United States District Court Northern District of Illinois - CM/ECF LIVE, Ver 6.3.3 (Chicago)
CIVIL DOCKET FOR CASE #: 1:20-cv-02189

Morgan et al v. White et al Assigned to: Honorable Charles R. Norgle, Sr Case in other court: 20-01801 Cause: 42:1983 Civil Rights Act

Date Filed: 04/07/2020 Date Terminated: 08/13/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff William Morgan

represented by Patrick J Quinn Patrick Quinn 1852 N Nashville Chicago, IL 60661 (312) 485-1852 Email: ltg.patquinn@gmail.com PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Elizabeth Norden

John W Mauck Mauck & Baker, LLC One North LaSalle Street Suite 600 Chicago, IL 60602 (312)726-1243 Email: jwmcourt@mauckbaker.com ATTORNEY TO BE NOTICED
represented by Patrick J Quinn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff David Vaught
Plaintiff

John W Mauck (See above for address) ATTORNEY TO BE NOTICED
represented by John W Mauck (See above for address) ATTORNEY TO BE NOTICED

Doris Davenport Plaintiff Andrea Raila
Plaintiff Jackson Paller
Plaintiff Committee for the Illinois Democracy Amendment, an unincorporated political association

represented by John W Mauck (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick J Quinn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John W Mauck (See above for address) ATTORNEY TO BE NOTICED
represented by Patrick J Quinn (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
John W Mauck (See above for address) ATTORNEY TO BE NOTICED
represented by John W Mauck (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Jesse White in his official capacity as Illinois Secretary of State
Defendant

represented by Michael T. Dierkes Illinois Attorney General's Office (100 West Randolph) 100 West Randolph Street 13th Floor Chicago, IL 60601 (312) 814-3672 Email: mdierkes@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Devon Reid in his official capacity as the Evanston City Clerk
Defendant Karen A Yarbrough in her official capacity as Cook County Clerk

represented by Nicholas E Cummings 2100 Ridge Ave Evanston, IL 60201 847.866.2937 Email: ncummings@cityofevanston.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra Brien MacKey Ruggie City Of Evanston Law Department 2100 Ridge Avenue Evanston, IL 60201 (847) 448-8154 Email: aruggie@cityofevanston.org ATTORNEY TO BE NOTICED
Kelley A. Gandurski City of Evanston Department of Law 2100 Ridge Avenue Evanston, IL 60201 847-448-8009 Email: kgandurski@cityofevanston.org ATTORNEY TO BE NOTICED
represented by Jessica Megan Scheller Office of the Cook County States Attorney 500 Richard J. Daley Center Chicago, IL 60602 312-603-6934 Email: jessica.scheller@cookcountyil.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Silvia Mercado Masters Cook County State's Attorney's Office 50 West Washington Suite 500 Chicago, IL 60602 (312) 603-7795 Email: silvia.mercadomasters@cookcountyil.gov ATTORNEY TO BE NOTICED

Defendant William J. Cadigan
Defendant Katherine S O'Brien
Defendant Laura K Donahue
Defendant Cassandra B. Watson
Defendant William R Haine
Defendant Ian K Linnabary
Defendant Charles W. Scholz
Defendant

represented by Erin Walsh Office of the Illinois Attorney General 100 W Randolph St, 13th Floor Chicago, IL 60601 (312) 814-6122 Email: ewalsh@atg.state.il.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Erin Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

William M McGuffage, in their official capacities as Board Members for the Illinois Board of Elections

represented by Erin Walsh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/07/2020
04/08/2020 04/08/2020 04/09/2020
04/09/2020
04/09/2020 04/09/2020

# Docket Text
1 COMPLAINT filed by Committee for the Illinois Democracy Amendment, an unincorporated political association, Elizabeth Norden, William Morgan, Jackson Paller, David Vaught, Doris Davenport, Andrea Raila; Filing fee $ 400, receipt number 0752-16918376. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit Declaration of William Morgan, # 3 Exhibit Declaration of Elizabeth Norden, # 4 Exhibit Declaration of David Vaught, # 5 Exhibit Declaration of Doris Davenport, # 6 Exhibit Declaration of Andrea Raila, # 7 Exhibit Declaration of Jackson Paller)(Mauck, John) (Entered: 04/07/2020)
CASE ASSIGNED to the Honorable Charles R. Norgle, Sr. Designated as Magistrate Judge the Honorable M. David Weisman. Case assignment: Random assignment. (axc, ) (Entered: 04/08/2020)
2 MOTION for Leave to Appear Pro Hac Vice Filing fee $ 150, receipt number 0752-16919958. (Mauck, John) (Entered: 04/08/2020)
3 ATTORNEY Appearance for Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught by John W Mauck (Mauck, John) (Entered: 04/09/2020)
4 MOTION by Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught for preliminary injunction or permanent injunction and declaration as a matter of law (Mauck, John) (Entered: 04/09/2020)
5 ATTORNEY Appearance for Defendant Karen A Yarbrough by Jessica Megan Scheller Office of the Cook County State's Attorney (Scheller, Jessica) (Entered: 04/09/2020)
6 MEMORANDUM by Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught in support of motion for preliminary injunction, 4 or permanent injunction and declaration as a matter of law (Attachments: # 1 Exhibit A)(Mauck, John) (Entered: 04/09/2020)

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04/10/2020 04/10/2020 04/10/2020 04/10/2020
04/13/2020 04/15/2020
04/15/2020 04/16/2020 04/16/2020

7 NOTICE of Motion by John W Mauck for presentment of motion for preliminary injunction, 4 before Honorable Charles R. Norgle Sr. on 4/17/2020 at 09:30 AM. (Mauck, John) (Entered: 04/09/2020)
8 MINUTE entry before the Honorable Rebecca R. Pallmeyer: This order is entered by Judge Pallmeyer as emergency judge with respect to the motion for preliminary injunctive relief 4 modifying the enforcement of Illinois's petition collection requirements. The parties are directed promptly to confer regarding a proposed resolution of their dispute. Defendants' written response to the motion, if any, shall be filed by noon on Thursday, April 16, 2020. A hearing is set by telephone at 9:30 a.m. on Friday, April 17. Counsel are directed to file their submissions in the civil case docket as well as the emergency docket. Notice mailed by judge's staff (ntf, ) (Entered: 04/09/2020)
9 ATTORNEY Appearance for Defendant Devon Reid by Alexandra Brien MacKey Ruggie (Ruggie, Alexandra) (Entered: 04/10/2020)
10 ATTORNEY Appearance for Defendant Devon Reid by Nicholas E Cummings (Cummings, Nicholas) (Entered: 04/10/2020)
11 ATTORNEY Appearance for Defendant Devon Reid by Kelley A. Gandurski (Gandurski, Kelley) (Entered: 04/10/2020)
12 ATTORNEY Appearance for Defendants William J. Cadigan, Laura K Donahue, William R Haine, Ian K Linnabary, William M McGuffage, in their official capacities as Board Members for the Illinois Board of Elections, Katherine S O'Brien, Charles W. Scholz, Cassandra B. Watson by Erin Walsh (Walsh, Erin) (Entered: 04/10/2020)
13 ATTORNEY Appearance for Defendant Jesse White by Michael T. Dierkes (Dierkes, Michael) (Entered: 04/13/2020)
14 RESPONSE by Devon Reidin Opposition to MOTION by Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught for preliminary injunction or permanent injun 4 (Attachments: # 1 Notice of Filing)(Ruggie, Alexandra) (Entered: 04/15/2020)
15 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Devon Reid (Attachments: # 1 Notice of Filing)(Ruggie, Alexandra) (Entered: 04/15/2020)
16 ATTORNEY Appearance for Defendant Karen A Yarbrough by Silvia Mercado Masters (Masters, Silvia) (Entered: 04/16/2020)
17 RESPONSE by Karen A Yarbroughin Opposition to MOTION by Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught for

04/16/2020 04/16/2020 04/16/2020
04/16/2020
04/16/2020 04/16/2020 04/17/2020
04/20/2020

preliminary injunction or permanent injun 4 (Attachments: # 1 Exhibit 1. Declaration of James Nally)(Scheller, Jessica) (Entered: 04/16/2020)
18 First MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Karen A Yarbrough , MOTION by Defendant Karen A Yarbrough to dismiss for lack of jurisdiction (Scheller, Jessica) (Entered: 04/16/2020)
19 MEMORANDUM by Karen A Yarbrough in support of Motion to Dismiss for Failure to State a Claim, motion to dismiss/lack of jurisdiction 18 (Scheller, Jessica) (Entered: 04/16/2020)
20 RESPONSE by Jesse Whitein Opposition to MOTION by Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught for preliminary injunction or permanent injun 4 (Attachments: # 1 Exhibit 1)(Dierkes, Michael) (Entered: 04/16/2020)
21 MEMORANDUM by William J. Cadigan, Laura K Donahue, William R Haine, Ian K Linnabary, William M McGuffage, in their official capacities as Board Members for the Illinois Board of Elections, Katherine S O'Brien, Charles W. Scholz, Cassandra B. Watson in Opposition to motion for preliminary injunction, 4 (Attachments: # 1 Exhibit A)(Walsh, Erin) (Entered: 04/16/2020)
22 CERTIFICATE of Service of proposed Order(s) to Plaintiffs' Emergency Motion for Preliminary or Permanent Injunction and Declaration as a Matter of Law (Mauck, John) (Entered: 04/16/2020)
23 CERTIFICATE of Service by Alexandra Brien MacKey Ruggie on behalf of Devon Reid (Ruggie, Alexandra) (Entered: 04/16/2020)
24 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Telephone status hearing held. For the reasons stated on the record, Plaintiffs' emergency motion for preliminary or permanent injunction and a declaration as a matter of law 4 is denied. Plaintiffs' motion for leave to appear pro hac vice 2 is granted. Attorney Patrick J. Quinn is given leave to file an attorney appearance form on behalf of Plaintiffs. Defendants Devon Reid and Karen A Yarbrough's motions to dismiss 15 and 18 are taken under advisement. Plaintiffs' response shall be filed by May 13, 2020. Defendants' reply in support shall be filed by May 27, 2020. Notice mailed by judge's staff (ntf, ) (Entered: 04/17/2020)
25 TRANSCRIPT OF PROCEEDINGS held on 04/17/2020 before the Honorable Rebecca R. Pallmeyer. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR. Official Court Reporter. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript

04/24/2020
04/27/2020
04/27/2020 04/28/2020
04/28/2020 04/28/2020

Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 5/11/2020. Redacted Transcript Deadline set for 5/21/2020. Release of Transcript Restriction set for 7/20/2020. (Walsh, Judy) (Entered: 04/20/2020)
28 ORDER Third Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on April 24, 2020. All open cases are impacted by this Third Amended General Order. Parties are must carefully review all obligations under this Order, including the requirement listed in paragraph number 5 to file a joint written status report in most civil cases. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 4/24/2020: Mailed notice. (docket9, ) (Entered: 04/27/2020)
26 AMENDED complaint by Committee for the Illinois Democracy Amendment, an unincorporated political association, Elizabeth Norden, William Morgan, Jackson Paller, David Vaught, Doris Davenport, Andrea Raila against All Defendants (Attachments: # 1 Exhibit 1 Declaration of William Morgan, # 2 Exhibit 2 Declaration of Elizabeth Norden, # 3 Exhibit 3 Declaration of David Vaught, # 4 Exhibit 4 Declaration of Doris Davenport, # 5 Exhibit 5 Declaration of Andrea Raila, # 6 Exhibit 6 Declaration of Jackson Paller, # 7 Exhibit 7 Order)(Mauck, John) (Entered: 04/27/2020)
27 NOTICE by All Plaintiffs re amended complaint,, 26 (Mauck, John) (Entered: 04/27/2020)
29 MOTION by Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught for reconsideration regarding order on motion to appear pro hac vice,,, order on motion for preliminary injunction,,, Order on Motion to Dismiss for Failure to State a Claim,,,,,, order on motion to dismiss/lack of jurisdiction,,, status hearing,,, set motion and R&R deadlines/hearings,, 24 in light of new developments and to correct the record (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Mauck, John) (Entered: 04/28/2020)
30 NOTICE of Motion by John W Mauck for presentment of motion for reconsideration,, 29 before Honorable Rebecca R. Pallmeyer on 4/30/2020 at 08:45 AM. (Mauck, John) (Entered: 04/28/2020)
31 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Plaintiffs' emergency motion to reconsider in light of new developments and to correct the record 29 is taken under advisement. Defendants' response shall be filed by close of business on Monday, May 4, 2020. Plaintiffs' reply, if

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05/06/2020
05/06/2020 05/07/2020

any, shall be filed by Wednesday, May 6, 2020. Telephone motion hearing set for May 7, 2020 at 10:00 a.m. The court is aware that the parties have endeavored to reach a resolution of their dispute and urges them to continue those efforts. Motion hearing date of 4/30/2020 is stricken. Notice mailed by judge's staff (ntf, ) (Entered: 04/28/2020)
32 RESPONSE by Devon Reidin Opposition to MOTION by Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught for reconsideration regarding order on motion 29 (Cummings, Nicholas) (Entered: 05/01/2020)
33 NOTICE by Devon Reid re response in opposition to motion, 32 (Cummings, Nicholas) (Entered: 05/01/2020)
34 RESPONSE by Karen A Yarbroughin Opposition to MOTION by Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught for reconsideration regarding order on motion 29 (Masters, Silvia) (Entered: 05/04/2020)
35 RESPONSE by William J. Cadigan, Laura K Donahue, William R Haine, Ian K Linnabary, William M McGuffage, in their official capacities as Board Members for the Illinois Board of Elections, Katherine S O'Brien, Charles W. Scholz, Cassandra B. Watsonin Opposition to MOTION by Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught for reconsideration regarding order on motion 29 (joint response on behalf of Illinois State Board of Elections Defendants and Defendant Jesse White, Illinois Secretary of State (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Walsh, Erin) (Entered: 05/04/2020)
36 RESPONSE by Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaughtin Support of MOTION by Plaintiffs Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught for reconsideration regarding order on motion 29 to reconsider in light of new developments and to correct the record (Mauck, John) (Entered: 05/06/2020)
37 NOTICE by All Plaintiffs re response in support of motion,, 36 to reconsider in light of new developments and to correct the record (Mauck, John) (Entered: 05/06/2020)
38 MINUTE entry before the Honorable Rebecca R. Pallmeyer: Telephone status hearing held. For the reasons stated on the record, Plaintiffs'

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emergency motion to reconsider in light of new developments and to correct the record 29 is denied. Notice mailed by judge's staff (ntf, ) (Entered: 05/08/2020)
39 TRANSCRIPT OF PROCEEDINGS held on 05/07/2020 before the Honorable Rebecca R. Pallmeyer. Order Number: 38482. Court Reporter Contact Information: Judith A. Walsh, CSR, RDR, F/CRR, Official Court Reporter. judith_walsh@ilnd.uscourts.gov. <P>IMPORTANT: The transcript may be viewed at the court's public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through the Court Reporter/Transcriber or PACER. For further information on the redaction process, see the Court's web site at www.ilnd.uscourts.gov under Quick Links select Policy Regarding the Availability of Transcripts of Court Proceedings.</P> Redaction Request due 6/1/2020. Redacted Transcript Deadline set for 6/9/2020. Release of Transcript Restriction set for 8/7/2020. (Walsh, Judy) (Entered: 05/09/2020)
40 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Devon Reid (Ruggie, Alexandra) (Entered: 05/11/2020)
41 NOTICE by Devon Reid re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Defendant Devon Reid 40 (Ruggie, Alexandra) (Entered: 05/11/2020)
42 MOTION by Defendant Karen A Yarbrough to dismiss for lack of jurisdiction and for failure to state a claim (Masters, Silvia) (Entered: 05/11/2020)
43 MEMORANDUM by Karen A Yarbrough in support of motion to dismiss/lack of jurisdiction 42 and for failure to state a claim (Masters, Silvia) (Entered: 05/11/2020)
44 NOTICE of appeal by Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught regarding orders 24 , 38 Filing fee $ 505, receipt number 0752-17004563. Receipt number: n (Mauck, John) (Entered: 05/12/2020)
45 DOCKETING Statement by Committee for the Illinois Democracy Amendment, an unincorporated political association, Doris Davenport, William Morgan, Elizabeth Norden, Jackson Paller, Andrea Raila, David Vaught regarding notice of appeal, 44 (Mauck, John) (Entered: 05/12/2020)
46 NOTICE by All Plaintiffs re notice of appeal, 44 , docketing statement, 45 (Mauck, John) (Entered: 05/12/2020)
47 NOTICE of Appeal Due letter sent to counsel of record regarding notice of appeal, 44 (mc, ) (Entered: 05/13/2020)

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48 TRANSMITTED to the 7th Circuit the short record on notice of appeal, 44 . Notified counsel (mc, ) (Entered: 05/13/2020)
49 ACKNOWLEDGMENT of receipt of short record on appeal regarding notice of appeal, 44 ; USCA Case No. 20-1801. (mc, ) (Entered: 05/13/2020)
50 MEMORANDUM Opinion and Order. The court denies Plaintiffs' Emergency Motion for Reconsideration in Light of New Developments and to Correct the Record 29 . Signed by the Honorable Rebecca R. Pallmeyer on 5/18/2020. Notice mailed by judge's staff (ntf, ) (Entered: 05/18/2020)
51 REQUEST for Clerk of Court to refund filing fee in the amount of 150.00,, for duplicate charge (Attachments: # 1 Exhibit Exhibit A)(Mauck, John) (Entered: 05/22/2020)
52 ORDER ORDER Fourth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on May 26, 2020. This Order does not extend or modify any deadlines set in civil cases. For non-emergency motions, no motion may be noticed for presentment on a date earlier than July 15, 2020. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 5/26/2020: Mailed notice. (docket10, ) (Entered: 05/26/2020)
53 NOTICE of Motion by Silvia Mercado Masters for presentment of motion to dismiss/lack of jurisdiction 42 before Honorable Charles R. Norgle Sr. on 7/17/2020 at 09:30 AM. (Masters, Silvia) (Entered: 05/27/2020)
54 MOTION by Defendants William J. Cadigan, Laura K Donahue, William R Haine, Ian K Linnabary, William M McGuffage, in their official capacities as Board Members for the Illinois Board of Elections, Katherine S O'Brien, Charles W. Scholz, Cassandra B. Watson to stay deadline to answer or otherwise plead (joint motion on behalf of Illinois State Board of Elections Defendants and Defendant Jesse White, Illinois Secretary of State) (unopposed) (Walsh, Erin) (Entered: 05/27/2020)
55 NOTICE of Motion by Alexandra Brien MacKey Ruggie for presentment of Motion to Dismiss for Failure to State a Claim 40 before Honorable Charles R. Norgle Sr. on 7/17/2020 at 09:30 AM. (Ruggie, Alexandra) (Entered: 05/27/2020)
56 ORDER Fifth Amended General Order 20-0012 IN RE: CORONAVIRUS COVID-19 PUBLIC EMERGENCY Signed by the Chief Judge Rebecca R. Pallmeyer on July 10, 2020. This Order does not extend or modify any deadlines set in civil cases. No motions may be noticed for in-person presentment; the presiding judge will notify parties of the need, if any, for a hearing by electronic means or in-court proceeding. See attached Order. Signed by the Honorable Rebecca R. Pallmeyer on 7/10/2020: Mailed notice. (Clerk9, Docket) (Entered: 07/10/2020)

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57 MINUTE entry before the Honorable Charles R. Norgle: Plaintiff's responses to Defendants Motions to Dismiss 40 , 42 and Defendants' Motion to Stay, 54 are due on or before 8/14/2020. Defendants' replies are due on or before 8/28/2020. No appearance is required on Friday, July 17, 2020. Mailed notice (ewf, ) (Entered: 07/13/2020)
58 MOTION by Defendants William J. Cadigan, Laura K Donahue, William R Haine, Ian K Linnabary, William M McGuffage, in their official capacities as Board Members for the Illinois Board of Elections, Katherine S O'Brien, Charles W. Scholz, Cassandra B. Watson to stay deadline to answer or otherwise plead (amended and unopposed) (Walsh, Erin) (Entered: 07/13/2020)
59 NOTICE of Motion by Erin Walsh for presentment of motion to stay, 58 before Honorable Charles R. Norgle Sr. on 7/17/2020 at 09:30 AM. (Walsh, Erin) (Entered: 07/13/2020)
60 MINUTE entry before the Honorable Charles R. Norgle:The State Defendants' Unopposed Amended Motion to Stay Deadline to Answer or Otherwise Plead 58 is granted. No appearance is required on Friday, July 17, 2020. Mailed notice (ewf, ) (Entered: 07/15/2020)
61 NOTICE of Voluntary Dismissal by All Plaintiffs (Mauck, John) (Entered: 08/11/2020)
62 NOTICE by All Plaintiffs re notice of voluntary dismissal 61 (Mauck, John) (Entered: 08/11/2020)
63 MANDATE of USCA dated 8/11/2020 regarding notice of appeal, 44 ; USCA No. 20-1801; No record to be returned. (ec, ) (Entered: 08/11/2020)
64 CERTIFIED copy of order dated 8/11/2020 from the 7th Circuit regarding notice of appeal, 44 ; Appellate case no. 20-1801; Plaintiff-Appellants filed a petition for rehearing and rehearing en banc on July 17, 2020. No judge in regular active services has requested a vote on the petition for rehearing en banc, and all of the judges on the panel have voted to deny rehearing. The petition for rehearing is therefore DENIED. (ec, ) (Entered: 08/11/2020)
65 CERTIFIED COPY OF USCA JUDGMENT dated 7/8/2020 regarding notice of appeal, 44 ; USCA No. 20-1801; The order denying the motion for a preliminary injunction is AFFIRMED, withcosts. The plaintiffs remain free to contend to the district court that a permanent injunction would be justified if social-distancing rules are indefinitely extended, but that long-term question does not require immediate resolution. The above is in accordance with the decision of this court entered on this date. (ec, ) (Entered: 08/11/2020)
66 CERTIFIED COPY OF OPINION from the USCA for the 7th Circuit; Submitted 7/6/2020; Decided 7/8/20/20 in USCA case no. 20-1801. (ec, ) (Entered: 08/11/2020)

08/13/2020 67 MINUTE entry before the Honorable Charles R. Norgle: Case dismissed without prejudice 61 . Civil case terminated. Mailed notice (ewf, ) (Entered: 08/13/2020)

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 Case: 1:20-cv-02189 Document #: 1 Filed: 04/07/20 Page 1 of 13 PageID #:1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. Honorable Judge

VERIFIED COMPLAINT FOR EMERGENCY DECLARATORY AND INJUNCTIVE RELIEF

NATURE OF THE CASE 1. This is an action to enjoin or modify Illinois petition collection requirements for initiative referendums to be placed on the November 3, 2020 general election ballot and
1

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to enable and require the Defendants to accommodate the constitutional rights and interests of the Plaintiffs and the general public in light of the current public health emergency caused by the novel coronavirus and the Governor’s shelter-in-place emergency orders.
2. Under current circumstances, the Plaintiffs and Illinois voters are forced to choose between their health and their rights to petition and vote. Reforms and modifications to Illinois’ initiative referendum election procedures in light of the COVID-19 pandemic are appropriate.
PARTIES 3. Plaintiff William Morgan is an Illinois registered voter and the Chairman of the Committee for the Illinois Democracy Amendment. Plaintiff Morgan has begun an initiative petition drive for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 1, Morgan Declaration. 4. Plaintiff Elizabeth Norden is an Illinois registered voter who wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 2, Norden Declaration. 5. Plaintiff David Vaught is a 72-year-old Illinois registered voter who wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois
2

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Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 3, Vaught Declaration.
6. Plaintiff Doris Davenport is an Illinois registered voter who wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 4, Davenport Declaration.
7. Plaintiff Andrea Raila is a 61-year-old Illinois registered voter who wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 5, Raila Declaration.
8. Plaintiff Jackson Paller is an Illinois registered voter who wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Plaintiff Paller also wishes to circulate an initiative petition for a local government referendum in Evanston, Illinois pursuant to Article VII, Section 11 of the Illinois Constitution. Exhibit 6, Paller Declaration.
9. Plaintiff Committee for the Illinois Democracy Amendment is an unincorporated political association registered as a ballot initiative committee with the Illinois State Board of Elections. See Exhibit 1, Morgan Declaration.
3

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10. Defendant Jesse White is the Illinois Secretary of State who is constitutionally authorized to accept filings of petitions for constitutional amendments pursuant to Article XIV, Section 3 of the Illinois Constitution.
11. Defendant Devon Reid is the Evanston City Clerk whose office is responsible for all matters involving local elections in Evanston, Illinois and is authorized to accept filings of local government initiative referendums for Evanston pursuant Article VII, Section 11 of Illinois Constitution and to certify those referendums to the Cook County Clerk for ballot placement.
12. Defendant Karen A. Yarbrough is the Cook County Clerk whose office is responsible for placing on the election ballot any Article VII initiative referendum questions certified by the clerks of suburban Cook County municipalities, including the Evanston City Clerk.
13. Defendants William J. Cadigan, Katherine S. O’Brien, Laura K. Donahue, Cassandra B. Watson, William R. Haine, Ian K Linnabary, Charles W. Scholz, and William M. McGuffage, are members of the Illinois State Board of Elections and are empowered to enforce and administer Illinois election laws.
JURISDICTION AND VENUE 14. This Court has jurisdiction over the subject matter of this action by virtue of U.S.C. § 1331 (federal question jurisdiction), this being a case arising under the United
4

Case: 1:20-cv-02189 Document #: 1 Filed: 04/07/20 Page 5 of 13 PageID #:5
States Constitution and 42 U.S.C. § 1983; 28 U.S.C. § 2201 (authorizing declaratory
relief); and 28 U.S.C. § 2202 (authorizing injunctive relief).
15. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(e) and 1402(a) and 5
U.S.C. § 703.
FACTUAL BACKGROUND
16. Article XIV, Section 3 of the Illinois Constitution provides that
Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. Amendments shall be limited to structural and procedural subjects contained in Article IV. A petition shall contain the text of the proposed amendment and the date of the general election at which the proposed amendment is to be submitted, shall have been signed by the petitioning electors not more than twenty-four months preceding that general election and shall be filed with the Secretary of State at least six months before that general election. The procedure for determining the validity and sufficiency of a petition shall be provided by law. If the petition is valid and sufficient, the proposed amendment shall be submitted to the electors at that general election and shall become effective if approved by either three-fifths of those voting on the amendment or a majority of those voting in the election.
17. Article VII, Section 11 of the Illinois Constitution provides that
(a) Proposals for actions which are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the electors by resolution of the governing board of a unit of local government or by petition of electors in the manner provided by law. (b) Referenda required by this Article shall be held at general elections, except as otherwise provided by law. Questions submitted to referendum shall be adopted if approved by a majority of those voting on the question unless a different requirement is specified in this Article.
5

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18. Article III, Section 3 of the Illinois Constitution provides that “[a]ll elections shall be free and equal.”
19. On May 27, 2019, both houses of the Illinois General Assembly adopted Senate Joint Resolution Constitutional Amendment 1, which placed a Constitutional Amendment referendum for an amendment known as the “Fair Tax Amendment,” on the ballot for the November 3, 2020 general election, pursuant to Article XIV, Section 2 of the Illinois Constitution.
20. The deadline for the Illinois General Assembly to place a Constitutional Amendment referendum on the ballot, pursuant to Article XIV, Section 2, is May 3, 2020.
21. On November 14, 2019, the Illinois General Assembly adopted a resolution creating the Illinois Joint Commission on Lobbying and Ethics Reform. This body was charged with examining current Illinois legislation regarding ethics, soliciting feedback from experts and the general public, and releasing a final report with its review and recommendations by no later than March 31, 2020.
22. Sometime around December 2019, an outbreak of respiratory disease now known as COVID-19, or coronavirus, emerged in Wuhan, China.
23. Since then, the outbreak has spread to the majority of the world, with the United States reporting the most cases.
6

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24. On February 27, 2020, the Centers for Disease Control issued guidance in response to COVID-19 which recommended, among other things, the practice of social distancing.
25. On March 9, 2020, the Governor of Illinois proclaimed the entire state a disaster area1 and later banned gatherings of 1,000 people or more and closed all schools, restaurants, and bars.2
26. On March 11, 2020, the World Health Organization declared COVID-19 to be a global pandemic.
27. On March 13, 2020, the President of the United States declared a national emergency.
28. On March 15, 2020, the Illinois General Assembly suspended session indefinitely due to the COVID-19 pandemic.
29. On March 20, 2020, the Governor of Illinois ordered everyone to shelter at home with the exception of “essential” activities and services, and to maintain six foot distance from others.3
30. On March 31, 2020, the co-chairs of the Commission on Lobbying and Ethics Reform stated that due to the COVID-19 pandemic, the commission would be unable to reach the March 31, 2020 deadline and would need more time.
1 https://www2.illinois.gov/sites/gov/Documents/APPROVED%20%20Coronavirus%20Disaster%20Proc%20WORD.pdf. 2 https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-04.aspx. 3 https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-10.aspx.
7

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31. The Governor’s shelter at home and social distancing order is in effect until at least April 30, 2020.4 Because of the uncertainty of this health crisis, it is unknown when the order will be lifted or when petition passing may resume.
32. Circulating initiative petitions is not listed as an “essential” activity under the Governor’s order. The health crisis coupled with the Governor’s orders makes it impossible to gather signatures in Illinois. In addition, gathering signatures during the health crisis would endanger the health of the circulators and that of the public at large.
33. A number of states have taken action to protect the constitutional right to petition and vote in the midst of this health crisis. For example, on March 19, 2020, the Governor of New Jersey issued an executive order to the Secretary of State to implement online petitioning and signature collection.5 On April 2, 2020, Florida’s Secretary of State signed an emergency order allowing for the collection of petition signatures online.6 Moreover, the Arizona Secretary of State has provided an online petitioning mechanism for candidates since 2011.7 On March 14, 2020, the Governor of New York issued an executive order reducing the required number of petition signatures for all petitions for ballot access to 30% of the state threshold.8
4 https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-18.aspx 5 https://www.state.nj.us/state/elections/assets/pdf/candidate/EO-105.pdf 6 https://dos.myflorida.com/media/702874/1ser20-2.pdf 7 https://apps.azsos.gov/equal/ 8 https://www.governor.ny.gov/news/amid-covid-19-pandemic-governor-cuomo-signs-executive-ordertemporarily-modifying-election
8

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34. In order for Plaintiffs’ constitutional amendment referendum to qualify for the November 3, 2020 general election, they must submit 363,813 initiative petition signatures to the Illinois Secretary of State by May 3, 2020. See Article XIV, Section 3 of the Illinois Constitution and Section 28-9 of the Illinois Election Code.
35. For the Evanston local initiative referendum to qualify, Plaintiff Paller must submit 2,800 signatures to the Evanston City Clerk by August 3,, 2020. See Article VII, Section 11 of the Illinois Constitution and Section 28-7 of the Illinois Election Code.
36. Apart from judicial relief, the Plaintiffs have no way to exercise their right to petition and speech without jeopardizing their health and health of the general public.
COUNT I RIGHT TO PETITION AND SPEECH 37. The allegations contained in all preceding paragraphs are incorporated here by reference. 38. Plaintiffs’ rights to petition and speech are protected by the First Amendment to the United States Constitution in conjunction with Article XIV, Section 3, Article VII, Section 11, Article III, Section 3 of the Illinois Constitution. Section 28 of the Illinois Election Code also requires statewide and local initiative referendum petition sheets to contain a sworn and notarized affidavit of the petition circulator that he personally witnessed the signatures of all signers of the petition and the notary attesting that he witnessed the signature of the circulator. In addition, initiative petition signatures must be handwritten by the signer on a paper petition. Finally, the paper initiative petition
9

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pages must be bound and filed in one book with the appropriate officer as designated by Article VII or Article XIV of the Illinois Constitution.
39. Under the circumstances, the Illinois petition collection requirements unduly burden and violate Plaintiffs’ rights to petition and speech.
40. A real and actual controversy exists between the parties. 41. Plaintiffs have no actual remedy at law other than this action. 42. Plaintiffs are suffering, and will continue to suffer, irreparable harm until they obtain relief from this Court.
WHEREFORE, Plaintiffs respectfully pray that the Court grant the relief set forth in the prayer for relief below.
COUNT II RIGHT TO EQUAL PROTECTION AND DUE PROCESS 43. The allegations contained in all preceding paragraphs are incorporated here by reference. 44. Under the present circumstances, Illinois’ petition collection requirements unduly burden and violate Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution as well as Article I, Section 2, Article III, Section 3, Article VII, Section 11, and Article XIV, Section 3 of Illinois Constitution. 45. A real and actual controversy exists between the parties.
10

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46. Plaintiffs have no actual remedy at law other than this action. 47. Plaintiffs are suffering, and will continue to suffer, irreparable harm until they obtain relief from this Court. WHEREFORE, Plaintiffs respectfully pray that the Court grant the relief set forth in the prayer for relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Assume original jurisdiction over this matter; B. Issue a temporary restraining order and/or preliminary injunction (i) enjoining or
modifying enforcement of Illinois' petition collection requirements for initiative referendums for Illinois' November 3, 2020 general election; and (ii) enabling and requiring the Defendants to allow for petitions to be submitted electronically via names of qualified electors collected by an online form to be created by the Secretary of State; extend the May 3, 2020 deadline for an Article XIV, Section 3 referendum to August 3, 2020; and reduce by 50% the number of signatures required to qualify statewide and Evanston initiative referendums for the general election ballot or some percentage of required signatures necessary to demonstrate substantial public support; C. Issue a declaratory judgment stating that, in light of the current public health emergency caused by the novel coronavirus and executive orders requiring that
11

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Illinois citizens stay at home and shelter in place, Illinois' petition collection requirements for qualifying Article XIV and Article VII referendums for the general election cannot be constitutionally enforced; D. Issue a permanent injunction prohibiting enforcement of Illinois' petition collection requirements for Article XIV and Article VII referendums for the November 3, 2020 general election; E. Order Defendants to pay to Plaintiffs their costs and reasonable attorneys’ fees under 42 U.S.C. § 1988(b); F. Grant such other relief as this Court deems appropriate. Respectfully submitted this 7th day of April, 2020.
/s/ WILLIAM MORGAN, ET AL., John Mauck Sorin A. Leahu Mauck & Baker, LLC 1 N. LaSalle Street, Suite 600 Chicago, IL 60602 312-726-1243 Jmauck@mauckbaker.com sleahu@mauckbaker.com Pat Quinn 216 N. Jefferson #200 Chicago, IL 60661 312-485-1852 Ltg.patquinn@gmail.com
12

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 68T

Case: 1:20-cv-02189 Document #: 1-1 Filed: 04/07/20 Page 1 of 1 PageID #:14

ILND 44 (Rev. 09/07/18)

CIVIL COVER SHEET

The ILND 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (See instructions on next page of this form.)

