seats did not
disqualify the entire slate. The County Circuit Court affirmed the
Board's
*Together with No. 90-1435,
Cook County Officers Electoral
Board et al. v.
Reed et al., also on certiorari to the
same court.
280
Syllabus
ruling on the use of the HWP name, but held that the entire
slate was doomed under § 10-2 by the failure to obtain sufficient
suburban-district signatures and, alternatively, the failure to
list any judicial candidates. The State Supreme Court held that §
10-5 prohibited petitioners from using the HWP name and that, under
§ 10-2, the failure to gather enough suburban-district signatures
disqualified the entire slate. This Court granted petitioners'
application for a stay, permitting them to run in the election.
Although no HWP candidates were elected, several received over 5%
of the vote, which would qualify the HWP as an "established
political party" within all or part of the county in the next
election.
Held:
1. The controversy is not moot even though the 1990 election is
over, both because it is "capable of repetition, yet evading
review," and because the results of that election will entitle the
HWP to enter the next election as an established party in all or
part of the county so long as its candidates were entitled to their
places on the 1990 ballot. Pp. 287-288.
2. Sections 10-2 and 10-5, as construed by the State Supreme
Court, violate petitioners' right of access to the county ballot.
Pp. 288-295.
(a) The right of citizens to create and develop new political
parties derives from the First and Fourteenth Amendments and
advances the constitutional interest of like-minded voters to
gather in pursuit of common political ends, thus enlarging all
voters' opportunities to express their own political preferences.
See,
e. g.,
Illinois Ed. of Elections v.
Socialist
Workers Party, 440 U. S. 173, 184.
Therefore, a State may limit new parties' access to the ballot only
to the extent that a sufficiently weighty state interest justifies
the restriction. Any severe restriction must be narrowly drawn to
advance a state interest of compelling importance. See id., at 184,
186. Pp. 288-289.
(b) The State Supreme Court's inhospitable reading of § 10-5 is
far broader than is necessary to serve the asserted state interest
in preventing misrepresentation and electoral confusion. That
interest could be served merely by requiring candidates to get
formal permission from an established party to use its name, a
simple expedient for fostering an informed electorate without
suppressing small parties' growth. Reed offers no support for her
apparent assumption that petitioners did not obtain such permission
from the Chicago HWP, and the State Supreme Court itself found
unworthy of mention any theory that Evans lacked authority under
state law to authorize the HWP name's use. Pp. 289-291.
(c) Similarly, disqualifying all HWP candidates because of the
failure to collect 25,000 signatures in each district is not the
least restrictive
281
means of advancing Illinois' interest in limiting the ballot to
parties with demonstrated public support, since it would require
petitioners to collect twice as many signatures to field candidates
in the county as they would need if they wished to field candidates
for statewide office. See
Illinois Ed. of Elections v.
Socialist Workers Party, supra. Even if Illinois could have
constitutionally required petitioners to demonstrate a distribution
of support throughout Cook County, it could have done so without
also raising the overall quantum of needed support above what the
State expects of new statewide parties. Moreover, it requires
elusive logic to show a serious state interest in demanding a
distribution of support for new local parties when the State deems
it unimportant to require such support for new statewide parties.
Pp. 291-294.
(d) Nonetheless, requiring candidates for suburban-district
offices to obtain 25,000 nominating signatures from the suburbs
does not unduly burden their right to run under the HWP name. Just
as the State may not cite the HWP's failure in the suburbs as
reason for disqualifying its candidates in the city district,
neither may the HWP cite its success in the city district as a
sufficient condition for running candidates in the suburbs. P.
295.
3. The issue whether the HWP's failure to field judicial
candidates doomed the entire slate is remanded to the State Supreme
Court to consider in the first instance. Pp. 295-296.
Affirmed in part, reversed in part, and remanded.
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, BLACKMUN, STEVENS, O'CONNOR, and
KENNEDY, JJ., joined. SCALIA, J., filed a dissenting opinion,
post, p. 296. THOMAS, J., took no part in the consideration
or decision of the cases.
R. Eugene Pincham argued the cause and filed briefs for
petitioners in No. 90-1126.
Kenneth L. Gillis argued the cause for petitioners in No.
90-1435. On the briefs were Jack O'Malley, Burton Stephen adelson,
and Mathias William Delort.
Gregory A. Adamski argued the cause for respondents.
With him on the brief for respondents Reed et al. was
Karen
Conti. Messrs. O'Malley, adelson, and
Delort filed a
brief
282
for Cook County Officers Electoral Board, respondents in
No.90-1126.t
JUSTICE SOUTER delivered the opinion of the Court.
