In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-3183

RALPH NADER, et al.,

Plaintiffs-Appellants,

v.

JOHN KEITH, et al.,

Defendants-Appellees.

____________

Appeal from the United States District Court for

the Northern District of Illinois, Eastern Division.

No. 04 C 4913—Matthew F. Kennelly, Judge.

____________

ARGUED SEPTEMBER 20, 2004—DECIDED SEPTEMBER 22, 2004

OPINION PUBLISHED SEPTEMBER 29, 2004

____________

Before POSNER, WOOD, and EVANS, Circuit Judges.

POSNER, Circuit Judge. Ralph Nader, joined by his campaign committee and two registered Illinois voters who

support his candidacy, brought this suit to require the State

of Illinois to place his name on the ballot for the forthcoming Presidential election. He appeals to us from the district

court’s denial of a preliminary injunction that would order

the state to do that. We have expedited the parties’ briefing

and our consideration of the appeal because of the short

time remaining to the election.
2 No. 04-3183

The suit challenges, as violations of the First and Fourteenth

Amendments, Munro v. Socialist Workers Party, 479 U.S. 189,

193 (1986); Anderson v. Celebrezze, 460 U.S. 780, 786-88 (1983);

Bullock v. Carter, 405 U.S. 134, 142-44 (1972); Libertarian Party of

Illinois v. Rednour, 108 F.3d 768, 772-73 (7th Cir. 1997), three

provisions of the Illinois Election Code that have in combination prevented Nader from qualifying for a place on the

ballot. The first provision requires any candidate who has

not been nominated by a party that received at least 5

percent of the votes in the most recent statewide election to

obtain nominating petitions signed by at least 25,000

qualified voters. 10 ILCS 5/10-2, -3. The second provision

requires that the address on each petition be the address at

which the petitioner is registered to vote. Id., 5/3-1.2. The

third requires that the petitions be submitted to the state

board of elections at least 134 days before the election. Id.,

5/10-6. The deadline this year was thus June 21. Only two

states, Texas and Arizona, had earlier deadlines.

Nader declared his candidacy on February 22, which gave

him four months to drum up support for his presidential

bid, though a provision of the election code that he does not

challenge required him to wait until the ninetieth day before

the expiration of the June 21 deadline to begin circulating

the actual petition forms for signature. 10 ILCS 5/10-4. On

June 21 he turned in 32,437 petitions. More than 19,000 of

these were challenged by defendant John Tully, whom

Nader describes as a “minion” of the Illinois Democratic

Party. The principal ground for challenging a petition was

that the petitioner wasn’t registered to vote at the address

shown on it. After state administrative hearings, 12,327

petitions were struck, which brought Nader’s total below

25,000. Nader’s campaign continued to obtain petitions after

the June 21 deadline, and by August 19, when the district

court held a hearing on the motion for a preliminary
No. 04-3183 3

injunction, another 7,000 or so had been collected, but the

election board refused to consider them because they were

untimely.

Nader also sued in state court, where he sought a ruling

that the board’s refusal to certify his candidacy violated

Illinois state law. That proceeding is pending, and the board

argues frivolously that its pendency requires dismissal of

Nader’s federal suit by virtue of the doctrine of Younger v.

Harris, 401 U.S. 37 (1971). That decision and cases following

it, such as our Majors case on which the board particularly

relies, Majors v. Engelbrecht, 149 F.3d 709 (7th Cir. 1998),

hold (with irrelevant exceptions) that if a person is believed

to have violated a state law, the state has instituted a criminal,

disciplinary, or other enforcement proceeding against him,

and he has a federal defense, he cannot scurry to federal

court and plead that defense as a basis for enjoining the state

proceeding. Ohio Civil Rights Comm’n v. Dayton Christian

Schools, Inc., 477 U.S. 619, 626-28 (1986); Middlesex County

Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423, 432

(1982); Hoover v. Wagner, 47 F.3d 845, 848 (7th Cir. 1995);

Storment v. O’Malley, 938 F.2d 86 (7th Cir. 1991); Anthony v.