I. (a) PLAINTIFFS

DEFENDANTS

William Morgan et al.

Jesse White, in his official capacity as Illinois Secretary of State et al.

(b) County of Residence of First Listed Plaintiff Will County
(Except in U.S. plaintiff cases)
(c) Attorneys (firm name, address, and telephone number)
John W. Mauck & Sorin A. Leahu, Mauck & Baker LLC 1 N. LaSalle St., Suite 600, Chicago IL 60602, 312-726-1243

County of Residence of First Listed Defendant

Sangamon County

(In U.S. plaintiff cases only)

Note: In land condemnation cases, use the location of the tract of land involved.

Attorneys (if known)

II. BASIS OF JURISDICTION (Check one box, only.)

1 U.S. Government Plaintiff

■ 3 Federal Question (U.S. Government not a party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (For Diversity Cases Only.)

(Check one box, only for plaintiff and one box for defendant.)

PTF

DEF

PTF DEF

Citizen of This State

1

1 Incorporated or Principal Place

4

4

of Business in This State

2 U.S. Government Defendant

4 Diversity (Indicate citizenship of parties in Item III.)

Citizen of Another State

2

2 Incorporated and Principal Place

of Business in Another State

5

5

Citizen or Subject of a Foreign Country

IV. NATURE OF SUIT (Check one box, only.)

CONTRACT

TORTS

PRISONER PETITIONS

110 Insurance 120 Marine 130 Miller Act 140 Negotiable Instrument 150 Recovery of Overpayment
& Enforcement of Judgment 151 Medicare Act 152 Recovery of Defaulted Student
Loans (Excludes Veterans) 153 Recovery of Veteran’s Benefits

PERSONAL INJURY 310 Airplane 315 Airplane Product Liability 320 Assault, Libel & Slander 330 Federal Employers’ Liability 340 Marine 345 Marine Product Liability 350 Motor Vehicle

PERSONAL INJURY 530 General 367 Health Care/
Pharmaceutical Personal Injury Product Liability 368 Asbestos Personal Injury
Product Liability

510 Motions to Vacate Sentence 530 General 535 Death Penalty +DEHDV&RUSXV 540 Mandamus & Other 550 Civil Rights 555 Prison Condition 560 Civil Detainee – Conditions of Confinement

160 Stockholders’ Suits 190 Other Contract 195 Contract Product Liability 196 Franchise

355 Motor Vehicle Product Liability
360 Other Personal Injury 362 Personal Injury -
Medical Malpractice

PERSONAL PROPERTY 370 Other Fraud 371 Truth in Lending 380 Other Personal
Property Damage 385 Property Damage
Product Liability

3

3 Foreign Nation

LABOR 710 Fair Labor Standards Act 720 Labor/Management Relations 740 Railway Labor Act 751 Family and Medical
Leave Act 790 Other Labor Litigation 791 Employee Retirement
Income Security Act
PROPERTY RIGHTS 820 Copyrights 830 Patent 835 Patent – Abbreviated
New Drug Application 840 Trademark

REAL PROPERTY 210 Land Condemnation 220 Foreclosure 230 Rent Lease & Ejectment 240 Torts to Land 245 Tort Product Liability 290 All Other Real Property

CIVIL RIGHTS ■ 440 Other Civil Rights ■ 441 Voting
442 Employment 443 Housing/
Accommodations 445 Amer. w/Disabilities -
Employment
446 Amer. w/Disabilities Other
448 Education

BANKRUPTCY 422 Appeal 28 USC 158 423 Withdrawal 28 USC 157
IMMIGRATION 462 Naturalization
Application 463 Habeas Corpus - Alien
Detainee (Prisoner Petition) 465 Other Immigration
Actions

FORFEITURE/PENALTY 625 Drug Related Seizure
of Property 21 USC 881 690 Other

SOCIAL SECURITY 861 HIA (1395ff) 862 Black Lung (923) 863 DIWC/DIWW (405(g)) 864 SSID Title XVI 865 RSI (405(g))
FEDERAL TAXES 870 Taxes (U.S. Plaintiff or Defendant) 871 IRS—Third Party
26 USC 7609

6

6

OTHER STATUTES
375 False Claims Act 376 Qui Tam (31 USC 3729 (a)) 400 State Reapportionment 410 Antitrust 430 Banks and Banking 450 Commerce 460 Deportation 470 Racketeer Influenced and
Corrupt Organizations 480 Consumer Credit 485 Telephone Consumer
Protection Act (TCPA) 490 Cable/Sat TV 850 Securities/Commodities/
Exchange 890 Other Statutory Actions 891 Agricultural Acts 893 Environmental Matters 895 Freedom of Information Act 896 Arbitration 899 Administrative Procedure
Act/Review or Appeal of Agency Decision 950 Constitutionality of State Statutes

V. ORIGIN (Check one box, only.)

1 Original

2 Removed from

Proceeding

State Court

3 Remanded from Appellate Court

VI. CAUSE OF ACTION (Enter U.S. Civil Statute under which you are filing and
write a brief statement of cause.)
42 U.S.C. § 1983 - civil rights

4 Reinstated or Reopened

5 Transferred from Another District
(specify)

6 Multidistrict Litigation

8 Multidistrict Litigation Direct File

VII. PREVIOUS BANKRUPTCY MATTERS (For nature of suit 422 and 423, enter the
case number and judge for any associated bankruptcy matter previously adjudicated by a judge of this Court. Use a separate attachment if necessary.)

VIII. REQUESTED IN COMPLAINT:
IX. RELATED CASE(S) IF ANY

Check if this is a class action Under rule 23, Demand $ F.R.CV.P.
(See instructions)
Judge

Check Yes only if demanded in complaint.

Jury Demand:

Yes

No

Case Number

X. Is this a previously dismissed or remanded case? Yes

No If yes, Case #

Date

Signature of attorney of record

4/7/2020

/s/ John W. Mauck

Name of Judge

Case: 1:20-cv-02189 Document #: 1-2 Filed: 04/07/20 Page 1 of 4 PageID #:15
EXHIBIT 1

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EXHIBIT 2

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IiN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH

)

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

}

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association,

},

J

Plaintiffs,

)

)

v.

)

)

]ESe£. 1-,;s v

'"\ATJ-HTP ~~
y-.,. L..L....l. . ..l. L..l, LLL..l.l..I..

"j:~~;~1
V.L.l...l..\...Lt..l..L

~~C~L~..t.',U,.\.-;.~L,',-y

,\

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston city clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk. and WlLLIA_M )
J. CADIGAN, KATHERINE S. O'BRIEN,}

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAlNE,

)

IAN K. LINNABARY, CHARLES W. )

5CHOLZ-, WILLIAM M. MCGUFF AGE..t )

in their official capacities as Board

}

Members for the illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. Honorable Judge

DECLARATION OF ELIZABETH NORDEN I, Elizabeth Norden, make this declaration upon my personal knowledge and as I would testify if called as a witness in open court.

Case: 1:20-cv-02189 Document #: 1-3 Filed: 04/07/20 Page 3 of 3 PageID #:21

1. I aman Illinois-registered voter over the age-of 18 currently residing atZ500 I'<L Lakeview, Chicago, IL60614.
2. Lintend to vote at the November 3, 2020, general election which includes a constitutional amendment referendum on the Fair Tax Amendment proposed by the Illinois Ceneral Assembly pursuarrtto Article XIV, Secti.on.2 of the Illinois Constitution.

3, I wish to circulate an rnitiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Corrstitntion,

4. However, 1 am concerned about the ongoing COVID-19 health crisis and 1intend to abide

by the State"scurrent shelterarhome and soda! distancing orders. rtgi re

to

circulate petitions online Iwould do so.

5. In 2018, I collected more than 6,000 initiative petition signatures for a local government referendum, in Qticag,u pursuant tv Article 'Ill ~divu 11 vi tht: Ill.U.tvi~Consti UUUll. The

illinois 'Election Code for an Article VII referendum. Under penalties as provided by law, the undersigned certifies that the statements set forth in

belief and as to such metters the tmden<igned rPrtifif'?!' Rt'- afn~aid that she verily believes-the same to be true. Date: April 7, 2020
Elizabeth Norden

2

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EXHIBIT 3

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Case: 1:20-cv-02189 Document #: 1-4 Filed: 04/07/20 Page 3 of 4 PageID #:24
1. I am a 72 year old Illinois registered voter currently residing at 1135 Gateshead Drive, Naperville, IL 60564.
2. I intend to vote at the November 3, 2020, general election which includes a constitutional amendment referendum on the Fair Tax Amendment proposed by the Illinois General Assembly pursuant to Article XIV, Section 2 of the Illinois Constitution.
3. I wish to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution.
4. However, I am concerned about the ongoing COVID-19 health crisis and I intend to abide by the State’s current shelter at home and social distancing orders. If given the opportunity to circulate petitions online I would do so.
5. In 1976, 1980, 1982, and 1994, I collected initiative petition signatures and coordinated the petition drives for statewide constitutional amendment referendums pursuant to Article XIV, Section 3. Each of the four statewide petition drives exceeded the minimum signature requirement for an Article XIV referendum in Section 28-9 of the Illinois Election Code. Each of the four statewide petition drives obtained the bulk of their signatures in the last seven weeks of the petition drive before the deadline.
Under penalties as provided by law, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Date: April 7, 2020
2

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EXHIBIT 4

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EXHIBIT 5

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EXHIBIT 6

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 Case: 1:20-cv-02189 Document #: 4 Filed: 04/09/20 Page 1 of 4 PageID #:40

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

EMERGENCY MOTION FOR PRELIMINARY OR PERMANENT INJUNCTION AND DECLARATION AS A MATTER OF LAW

NOW COME Plaintiffs, William Morgan, et. al., by and through counsel, and pursuant to Rules 57 and 65 of the Federal Rules of Civil Procedure move this Court for an Emergency Preliminary or Permanent Injunction and a Declaration as a matter of law against the Defendants.

Case: 1:20-cv-02189 Document #: 4 Filed: 04/09/20 Page 2 of 4 PageID #:41
In support of this Motion, the Plaintiffs incorporate by reference their previously filed Verified Complaint ((Dkt. 001), the exhibits attached to the Verified Complaint, as well as their Memorandum of Law in Support of this motion, and hereby state as follows:
1. NOTICE TO DEFENDANTS: Pursuant to Rule 65 of the Federal Rules of Civil Procedure, undersigned counsel for the Plaintiffs respectfully certifies to the Court that on April 9, 2020, Plaintiffs provided a copy of the Verified Complaint, this Motion, and the supporting Memorandum to the following attorneys via email:
 David W. Van de Burgt- Division Chief, Government Representation- Illinois Attorney General’s Office – DVandeBurgt@atg.state.il.us
 Marni M. Malowitz- General Counsel- State Board of ElectionsMMalowitz@elections.il.gov
 Jessica Scheller- Assistant State’s Attorney- Jessica.scheller@cookcountyil.gov  Irene Lyons- General Counsel – Secretary of State- ILyons@ILSOS.gov  Kelley Gandurski- Evanston Corporation Counsel-
kgandurski@cityofevanston.org; law@cityofevanston.org 2. As established by the Memorandum in Support of this Motion, and the documents and pleadings referenced therein, the Plaintiffs are entitled to immediate declaratory and injunctive relief because 1) they are likely to succeed on the merits, 2) they are suffering, and will continue to suffer, irreparable harm in the absence of preliminary relief, 3) the balance of equities tips in the Plaintiffs’ favor, and 4) because an injunction is in the public interest. See Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). 3. The Plaintiffs request telephonic oral arguments on their motion.
2

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4. The Plaintiffs also request a waiver of any bond requirement.1 PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully request that this Court: A. Assume original jurisdiction over this matter; B. Issue a temporary restraining order and/or preliminary injunction (i) enjoining or
modifying enforcement of Illinois' petition collection requirements for initiative referendums for Illinois' November 3, 2020 general election; and (ii) enabling and requiring the Defendants to allow for petitions to be submitted electronically via names of qualified electors collected by an online form to be created by the Secretary of State; extend the May 3, 2020 deadline for an Article XIV, Section 3 referendum to August 3, 2020; and reduce by 50% the number of signatures required to qualify statewide and Evanston initiative referendums for the general election ballot or reduce by some percentage of required signatures necessary to demonstrate substantial public support; C. Issue a declaratory judgment stating that, in light of the current public health emergency caused by the novel coronavirus and executive orders requiring that Illinois citizens stay at home and shelter in place, Illinois' petition collection
1 See Doctor John’s, Inc. v. City of Sioux City, 305 F.Supp.2d 1022, 1043-44 (N.D. Iowa 2004) (“[R]equiring a bond to issue before enjoining potentially unconstitutional conduct . . . simply seems inappropriate, because the rights potentially impinged by the governmental entity’s actions are of such gravity that protection of those rights should not be contingent upon an ability to pay”).
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requirements for qualifying Article XIV and Article VII referendums for the general election cannot be constitutionally enforced; D. Issue a permanent injunction prohibiting enforcement of Illinois' petition collection requirements for Article XIV and Article VII referendums for the November 3, 2020 general election; E. Order Defendants to pay to Plaintiffs their costs and reasonable attorneys’ fees under 42 U.S.C. § 1988(b); F. Grant such other relief as this Court deems appropriate. Respectfully submitted this 9th day of April, 2020.
/s/ WILLIAM MORGAN, ET AL., John Mauck Sorin A. Leahu Mauck & Baker, LLC 1 N. LaSalle Street, Suite 600 Chicago, IL 60602 312-726-1243 Jmauck@mauckbaker.com sleahu@mauckbaker.com Pat Quinn 216 N. Jefferson #200 Chicago, IL 60661 312-485-1852 Ltg.patquinn@gmail.com
4

 
 Case: 1:20-cv-02189 Document #: 15 Filed: 04/15/20 Page 1 of 11 PageID #:82

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH NORDEN, DAVID VAUGHT, DORIS, DAVENPORT, ANDREA RAILA, JACKSON PALLER, and the COMMITTEE FOR THE ILLINOIS DEMOCRACY AMENDMENT, an Unincorporated political association,
Plaintiffs,
JESSE WHITE, in his official capacity As Illinois Secretary of State, DEVON REID, in his official capacity as the Evanston City Clerk, KAREN A. YARBROUGH, in her official capacity as Cook County Clerk, and WILLIAM J. CARDIGAN, KATHERINE S. O’BRIEN, LAURA K. DONAGUE, CASSASNDRA B. WATSON, WILLIAM R. HAINE, IAN K. LINNABARY, CHARLES W. SCHOLZ, WILLIAM M. MCGUFFAGE, In their official capacities as Board Members for the Illinois State Board of Elections,
Defendants.

) ) ) ) ) ) ) ) ) 20-cv-02189 ) Honorable Judge Charles R. Norgle, Sr. ) ) ) Magistrate Judge M. David Weisman ) ) ) ) ) ) ) ) ) ) ) ) ) )

DEFENDANT DEVON REID’S MOTION TO DISMISS

Defendant, DEVON REID, in his official capacity as the Clerk of the City of Evanston,

by his attorney KELLEY A. GANDURSKI, Corporation Counsel, and through, Nicholas E.

Cummings, Deputy City Attorney, and one of her assistants, Alexandra B. Ruggie, Assistant City

Attorney, moves this Honorable Court to dismiss the Plaintiffs’ Complaint against Defendant

Reid pursuant to Rule 12(b)(6). In support thereof, Reid states as follows:

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INTRODUCTION On April 7, 2020, Plaintiffs filed their Complaint. Dkt. 1. Plaintiffs sued a variety of entities, including the Evanston City Clerk, Devon Reid (hereafter “Reid”), in his official capacity. Notably, Reid is the only municipal clerk named in Plaintiffs’ lawsuit, even though Plaintiffs allege that this is an issue that will affect the entire State of Illinois. Plaintiffs allege violations of their First Amendment rights and request that Reid accept electronic signatures for a referendum petition. Plaintiffs’ request is misplaced. Reid is entitled to qualified immunity. Additionally, the Illinois Constitution and the Illinois Election Code control Reid’s ability to allow for electronic signatures and therefore, Plaintiffs’ lack standing regarding their claim against Reid. Plaintiffs’ Complaint also fails to state a cause of action against Reid. Plaintiffs allege that their First Amendment Rights were violated when the Illinois Governor entered an executive order to shelter in-place. Dkt. 1. Specifically, Plaintiffs allege that they are unable to collect signatures for a ballot referendum because of the Governor’s executive order. Looking at the totality of Plaintiffs’ Complaint, it is completely devoid of any allegations that Reid violated their rights and should therefore be dismissed. Lastly, Plaintiffs’ Complaint should be dismissed because Reid is sued in his official capacity, yet Plaintiffs fail to allege a Monell claim that the City of Evanston has a policy or custom or violating Plaintiffs’ rights. Plaintiffs’ complaint against Reid should be dismissed pursuant to Rule 12(b)(6) because: 1) Reid is entitled to qualified immunity; 2) Plaintiffs’ claim is not ripe; 3) Plaintiffs fail to state a cause of action against Reid, and 4) Plaintiffs do not bring a Monell claim against the City, even though they named the Evanston City Clerk in his official capacity.
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STANDARD OF REVIEW In reviewing the sufficiency of a complaint, a district court must accept all well-plead facts as true and draw all permissible inferences in favor of the plaintiff. Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012) (emphasis added). The Federal Rules of Civil Procedure require a complaint provide the defendant with “fair notice of what the…claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has described this standard as requiring a complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A complaint falls short of the plausibility standard where plaintiff “pleads facts that are 'merely consistent with' a defendant's liability . . .” Twombly, 550 U.S. at 557. A plaintiff is not required to make “detailed factual allegations,” but there must be more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citations omitted). However, “legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth,” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (citing Iqbal, 556 U.S. at 678), nor should a court “strain to find inferences favorable to plaintiffs” or accept unreasonable inferences. Caldwell v. City of Elwood, Ind., 959 F.2d 670, 673 (7th Cir. 1992). Qualified immunity is properly raised in a Rule 12(b)(6) motion because qualified immunity should be resolved as soon as possible, which is sometimes at the pleadings stage. Serrano v. Guevara, 315 F. Supp. 3d 1026, 1034 (N.D. Ill. 2018) (citing Doe v. Vill. of Arlington Heights, 782 F.3d 911, 915–16 (7th Cir. 2015)). The entitlement to qualified immunity “is an immunity from suit rather than a mere defense to liability,” and, as such, should be decided at the
3

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earliest possible stage in the litigation. Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806 (1985)); see also Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009).
ARGUMENT I. REID IS ENTITLED TO QUALIFIED IMMUNITY.
Plaintiffs allege that Reid must accept election petitions electronically otherwise their rights guaranteed by the U.S. Constitution will be violated. Dkt. 1. This acceptance of an electronic petition serves as the basis for most, if not all, of Plaintiffs’ claims against Reid. Reid, however, is entitled to qualified immunity because Reid cannot act contrary to clearly established law based on the specific facts confronting him and the information he currently possesses.
The doctrine of qualified immunity protects government officials performing discretionary functions from liability to the extent that their conduct “could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S. Ct. 3034 (1987); see also McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010) (citing Pearson, 555 U.S. at 231, 129 S. Ct. at 815). Essentially, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1098 (1986); see also Hughes v. Meyer, 880 F.2d 967, 970 (7th Cir. 1989). “In determining qualified immunity, a court asks two questions: (1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right and (2) whether that constitutional right was clearly established at the time of the alleged violation.” Hernandez v. Sheahan, 711 F.3d 816, 817 (7th Cir. 2013) (citing Pearson, 555 U.S. at 232). Courts may exercise discretion in deciding which question to address first. Id.
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Whether an [employee] has qualified immunity is a question of law for the judge to decide. See Whitt v. Smith, 832 F.2d 451, 453 (7th Cir. 1987).
Plaintiffs invoke their constitutional rights to the First Amendment freedom to petition and freedom of speech. Plaintiffs, however, “may not escape the doctrine of qualified immunity by alleging a violation of a clearly established, but very broad constitutional right.” Bakalis v. Golembeski, 35 F.3d 318, 323 (7th Cir. 1994). Instead, in determining whether a constitutional right was clearly established, the analysis “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001); see also Alicea v. Thomas, 815 F.3d 283, 291 (7th Cir. 2016) (The “clearly established” inquiry requires examining the right “in a particularized sense, rather than at a high level of generality.”). “‘[T]he crucial question [is] whether the official acted reasonably in the particular circumstances that he or she faced.” Reed v. Palmer, 906 F.3d 540, 547 (7th Cir. 2018) (quoting Kemp v. Liebel, 877 F.3d 346, 351 (alterations in original) (emphasis added) (quoting Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012, 2023 (2014)). “‘To be clearly established at the time of the challenged conduct, the right’s contours must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right....’” Reed, 906 F.3d at 547 (quoting Kemp, 877 F.3d at 351 (alteration in original) (quoting Gustafson v. Adkins, 803 F.3d 883, 891 (7th Cir. 2015)). In other words, it must be clear to a reasonable [employee] that his conduct was unlawful in the situation he confronted. Purtell v. Mason, 527 F.3d 615, 621 (7th Cir. 2008). This determination requires the Court to “consider the [employee]’s actions in light of all the particular circumstances the [employee] faced at the time and then compare them with the then-existing law.” Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686, 701 (7th Cir. 2001). “Ultimately, the question for qualified immunity ‘is whether the
5

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state of the law at the time that [the Defendant] acted gave [him] reasonable notice that [his] actions violated the Constitution.” Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2011). “As long as an employee ‘of reasonable competence could disagree on [the] issue, immunity should be recognized.’” Purtell, 527 F.3d at 621. Plaintiffs bear the burden demonstrating the violation of a clearly established right.” Purtell, 527 F.3d at 621. The only act that Reid is allowed to perform under the Illinois Election Code is to accept petitions. Reid has no discretion in how petitions are circulated, nor does the Illinois Election Code allow Reid to mandate such electronic circulation. In addition, until the Illinois State Election Code or the provisions of the Illinois Constitution that require the petition ballots be accompanied by an affidavit and be filed in person, are found to be unconstitutional or are amended, Reid cannot accept the petition ballots electronically. Reid has no choice but to continue to follow the Illinois Election Code and Illinois Constitution until one or both are found to be unconstitutional or are amended. At that time and only at that time, if Reid then refused to accept the electronic petitions, would Plaintiffs’ rights be violated. As the law stands now however, Reid is entitled to qualified immunity and Plaintiffs’ complaint should be dismissed. II. PLAINTIFFS DO NOT HAVE STANDING AS THIS ACTION IS NOT RIPE
AGAINST REID. The Complaint does not allege that a single plaintiff has, in fact, suffered any actual
injury as it pertains to Reid. “[A] plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has ‘a personal stake in the outcome,’ distinct from a ‘generally available grievance about government.” Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018). In order to have standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “The
6

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plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly…allege facts demonstrating’ each element.” Id. (citation omitted).
a. Plaintiffs’ fail to allege an injury in fact as it pertains to Reid. Plaintiffs’ claims against Reid “are too speculative to create a concrete dispute.” Construction and General Laborer’s Union No. 330 v. Town of Grand Chute, 915 F.3d 1120, 1127 (7th Cir. 2019). Plaintiffs assert Illinois statutory and constitutional requirements stifle their First Amendment right to petition by requiring physical signatures and an affidavit. Dkt 1. Plaintiffs’ entire Complaint is devoid of any allegations specifically pertaining to Reid, other than Paragraph 35 where Plaintiffs express their desire to file a petition with Reid. Id. Paragraph 35 does not allege any action or inaction by Reid. Id. Instead it is merely a recitation of Plaintiffs’ failure to have obtained the necessary signatures in a timely fashion and speculation that now they will be unable to do so. In General Laborer’s Union, the municipality passed an ordinance banning signs located in the public right of way. General Laborer’s Union, 915 F. 3d at 1126. The Union sued, alleging the ordinance would restrict their First Amendment rights in the event they protested in the future and wanted to use an inflatable rat. Id. The court held their claim regarding the possible protests was too speculative and while the potential to utilize an inflatable rat was interesting, the situation had yet to present itself and was therefore not ripe before the court. Id. at 1127. Here, as in General Laborer’s Union, Plaintiffs’ allegations about petitions are too speculative. First and foremost, only Plaintiff Paller speculates that he wishes to submit a petition in the City of Evanston. Dkt. 1, ¶ 35. Plaintiff Paller, however, does not allege that he has been
7

Case: 1:20-cv-02189 Document #: 15 Filed: 04/15/20 Page 8 of 11 PageID #:89
unable to do so or that he has even tried. Dkt. 1. In fact, Plaintiff Paller alleges that he is not required to submit the signatures to the City Clerk until August 3, 2020. Dkt. 1, ¶ 35. The Governor’s “shelter-in-place” Order is set to expire on April 30, 2020, leaving Plaintiffs with several months to collect signatures. Plaintiffs, therefore, cannot and have not alleged an imminent threat or injury as it pertains to Reid.
b. No Injury is Traceable to Reid. Plaintiffs purported injury is an inability to file petitions with signatures obtained electronically. Plaintiffs cite to Section 28 of the Illinois Election Code, which requires that petition sheets include a sworn and notarized affidavit of the petition circulator that he personally witnessed the signatures of all signers of the petition. Additionally, Plaintiffs cite the Illinois Constitution, which requires that the paper initiative petition pages must be bound and filed in one book with the appropriate officer. See Article VII or Article XIV of the Illinois Constitution. Irrespective of these allegations, Plaintiffs filed this suit against Reid, who does not have authority to unilaterally decide to accept electronic ballot petitions, in violation of established State law. It is therefore entirely unknown how any purported violation of the Plaintiffs rights could be attributed to Reid. III. PLAINTIFFS FAIL TO STATE A CLAIM AGAINST REID. Plaintiffs’ Complaint makes plain, the action allegedly infringing their rights is the Executive Order of the state’s governor. Dkt. 1, ¶¶ 31-32. Interestingly, Plaintiffs cite “the health crisis” as a factor making it impossible to collect signatures. Id. There are no facts alleged in Plaintiffs’ Complaint showing any action by Reid limiting Plaintiffs’ Constitutional Rights. Reid is not the state actor enacting the challenged legislation and is only responsible for following it. In this case, the two regulations cited by Plaintiffs are the Illinois Election Code requiring petitions—if used—to be filed
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with the City Clerk, 10 ILCS 5/28-7, and the Governor’s Executive Order. Dkt. 1, ¶¶ 34-35. Reid is not responsible for either regulation.
Plaintiffs only mention of Reid or the City of Evanston is in Paragraph 35, noting that “[f]or the Evanston local initiative referendum to qualify, Plaintiff Paller must submit 2,800 signatures to the Evanston City Clerk by August 3, 2020.” Id. at ¶ 35. Plaintiffs’ Complaint leaves Reid in the dark regarding what claim is against him and the foundation for said claim resulting in pleading deficient in facts sufficient to place Reid on notice.
Plaintiffs allege that they are unable to file petitions, but Reid has no authority or role under state law with respect to the collection of signatures, and Plaintiffs do not allege as such. There is no evidence Plaintiffs have (or can) put forth showing Reid is preventing Plaintiffs from collecting petitions signed by a number of qualified electors pursuant to the Illinois Election Code. The only role Reid as City Clerk of the City of Evanston plays in the process pursuant to Illinois Election law, the Illinois Municipal Code and the Evanston City Code is to allow the petitions to be filed. See 10 ILCS 5/28-7; 65 ILCS 5/3.1-35-90; and Evanston City Code § 1-7-2. Plaintiffs do not argue—nor can they demonstrate— that Reid’s office will not accept petitions signed by a number of qualified electors. IV. REID IS NOT A PROPER DEFENDANT BECAUSE PLAINTIFFS DO NOT PROPERLY
ALLEGE AN OFFICIAL CAPACITY CLAIM. Included among the defendants in Plaintiff’s Complaint is Devon Reid, Evanston City
Clerk, who Plaintiffs purport to sue in his official capacity. Dkt. 1, ¶ 11. A lawsuit against an individual in their official capacity is not a lawsuit against the individual, but rather is a lawsuit against the governmental entity of which the individual is an agent. Schlicher v. Bd. of Fire & Police Comm’rs of Vill. of Westmont, 363 Ill. App. 3d 869, 883, 845 N.E.2d 55, 67 (2d Dist. 2006) (citing Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3106 (1985)); see also Office of Lake Cty. State’s Attorney v. Human Rights Comm’n, 235 Ill. App. 3d 1036, 1042, 601
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N.E.2d 1294, 1298 (2d Dist. 1992). In other words, an official capacity lawsuit is to be treated as
a lawsuit against the governmental entity. Graham, 473 U.S. at 165–66, 105 S. Ct. at 3105; see
also Lake Cty. State’s Attorney, 235 Ill. App. 3d at 1042, 601 N.E.2d at 1298 (official capacity
lawsuit is no different from a lawsuit against the governmental entity itself). However, Plaintiffs
fail to allege that the City of Evanston or Reid, in his official capacity, have a policy which
violates their rights. The City of Evanston can only be held liable under Section 1983 when it is
alleged that the government’s policy or custom inflicts a constitutional injury to Plaintiffs.
Monell v. Department of Social Services of City of New York, 436 U.S. 658, 694 (1978).
Plaintiffs have made no such claim here and therefore made no valid claim against either the City
of Evanston or Reid, in his official capacity.
CONCLUSION
Defendant, DEVON REID, in his official capacity as Clerk of the City of Evanston, for
all of the foregoing reasons, respectfully requests this Honorable Court dismiss Plaintiffs’
Complaint with prejudice and any other relief this Court deems appropriate.
Respectfully submitted,
KELLEY A. GANDURSKI Corporation Counsel
/s/ Alexandra B. Ruggie Alexandra B. Ruggie Assistant City Attorney City of Evanston Law Department Morton Civic Center 2100 Ridge Ave Evanston, IL 60201 (847) 866-2937 aruggie@cityofevanston.org
Nicholas E. Cummings Deputy City Attorney City of Evanston Law Department
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Case: 1:20-cv-02189 Document #: 15 Filed: 04/15/20 Page 11 of 11 PageID #:92 Morton Civic Center 2100 Ridge Ave Evanston, IL 60201 (847) 866-2937 ncummings@cityofevanston.org
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Case: 1:20-cv-02189 Document #: 15-1 Filed: 04/15/20 Page 1 of 3 PageID #:93

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH NORDEN, DAVID VAUGHT, DORIS, DAVENPORT, ANDREA RAILA, JACKSON PALLER, and the COMMITTEE FOR THE ILLINOIS DEMOCRACY AMENDMENT, an Unincorporated political association,
Plaintiffs,
JESSE WHITE, in his official capacity As Illinois Secretary of State, DEVON REID, in his official capacity as the Evanston City Clerk, KAREN A. YARBROUGH, in her official capacity as Cook County Clerk, and WILLIAM J. CARDIGAN, KATHERINE S. O’BRIEN, LAURA K. DONAGUE, CASSASNDRA B. WATSON, WILLIAM R. HAINE, IAN K. LINNABARY, CHARLES W. SCHOLZ, WILLIAM M. MCGUFFAGE, In their official capacities as Board Members for the Illinois State Board of Elections,
Defendants.