In these consolidated cases, we review a decision of the Supreme
Court of Illinois barring petitioners in No. 90-1126 (petitioners)
from appearing under the name of the Harold Washington Party on the
November 1990 ballot for Cook County offices. We affirm in part,
reverse in part, and remand for further proceedings not
inconsistent with this opinion.
I
Under Illinois law, citizens organizing a new political party
must canvass the electoral area in which they wish to field
candidates and persuade voters to sign their nominating petitions.
Organizers seeking to field candidates for statewide office must
collect the signatures of 25,000 eligible voters,l Ill. Rev. Stat.,
ch. 46, § 10-2 (1989), and, if they wish to run candidates solely
for offices within a large "political subdivision" like Cook
County, they need 25,000 signatures from the subdivision.
Ibid. If, however, the subdivision itself comprises large
separate districts from which some of its officers are elected,
party organizers seeking to fill such offices must collect 25,000
signatures from each district.
Ibid.2 If the
tBriefs of
amici curiae urging reversal were filed for
the American Civil Liberties Union of Illinois by
William T.
Barker, Harvey M. Grossman, John A. Powell, Steven R. Shapiro,
and
Arthur N. Eisenberg; and for the Committee for Party
Renewal by
Robert E. Tait.
1 More precisely, they must collect the signatures of 25,000
voters or 1 % of the number of voters at the preceding statewide
general election, whichever is less. Ill. Rev. Stat., ch. 46, §
10-2 (1989). Given the State's population, the 25,000 signature
requirement applies.
2 The statute reads in relevant part:
"In the case of a petition to form a new political party within
a political subdivision in which officers are to be elected from
districts and at-large, such petition shall consist of separate
components for each district from which an officer is to be
elected. Each component shall be circulated only
283
organizers collect enough signatures to place their candidates
on the ballot, their organization becomes a "new political party"
under Illinois law, and if the party succeeds in gathering 5% of
the vote in the next election, it becomes an "established political
party," freed from the signature requirements of § 10-2.
Ibid. A political party that has not engaged in a statewide
election, however, can be "established" only in a political
subdivision where it has fielded candidates. A party is not
established in Cook County, for example, merely because it has
fared well in Chicago's municipal elections.
The Harold Washington Party (HWP or Party), named after the late
mayor of Chicago, has been established in the city of Chicago since
1989. Petitioners were the principal organizers of an effort to
expand the Party by establishing it in Cook County, and, as
candidates for county office, they sought to run under the Party
name in the November 1990 elections.
within a district of the political subdivision and signed only
by qualified electors who are residents of such district. Each
sheet of such petition must contain a complete list of the names of
the candidates of the party for all offices to be filled in the
political subdivision at large, but the sheets comprising each
component shall also contain the names of those candidates to be
elected from the particular district. Each component of the
petition for each district from which an officer is to be elected
must be signed by qualified voters of the district equalling in
number not less than 5% of the number of voters who voted at the
next preceding regular election in such district at which an
officer was elected to serve the district. The entire petition,
including all components, must be signed by a total of qualified
voters of the entire political subdivision equalling in number not
less than 5% of the number of voters who voted at the next
preceding regular election in such political subdivision at which
an officer was elected to serve the political subdivision at
large."
The statute caps the 5% requirement for both district and
subdivision petitions at 25,000 signatures, the number effectively
required on statewide petitions. Cook County and its districts are
so large that this cap applies to each.
284
Cook County comprises two electoral districts: the area
corresponding to the city of Chicago (city district) and the rest
of the county (suburban district).3 Although some county officials
are elected at large by citizens of the entire county, members of
the county board of commissioners are elected separately by the
citizens of each district to fill county board seats specifically
designated for that district. While certain petitioners wished to
run for offices filled by election at large, others sought to
capture the county board seats representing the city and suburban
districts of Cook County.
Because the Party had previously engaged solely in Chicago
municipal elections, petitioners were obliged to qualify as a "new
party" in Cook County in order to run under the Party name.
Accordingly, § 10-2 required them to obtain 25,000 nominating
signatures in order to designate candidates for the at-large
offices. And since petitioners wished to field candidates for the
county board seats allocated to the separate districts, they also
had to collect 25,000 signatures from each district. Petitioners
gathered 44,000 signatures on the city-district component of their
petition, but only 7,800 on the suburban component.
