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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LIBERTARIAN PARTY OF ILLINOIS )

et al., )

)

Plaintiffs, )

)

v. ) No. 20 CV 02112

)

GOVERNOR J.B. PRITZKER, et al., ) Chicago, Illinois

) May 15, 2020

Defendants. ) 10:33 a.m.

TRANSCRIPT OF TELEPHONIC PROCEEDINGS

BEFORE THE HONORABLE REBECCA R. PALLMEYER

APPEARANCES TELEPHONICALLY:

For the Plaintiffs: MR. OLIVER B. HALL

Center for Competitive Democracy

P.O. Box 21090

Washington, D.C. 20009

(202) 248-9294

oliverhall@competitivedemocracy.org

MR. SCOTT K. SUMMERS

P.O. Box 430

Harvard, Illinois 60033

(815) 403-8411

scott@scottksummers.com

MR. MARK R. BROWN

303 East Broad Street

Columbus, Ohio 43215

(614) 236-6590

mbrown@law.capital.edu

For Plaintiff Kopitke: LAW OFFICE OF SAMUEL J. CAHNMAN

BY: MR. SAMUEL J. CAHNMAN

915 South Second Street

Springfield, Illinois 62704

(217) 691-6207

samcahnman@yahoo.com

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For Defendants: MS. ERIN WALSH

MR. MICHAEL T. DIERKES

MS. SARAH H. NEWMAN

Office of the Illinois

Attorney General

100 West Randolph Street

Suite 1300

Chicago, Illinois 60601

(312) 814-6122

ewalsh@atg.state.il.us

mdierkes@atg.state.il.us

snewman@atg.state.il.us

For Defendant Board of KASPER & NOTTAGE, P.C.

Elections: BY: MR. MICHAEL J. KASPER

151 North Franklin Street

Suite 2500

Chicago, Illinois 60606

(312) 704-3292

mjkasper60@mac.com

Court Reporter: Judith A. Walsh, CSR, RDR, F/CRR

Official Court Reporter

219 South Dearborn Street, Room 2118

Chicago, Illinois 60604

(312) 702-8865

judith_walsh@ilnd.uscourts.gov

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(Proceedings heard telephonically:)

THE CLERK: The United States District Court for the

Northern District of Illinois is now in session. The

Honorable Chief Judge Rebecca R. Pallmeyer presiding.

20 CV 2112, Libertarian Party of Illinois versus

Pritzker.

THE COURT: Good morning. This is Judge Pallmeyer.

I know that I have a number of people on the line, so I'm

going to ask that you introduce yourselves in just a moment

and also remind you that when you do talk that you need to

always state your name because we are making a record, and

it's difficult for the court reporter to determine one person

from another.

So we'll begin by, I'm going to begin by asking, why

don't we ask the moving party, the State defendants, to

introduce themselves first.

MR. KASPER: Michael Kasper, K-a-s-p-e-r, on behalf

of the defendant Board of Elections.

THE COURT: Good morning, Mr. Kasper.

And other defense counsel?

MS. NEWMAN: Good morning, your Honor. Assistant

Attorney General Sarah Newman on behalf of Governor Pritzker.

THE COURT: Good morning.

MS. WALSH: Good morning, your Honor. Erin Walsh,

Assistant Attorney General, also on behalf of Governor

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Pritzker.

MR. DIERKES: Good morning, your Honor. Michael

Dierkes, D-i-e-r-k-e-s, also for the governor.

THE COURT: Dierkes, D-i-e-r-k-e-s. All right.

Thank you.

Any other -- anyone else for the defendant?

All right. And then I know that we have plaintiffs'

counsel and intervenors on the line. Why don't I ask you to

introduce yourselves beginning with plaintiffs' counsel, and

then we'll ask for the intervenors.

MR. SUMMERS: Good morning, your Honor.

MR. HALL: Good morning, your Honor.

MR. SUMMERS: This is Scott Summers, S-u-m-m-e-r-s,

for the plaintiffs.

THE COURT: Okay.

MR. HALL: Good morning, Judge Pallmeyer. Oliver

Hall for the plaintiffs.

THE COURT: Mr. Hall, good morning.

And who else for plaintiffs?

MR. BROWN: Good morning, your Honor. Mark Brown,

your Honor, also for the plaintiffs.

THE COURT: All right. And then for the intervenor?

MR. CAHNMAN: Your Honor, good morning. This is Sam

Cahnman, C-a-h-n-m-a-n, for the intervenor.

THE COURT: Okay. Anyone else on the line?

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All right. Let me tell you that I've reviewed the

motion and the memorandum, and I have reviewed the response

that I received from the defendant -- the plaintiffs and

intervenor.