) ) ) ) ) ) ) ) ) 20-cv-02189 ) Honorable Judge Charles R. Norgle, Sr. ) ) ) Magistrate Judge M. David Weisman ) ) ) ) ) ) ) ) ) ) ) ) ) )

NOTICE OF MOTION

TO: John W. Mauck Mauck & Baker, LLC 1 N. LaSalle Street, Suite 600 Chicago, IL 60602 312-726-1243 Jmauck@mauckbaker.com

Jessica M. Scheller Chief Advice, Business & Complex Litigation Division Cook County State's Attorney's Office 500 Daley Center Chicago, Illinois 60602 (312) 603-6934 JESSICA.SCHELLER@cookcountyil.gov

Case: 1:20-cv-02189 Document #: 15-1 Filed: 04/15/20 Page 2 of 3 PageID #:94
Erin Walsh Assistant Attorney General Office of the Illinois Attorney General 100 W. Randolph St., 13th Floor Chicago, IL 60601 (312) 814-6122 Ewalsh@atg.state.il.us
Michel Dierkes Assistant Attorney General Office of the Illinois Attorney General 100 W Randolph St., 13th Floor Chicago, IL 60601 (312) 814-3672 mdierkes@atg.state.il.us
On the 8th day of May, 2020, at 9:30 a.m., or as soon thereafter as counsel may be heard, I shall appear before the Honorable Charles R. Norgle, or any judge sitting in his stead, in the Courtroom usually occupied by him in Room 2341 of the United States District Court, Northern District of Illinois, 219 South Dearborn Street, Chicago, Illinois and present Defendants’ DEFENDANT REID’S MOTION TO DISMISS PLAINTIFFS’ COMPLAINT.
/s/ Alexandra B. Ruggie Alexandra B. Ruggie Assistant City Attorney City of Evanston Law Department 2100 Ridge Avenue Evanston, Illinois 60201 (847) 866-2937

Case: 1:20-cv-02189 Document #: 15-1 Filed: 04/15/20 Page 3 of 3 PageID #:95
PROOF OF SERVICE The undersigned certifies and states that she served this Notice via e-mail transmission via the e-filing system of the District Court for the Northern District of Illinois, which will send notice to all parties and/or counsel of record, on this 15th day of April, 2020.
/s/ Alexandra B. Ruggie [x] Under penalties as provided by law pursuant to 28 U.S.C. § 1746, I certify that the
statements set forth herein are true and correct. /s/ Alexandra B. Ruggie

 
 Case: 1:20-cv-02189 Document #: 14 Filed: 04/15/20 Page 1 of 11 PageID #:68

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

DEFENDANT DEVON REID’S RESPONSE TO PLAINTIFFS’ MOTION FOR A PRELIMINARY OR PERMANENT INJUNCTION AND
DECLARATION AS A MATTER OF LAW

Defendant, DEVON REID, in his official capacity as Clerk of the City of Evanston

(hereafter “Reid”), by his attorney KELLEY A. GANDURSKI, Corporation Counsel, and

through, Nicholas E. Cummings, Deputy City Attorney, and one of her assistants, Alexandra

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Ruggie, Assistant City Attorney respond to Plaintiffs’ Motion for a Preliminary or Permanent Injunction and Declaration as a Matter of Law (hereafter “Plaintiffs’ Motion”) as follows:
INTRODUCTION On April 9, 2020, Plaintiffs filed their Complaint along with Plaintiffs’ Motion. Dkt. 1, 4, 6. Plaintiffs sued a variety of entities, including the Evanston City Clerk in his official capacity. Dkt. 1. Glaringly absent from the Plaintiffs’ Complaint are any other similarly situated municipalities in the State of Illinois named as defendants. Notwithstanding Plaintiffs’ failure to state a claim upon which relief may be granted against Reid1, Plaintiffs ask this Court to enjoin Reid and the other Defendants, by requiring them to implement measures to facilitate the means to gather signatures for petitions. Dkt. 6. Plaintiffs’ Motion should be denied for the following reasons: First, Plaintiffs’ lack standing to bring a claim against Reid. Plaintiffs’ desired outcome— that Reid accept petitions electronically—is not ripe before this court. Plaintiffs do not allege, nor can they, that Reid would not and has not accepted verified petitions in accordance with Illinois State law. Assuming Plaintiffs are successful in forcing a change in the law such that they can obtain and submit electronic signatures, it follows Reid would be obligated to accept them. The idea that Reid might not accept them is too speculative to create a concrete dispute before the court, and Plaintiffs can cite no past practice whereby Reid has failed to accept petitions. Additionally, an injunction against Reid would be improper because Plaintiffs cannot show irreparable harm. There are no allegations and no evidence Reid, by following current state election law, is denying Plaintiffs from filing petitions. Plaintiffs primary complaint appears to be the inability to collect signatures; Reid has no authority or role under state law with respect to

1

Reid separately filed a Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). This

response was filed in the event that motion is denied.

2

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the collection of signatures. Furthermore, the Illinois Constitutional provisions cited by Plaintiffs allows but not mandates petitions as a method to amend the State Constitution or otherwise pass law. Plaintiffs will not suffer irreparable harm as there remains other means to achieve their goal. Plaintiffs may submit by resolution their proposal for action to Evanston City Council pursuant to the Illinois Constitution. In the face of the current pandemic, Evanston continues to hold online City Council meetings, whereby the public has remote access.
Secondly, Plaintiffs will not likely succeed on the merits against Reid. According to Plaintiffs’ Motion, it is the action of the State, not Reid, infringing their Constitutional rights. But for the current pandemic, Plaintiffs cannot show state law is facially unconstitutional. Moreover, the law Plaintiffs’ attempt to challenge regulates the mechanics of the process rather than the content; accordingly, the City’s interest in securing the health of citizens—including Plaintiffs— is compelling enough to limit the constitutional rights of Plaintiffs. Finally, Plaintiffs cannot show it is clearly established that Reid’s refusal to accept petitions would violate Plaintiffs constitutional rights.
STANDARD FOR PRELIMINARY INJUNCTION In Roland Machinery Co. v. Dresser Industries, Inc., the Seventh Circuit spelled out an “analytical procedure for deciding whether to grant or deny a motion for preliminary injunction” for this jurisdiction. 749 F.2d 380, 389 (7th Cir. 1984). The procedure outlined by the court “constitutes a true legal standard…[that] does not call for a discretionary—in the sense of standardless or intuitive—judgment, or for a consideration of numerous factors none enjoying any particular weight, or for an evaluation of factors inaccessible to a reviewing court.” Id. “The factors to be considered are few and definite.” Id. “[T]hey are to be compared in a particular sequence and in accordance with a specific formula which requires first deciding
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whether the plaintiff has crossed the specified thresholds and then weighting the parities’ likely harms from the grant and denial of the preliminary injunction, respectively, by the strength of the plaintiff’s case.” Id. “The granting of a preliminary injunction is an exercise of a very farreaching power, never to be indulged in except in a case clearly demanding it.” Id. (internal citations omitted).
To cross “the specified thresholds” of injunctive relief a plaintiff “must show that he has no adequate remedy at law, and…that he will suffer irreparable harm if the preliminary injunction is not granted.” Id. at 386 (internal citation and quotes omitted). “Only if [plaintiff] will suffer irreparable harm in the interim—that is, harm that cannot be prevented or fully rectified by the final judgment after trial—can he get a preliminary injunction.” Id.
Once the court determines a plaintiff has met this threshold, the court must then consider “an irreparable harm that the defendant might suffer from the injunction—harm that would not be either cured by the defendant’s ultimately prevailing in the trial on the merits or fully compensated by the injunction bond that Rule 65(c) of the Federal Rules of Civil Procedures requires the district court to make the plaintiff post.” Id. at 387. Additionally, the plaintiff must cross another threshold: “that of showing some likelihood of succeeding on the merits.” Id. The plaintiff’s chances must be better than negligible. Id. The greater the chance a plaintiff has at succeeding on the merits, “the less heavily need the balance of harms weigh in his favor; the less likely he is to win, the more need it weight in his favor.” Id. Finally, the court should consider whether granting or denying a preliminary injunction will have consequences beyond the immediate parties. Id. at 388. This is the proper standard the court should use in evaluating the validity of Plaintiffs’ Motion.
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ARGUMENT I. PLAINTIFFS’ ARGUMENT IS NOT RIPE FOR ADJUDICATION.
Plaintiffs’ claims against Reid “are too speculative to create a concrete dispute.” Construction and General Laborer’s Union No. 330 v. Town of Grand Chute, 915 F.3d 1120, 1127 (7th Cir. 2019). Plaintiffs assert Illinois statutory and constitutional requirements stifle their First Amendment right to petition by requiring physical signatures and an affidavit. Dkt. 1; Dkt. 6. It can be inferred (although not explicitly stated) Plaintiffs anticipate Reid will not accept petitions that are not generated according to state constitutional and statutory law. Yet Plaintiff alleges no facts and can put forth no evidence showing Reid will reject Plaintiffs’ verified petitions.
In General Laborer’s Union, the municipality passed an ordinance banning signs located in the public right of way. Id. at 1126. The Union sued, alleging the ordinance would restrict their First Amendment rights in the event the protested in the future and wanted to use an inflatable rat. Id. The court held their claim regarding the possible protests was too speculative. Id. at 1127. There were too many unanswered questions on how the protest would unfold to allow the court to act. Id.
Here, as in General Laborer’s Union, Plaintiffs’ allegations about petitions are too speculative. Reid may not accept Plaintiffs’ petitions for a myriad of reasons beyond the fact they were submitted electronically. Perhaps the petitions contained fraudulent signatures or signatures of someone who is not a resident of Evanston. Not only have no petitions been submitted and subsequently rejected, there is no way of determining for what reason, if at all, Reid would reject Plaintiffs’ petitions. Accordingly, Plaintiffs claims are not ripe, and their motion should be denied.
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II. PLAINTIFFS CANNOT SHOW IRREPARABLE HARM IF THE STATUS QUO REMAINS.
There is no evidence Plaintiffs have (or can) put forth showing Reid is preventing Plaintiffs from collecting petitions signed by a number of qualified electors pursuant to the Illinois Election Code. The only role Reid as City Clerk of the City of Evanston plays in the process pursuant to Illinois Election law, the Illinois Municipal Code and the Evanston City Code is to allow the petitions to be filed. See 10 ILCS 5/28-7; 65 ILCS 5/3.1-35-90; and Evanston City Code § 1-7-2. Plaintiffs do not argue—nor can they demonstrate—the City Clerk’s office will not accept petitions signed by a number of qualified electors. While City facilities remained closed to the public through April 30th2, the deadline for submission to the Evanston City Clerk is more than three months away, August 3, 2020. Dkt 1, ¶ 35. Nevertheless, there is no evidence Plaintiff can put forth showing Reid would not or cannot accept verified petitions, even in person. Residents are free to call the Clerk’s Office to conduct official business and arrange for petitions to be dropped off3.
“In every case in which the plaintiff ants a preliminary injunction he must show that he has ‘no adequate remedy at law,’ and that he will suffer ‘irreparable harm’ if the preliminary injunction is not granted.” Id. at 386. “Only if he will suffer irreparable harm in the interim—that is, harm that cannot be prevented or fully rectified by the final judgment after trial—and he get a preliminary injunction.” Id.
In this case, Plaintiffs cannot show harm cannot be prevented or fully rectified by a final judgment after trial against Reid. Indeed, Reid is not the proper party to enjoin. Illinois Election Code states in relevant part:

2

The City was served notice of this action at the City Clerk’s office, as the Clerk’s office

remains staffed.

3

https://www.cityofevanston.org/Home/Components/News/News/3744/17

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Any such public question may be initiated by the governing body of the unit of local government by resolution or by the filing with the clerk or secretary of the governmental unit of a petition signed by a number of qualified electors equal to or greater than at least 8% of the total votes cast for candidates for Governor in the preceding gubernatorial election, requesting the submission of the proposal for such action to the voters of the governmental unit at a regular election. If the action to be taken requires a referendum involving 2 or more units of local government, the proposal shall be submitted to the voters of such governmental units by the election authorities with jurisdiction over the territory of the governmental units. Such multi-unit proposals may be initiated by appropriate resolutions by the respective governing bodies or by petitions of the voters of the several governmental units filed with the respective clerks or secretaries. 10 ILCS 5/28-7 (emphasis added). Moreover, the portion of the Illinois Constitution upon which Plaintiffs rely does not mandate petitions as the only means to initiate action. Section 11 of Article VII states: “Proposals for actions which are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the electors by resolution of the governing board of a unit of local government or by petition of electors in the manner provided by law.” Ill Const. Art. VII § 11 (emphasis added). Accordingly, Plaintiffs inability to gather signatures, while stifled by a global pandemic, does not foreclose them from initiating change. The harm suffered by Plaintiffs is a lack of choice authorized by the Illinois Constitution, not an irreparable one violative of their Constitutional rights. Plaintiffs’ Motion should be denied. III. PLAINTIFFS ARE UNLIKELY TO SUCCEED ON THE MERITS AGAINST
REID Assuming arguendo Plaintiffs can demonstrate they have no adequate remedy at law and will suffer irreparable harm, the court must also consider “any irreparable harm that the defendant might suffer from the injunction—harm that would not be either cured by the defendant’s ultimately prevailing in the trial on the merits or fully compensated by the injunction bond that Rule 65(c) of the Federal
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Rules of Civil Procedure requires the district court to make the plaintiff post.” Roland Machinery Co., 749 F.3d at 387. In this case, Reid is likely to succeed on the merits at trial.
a. Plaintiffs Cannot Produce Evidence of Reid Limiting Plaintiffs’ Rights. Plaintiffs’ Complaint makes plain, and Plaintiffs’ Motion argues the action allegedly infringing their rights is the Executive Order of the state’s governor. Dkt. 1, ¶¶ 31-32. Interestingly, Plaintiffs cite “the health crisis” as a factor making it impossible to collect signatures. Id. The City of Evanston’s Clerk has not created, or contributed, to either the health crisis or the subsequent state actions. There are no facts alleged in either Plaintiffs’ Complaint or Motion showing any action by Reid limiting Plaintiffs’ Constitutional Rights. Nevertheless, even if Reid’s actions or policies served to restrict Plaintiffs’ ability to exercise their rights, Plaintiffs would be hard pressed to overcome even strict scrutiny during a global pandemic. “When a State’s election law directly regulates core political speech, we have always subjected the challenged restriction to strict scrutiny and required that the legislation be narrowly tailored to serve a compelling governmental interest.” Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 207 (1999) (THOMAS, J. concurring) (citing Burson v. Freeman, 504 U.S. 191, 198 (1992)). However, “lessor burdens trigger less exacting review, and a State’s important regulatory interests are typically enough to justify reasonable restrictions.” Id. at 206 (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358-59 (1997)). The difference lies on whether the challenged regulation controls the mechanics of the electoral process or is regulation of pure speech. McIntyre v. Ohio Elections Commission, 514 U.S. 334, 345 (1995). Setting aside the fact the City Clerk is not the state actor enacting the challenged legislation and is only responsible for following it, the regulation at issue does not regulate pure speech. In McIntyre, the State of Ohio regulated handbills and their distribution. Id. at 340. The Supreme Court overturned
8

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the Ohio Supreme Court’s decision, holding the Ohio Supreme Court used the wrong test in determining whether Ohio’s law was constitutional. Id. at 347. The Supreme Court distinguished between regulations of the mechanics of the electoral process and regulation of pure speech holding the Ohio law was a regulation of speech. Id. at 345.
In this case, the two regulations cited by Plaintiffs are the Illinois Election Code requiring petitions—if used—to be filed with the City Clerk, 10 ILCS 5/28-7, and the Governor’s Executive Order. Dkt. 1, pg. 8. Evanston’s City Clerk is not responsible for either regulation. Nonetheless, section 28-7 clearly regulates the mechanics of the electoral process rather than pure speech. McIntyre, 514 U.S. at 345. Accordingly, the only question properly before this Court should be to determine if Reid’s actions (if any) justify Plaintiffs’ inability to collect signatures. Any restrictions by the City Clerk to protect the health and welfare of city residents and staff in the face of a global pandemic are reasonably justified. Buckley, 525 U.S. at 207 (THOMAS, J concurring).
b. Plaintiffs Have an Alternative Method to Initiate Proposals for Action. Furthermore, as argued supra, the Illinois Constitution allows for Plaintiffs to petition the Evanston City Council directly. (“Proposals for actions which are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the lectors by resolution of the governing board of a unit of local government…”) Ill. Const. Art. VII § 11(a). Petitions are a means to achieve this goal but not mandated. Id. Thus, any restriction(s) by the City Clerk is/are justified in the face of a global pandemic threatening the health and welfare of city residents. Even if this court determines a higher level of scrutiny was required, Plaintiffs cannot succeed. There can be no doubt the City’s interests in maintaining the health and welfare of employees and residents and preventing the spread of a potentially life-threatening virus is a compelling interest. Although Plaintiffs do not cite any action taken by the City or Reid—at all—any burden on Plaintiffs’
9

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speech by the City’s action is minimal in comparison of the importance of the lives of Evanston’s employees and residents. There is simply no evidence Plaintiffs can put forward showing the City will not accept valid petitions in the wake of COVID-19, the Governor’s Executive Order, or any supposed action Reid took to stifle Plaintiffs’ Constitutional rights. Consequently, they are unlikely to succeed at trial and their motion must be denied.
c. Reid is Entitled to Qualified Immunity. “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “[A]n allegation of malice is not sufficient to defeat immunity if the defendant acted in an objectively reasonable manner.” Malley v. Briggs, 475 U.S. 335, 341 (1986). “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right; in other words, in the light of preexisting law the unlawfulness must be apparent.” Shipman v. Hamilton, 520 F.3d 775, 778 (7th Cir. 2008)(internal citation and quotations omitted). In this case, Reid “could not reasonably be expected to anticipate subsequent legal developments, nor could [they] fairly be said to ‘know’ that the law forbade conduct not previously identified as lawful.” Harlow, 457 U.S. at 818. But for the global pandemic, the regulations Plaintiffs seek to challenge are facially valid. Plaintiffs can provide no preexisting law making sufficiently clear that Reid’s refusal to accept petitions in compliance with state law would violate Plaintiffs’ Constitutional rights. Therefore, Plaintiffs are unlikely to succeed on the merits and their motion should be denied.
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CONCLUSION Defendant, DEVON REID, in his official capacity as Clerk of the City of Evanston, for all of the foregoing reasons, respectfully requests this Honorable Court deny Plaintiffs’ Motion for Preliminary or Permanent Injunction and Declaration as a Matter of Law and any other relief this Court deems appropriate.
Respectfully submitted, KELLEY A. GANDURSKI Corporation Counsel /s/ Nicholas E. Cummings Nicholas E. Cummings Deputy City Attorney City of Evanston Law Department Morton Civic Center 2100 Ridge Ave Evanston, IL 60201 (847) 866-2937 ncummings@cityofevanston.org Alexandra Ruggie Assistant City Attorney City of Evanston Law Department Morton Civic Center 2100 Ridge Ave Evanston, IL 60201 (847) 866-2937 aruggie@cityofevanston.org
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Case: 1:20-cv-02189 Document #: 14-1 Filed: 04/15/20 Page 1 of 3 PageID #:79

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

NOTICE OF FILING

To: See Service List

PLEASE TAKE NOTICE that on April 15 2020, we caused to be filed with the United States District Court for the Northern District of Illinois, Eastern Division, the attached Response to Plaintiffs’ Motion for Preliminary or Permanent Injunction and Declaration as a Matter of Law, a copy of which is hereby served upon you.

Case: 1:20-cv-02189 Document #: 14-1 Filed: 04/15/20 Page 2 of 3 PageID #:80
CERTIFICATE OF SERVICE
Nicholas E. Cummings, an attorney, certifies that copies of foregoing were served upon the above named persons via the CM/ECF system, on April 15, 2020.
/s/ Nicholas E. Cummings Nicholas E. Cummings, Deputy City Attorney (ncummings@cityofevanston.org) City of Evanston, Law Department 2100 Ridge Ave. #4400 Evanston, IL 60201 (847) 866-2937 One of the Attorneys for Defendant

Case: 1:20-cv-02189 Document #: 14-1 Filed: 04/15/20 Page 3 of 3 PageID #:81
SERVICE LIST
John W. Mauck Mauck & Baker, LLC One North LaSalle Street Suite 600 Chicago, IL 60602 jwmcourt@mauckbaker.com
Michael T. Dierkes Illinois Attorney General’s Office 100 W. Randolph Street 13th Floor Chicago, IL 60601 mdierkes@atg.state.il.us
Jessica Megan Scheller Office of the Cook County States Attorney 500 Richard J. Daley Center Chicago, IL 60602 Jessica.scheller@cookcountyil.gov
Erin Walsh Office of the Illinois Attorney General 100 W. Randolph Street 13th Floor Chicago, IL 60601 ewalsh@atg.state.il.us

 
 Case: 1:20-cv-02189 Document #: 18 Filed: 04/16/20 Page 1 of 4 PageID #:108

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

WILLIAM MORGAN, et al.

)

)

Plaintiffs,

)

)

v.

)

)

JESSE WHITE, in his official capacity as )

Illinois Secretary of State, et al.,

)

)

Defendants.

)

20-cv-2189
Judge Rebecca R. Pallmeyer Emergency Judge

DEFENDANT COOK COUNTY CLERK’S 12(b)(1) AND 12(b)(6) MOTION TO DISMISS THE COMPLAINT

Defendant Karen A. Yarbrough, Cook County Clerk, in her official capacity, by and

through her counsel, Kimberly M. Foxx, State’s Attorney of Cook County, through her assistant,

Jessica M. Scheller, pursuant to Rule 12(b)(1) and (b)(6) of the Federal Rules of Civil Procedure,

respectfully moves this Honorable Court to dismiss Plaintiff’s Verified Complaint for

Emergency Declaratory and Injunctive Relief (“Complaint”) and in support of her Motion to

Dismiss, states:

INTRODUCTION

Plaintiffs’ claims against the County Clerk concerning the mechanics of certifying Article

VII referenda must and should fail, as the Plaintiffs’ concede the County Clerk’s sole role in the

Article VII referendum process is to place any Article VII initiative referendum questions on the

ballot after certification. (Dkt. 1, ¶ 12). As Plaintiffs acknowledge in their Complaint, certification

is completed by the clerks of the county municipalities. Id. Plaintiffs do not allege that the County

Clerk has failed or refused to place a certified (or uncertified) Article VII initiative referendum on

the ballot. Id. Their active grievances or claims relate exclusively to the certification process;

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(Dkt. 1, generally), a process in which the County Clerk has no part. Id. For the foregoing reasons, as well as those set forth in the concurrently filed Memorandum of Law filed in support of this Motion, the County Clerk asks this Court to find that she has neither a role in the certification process or in this lawsuit and grant relief pursuant to Fed. R. Civ P. 12.
BACKGROUND FACTS & PROCEDURAL HISTORY Plaintiffs, a group of Illinois registered voters, seek to circulate an initiative petition for a constitutional amendment to the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. On April 7, 2020, Plaintiffs filed their Complaint [Docket No. 1] against Cook County Clerk Karen A. Yarbrough (“County Clerk”), Secretary of State Jesse White, Evanston City Clerk Devon Reid, as well as the individual Board Members of the Illinois State Board of Elections. In response to the COVID-19 pandemic and the Governor’s shelter-in-place orders, Plaintiffs seek to enjoin or modify the Illinois petition collection requirements for initiative referendums to be placed on the November 3, 2020 general election ballot. However, the County Clerk plays no role in the referendum process and Plaintiffs concede that the County Clerk’s sole role in this process is merely to place any Article VII initiative referendum questions certified by the clerks of suburban Cook County municipalities on the ballot. (Dkt. 1, ¶ 12). Plaintiffs seek an order, among other things, requiring Defendants to allow for petitions to be submitted electronically via an online form, that the May 3 deadline be extended to August 3, 2020, and that the signature requirement be reduced by 50%. (Dkt. 1 at ¶ B, Prayer for Relief). Plaintiffs also seek costs and attorneys’ fees against Defendants. (Id. at ¶E). Nevertheless, Plaintiffs fail to state a claim against the County Clerk because the Clerk has no role in the referendum process and cannot provide the relief Plaintiffs seek. Accordingly,
2

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because no justiciable controversy exists as to the County Clerk, this Court lacks subject matter

jurisdiction and should dismiss Plaintiffs’ Complaint pursuant to Rule 12(b)(1) and also because

it fails to state a claim under Rule 12(b)(6).

CONCLUSION

For the foregoing reasons, no justiciable controversy exists between the Plaintiffs and the

County Clerk. Plaintiffs’ constitutional rights, to the extent they exist, have not been constrained

in any way as the Illinois petition requirements have not yet been enforced. Additionally, Cook

County Clerk Karen Yarbrough was named in the Complaint but clearly committed no

wrongdoing, is not involved in the petition process, and has cannot effectuate the relief Plaintiffs

seek. As such, Plaintiffs’ Complaint should be dismissed in its entirety.

WHEREFORE Respondent Karen A. Yarbrough, Cook County Clerk, in her official

capacity, respectfully requests that this Court dismiss Plaintiffs’ Complaint against her, with

prejudice, pursuant to FED R. CIV. P. 12 (b)(1) and (b)(6).

April 16, 2020

Respectfully submitted,
KIMBERLY M. FOXX State’s Attorney of Cook County

/s/ Jessica M. Scheller Silvia Mercado Masters Assistant State’s Attorney Jessica M. Scheller Assistant State’s Attorney Chief; Advice, Business & Complex Litigation Division – Civil Actions Bureau 500 Richard J. Daley Center Chicago, Illinois 60602 (312) 603-6934 jessica.scheller@cookcountyil.gov silvia.mercadomasters@cookcountyil.gov

3

Case: 1:20-cv-02189 Document #: 18 Filed: 04/16/20 Page 4 of 4 PageID #:111 CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on April 16, 2020, she caused to be filed through the Court’s CM/ECF system the foregoing document, a copy of which will be electronically mailed to the parties of record.
s/ Jessica M. Scheller
4

 
 Case: 1:20-cv-02189 Document #: 20 Filed: 04/16/20 Page 1 of 9 PageID #:120

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WILLIAM MORGAN, et al. Plaintiffs,
vs.
JESSE WHITE, et al. Defendants.

)

)

)

)

Case No.: 20-cv-02189

)

)

Hon. Charles R. Norgle, Sr.

)

)

)

)

DEFENDANT JESSE WHITE’S RESPONSE TO PLAINTIFFS’ EMERGENCY MOTION FOR A PRELIMINARY OR PERMANENT INJUNCTION AND DECLARATION AS A MATTER OF LAW

INTRODUCTION Plaintiffs wish to circulate a petition for a constitutional amendment referendum to be placed on the November 3, 2020 general election ballot. They allege that due to the COVID-19 crisis and the Governor’s resulting Executive Order, they are unable to collect signatures in person, as required by the Illinois Election Code. In addition to the members of the Illinois State Board of Elections and several local defendants, they have sued Secretary of State Jesse White in his official capacity for declaratory and injunctive relief. But the Secretary of State does not enforce the petition collection requirements at issue here. His role is initially ministerial: proposed constitutional amendments are filed with the Secretary of State, who then “deliver[s] such petition[s] to the State Board of Elections” within one business day. 10 ILCS 5/28-9. Once the State Board of Elections hears and passes on any objections, id. at 5/28-4, the Secretary of State ensures that any proposed amendments are published in newspapers throughout the State (in multiple languages) and that pamphlets describing the amendments are mailed to every mailing address in the State (again, in multiple languages).

1

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The Secretary of State takes no position regarding plaintiffs’ challenge to provisions of the Election Code that he does not administer or enforce. However, as set forth below, he objects strongly to two components of plaintiffs’ requested relief. First, he opposes plaintiffs’ request that this Court extend the deadline for them to file their proposed referendum by three months, from May 3, 2020 to August 3, 2020. Such an extension would make it impossible for the Secretary of State to fulfill his obligations relating to the publication of proposed amendments and the distribution of pamphlets in time for the November 3, 2020 election. Second, to the extent that plaintiffs seek an order compelling the Secretary of State to develop and implement an online petitioning and signature collection system (their request is not clear), he opposes such relief. Any such request should not be directed at the Secretary of State, who does not administer or enforce the Election Code’s petition collection requirements. Moreover, it is not feasible to develop such a system (again, if that is what plaintiffs are requesting) under the tight time frames at issue here.
ARGUMENT Plaintiffs seek multiple forms of relief: (1) a declaration that the Election Code’s petition collection requirements (mandating that signatures be collected in-person) cannot be constitutionally enforced under the current circumstances, and corresponding injunctive relief; (2) an order reducing by 50% the number of signatures required for a constitutional amendment referendum; (3) an order extending by three months the constitutional and statutory May 3, 2020 deadline for plaintiffs to collect signatures and file their proposed constitutional amendment referendum; and (4) an order requiring defendants to “allow for petitions to be submitted electronically via names of qualified electors collected by an online form to be created by the Secretary of State.” (Dkt. No. 6 at 10-11)
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1. In-Person Signature and Notarization Requirements The Election Code requires that referendum petition sheets must include a sworn and notarized statement by the petition circulator that “the signatures on that sheet of the petition were signed in his or her presence and are genuine.” 10 ILCS 5/28-3; Dkt. No. 1 at 38. The Secretary of State does not administer or enforce this requirement, see 10 ILCS 5/28-4, and takes no position with respect to plaintiffs’ request to enjoin its enforcement in the present circumstances. 2. Number of Signatures Required Both the Illinois Constitution and the Election Code require that petitions for constitutional amendments be signed by “a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election.” Ill. Const. Art. XIV, § 3; 10 ILCS 5/28-9. The Secretary of State does not administer or enforce this requirement, see 10 ILCS 5/28-4, and takes no position with respect to plaintiffs’ request for a reduction in the number of required signatures. 3. Deadline to Collect Signatures and File Petition Under the Illinois Constitution and the Election Code, the deadline for plaintiffs to collect signatures and file their petition with the Secretary of State is May 3, 2020. Ill. Const. Art. XIV, § 3 (requiring petition for constitutional amendment to be filed “at least six months” before the general election); 10 ILCS 5/28-9 (same). Plaintiffs seek a court-ordered three-month extension of this deadline. The Secretary of State opposes this request. Such an extension—or, for that matter, any extension of the deadline by more than about two weeks—would make it essentially impossible for the Secretary of State to fulfill his publication and pamphlet distribution obligations for the November 2020 general election.
3

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The existing timeframes are already tight. By statute, if a petition for a proposed constitutional amendment survives any challenges before the State Board of Elections and in court, the Secretary of State must publish the amendment at least one month before the election (October 3, 2020) “in at least one secular newspaper of general circulation in every county in this State in which a newspaper is published.” 5 ILCS 20/2 (emphasis added). In counties in which two or more newspapers are published, he must publish in two newspapers. Id. In counties with more than 500,000 people, he must publish in no less than six newspapers of general circulation. Id. After the first publication, the publication must be repeated once each week for two consecutive weeks. Id.
To meet the October 3, 2020 publication deadline, the Secretary of State starts working in early May, shortly after the petition filing deadline. (Ex. 1 (Williams Dec.) at ¶4) The National Voting Rights Act requires that the proposed amendments be translated into multiple languages prior to publication. See 52 U.S.C. § 10503. Thus, the Secretary of State must go through a procurement process for translation services, with informal bids for translators starting in midMay and contracts awarded by around June 8. (Id. at ¶5) The Secretary of State must also procure newspaper publishing; a bid is posted by about May 20 to secure a publishing contract by the end of June. (Id. at ¶6) Final drafts of proposed amendments, in all languages, should be completed by early August, and all work on newspaper publication must be complete by about September 9 to ensure timely publication. (Id. at ¶7)
The Secretary of State must also ensure that proposed amendments are published in a pamphlet mailed to every address in the State at least one month prior to the election. (Id. at ¶8; 5 ILCS 20/2) The pamphlet must include not only the text of the amendment, but also an explanation of the amendment, the arguments for it (provided by its proponent), and the
4

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arguments against it (provided by the General Assembly or Attorney General). (Id.) Once the Secretary of State receives the arguments, the pamphlet must be proofed, translated into multiple languages in accordance with the National Voting Rights Act, 52 U.S.C. § 10503, sent to a printer, printed, delivered from the printer to a mailing service, delivered from the mailing service to the post office, and shipped. (Id. at ¶9)
The existing timelines again have little margin for adjustment. The Secretary of State posts a bid for printing and mailing services by around May 18 in order to award a contract by the end of June. (Id. at ¶10) The pamphlet is developed and then translated into multiple languages by around mid-July. (Id. at ¶11) The final pamphlet proof must be sent to the printer in all languages by August 11. (Id.) The pamphlets are printed and delivered to a mailing service by September 1, with shipments to the post office until the end of September, so that the pamphlets can be in the mail by the October 3 statutory deadline. (Id.)
Plaintiffs’ request for a court order extending the deadlines to submit a petition fails on the merits for the reasons stated in the State Board of Elections’ opposition, which the Secretary of State adopts and incorporates by reference with respect to this point. Moreover, balance of harm considerations warrant denial of plaintiffs’ request. As set forth above, plaintiffs’ requested three-month extension would make it essentially impossible for the Secretary of State to comply with the publication and pamphlet deadlines for the November 3 election, thus jeopardizing the validity of any proposed constitutional amendments. Plaintiffs’ requested threemonth extension of the filing deadline should be denied.
4. Electronic Submission of Petitions and Online Form Finally, plaintiffs seek injunctive relief requiring defendants to “allow for petitions to be submitted electronically via names of qualified electors collected by an online form to be created
5