After petitioners filed the petition with the county authorities
and presented their slate of candidates for both at-large and
district-specific seats, respondent Dorothy Reed and several other
interested voters (collectively, Reed) filed objections to the
slate with the Cook County Officers Electoral Board (Board or
Electoral Board). The Board rejected most
3 These are the current districts of Cook County. We have
learned that in a November 1990 referendum, the voters of Cook
County adopted an ordinance providing for the division of the
county by 1994 into 17 districts, each of which will send one
commissioner to the county board. This Court has been unable to
secure any official record of the new ordinance, however. In any
event, the parties have not treated this issue as having any
bearing on our disposition of these cases, and we do not see how it
could have.
285
of Reed's claims. First, it dismissed her contention that,
because there was already an established political party named the
"Harold Washington Party" in the city of Chicago, petitioners could
not run under that name for the various county offices. Reed relied
on the provision of Illinois law that a "new political party,"
which petitioners sought to form, "shall not bear the same name as,
nor include the name of any established political party .... " Ill.
Rev. Stat., ch. 46, § 10-5 (1989). The Board, however, suggested
that a literal reading of § 10-5 would effectively forbid a
political party established in one political subdivision to expand
into others, and held that the provision's true purpose was "to
prevent persons who are not affiliated with a party from 'latching
on' to the popular party name, thereby promoting voter confusion
and denigrating party cohesiveness." The Board found no such
dangers here, as Timothy Evans, the only HWP candidate to run in
Chicago's most recent municipal election, had authorized
petitioners to use the Party name.
The Board also rejected Reed's claim that petitioners had failed
to gather enough nominating signatures to run as a party for any
Cook County office. While the Board found that their failure to
gather 25,000 signatures from the suburbs disqualified those who
wished to run for the suburbandistrict commissioner seats, it held
that this failure was no reason under § 10-2 to disqualify the
candidates running under the Party name for city-district and
countywide offices. The Board observed that construing the statute
to disqualify the entire Cook County slate on this basis would
advance no valid state interest and would raise serious
constitutional concerns.
Finally, the Board rejected Reed's claim that, under § 10-2,
petitioners' failure to designate Party candidates for any of the
judicial seats designated for either the city district, the
suburban district, or the county at large disqualified the entire
slate of candidates running under the Party name for all
286
county offices.4 It decided, among other things, that § 10-2 did
not apply because the judgeships at issue were not offices of the
same "political subdivision" as nonjudicial offices within Cook
County.
On appeal, the Circuit Court of Cook County affirmed the Board's
ruling on the use of the HWP name, but on grounds different from
the Board's. It ruled that while Evans had no statutory power to
authorize the use of the Party name, § 10-2 implicitly confined the
scope of § 10-5 to cases where two parties seeking to use the same
name coexist in the same political subdivision. Since Cook County
and the city of Chicago are separate subdivisions, the Circuit
Court found no violation of the Election Code.
The Circuit Court nonetheless held that under the plain language
of § 10-2, petitioners' failure to obtain 25,000 signatures for the
suburban-district candidates doomed the entire slate, and it
alternatively held that petitioners' failure to list Party
candidates for judicial office compelled the same result. For these
two independent reasons, the Circuit Court reversed the Board.5
On review, the Supreme Court of Illinois held in a brief written
order that § 10-5 prohibited petitioners from using the HWP name,
and that their failure to gather enough signatures for the
candidates in the suburban-district races disqualified the entire
slate. It expressly declined "to discuss other points raised on the
appeal" and thus chose not to ad-
4 Reed based her argument on what the parties call the "complete
slate requirement" of § 10-2. The parties occasionally use the same
term in their discussion of a separate issue, whether petitioners'
failure to collect sufficient signatures in the suburban district
voids their entire slate. For clarity, we avoid using the term
altogether.
5 The Circuit Court also held that petitioners' failure to
gather 25,000 signatures for the candidates running under the Party
name for office in the Metropolitan Water Reclamation District
disqualified those candidates, but not the rest of the slate,
because the Water Reclamation District was a separate political
subdivision from Cook County. This ruling was not appealed to the
Illinois Supreme Court and is not before this Court.
