In the

United States Court of Appeals

For the Seventh Circuit

No. 08-3218

ALLAN J. STEVO,

Plaintiff-Appellant,

v.

JOHN R. KEITH, et al., in their capacities as

members of the Illinois State Board of Elections,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of Illinois.

No. 08-3162—Richard Mills, Judge.

ARGUED SEPTEMBER 25, 2008—DECIDED OCTOBER 1, 2008

Before CUDAHY, POSNER, and FLAUM, Circuit Judges.

POSNER, Circuit Judge. The plaintiff wants to run as an

independent candidate for the U.S. House of Representatives from Illinois’s Tenth Congressional District, which

encompasses parts of Lake and Cook Counties. His petition

to appear on the November 2008 general election ballot

was challenged by a local resident because the plaintiff

had failed to submit with his petition the requisite mini-
2 No. 08-3218

mum number of signatures of persons qualified to vote

in the election. That number is 5 percent of the number of

people who voted in the district in the last congressional

election. 10 ILCS 5/10-3. For the Tenth Congressional

District, the minimum required number of valid signatures is 10,285, and the plaintiff claims that he had more

than 7,200. The Illinois State Board of Elections ruled

that he had only 6,978 valid signatures; in any event he

does not claim that his “more than 7,200” reached 10,285.

The plaintiff claims that the 5 percent requirement denies

equal protection of the laws and infringes First Amendment rights to stand for public office and to vote for the

candidate of one’s choice. Jenness v. Fortson, 403 U.S. 431,

434 (1971); Bullock v. Carter, 405 U.S. 134, 143 (1972); James

A. Gardner, “Deliberation or Tabulation? The Self-Undermining Constitutional Architecture of Election Campaigns,” 54 Buff. L. Rev. 1413, 1432 (2007). A candidate

denied a place on the Illinois ballot can, it is true, conduct a write-in campaign. “State of Illinois Candidate’s Guide 2008” 41 www.elections.il.gov/Downloads/

ElectionInformation/PDF/08CanGuide.pdf (visited Sept. 30,

2008). But that is an inferior alternative to having one’s

name on the ballot. U.S. Term Limits, Inc. v. Thornton, 514

U.S. 779, 830-31 (1995); Lubin v. Panish, 415 U.S. 709, 719

n. 5 (1974).

The district court dismissed the complaint for failure to

state a claim. The appeal relies mainly on equal protection;

the First Amendment claim is not developed.

All congressional districts must be redistricted after

each decennial census. Georgia v. Ashcroft, 539 U.S. 461, 488
No. 08-3218 3

n. 2 (2003); Ill. Const. art. IV § 3; 10 ILCS 76/1-76/99; Adam

Cox, “Partisan Fairness and Redistricting Politics,” 79

N.Y.U. L. Rev. 751, 752-53 (2004). And for the first election

after the decennial census Illinois requires independent

candidates to obtain only 5,000 valid signatures from

qualified voters, rather than the 5 percent required in the

other elections. 10 ILCS 5/10-3; Libertarian Party v. Rednour,

108 F.3d 768, 771 (7th Cir. 1997). In one congressional

district, the Fourth, 5,000 is more than 5 percent of the

voters in the last (2006) congressional election (5 percent

in that district is only 4,293), but in the others it is less

and in the Tenth Congressional District, with its requirement of 10,285 signatures, 5,000 is less than half of

5 percent of the votes cast in the last election.

The average number of required signatures per district

is 9,442. The Fourth, with only 4,293, is an outlier; the

next lowest is the Fifth, with 7,713. The highest is the

Nineteenth, with 12,205. (The source of these figures

 is “Signature Requirements and Forms—U.S. Representative in Congress,” www.elections.state.il.us/Downloads/

ElectionInformation/PDF/usrep.pdf (visited Sept. 30,

2008).) Although the Supreme Court’s reapportionment

jurisprudence requires that congressional districts be of

equal population, Karcher v. Daggett, 462 U.S. 725, 730-31

(1983); Wesberry v. Sanders, 376 U.S. 1, 17-18 (1964), the

5 percent rule produces different numbers in different

districts without violating the Constitution because it is

5 percent of the number of persons who actually voted in

a district, not 5 percent of the district’s population.

The last decennial census was in 2000, and no Illinois

congressional district was redistricted after the most recent
4 No. 08-3218

congressional election, held in 2006. But the plaintiff

argues that there is no difference between a newly redistricted district and a district that is unchanged since the

last election, and therefore the state’s judgment that

5,000 signatures is enough in a newly redistricted district

proves that 5 percent is too stringent a requirement in

any district in which the 5 percent formula yields a requirement of more than 5,000 signatures, such as the Tenth.