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by the Secretary of State.” (Dkt. No. 6 at 10-11) It is unclear exactly what plaintiffs are requesting, or why they have directed this request to the Secretary of State. As explained above, aside from his obligations relating to the publication of proposed amendments in newspapers and the distribution of pamphlets, the Secretary of State’s role is purely ministerial. “Upon receipt of a petition for a proposed Constitutional amendment, the Secretary of State shall, as soon as is practicable, but no later than the close of the next business day, deliver such petition to the Board of Elections.” 10 ILCS 5/28-9.
The Secretary of State understands that the State Board of Elections is willing to agree to enjoin the State’s in-person signature and notarization requirements set forth in 10 ILCS 5/28-3, given the ongoing COVID-19 public health crisis. Should the Court enjoin the in-person signature requirement (again, the Secretary of State takes no position on this issue), plaintiffs could circulate petition forms via their websites, by email, by mail, and petition signers could return signed1 petitions via email, mail, other electronic means, or any other means. In these circumstances, the Secretary of State would not object to accepting the petition filing for a constitutional amendment (due May 3, 20200) in electronic form rather than hard copy, in order to transmit the filing to the State Board of Elections pursuant to Section 28-9 of the Election Code. 10 ILCS 5/28-9.
This should address plaintiff’s concerns. But if plaintiffs nevertheless seek a court order compelling the Secretary of State to develop and implement a system allowing persons to electronically-sign their petitions (again, the nature of their request is unclear), the Secretary of State would strongly oppose such relief. The Secretary of State does not administer or enforce the Election Code’s petition collection requirements, including the in-person signature
1 A physical “wet” signature would still be required on the petition.
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requirement at issue here. The Secretary of State is not responsible for vetting or verifying signatures; he receives petitions for constitutional amendments and promptly transmits them to the State Board of Elections. 10 ILCS 5/28-9. To the extent that plaintiffs are requesting the Secretary of State to develop an electronic signature system, their request is misdirected and should be denied.
Further, plaintiffs cannot satisfy the legal requirements for the issuance of a TRO or preliminary injunction compelling the Secretary of State to immediately implement an electronic signature platform for proposed constitutional amendments. Injunctive relief is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original). To obtain a temporary restraining order or preliminary injunction, plaintiffs must make a clear showing that: (1) they are likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in their favor; and (4) that the injunction is in the public interest. Winter v. Natural Res. Def. Council, 555 U.S. 7, 20 (2008). The court “must balance the competing claims of injury and must consider the effect on each party of granting or withholding the requested relief,” paying “particular regard for the public consequences in employing the extraordinary remedy of injunction.” Id. at 24.
Plaintiffs’ burden in this case is even greater than usual because, rather than seeking to preserve the status quo, they seek mandatory relief requiring the development of a new system. Mandatory injunctions are “rarely issued,” interlocutory mandatory injunctions are “even more rarely issued,” and neither should be issued “except upon the clearest equitable grounds.” W.A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958); see also Graham v. Med.
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Mut. of Ohio, 130 F.2d 293, 295 (7th Cir. 1997) (stating that “mandatory preliminary writs are ordinarily cautiously viewed and sparingly issued”). Moreover, “[a] preliminary injunction that would give the movant substantially all the relief he seeks is disfavored, and courts have imposed a higher burden on a movant in such cases.” Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 827 n.6 (7th Cir. 1998); W.A. Mack, 260 F.2d at 890 (“A preliminary injunction does not issue which gives to a plaintiff the actual advantage which would be obtained in a final decree.”).
Here, plaintiffs cannot meet their high burden. Plaintiffs have made no showing at all that implementation of an electronic signature system is necessary to prevent irreparable harm, especially if the State Board of Elections will to agree to enjoin the State’s in-person signature and notarization requirements set forth in 10 ILCS 5/28-3. Balance of harm and public interest considerations also weigh strongly against a court order compelling the immediate development and implementation of an e-signature platform. Unlike some other states, Illinois does not currently utilize an e-signature platform, and it is simply not possible for the Secretary of State to develop from scratch (or procure) such a system and implement it statewide for immediate use under the timeframes at issue here, given that the deadline to submit petitions for constitutional amendments is May 3, 2020, just a few weeks away.
Trying to implement a new e-signature system on a fire-drill basis—if that were even possible, which it is not—could likely lead to all kinds of problems and unanticipated issues, including an increased risk of fraud, which the signature requirement is intended to prevent. See, e.g., John Doe No. 1 v. Reed, 561 U.S. 186, 197 (2010) (“The State’s interest in preserving the integrity of the electoral process is undoubtedly important.”). The Supreme Court has “repeatedly emphasized that lower federal courts should ordinarily not alter the election rules on
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the eve of the election.” Republican Nat’l Comm. v. Democratic Nat’l Comm., NA 19A1016, 2020 WL 1672702, at *1 (U.S. Apr. 6, 2020). See also Buckley v. Am. Constitutional Law Found., 525 U.S. 182, 191 (1999) (“States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process.”).
In sum, this Court should reject any request by plaintiffs for a mandatory injunction requiring the State to adopt and implement a new e-filing system for constitutional amendment petitions for the November 3, 2020 general election. This is not possible under the time frames at issue here, plaintiffs have made no showing that such a system is necessary to prevent irreparable harm, and balance of harm and public interest considerations strongly weigh against such extreme relief.
CONCLUSION For the foregoing reasons, this Court should deny plaintiffs’ motion with respect to certain requests for relief as detailed above.

Dated: April 16, 2020
KWAME RAOUL Attorney General of Illinois

Respectfully submitted,
/s/ Michael T. Dierkes
Michael T. Dierkes Office of the Illinois Attorney General 100 West Randolph Street, 13th Floor Chicago, Illinois 60601 (312) 814-3672
Counsel for Defendant Jesse White

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EXHIBIT 1

Case: 1:20-cv-02189 Document #: 20-1 Filed: 04/16/20 Page 2 of 7 PageID #:130

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WILLIAM MORGAN, et al. Plaintiffs,
vs .
J SSE WHITE, et al. Defendants.

)

)

)

)

Case No.: 20-cv-02189

)

)

Hon. Charles R. Norgle, Sr.

)

)

)

)

DELCARATION OF AMY WILLIAMS

Pursuant to 28 U.S.C. § 1746, I hereby declare as follows:

1.

My name is Amy Williams. I am an attorney at the Office of the Illinois

Secretary of State. In my role, I am familiar with and have knowledge regarding the process and

timelines for the Secretary of State to publish and distribute pamphlets regarding proposed

constitutional amendments.

2.

Exhibit A hereto is the internal working timeline that the Secretary of State uses

to meet the deadlines for newspaper publication and pamphlet di stribution. The attached

timeline is specific to 2020; however, the Secretary of State has used the same timeline, making

adj ustments for the date of the general election but keeping the timeframes consistent, for at least

the past seven years of elections.

3. By statute, if a petition for a proposed constitutional amendment survives any

chall enges before the State Board of Elections and in court, the Secretary of State must publish

the amendment at least one month before the election (October 3, 2020) in newspapers

throughout Illinois.

Case: 1:20-cv-02189 Document #: 20-1 Filed: 04/16/20 Page 3 of 7 PageID #:131
4. To meet the October 3, 2020 publication deadline, the Secretary of State starts working in earl y May, shortl y after the petition filing deadline.
5. The National Voting Rights Act requires that the proposed amendments be translated into multiple languages prior to publication. Thus, the Secretary of State must go through a procurement process for translation services, with informal bids for translators starting in mid-May and contracts awarded by around June 8.
6. The Secretary of State must also procure newspaper publi shing; a bid is posted by about May 20 to secure a publishing contract by the end of June.
7. Final drafts of proposed amendments, in all languages, should be completed by early August, and all work on newspaper publication must be complete by about September 9 to ensure timely publication.
8. The Secretary of State must also ensure that proposed amendments are publ ished in a pamphlet mailed to every address in the State at least one month prior to the election. The pamphlet must include not only the text of the amendment, but also an explanation of the amendment, the arguments for it (provided by its proponent), and the arguments against it (provided by the General Assembly or Attorney General).
9. Once the Secretary of State receives the arguments, the pamphlet must be proofed, translated into multiple languages in accordance with the National Voting Rights Act, ent to a printer, printed, delivered from the printer to a mailing service, delivered from the mailing service to the post office, and shipped.
l 0. The Secretary of State posts a bid for printing and mailing services by around May 18 in order to award a contract by the end of June.
2

r - -- - - - - - - -
Case: 1:20-cv-02189 Document #: 20-1 Filed: 04/16/20 Page 4 of 7 PageID #:132

11. The pamphlet is developed and then translated into multiple languages by around mid-July. The final pamphlet proof must be sent to the printer in all languages by August 11. The pamphlets are printed and delivered to a mailing service by September 1, with shipments to the post office until the end of September, so that the pamphlets can be in the mail by the October 3 statutory deadline.
12. Thus, the Secretary of State must begin the process described above and m Exhibit A hereto in May in order to complete his obligations relating to the publication of proposed amendments and the distribution of pamphlets in time for the November 3, 2020 general election.

I declare under penalty of perjury under the laws of the United States of America that the forego ing is true and correct.

Executed on April 16, 2020

..,

3

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Williams Declaration Exhibit A

Case: 1:20-cv-02189 Document #: 20-1 Filed: 04/16/20 Page 6 of 7 PageID #:134

Due Date 4/13/2020 4/13/2020 5/4/2020 5/4/2020 5/6/2020 5/18/2020 5/19/2020 5/20/2020 5/26/2020 5/26/2020 5/26/2020 5/27/2020 5/29/2020 6/1/2020
6/3/2020 6/3/2020 6/4/2020 6/4/2020 6/8/2020 6/8/2020 6/8/2020 6/9/2020 6/16/2020 6/16/2020 6/16/2020 6/16/2020 6/19/2020 6/19/2020 6/23/2020 6/30/2020 6/30/2020 6/30/2020 6/30/2020 7/1/2020 7/1/2020
7/8/2020 7/13/2020 7/17/2020 7/20/2020 7/28/2020

Task Zip Code/Constituent Information from Library Requested Zip Code/Constituent Information from Library Last day for passage of Const Amendments by GA Last day for filing of Const Amendment by petition Copy to Communications to prepare English version Post Bid for Printing/Mailing in Procurement Bulletin Informal Bid for translators Post Bid for Newspaper Publishing in Procurement Bulletin Deadline for arguments from GA on legislative amendments Deadline for arguments (pro) & explanation on petitions Deadline for arguments (con) from GA on petitions Const Amendment arguments to SOS Communications First proof of pamphlet (english) ready to distribute Letter to AG with arguments (pro) for petitions First round of changes of pamphlet (english version) due to Programs First round of changes to Communications Second proof back from Communications Second proof of pamphlet (english) distributed for review Bids for translators open Second round of changes of pamphlet (english) due to Programs Contracts awarded for translators Letter to Leaders re: impact of no budget Post "Intent to Award Notice" on Printing/Mailing Open Bids for Mailing/Printing Contract Open newspaper bids Post "Intent to Award Notice" on Newspaper Contract Arguments (pro) due back from AG on petitions MUST HAVE APPROPRIATION BY THIS DATE Final english copy to translator #1 to be set in foreign languages Award Printing/Mailing Contract Award Newspaper Contract ALL CONTRACTS AWARDED Translation #1 due back If ready, send English only pamphlet to printer Proof sent to translator #2
Translatations from translator #2 due and return to #1 for corrections Final page count to the printer Corrected, final foreign language pamphlets due from translator #1 Distribution of final proof with foreign languages for review Corrections on final proof to translator

Responsibility Program Staff Program Staff
Program Staff Budget Budget Budget
Program Staff Program Staff
Legal
All Program Staff Prog/Communications Program Staff
Budget All
Budget Legal Budget Budget Budget Budget Legal
Communications Budget Budget Budget Budget Budget Budget
Budget Budget Budget
All Program Staff

Case: 1:20-cv-02189 Document #: 20-1 Filed: 04/16/20 Page 7 of 7 PageID #:135

7/29/2020 7/29/2020
8/3/2020 8/3/2020 8/3/2020 8/4/2020 8/11/2020 8/11/2020 8/12/2020
8/21/2020 8/27/2020
9/1/2020 9/7/2020 9/9/2020 9/11/2020 9/14/2020 9/21/2020 9/21/2020 9/24/2020 9/28/2020 9/28/2020 9/28/2020 9/28/2020 10/2/2020 10/3/2020 10/6/2020 10/6/2020 10/6/2020 10/12/2020 10/19/2020 11/3/2020

Kasper brief due to Supreme Court Final proof with foreign languages from translator Final draft completed for newspapers in all languages Final english draft to State Library for Braille translation Final english draft sent for audio translation Reply brief due from Petitioners to Supreme Court English/Polish pamphlets to SOS printer (3,000 copies) Final pamphlet proof to printer in all languages Final proof from printer to Programs Programs
ISBE MUST CERTIFY ALL PROPOSED AMENDMENTS TO COUNTY ELECTION OFFICIALS Audio recording due from IIS Pamphlets delivered from printer to mailing service and Index Prepare legislative FAQs (see 2014 version) ALL WORK ON NEWSPAPERS MUST BE COMPLETE & SENT TO IPA Pamphlets ready for delivery to post office from mail service Final review of legislative FAQs Final Proof from newspapers due Start shipping pamphlets to post office Post Const Amendments (all forms) on cyberdrive Last shipment of pamphlets to post office Send e-mail to legislators for pamphlet requests Copy of Legislative FAQs to legislative affairs First week of newspaper publication Extra pamphlets to ILSOS ALL PAMPHLETS MUST BE IN THE MAIL Extra pamphlets to DSD and legislative offices Extra pamphlets to libraries if needed Extra pamphlets to county officials Second week of newspaper publication Third week of newspaper publication ELECTION DAY

Prog/Communications Library
Communications Communications
Program Staff
Program Staff Program Staff
Legislative Program Staff
Program/Legislative Program/Library Program Staff

 
 Case: 1:20-cv-02189 Document #: 40 Filed: 05/11/20 Page 1 of 11 PageID #:387

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH NORDEN, DAVID VAUGHT, DORIS, DAVENPORT, ANDREA RAILA, JACKSON PALLER, and the COMMITTEE FOR THE ILLINOIS DEMOCRACY AMENDMENT, an Unincorporated political association,
Plaintiffs,
JESSE WHITE, in his official capacity As Illinois Secretary of State, DEVON REID, in his official capacity as the Evanston City Clerk, KAREN A. YARBROUGH, in her official capacity as Cook County Clerk, and WILLIAM J. CARDIGAN, KATHERINE S. O’BRIEN, LAURA K. DONAGUE, CASSASNDRA B. WATSON, WILLIAM R. HAINE, IAN K. LINNABARY, CHARLES W. SCHOLZ, WILLIAM M. MCGUFFAGE, In their official capacities as Board Members for the Illinois State Board of Elections,
Defendants.

) ) ) ) ) ) ) ) ) 20-cv-02189 ) Honorable Judge Charles R. Norgle, Sr. ) ) ) Magistrate Judge M. David Weisman ) ) ) ) ) ) ) ) ) ) ) ) ) )

DEFENDANT DEVON REID’S MOTION TO DISMISS Defendant, DEVON REID, in his official capacity as the Clerk of the City of Evanston,

by his attorney KELLEY A. GANDURSKI, Corporation Counsel, and through, Nicholas E.

Cummings, Deputy City Attorney, and one of her assistants, Alexandra B. Ruggie, Assistant City

Attorney, moves this Honorable Court to dismiss the Plaintiffs’ Amended Verified Complaint

against Defendant Reid pursuant to Rule 12(b)(6). In support thereof, Reid states as follows:

Case: 1:20-cv-02189 Document #: 40 Filed: 05/11/20 Page 2 of 11 PageID #:388
INTRODUCTION On April 7, 2020, Plaintiffs filed their Complaint. Dkt. 1. Plaintiffs’ filed their Amended Verified Complaint on April 27, 2020. Dkt. 26. Plaintiffs sued a variety of entities, including the Evanston City Clerk, Devon Reid (hereafter “Reid”), in his official capacity. Notably, Reid is the only municipal clerk named in Plaintiffs’ lawsuit, even though Plaintiffs allege that this is an issue that will affect the entire State of Illinois. Plaintiffs allege violations of their First Amendment rights and request that Reid accept electronic signatures for a referendum petition. Plaintiffs’ request is misplaced. Reid is entitled to qualified immunity. Additionally, the Illinois Constitution and the Illinois Election Code control Reid’s ability to allow for electronic signatures and therefore, Plaintiffs’ lack standing regarding their claim against Reid. Plaintiffs’ Complaint also fails to state a cause of action against Reid. Plaintiffs allege that their First Amendment Rights were violated when the Illinois Governor entered an executive order to shelter in-place. Dkt. 26. Specifically, Plaintiffs allege that they are unable to collect signatures for a ballot referendum because of the Governor’s executive order. Looking at the totality of Plaintiffs’ Amended Complaint, it is completely devoid of any allegations that Reid violated their rights and should therefore be dismissed. Lastly, Plaintiffs’ Amended Complaint should be dismissed because Reid is sued in his official capacity, yet Plaintiffs fail to allege a Monell claim that the City of Evanston has a policy or custom or violating Plaintiffs’ rights. Plaintiffs’ Amended Complaint against Reid should be dismissed pursuant to Rule 12(b)(6) because: 1) Reid is entitled to qualified immunity; 2) Plaintiffs’ claim is not ripe; 3) Plaintiffs fail to state a cause of action against Reid, and 4) Plaintiffs do not bring a Monell claim against the City, even though they named the Evanston City Clerk in his official capacity.
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STANDARD OF REVIEW In reviewing the sufficiency of a complaint, a district court must accept all well-plead facts as true and draw all permissible inferences in favor of the plaintiff. Agnew v. Nat’l Collegiate Athletic Ass’n, 683 F.3d 328, 334 (7th Cir. 2012) (emphasis added). The Federal Rules of Civil Procedure require a complaint provide the defendant with “fair notice of what the…claim is and the grounds upon which it rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has described this standard as requiring a complaint to “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). A complaint falls short of the plausibility standard where plaintiff “pleads facts that are 'merely consistent with' a defendant's liability . . .” Twombly, 550 U.S. at 557. A plaintiff is not required to make “detailed factual allegations,” but there must be more than “an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 (citations omitted). However, “legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption of truth,” McCauley v. City of Chicago, 671 F.3d 611, 616 (7th Cir. 2011) (citing Iqbal, 556 U.S. at 678), nor should a court “strain to find inferences favorable to plaintiffs” or accept unreasonable inferences. Caldwell v. City of Elwood, Ind., 959 F.2d 670, 673 (7th Cir. 1992). Qualified immunity is properly raised in a Rule 12(b)(6) motion because qualified immunity should be resolved as soon as possible, which is sometimes at the pleadings stage. Serrano v. Guevara, 315 F. Supp. 3d 1026, 1034 (N.D. Ill. 2018) (citing Doe v. Vill. of Arlington Heights, 782 F.3d 911, 915–16 (7th Cir. 2015)). The entitlement to qualified immunity “is an
3

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immunity from suit rather than a mere defense to liability,” and, as such, should be decided at the earliest possible stage in the litigation. Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536 (1991) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806 (1985)); see also Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815 (2009).
ARGUMENT I. REID IS ENTITLED TO QUALIFIED IMMUNITY.
Plaintiffs allege that Reid must accept election petitions electronically otherwise their rights guaranteed by the U.S. Constitution will be violated. Dkt. 26. This acceptance of an electronic petition serves as the basis for most, if not all, of Plaintiffs’ claims against Reid. Reid, however, is entitled to qualified immunity because Reid cannot act contrary to clearly established law based on the specific facts confronting him and the information he currently possesses.
The doctrine of qualified immunity protects government officials performing discretionary functions from liability to the extent that their conduct “could reasonably have been thought consistent with the rights they are alleged to have violated.” Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S. Ct. 3034 (1987); see also McAllister v. Price, 615 F.3d 877, 881 (7th Cir. 2010) (citing Pearson, 555 U.S. at 231, 129 S. Ct. at 815). Essentially, qualified immunity protects “all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct. 1092, 1098 (1986); see also Hughes v. Meyer, 880 F.2d 967, 970 (7th Cir. 1989). “In determining qualified immunity, a court asks two questions: (1) whether the facts, taken in the light most favorable to the plaintiff, make out a violation of a constitutional right and (2) whether that constitutional right was clearly established at the time of the alleged violation.” Hernandez v. Sheahan, 711 F.3d 816, 817 (7th Cir. 2013) (citing Pearson, 555 U.S. at 232). Courts may exercise discretion in deciding which question to address first. Id.
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Whether an [employee] has qualified immunity is a question of law for the judge to decide. See Whitt v. Smith, 832 F.2d 451, 453 (7th Cir. 1987).
Plaintiffs invoke their constitutional rights to the First Amendment freedom to petition and freedom of speech. Plaintiffs, however, “may not escape the doctrine of qualified immunity by alleging a violation of a clearly established, but very broad constitutional right.” Bakalis v. Golembeski, 35 F.3d 318, 323 (7th Cir. 1994). Instead, in determining whether a constitutional right was clearly established, the analysis “must be undertaken in light of the specific context of the case, not as a broad general proposition.” Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156 (2001); see also Alicea v. Thomas, 815 F.3d 283, 291 (7th Cir. 2016) (The “clearly established” inquiry requires examining the right “in a particularized sense, rather than at a high level of generality.”). “‘[T]he crucial question [is] whether the official acted reasonably in the particular circumstances that he or she faced.” Reed v. Palmer, 906 F.3d 540, 547 (7th Cir. 2018) (quoting Kemp v. Liebel, 877 F.3d 346, 351 (alterations in original) (emphasis added) (quoting Plumhoff v. Rickard, 572 U.S. 765, 134 S. Ct. 2012, 2023 (2014)). “‘To be clearly established at the time of the challenged conduct, the right’s contours must be sufficiently clear that every reasonable official would have understood that what he is doing violates that right....’” Reed, 906 F.3d at 547 (quoting Kemp, 877 F.3d at 351 (alteration in original) (quoting Gustafson v. Adkins, 803 F.3d 883, 891 (7th Cir. 2015)). In other words, it must be clear to a reasonable [employee] that his conduct was unlawful in the situation he confronted. Purtell v. Mason, 527 F.3d 615, 621 (7th Cir. 2008). This determination requires the Court to “consider the [employee]’s actions in light of all the particular circumstances the [employee] faced at the time and then compare them with the then-existing law.” Ulichny v. Merton Cmty. Sch. Dist., 249 F.3d 686, 701 (7th Cir. 2001). “Ultimately, the question for qualified immunity ‘is whether the
5

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state of the law at the time that [the Defendant] acted gave [him] reasonable notice that [his] actions violated the Constitution.” Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2011). “As long as an employee ‘of reasonable competence could disagree on [the] issue, immunity should be recognized.’” Purtell, 527 F.3d at 621. Plaintiffs bear the burden demonstrating the violation of a clearly established right.” Purtell, 527 F.3d at 621. The only act that Reid is allowed to perform under the Illinois Election Code is to accept petitions. Reid has no discretion in how petitions are circulated, nor does the Illinois Election Code allow Reid to mandate such electronic circulation. In addition, until the Illinois State Election Code or the provisions of the Illinois Constitution that require the petition ballots be accompanied by an affidavit and be filed in person, are found to be unconstitutional or are amended, Reid cannot accept the petition ballots electronically. Reid has no choice but to continue to follow the Illinois Election Code and Illinois Constitution until one or both are found to be unconstitutional or are amended. At that time and only at that time, if Reid then refused to accept the electronic petitions, would Plaintiffs’ rights be violated. As the law stands now however, Reid is entitled to qualified immunity and Plaintiffs’ complaint should be dismissed. II. PLAINTIFFS DO NOT HAVE STANDING AS THIS ACTION IS NOT RIPE
AGAINST REID. The Amended Complaint does not allege that a single plaintiff has, in fact, suffered any
actual injury as it pertains to Reid. “[A] plaintiff seeking relief in federal court must first demonstrate that he has standing to do so, including that he has ‘a personal stake in the outcome,’ distinct from a ‘generally available grievance about government.” Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018). In order to have standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 136 S. Ct.
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1540, 1547 (2016). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing these elements. Where, as here, a case is at the pleading stage, the plaintiff must ‘clearly…allege facts demonstrating’ each element.” Id. (citation omitted).
a. Plaintiffs’ fail to allege an injury in fact as it pertains to Reid. Plaintiffs’ claims against Reid “are too speculative to create a concrete dispute.” Construction and General Laborer’s Union No. 330 v. Town of Grand Chute , 915 F.3d 1120, 1127 (7th Cir. 2019). Plaintiffs assert Illinois statutory and constitutional requirements stifle their First Amendment right to petition by requiring physical signatures and an affidavit. Dkt 26. Plaintiffs’ entire Complaint is devoid of any allegations specifically pertaining to Reid, other than Paragraph 38 where Plaintiffs express their desire to file a petition with Reid. Id. Paragraph 38 does not allege any action or inaction by Reid. Id. Instead it is merely a recitation of Plaintiffs’ failure to have obtained the necessary signatures in a timely fashion and speculation that now they will be unable to do so. In General Laborer’s Union, the municipality passed an ordinance banning signs located in the public right of way. General Laborer’s Union, 915 F. 3d at 1126. The Union sued, alleging the ordinance would restrict their First Amendment rights in the event they protested in the future and wanted to use an inflatable rat. Id. The court held their claim regarding the possible protests was too speculative and while the potential to utilize an inflatable rat was interesting, the situation had yet to present itself and was therefore not ripe before the court. Id. at 1127. Here, as in General Laborer’s Union, Plaintiffs’ allegations about petitions are too speculative. First and foremost, only Plaintiff Paller speculates that he wishes to submit a petition in the City of Evanston. Dkt. 1, ¶ 38. Plaintiff Paller, however, does not allege that he has been
7

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unable to do so or that he has even tried. Dkt. 26. In fact, Plaintiff Paller alleges that he is not required to submit the signatures to the City Clerk until August 3, 2020. Dkt. 26, ¶ 38. The Governor’s “shelter-in-place” Order is set to expire on May 30, 2020, leaving Plaintiffs with several months to collect signatures. Plaintiffs, therefore, cannot and have not alleged an imminent threat or injury as it pertains to Reid.
b. No Injury is Traceable to Reid. Plaintiffs purported injury is an inability to file petitions with signatures obtained electronically. Plaintiffs cite to Section 28 of the Illinois Election Code, which requires that petition sheets include a sworn and notarized affidavit of the petition circulator that he personally witnessed the signatures of all signers of the petition. Additionally, Plaintiffs cite the Illinois Constitution, which requires that the paper initiative petition pages must be bound and filed in one book with the appropriate officer. See Article VII or Article XIV of the Illinois Constitution. Irrespective of these allegations, Plaintiffs filed this suit against Reid, who does not have authority to unilaterally decide to accept electronic ballot petitions, in violation of established State law. It is therefore entirely unknown how any purported violation of the Plaintiffs rights could be attributed to Reid. III. PLAINTIFFS FAIL TO STATE A CLAIM AGAINST REID. Plaintiffs’ Amended Complaint makes plain, the action allegedly infringing their rights is the Executive Order of the state’s governor. Dkt. 26, ¶¶ 29-31. Interestingly, Plaintiffs cite “the health crisis” as a factor making it impossible to collect signatures. Id. There are no facts alleged in Plaintiffs’ Amended Complaint showing any action by Reid limiting Plaintiffs’ Constitutional Rights. Reid is not the state actor enacting the challenged legislation and is only responsible for following it. In this case, the two regulations cited by Plaintiffs are the Illinois Election Code requiring petitions—if used—to be
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Case: 1:20-cv-02189 Document #: 40 Filed: 05/11/20 Page 9 of 11 PageID #:395
filed with the City Clerk, 10 ILCS 5/28-7, and the Governor’s Executive Order. Dkt. 1, ¶¶ 34-35. Reid is not responsible for either regulation.
Plaintiffs only mention of Reid or the City of Evanston is in Paragraph 38, noting that “[f]or the Evanston local initiative referendum to qualify, Plaintiff Paller must submit 2,800 signatures to the Evanston City Clerk by August 3, 2020.” Dkt. 26, ¶ 38. Plaintiffs’ Amended Complaint leaves Reid in the dark regarding what claim is against him and the foundation for said claim resulting in pleading deficient in facts sufficient to place Reid on notice.
Plaintiffs allege that they are unable to file petitions, but Reid has no authority or role under state law with respect to the collection of signatures, and Plaintiffs do not allege as such. There is no evidence Plaintiffs have (or can) put forth showing Reid is preventing Plaintiffs from collecting petitions signed by a number of qualified electors pursuant to the Illinois Election Code. The only role Reid as City Clerk of the City of Evanston plays in the process pursuant to Illinois Election law, the Illinois Municipal Code and the Evanston City Code is to allow the petitions to be filed. See 10 ILCS 5/28-7; 65 ILCS 5/3.1-35-90; and Evanston City Code § 1-7-2. Plaintiffs do not argue—nor can they demonstrate— that Reid’s office will not accept petitions signed by a number of qualified electors. IV. REID IS NOT A PROPER DEFENDANT BECAUSE PLAINTIFFS DO NOT PROPERLY
ALLEGE AN OFFICIAL CAPACITY CLAIM . Included among the defendants in Plaintiff’s Amended Complaint is Devon Reid,
Evanston City Clerk, who Plaintiffs purport to sue in his official capacity. Dkt. 26, ¶ 11. A lawsuit against an individual in their official capacity is not a lawsuit against the individual, but rather is a lawsuit against the governmental entity of which the individual is an agent. Schlicher v. Bd. of Fire & Police Comm’rs of Vill. of Westmont, 363 Ill. App. 3d 869, 883, 845 N.E.2d 55, 67 (2d Dist. 2006) (citing Kentucky v. Graham, 473 U.S. 159, 167, 105 S.Ct. 3099, 3106 (1985)); see also Office of Lake Cty. State’s Attorney v. Human Rights Comm’n, 235 Ill. App. 3d 1036,
9

Case: 1:20-cv-02189 Document #: 40 Filed: 05/11/20 Page 10 of 11 PageID #:396
1042, 601 N.E.2d 1294, 1298 (2d Dist. 1992). In other words, an official capacity lawsuit is to be treated as a lawsuit against the governmental entity. Graham, 473 U.S. at 165–66, 105 S. Ct. at
3105; see also Lake Cty. State’s Attorney, 235 Ill. App. 3d at 1042, 601 N.E.2d at 1298 (official
capacity lawsuit is no different from a lawsuit against the governmental entity itself). However,
Plaintiffs fail to allege that the City of Evanston or Reid, in his official capacity, have a policy
which violates their rights. The City of Evanston can only be held liable under Section 1983
when it is alleged that the government’s policy or custom inflicts a constitutional injury to
Plaintiffs. Monell v. Department of Social Services of City of New York , 436 U.S. 658, 694
(1978). Plaintiffs have made no such claim here and therefore made no valid claim against either
the City of Evanston or Reid, in his official capacity.
CONCLUSION Defendant, DEVON REID, in his official capacity as Clerk of the City of Evanston, for
all of the foregoing reasons, respectfully requests this Honorable Court dismiss Plaintiffs’
Amended Verified Complaint with prejudice and any other relief this Court deems appropriate.
Respectfully submitted,
KELLEY A. GANDURSKI Corporation Counsel
/s/ Alexandra B. Ruggie Alexandra B. Ruggie Assistant City Attorney City of Evanston Law Department Morton Civic Center 2100 Ridge Ave Evanston, IL 60201 (847) 866-2937 aruggie@cityofevanston.org
Nicholas E. Cummings Deputy City Attorney City of Evanston Law Department
10

Case: 1:20-cv-02189 Document #: 40 Filed: 05/11/20 Page 11 of 11 PageID #:397 Morton Civic Center 2100 Ridge Ave Evanston, IL 60201 (847) 866-2937 ncummings@cityofevanston.org
11

 
 Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 1 of 18 PageID #:180

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

AMENDED VERIFIED COMPLAINT FOR EMERGENCY DECLARATORY AND INJUNCTIVE RELIEF

NATURE OF THE CASE 1. This is an action to enjoin or modify Illinois petition collection requirements for initiative referendums to be placed on the November 3, 2020 general election ballot and
1