287
dress the effect of petitioners' failure to list candidates for
county judgeships. Three of the court's seven members dissented on
the ground that the majority's construction of Illinois law
irrationally and unconstitutionally suppressed the development of
new political parties. The majority justices indicated that they
would issue an explanatory opinion, but they never have.6
Petitioners then applied for a stay from JUSTICE STEVENS, who,
in his capacity as Circuit Justice, ordered the mandate of the
Illinois Supreme Court to be "stayed or, if necessary, recalled"
pending further review by this Court. Order in No. A-309 (Oct. 22,
1990). On October 25, 1990, the full Court granted petitioners'
application for stay pending the filing and disposition of a
petition for certiorari, 498 U. S. 931, thereby effectively
reviving the Electoral Board's decision and permitting petitioners
to run under the Party name in the November 6, 1990, Cook County
election. According to the undisputed representation of the Board,
see Brief for Petitioners in No. 90-1435, p. 10, while none of the
HWP candidates was elected, several did receive over 5% of the
vote, thus fulfilling, if the election stands, a necessary and
apparently sufficient condition for the Party's qualification as an
"established political party" within all or part of Cook County at
the next election.
In due course, petitioners filed a petition for certiorari in
No. 90-1126, and the Board, a respondent in that action, filed its
own petition in No. 90-1435.7 We granted each on May 20, 1991. 500
U. S. 931 (1991).
II
We start with Reed's contention that we should treat the
controversy as moot because the election is over. We should
6 Three of the four justices in the majority have left the court
since the date of the order.
7Under Illinois practice, if the Board's decision is appealed,
it joins the prevailing party in support of its own decision.
288
not. Even if the issue before us were limited to petitioners'
eligibility to use the Party name on the 1990 ballot, that issue
would be worthy of resolution as "'capable of repetition, yet
evading review.'"
Moore v.
Ogilvie, 394 U. S. 814, 816
(1969). There would be every reason to expect the same parties to
generate a similar, future controversy subject to identical time
constraints if we should fail to resolve the constitutional issues
that arose in 1990.
The matter before us carries a potential of even greater
significance, however. As we have noted, the 1990 electoral results
would entitle the HWP to enter the next election as an established
party in all or part of Cook County, freed from the petition
requirements of § 10-2, so long as its candidates were entitled to
the places on the ballot that our stay order effectively gave them.
This underscores the vitality of the questions posed, even though
the election that gave them life is now behind us.
III
For more than two decades, this Court has recognized the
constitutional right of citizens to create and develop new
political parties. The right derives from the First and Fourteenth
Amendments 8 and advances the constitutional interest of
like-minded voters to gather in pursuit of common political ends,
thus enlarging the opportunities of all voters to express their own
political preferences. See
Anderson v.
Celebrezze,
460 U. S. 780,
793-794 (1983);
Illinois Bd. of Elections v.
Socialist
Workers Party, 440 U. S. 173, 184
(1979); Williams v.
Rhodes, 393 U. S. 23, 30-31
(1968). To the degree that a State would thwart this interest by
limiting the access of new parties to the ballot, we have called
for the demonstration of a corresponding interest sufficiently
8 As in
Anderson v.
Celebrezze, 460 U. S. 780 (1983), "we
base our conclusions directly on the First and Fourteenth
Amendments and do not engage in a separate Equal Protection Clause
analysis. We rely, however, on the analysis in a number of our
prior election cases resting on the Equal Protection Clause of the
Fourteenth Amendment."
Id., at 786-787, n. 7.
289
weighty to justify the limitation, see
Anderson, supra,
at 789, and we have accordingly required any severe restriction to
be narrowly drawn to advance a state interest of compelling
importance. See
Socialist Workers Party, supra, at 184, 186.
By such lights we now look to whether §§ 10-2 and 10-5, as
construed by the Supreme Court of Illinois, violate petitioners'
right of access to the Cook County ballot.
A
Reversing the judgment of the Circuit Court, the State Supreme
Court held, under § 10-5, that the Cook County candidates could not
claim to represent the HWP because there already was a party by
that name in the city of Chicago. The court gave no reasons for so
concluding beyond declaring that "petitioner[s'] use of the Harold
Washington Party name in their petition ... violate[d] the
provisions of section 10-5," which, the court noted, "prohibits use
of the name of an established political party." Thus, the issue on
review is not whether the Chicago HWP and the Cook County HWP are
in some sense "separate parties," but whether and how candidates
running for county office may adopt the name of a party established
only in the city.
While the Board based its answer to this question on a
determination that the city HWP had authorized petitioners to use
the Party name, the State Supreme Court's order seems to exclude
the very possibility of authorization, reading the prohibition on
the "use of the name of an established political party" so
literally as to bar candidates running in one political subdivision
from ever using the name of a political party established only in
another. As both the dissent below and the opinion of the Board
suggest, however, this Draconian construction of the statute would
obviously foreclose the development of any political party lacking
the resources to run a statewide campaign. Just as obviously, §
10-5, as the State's highest court apparently construed it,
290
is far broader than necessary to serve the State's asserted
interests.