Council, 316 F.3d 412, 419-22 (3d Cir. 2003). That is not this

case. Nader is not accused of having violated any state law,

and the state has not instituted any proceedings against him;

he merely is pursuing parallel remedies against the state’s

refusal to certify him as a candidate. Federal courts do sometimes stay their hand when parallel state judicial or administrative proceedings are pending (“Colorado River” abstention,

see, e.g., Clark v. Lacy, 376 F.3d 682, 685 (7th Cir. 2004);

CIGNA Healthcare of St. Louis, Inc. v. Kaiser, 294 F.3d 849 (7th

Cir. 2002), or “Burford” abstention, see, e.g., International

College of Surgeons v. City of Chicago, 153 F.3d 356, 361-65 (7th

Cir. 1998)), but the election board has made no effort to fit

this case to that mold—and it couldn’t, if only because of the

time factor. Abstention would almost certainly moot

Nader’s case.
4 No. 04-3183

Nader argues that the three rules that in combination

ruled him off the ballot impose an unreasonable burden on

third-party and independent (nonparty) candidacy (though

the Libertarian Party’s candidate was able to qualify), and

if this is so the rules are unconstitutional. Timmons v. Twin

Cities Area New Party, 520 U.S. 351, 357-59 (1997); Burdick v.

Takushi, 504 U.S. 428, 432-34 (1992); Schulz v. Williams, 44

F.3d 48, 56 (2d Cir. 1994); Cromer v. South Carolina, 917 F.2d

819, 822-23 (4th Cir. 1990). Nader emphasizes the role that

third parties have played in American democracy. The

Republican Party started as a third party; and such third parties as the Progressive Party of Theodore Roosevelt,

LaFollette’s Progressive Party, and the Reform Party have

made significant contributions to political competition,

whether by injecting new ideas or, in the case of the Republican Party, by actually displacing one of the major parties.

So the barriers to the entry of third parties must not be set

too high; yet the two major parties, who between them exert

virtually complete control over American government, are apt

to collude to do just that. For like other duopolists they

would prefer not to be challenged by some upstart—

although if a major party believes that a third party will take

more votes from the other party than from itself, it will

support that third party (surreptitiously, because it’s supporting an ideological opponent), and the other party will

oppose it (also surreptitiously, because it’s opposing an

ideological ally). That is why Nader assumes that Tully is a

“minion” of the Democratic Party—but we should point out

that there was no basis for joining him as a defendant. Tully

is not a state actor, and he is not conspiring with the board

of elections to keep Nader off the ballot.

It doesn’t follow from what we said about the importance

of preserving opportunities for the entry of new parties into

the political arena that it would be a good thing if there
No. 04-3183 5

were no barriers at all to third-party candidacies. A multiplication of parties would make our politics more ideological

by reducing the influence of the median voter (who in a

two-party system determines the outcome of most elections),

and this could be a very bad thing. More mundanely, terminal

voter confusion might ensue from having a multiplicity of

Presidential candidates on the ballot—for think of the confusion caused by the “butterfly” ballot used in Palm Beach

County, Florida in the 2000 Presidential election. That fiasco

was a consequence of the fact that the ballot listed ten

Presidential candidates. The butterfly ballot was a folded

punchcard ballot in which the ten candidates were listed on

facing pages. This unusual design was innocently adopted in

order to enable the candidates’ names to be printed in large

type, in consideration of the number of elderly voters in the

county, while at the same time placing all the candidates for

each office in sight of the voter at one time so that he would

be less likely to overvote. Another ballot design might have

effectively disfranchised voters who had poor eyesight, or

who cast their vote before realizing there were additional

candidates for the same office on the next page of the ballot,

or who cast two votes for candidates for the same office

because they didn’t realize that candidates for the same

office appeared on different pages. But with names on each

side and the chads (the places in the ballot that the voter

punches out in order to vote) in the middle, it was easy to

punch the chad of the candidate on one of the facing pages

meaning to vote for the candidate on the opposite page.

Apparently a significant number of voters did just that:

intending to vote for Al Gore, they voted for Patrick Buchanan. With fewer candidates, the “butterfly” design and

resulting confusion would have been avoided.