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 2 of 18 PageID #:181
to enable and require the Defendants to accommodate the constitutional rights and interests of the Plaintiffs and the general public in light of the current public health emergency caused by the novel coronavirus and the Governor’s shelter-in-place emergency orders which have been recently extended to May 30, 2020.
2. Under current circumstances, the Plaintiffs and Illinois voters are forced to choose between their health and their rights to petition and vote. Reforms and modifications to Illinois’ initiative referendum election procedures in light of the COVID-19 pandemic are appropriate.
PARTIES 3. Plaintiff William Morgan is an Illinois registered voter and the Chairman of the Committee for the Illinois Democracy Amendment. Plaintiff Morgan has begun an initiative petition drive for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 1, Morgan Declaration. 4. Plaintiff Elizabeth Norden is an Illinois registered voter who wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 2, Norden Declaration. 5. Plaintiff David Vaught is a 72-year-old Illinois registered voter who wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois
2

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 3 of 18 PageID #:182
Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 3, Vaught Declaration.
6. Plaintiff Doris Davenport is an Illinois registered voter who wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 4, Davenport Declaration.
7. Plaintiff Andrea Raila is a 61-year-old Illinois registered wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Exhibit 5, Raila Declaration.
8. Plaintiff Jackson Paller is an Illinois registered voter who wishes to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. Plaintiff Paller also wishes to circulate an initiative petition for a local government referendum in Evanston, Illinois pursuant to Article VII, Section 11 of the Illinois Constitution. Exhibit 6, Paller Declaration.
9. Plaintiff Committee for the Illinois Democracy Amendment is an unincorporated political association registered as a ballot initiative committee with the Illinois State Board of Elections. See Exhibit 1, Morgan Declaration.
3

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 4 of 18 PageID #:183
10. Defendant Jesse White is the Illinois Secretary of State who is constitutionally authorized to accept filings of petitions for constitutional amendments pursuant to Article XIV, Section 3 of the Illinois Constitution.
11. Defendant Devon Reid is the Evanston City Clerk whose office is responsible for all matters involving local elections in Evanston, Illinois and is authorized to accept filings of local government initiative referendums for Evanston pursuant Article VII, Section 11 of Illinois Constitution and to certify those referendums to the Cook County Clerk for ballot placement.
12. Defendant Karen A. Yarbrough is the Cook County Clerk whose office is responsible for placing on the election ballot any Article VII initiative referendum questions certified by the clerks of suburban Cook County municipalities, including the Evanston City Clerk.
13. Defendants William J. Cadigan, Katherine S. O’Brien, Laura K. Donahue, Cassandra B. Watson, William R. Haine, Ian K Linnabary, Charles W. Scholz, and William M. McGuffage, are members of the Illinois State Board of Elections and are empowered to enforce and administer Illinois election laws.
JURISDICTION AND VENUE 14. This Court has jurisdiction over the subject matter of this action by virtue of U.S.C. § 1331 (federal question jurisdiction), this being a case arising under the United States Constitution and 42 U.S.C. § 1983; 28 U.S.C. § 2201 (authorizing declaratory
4

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 5 of 18 PageID #:184
relief); 28 U.S.C. § 2202 (authorizing injunctive relief); and 28 U.S.C. § 1367
(supplemental jurisdiction).
15. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(e) and 1402(a) and 5
U.S.C. § 703.
FACTUAL BACKGROUND
16. Article XIV, Section 3 of the Illinois Constitution provides that
Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. Amendments shall be limited to structural and procedural subjects contained in Article IV. A petition shall contain the text of the proposed amendment and the date of the general election at which the proposed amendment is to be submitted, shall have been signed by the petitioning electors not more than twenty-four months preceding that general election and shall be filed with the Secretary of State at least six months before that general election. The procedure for determining the validity and sufficiency of a petition shall be provided by law. If the petition is valid and sufficient, the proposed amendment shall be submitted to the electors at that general election and shall become effective if approved by either three-fifths of those voting on the amendment or a majority of those voting in the election.
17. Article VII, Section 11 of the Illinois Constitution provides that
(a) Proposals for actions which are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the electors by resolution of the governing board of a unit of local government or by petition of electors in the manner provided by law. (b) Referenda required by this Article shall be held at general elections, except as otherwise provided by law. Questions submitted to referendum shall be adopted if approved by a majority of those voting on the question unless a different requirement is specified in this Article.
5

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 6 of 18 PageID #:185
18. Article III, Section 3 of the Illinois Constitution provides that “[a]ll elections shall be free and equal.”
19. On May 27, 2019, both houses of the Illinois General Assembly adopted Senate Joint Resolution Constitutional Amendment 1 which, pursuant to Article XIV, Section 2 of the Illinois Constitution, placed a constitutional amendment referendum known as the “Fair Tax Amendment” on the ballot for the November 3, 2020 general election.
20. The General Assembly has not officially approved a brief explanation in favor of the Fair Tax Amendment or a brief explanation opposed to such amendment as required by the Illinois Constitutional Amendment Act (5 ICLS 20/2). Thus, the translation, publication, and other deadlines to prepare the ballot pamphlet regarding the Amendment, which must be mailed by the Secretary of State to every mailing address in the state, are delayed indefinitely due to the COVID-19 virus.
21. On November 14, 2019, the Illinois General Assembly adopted a resolution creating the Illinois Joint Commission on Lobbying and Ethics Reform. This body was charged with examining current Illinois legislation regarding ethics reform, soliciting feedback from experts and the general public, and releasing a final report with its review and recommendations by no later than March 31, 2020.
22. Sometime around December 2019, an outbreak of respiratory disease now known as COVID-19, or coronavirus, emerged in Wuhan, China.
6

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 7 of 18 PageID #:186
23. Since then, the outbreak has spread to the majority of the world, with the United States reporting the most cases.
24. On February 27, 2020, the Centers for Disease Control issued guidance in response to COVID-19 which recommended, among other things, the practice of social distancing.
25. On March 9, 2020, the Governor of Illinois proclaimed the entire state a disaster area1 and later banned gatherings of 1,000 people or more and closed all schools, restaurants, and bars.2
26. On March 11, 2020, the World Health Organization declared COVID-19 to be a global pandemic.
27. On March 13, 2020, the President of the United States declared a national emergency.
28. On March 15, 2020, the Illinois General Assembly suspended session indefinitely due to the COVID-19 pandemic.
29. On March 20, 2020, the Governor of Illinois ordered everyone to shelter at home with the exception of “essential” activities and services, and to maintain six foot distance from others.3
1 https://www2.illinois.gov/sites/gov/Documents/APPROVED%20%20Coronavirus%20Disaster%20Proc%20WORD.pdf. 2 https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-04.aspx. 3 https://www2.illinois.gov/Pages/Executive-Orders/ExecutiveOrder2020-10.aspx.
7

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 8 of 18 PageID #:187
30. On March 31, 2020, the co-chairs of the commission on Lobbying and Ethics Reform stated that due to the COVID-19 pandemic, the commission would be unable to reach the March 31, 2020 deadline and would therefore make no recommendations on lobbying and ethics reform.
31. On April 23, 2020, the Governor extended his March 20, 2020 executive order to May 30, 2020.4 Pursuant to the executive order the office of the Secretary of State is closed to the public.
32. Because of the uncertainty of this health crisis, it is unknown when the order will be lifted or when traditional initiative petition passing may resume.
33. Circulating initiative petitions is not listed as an “essential” activity under the Governor’s order. The health crisis coupled with the Governor’s orders makes it effectively impossible to gather signatures in Illinois. In addition, gathering signatures during the health crisis would endanger the health of the circulators and that of the public at large.
34. A number of states have taken action to protect the constitutional right to petition and vote in the midst of this health crisis. For example, on March 19, 2020, the Governor of New Jersey issued an executive order to the Secretary of State to implement online petitioning and signature collection.5 On April 2, 2020, Florida’s
4 https://www.nbcchicago.com/news/coronavirus/pritzker-expected-to-extend-illinois-stay-at-home-orderthursday-sources/2260588/ 5 https://www.state.nj.us/state/elections/assets/pdf/candidate/EO-105.pdf
8

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 9 of 18 PageID #:188
Secretary of State signed an emergency order allowing for the collection of petition signatures online.6 Moreover, the Arizona Secretary of State has provided an online petitioning mechanism for candidates since 2015 and has recently stated she “wouldn’t oppose” use of that system for ballot measures during the pandemic as a “reasonable option for protecting and supporting continuity in our democratic process”.7 On March 14, 2020, the Governor of New York issued an executive order reducing the required number of petition signatures for all petitions for ballot access to 30% of the state threshold.8 Moreover, the Oklahoma Secretary of State issued an order on March 18, 2020 tolling the 90-day period for circulating initiative petitions.
35. On April 17, 2020, the Massachusetts Supreme Court extended petition filing deadlines, reduced petition signature requirements, and provided for online petition signature collection.9
36. On April 20, 2020, a federal district court in Michigan also extended petition filing deadlines, reduced petition signature requirements, and ordered an online petition signature election method to be established.10
37. In order for Plaintiffs’ constitutional amendment referendum to qualify for the November 3,, 2020 general election, they must submit 363,813 initiative petition
6 https://dos.myflorida.com/media/702874/1ser20-2.pdf 7 https://apps.azsos.gov/equal/ 8 https://www.governor.ny.gov/news/amid-covid-19-pandemic-governor-cuomo-signs-executive-ordertemporarily-modifying-election 9 https://www.mass.gov/files/documents/2020/04/17/12931.pdf 10 https://www.bridgemi.com/michigan-government/judge-extends-filing-deadline-michigan-candidates-citingcoronavirus
9

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 10 of 18 PageID #:189
signatures to the Illinois Secretary of State by May 3, 2020. See Article XIV, Section 3 of the Illinois Constitution and Section 28-9 of the Illinois Election Code. The Plaintiffs must physically deliver the hand written signature on paper petitions securely bound to the official office of the Secretary of State.
38. For the Evanston local initiative referendum to qualify, Plaintiff Paller must submit 2,800 signatures to the Evanston City Clerk by August 3,, 2020. See Article VII, Section 11 of the Illinois Constitution and Section 28-7 of the Illinois Election Code.
39. Because of the current health crisis, on April 23, 2020, Judge Pallmeyer issued a preliminary injunction on behalf of various candidates enjoining various election requirements, decreasing the amount of required signatures for some candidates, extending the deadlines for candidates to qualify for the general election ballot on November 3, 2020, and provided for an online petition collection procedure. Exhibit 7, Pallmeyer Order.
40. Subsequent to Judge Pallmeyer’s order, Defendant State Board of Elections stated that its directors “think the order serves the best interests of all parties involved.” Likewise, a spokesperson for the Governor publicly stated that “[i]n light of the fact that the period for these candidates to gather signatures is occurring during the COVID-19 pandemic, the governor supports the court’s order allowing candidates additional
10

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 11 of 18 PageID #:190
means to obtain actual signatures for their ballot petitions, such as through email, and additional time in which to submit those petitions.”11
41. The traditional procedure in existing Illinois law for collecting initiative petitions is identical to and indistinguishable from the traditional procedure for collecting petition signatures for candidates.
42. Apart from judicial relief, the Plaintiffs have no way to exercise their right to petition and speech without jeopardizing their health and the health of the general public.
COUNT I RIGHT TO PETITION AND SPEECH 43. The allegations contained in all preceding paragraphs are incorporated here by reference. 44. Plaintiffs’ rights to petition and speech are protected by the First Amendment to the United States Constitution in conjunction with Article XIV, Section 3; Article VII, Section 11; and Article III, Section 3 of the Illinois Constitution. Section 28 of the Illinois Election Code also requires statewide and local initiative referendum petition sheets to contain a sworn and notarized affidavit of the petition circulator that he personally witnessed the signatures of all signers of the petition and the notary attesting that he witnessed the signature of the circulator. In addition, initiative petition signatures must be handwritten by the signer on a paper petition. Finally, the paper initiative petition
11 https://capitolnewsillinois.com/NEWS/third-party-candidates-ballot-access-rules-officially-loosened
11

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 12 of 18 PageID #:191
pages must be bound and filed in one book with the appropriate officer as designated by Article VII or Article XIV of the Illinois Constitution.
45. Under the circumstances, the Illinois petition collection requirements unduly burden and violate Plaintiffs’ rights to petition and speech.
46. A real and actual controversy exists between the parties. 47. Plaintiffs have no actual remedy at law other than this action. 48. Plaintiffs are suffering, and will continue to suffer, irreparable harm until they obtain relief from this Court.
WHEREFORE, Plaintiffs respectfully pray that the Court grant the relief set forth in the prayer for relief below.
COUNT II RIGHT TO EQUAL PROTECTION AND DUE PROCESS 49. The allegations contained in all preceding paragraphs are incorporated here by reference. 50. Under the present circumstances, Illinois’ petition collection requirements unduly burden and violate Plaintiffs’ rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution as well as Article I, Section 2; Article III, Section 3; Article VII, Section 11; and Article XIV, Section 3 of Illinois Constitution. 51. A real and actual controversy exists between the parties.
12

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 13 of 18 PageID #:192
52. Plaintiffs have no actual remedy at law other than this action. 53. Plaintiffs are suffering, and will continue to suffer, irreparable harm until they obtain relief from this Court. WHEREFORE, Plaintiffs respectfully pray that the Court grant the relief set forth in the prayer for relief.
COUNT III ILLINOIS CONSTITUTION 54. The allegations and facts in all preceding paragraphs are incorporated here by reference. 55. Plaintiffs’ right to ballot access is protected by the Illinois Constitution in Article XIV, Section 3; Article VII, Section 11; and Article III, Section 3 (the “Free and Equal Elections” clause). Uniform application of ballot access requirements is required under Article I, Section 2 of the Equal Protection Clause of the Illinois Constitution. 56. The right to vote is a fundamental right in Illinois. Orr v Edgar, 283 Ill. App. 3d 1088, 1100 (1st Dist. 1996). A two-tiered voter registration has been found to violate constitutional rights. Id. at 1090. In a case dealing with directly with article XIV section 3, the Illinois Supreme Court has held that the right of initiative petition is “intertwined” with the right to vote. Coalition for Political Honesty v. State Bd. of Elections II, 83 Ill. 2d 236, 248 (1980). Strict scrutiny is proper regarding restrictions on the right to petition for initiatives. Id. A federal court, using strict scrutiny, struck down a geographic limitation on petitioning for Article XIV, Section 3 for ballot initiatives as it
13

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was not the “least onerous” method for the State to achieve its articulated purpose.

Coalition for Political Honesty v. Illinois State Bd. of Elections, No. 81 C 2718, 1982 U.S. Dist.

LEXIS 12411 at *7 (N.D. Ill, Apr. 23, 1982). Plaintiffs are unable to collect initiative

petition signatures while complying with the relevant provisions of the Illinois Election

Code and with the stay-at-home and social distancing orders mandated by the Illinois

Governor. State action has truncated the petition period available to the Plaintiffs by a

significant number of days before the filing deadline and has prevented Plaintiffs from

petitioning. Jones v. McGuffage, 921 F.Supp2d 888 (N.D. Ill. 2013).

57.

A limitation on right to access the ballot is unconstitutional if it unduly

restricts the rights of groups to gain access to the ballot, or if it dilutes or debases the

right to vote. Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 185

(1979).

58.

The Court may, and should, extend the May 3, 2020 filing deadline for the

Plaintiffs’ initiative petition as was done for third party and independent candidates in

the case of Libertarian Party of Illinois et. al., v. Pritzker et. al., Case No 2-cv-2112. See

Exhibit 7.

59.

A 50% signature reduction to accommodate Michigan’s stay-at-home

order was recently granted to all duly established candidates by the Eastern District of

Michigan. See Esshaki v. Whitmer, 2:20-cv-10831-TGB-EAS ECF No. 23. Thus, this Court

may, and should, order a lowered signature requirement for the Plaintiffs initiative

14

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 15 of 18 PageID #:194
petition as was done for third party and independent candidates in the Libertarian Party case.
60. Specific requirements for ballot access must be examined in full. A loss of any authorized petition time which is not sufficiently remedied is an injury which must be recognized as a violation of the Fair and Equal Elections and Equal Protection clauses of the Illinois Constitution. Such loss also unduly burdens rights under Article XIV, Section 3 and Article VII, Section 11 of the Illinois Constitution. A truncated petitioning period must be addressed by appropriate relief.
61. Under the circumstances, the petition requirements unduly burden the Plaintiffs’ right to petition as protected by the above sections of the Illinois Constitution.
62. A real and actual controversy exists between the parties. 63. Plaintiffs have no adequate remedy at law other than this action. 64. Plaintiffs are suffering, and will continue to suffer, irreparable harm unless they obtain relief from this court.
WHEREFORE, Plaintiffs respectfully pray that the Court grant the relief set forth in the prayer for relief.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request that this Court: A. Assume original jurisdiction over this matter;
15

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B. Issue a temporary restraining order and/or preliminary injunction: (i) enjoining or modifying enforcement of Illinois Election Code’s petition collection requirements for initiative referendums for Illinois' November 3, 2020 general election; (ii) enabling and requiring the Defendants to allow for initiative petitions to be collected in the same manner as ordered by Judge Pallmeyer in Libertarian Party of Illinois et. al., v. Pritzker et. al., Case No 2-cv-2112, to wit: a. enjoining the circulator’s statement requirement and notarization requirement in 10 ILCS 5/28-3; b. enjoining the requirement in 10 ICLS 5/28-3 that the petition sheets filed with the Secretary of Stare be originals; and c. allowing petition signers to electronically sigh their signatures; (iii) extending the May 3, 2020 deadline for an Article XIV, Section 3 referendum to August 3, 2020 or, in the alternative, granting Plaintiffs an additional 55 days which they lost when the petition period was truncated as a result of the Governor’s executive orders; and reducing by 50% the number of signatures required to qualify statewide and Evanston initiative referendums for the general election ballot or some percentage of required signatures necessary to demonstrate substantial public support.
C. Issue a declaratory judgment stating that, in light of the current public health emergency caused by the novel coronavirus and executive orders requiring that
16

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Illinois citizens stay at home and shelter in place, Illinois' petition collection requirements for qualifying Article XIV and Article VII referendums for the general election cannot be constitutionally enforced; D. Issue a permanent injunction prohibiting enforcement of Illinois' initiative petition collection requirements for qualifying Article XIV and Article VII referendums for the November 3, 2020 general election; E. Order Defendants to pay to Plaintiffs their costs and reasonable attorneys’ fees under 42 U.S.C. § 1988(b); F. Grant such other relief as this Court deems appropriate. Respectfully submitted this 27th day of April, 2020.
/s/ WILLIAM MORGAN, ET AL., John Mauck Sorin A. Leahu Mauck & Baker, LLC 1 N. LaSalle Street, Suite 600 Chicago, IL 60602 312-726-1243 jmauck@mauckbaker.com sleahu@mauckbaker.com Pat Quinn 216 N. Jefferson #200 Chicago, IL 60661 312-485-1852 ltg.patquinn@gmail.com
17

Case: 1:20-cv-02189 Document #: 26 Filed: 04/27/20 Page 18 of 18 PageID #:197 VERIFICATION
Under penalties as provided by law, the undersigned certifies that the statements set forth in the “Verified Complaint for Declaratory and Injunctive Relief” are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.
18

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EXHIBIT 1

Case: 1:20-cv-02189 Document #: 26-1 Filed: 04/27/20 Page 2 of 4 PageID #:199

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

DECLARATION OF WILLIAM MORGAN

I, William Morgan, make this declaration upon my personal knowledge and as I would testify if called as a witness in open court.

1. I am an Illinois registered voter over the age of 18 currently residing at 25904 Derby Drive, Monee, IL 60449.

Case: 1:20-cv-02189 Document #: 26-1 Filed: 04/27/20 Page 3 of 4 PageID #:200
2. I intend to vote at the November 3, 2020, general election which includes a constitutional amendment referendum on the Fair Tax Amendment proposed by the Illinois General Assembly pursuant to Article XIV, Section 2 of the Illinois Constitution.
3. I am the Chairman of the Committee for the Illinois Democracy Amendment. 4. The Committee for the Illinois Democracy Amendment is an unincorporated political association which is registered as a statewide ballot initiative committee with the Illinois State Board of Elections. 5. The Committee is seeking to qualify a constitutional amendment referendum for the November 3, 2020 general election ballot pursuant to Article XIV, Section 3 of the Illinois Constitution. Under Section 28-9 of the Illinois Election Code, the Committee must file at least 363,813 initiative petition signatures to the Illinois Secretary of State by May 3, 2020, in order to qualify the constitutional amendment referendum for the November 3, 2020 ballot. 6. I have begun an initiative petition drive for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. 7. However, I am concerned about the ongoing COVID-19 health crisis and I intend to abide by the State’s current shelter at home and social distancing orders. If given the opportunity to circulate petitions online I would do so. 8. In 2018, I collected more than 1,000 initiative petition signatures for a local government referendum in Chicago pursuant to Article VII, Section 11 of the Illinois Constitution. The Chicago petition drive exceeded the minimum signature requirement in Section 28-7 of the Illinois Election Code for an Article VII referendum.
2

Case: 1:20-cv-02189 Document #: 26-1 Filed: 04/27/20 Page 4 of 4 PageID #:201 9. Recently, I was able to change my voting address using the State of Illinois on-line voter registration system. Under penalties as provided by law, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Date: April 27, 2020
3

Case: 1:20-cv-02189 Document #: 26-2 Filed: 04/27/20 Page 1 of 3 PageID #:202
EXHIBIT 2

Case: 1:20-cv-02189 Document #: 26-2 Filed: 04/27/20 Page 2 of 3 PageID #:203

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

DECLARATION OF ELIZABETH NORDEN

I, Elizabeth Norden, make this declaration upon my personal knowledge and as I would testify if called as a witness in open court.

1. I am an Illinois registered voter over the age of 18 currently residing at 2500 N. Lakeview, Chicago, IL 60614.

Case: 1:20-cv-02189 Document #: 26-2 Filed: 04/27/20 Page 3 of 3 PageID #:204
2. I intend to vote at the November 3, 2020, general election which includes a constitutional amendment referendum on the Fair Tax Amendment proposed by the Illinois General Assembly pursuant to Article XIV, Section 2 of the Illinois Constitution.
3. I wish to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution.
4. However, I am concerned about the ongoing COVID-19 health crisis and I intend to abide by the State’s current shelter at home and social distancing orders. If given the opportunity to circulate petitions online I would do so.
5. In 2018, I collected more than 6,000 initiative petition signatures for a local government referendum in Chicago pursuant to Article VII, Section 11 of the Illinois Constitution. The Chicago petition drive exceeded the minimum signature requirement in Section 28-7 of the Illinois Election Code for an Article VII referendum.
Under penalties as provided by law, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that she verily believes the same to be true. Date: April 27, 2020
2

Case: 1:20-cv-02189 Document #: 26-3 Filed: 04/27/20 Page 1 of 3 PageID #:205
EXHIBIT 3

Case: 1:20-cv-02189 Document #: 26-3 Filed: 04/27/20 Page 2 of 3 PageID #:206

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

DECLARATION OF DAVID VAUGHT

I, David Vaught, make this declaration upon my personal knowledge and as I would testify if called as a witness in open court.

1. I am a 72 year old Illinois registered voter currently residing at 1135 Gateshead Drive, Naperville, IL 60564.

Case: 1:20-cv-02189 Document #: 26-3 Filed: 04/27/20 Page 3 of 3 PageID #:207
2. I intend to vote at the November 3, 2020, general election which includes a constitutional amendment referendum on the Fair Tax Amendment proposed by the Illinois General Assembly pursuant to Article XIV, Section 2 of the Illinois Constitution.
3. I wish to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution.
4. However, I am concerned about the ongoing COVID-19 health crisis and I intend to abide by the State’s current shelter at home and social distancing orders. If given the opportunity to circulate petitions online I would do so.
5. In 1976, 1980, 1982, and 1994, I collected initiative petition signatures and coordinated the petition drives for statewide constitutional amendment referendums pursuant to Article XIV, Section 3. Each of the four statewide petition drives exceeded the minimum signature requirement for an Article XIV referendum in Section 28-9 of the Illinois Election Code. Each of the four statewide petition drives obtained the bulk of their signatures in the last seven weeks of the petition drive before the deadline.
Under penalties as provided by law, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Date: April 27, 2020
2

Case: 1:20-cv-02189 Document #: 26-4 Filed: 04/27/20 Page 1 of 3 PageID #:208
EXHIBIT 4

Case: 1:20-cv-02189 Document #: 26-4 Filed: 04/27/20 Page 2 of 3 PageID #:209

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

DECLARATION OF DORIS DAVENPORT

I, Doris Davenport, make this declaration upon my personal knowledge and as I would testify if called as a witness in open court.

1. I am an Illinois registered voter over the age of 18 at 805 Lake Street, #251, Oak Park, IL 60301.

Case: 1:20-cv-02189 Document #: 26-4 Filed: 04/27/20 Page 3 of 3 PageID #:210
2. I intend to vote at the November 3, 2020 general election which includes a constitutional amendment referendum on the Fair Tax Amendment proposed by the Illinois General Assembly pursuant to Article XIV, Section 2 of the Illinois Constitution.
3. I wish to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution.
4. However, I am concerned about the ongoing COVID-19 health crisis and I intend to abide by the State’s current shelter at home and social distancing orders. If given the opportunity to circulate petitions online I would do so.
5. In 2018, I collected more than 1,000 initiative petition signatures for a local government referendum in Chicago pursuant to Article VII, Section 11 of the Illinois Constitution. The Chicago petition drive exceeded the minimum signature requirement in Section 28-7 of the Illinois Election Code for an Article VII referendum.
Under penalties as provided by law, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that she verily believes the same to be true. Date: April 27, 2020
Doris Davenport
2

Case: 1:20-cv-02189 Document #: 26-5 Filed: 04/27/20 Page 1 of 4 PageID #:211
EXHIBIT 5

Case: 1:20-cv-02189 Document #: 26-5 Filed: 04/27/20 Page 2 of 4 PageID #:212

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

DECLARATION OF ANDREA RAILA

I, Andrea Raila, make this declaration upon my personal knowledge and as I would testify if called as a witness in open court.

1. I am a 61 year old Illinois registered voter currently residing at 1444 W. Glenlake Avenue, Chicago, IL 60660.

Case: 1:20-cv-02189 Document #: 26-5 Filed: 04/27/20 Page 3 of 4 PageID #:213
2. I intend to vote at the November 3, 2020 general election which includes a constitutional amendment referendum on the Fair Tax Amendment proposed by the Illinois General Assembly pursuant to Article XIV, Section 2 of the Illinois Constitution.
3. I wish to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution.
4. However, I am concerned about the ongoing COVID-19 health crisis and I intend to abide by the State’s current shelter at home and social distancing orders. If given the opportunity to circulate petitions online I would do so.
5. In 2018, I collected initiative petition signatures for a local government referendum in Chicago pursuant to Article VII, Section 11 of the Illinois Constitution. The Chicago petition drive exceeded the minimum signature requirement in Section 28-7 of the Illinois Election Code for an Article VII referendum.
6. I am a cancer survivor and on March 17, 2020, I served as an all-day election judge in precincts 2 and 11 of the 48th ward of the Chicago.
7. On that day, three of the six election judges in my two precincts dropped out at the last minute because of COVID-19 health fears. The two judges who stayed with me were 69 and 85 years old. Throughout the day, many voters expressed their apprehension to me that voting at the poll place would cause harm to their health because of COVID-19.
Under penalties as provided by law, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and
2

Case: 1:20-cv-02189 Document #: 26-5 Filed: 04/27/20 Page 4 of 4 PageID #:214 belief and as to such matters the undersigned certifies as aforesaid that she verily believes the same to be true. Date: April 27, 2020
3

Case: 1:20-cv-02189 Document #: 26-6 Filed: 04/27/20 Page 1 of 3 PageID #:215
EXHIBIT 6

Case: 1:20-cv-02189 Document #: 26-6 Filed: 04/27/20 Page 2 of 3 PageID #:216

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

DECLARATION OF JACKSON PALLER

I, Jackson Paller, make this declaration upon my personal knowledge and as I would testify if called as a witness in open court.

1. I am an Illinois registered voter over the age of 18 currently residing at 2034 Orrington Avenue, Evanston, IL 60201.

Case: 1:20-cv-02189 Document #: 26-6 Filed: 04/27/20 Page 3 of 3 PageID #:217
2. I intend to vote at the November 3, 2020 general election which includes a constitutional amendment referendum on the Fair Tax Amendment proposed by the Illinois General Assembly pursuant to Article XIV, Section 2 of the Illinois Constitution.
3. I wish to circulate an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. I also wish to circulate an initiative petition for a local government referendum in Evanston pursuant to Article VII, Section 11 of the Illinois Constitution.
4. However, I am concerned about the ongoing COVID-19 health crisis and I intend to abide by the State’s current shelter at home and social distancing orders. If given the opportunity to circulate petitions online I would do so.
5. In 2019, I collected initiative petition signatures for a local government referendum in Evanston pursuant to Article VII, which exceeded the minimum signature requirement for an Article VII referendum in Section 28-7 of the Illinois Election Code.
6. In recent years, I was able to change my voting address on two occasions, using the State of Illinois online voter registration system.
Under penalties as provided by law, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true. Date: April 27, 2020
2

 
 Case: 1:20-cv-02189 Document #: 29 Filed: 04/28/20 Page 1 of 5 PageID #:236

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Emergency Judge Rebecca R. Pallmeyer Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

EMERGENCY MOTION TO RECONSIDER IN LIGHT OF NEW DEVELOPMENTS AND TO CORRECT THE RECORD

NOW COME Plaintiffs, William Morgan et al., and move this Court to reconsider its April 17, 2020 ruling in light of new developments and to correct the record before the Court. In support of this Motion, the Plaintiffs state as follows:

Case: 1:20-cv-02189 Document #: 29 Filed: 04/28/20 Page 2 of 5 PageID #:237
1. On April 7, 2020, the Plaintiffs filed this present suit seeking “to enjoin or modify Illinois petition collection requirements for initiative referendums to be placed on the November 3, 2020 general election ballot . . . in light of the current public health emergency caused by the novel coronavirus and the Governor’s shelter-in-place emergency orders.” Dkt. 001. )(emphasis added).
2. On April 9, 2020, Plaintiffs filed an emergency motion for preliminary injunction which was heard before Judge Pallmeyer on April 17, 2020.
3. On April 17, 2020, Judge Pallmeyer held a telephonic hearing during which she denied Plaintiffs’ motion for preliminary injunction largely on the basis of a misunderstanding concerning the argument Plaintiffs were making, discussed further below.
4. Subsequent to the Court’s ruling, the Plaintiffs and the State Defendants engaged in multiple rounds of settlement negotiations which ultimately failed to resolve this matter.
5. The State still continues to require the Plaintiffs to physically deliver their petition in paper form, has refused to extend the May 3, 2020 deadline, and has further refused to agree to any signature reduction.
6. The State’s requirements are impossible to comply with, and more so now that the Governor has extended the stay-at-home orders to May 30, 2020. Indeed, the Secretary of State’s office, to which hundreds of thousands of pages must be delivered,
2

Case: 1:20-cv-02189 Document #: 29 Filed: 04/28/20 Page 3 of 5 PageID #:238
is not even open to the public during the pendency of the stay-at-home order. And even if the office were open, the Plaintiffs would be required to violate the stay-at-home and social distancing rules in order to show up to the office with hundreds of thousands of paper pages and put State personnel at risk from physical contact and from handling hundreds of thousands of paper pages.
7. The Governor’s extension of the stay-at-home order through May 30, 2020 is a new and relevant factual development that requires this Court’s immediate attention as Plaintiffs have no means to comply with the State’s election requirements.
8. Moreover, the only relief Plaintiffs seek simply mirrors the relief recently granted to candidates in Libertarian Party of Illinois et. al., v. Pritzker et. al., Case No 2-cv-2112. Indeed, the traditional procedure in existing Illinois election law for collecting initiative petition signatures is identical to, and indistinguishable from, the traditional procedure for collecting candidate petition signatures which was modified in the Libertarian Party case.
9. In addition, Plaintiffs need to correct the record concerning the April 17, 2020 hearing. The Plaintiffs’ argument is, and always has been, that the election laws they are seeking to modify are unconstitutional only under the present circumstances. This is clear from page one of the Plaintiffs’ Verified Complaint and throughout their subsequent briefings. Plaintiffs do not, and have not, challenged the constitutionality of the State’s elections laws on their face, or as they existed before the pandemic.
3

Case: 1:20-cv-02189 Document #: 29 Filed: 04/28/20 Page 4 of 5 PageID #:239
10. During the April 17, 2020, Judge Pallmeyer and attorney John Mauck discussed the constitutionality of the challenged restrictions and whether they were also unconstitutional one year ago. Attorney Mauck misunderstood the line of questioning and misspoke concerning the Plaintiffs’ position in this case. Nothing submitted to the court has argued that the challenged election restrictions were illegal one year ago.
11. This confusion is apparent in the transcript of the proceedings. Attorney Mauck, for instance, began his comments by noting that the election requirements were unconstitutional “as applied.” Exhibit A, Transcript at p. 16. Likewise, the Court correctly recognized that the argument that Governor Pat Quinn was making was that the Plaintiffs were challenging the election requirements only in light of the pandemic. Id. at p. 18. Attorney Mauck can clarify his comments should the Court desire.
12. Plaintiffs here should not be denied their constitutional rights on the basis of a misunderstanding during a telephonic hearing.
13. In light of new developments such as the extension of the Governor’s executive order through May 30, 2020 and the misunderstanding during the April 17, 2020 hearing, the Plaintiffs respectfully request that the Court reconsider its ruling denying Plaintiffs’ motion for preliminary injunction.
WHEREFORE, the Plaintiffs respectfully request relief as set forth in Exhibit B attached to this motion. Dated: April 28, 2020
4

Case: 1:20-cv-02189 Document #: 29 Filed: 04/28/20 Page 5 of 5 PageID #:240

John Mauck Sorin A. Leahu Mauck & Baker, LLC 1 N. LaSalle Street, Suite 600 Chicago, IL 60602 312-726-1243 Jmauck@mauckbaker.com Sleahu@mauckbaker.com
Pat Quinn 216 N. Jefferson #200 Chicago, IL 60661 312-485-1852 Ltg.patquinn@gmail.com

Respectfully submitted, /s/ WILLIAM MORGAN, ET AL.,

5

Case: 1:20-cv-02189 Document #: 29-1 Filed: 04/28/20 Page 1 of 22 PageID #:241
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Case: 1:20-cv-02189 Document #: 29-1 Filed: 04/28/20 Page 2 of 22 PageID #:242
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Case: 1:20-cv-02189 Document #: 29-2 Filed: 04/28/20 Page 1 of 3 PageID #:263
EXHIBIT B

Case: 1:20-cv-02189 Document #: 29-2 Filed: 04/28/20 Page 2 of 3 PageID #:264

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Emergency Judge Rebecca R. Pallmeyer Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

IT IS HEREBY ORDERED:

ORDER

A. Plaintiffs’ Emergency Motion for Reconsideration is granted;

B. The following election requirements shall be modified as follows:

1

Case: 1:20-cv-02189 Document #: 29-2 Filed: 04/28/20 Page 3 of 3 PageID #:265
a. the circulator’s statement requirement and notarization requirement in 10 ILCS 5/28-3 is enjoined;
b. the requirement in 10 ICLS 5/28-3 that the petition sheets filed with the Secretary of State be originals is enjoined; and
c. the petition signers shall be allowed to electronically sign their signatures.
C. The May 3, 2020 deadline for an Article XIV, Section 3 referendum shall be extended to August 3, 2020 and the signature requirements shall be reduced by 50%.
D. The Court shall retain jurisdiction to enforce this order. Respectfully submitted this 28th day of April, 2020.