To prevent misrepresentation and electoral confusion, Illinois
may, of course, prohibit candidates running for office in one
subdivision from adopting the name of a party established in
another if they are not in any way affiliated with the party. The
State's interest is particularly strong where, as here, the party
and its self-described candidates coexist in the same geographical
area. But Illinois could avoid these ills merely by requiring the
candidates to get formal permission to use the name from the
established party they seek to represent, a simple expedient for
fostering an informed electorate without suppressing the growth of
small parties. Thus, the State Supreme Court's inhospitable reading
of § 10-5 sweeps broader than necessary to advance electoral order
and accordingly violates the First Amendment right of political
association. See
Anderson, supra, at 793
794; Williams,
supra, at 30-34.
For her part, when Reed argues that the county Party, led by R.
Eugene Pincham, is "different from" the Party established in the
city of Chicago under the leadership of Timothy Evans, she may
indeed be suggesting that the city Party failed to authorize the
Cook County candidates to use the Party name. But Reed offers no
support at all for that assumption, which stands at odds with what
few relevant facts the record reveals. The Electoral Board found
that Timothy Evans, the Party's most recent mayoral candidate in
the city of Chicago, had specifically authorized petitioners' use
of the Party name in Cook County. While acknowledging that Evans
was not the statutory chairman of the Chicago Party, the Board
ruled, and Reed does not dispute, that Evans, "as the only
candidate of the Chicago HWP," was "the only person empowered by
the Election Code to act in any official capacity for the HWP." We
have no authoritative ruling on Illinois law to the contrary, and
Reed advances no legal argument for the insufficiency of Evans'
authorization.
291
To be sure, it is not ours to say that Illinois law lacks any
constitutional procedural mechanism that petitioners might have
been required to, but did not, follow before using the Party name.
Our review of § 10-2 reveals the possibility that Illinois law
empowers a newly established party's candidate or candidates (here,
Evans) merely to appoint party "committeemen," whose authority to
"manage and control the affairs" of the party might include an
exclusive right to authorize the use of its name outside the
party's original political subdivision. It seems unlikely, however,
that the Supreme Court of Illinois had such reasoning in mind. Any
limitation on Evans's power to authorize like-minded candidates to
use the Party name would have had to arise under § 10-2, whereas
the order below held simply that petitioners' use of the Party name
"violate[d] the provisions of section 10-5." In any event, it is
not this Court's role to review a state-court decision on the basis
of inconclusive and unargued theories of state law that the state
court itself found unworthy of mention.9
B
As an alternative basis for prohibiting petitioners from running
together under the Party name, the Supreme Court of Illinois
invoked the statutory requirement of § 10-2 that "[e]ach component
of the petition for each district ... be signed by [25,000]
qualified voters of the district .... " The
9 Reed did seem to make a version of this argument in her brief
to the Illinois Supreme Court. See Brief for Appellees Reed et al.
in No. 70833 (Sup. Ct. Ill.), pp. 20-21. Moreover, in the one
sentence that it devotes to the topic, the Circuit Court makes a
similar observation: "While Timothy C. Evans was the only candidate
of the Harold Washington Party, his only power, pursuant to § 10-2
of the Election Code, was the ability to appoint interim
committeemen." See App. to Pet. for Cert. in No. 901435, p. 19a.
Nonetheless, these passages are inadequate to prove that the
Illinois Supreme Court adopted the argument, particularly since
Reed arguably waived it by not raising it in her original
"Objector's Petition" to the Electoral Board. See App. 14-15.
There, she claimed only that petitioners' use of the Party name
violated § 10-5.
292
court apparently held that disqualification of a party's entire
slate of candidates is the appropriate penalty for failing to meet
this requirement, and it accordingly treated petitioners' failure
to collect enough signatures for their suburbandistrict candidates
as an adequate ground for disqualifying every candidate running
under the HWP name in Cook County.
This is not our first time to consider the constitutionality of
an Illinois law governing the number of nominating signatures the
organizers of a new party must gather to field candidates in local
elections. In
Illinois Bd. of Elections v.
Socialist
Workers Party, 440 U. S. 173 (1979), we
examined Illinois's earlier ballot-access scheme, under which party
organizers seeking to field candidates in statewide elections were
(as they still are) effectively required to gather 25,000
signatures. See § 10-2. At that time, the statute separately
required those organizing new parties in political subdivisions to
collect signatures totaling at least 5% of the number of people
voting at the previous election for offices of that subdivision. In
the city of Chicago, the subdivision at issue in
Socialist
Workers Party, the effect of that provision was to require many
more than 25,000 signatures. Although this Court recognized the
State's interest in restricting the ballot to parties with
demonstrated public support, the Court took the requirement for
statewide contests as an indication that the more onerous standard
for local contests was not the least restrictive means of advancing
that interest.
