No. 3--04--0642

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE McDADE delivered the opinion of the court:

In this case from the circuit court of Iroquois County, the plaintiffs Green Party and twoGreen Party candidates, Dale Strough and Ginger Searle, appeal from a denial of their motion tobe placed on the ballot in the general election on November 2, 2004, for two countywidepositions in Iroquois County.

On June 21, 2004, Strough filed a nominating petition on behalf of the Green Party,nominating three candidates for three countywide positions in Iroquois County. On June 28,2004, defendant James Spielman filed an objection to the petition, alleging a violation of theElection Code (Code) (10 ILCS 5/1--1 et seq. (West 2002)) because the petition did not nominatecandidates for 13 other county board positions open for election in 2004. On August 16, 2004,the circuit court rendered a decision finding that the petition was insufficient and therefore invalid,and removed the Green Party candidates from the ballot. The plaintiffs appealed. This court, byminute order dated October 5, 2004, affirmed the circuit court's decision, with this written orderto follow.

ANALYSIS

The plaintiffs first argue that the text of the Election Code does not require that theirpetition be rejected. The portion of the code at issue states that "[a]ny group of persons *** desiring to form a new political party*** shall file *** a petition" that "shall at the time of filingcontain a complete list of candidates of such party for all offices to be filled in the *** district orpolitical subdivision as the case may be." 10 ILCS 5/10--2 (West 2004).

The plaintiffs argue that the provision only requires that all the candidates that a newpolitical party wishes to run must be on the same petition. The defendants disagree, contending that the provision requires a new political party to run candidates for all political positions withinthe applicable district of political subdivision. If the latter interpretation is the correct one, thenthe plaintiffs' petition is insufficient because it does not nominate candidates for the 13 additionalcounty board seats open for election.

The issue is governed by Reed v. Kusper, 154 Ill. 2d 77, 607 N.E.2d 1198 (1992). In thatcase, the Illinois Supreme Court found that the language of section 10-2 requires that a newpolitical party field a candidate for each open position in a political district. Reed, 154 Ill. 2d at85, 607 N.E.2d at 1202. The plaintiffs' petition does not nominate candidates for all openpositions, therefore, it was not sufficient under the Code and was properly rejected.

The plaintiffs also argue that section 10--2, if it requires a new political party to field acandidate for every office, is unconstitutional as a violation of the federal and Illinois freedoms ofspeech and assembly, due process and equal protection guarantees. We find the plaintiffs'arguments unavailing.

A state may enact election regulations that to some extent burden the first and fourteenthamendment rights of voters and candidates. Burdick v. Takushi, 504 U.S. 428, 432-34, 119 L.Ed. 2d 245, 252-53, 112 S. Ct. 2059, 2062-64 (1992). To determine whether restrictions thatmay impact the constitutional rights of potential candidates are acceptable, the court must weighthe character and magnitude of the asserted injury against the interests put forward by the state asjustification for the restrictions. Burdick, 504 U.S. at 434, 119 L. Ed. 2d at 253, 112 S. Ct. at2064. Ordinarily, restrictions on such rights must be "narrowly drawn to advance a state interestof compelling importance." Burdick, 504 U.S. at 434, 119 L. Ed. 2d at 253, 112 S. Ct. At 2013,quoting Norman v. Reed, 502 U.S. 279, 289, 116 L. Ed 2d 711, 723, 112 S. Ct. 698, 705 (1992)However, when election provisions impose only "'reasonable, nondiscriminatory restrictions'upon the First and Fourteenth amendment rights of voters, 'the State's important regulatoryinterests are generally sufficient to justify' the restrictions." Burdick, 504 U.S. at 434, 119 L. Ed.2d at 254, 112 S. Ct. at 2063, quoting Anderson v. Celebreeze, 460 U.S. 780, 788, 75 L. Ed. 2d547, 557, 103 S. Ct. 1564, 1570 (1983).

First, the full-slate requirement does not discriminate between similarly situated entities. Although the requirement treats new parties differently than established parties, such disparatetreatment is acceptable because new parties are not in the same position as established parties. Established parties are those that have received at least 5% of the vote in the preceding election. (10 ILCS 5/7-2, 10-2 (West 2002)). Therefore, an established party has already demonstratedthat it commands a minimum level of support in the community at large. A new party has not yetshown that it is able to muster support in the community. Therefore it is rational to treat the twoclasses of party differently. Werme v. Merrill, 84 F.3d 479, 484-85 (1st Cir. 1996). Additionally,the full-slate requirement is not so burdensome on a new party that it violates the constitution. The requirement merely forces the party to show that, within a district, it has support sufficient toallow it to field a candidate for each open position. If a new party is not able to field candidatesfor each open position in a political district, that raises doubts as to whether the organizationshould even be considered a political party. Libertarian Party v. Diamond, 992 F.2d 365, 373 n.9(1st Cir. 1993). The requirement does not prevent any specific individual from running for office,since candidates may run as independents. It only requires that the organization seeking to berecognized as a new party demonstrate that it enjoys significant support within the community itseeks to represent.

Finally, the state has a legitimate interest in requiring that a new party demonstrate that ithas significant support within the community. This interest is in "avoiding confusion, deception,and even frustration of the democratic process at the general election." Jenness v. Fortson, 403U.S. 431, 442, 29 L. Ed. 2d 554, 562-63, 91 S. Ct. 1970, 1976 (1971). In addition, therequirement assures that a new political party is actually a political organization with significantsupport rather than an independent candidacy masquerading as a political body. Coalition forFree & Open Elections v. McElderry, 48 F.3d 493, 498 (10th Cir. 1995).

It is clear, then, that the restriction imposed by the ful-slate requirement of the ElectionCode is reasonable and nondiscriminatory. The restriction is also justified by the state's legitimateinterest in controlling and regulating access to the ballot by new political parties, thereby ensuringan orderly election not marked by voter confusion

Since we find that the trial court did not misinterpret the language of the statute, andproperly rejected the plaintiffs' petition, and that the provision does not violate the federal or stateconstitution, we affirm the decision of the circuit court of Iroquois County.

CONCLUSION

The trial court rightly found that the plain language of the Election Code requires that anew political party field candidates for all open positions in the political district in which it seeksto be recognized as a party. In addition, we find the constitutional arguments of the plaintiffs donot warrant a different result. We therefore affirm the order of the circuit court of IroquoisCounty rejecting the petition.

Affirmed.

SCHMIDT and BARRY, JJ., concur.