First, just a procedural point. I know that the

motion for reconsideration was filed on May 8th. And a few

days later, my assistant asked me to -- said she received a

call wanting to know when it would be noticed for hearing.

First of all, it's normally counsel that notices things for

hearing but, of course, we're in a very different situation

right now.

The other thing I think you should know is that I've

been monitoring the emergency docket together with the Clerk

of Court, and when matters are filed as emergencies, we see

those, and that's how this case came to me in the first place.

The case is actually assigned to Judge Norgle of our court.

And I'm not sure how frequently he's monitoring his own case

civil docket, but I certainly was not monitoring it. So I was

not even aware of the motion for reconsideration immediately

when it was filed, and that's one of the reasons that there

was a delay on my end.

I know one of the arguments has been made by

plaintiffs' counsel is that the motion itself is tardy in the

sense that it was filed a couple of weeks after the Court's

preliminary injunction order actually entered.

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I understand that the request that's being made here

only addresses two of the elements in the Court's order. One

is the filing deadline extension. I had extended the filing

deadline to August 7th. And defendants are arguing that

that's just unworkable and ask that it be moved back to July

6th.

And then with respect to the signature requirement,

the defendants are arguing that 10 percent is too close to de

minimus and, in fact, a 25 percent number would be a better

measure of the amount of support that a particular candidate

has.

In opposition to the motion, the plaintiffs have

argued that there's been some, at least some reliance on the

Court's order in that there's been at least a bit of press

coverage and some indication that people who are interested in

getting on the ballot would have relied to some degree on the

order that the Court has entered. How much reliance there is,

I'm not sure I know apart from the fact that there's been a

little bit of publicity that might lead someone into believing

they had a certain amount of time left and now they have --

they might have less were I to grant the motion.

The defendants have also relied heavily on the Sixth

Circuit's opinion in the Esshaki case which did draw one

dissent. The Esshaki opinion effectively says that a district

court doesn't really have authority to set terms such as I've

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done and, in fact, the majority said that the most that the

Court could do would be to strike down the current standards

and direct that the State officials themselves come up with a

more workable plan.

My sense -- apart from the fact that it's technically

an unpublished decision and doesn't state the law of this

circuit, my sense is that, as appealing as the Esshaki

majority approach is to the Court, I would always much rather

the relevant officials come up with a resolution.

So appealing as that is, my concern about that is the

uncertainty of it and the fact that for both sides in this

case and the intervenor, a resolution sooner than later has

tremendous value. To leave the question open and have

everyone uncertain about what's supposed to happen and when, I

think, is perhaps an even worse result for state officials

than one that was imposed by the Court.

But with respect to the two issues that we have, that

is, the filing deadline and the signature requirement, I guess

my sense is that the defendants have made what I think is a

reasonable case for reviewing the issue of the filing

deadline. There are real difficulties that are imposed by the

publication requirements and the printing requirements that

are established by state law if the extension is going to be

as late as the one that I had imposed, and particularly in

light of the fact that there needs to be some time for

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challenges to some of those signatures. I'm not sure how

frequent or difficult it is that those challenges would need

to be resolved.

With respect to the request that instead of a 10

percent requirement, we move that to 25 percent, it seems to

me that either number is somewhat arbitrary. And I don't know

how much of a difference it makes. What I do know is that

we're dealing with continued grave difficulty in terms of

person-to-person contact in the state of Illinois. Public

health officials -- and I realize that there's dissent and

disagreement on the part of at least some people in the

population, but my view is, we live by the rule of law.

And what the governor has said until it's overturned

by some judge is the law and needs to be adhered to in any

ruling I make that would require or expect or anticipate or

even assume that there's going to be a violation of the

governor's direction would, I think, be a grave mistake. I

just won't do that. So I do need to be sensitive to the fact

that the plaintiffs are in a very difficult position with

respect to gathering signatures.

Now, that having been said, some of that has been --

much of that has been very significantly ameliorated, it seems

to me, by a portion of the Court's order that is not under

challenge, and that is the electronic signature requirement.

So I guess I need to know, given that change, why a

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move back from August 7th to a date in July would be

completely unacceptable to the plaintiffs. I guess I need to

know that.

MR. HALL: Your Honor, this is Oliver Hall.

THE COURT: Yes, Mr. Hall.

MR. HALL: Thank you. As we've discussed in prior

hearings, one of the main difficulties is that while

electronic signature gathering is certainly preferable during

a pandemic, it is a brand new procedure. It's not one that

the plaintiffs had any opportunity to prepare to implement,

much less to notify their potential supporters that they would

be reaching out online effectively by email. It's a

completely untested procedure.

Even if it works in optimal conditions under these

circumstances, the candidates for U.S. House still face very

high numbers. They have to collect over 1,000 signatures in

many, if not all, districts and they have to do it all by

email. That's going to involve 1,000 different emails or more

each with a file attachment that is going to be potentially

very large. So the logistical difficulties here are

considerable.