Id., at 186.
The Illinois Legislature responded to this ruling by amending
its statute to cap the 5% requirement for "any district or
political subdivision" at 25,000 signatures. Thus, if organizers of
a new party wish to field candidates in a large county without
separate districts, and if 5% of the number of voters at the
previous county election exceeds 25,000, the party now needs to
gather only 25,000 signatures.
293
Under the interpretation of § 10-2 rendered below, however,
Illinois law retains the constitutional flaw at issue in
Socialist Workers Party by effectively increasing the
signature requirement applicable to elections for at least some
offices in subdivisions with separate districts. Under that
interpretation, the failure of a party's organizers to obtain
25,000 signatures for each district in which they run candidates
disqualifies the party's candidates in all races within the
subdivision. Thus, a prerequisite to establishing a new political
party in such multidistrict subdivisions is some multiple of the
number of signatures required of new statewide parties. Since
petitioners chose to field candidates for the county board seats
allocated to the separate districts and, as required by state law,
used the "component" (i.
e., districtspecific) form of
nominating petition, the State Supreme Court's construction of §
10-2 required petitioners to accumulate 50,000 signatures (25,000
from the city district and another 25,000 from the suburbs) to run
any candidates in Cook County elections. The State may not do this
in the face of
Socialist Workers Party, which forbids it to
require petitioners to gather twice as many signatures to field
candidates in Cook County as they would need statewide.
Reed nonetheless tries to skirt
Socialist Workers Party
by advancing what she claims to be a state interest, not addressed
by the earlier case, in ensuring that the electoral support for new
parties in a multidistrict political subdivision extends to every
district. Accepting the legitimacy of the interest claimed would
not, however, excuse the requirement's unconstitutional breadth.
Illinois might have compelled the organizers of a new party to
demonstrate a distribution of support throughout Cook County
without at the same time raising the overall quantum of needed
support above what the State expects of new parties fielding
candidates only for statewide office. The State might, for example,
have required some minimum number of signatures from each of the
component districts while maintaining the total
294
signature requirement at 25,000. But cf.
Moore v.
Ogilvie, 394
U. S. 814 (1969). While we express no opinion as to the
constitutionality of any such requirement, what we have said
demonstrates that Illinois has not chosen the most narrowly
tailored means of advancing even the interest that Reed
suggests.
Nor is that the only weakness of Reed's rationale. Illinois does
not require a new party fielding candidates solely for statewide
office to apportion its nominating signatures among the various
counties or other political subdivisions of the State. See § 10-2;
Communist Party of Illinois v.
State Bd. of
Elections, 518 F.2d
517 (CA7), cert. denied, 423 U. S. 986 (1975). Organizers of a
new party could therefore win access to the statewide ballot, but
not the Cook County ballot, by collecting all 25,000 signatures
from the county's city district. But if the State deems it
unimportant to ensure that new statewide parties enjoy any
distribution of support, it requires elusive logic to demonstrate a
serious state interest in demanding such a distribution for new
local parties. Thus, as in
Socialist Workers Party, the
State's requirements for access to the statewide ballot become
criteria in the first instance for judging whether rules of access
to local ballots are narrow enough to pass constitutional muster.
Reed has adduced no justification for the disparity here.10
IOTo an extent, history explains the anomaly.
Moore v.
Ogilvie, 394 U. S. 814 (1969), together with the Seventh
Circuit's decision in Commu
nist Party of Illinois v.
State Ed. of Elections, 518 F.2d
517 (1975), left the ballot-access requirements for statewide
elections less stringent, for the first time, than the requirements
for any local ballot. These were the same legal developments, in
fact, that led to the anomaly at issue in
Illinois Ed. of
Elections v.
Socialist Workers Party, 440 U. S. 173 (1979).
Yet, as we noted there, an explanation is not the same as a
justification.
Id., at 187; see also
id., at 189
(STEVENS, J., concurring in part and concurring in judgment); id.,
at 190-191 (REHNQUIST, J., concurring in judgment). "Historical
accident, without more, cannot constitute a compelling state
interest."
Id., at 187.