Less obviously, third-party candidates would themselves

be harmed if there were no barriers to including such candidates on the ballot. It is to the Libertarian Party’s advan-
6 No. 04-3183

tage that if Nader’s challenge fails, its candidate will be the

only independent candidate for President on the ballot. If

there were 98 independent candidates, none could hope for

a nontrivial vote.

So there have to be hurdles to getting on the ballot and the

requirement of submitting a minimum number of nominating petitions is a standard one. In a state the size of

Illinois—the population exceeds 12 million, of whom more

than 7 million are registered voters—requiring a third-party

candidate to obtain 25,000 signed nominating petitions

cannot be thought excessive. Jenness v. Fortson, 403 U.S. 431

(1971), upheld a Georgia law that required petitions from 5

percent of the registered voters—in Illinois that would mean

350,000 petitions! Equally stringent requirements have been

upheld in other cases. See American Party of Texas v. White,

415 U.S. 767, 783-84 (1974); Libertarian Party of Illinois v.

Rednour, supra, 108 F.3d at 775; cf. Prestia v. O’Connor, 178

F.3d 86, 87-89 (2d Cir. 1999); compare Storer v. Brown, 415

U.S. 724, 739-40 (1974).

And especially in a state as notorious for election fraud as

Illinois is, see, e.g., “Voting Rights Act: Criminal Violations,”

Hearings Before Subcomm. on the Constitution of the S. Comm.

on the Judiciary, 98th Cong., 1st Sess. 4 (1983) (testimony of

Dan Webb, U.S. Attorney for the Northern District of Illinois);

Dayna L. Cunningham, “Who Are to Be the Electors? A

Reflection on the History of Voter Registration in the United

States,” 9 Yale L. & Policy Rev. 370, 396-97 (2001); Todd J.

Zywicki, “The Law of Presidential Transitions and the 2000

Election,” 2001 B.Y.U.L. Rev. 1573, 1607-08 (2001), the fact

that the nominating petitions that a candidate submits have

actually been signed by registered voters has to be verified.

If the petition were not required to contain any identifying

information (such as date of birth, mother’s maiden name,

or, the identifier that Illinois has chosen, the address at
No. 04-3183 7

which the petitioner is registered to vote), there would be no

practical impediment to a person’s signing the name of

anyone he knew to be a registered voter.

Other states may be able to rely on an honor system.

Oregon, for example, has switched to a system of all-mail

voting. O.R.S. § 254.465. But “what works in the state of

Oregon doesn’t necessarily work in Illinois, especially in

light of the colorful history of vote fraud we’ve seen,”

Andrew Zajac, “Wider Access to Absentee Ballots Sought;

Lawsuit Challenges Illinois Voting Law,” Chi. Tribune, Sept.

8, 2004, p. 11 (quoting the general counsel of the state

election board); for voting by mail makes vote fraud much

easier to commit. Michael Moss, “Absentee Votes Worry

Officials As Nov. 2 Nears,” N.Y. Times, Sept. 13, 2004, p. A1.

An additional reason to insist that a nominating petitioner

list his current address is that if he has moved out of the

county in which he is registered without re-registering, he

may be ineligible to vote and therefore ineligible to execute a

nominating petition.

Of course a law requiring verification could require so

much or such esoteric information that most petitions would

be invalidated. The best way of evaluating this danger is to

determine the total number of petitions that a third party

would have to submit in order to be reasonably confident of

having enough valid ones to get on the ballot. Almost onethird of the Nader petitions were invalidated. So if instead

of 32,000 petitions his campaign had collected 37,500 and a

third had been invalidated, there would have been 25,000

valid petitions, and Nader would be on the ballot. If 25,000

is not an excessive number to require, neither is 40,000 (to

provide an extra margin of error), for that is only slightly

more than one-half of one percent of the number of registered voters in Illinois.
8 No. 04-3183

But is it reasonable to require that the minimum number

of nominating petitions all be collected by June 21 when the

election is not until November 2? June 21 preceded both major

parties’ conventions, and depending on what occurred there

a third-party candidacy might generate a degree of support

that it could not have attracted earlier. The problem is that

time has to be allowed between the deadline for petitions

and the election to enable challenges to the validity of the

petitions to be made and adjudicated and then to enable a

ballot to be printed and distributed that will contain the

names of all the candidates—and the ballot must be printed

well before the election so that it can be distributed to registered voters who vote by absentee ballot.