And from our own clients' perspective, although

they're very appreciative of the relief that has been granted,

they are not necessarily optimistic that they will be able to

comply with the signature requirements given the new procedure

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that they have to follow and their -- it's just unknowable

whether this is going to work in any kind of significant

numbers.

That said, they have relied on the Court's order, and

they have diligently attempted to comply with it from the day

that it was entered. That includes, the Libertarian Party has

begun -- I'm not sure if it's complete yet, but they have

begun to work on an online portal where they can gather

electronic signatures that way.

So they really have taken substantial measures to try

to comply with the order, but it's not as though this is a de

minimus requirement. 1,000 signatures by email is going to be

a very heavy lift. And we're not at all confident that many

or even some candidates will be able to do it.

MR. CAHNMAN: Your Honor, this is Sam Cahnman for the

intervenor.

And this, while the intervenor very much appreciates

the relief of the electronic signatures, it is not easy, it's

not a piece of cake to get electronic signatures. And as

Mr. Winger asserted in his -- or pointed out in his affidavit,

even the signature requirement as set forth in this order is

not the lowest in the country. It's still -- before, we were

the -- we were basically the highest. With the new signature

requirements, this puts Illinois at about the midrange of

signature requirements among the 50 states.

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And I have encountered candidates seeking to get

these electronic signatures, and they have told me of the

great difficulty. It's not like you can go door to door or go

to a shopping center or a place where a lot of people gather

and get one signature after another. You have to send out a

mass email. And then a lot of people don't read their emails

or they don't -- they see the email and they just don't click

on it. You can -- and so then you have to follow up with a

phone call. It's a very tedious process.

And I doubt that very many candidates would be able

to achieve the number of signatures required here if the

deadline was moved back from August 7th. And Mr. Hall talked

about 1,000 for Congress. Actually, some of the districts are

1,000 but the highest district, the 6th Congressional district

under your order, candidates still have to acquire almost

1,599 signatures. That's not a small piece of change.

So I don't think, while the electronic signatures is

the only way to get signatures in the current circumstances,

it's not an easy way to do it.

MR. HALL: And if I may, your Honor. It's Oliver

Hall.

Just to make one more point, it's not as though the

plaintiffs have an email list of all potential signers in

their jurisdictions. So apart from all the other

difficulties, assuming they did have email addresses, is the

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difficulty of reaching potential supporters in the first place

by email. They may simply not be able to reach voters who

would otherwise be willing to sign their nomination petitions.

THE COURT: I guess both concerns relate to both

prongs of the relief that's being requested now: The deadline

and the percentage issue. But I think they're more salient

with respect to the percentage issue. Either it's going to

work or it's not going to work.

It's not easy, nothing about this is easy for either

side in this dispute. I just want to make that clear. You

know --

UNIDENTIFIED SPEAKER: Judge, this is --

THE COURT: -- I think the plaintiffs have a very,

very difficult burden and I think the defendants do as well

because of the difficulty of getting these materials printed

and also reviewing challenges and doing that in a responsible

way. That's their responsibility under the law.

And anything further from the defendant? Let me tell

you what I'm inclined to do here is to move the -- move the

deadline back maybe by a couple of weeks but probably leave

the 10 percent requirement in place because I do think there

are real challenges in getting signatures electronically in

spite of the fact that on the one hand, it seems easy. On the

other, I think the plaintiffs are correct that it's not like

going to the mall and as people walk by asking them to do

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something that's quite easy for them to do and that they may

very well be willing to do versus getting an electronic

message that they may not have any inclination to open and

look at. So I think there are real difficulties on both

sides.

But I do want to hear from the defendant. I've heard

from the plaintiff.

MR. CAHNMAN: Judge, may I? This is Sam Cahnman. If

I may make one other brief point.

THE COURT: Sure.

MR. CAHNMAN: Under Illinois law, the deadline for

submitting petitions for referendums is August 3rd. And that,

the same challenge for us that is available to challenge

candidates' petitions is in the law for challenging referendum

petitions. So this August 3rd date -- or August 7th date is

only, what, four days more than August 3rd.

So these problems that the defendants are claiming

due to August 7th are just not there. It's already, the law

already provides for filing petitions for referendums almost

as late as August 7th.

THE COURT: All right. For the defendant?

MR. KASPER: Yes. This is Michael Kasper on behalf

of the Board. And, your Honor, thank you for entertaining the

motion.

Number one, relating to Mr. Cahnman's position about

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the August 3rd deadline, the August 3rd deadline applies only

to advisory referenda at the statewide level. And there

hasn't been one of those in over 20 years, as far as I'm

aware.