295
C
Up to this point, the positions of petitioners and the Board
have coincided. They diverge on only one matter: whether requiring
the candidates for the suburban-district commissioner seats to
obtain 25,000 nominating signatures from the suburbs unduly burdens
their right to run for those seats under the Party name. Although
petitioners suggest that their showing of support in the city
district should qualify their candidates to represent the Party in
all races within Cook County, in the absence of any claim that the
division of Cook County into separate districts is itself
unconstitutional, our precedents foreclose the argument. According
to the Board's uncontested arithmetic, the 25,000 signature rule
requires the support of only slightly more than 2% of suburban
voters, see Brief for Respondent Board in No. 90-1126, p. 9, and n.
7, a considerably more lenient restriction than the one we upheld
in
Jenness v.
Fortson, 403 U. S. 431 (1971)
(involving a 5% requirement). Just as the State may not cite the
Party's failure in the suburbs as reason for disqualifying its
candidates in urban Cook County, neither may the Party cite its
success in the city district as a sufficient condition for running
candidates in the suburbs.
IV
These cases present one final issue, which we are unable to
resolve. Some of Cook County's judges are elected by citizens of
the entire county, and others by citizens of the separate
districts. In responding to Reed's objection that the HWP had not
fielded candidates for any elected judicial offices in Cook County,
the Circuit Court held that, under § 10-2, "the exclusion of
judicial candidates on the slate was a failure to fulfill the
'complete slate requirement' of the Election Code." The court then
overruled the Electoral Board and treated this failure as an
alternative ground for invalidating the Party's entire slate.
296
We decline to consider whether that ruling was constitutional.
The Supreme Court of Illinois itself did not address it and
therefore did not decide whether, under Illinois law, the Party's
omission of judicial candidates doomed the entire slate.ll We
therefore remand these cases to that court for its prompt
resolution of this issue. See
Bacchus Imports, Ltd. v.
Dias, 468 U.
S. 263, 277 (1984); see also
McCluney v.
Jos. Schlitz
Brewing Co., 454
U. S. 1071, 1073-1074 (1981) (STEVENS, J., dissenting).12
The judgment of the State Supreme Court is affirmed in part and
reversed in part, and the cases are remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE THOMAS took no part in the consideration or decision of
these cases.
JUSTICE SCALIA, dissenting.
In the absence of an opinion by the Illinois Supreme Court
defending its own judgment, and lacking any clear alternative
analysis presented by respondents, the Court accepts petitioners'
characterization of these cases as involving
11 Among other possibilities, the Supreme Court of Illinois
might agree with the Board's conclusion that the judgeships at
issue are not offices of the same "political subdivision" as
nonjudicial offices within Cook County. That court might also
construe the decision in
Anderson v.
Schneider, 67
Ill. 2d 165, 365 N. E. 2d 900 (1977), to hold that an omission of
judicial candidates should not invalidate the rest of the
slate.
12 To restate our conclusion, any rule, whether or not
denominated the "complete slate" requirement, see,
e. g.,
post, at 298, 299 (dissenting opinion's use of the term in
this context); App. to Pet. for Cert. in No. 90-1435, pp. 23a-24a
(Circuit Court's use of the term in this context), that
disqualifies petitioners' entire slate for failure to collect
25,000 signatures wholly from the suburban district would be
unconstitutional for the reasons given in Part III -B above. We
express no opinion as to the constitutionality of a "complete slate
requirement" that would invalidate petitioners' slate for their
failure to field judicial candidates.
297
straightforward application of our decision invalidating a
previous version of the Illinois election law,
Illinois Bd. of
Elections v.
Socialist Workers Party, 440 U. S. 173 (1979).
That characterization is in my view wrong, and leads to the wrong
result. No proper basis has been established in these cases for
interfering with the State of Illinois' arrangement of its
elections.
Socialist Workers Party involved a challenge to Illinois'
then-requirement that, in elections for offices in political
subdivisions of the State, new political parties (and independent
candidates) had to obtain the signatures of 5% of the number of
persons who voted at the previous election for those offices, no
matter how high that number might be-even though new parties could
qualify for
statewide elections by gathering only 25,000
signatures. See id., at 175-176. The Socialist Workers Party
objected to having to collect over 60,000 signatures to run a
candidate in the Chicago mayoral election. See id., at 177. We held
that, although the State had a legitimate interest in ensuring that
a party or independent candidate had a " 'significant modicum of
support,'" there was "no reason" justifying a requirement of
greater support for Chicago elections than for statewide elections.
Id., at 185-186.