But how much time? One hundred thirty-four days—

almost four and a half months—seems awfully long. Too

long, seems to be the judgment of 47 of the other 49 states.

A 120-day deadline was upheld in American Party of Texas v.

White, supra, 415 U.S. at 787 n. 18, but it had not been separately challenged and it was not separately discussed. In

Anderson v. Celebrezze, supra, on which the plaintiffs primarily

rely, the Court invalidated a seven-month deadline, and

though it was much longer than Illinois’s 134 days and Ohio

had not argued that it needed that much time “to allow petition signatures to be counted and verified or to permit

November general election ballots to be printed,” id. at 800,

the Court noted, though noncommittally, that the district

court had found that 75 days should be enough. Id. at 800 n.

28. The Court also emphasized that deadlines that states set

for qualifying a candidate in a national election must be

scrutinized with particular care because they have effects outside the states imposing them; a strong third-party showing

could sway the outcome of the Presidential election. Id. at

794-95.

Restrictions on candidacy must, moreover, be considered

together rather than separately. Wood v. Meadows, 207 F.3d
No. 04-3183 9

708, 711 (4th Cir. 2000). (This, incidentally, makes it difficult

to rely heavily on precedent in evaluating such restrictions,

because there is great variance among the states’ schemes.)

The fewer nominating petitions required to put a candidate

on the ballot and the harder it is to challenge a petition (and

so the lower the number of petitions above the minimum

that a candidate must submit in order to be on the safe side),

the shorter the deadline for submitting petitions can be

made without unduly burdening aspiring candidates.

Illinois requires a substantial though not paralyzing number

of petitions, makes challenges easy rather than hard (since a

discrepancy between the address on the petition and the address at which the petitioner is registered is likely to be

pretty common even without fraud), and sets a tight deadline for submitting a qualifying number. In these circumstances, the tightness of the deadline can be questioned.

But we must not overlook another variable in a system of

ballot access, and that is the procedure for resolving challenges to nominating petitions. The more extensive the procedure that a state provides, the more time the state will need

in order to determine whether a candidate has qualified.

Illinois, perhaps out of sensitivity to the state’s history of

voting fraud, has decided to allow candidates to respond to

challenges, and this decision requires pushing back the

deadline for submitting petitions by increasing the amount

of time required to determine whether the candidate has

obtained the requisite number of valid petitions. A state that

employed a purely ex parte procedure for resolving challenges could set a later deadline for submission of petitions.

But Nader does not question the appropriateness of the

state’s entitling him to rebut challenges to his nominating

petitions. With 19,000 challenges to consider one by one and

the Nader campaign entitled to rebut all 19,000, the board of

elections needed a significant amount of time for resolving

challenges and only after doing so could it print up the
10 No. 04-3183

ballots (unless it printed a double set of ballots—one with,

one without, Nader’s name, an expedient that has not been

suggested). At argument Nader’s lawyer claimed that the

19,000 challenges could all have been resolved within five

to eight days. That seems preposterous and in any event no

attempt has been made to substantiate the figure.

Well, even given the expanded procedure, is 134 days

really a reasonable period for resolving challenges and

printing and distributing ballots? Couldn’t that be done

quicker? Maybe so, but Nader has not presented evidence

that would enable a court to prescribe a shorter period. We

cannot micromanage the regulation of the electoral process

to the degree he seeks.

Even if he has a better case on the merits than we think, he

has not made a persuasive case for the extraordinary remedy

of a preliminary injunction against a state agency. Remember that between the expiration of the statutory deadline

and August 19, his campaign collected another 7,000 petitions. Were August 19 the deadline instead of June 21, we

do not think it would be argued that the deadline was still

too tight; nor do we understand Nader to be making such

an argument, or to be arguing that if that were the deadline

he would have collected more than 39,437 petitions (32,437

+ 7,000). If a third of those are invalid, he is perilously close

to the 25,000 minimum. Yet he argues not that the state

election board should verify the 7,000, but that that number,

though it undoubtedly includes many invalid petitions,

should be added to his 20,182 total of verified petitions, carrying him above the 25,000 threshold. That is an improper

procedure; his proposing it suggests that he is pessimistic

that he actually has 25,000 valid petitions.