ENTERED:

_____________________ Hon. Judge Pallmeyer

2

 
 Case: 1:20-cv-02189 Document #: 50 Filed: 05/18/20 Page 1 of 15 PageID #:442

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

WILLIAM MORGAN, ELIZABETH NORDEN,

)

DAVID VAUGHT, DORIS DAVENPORT,

)

ANDREA RAILA, JACKSON PALLER,

)

COMMITTEE FOR THE ILLINOIS DEMOCRACY )

AMENDMENT, an unincorporated political

)

association,

)

)

Plaintiffs,

)

)

v.

)

)

JESSE WHITE, in his official capacity as

)

Illinois Secretary of State, DEVON REID, in his )

official capacity as Evanston City Clerk,

)

KAREN A. YARBROUGH, in her official

)

capacity as Cook County Clerk,

)

WILLIAM J. CADIGAN, KATHERINE S.

)

O’BRIEN, LAURA K. DONAHUE,

)

CASSANDRA B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. SCHOLZ, )

WILLIAM M. MCGUFFAGE, in their official

)

capacities as Board Members for the Illinois )

Board of Elections,

)

)

Defendants.

)

Case No. 20 C 2189 Hon. Charles R. Norgle, Sr., Presiding Judge Hon. M. David Weisman, Magistrate Judge
Hon. Rebecca R. Pallmeyer, Emergency Judge

MEMORANDUM OPINION AND ORDER Plaintiffs are Illinois registered voters who seek to circulate (1) “an initiative petition for a constitutional amendment referendum on the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution” and/or (2) “an initiative petition for a local government referendum in Evanston, Illinois pursuant to Article VII, Section 11 of the Illinois Constitution.” (Am. Compl. [26] ¶¶ 3–8.)1 Plaintiffs wish to qualify these referenda for placement on the November 3, 2020 general election ballot. To do so, they must satisfy certain petition collection requirements set forth in the Illinois Constitution and the Illinois Election Code. On April 7, 2020,

1

Plaintiffs also include the Committee for the Illinois Democracy Amendment, “an

unincorporated political association registered as a ballot initiative committee with the Illinois State

Board of Elections.” (Id. ¶ 9.)

Case: 1:20-cv-02189 Document #: 50 Filed: 05/18/20 Page 2 of 15 PageID #:443

Plaintiffs filed this lawsuit “to enjoin or modify Illinois petition collection requirements for initiative

referendums to be placed on the November 3, 2020 general election ballot . . . in light of the current public health emergency caused by the novel coronavirus” and Governor J.B. Pritzker’s

stay-at-home orders. (Id. ¶ 1.) Defendants are the Illinois Secretary of State (Jesse White); the Evanston City Clerk (Devon Reid); the Cook County Clerk (Karen A. Yarbrough); and members of the Illinois State Board of Elections.
On April 9, 2020, Plaintiffs filed an emergency motion for a preliminary or permanent injunction [4] seeking to modify certain petition collection requirements, extend the deadline for submitting the initiative petition under Article XIV, Section 3 of the Illinois Constitution, and reduce the number of signatures required to qualify both initiative petitions for placement on the November 3, 2020 general election ballot.2 The court held a hearing by telephone on April 17, 2020 and denied the motion. Plaintiffs filed an emergency motion for reconsideration “in light of

new developments and to correct the record” on April 28, 2020 [29]. The court denied that motion,

as well, after a further telephone hearing on May 7, 2020. This order briefly memorializes the

reasons for that ruling.

BACKGROUND

A. Illinois Election Laws
Plaintiffs seek to propose an amendment to the Illinois Constitution, pursuant to a
procedure established in Article XIV, Section 3 of the Illinois Constitution. That Article provides:
Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. . . . A petition shall contain the text of the proposed amendment and the date of the general election at which the proposed amendment is to be submitted, shall have been signed by the petitioning electors not more than twenty-four months preceding that general election and shall be filed with the Secretary of State at least six months before that general election. The procedure for determining the validity and sufficiency of a petition shall be provided by law.

2

This matter is assigned to the Honorable Charles R. Norgle, Sr. Judge Pallmeyer

is addressing this matter as emergency judge, for purposes of this motion only, pursuant to

paragraph 7 of Third Amended General Order 20-0012.

2

Case: 1:20-cv-02189 Document #: 50 Filed: 05/18/20 Page 3 of 15 PageID #:444

ILL. CONST. art. XIV, § 3; see also 10 ILCS 5/28-9. Thus, for their proposed amendment to qualify
for placement on the November 3, 2020 general election ballot, Plaintiffs were required to submit
363,813 initiative petition signatures to the Illinois Secretary of State by May 3, 2020. (Am. Compl.
¶ 37.) Because the petition must be signed by electors “not more than twenty-four months
preceding [the] general election” and “filed with the Secretary of State at least six months before”
that election, the 18-month window in which Plaintiffs were to gather signatures was set to close
less than four weeks after Plaintiffs initiated this action.
Article VII, Section 11 of the Illinois Constitution authorizes a process for citizens who wish
to circulate an initiative petition for a local government referendum, as well. It provides:
(a) Proposals for actions which are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the electors by resolution of the governing board of a unit of local government or by petition of electors in the manner provided by law.
(b) Referenda required by this Article shall be held at general elections, except as otherwise provided by law. Questions submitted to referendum shall be adopted if approved by a majority of those voting on the question unless a different requirement is specified in this Article.
ILL. CONST. art. VII, § 11; see also 10 ILCS 5/28-7. For the Evanston local government referendum to qualify for placement on the November 3, 2020 general election ballot, Plaintiffs must submit 2,800 signatures to the Evanston City Clerk by August 3, 2020. (Am. Compl. ¶ 38.)3
The Illinois Election Code also imposes signature collection requirements. The Code
states that at the bottom of each sheet of an initiative petition, the circulator must add a sworn
statement “certifying that the signatures on that sheet . . . were signed in his or her presence.” 10
ILCS 5/28-3. It also requires that the original petition sheets, rather than photocopies or
duplicates, be filed with the appropriate election authorities. Id.; see also 10 ILCS 5/28-9. These
are among the requirements Plaintiffs seek to enjoin. (See, e.g., Am. Compl., Prayer for Relief.)

3

The parties do not explain how they arrived at this number, but both sides agree

that Plaintiffs need 2,800 signatures by August 3, 2020.

3

Case: 1:20-cv-02189 Document #: 50 Filed: 05/18/20 Page 4 of 15 PageID #:445
B. Defendants According to Plaintiffs’ allegations, the members of the Illinois State Board of Elections are
the only Defendants “empowered to enforce and administer Illinois election laws.” (Am. Compl. ¶ 13.) Plaintiffs allege that the Evanston City Clerk “is authorized to accept filings of local government initiative referendums for Evanston pursuant [to] Article VII, Section 11 of [the] Illinois Constitution and to certify those referendums to the Cook County Clerk for ballot placement,” and that the Cook County Clerk’s office “is responsible for placing on the election ballot any Article VII initiative referendum questions certified by the clerks of suburban Cook County municipalities, including the Evanston City Clerk.” (Id. ¶¶ 11–12.) Finally, Plaintiffs allege that the Illinois Secretary of State “is constitutionally authorized to accept filings of petitions for constitutional amendments pursuant to Article XIV, Section 3 of the Illinois Constitution.” (Id. ¶ 10.)
The Illinois Secretary of State, for his part, has explained that he “does not enforce the petition collection requirements at issue here.” (Def. White Resp. (“White Resp.”) [20] at 1.) Rather, once proposed constitutional amendments are filed with the Secretary of State, he “deliver[s] such petition[s] to the State Board of Elections” within one business day. (Id. (quoting 10 ILCS 5/28-9).) After the State Board of Elections resolves any objections to the petitions (White Resp. at 1 (citing 10 ILCS 5/28-4)), the Secretary of State “ensures that any proposed amendments are published in newspapers throughout the State (in multiple languages) and that pamphlets describing the amendments are mailed to every mailing address in the State (again, in multiple languages).” (White Resp. at 1.) The Secretary of State’s deadline for publishing the proposed amendments in newspapers and mailing the related pamphlets is “at least one month before the election (October 3, 2020).” (Decl. of Amy Williams in Supp. of White Resp. (“Williams Decl.” [20-1] ¶¶ 3, 8.) To meet the October 3, 2020 deadline, the Secretary of State must “start[] working in early May, shortly after the petition filing deadline.” (Id. ¶ 4.)
4

Case: 1:20-cv-02189 Document #: 50 Filed: 05/18/20 Page 5 of 15 PageID #:446

C. Plaintiffs’ Petition Circulation Efforts Of the seven Plaintiffs, just one—William Morgan—claims to have “begun an initiative
petition drive” before filing this lawsuit. (Am. Compl. ¶ 3.) The remaining Plaintiffs allege that they “wish[ ] to circulate” petitions. (Am. Compl. ¶¶ 3–8.) And although Plaintiff Morgan alleges that he has begun the process, he offered no evidence showing when he began those efforts or how many signatures he has collected. (See id.; see generally Morgan Decl., Ex. 1 to Compl. [12], Ex. 1 to Am. Compl. [26-1].) The court notes that Morgan’s ballot initiative committee was created on April 1, 2020, eight days before he filed this suit. (See Ex. A to Def. Bd. of Elections Resp. [21-1].) The remaining Plaintiffs also offer no evidence concerning the number of signatures, if any, they have collected to date for the relevant initiative petitions. (See generally Exs. 2–6 to Compl. [1-3–1-7]; Exs. 2–6 to Am. Compl. [26-2–26-6].)
Plaintiffs contend that they could not have started collecting signatures for the Illinois Democracy Amendment before March 31, 2020. (See Plaintiffs’ Reply in Supp. of Emergency Mot. for Reconsideration (“Reply”) [36] ¶ 11.)4 That was the deadline for the Illinois Joint Commission on Lobbying and Ethics Reform—which the Illinois General Assembly created in November 2019—to “examin[e] current Illinois legislation regarding ethics reform, solicit[] feedback from experts and the general public, and release[] a final report with its review and recommendations.” (Am. Compl. ¶ 21.) According to Plaintiffs, the Commission determined that “due to the COVID-19 pandemic,” it could not meet its deadline and “would therefore make no recommendations on lobbying and ethics reform.” (Id. ¶ 30.) This announcement, Plaintiffs argue, was the “impetus” for the initiative petition concerning the Illinois Democracy Amendment. (Reply ¶ 11; Apr. 17, 2020 Hrg. Tr. at 7:15–19.)

4

Plaintiffs do not advance this argument for the Evanston local government

referendum.

5

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DISCUSSION A. Standing
“[A] plaintiff seeking relief in federal court must first demonstrate that he has standing to do so.” Gill v. Whitford, 138 S. Ct. 1916, 1923 (2018). To establish Article III standing, a plaintiff must show (1) an “injury in fact”; (2) a sufficient “causal connection between the injury and the conduct complained of”’ and (3) a “likel[ihood]” that the injury will be “redressed by a favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992). The court assumes that Plaintiffs have sufficiently alleged an injury in fact: when they filed this suit on April 8, the conditions created by the Governor’s stay-at-home order largely defeated any chance they might otherwise have had to collect, by May 3, 2020, the signatures needed to put their constitutional amendment referendum on the general election ballot. Indeed, Plaintiffs have now missed that deadline. At the outset of this lawsuit, there was also a risk that the stay-at-home order could be extended beyond May 30, 2020 and eliminate any chance Plaintiffs might otherwise have had to collect enough signatures for the Evanston local government referendum by August 3, 2020— though there is a strong case to be made that this risk is too minimal or speculative to confer standing. The court gives Plaintiffs the benefit of the doubt on the injury-in-fact requirement. Plaintiffs fall short on the other requirements for standing, however.
First, Plaintiffs have not demonstrated that their injury is traceable to the challenged actions of any of the Defendants. See Lujan, 504 U.S. at 560. Plaintiffs had 18 months to collect signatures for both referendums, but, other than Morgan, none took any action for the first 16 months. And although Morgan alleges that he began collecting signatures before March 31, 2020, he does not state when he began or how many signatures he has collected. Regarding the Illinois Democracy Amendment, Plaintiffs blame their delay on the Commission’s failure to make recommendations on lobbying and ethics reform by March 31, 2020. (See Reply ¶ 11; Apr. 17, 2020 Hrg. Tr. at 7:15–19.) But even if the Commission’s failure to make recommendations came as a surprise, Plaintiffs could have recognized the possibility that the Commission’s
6

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recommendations would not be adopted, or would not align perfectly with reforms proposed in the Illinois Democracy Amendment. Plaintiffs could have begun the petition process months ago but most chose not to do so, and Morgan’s efforts appear to be thin.
Plaintiffs attempt to excuse their inaction by observing that in a handful of past election cycles, petition circulators collected all required signatures in the two months before the deadline—the approximate amount of time that remained to qualify the Illinois Democracy Amendment for the general election ballot before the stay-at-home order commenced. (See, e.g., May 7, 2020 Hrg. Tr. [39], at 11:15–21 (citing Vaught Decl., Ex. 3 to Am. Compl. [26-3] ¶ 5).) But the Governor did not issue his stay-at-home order until mid-March, well less than two months before the May 3, 2020 deadline. Nothing in the record supports an inference that, absent that order, Plaintiffs would have been able to collect necessary signatures in the weeks between the issuance of the order and May 3. Morgan, the only Plaintiff who had begun the process at all, offered no evidence that he had collected a single signature before this suit was filed in early April.
Plaintiffs have further undermined any argument that the Defendants’ actions are causally connected to their injuries by repeatedly contending that the stay-at-home order is the “state action” that itself violated the Constitution in that the order “basically clipped off two” of the 18 months allotted for signature collection. (May 7, 2020 Hrg. Tr. at 7:11–16; 13:20–14:2.) But it was Governor Pritzker, not the Illinois Board of Election Commissioners, who imposed the stayat-home order, and Plaintiffs have not named the Governor as a Defendant. Plaintiffs’ claims against the remaining Defendants are infirm for other reasons, as well: Neither the Evanston City Clerk, the Cook County Clerk, nor the Illinois Secretary of State is authorized to administer or enforce Illinois election laws. As the Evanston City Clerk points out, the law allows it to perform only one function in the referendum process: “allow the petitions to be filed.” (Def. Reid Resp. [14] at 6.) The Evanston City Clerk has never argued that it “will not accept petitions signed by a number of qualified electors.” (Id.) Similarly, the Cook County Clerk states that it “has no role in the referendum process.” (Def. Yarbrough Resp. [17] at 2–3.) It merely places certified
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referendum questions on the ballot. (See Am Compl. ¶ 12; Def. Yarbrough Mot. to Dismiss [19] at 6 (stating that the County Clerk “is not authorized to accept filings of initiative referendums,” “certify such referendums,” or “enforce and administer Illinois election laws with respect to the filing of referendums”).) And the Secretary of State is responsible only for delivering petitions to the Board, publishing proposed amendments in newspapers, and mailing pamphlets describing those amendments.
The court thus has grave doubts concerning Plaintiffs’ standing to sue any of the named Defendants. For the sake of completeness, however, the court addresses the merits of Plaintiffs’ request for injunctive relief, as well. B. Preliminary Injunction
Temporary restraining orders and preliminary injunctions are extraordinary and drastic remedies that “should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (quotation omitted). A party seeking such relief must “establish that it has some likelihood of success on the merits; that it has no adequate remedy at law; [and] that without relief it will suffer irreparable harm.” Planned Parenthood of Ind. & Ky., Inc. v. Comm’r of Ind. State Dep’t of Health, 896 F.3d 809, 816 (7th Cir. 2018). If the moving party meets this burden, the court must then “weigh the harm that the plaintiff will suffer absent an injunction against the harm to the defendant from an injunction.” Id. Courts in the Seventh Circuit use a “sliding scale approach”—the less likely the plaintiff is to win, the more that the “balance of harms [must] weigh in his favor.” Valencia v. City of Springfield, 883 F.3d 959, 966 (7th Cir. 2018). The court must finally consider whether a preliminary injunction or temporary restraining order “is in the public interest, which entails taking into account any effects on non-parties.” Courthouse News Serv. v. Brown, 908 F.3d 1063, 1068 (7th Cir. 2018). In this case, some of Plaintiffs’ requests for injunctive relief would require Defendants to act affirmatively. Such “mandatory” injunctions are “cautiously viewed and sparingly issued.” Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997).
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1. Likelihood of Success on the Merits / Irreparable Harm Plaintiffs challenge the Illinois requirements for circulating and qualifying initiative petitions for the November 3, 2020 ballot as a violation of their First Amendment rights to petition and speech.5 Specifically, Plaintiffs contend that, because circulating initiative petitions is not an essential activity under the Governor’s stay-at-home order, the combination of the COVID-19 pandemic and the Governor’s order make it impossible for initiative petition circulators to gather and personally witness handwritten signatures. (Pls.’ Mot. for Prelim. Inj. [6] at 5.) Therefore, Plaintiffs argue, certain Illinois petition requirements—including handwritten signatures, a notarized affidavit from the petition circulator confirming that he personally witnessed the signatures (“witness requirement”), the May 3, 2020 filing deadline, the need to obtain 363,813 signatures, and the need to bind and file all petition pages in one book (“binding requirement”)— severely limit their ability to exercise their First Amendment rights under the circumstances. (Id. at 6.) There is no federal constitutional right to place referenda on the ballot.6 Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 937 (7th Cir. 2018); see also Protect Marriage Ill. v. Orr, 463 F.3d 604, 606 (7th Cir. 2006) (“The ballot is not a traditional public forum for the expression of ideas and opinions.”). If a state chooses, however, to open its ballots to referenda or initiatives proposed by its citizens, it may not impose unconstitutional conditions on that state-created right.

5

Plaintiffs’ Complaint [1] challenges the Illinois petition requirements on First

Amendment and equal protection grounds, and their Amended Complaint [26] added a claim

under the Illinois Constitution. Their motion for a preliminary injunction or temporary restraining

order raises only the issue that these state laws violate their First Amendment rights under the

circumstances.

6

For this reason, among others, Plaintiffs’ case is distinguishable from Libertarian

Party of Ill. v. Pritzker, No. 20 C 2112, 2020 WL 1951687 (N.D. Ill. Apr. 23, 2020), involving state

restrictions on candidate access to the ballot. See Stone v. Bd. of Election Comm’rs for City of

Chicago, 750 F.3d 678, 681 (7th Cir. 2014) (quoting Anderson v. Celebrezze, 460 U.S. 780, 786

(1983)) (“‘[T]he impact of candidate eligibility requirements on voters implicates basic

constitutional rights,’ to associate politically with like-minded voters and to cast a meaningful

vote.”).

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Jones, 892 F.3d at 937 (citing Meyer v. Grant, 486 U.S. 414, 424 (1988)). In this context, the Supreme Court distinguishes between “valid ballot-access provisions” and “invalid interactive speech restrictions” that “unjustifiably inhibit the circulation of ballot-initiative provisions.” Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 192, 205 (1999). The circulation of a petition to place a referendum on the ballot “involves the type of interactive communication concerning political change that is appropriately described as ‘core political speech.’” Meyer, 489 U.S. at 421–22. When a state’s restriction on a citizen’s ability to circulate a petition “significantly inhibit[s] communication with voters about proposed political change,” it must, like all “severe burdens” on speech, “be narrowly tailored to serve a compelling state interest.” Buckley, 525 U.S. at 192 n. 12. On the other hand, there must “be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.” Id. at 187 (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). Accordingly, “[s]tates allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process.” Id. at 191. Unless a procedure designed to control access to the ballot distinguishes by viewpoint or content, a court’s review of a ballot-access restriction is limited to determining whether the rule has a rational basis. Jones, 892 F.3d at 938.
In current circumstances (of the COVID-19 pandemic and the Governor’s order requiring social distancing), the combination of the handwritten signature, number of signatures, and witness requirements arguably inhibit communicative conduct—specifically, Plaintiffs’ ability to circulate petitions. The filing deadline and binding requirements, in contrast, do not inhibit Plaintiffs’ ability to circulate petitions even under the current circumstances, nor do they affect who may engage in political speech. Instead, these provisions establish procedures that limit Plaintiffs’ access to the ballot and are therefore subject to the reasoning laid out by the Seventh Circuit in Jones. See McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995) (distinguishing between statutory provisions that “control the mechanics of the electoral process” and “regulation[s] of pure speech”). Because Plaintiffs do not argue that these restrictions
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distinguish by viewpoint or content, the filing deadline and binding requirements are subject to rational basis review. See Jones, 892 F.3d at 938. Defendants Board of Elections and White articulate numerous legitimate state objectives that justify these restrictions. (See Def. Board of Elections Resp. (“Board Resp.”) [21] at 9–10; White Resp. at 1.) Plaintiffs have not explained how these two restrictions—designed to ensure sufficient public support for a potentially permanent change to the Illinois Constitution, to prevent fraud, and to ensure that the state can efficiently administer the election—have somehow become irrational in light of the COVID-19 pandemic. Accordingly, Plaintiffs have not shown that they are likely to succeed on the merits of their challenge to the filing deadline and binding requirements.
Plaintiffs’ challenge to the handwritten signature, number of signatures, and witness requirements is more weighty because, under the circumstances of the COVID-19 pandemic, the combined effect of these requirements arguably limit Plaintiffs’ ability to circulate petitions—a type of core political speech. See Meyer, 489 U.S. at 422. The Court in Meyer explained two ways in which a state law governing initiative petition circulation may restrict political expression. “First, it limits the number of voices who will convey [a] message,” therefore limiting “the size of the audience they can reach.” Id. at 422–23. In ordinary circumstances, the handwritten signature, number of signature, and witness requirements do not limit the number of persons who may circulate a petition, and may in fact increase the amount of one-on-one communication between petition circulators and voters. But during the COVID-19 pandemic, petition circulators will understandably be unwilling to seek out signatures, and potential supporters will be unwilling to venture out to sign them. These circumstances are caused by the virus itself, however, not by state law. It is only when state law prevents certain individuals from circulating petitions that First Amendment harms are implicated. See, e.g., id. at 428 (invalidating a state prohibition against paying circulators of initiative petitions).
The second type of harm discussed in Meyer occurs when a law “makes it less likely that [petition circulators] will garner the number of signatures necessary to place the matter on the
11

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ballot, thus limiting their ability to make the matter the focus of statewide discussion.” Id. at 423. Plaintiffs contend that they have been unable to collect any signatures since the Governor’s stayat-home order took effect on March 20, 2020 and therefore that the witness and handwritten signature requirements inhibit their ability to obtain the necessary 363,813 signatures. (Pls.’ Mot. for Prelim. Inj. at 5–6.) For reasons described earlier, however, the court is unable to conclude that it is state action that has precluded Plaintiffs’ efforts. They have been free to circulate and gather signatures since November 2018, yet of the seven Plaintiffs, just one had even begun the effort prior to the Governor’s order, and that single Plaintiff (Morgan) offered no evidence that he had collected any signatures prior to the issuance of that Order. Morgan’s own ballot initiative committee was not created until April 1, 2020. (See Ex. A to Board Resp. [21-1].)
Plaintiffs have not established that it is state law, rather than their own 16-month delay, that imposes a severe burden on their First Amendment rights, even in the context of the COVID19 pandemic. Cf. Stone, 750 F.3d at 682 (“What is ultimately important is . . . whether a reasonably diligent candidate could be expected to be able to meet the requirements and gain a place on the ballot.”). Indeed, with respect to the City of Evanston, Plaintiffs have presented no evidence of any severe burden; the deadline for gathering signatures there does not expire until August 3. The court concludes Plaintiffs have not established a likelihood of success on their claims or that the balance of hardships, discussed below, favors this motion.
2. Balance of Harm and Public Interest Even if putting a constitutional amendment to the voters is not a First Amendment right, see Jones, 892 F.3d at 937, the court acknowledges that Plaintiffs have an interest in seeing their referenda on the ballot in November. As previously discussed, however, the harm they have alleged appears speculative in light of the absence of evidence that they have collected any signatures or made even negligible progress toward qualifying for the ballot prior to entry of the Governor’s order. That is, it is not apparent that Plaintiffs had any realistic chance of complying
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with all of the ballot initiative requirements even before the Governor’s COVID-19-related orders or that issuing the injunction they request will actually enable them to achieve their goal.
And despite Plaintiffs’ contention to the contrary, the relief they request may appears likely to result in concrete harm to Defendants. In a similar case in the Central District of Illinois, the court noted that “[t]he Illinois constitution and state and federal law set out duties that must be performed by the ISBE Defendants and the Secretary of State.” Bambenek v. White, No. 20 C 3107, 2020 WL 2123951, at *5 (C.D. Ill. May 1, 2020) (citing 42 U.S.C. 1973-ff-1 et seq.; ILL. CONST. art. XIV, § 3; 10 ILCS 5/28-5). Plaintiffs’ requested extension “would make it extremely difficult, if not impossible, for those defendants to fulfill their constitutionally and statutorily mandated obligations.” Id. As Defendants have explained, much time is needed to verify signatures and ensure that objections to them can be filed and reviewed. See 10 ILCS 5/28-4 (rules regarding objections to proposed constitutional amendments). Additional statutory duties include publishing the proposed amendment in newspapers statewide at least one month before the election and creating a pamphlet, which explains the proposed amendment and includes arguments for and against it, that is mailed to every address in the state at least one month before the election. (Williams Decl. ¶¶ 3–12.) The newspaper publication and pamphlets must be translated into many different languages, the process for which is supposed to begin in mid-May. (Id.) Delays may also jeopardize the state’s ability to comply with the Uniformed and Overseas Citizens Absentee Voting Act, which requires that military ballots be mailed to troops forty-five days prior to the election. 42 U.S.C. § 1973-ff-1 et seq.
Preventing Defendants from being able to fulfill these statutory duties not only imposes harm on them but also appears contrary to the public interest. See Planned Parenthood of Ind., 699 F.3d at 972 (district courts should “also evaluate[ ] the effect of an injunction on the public interest”). Plaintiffs contend that their requested relief is in the public interest because “injunctions protecting First Amendment freedoms are always in the public interest.” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 590 (7th Cir. 2012) (quoting Christian Legal Soc'y v. Walker, 453
13

Case: 1:20-cv-02189 Document #: 50 Filed: 05/18/20 Page 14 of 15 PageID #:455
F.3d 853, 859 (7th Cir. 2006)). But as discussed above, Plaintiffs have no First Amendment right for their amendment to appear on the ballot. And verifying the integrity of potential constitutional amendments submitted to the voters, sending Illinoisans serving in the military overseas their ballots on time, and ensuring that voters can review the proposed amendment before the election in newspapers and pamphlets—all time-consuming and onerous processes for the state—are also in the public interest. Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (“Confidence in the integrity of our electoral processes is essential to the functioning of our participatory democracy.”).
Plaintiffs are correct that this court and those in other jurisdictions have granted relief, similar in part to what Plaintiffs request here, in other election law challenges generated by state stay-at-home orders. See, e.g., Libertarian Party of Ill. v. Pritzker, No. 20 C 2112, 2020 WL 1951687 (N.D. Ill. April 23, 2020) (easing ballot access requirements for new party and independent candidates). Significantly, however, for new party and independent candidates in Illinois, “the ‘window’ for gathering such signatures opened at nearly the same time that Governor Pritzker first imposed restrictions.” Id. at *4. In contrast, Plaintiffs here were free to begin collecting signatures for their referenda in November 2018—more than a year before any coronavirus-related disruptions had begun. See 10 ILCS 5/28-9 (emphasis added) (“Such petition [for proposed amendments] shall have been signed by the petitioning electors not more than 24 months preceding the general election . . . .”). Moreover, constitutional amendments are subject to several requirements—such as the preparation of explanatory pamphlets, translation into several languages, see Williams Decl., and publication in newspapers statewide one month before the election, 5 ILCS 20/2—that do not apply to new party or independent candidates.
Plaintiff Morgan here began the referendum process at the eleventh hour, and the other Plaintiffs have not effectively begun it at all. They have not made a compelling showing that the court should require public officials to upend the statutory and constitutional timetable for that process. In sum, neither the balance of harms nor the public interest favors granting Plaintiffs’ requested injunction.
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CONCLUSION For the foregoing reasons, the court denies Plaintiffs’ Emergency Motion for Reconsideration in Light of New Developments and to Correct the Record [29].

ENTER:

Date: May 18, 2020

____________________________ REBECCA R. PALLMEYER United States District Judge

15

 
 Case: 1:20-cv-02189 Document #: 6 Filed: 04/09/20 Page 1 of 12 PageID #:45

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS

WILLIAM MORGAN, ELIZABETH )

NORDEN, DAVID VAUGHT, DORIS )

DAVENPORT, ANDREA RAILA,

)

JACKSON PALLER, and the

)

COMMITTEE FOR THE ILLINOIS

)

DEMOCRACY AMENDMENT, an

)

unincorporated political association, )

)

Plaintiffs,

)

)

JESSE WHITE, in his official capacity )

as Illinois Secretary of State, DEVON )

REID, in his official capacity as the

)

Evanston City Clerk, KAREN A.

)

YARBROUGH, in her official capacity )

as Cook County Clerk, and WILLIAM )

J. CADIGAN, KATHERINE S. O’BRIEN,)

LAURA K. DONAHUE, CASSANDRA )

B. WATSON, WILLIAM R. HAINE, )

IAN K. LINNABARY, CHARLES W. )

SCHOLZ, WILLIAM M. MCGUFFAGE, )

in their official capacities as Board

)

Members for the Illinois State Board of )

Elections,

)

)

Defendants.