The Court contends that the current Illinois law, as interpreted
by the Illinois Supreme Court, suffers from the same
"constitutional flaw": It "effectively increas[es] the signature
requirement applicable to elections for at least some offices in
subdivisions with separate districts [because] the failure of a
party's organizers to obtain 25,000 signatures for each district in
which they run candidates disqualifies the party's candidates in
all races within the subdivision."
Ante, at 293. Thus, "a
prerequisite to establishing a new political party in such
multidistrict subdivisions is some multiple of the number of
signatures required of new statewide parties."
Ibid.
This analysis serves only to demonstrate why
Socialist
Workers Party is distinguishable. There is no heightened
298
signature requirement (as there was in
Socialist Workers
Party) for any single office; each candidate (and the party)
for each district election and each countywide election need obtain
no more than 25,000 signatures. What creates "effectively," as the
Court says, a sort of heightened signature minimum is the
requirement that a new party run a "complete slate," i.
e.,
a candidate in each of the subdivision's districts. By virtue of
that requirement, no one can run
as a new-party candidate in
any district unless there are not only 25,000 signatures for him in
his own district, but also 25,000 votes for the party's candidate
in each of the other districts. Such indirect consequences of a
"complete slate" requirement were, of course, not at issue in
Socialist Workers Party, which involved a single election
for an at-large position. Thus,
Socialist Workers Party is
not at all dispositive of these cases.
It seems clear that the "complete slate" rule advances a
legitimate state interest. It is reasonable to require a purported
"party," which presumably has policy plans for the political
subdivision, to run candidates in all the districts that elect the
multimember board governing the subdivision. Otherwise, it is less
a "party" than an election committee for one member of the board.
The Court ultimately concedes this, and concedes that this state
interest was
not involved (and therefore
not taken
into account) in
Socialist Workers Party. Ante, at 293-294.
It nonetheless argues that this makes no difference, because: (1)
Illinois could have achieved its interest in multidistrict support
for the party by requiring that some proportion of the total
signatures be from each district, but requiring no more than a
25,000 total,
ibid.; and (2) multidistrict support is not an
interest that Illinois considers important, since it "does not
require a new party fielding candidates solely for statewide office
to apportion its nominating signatures among the various counties
or other political subdivisions of the State,"
ante, at
294.
299
I find neither response persuasive. As to the first: We did not
say in
Socialist Workers Party that the constitutionally
permissible number for qualification in the various political
subdivisions of the State had to be some fraction (presumably based
on population) of the statewide 25,000 figure; to the contrary, we
permitted the State to require in political subdivisions any number
up to 25,000. Illinois has simply taken us at our word. Nor does
this amount to an irrational failure to "apportion." Illinois'
genuine
minimum, we must recall, is a percentage (5%) of the
votes in the prior election, which of course automatically adjusts
for the size of the electoral unit. The 25,000 figure is simply a
cap upon that minimum, and it is not at all reasonable to
think an "apportionment" of that cap will assure serious voter
support. As to the second argument: The fact that Illinois does not
require geographic distribution of support for statewide office is
irrelevant. Neither does it require geographic distribution, as
such, in these Cook County elections. It does not care if all of
the support for the Harold Washington Party, in each districtwide
election, comes from a single ward-just as it does not care, in
statewide elections, if all of a new party's support comes from a
single county. What the law under challenge here reflects is not
concern for
geographically distributed support, but concern
for
serious support in each election; and when some of the
elections are not at large but by district, the support must exist
within each district.
Perhaps there are reasons why Illinois' "complete slate"
requirement for political subdivisions is constitutionally invalid.
The point might be made, for example, that the absence of any such
requirement in statewide elections demonstrates (to take the
Court's language erroneously addressed to a different point) that
Illinois "deems [the requirement] unimportant," and has no "serious
state interest" in it.
Ante, at 294. But as American
political scientists have known since James Madison pointed it out,
see The Federalist No. 10, pp. 62-64 (H. Dawson ed. 1876), the
dangers of
300
factionalism decrease as the political unit becomes larger.
There is not much chance the State as a whole will be hamstrung by
a multitude of so-called "parties," each of which represents the
sectional interest of only one or a few districts; there is a real
possibility that the Cook County Board will be stalemated by an
equal division between "City Party" and "County Party" members. But
the litigants here have not addressed whether the "complete slate"
requirement is unconstitutional, and I decline to speculate. It
must be assumed to be legitimate, in which case there is no basis
for saying that 25,000 signatures for each district election (if
that is less than 5% of the votes in the prior district election)
cannot be demanded. The Court's holding that these cases are simply
governed by
Socialist Workers Party seems to me quite wrong.
I respectfully dissent.
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