It also is unlikely that the 134-day rule, though it could

prevent some third-party candidates, and perhaps even

Nader in different circumstances, from having a reasonable
No. 04-3183 11

shot at collecting the qualifying number of nominating petitions, could have made a difference to Nader’s ability to

collect petitions in this year’s election campaign. Long

before the June deadline it was not only certain who the

major parties’ candidates would be but their positions were

well known, the candidates were campaigning vigorously,

there was a high level of public interest in the campaign,

Nader himself had been campaigning since February, and

he has long been a well-known national figure with more

name recognition than Senator Kerry had before Kerry entered

the Democratic primary. If Nader could not obtain nominating

petitions from (realistically, to supply a comfortable margin of

error) 40,000 of Illinois’s 7 million registered voters, the implication is that his popular appeal in Illinois in the forthcoming election is slight. With 90 days to collect the 40,000

petitions, and 100 canvassers working to collect them, each

canvasser would have to collect an average of only 4 to 5 a

day (40,000 ÷ 90 ÷ 100 = 4.44). If Nader could not recruit 100

canvassers in Illinois, his electoral prospects were dismal

indeed.

Moreover, it would be inequitable to order preliminary

relief in a suit filed so gratuitously late in the campaign season. It wasn’t filed until June 27, only a little more than four

months before the election. If when he declared his candidacy back in February Nader had thought as he now does

that the Illinois Election Code unconstitutionally impaired

his chances of getting a place on the ballot, he could easily

have filed suit at the same time that he declared his candidacy—especially as he had filed a similar suit the last time

he ran for President, in 2000, when he obtained a preliminary

injunction that got him on the Illinois ballot by allowing him

to submit petitions collected after the deadline, Nader 2000

Primary Committee v. Illinois State Board of Elections, No. 00 C

4401 (N.D. Ill. 2000), though no final judgment was ever

entered. There would be no question of his standing to seek
12 No. 04-3183

such relief in advance of the submission or even collection

of any petitions. Krislov v. Rednour, 226 F.3d 851, 857-58 (7th

Cir. 2000); cf. Jenness v. Fortson, supra, 403 U.S. at 432

(assuming standing). For while he could not have known

before June 21 whether he could comply with the election

code, it was certain that it would cost him more to do so

than if the challenged provisions were invalidated.

By waiting as long as he did to sue, and despite the strenuous efforts by the district court and this court to expedite

the litigation, Nader created a situation in which any remedial

order would throw the state’s preparations for the election

into turmoil. Absentee ballots have already been mailed to

voters who will be overseas on election day, see 42 U.S.C.

§ 1973ff-2(e)(2), and the remaining absentee ballots will be

mailed on September 23. 10 ILCS 5/19-4, 5/16-5.01; State

Board of Elections, State of Illinois Election and Campaign Finance

Calendar 2004, pp. 27-30, http://www.elections.state.il.us/

ElecInfo/Pages/Downloads/ PDF/2004cal.pdf. At argument

Nader’s lawyer offered no reason for the delay in filing the

suit.

We are mindful that the right to stand for office is to some

extent derivative from the right of the people to express

their opinions by voting, e.g., Munro v. Socialist Workers

Party, supra, 479 U.S. at 193; it was doubtless to remind us of

this that Nader’s lawyers added two prospective voters as

plaintiffs. But nothing is more common than for the denial

of an injunction to harm innocent nonparties, such as people

who would like to vote for Nader but unlike the two voter

plaintiffs are not complicit in his decision on the timing of

the suit. But there are innocents on the other side as

well—the people who will be harmed if a last-minute injunction disrupts the Presidential election in Illinois. And

Nader’s supporters can cast write-in votes for him in

November.
No. 04-3183 13

So, all things considered, we cannot say that the district

judge abused his discretion in refusing to issue a preliminary injunction.

AFFIRMED.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—9-29-04