CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 6/21/2023 1

Segregating Ballots 

Because of Questionable Registrations 

Atsaves v. Helander 

(Virginia M. Kendall, N.D. Ill. 1:08-cv-6199) 

A voter-registration team removed from state court an action seeking to segregate votes by voters registered by the team for investigation of improper registration. The district judge determined that 

the case did not present a federal question because the Help America Vote Act did not afford private rights of action, and relief from 

section 1983 requires willful and wanton conduct, which the plaintiffs had not alleged. 

Subject: Registration procedures. Topics: Help America Vote 

Act (HAVA); 42 U.S.C. § 1983; registration procedures; 

intervention; removal; matters for state courts. 

One week before the 2008 general election, the Republican Party, a candidate, and two voters filed a complaint in Illinois’s circuit court for Lake 

County, seeking to have voter-registration applications filed by a specific 

voter-registration team segregated for investigation of improper registration.1

 The team removed the action to the U.S. District Court for the Northern District of Illinois on the following day.2

 The other defendant was Lake 

County’s clerk.3 Another two days later, on Friday, the plaintiffs filed in the 

federal court a motion for a temporary restraining order or a preliminary 

injunction.4

Also on Friday, the Democratic Party and a voter moved to intervene in 

support of the defendants.5

Judge Virginia M. Kendall heard the matter on Friday, October 31.6 At 

the hearing, the county clerk both consented to removal7 and argued that the 

case did not belong in federal court.8

 At the conclusion of the hearing, Judge 

Kendall ruled that the case did not present a federal question because the 

Help America Vote Act does not afford private rights of action, and relief 

from section 1983 requires willful and wanton conduct, which the plaintiffs 

had not alleged.9

 She denied the motions to intervene as moot and remanded 

the case to state court.10

1. Complaint, Atsaves v. Helander, No. 08 CH 4132 (Ill. Cir. Ct. Lake Cty. Oct. 28, 2008), 

attached to Notice of Removal, Atsaves v. Helander, No. 1:08-cv-6199 (N.D. Ill. Oct. 29, 

2008), D.E. 1; see Russell Lissau, Suing Over the Ballots, Chi. Daily Herald, Oct. 29, 2008, at 1. 

2. Notice of Removal, supra note 1. 

3. Complaint, supra note 1. 

4. Motion, Atsaves, No. 1:08-cv-6199 (N.D. Ill. Oct. 31, 2008), D.E. 9. 

5. Intervention Motion, id. (Oct. 31, 2008), D.E. 15; Intervention Motion, id. (Oct. 31, 

2008), D.E. 13. 

6. Minutes, id. (Oct. 31, 2008), D.E. 14. 

7. Transcript at 6–7, id. (Oct. 31, 2008, filed June 8, 2011), D.E. 18. 

8. Id. at 11–14. 

9. Minutes, supra note 6; Transcript, supra note 7, at 44–47; see 42 U.S.C. § 1983; Help 
Segregating Ballots Because of Questionable Registrations 

2 Federal Judicial Center 6/21/2023 

The state court declined to hear the case before election day.11

America Vote Act, Pub. L. No. 107-252, 116 Stat. 1666 (2002), as amended, 52 U.S.C. 

§§ 20901–21145; Marie Leary & Robert Timothy Reagan, The Help America Vote Act (Federal Judicial Center 2012); Symposium, HAVA @ 10, 12 Election L.J. 111 (2013); see also 

Mick Zawislak, GOP Suit Back in Lower Court, Chi. Daily Herald, Nov. 1, 2008, at 1. 

10. Minutes, supra note 6; Notice, Atsaves, No. 1:08-cv-6199 (N.D. Ill. Nov. 5, 2008), D.E. 

16. 

11. See Russell Lissau, Republicans Say Suit Not Dead Yet, Chi. Daily Herald, Nov. 4, 

2008, at 1