)

CASE NO. 1:20-cv-02189
Honorable Judge Charles R. Norgle, Sr. Magistrate Judge M. David Weisman

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFFS’ EMERGENCY MOTION FOR A PRELIMINARY OR PERMANENT INJUNCTION AND
DECLARATION AS A MATTER OF LAW

Case: 1:20-cv-02189 Document #: 6 Filed: 04/09/20 Page 2 of 12 PageID #:46 TABLE OF CONTENTS
TABLE OF AUTHORITIES..........................................................................................................1 INTRODUCTION .........................................................................................................................3 PRELIMINARY EQUITABLE RELIEF STANDARD ...............................................................3 ARGUMENT .................................................................................................................................4 I. The Plaintiffs are Likely to Succeed on the Merits……………………………………….4 II. The Plaintiffs are Suffering, and Will Continue to Suffer, Irreparable Harm if the
Injunction is Denied………………………......................................................................8 III. The Balance of the Harms Favors the Plaintiffs................................................................8 IV. Granting the Requested Relief Will Serve the Public Interest........................................9 CONCLUSION ............................................................................................................................10
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TABLE OF AUTHORITIES ACLU of Georgia v. Miller, 977 F.Supp. 1228 (N.D. Ga. 1997)………………………………..7 Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583 (7th Cir. 2012)…………..……..8 Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999)……………….2 Christian Legal Soc’y v. Walker, 453 F.3d 853 (7th Cir. 2006)……………...……….………….8 Coalition for Political Honesty v State Board of Elections II, 83 Ill. 2d 230 (1980)……………...3 Elrod v. Burns, 427 U.S. 347 (1976)……………………………………………………………...6 Lee v. Keith, 463 F.3d 763 (7th Cir. 2006)……………………………………………………….4 Murphy v. Zoning Comm’n of the Village of New Milford
148 F.Supp.2d 173 (D.Conn. 2001)…………………………………………………………6 Orr v. Edgar, 283 Ill. App3d. 1088 (1st Dist. 1996)…………………………………………….3 Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221 (10th Cir. 2005)……………………….7 Stone v. Board of Election Com’rs for City of Chicago, 750 F.3d 678 (7th Cir. 2014)……………4 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7 (2008)…………………………………....1
OTHER AUTHORITIES 42 U.S.C. § 1988(b)……………………………………………………………….……………...9 Illinois Constitution. Article XIV, Section 3………………………………………………..2, 3 Illinois Constitution. Article XIV, Section 11…………………………………………………2
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INTRODUCTION This is an action to enjoin or modify Illinois’ petition collection requirements for initiative referendums to be placed on the November 3, 2020 general election ballot and to enable and require the Defendants to accommodate the constitutional rights and interests of the Plaintiffs and the general public in light of the current public health emergency caused by the coronavirus and the Governor’s shelter-in-place emergency orders. Under current circumstances, the Plaintiffs and Illinois voters are forced to choose between their health and their rights to petition and vote. Reforms and modifications to Illinois’ initiative referendum election procedures in light of the COVID-19 pandemic are appropriate. The key facts in support of this action are set forth in Plaintiffs’ Verified Complaint. Dkt. 001.
PRELIMINARY EQUITABLE RELIEF STANDARD To determine whether a preliminary injunction should be granted, the Court must weigh the following four factors: (1) the likelihood the Plaintiffs will succeed on the merits; (2) the potential for irreparable harm to the Plaintiffs if the injunction is denied; (3) the balance of relevant impositions — the hardship to the Defendants if enjoined as contrasted with the hardship to the Plaintiffs if no injunction issues; and (4) the effect of the Court's ruling on the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
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ARGUMENT
All four factors necessary for a preliminary injunction weigh in favor of this Court
entering an immediate order in favor of the Plaintiffs as set forth below in the prayer for
relief.
I. The Plaintiffs are Likely to Succeed on the Merits.
The United States Supreme Court has held that “Petition circulation . . . ‘is core
political speech,’ because it involves ‘interactive communication concerning political
change.’” Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 186
(1999). “First Amendment protection for such interaction,” therefore, is at its “zenith.”
Id. The right to petition is further enshrined in the Illinois Constitution. Article XIV,
Section 3 of the Illinois Constitution provides that
Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election. Amendments shall be limited to structural and procedural subjects contained in Article IV. A petition shall contain the text of the proposed amendment and the date of the general election at which the proposed amendment is to be submitted, shall have been signed by the petitioning electors not more than twenty-four months preceding that general election and shall be filed with the Secretary of State at least six months before that general election. The procedure for determining the validity and sufficiency of a petition shall be provided by law. If the petition is valid and sufficient, the proposed amendment shall be submitted to the electors at that general election and shall become effective if approved by either three-fifths of those voting on the amendment or a majority of those voting in the election.
Moreover, Article VII, Section 11 of the Illinois Constitution provides that
4

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(a) Proposals for actions which are authorized by this Article or by law and which require approval by referendum may be initiated and submitted to the electors by resolution of the governing board of a unit of local government or by petition of electors in the manner provided by law. (b) Referenda required by this Article shall be held at general elections, except as otherwise provided by law. Questions submitted to referendum shall be adopted if approved by a majority of those voting on the question unless a different requirement is specified in this Article. Plaintiffs’ constitutional rights to petition and political speech are well established. In 1980, the Illinois Supreme Court declared that “clearly, the rights of those who seek to exercise their constitutional privilege to initiate an amendment to that constitution are intertwined with the rights of those who vote thereon.” Coalition for Political Honesty v State Board of Elections II, 83 Ill. 2d 230, 248 (1980). The Court further stated that strict scrutiny is appropriate regarding Illinois’ legislative restrictions on the Article XIV imitative right. Furthermore, the free and equal elections clause of Article III, Section 3 of the Illinois Constitution gives constitutional priority to Illinois’ public policy of encouraging the full and effective participation of the entire electorate. Any plan or design whose result might impede or frustrate full participation in the electoral process cannot endure. See Orr v. Edgar, 283 Ill. App3d. 1088, 1097 (1st Dist. 1996). The current health crisis and the Governor’s executive orders to shelter in-place and to social distance, however, make it impossible for Plaintiffs and others to comply with the requirements and procedures necessary to exercise their right to petition. Because
5

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the State currently prohibits everyone from gathering in public, Plaintiffs simply have no way to gather the 363,813 signatures they need before the May 3, 2020 deadline.1
The Plaintiffs are entitled to injunctive relief because there is no legal option available to them by which they could exercise their constitutional rights without endangering their lives or the lives of others. The State has refused or neglected to make any modification to the current petition collection requirements thereby effectively stripping the Plaintiffs of their rights, along with the rights of innumerable Illinois voters who would be deprived of the opportunity to vote on important referendums. Simply put, the State is constitutionally required to provide an alternate procedure by which its citizens can place initiative referendums on the general election ballot and it has failed to do so here.
Because the Plaintiffs have no possible way to exercise their constitutional rights, the burdens imposed by the State can only be described as severe. As stated by the Seventh Circuit, “the severity of the burden imposed is what determines whether strict scrutiny or a less demanding level of review applies.” Stone v. Board of Election Com’rs for City of Chicago, 750 F.3d 678, 681 (7th Cir. 2014). “Restrictions that ‘severely’ burden the exercise of constitutional rights must be ‘narrowly drawn to advance a state interest of compelling importance.’” Lee v. Keith, 463 F.3d 763, 768 (7th Cir. 2006). Although the State may have a compelling interest to justify its executive orders, the complete
1 Copies of the petitions the Plaintiffs wish to circulate are attached hereto as Exhibit A.
6

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prohibition on in-person petitioning, and therefore the complete exclusion of initiative referendums from the general election ballot, is not narrowly tailored.
That the State’s current procedures are not narrowly tailored is most evident when contrasted with the voluntary actions of other states during this pandemic. For instance, on March 19, 2020, the Governor of New Jersey issued an executive order to the Secretary of State to implement online petitioning and signature collection.2 On April 2, 2020, Florida’s Secretary of State signed an emergency order allowing for the collection of petition signatures online.3 Moreover, the Arizona Secretary of State has provided an online petitioning mechanism for candidates since 2015 and has recently stated she “wouldn’t oppose” use of that system for ballot measures during the pandemic as a “reasonable option for protecting public health and supporting continuity in our democratic processes.”4 On March 14, 2020, the Governor of New York issued an executive order reducing the required number of petition signatures for all petitions for ballot access to 30% of the state threshold.5 It is evident, therefore, that narrowly tailored options which protect both the health of the general public as well as their constitutional rights are readily available and have been voluntarily implemented by other states. Thus far, Illinois has failed to follow suit which this Court can, and should, remedy with injunctive and declaratory relief.
2 https://www.state.nj.us/state/elections/assets/pdf/candidate/EO-105.pdf 3 https://dos.myflorida.com/media/702874/1ser20-2.pdf 4 https://thefulcrum.us/voting/coronavirus-ballot-initiatives 5 https://www.governor.ny.gov/news/amid-covid-19-pandemic-governor-cuomo-signs-executive-ordertemporarily-modifying-election
7

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II. The Plaintiffs are Suffering, and Will Continue to Suffer, Irreparable Harm if the Injunction is Denied. Under the current circumstances, the Plaintiffs are prohibited from approaching
voters for the purposes of collecting their signatures. The inability to collect signatures to place important referendums on the general election ballot no doubt constitutes irreparable harm. It is well settled that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); Murphy v. Zoning Comm’n of the Village of New Milford, 148 F.Supp.2d 173, 180-81 (D.Conn. 2001). Prevented by the COVID-19 pandemic and the Governor’s executive orders from gathering signatures, the Plaintiffs are suffering irreparable damage to the very core of their constitutional rights to petition and engage in political speech each day. Moreover, the State of Illinois has thus far refused or neglected to take any action with respect to protecting the rights of petition passers and Illinois voters who wish to vote on referendums in the general election. With the May 3, 2020 deadline quickly approaching, the Plaintiffs have no adequate remedy but to seek the requested injunctive and declaratory relief from this Court. III. The Balance of The Harms Favors The Plaintiffs.
Any speculative harm to the Defendants from the requested relief would be far outweighed by the actual harm that the Plaintiffs would suffer by being deprived of their constitutional freedoms to petition and speak. Injunctive and declaratory relief here would merely require the Defendants to make reasonable modifications to their
8

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election procedures in light of the current pandemic as a number of states have already voluntarily done.
As demonstrated by other states, discussed above, there is minimal burden associated with protecting the rights of petition and speech in this case. In fact, the tools necessary to implement Plaintiffs’ requested relief are already available to the State. Other states have paved the way and are available to offer assistance if needed. The State may choose to avail itself of those resources if it chooses. Nevertheless, the Plaintiffs’ requested relief is reasonable in light of the impossibility of gathering any signatures and the balance of the harms favors the Plaintiffs. IV. Granting the Requested Relief Will Serve the Public Interest.
“Vindicating First Amendment freedoms is clearly in the public interest.” Pacific Frontier v. Pleasant Grove City, 414 F.3d 1221, 1237 (10th Cir. 2005). See also, ACLU of Georgia v. Miller, 977 F.Supp. 1228, 1235 (N.D. Ga. 1997) (“No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.”) (quotation and citation omitted). The requested relief is in the public interest because it will give the Plaintiffs and Illinois voters an opportunity to vote on important matters of public policy. As one court stated, “injunctions protecting First Amendment freedoms are always in the public interest.” Am. Civil Liberties Union of Illinois v. Alvarez, 679 F.3d 583, 590 (7th Cir. 2012)(quoting Christian Legal Soc’y v. Walker, 453 F.3d 853, 859 (7th Cir. 2006).
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CONCLUSION For all the reasons set forth above, the Plaintiffs respectfully request that this Court: A. Assume original jurisdiction over this matter; B. Issue a temporary restraining order and/or preliminary injunction (i) enjoining or
modifying enforcement of Illinois' petition collection requirements for initiative referendums for Illinois' November 3, 2020 general election; and (ii) enabling and requiring the Defendants to allow for petitions to be submitted electronically via names of qualified electors collected by an online form to be created by the Secretary of State; extend the May 3, 2020 deadline for an Article XIV, Section 3 referendum to August 3, 2020; and reduce by 50% the number of signatures required to qualify Article XIV statewide and Article VII local government initiative referendums for the general election ballot or reduce by some percentage of required signatures necessary to demonstrate substantial public support; C. Issue a declaratory judgment stating that, in light of the current public health emergency caused by the novel coronavirus and executive orders requiring that Illinois citizens stay at home and shelter in place, Illinois' petition collection requirements for qualifying Article XIV and Article VII referendums for the general election ballot cannot be constitutionally enforced;
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D. Issue a permanent injunction prohibiting enforcement of Illinois' petition collection requirements for Article XIV and Article VII referendums for the November 3, 2020 general election;
E. Order Defendants to pay to Plaintiffs their costs and reasonable attorneys’ fees under 42 U.S.C. § 1988(b);
F. Grant such other relief as this Court deems appropriate. Respectfully submitted this 9th day of April, 2020.
/s/ WILLIAM MORGAN, ET AL., John Mauck Sorin A. Leahu Mauck & Baker, LLC 1 N. LaSalle Street, Suite 600 Chicago, IL 60602 312-726-1243 Jmauck@mauckbaker.com Sleahu@mauckbaker.com Pat Quinn 216 N. Jefferson #200 Chicago, IL 60661 312-485-1852 Ltg.patquinn@gmail.com
11

 
 Case: 1:20-cv-02189 Document #: 19 Filed: 04/16/20 Page 1 of 8 PageID #:112

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

WILLIAM MORGAN, et al.

)

)

Plaintiffs,

)

)

v.

)

)

JESSE WHITE, in his official capacity as )

Illinois Secretary of State, et al.,

)

)

Defendants.

)

20-cv-2189
Judge Rebecca R. Pallmeyer Emergency Judge

MEMORANDUM OF LAW FILED IN SUPPORT OF THE FED. R. CIV. P. 12(b)(1) AND 12(b)(6) MOTION TO DISMISS THE COMPLAINT FILED BY DEFENDANT COOK COUNTY CLERK

Defendant Karen A. Yarbrough, Cook County Clerk, in her official capacity, by and through her counsel, Kimberly M. Foxx, State’s Attorney of Cook County, through her assistant, Jessica M. Scheller, hereby submits the following Memorandum of Law filed in support of her Fed. R. Civ. P. 12(b)(1) and (b)(6) Motion to Dismiss Plaintiffs’ Verified Complaint for Emergency Declaratory and Injunctive Relief (“Complaint”):
INTRODUCTION Plaintiffs’ claims against the County Clerk must and should fail, as the Plaintiffs’ filings concede the County Clerk’s sole role in the Article VII referendum process is to place any Article VII initiative referendum questions on the ballot after certification. (Dkt. 1, ¶ 12). As Plaintiffs acknowledge in their Complaint, certification is completed by the clerks of the county municipalities. Id. Plaintiffs do not allege that the County Clerk has failed or refused to place a certified (or uncertified) Article VII initiative referendum on the ballot. Id. Their active grievances or claims relate exclusively to the certification process; (Dkt. 1, generally), a process in which the County Clerk has no part. Id. Therefore the County Clerk asks this Court to find that she has

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neither a role in the certification process or in this lawsuit. BACKGROUND FACTS & PROCEDURAL HISTORY
Plaintiffs, a group of Illinois registered voters, seek to circulate an initiative petition for a constitutional amendment to the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. On April 7, 2020, Plaintiffs filed their Complaint [Docket No. 1] against Cook County Clerk Karen A. Yarbrough (“County Clerk”), Secretary of State Jesse White, Evanston City Clerk Devon Reid, as well as the individual Board Members of the Illinois State Board of Elections. In response to the COVID-19 pandemic and the Governor’s shelter-in-place orders, Plaintiffs seek to enjoin or modify the Illinois petition collection requirements for initiative referendums to be placed on the November 3, 2020 general election ballot. However, the County Clerk plays no role in the referendum process and Plaintiffs concede that the County Clerk’s sole role in this process is merely to place any Article VII initiative referendum questions certified by the clerks of suburban Cook County municipalities on the ballot. (Dkt. 1, ¶ 12).
Plaintiffs seek an order, among other things, requiring Defendants to allow for petitions to be submitted electronically via an online form, that the May 3 deadline be extended to August 3, 2020, and that the signature requirement be reduced by 50%. (Dkt. 1 at ¶ B, Prayer for Relief). Plaintiffs also seek costs and attorneys’ fees against Defendants. (Id. at ¶E).
Nevertheless, Plaintiffs fail to state a claim against the County Clerk because the Clerk has no role in the referendum process and cannot provide the relief Plaintiffs seek. Accordingly, because no justiciable controversy exists as to the County Clerk, this Court lacks subject matter jurisdiction and should dismiss Plaintiffs’ Complaint pursuant to Rule 12(b)(1) and also because it fails to state a claim under Rule 12(b)(6).
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ARGUMENT I. Legal Standard.
Defendant brings this motion to dismiss under Federal Rule 12(b)(1) and (b)(6). “Rule 12(b)(1) requires dismissal of claims over which the federal court lacks subject-matter jurisdiction. Jurisdiction is the ‘power to decide’ and must be conferred upon the federal courts.” United States ex rel. Sheet Metal Workers Int'l Ass'n, Local Union No. 20 v. Horning Invs., LLC, No. 12 CV 830, 2013 U.S. Dist. LEXIS 141449, *6 (S. Dist. Ind. October 1, 2013), citing In re Chicago, R.I. & P.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). The burden is on the plaintiff to prove, by a preponderance of the evidence, that subject-matter jurisdiction exists for his or her claims. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003).
The purpose of a 12(b)(6) motion is to test the legal sufficiency of a pleading by accepting all the complaint's factual allegations as true. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). Dismissal under Rule 12(b)(6) is proper where the petitioner can prove no set of facts that would entitle him to relief. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). When considering a Rule 12(b)(6) motion to dismiss, courts construe the allegations in plaintiff’s complaint “in the light most favorable to [the plaintiff], accepting all wellpleaded facts as true, and drawing all reasonable inferences in favor of [the plaintiff].” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013), citing Citadel Group Ltd. v. Washington Regional Medical Ctr., 692 F.3d 580, 591 (7th Cir. 2012).
Finally, dismissal is proper “if the complaint fails to set forth sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic v. Twombley, 550 U. S. 544, 555 (2007)). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
3

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possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but has not ‘show[n]’ – ‘that the pleader is entitled to relief.” Id. at 1950. Furthermore, although complaints need not allege factual details or legal arguments, “litigants may plead themselves out of court by alleging facts that defeat recovery” or by “alleging facts showing there is no viable claim.” Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005). II. Plaintiffs’ Complaint Presents No Justiciable Controversy.
Plaintiffs ask this Court to prematurely enjoin and modify the Illinois petition requirements for initiative referendums, before the filing deadline for any such petitions. Further, Plaintiffs do not allege that they were blocked from filing petitions electronically or from obtaining signatures electronically. Thus, Plaintiffs’ demand for declaratory and injunctive relief is simply not ripe for adjudication and does not present a justiciable controversy.
It is the “obligat[ion] [of this Court] to consider [its] jurisdiction at any stage of the proceedings,” Wisconsin v. Ho–Chunk Nation, 512 F.3d 921, 935 (7th Cir. 2008) (quoting Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir. 2005)), and “ripeness, when it implicates the possibility of this Court issuing an advisory opinion, is a question of subject matter jurisdiction under the case-or-controversy requirement.” Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008); see also Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 538 (7th Cir. 2006).
Ripeness is predicated on the “central perception ... that courts should not render decisions absent a genuine need to resolve a real dispute,” Lehn v. Holmes, 364 F.3d 862, 867 (7th Cir. 2004) (quoting 13A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3532.1, at 114 (2d ed.1984)), and “[c]ases are unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts.” Id. (quoting
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Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th Cir.1992)). “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008) (emphasis added) (quotations omitted); MedImmune, Inc. v. Genentech, Inc., 127 S.Ct. 764, 771 (2007).
Further, injunctive and declaratory judgment remedies are discretionary. Nat'l Health Fed'n v. Weinberger, 518 F.2d 711, 712 (7th Cir. 1975) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)). Premature adjudication caused by meddling in abstract disagreements or interfering in agency decision-making should be avoided, as it wastes judicial resources. Abbott, 387 U.S. at 148-49. Courts grant such remedies only when the controversy is ripe for judicial resolution. Alcan Aluminium Ltd. v. Dep't of Revenue of State of Or., 724 F.2d 1294, 1299 (7th Cir. 1984) (citing Abbott, 387 U.S. at 148).
Here, there is no actual conflict or dispute between the parties, including the County Clerk, as Plaintiffs’ rights have not been constrained in any way. Further, Plaintiffs’ First Amendment, Equal Protection, and Due Process rights have not been violated because there is no allegation that Defendants, including the County Clerk, have enforced the Illinois petition requirements against Plaintiffs. As it stands, Plaintiffs allege that if the petition requirements as they exist now were to be enforced as written, they would allegedly burden and violate Plaintiffs’ constitutional rights. Clearly, this claim is not currently ripe for adjudication.
Further, there is no federal constitutional mandate on a state to permit referendums on its ballot. See Protect Marriage Illinois, et al. v. Orr, et al., 463 F.3d 604, 606 (7th Cir. 2006). In Protect Marriage, Plaintiffs claimed the requirements for getting an advisory question on the
5

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Illinois ballot were so onerous that they violated freedom of speech, equal protection, and due process. While Protect Marriage dealt with advisory questions and not referendums, the Seventh Circuit’s findings are instructive in this case. Specifically, the Court held that the ballot is not a traditional public forum for the expression of ideas and opinions to which reasonable access must be given to people who want to engage in political and other protected expression. Id. And the Court recognized that a state has the right to impose requirements and limit the content on the ballot. Id. As in Protect Marriage, Plaintiffs in the instant case have no federal constitutional right to a referendum and Illinois has the right to regulate and limit referendums. Thus, Plaintiffs’ Complaint is ripe for dismissal. III. Plaintiffs’ Complaint Fails to State a Cause of Action Against the County Clerk.
The Complaint against the County Clerk should be dismissed because there is no misconduct or wrongdoing alleged against the County Clerk and the Clerk does not have the authority to effectuate any of the relief sought by Plaintiffs. In fact, Plaintiffs concede that the County Clerk does not certify referendums but rather, only place referendums on the ballot that have been certified by the clerks of suburban municipalities. (Dkt. 1, ¶12). Clearly, by Plaintiffs’ own admission, the County Clerk has no role in this referendum process. The County Clerk is not authorized to accept filings of petitions for constitutional amendments. See Article XIV, Section 3 of 1970 Illinois Constitution. It is not authorized to accept filings of initiative referendums or to certify such referendums. See Illinois Municipal Code, 65 ILCS 5/1 – 1 – 1; Illinois Election Code, 10 LCS 5/28 – 1 et seq. Nor is it empowered to enforce and administer Illinois election laws with respect to the filing of referendums. Plaintiffs have failed to allege any wrongdoing or misconduct by the County Clerk. In addition, the County Clerk cannot offer any of the relief contained in Plaintiffs’ Prayer for Relief. The County Clerk does not enforce Illinois petition collection
6

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requirements therefore it cannot be enjoined from enforcing such requirements. If this Court were to order that petitions may be submitted electronically, those petitions would not be submitted to the County Clerk. Finally, the County Clerk does not have the power or authority to move the deadline by which petitions must be filed or to reduce the number of signatures required. Since clearly no misconduct or wrongdoing is alleged against the County Clerk and the Clerk does not have the authority to effectuate any of the relief sought by Plaintiffs, the Complaint against the County Clerk should be dismissed.
CONCLUSION For the foregoing reasons, Plaintiffs’ claims are not ripe and no justiciable controversy exists. Plaintiffs’ constitutional rights, to the extent they exist, have not been constrained in any way as the Illinois petition requirements have not yet been enforced. Additionally, Cook County Clerk Karen Yarbrough was named in the Complaint but clearly committed no wrongdoing, is not involved in the petition process, and cannot effectuate the relief Plaintiffs seek. As such, Plaintiffs’ Complaint should be dismissed in its entirety. WHEREFORE Respondent Karen A. Yarbrough, Cook County Clerk, in her official capacity, respectfully requests that this Court dismiss Plaintiffs’ Complaint against her, with prejudice, pursuant to FED R. CIV. P. 12 (b)(1) and (b)(6).
Respectfully submitted, KIMBERLY M. FOXX State’s Attorney of Cook County /s/ Jessica M. Scheller Jessica M. Scheller Silvia Mercado Masters Assistant State’s Attorney 500 Richard J. Daley Center Chicago, Illinois 60602 (312) 603-6934 jessica.scheller@cookcountyil.gov
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Case: 1:20-cv-02189 Document #: 19 Filed: 04/16/20 Page 8 of 8 PageID #:119 CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on April 16, 2020, she caused to be filed through the Court’s CM/ECF system the foregoing document, a copy of which will be electronically mailed to the parties of record.
s/ Jessica M. Scheller
8

 
 Case: 1:20-cv-02189 Document #: 21 Filed: 04/16/20 Page 1 of 14 PageID #:136

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

William Morgan, et al,

)

)

Plaintiffs,

)

)

vs.

)

)

)

Jesse White, et al.,

)

)

Defendants.

)

Case No.: 20-cv-2189
Hon. Charles R. Norgle, Sr., Presiding Judge
Hon. M. David Weisman, Magistrate Judge

DEFENDANT STATE BOARD OF ELECTIONS’ RESPONSE TO PLAINTIFFS’ EMERGENCY MOTION FOR PRELIMINARY OR PERMANENT INJUNCTION AND
DECLARATION AS A MATTER OF LAW

Defendants William J. Cadigan, Katherine S. O’Brien, Laura K. Donahue, Casandra B.

Watson, Ian K. Linnabary, Charles W. Scholz, and William McGuffage (collectively “State

Board of Elections” or “Board”) submit the following memorandum in response to Plaintiffs’

Emergency Motion for a Preliminary or Permanent Injunction and Declaration as a Matter of

Law. (Dkt. 6.)

INTRODUCTION

Though not required to do so by federal law, Illinois allows citizens to propose

amendments to Article IV of the Illinois Constitution by “a petition signed by a number of

electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election.” Ill. Const., Art. XIV, § 3.1 Electors are

provided an 18-month period in which to gather signatures for their proposed constitutional

1 Plaintiffs’ Complaint contains allegations pertaining to a proposed Evanston local initiative. These allegations are not directed at the State Board of Elections and the Board accordingly takes no position on a grant of relief as to that petition.
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amendment to appear on the general election ballot. Id. (“A petition… shall have been signed by the petitioning electors not more than twenty-four months preceding that general election and shall be filed with the Secretary of State at least six months before that general election.”). Despite the generous timeline to collect signatures for ballot initiatives seeking to amend Article IV of the Illinois Constitution, Plaintiffs, proponents of the “Illinois Democracy Amendment,” have filed suit on the eve of the May 3, 2020 filing deadline complaining of Illinois’ initiative referendum procedures. Further, they expect the State, at their behest, to hastily create a new online system to enable them to gather as many as 363,813 “electronic” petition signatures for submission.
Plaintiffs are not entitled to their requested relief for a number of reasons. First, Plaintiffs are not entitled to the requested injunctive relief because they are unlikely to succeed on the merits of their claims: Plaintiffs have no federal right to secure a place on the ballot for their proposed amendment. The vast majority of restrictions that Plaintiffs complain of—the handwritten signature requirement, the applicable filing deadline, and number of signatures required—do not state a First Amendment claim since they pertain only to the state-created right of ballot referenda. Second, given Plaintiffs’ broad and administratively burdensome requests for relief, the hardship to the Board far outweighs the harm to Plaintiffs should no injunction issue. Third, the public interest is not furthered by Plaintiffs’ requested relief; rather, granting Plaintiffs’ request could jeopardize citizens’ right to challenge petition signatures—a process used to ensure the integrity of Illinois elections for the voters—and upend many important aspects of Illinois’ election procedures.
For these reasons, the court should deny Plaintiffs’ request for the entry of a preliminary injunctive relief.
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BACKGROUND Since approximately December 2019, the world has been coping with the outbreak of the respiratory disease COVID-19. (Dkt. 1, ¶¶ 22 – 23.) In response to this respiratory disease, the Centers for Disease Control issued guidelines on February 27, 2020, including the recommendation that people practice social distancing. (Id. at ¶ 24.) Weeks later, the Governor of Illinois proclaimed the entire state a disaster area and banned gatherings of 1,000 people or more and closed all schools, restaurants, and bars. (Id. at ¶ 25.) Shortly thereafter, the President of the United States declared a national emergency. (Id. at ¶ 27.) Since March 20, 2020, the State of Illinois has been subject to orders that residents, with some exceptions, stay at home and maintain a distance of six feet from one another. (Id. at ¶ 29.) The order is to remain in effect until April 30, 2020. (Id. at ¶ 31.) Plaintiffs allege that circulating initiative petitions is not listed as an essential activity under the Governor’s order and that they are effectively barred from gathering signatures for their proposed ballot initiative, the Illinois Democracy Amendment. (Dkt. 1, ¶¶ 3 – 9, 32.) According to the Complaint, Plaintiffs must submit 363,813 intiative petition signatures to the Illinois Secretary of State by May 3, 2020. (Id. at ¶ 34.) Yet the Complaint is noticeably devoid of any allegations discussing Plaintiffs’ progress in the petition circulation process and gathering signatures—a process which Plaintiffs were able to begin in November 2018, twentyfour months prior to the upcoming general election, and more than sixteen months prior to the Governor’s “stay at home” order. Though the offending circumstances have existed only a relatively short time during the signature collection period, Plaintiffs nevertheless claim that their rights to petition and political speech are severely burdened in light of the current public health emergency, and request that the
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Court issue a temporary restraining order and/or preliminary injunction not only enjoining or modifying enforcement of Illinois’ petition collection requirements for initiative referenda,2 but also significantly modifying two ballot access provisions and requiring the State to develop and implement an entirely new program for petitions to be submitted electronically on the eve of the May 3 filing deadline. While Plaintiffs’ Complaint also alleges that Illinois’ petition collection requirements unduly burden and violate their rights under the Equal Protection Clause, they do not address this claim in their motion for preliminary or permanent injunction and declaration as a matter of law.
LEGAL STANDARD A preliminary injunction is “an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (emphasis in original); see also Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d 821, 823 (7th Cir. 1998) (same); Roland Mach. Co. v. Dresser Indus., 749 F.2d 380, 389 (7th Cir. 1984). For such drastic relief to be granted, “a plaintiff must show three things: (1) without such relief, he will suffer irreparable harm before his claim is finally resolved; (2) he has no adequate remedy at law; and (3) he has some likelihood of success on the merits.” Harlan v. Scholz, 866 F.3d 754, 758 (7th Cir. 2017). If plaintiff can make this minimum showing, the court must still “weigh the harm the plaintiff will suffer without an
2 Plaintiffs do not specify the exact “petition collection requirements” they seek to enjoin or modify, but complain only of the notarized affidavit of the petition circulator that he personally witnessed the signatures of all signers and notary attesting he witnessed the signature of the circulator, the requirement that initiative petition signatures must be handwritten on a paper petition, and that the paper initiative petitions pages must be bound and filed in one book with the appropriate officer. (Dkt. 1, at ¶ 38.) In addition, Plaintiffs seek modifications to their time to file the ballot initiative and to the number of signatures required for ballot access in their requested relief.
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injunction against the harm the defendant will suffer with one.” Id. The court must also consider whether granting a preliminary injunction is in the public interest. Id.
The court “must balance the competing claims of injury and must consider the effect on each party of granting or withholding the requested relief,” paying “particular regard for the public consequences in employing the extraordinary remedy of injunction.” Winter v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008).
Here, Plaintiffs’ burden is even greater than usual because, rather than seeking to preserve the status quo, they seek mandatory interim relief directing Defendants to accept petitions to be submitted electronically via names of qualified electors collected by an online form created by the Secretary of State, extend the May 3, 2020 deadline for an Article XIV, Section 3 referendum to August 3, 2020, and reduce by 50% the number of signatures required to qualify Article XIV statewide and Article VII local government initiative referenda for the general election ballot or reduce by some percentage necessary to demonstrate substantial public support. (Dkt. 6, at 10.) Plaintiffs also seek a declaratory judgment and permanent injunction. (Id.) Because a mandatory injunction requires the court to command the defendant to take a particular action, it is “cautiously viewed and sparingly issued.” Knox v. Shearing, 637 F. App’x 226, 228 (7th Cir. 2016) (quoting Graham v. Med. Mut. of Ohio, 130 F.3d 293, 295 (7th Cir. 1997)). Mandatory injunctions are “rarely issued,” interlocutory mandatory injunctions are “even more rarely issued,” and neither should be issued “except upon the clearest equitable grounds.” W.A. Mack, Inc. v. Gen. Motors Corp., 260 F.2d 886, 890 (7th Cir. 1958).
Plaintiffs’ burden is also greater here because the interim injunction they request in their present motion would give them substantially all the relief they seek through this lawsuit. See, e.g., Boucher, 134 F.3d at 827 n.6 (“A preliminary injunction that would give the movant
5