The Supreme Court has held that 5 percent is a permissible minimum signature requirement for placing third-party

or independent candidates on the ballot, Jenness v. Fortson,

supra, 403 U.S. at 439-41; Nader v. Keith, 385 F.3d 729, 733

(7th Cir. 2004), provided that there is not only a write-in

alternative but also other means of getting one’s candidacy

before the electorate, such as finding sponsorship by a

political organization, Jenness v. Fortson, supra, 403 U.S. at

438; Hall v. Simcox, 766 F.2d 1171, 1174 (7th Cir. 1985), and

provided also that the state does not impose “suffocating

restrictions” on ballot access. Jenness v. Fortson, supra, 403

U.S. at 438. Illinois does not. See Nader v. Keith, supra, 385

F.3d at 734-35; 10 ILCS 5/10-6, 5/10-8 to 5/10-10. But the

plaintiff argues that Illinois’s disparate treatment of the

two types of district shows that a 5 percent minimum is

arbitrary, at least in Illinois. He is using the 5,000-signatures provision of the law just to show that if it is good

enough in newly redistricted districts, it is good enough

in all districts.

The state defends the disparity in treatment between the

two types of district on the ground that it is impossible to

calculate a percentage of the votes in the previous election
No. 08-3218 5

in a redistricted district because by definition there was

no previous election in that district—the district didn’t

exist. But vote totals are reported for each precinct, and, if

a district’s boundaries are changed, the votes cast in the

previous election in the precincts within the new boundaries can be added up and the sum will be the total number

of votes that were cast in that area in the last election.

Indiana does that in determining, when a district is

redistricted, the number of votes that was cast in the last

election in the area embraced by the new district; that

number is then multiplied by the required percentage of

valid signatures to determine whether the candidate has

the signatures of enough qualified voters to get on the

ballot. See Indiana Code §§ 3-8-6-3(a), 12(b)(7), (c), (d).

But this suit fails even if Indiana’s procedure for determining the previous turnout in the area enclosed by new

district boundaries is entirely feasible (as we’ll assume,

though district boundaries sometimes slice through

precincts and the turnout in each slice could not be determined with precision or perhaps at all). Redistricting is

a disorienting event for voters and candidates alike,

since it changes the electorate, usually with an eye to

improving the electoral prospects of the majority party in

the legislature doing the redistricting. Gaffney v. Cummings,

412 U.S. 735, 753-54 (1973); Shaw v. Reno, 509 U.S. 630, 661

(1993) (White, J., dissenting); La Porte County Republican

Central Committee v. Board of Commissioners, 43 F.3d 1126,

1130 (7th Cir. 1994). Candidates and voters alike must

adjust to the new political landscape. It is plausible that

it would be more difficult for candidates to obtain signa-
6 No. 08-3218

tures in such circumstances, and so the required number

is reduced.

The method that Illinois uses to reduce the required

number is crude, however, because districts vary in the

number of people who voted in the last election. Hence

the anomaly of the district in which the requirement of

5,000 signatures is more demanding than the 5 percent

requirement, making it more difficult for candidates to

obtain the required number of signatures in election

years in which the district has been redistricted even

though the objective of requiring “only” 5,000 signatures

in new districts is to make the process of qualifying

for a place on the ballot less difficult (albeit it is more

difficult in only that one district). But the plaintiff’s

proposal—a requirement in every election of just 5,000

signatures—is as or more arbitrary, since, other things

being equal, it is easier to obtain a specified number of

signatures the larger the turnout in the district in the

preceding election and hence the smaller the percentage

of qualified voters whom the candidate is required to sign

up to reach the minimum number and so get onto the

ballot. There are more fish in the pond, so it is easier to

catch the required number.

Granted, other things may not be equal. The more

signatures that are required, the greater the cost, and the

difference may be important for a minor-party or independent candidate. Hall v. Simcox, supra, 766 F.2d at 1174.

But at best this point makes the choice between number and percentage a standoff; it does not justify invalidating the percentage approach.
No. 08-3218 7

Suppose the Indiana approach, whereby disaggregation

of votes to the precinct level in the preceding election

enables the same percentage to be required in districts

that have recently been redistricted and districts that

have not been, is indeed a compellingly superior approach;

nevertheless the plaintiff would not have standing to urge

its adoption because he could not show harm. The Indiana

approach is a solution to the problem of determining

previous voter turnout after a redistricting, and the

Tenth Congressional District is not a newly redistricted

district. So the plaintiff is forced to argue that a uniform

rule requiring 5,000 signatures (or a slightly higher number, provided it is below the number of valid signatures

he was able to obtain) is so far superior to the present

system that the Constitution requires that it be substituted for it. That is wrong, given the disparity in voter

turnout in the different districts. We have just seen that

requiring a number rather than a percentage may well

be a bad feature of Illinois’s treatment of elections in

recently redistricted districts; the plaintiff urges us to

impose that quite possibly inferior method in all elections, rather than, as at present, in just the elections

in newly redistricted districts.

We warned in Crawford v. Marion County Election Board,

472 F.3d 949, 954 (7th Cir. 2007), affirmed, 128 S. Ct. 1610

(2008), against federal judicial micromanagement of state

regulation of elections. See also Clingman v. Beaver, 544

U.S. 581, 593 (2005); Burdick v. Takushi, 504 U.S. 428, 432-34

(1992); Storer v. Brown, 415 U.S. 724, 729-30 (1974). But

the appeal in this case fails on a more basic level: the

change the plaintiff asks us to make in the Illinois voting
8 No. 08-3218

system might well make that system more arbitrary than

it already is.

AFFIRMED.

10-9-08