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substantially all the relief he seeks is disfavored, and courts have imposed a higher burden on a movant in such cases.”); W.A. Mack, Inc., 260 F.2d at 890 (“A preliminary injunction does not issue which gives to a plaintiff the actual advantage which would be obtained in a final decree.”). In a ballot access case, the court observed that this factor counted against the plaintiffs because “a victory at [the preliminary injunction] stage would effectively win the case for the [plaintiff] by putting its candidates on the November ballot regardless of the eventual outcome.” Tripp v. Smart, No. 14-CV-0890, 2014 WL 4457200, at *6 (S.D. Ill. Sept. 10, 2014). “A plaintiff should not gain, via preliminary injunction, the actual advantage which would be obtained in a final decree.” Id.
ARGUMENT I. Plaintiffs Are Unlikely to Succeed on Their First Amendment Claim. Nowhere does the federal constitution guarantee private citizens “a right to propose referenda or initiatives for any ballot, federal or state.” Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 937 (7th Cir. 2018). As the Supreme Court has held, “[b]allots serve primarily to elect candidates, not as forums for political expression.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997). Procedures to gain ballot access for initatives—a wholly state-created right—are subject only to rational basis review so long as the challenged regulations do not “distinguish by viewpoint or content.” Jones, 892 F.3d at 938. In the absence of any federal protection for citizens to practice direct democracy, “[s]tates allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative, as they have with respect to election processes generally.” Buckley v. Am. Constitutional Law Foundation, Inc., 525 U.S. 182, 191 (1999).
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However, where the State chooses to allow a means for direct democracy through ballot initiative, it cannot place “undue hindrances to political conversations and the exchange of ideas” on those advocating ballot initiatives. Id. at 192. But it is only where ballot access provisions become “invalid interactive speech restrictions” that the First Amendment is transgressed by a state’s measures to ensure the integrity of its ballot. Id.; see also Semple v. Griswold, 934 F.3d 1134, 1142 (10th Cir. 2019) (recognizing distinction between laws regulating or restricting communicative conduct versus laws that govern the process by which legislation is enacted). Where the state does not restrict the means of communication regarding a ballot proposal, the state “may constitutionally place nondiscriminatory, content-neutral limitations on the plaintiffs’ ability to initiate legislation.” Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 297 (6th Cir. 1993). But even some burdens on First Amendment rights are acceptable in this context: a state can enforce measures that do not severely burden First Amendment rights to protect its “substantial interests in regulating the ballot-initiative process.” Meyer v. Grant, 486 U.S. 414, 428 (1988); see also Buckley, 525 U.S. at 204–05.
Although the State’s in-person signature and notarization requirements do not pose an undue hindrance to Plaintiffs’ First Amendment right to engage in political conversations and the exchange of ideas even in this circumstance, the Board is willing to agree to enjoin these requirements in light of the ongoing public health emergency, so long as copies of handwritten signatures, along with the signer’s printed name and home address, are submitted with Plaintiffs’ petition should one ultimately be filed.3 See Tripp v. Scholz, 872 F.3d 857, 869 (7th Cir. 2017)
3 Specifically, the Board is willing to agree to the entry of an order enjoining the requirements in § 5/28-3 that the bottom of each sheet of a petition contains a circulator’s statement “certifying that the signatures on that sheet of the petition were signed in his or her presence and are genuine,” and that the circulator’s
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(upholding Illinois’ per page notarization requirement in context of candidates’ ballot access). But, despite its willingness to agree to enjoin these provisions of 10 ILCS 5/28-3, the Board opposes Plaintiffs’ requested relief to the extent Plaintiffs seek to collect electronic signatures or extend the filing deadline set by the Illinois Constitution for their ballot initiative, as both would create insurmountable obstacles to the State’s mandate to certify any constitutional amendments for the November ballot on August 21, 2020.4 See Ill. Cost. Art. XIV, § 3 (requiring that petition “shall be filed with the Secretary of State at least six months before that general election”; 10 ILCS 5/28-5 (requiring certification of proposed constitutional amendment 74 days before the general election). The Board also opposes Plaintiffs’ request to reduce the number of signatures needed to qualify for the general election ballot, especially in light of Plaintiffs’ own dilatory action.
A. Since Ballot Access for Referenda Is a State-Created Right, Illinois’ Handwritten Signature Requirement, Number of Signatures Required, and Filing Deadline Are Reasonable Regulations that Survive Rational Basis Review.
Unlike the witnessing requirement, which necessitates in-person communication and thus arguably restricts methods of communication in the midst of a public health crisis, Illinois’ requirements as to handwritten signatures, the number of signatures required for ballot access, and the filing deadline for submission of an initiative are indisputably “a step removed from the communicative aspect of petitioning.” See Kendall v. Balcerzak, 650 F.3d 515, 525 (4th Cir.
statement “shall be sworn to before some officer authorized to administer oaths in this State” for the November 2020 election only, in light of the current public health emergency. 4 And, to the extent Plaintiffs challenge the requirement that “submission of public questions to referendum must be filed with the appropriate officer or board” in 10 ILCS 5/28-2, nothing in that statute demands that petitions be filed in-person, and Plaintiffs have made no effort to explain how they are aggrieved by this provision. A petition must be filed to be considered and this provision is therefore both reasonable and necessary.
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Case: 1:20-cv-02189 Document #: 21 Filed: 04/16/20 Page 9 of 14 PageID #:144
2011) (internal citations omitted). Since Illinois’ law requiring a certain number of handwritten signatures for ballot access and the State’s statutory filing deadline in no way touch upon who can engage in political speech or how they may do so, these limitations are subject only to rational basis review under applicable law in this circuit. See Jones, 892 F.3d at 937–38 (recognizing that since there is no constitutional right to place referenda on ballot, ballot access rules for referenda that do not distinguish by viewpoint or content are analyzed under the rational basis standard of review).
The number of signatures required, the handwritten signature requirement, and the filing deadline are nondiscriminatory, content-neutral restrictions that are rationally related to the State’s interest in validly limiting the number of initiatives that appear on the ballot, which in turn improves the chance that each initiative “will receive enough attention, from enough voters, to promote a well-considered outcome.” Jones, 892 F.3d at 938. Amending the Illinois Constitution effects a virtually permanent change to Illinois’ state government: the signature requirement ensures such changes are properly reserved for amendments with sufficient public support. Likewise, the filing deadline ensures that sufficient time is allotted to citizens who wish to challenge the procedures used to seek ballot access, including the validity of petition signatures, before a proposed constitutional amendment appears on the ballot.
The handwritten nature of the signature in particular plays a crucial role in combatting fraud by petition circulators and unknown signers. See Tripp, 872 F.3d at 869–70. As federal courts have noted, Illinois is a state “notorious for election fraud.” Id. at 869 (citations omitted). Illinois’ handwritten signature requirement furthers the State’s interests in avoiding election fraud and protecting the political process. Id. The handwritten signature requirement (and number of signatures required) also ensures the State is not “forced to undertake the substantial
9

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preparation and expense of conducting a referendum unless the requisite number of qualified voters have actually signed the petitions and done so only after exercising due deliberation.” Kendall, 650 F.3d at 526 (citing Howlette v. City of Richmond, Va., 580 F.2d 704 (4th Cir. 1978)). Moreover, handwritten signatures are required for the State Board of Elections to satisfy its statutory duty to validate signatures to determine that a sufficient amount of support exists. See 10 ILCS 5/28-11. The handwritten signature requirement is easily justifiable under the rational basis test, especially considering the substantial period of time Plaintiffs had to obtain those signatures. See Tripp, 872 F.3d at 871 (candidates could reasonably notarize each sheet of petition within confines of petitioning window). Without handwritten signatures, the Board would have no mechanism to guard the ballot intiative against fraudulent signatures or ensure that the Plaintiffs’ proposed initiative did in fact have sufficient public support to appear on the ballot. See 10 ILCS 5/28-11 (Board to compare petition signatures with signatures on signers’ registration record cards to determine validity).
To the extent Plaintiffs seek to collect electronic signatures for their ballot initative, their request would leave the State’s ballot initiative procedures in a tumult—especially in conjunction with Plaintiffs’ request to extend the applicable filing deadline.
Plaintiffs have no constitutional right for their initative to appear on the November 3, 2020 general election ballot. Accordingly, they have no constitutional right to these requested accommodations, which unjustifiably sacrifice election integrity and an orderly election process. That Plaintiffs have provided no evidence that they have collected even a single signature or made any effort to comply with the State’s ballot access procedures prior to this lawsuit merely compounds this conclusion.
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For these reasons, Plaintiffs are unlikely to succeed on the merits of their claims and are not entitled to a preliminary injunction extending the May 3, 2020 deadline for initiative petitions or reducing the number of handwritten signatures needed to qualify for the ballot.
II. Plaintiffs Have Not Demonstrated They Are Likely to Suffer Irreparable Harm without Preliminary Relief.
To the extent Plaintiffs contend they are irreparably harmed by the difficulty they may face securing a place on the ballot for their initiative, this provides no grounds for preliminary injunctive relief: Plaintiffs have no constitutional right to ballot access for their proposed constitutional amendment in the first place. And even if one could establish irreparable harm by showing an inability to secure a place on the ballot, Plaintiffs have utterly failed to do so in this case.
Plaintiffs’ paltry allegations contain no assertion that the “Illinois Democracy Amendment” was likely to qualify for the November 3, 2020, general election ballot absent the current public health emergency or even that is likely to qualify if Plaintiffs’ requested relief is granted. Tellingly, only William Morgan is alleged to have begun an initiative petition drive for a constitutional amendment referendum; all other named Plaintiffs simply “wish” to circulate an initative petition. (Dkt. 1, at ¶¶ 3 – 7.) As discussed above, allegations regarding Plaintiffs’ efforts and opportunities to circulate petitions in the preceding sixteen months are conspicuously absent.
Given Plaintiffs’ ample opportunity to petition and engage in political speech prior to a public health emergency, they have failed to establish that they are likely to suffer irreparable harm without preliminary injunctive relief. It bears noting that there is nothing preventing Plaintiffs from attempting to qualify their initiative for the ballot in a future general election.
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III. The Harm to Defendants and the Public If an Injunction Issues Outweighs the Harm to Plaintiffs Absent an Injunction.
In addition to Plaintiffs’ own delays in initiating and promoting their proposed constitutional amendment, Plaintiffs’ requested relief does not account for the substantial burdens to the State attendant with their desired modifications. For instance, although Plaintiffs may believe the May 3, 2020 deadline they seek to change is of little import, any extension of such could seriously jeopardize the State’s compliance with other applicable election deadlines.
The current May 3, 2020 deadline provides the State Board of Elections with sufficient time to perform its substantial statutory duties following the filing of a proposed constitutional amendment; thus, extending the filing deadline out would impose a serious burden on the State’s resources. See generally 10 ILCS 5/28; 10 ILCS 5/28-4 (allowing for objections to proposed constitutional amendments within 42 business days after petition is filed and requiring electoral board to hear and pass upon objections); 10 ILCS 5/28-5 (State Board of Elections shall certify any proposed constitutional amendment 74 days before the general election); 10 ILCS 5/28-11, 12 (Board shall design an alternative signature verification for proposed constitutional amendments and determine if signatures are valid). Illinois is also bound by the federal Uniformed and Overseas Citizens Absentee Voting Act to ensure military ballots are timely sent to troops overseas. See 42 U.S.C. 1973-ff-1 et seq. Granting Plaintiffs’ requested relief imposes a severe burden on the Board’s ability to satisfy its legal duties and responsibilities.
After failing to diligently advocate for their initiative, Plaintiffs now attempt to foist a massive administrative burden upon various state agencies to accommodate their own delay. Indeed, it appears that Plaintiffs desire Illinois’ entire procedure to be upset on the eve of an
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important filing deadline while the general election quickly approaches in order to accommodate their own delay or inability to garner the requisite public support for their referendum.
In addition to the serious concerns about the constitutionality of ordering the state to undertake “open-ended and potentially burdensome obligations,” see Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1, 29 (1981), ordering the State to wholly redesign its election processes so near to an election presents the distinct likelihood of confusion, among the state agencies responsible for overseeing these processes, voters, and initative proponents alike. See RNC v. DNC, --- S.Ct. ---, 2020 WL 1672702, *1 (U.S. April 6, 2020) (federal courts should ordinarily not alter election rules on the eve of an election).
Additionally, granting an injunction in this scenario would not serve the public interest. As stated by the Supreme Court, a “[s]tate indisputably has a compelling interest in preserving the integrity of its election process.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006). This interest, however, is not a uniquely governmental interest: the fairness of the election process is important to voter confidence, which is in turn “essential to the functioning of our participatory democracy.” Id.
As explained above, the ballot access procedures that Plaintiffs challenge are safeguards against voter fraud and overly crowded ballots. These safeguards not only serve the State’s interest, but also the voting public’s interest. Tied in with these procedural safeguards, the Election Code expressly allows individuals to file objections to petitions proposing constitutional amendments within 42 business days after the petition is filed. 10 ILCS 5/28-4. Plaintiffs’ requested relief to modify the filing deadline for their proposed constitutional amendment would essentially strip the public of its statutory right to file objections by depriving the Board of the time required to oversee such a process.
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Moreover, granting Plaintiffs’ requested preliminary relief could invite a flood of similarly dilatory initiative proponents seeking to take advantage of substantially reduced requirements to qualify various initiatives for the general election. (See, e.g., Committee for the Illinois Democracy Amendment, Statement of Organization, Filed April 9, 2020, attached hereto and incorporated as Exhibit A, showing committee creation date of April 1, 2020.) 5
Granting the drastic relief of enjoining the State from performing its numerous, important duties on such sparse evidence does not serve the public interest. For these reasons, Plaintiffs have not met their burden and are not entitled to their requested injunctive relief.
CONCLUSION WHEREFORE, the State Board of Elections Defendants respectfully pray that this Honorable Court enter an order denying Plaintiffs’ motion for a preliminary or permanent injunction and declaration as a matter of law.

KWAME RAOUL Illinois Attorney General

BY: /s/ Erin Walsh
ERIN WALSH Assistant Attorney General General Law Bureau 100 West Randolph Street, 13th Floor Chicago, Illinois 60601 (312) 814-6122 ewalsh@atg.state.il.us

5 A court may take judicial notice of “a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b).
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 Case: 1:20-cv-02189 Document #: 43 Filed: 05/11/20 Page 1 of 10 PageID #:405

IN THE UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

WILLIAM MORGAN, et al.

)

)

Plaintiffs,

)

)

v.

)

)

JESSE WHITE, in his official capacity as )

Illinois Secretary of State, et al.,

)

)

Defendants.

)

20-cv-2189 Judge Charles R. Norgle Sr.

MEMORANDUM OF LAW FILED IN SUPPORT OF THE FED. R. CIV. P. 12(b)(1) AND 12(b)(6) MOTION TO DISMISS THE AMENDED COMPLAINT FILED BY DEFENDANT COOK COUNTY CLERK

Defendant Karen A. Yarbrough, Cook County Clerk, in her official capacity, by and through her counsel, Kimberly M. Foxx, State’s Attorney of Cook County, through her assistant, Silvia Mercado Masters, hereby submits the following Memorandum of Law filed in support of her Fed. R. Civ. P. 12(b)(1) and (b)(6) Motion to Dismiss Plaintiffs’ Amended Verified Complaint for Emergency Declaratory and Injunctive Relief (“Amended Complaint”):
INTRODUCTION “Civilization begins with order, grows with liberty, and dies with chaos.”1 Plaintiffs seek to secure and maintain liberties guaranteed by the First Amendment and Due Process and Equal Protection Clauses. They do so, however, by ignoring order as established by Article III; introducing chaos into the process with their claims against County Clerk – a party against whom they allege no justiciable controversy. (Dkt. 26, generally). Plaintiffs’ claims against the County

1 Will Durant

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Clerk must and should fail, as the Plaintiffs’ filings concede the County Clerk’s sole role in the Article VII referendum process is to place any Article VII initiative referendum questions on the ballot after certification. (Dkt. 26, ¶ 12). As Plaintiffs acknowledge in their Amended Complaint, certification is completed by the clerks of the county municipalities. Id. Plaintiffs do not allege that the County Clerk has failed or refused to place a certified (or uncertified) Article VII initiative referendum on the ballot. Id. Their active grievances or claims relate exclusively to the certification process; (Dkt. 26, generally), a process in which the County Clerk has no part. Id. Therefore the County Clerk asks this Court to find that she has neither a role in the certification process or in this lawsuit.
BACKGROUND FACTS & PROCEDURAL HISTORY Plaintiffs, a group of Illinois registered voters, seek to circulate an initiative petition for a constitutional amendment to the Illinois Democracy Amendment pursuant to Article XIV, Section 3 of the Illinois Constitution. On April 7, 2020, Plaintiffs filed their initial Complaint [Docket No. 1] against Cook County Clerk Karen A. Yarbrough (“County Clerk”), Secretary of State Jesse White, Evanston City Clerk Devon Reid, as well as the individual Board Members of the Illinois State Board of Elections. In response to the COVID-19 pandemic and the Governor’s shelter-in-place orders, Plaintiffs seek to enjoin or modify the Illinois petition collection requirements for initiative referendums to be placed on the November 3, 2020 general election ballot. Plaintiffs’ emergency motion for preliminary injunction (Dkt. 6) was heard by Judge Pallmeyer and denied on April 17, 2020. Plaintiffs’ emergency motion to reconsider the ruling was denied by Judge Pallmeyer on May 7, 2020. Plaintiffs filed their Amended Complaint on April 27, 2020. Notwithstanding, the County Clerk plays no role in the referendum process and Plaintiffs concede that the County Clerk’s sole role in this process is merely to place any Article VII initiative referendum questions certified by the clerks of
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suburban Cook County municipalities on the ballot. (Dkt. 26, ¶ 12). Plaintiffs seek an order, among other things, requiring Defendants to allow for petitions
to be collected and submitted electronically without the circulator’s statement and notarization requirement, that the May 3 deadline be extended to August 3, 2020, and that the signature requirement be reduced by 50%. (Dkt. 26 at ¶ B, Prayer for Relief). Plaintiffs also seek costs and attorneys’ fees against Defendants. (Id. at ¶E).
Nevertheless, Plaintiffs fail to state a claim against the County Clerk because the Clerk has no role in the referendum process and cannot provide the relief Plaintiffs seek. Accordingly, because no justiciable controversy exists as to the County Clerk, this Court lacks subject matter jurisdiction and should dismiss Plaintiffs’ Amended Complaint pursuant to Rule 12(b)(1) and also because it fails to state a claim under Rule 12(b)(6).
ARGUMENT I. Legal Standard.
Defendant brings this motion to dismiss under Federal Rule 12(b)(1) and (b)(6). “Rule 12(b)(1) requires dismissal of claims over which the federal court lacks subject-matter jurisdiction. Jurisdiction is the ‘power to decide’ and must be conferred upon the federal courts.” United States ex rel. Sheet Metal Workers Int'l Ass'n, Local Union No. 20 v. Horning Invs., LLC, No. 12 CV 830, 2013 U.S. Dist. LEXIS 141449, *6 (S. Dist. Ind. October 1, 2013), citing In re Chicago, R.I. & P.R. Co., 794 F.2d 1182, 1188 (7th Cir. 1986). The burden is on the plaintiff to prove, by a preponderance of the evidence, that subject-matter jurisdiction exists for his or her claims. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003).
The purpose of a 12(b)(6) motion is to test the legal sufficiency of a pleading by accepting all the complaint's factual allegations as true. Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). Dismissal under Rule 12(b)(6) is proper where the
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petitioner can prove no set of facts that would entitle him to relief. Marshall-Mosby v. Corporate Receivables, Inc., 205 F.3d 323, 326 (7th Cir. 2000). When considering a Rule 12(b)(6) motion to dismiss, courts construe the allegations in plaintiff’s complaint “in the light most favorable to [the plaintiff], accepting all well-pleaded facts as true, and drawing all reasonable inferences in favor of [the plaintiff].” Mann v. Vogel, 707 F.3d 872, 877 (7th Cir. 2013), citing Citadel Group Ltd. v. Washington Regional Medical Ctr., 692 F.3d 580, 591 (7th Cir. 2012).
Finally, dismissal is proper “if the complaint fails to set forth sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic v. Twombley, 550 U. S. 544, 555 (2007)). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged – but has not ‘show[n]’ – ‘that the pleader is entitled to relief.” Id. at 1950. Furthermore, although complaints need not allege factual details or legal arguments, “litigants may plead themselves out of court by alleging facts that defeat recovery” or by “alleging facts showing there is no viable claim.” Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005). II. Plaintiffs’ Amended Complaint Presents No Justiciable Controversy.
Plaintiffs ask this Court to prematurely enjoin and modify the Illinois petition requirements for initiative referendums, well before the filing deadline for Evanston petitions and where Plaintiffs had not begun to circulate petitions prior to the Governor’s stay-at-home order. Further, Plaintiffs do not allege that they were blocked from filing petitions electronically or from obtaining signatures electronically. Thus, Plaintiffs’ demand for declaratory and injunctive relief is simply not ripe for adjudication and does not present a justiciable controversy.
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It is the “obligat[ion] [of this Court] to consider [its] jurisdiction at any stage of the proceedings,” Wisconsin v. Ho–Chunk Nation, 512 F.3d 921, 935 (7th Cir. 2008) (quoting Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir. 2005)), and “ripeness, when it implicates the possibility of this Court issuing an advisory opinion, is a question of subject matter jurisdiction under the case-or-controversy requirement.” Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008); see also Meridian Sec. Ins. Co. v. Sadowski, 441 F.3d 536, 538 (7th Cir. 2006).
Ripeness is predicated on the “central perception ... that courts should not render decisions absent a genuine need to resolve a real dispute,” Lehn v. Holmes, 364 F.3d 862, 867 (7th Cir. 2004) (quoting 13A Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3532.1, at 114 (2d ed.1984)), and “[c]ases are unripe when the parties point only to hypothetical, speculative, or illusory disputes as opposed to actual, concrete conflicts.” Id. (quoting Hinrichs v. Whitburn, 975 F.2d 1329, 1333 (7th Cir.1992)). “Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Wisconsin Cent., Ltd. v. Shannon, 539 F.3d 751, 759 (7th Cir. 2008) (emphasis added) (quotations omitted); MedImmune, Inc. v. Genentech, Inc., 127 S.Ct. 764, 771 (2007).
Further, injunctive and declaratory judgment remedies are discretionary. Nat'l Health Fed'n v. Weinberger, 518 F.2d 711, 712 (7th Cir. 1975) (citing Abbott Laboratories v. Gardner, 387 U.S. 136, 148, 87 S. Ct. 1507, 18 L. Ed. 2d 681 (1967)). Premature adjudication caused by meddling in abstract disagreements or interfering in agency decision-making should be avoided, as it wastes judicial resources. Abbott, 387 U.S. at 148-49. Courts grant such remedies only when
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the controversy is ripe for judicial resolution. Alcan Aluminium Ltd. v. Dep't of Revenue of State of Or., 724 F.2d 1294, 1299 (7th Cir. 1984) (citing Abbott, 387 U.S. at 148).
Here, there is no actual conflict or dispute between the parties, including the County Clerk, as Plaintiffs’ rights have not been constrained in any way. Further, Plaintiffs’ First Amendment, Equal Protection, and Due Process rights have not been violated because there is no allegation that Defendants, including the County Clerk, have enforced the Illinois petition requirements against Plaintiffs. As it stands, Plaintiffs allege that if the petition requirements as they exist now were to be enforced as written, they would allegedly burden and violate Plaintiffs’ constitutional rights. Clearly, this claim is not currently ripe for adjudication.
Further, there is no federal constitutional mandate on a state to permit referendums on its ballot. See Protect Marriage Illinois, et al. v. Orr, et al., 463 F.3d 604, 606 (7th Cir. 2006). In Protect Marriage, Plaintiffs claimed the requirements for getting an advisory question on the Illinois ballot were so onerous that they violated freedom of speech, equal protection, and due process. While Protect Marriage dealt with advisory questions and not referendums, the Seventh Circuit’s findings are instructive in this case. Specifically, the Court held that the ballot is not a traditional public forum for the expression of ideas and opinions to which reasonable access must be given to people who want to engage in political and other protected expression. Id. And the Court recognized that a state has the right to impose requirements and limit the content on the ballot. Id. As in Protect Marriage, Plaintiffs in the instant case have no federal constitutional right to a referendum and Illinois has the right to regulate and limit referendums. Thus, Plaintiffs’ Amended Complaint is ripe for dismissal.
Nor are Plaintiffs’ claims saved by the addition of an Illinois Constitution claim. Plaintiffs claim their right to ballot access is protected by the Illinois Constitution likening the
6

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initiative petition to voting. Dkt. 26, ¶ 56. As Plaintiffs’ federal claims should be dismissed for failure to state a justiciable controversy, this Court should decline to exercise supplemental jurisdiction over the Illinois Constitutional claim. See 28 U.S.C. § 1367(c)(3); and see Wright v. Associated Insurance Cos., Inc., 29 F.3d 1244, 1250-1251 (7th Cir. 1994) (The general rule is that, when all federal claims are dismissed before trial, the district court should relinquish jurisdiction over pendent state-law claims rather than resolving them on the merits.). Here, because this Court lacks jurisdiction over the federal claims it should likewise dismiss Plaintiffs’ State law claim.
Setting aside the supplemental jurisdiction issue, Plaintiffs’ Illinois Constitution claim fails as they raise no allegations of wrongdoing against the County Clerk and fail to demonstrate how the Clerk’s limited role in the petition process violates their purported rights. Indeed, as the petition requirements have not been enforced against Plaintiffs, their claims under the Illinois Constitution are likewise premature. Plaintiffs’ added Count III raises no controversy with the County Clerk thus their Amended Complaint should be dismissed. III. Plaintiffs’ Amended Complaint Fails to State a Cause of Action Against the County
Clerk. The Amended Complaint against the County Clerk should be dismissed because there is no misconduct or wrongdoing alleged against the County Clerk and the Clerk does not have the authority to effectuate any of the relief sought by Plaintiffs. In fact, Plaintiffs concede that the County Clerk does not certify referendums but rather, only places referendums on the ballot that have been certified by the clerks of suburban municipalities. (Dkt. 26, ¶12). Clearly, by Plaintiffs’ own admission, the County Clerk has no role in this referendum process. The County Clerk is not authorized to accept filings of petitions for constitutional amendments. See Article XIV, Section 3 of 1970 Illinois Constitution. It is not authorized to accept filings of initiative
7

Case: 1:20-cv-02189 Document #: 43 Filed: 05/11/20 Page 8 of 10 PageID #:412
referendums or to certify such referendums. See Illinois Municipal Code, 65 ILCS 5/1 – 1 – 1; Illinois Election Code, 10 LCS 5/28 – 1 et seq. Nor is it empowered to enforce and administer Illinois election laws with respect to the filing of referendums. Plaintiffs have failed to allege any wrongdoing or misconduct by the County Clerk. In addition, the County Clerk cannot offer any of the relief contained in Plaintiffs’ Prayer for Relief. The County Clerk does not enforce Illinois petition collection requirements therefore it cannot be enjoined from enforcing such requirements. If this Court were to order that petitions may be submitted electronically, those petitions would not be submitted to the County Clerk. Finally, the County Clerk does not have the power or authority to move the deadline by which petitions must be filed or to reduce the number of signatures required. Since clearly no misconduct or wrongdoing is alleged against the County Clerk and the Clerk does not have the authority to effectuate any of the relief sought by Plaintiffs, the Amended Complaint against the County Clerk should be dismissed.
Conclusion For the foregoing reasons, Plaintiffs’ claims are not ripe and no justiciable controversy exists. Plaintiffs’ constitutional rights, to the extent they exist, have not been constrained in any way as the Illinois petition requirements have not yet been enforced. Additionally, Cook County Clerk Karen Yarbrough was named in the Amended Complaint but clearly committed no wrongdoing, is not involved in the petition process, and cannot effectuate the relief Plaintiffs seek. As such, Plaintiffs’ Amended Complaint should be dismissed in its entirety.
8

Case: 1:20-cv-02189 Document #: 43 Filed: 05/11/20 Page 9 of 10 PageID #:413 WHEREFORE Respondent Karen A. Yarbrough, Cook County Clerk, in her official
capacity, respectfully requests that this Court dismiss Plaintiffs’ Amended Complaint against her, with prejudice, pursuant to FED R. CIV. P. 12 (b)(1) and (b)(6).
Respectfully submitted, KIMBERLY M. FOXX State’s Attorney of Cook County /s/ Silvia Mercado Masters Silvia Mercado Masters Assistant State’s Attorney 500 Richard J. Daley Center Chicago, Illinois 60602 (312) 603-7795 silvia.mercadomasters@cookcountyil.gov
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Case: 1:20-cv-02189 Document #: 43 Filed: 05/11/20 Page 10 of 10 PageID #:414 CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that on May 11, 2020, she caused to be filed through the Court’s CM/ECF system the foregoing document, a copy of which will be electronically mailed to the parties of record.
s/ Silvia Mercado Masters
10

 
 964 F.3d 649 (2020)
William MORGAN, et al., Plaintiffs-Appellants, v.
Jesse WHITE, Secretary of State of Illinois, et al., Defendants-Appellees.
No. 20-1801.
United States Court of Appeals, Seventh Circuit.
Submitted July 6, 2020. Decided July 8, 2020. Rehearing and Rehearing En Banc Denied August 3, 2020.
Appeal from the United States District Court for the Northern District of Illinois, Eastern Division, No. 20 C 2189, Rebecca R. Pallmeyer, Chief Judge.
John W. Mauck, Pat Quinn, Attorneys, Mauck & Baker, Chicago, IL, for PlaintiffAppellant 651*651 Committee for the Illinois Democracy Amendment.
Sorin Adrian Leahu, John W. Mauck, Pat Quinn, Attorneys, Mauck & Baker, Chicago, IL, for Plaintiffs-Appellants William Morgan, Elizabeth Norden, David Vaught, Doris Davenport, Andrea Raila, and Jackson Paller.
Carson Griffis, Attorney, Office of the Attorney General, Chicago, IL, for Defendants-Appellees Jesse White, William J. Cadigan, and Katherine O'Brien.
Nicholas Cummings, Alexandra B. MacKey Ruggie, Attorneys, City of Evanston Law Department, Evanston, IL, for Defendant-Appellee Devon Reid.
Jessica M. Scheller, Silvia M. Masters, Attorneys, Office of the Cook County State's Attorney, Chicago, IL, for Defendant-Appellee Karen A. Yarbrough.
Before EASTERBROOK, KANNE, and HAMILTON, Circuit Judges.
650*650 PER CURIAM.
Illinois permits voters to place initiatives and referenda on both local and statewide ballots, but it also requires proponents to collect enough signatures to show that each proposal is likely to have a decent amount of support. The state allows 18 months for proponents to collect signatures. This year that period ended for the State of Illinois on May 3, 2020, and will end for the City of Evanston on August 3.
Seven plaintiffs filed this suit under 42 U.S.C. § 1983 contending that the state's requirements are too onerous, and hence unconstitutional, given the social-distancing requirements adopted by the Governor of Illinois in light of the COVID-19 pandemic. A district judge expressed skepticism that any of the plaintiffs has standing but found it unnecessary to resolve that question because she denied relief on other grounds. 2020 WL 2526484, 2020 U.S. Dist. LEXIS 86618 (N.D. Ill. May 18, 2020). Plaintiffs have appealed. We expedited the briefing, and all litigants have agreed to waive oral argument to facilitate a faster decision.

The district court's approach, sometimes called hypothetical standing, was disapproved by the Supreme Court in Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). But because at least one plaintiff, William Morgan, has standing, the district court had jurisdiction. Morgan began his petition campaign (he seeks to amend the state's constitution) before filing suit. Relief such as reducing the number of signatures required, permitting electronic rather than physical signatures, and extending deadlines would materially improve his chances. Other plaintiffs also want to amend the state's constitution, and one proposes a change that would affect Evanston alone. Federal judges routinely adjudicate suits filed by persons who have encountered difficulty obtaining the signatures required to put candidates' names or substantive proposals on the ballot.
This is as far as plaintiffs get, however. District judges have discretion when weighing the considerations relevant to requests for preliminary relief. See, e.g., Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). One important question, when a plaintiff seeks emergency relief, is whether the plaintiff has brought the emergency on himself. The district judge concluded that Morgan had done so. During most of the time available to seek signatures, Morgan did absolutely nothing. He did not evince any interest in the subject until early April 2020, several weeks after the Governor began to issue orders requiring social distancing. The other 652*652 plaintiffs did not do anything of substance until the suit was on file. Plaintiffs had plenty of time to gather signatures before the pandemic began. That's a good reason to conclude that they are not entitled to emergency relief.
We add that plaintiffs also have not established that the Governor's orders limit their speech. The orders concern conduct (social distancing), not what anyone may write or say. Orders regulating conduct often have incidental effects on speech, but this does not require courts to treat them as if they were regulations of speech. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). Plaintiffs do not question the propriety of those orders. Cf. Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 49 L.Ed. 643 (1905); Elim Romanian Pentecostal Church v. Pritzker, 962 F.3d341 (7th Cir. 2020). Although the orders surely make it hard to round up signatures, so would the reluctance of many people to approach strangers during a pandemic.
One more consideration bears emphasis. The federal Constitution does not require any state or local government to put referenda or initiatives on the ballot. That is wholly a matter of state law. See, e.g., Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 (7th Cir. 2018). If we understand the Governor's orders, coupled with the signature requirements, as equivalent to a decision to skip all referenda for the 2020 election cycle, there is no federal problem. Illinois may decide for itself whether a pandemic is a good time to be soliciting signatures on the streets in order to add referenda to a ballot.
The order denying the motion for a preliminary injunction is affirmed. The plaintiffs remain free to contend to the district court that a permanent injunction would be justified if social-distancing rules are indefinitely extended, but that long-term question does not require immediate resolution.