And number two, there's never really any litigation

about that because they're simply advisory referenda whereas

there's almost always litigation challenging candidate

eligibility to appear on the ballot. And that's what's

causing the problem.

The motion -- the reason why we took a little bit of

time to get the motion on file is because the elections in

Illinois are actually run by the local county clerks. There's

108 different election jurisdictions. So we had to publish --

work through them, and that's when we really found out that

the current plan was untenable. In fact, the deadline used to

be that August 3rd deadline for these types of candidates, and

the legislature moved it back ten years ago as I pointed out

in my papers.

And we don't -- as the Board has taken the position

all along that you have to strike a balance between the

interest of the plaintiffs to get candidates' names on the

ballot, but there's also the interest of the voters who are

going to get incomplete or inaccurate ballots mailed to them

if all of the steps that the Board has to take to finalize the

ballot are not completed before they start mailing the ballot.

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So that's what the Board is trying to balance here.

That's why they filed the motion because even moving the

deadline up a few weeks will help enormously in finalizing

that so that these military and other mail-out ballots will be

accurate and so that voters are actually voting for candidates

whose names are actually going to be on the ballot at the end

of the day.

And so that's the purpose of the motion. And while

we -- the number-one issue for the Board, as I've been

directed to seek, is some relief on that filing deadline. I

think that the combination of the extended filing and the

greatly reduced signature requirement will lead to an influx

of candidates and, therefore, an influx of litigation and,

therefore, an influx of delay in getting these ballots

finalized.

As I'm sure you're aware, these ballot challenges are

appealable all the way to the Illinois Supreme Court and, of

course, that takes time. And so that's what they're trying to

balance here. And so that was the purpose of the motion. So

any relief on those two issues, the Board would be

appreciative of.

MR. CAHNMAN: Judge, if I may, in response,

Mr. Kasper is not correct about advisory referendum petitions

are the only petitions that have an August 3rd deadline. In

fact, statewide advisory petition referendum, petitions are

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due six months, not on August 3rd, but six months before the

election.

The August 3rd date is for both advisory and binding

referendums that can be filed pursuant to Article 7, Sections

4(c) and 11 of the Illinois Constitution. And they can be

filed in all the election jurisdictions on August 3rd. So

the --

THE COURT: I'm sorry to interrupt but -- I'm sorry

to interrupt. We want to make sure that you tell us your

name.

MR. CAHNMAN: Oh, this is Sam Cahnman. I apologize.

THE COURT: That's all right. Go ahead.

MR. CAHNMAN: So in any event, so there are many,

many different types of petitions that can be filed under

Illinois law, under the Illinois election code on August 3rd

in all the election jurisdictions of the state. And

objections can be filed to those petitions.

And so the objections to the candidate petitions

filed on August 3rd -- or August 7th, just a few days later,

would be no different than what already has already been going

on in Illinois this year and in all prior general elections.

So we would urge the Court not to move it back, the

deadline back, two weeks. Perhaps moving it back to the

August 3rd deadline would possibly -- would be acceptable, but

certainly two weeks, I think, would put a lot of people off

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the ballot who otherwise would have made it on the ballot

including my client.

MR. HALL: Your Honor, this is Oliver Hall, if I may

make a point.

THE COURT: Sure.

MR. HALL: To the extent that the defendants are

concerned that the -- that sufficient time needs to be allowed

for objections to candidate petitions, I think it's also

relevant to remember that the signature requirement reduction

itself will ameliorate much of the difficulty of adjudicating

those challenges.

So whereas a candidate for U.S. House might have to

submit more than 10,000 signatures in many districts, that

signature requirement has been reduced and, therefore, the

number of signatures to be verified and the difficulty and

burden of doing that will be correspondingly reduced.

THE COURT: I'm aware of that. I think the reduction

in the number of signatures required does, at least to some

extent, limit the number of challenges that there would be. I

guess one thing I'm uncertain about based on what I just heard

is, is it the case or is it not the case that the ballot is

different in each -- wouldn't the ballot be different in each

of these districts?

MR. CAHNMAN: That's correct. Every election

jurisdiction -- Sam Cahnman for the intervenor.

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Every election jurisdiction has a different ballot.

And within those election districts, there are many different

ballots as well based on where a person lives.

THE COURT: But that distinguishes the situation from

the referendum situation. We're talking about a referendum

that would be the same on every ballot throughout the state of

Illinois, correct? Am I right about that?

MR. CAHNMAN: Well, the same, the objectors -- the

objections and the challenges would be the same. I mean,

different candidates appear on the ballot in different

election jurisdictions as well. You have -- what, we have 118

House districts, 59 Senate districts and --

THE COURT: But I'm looking at the burden on the

State of printing these ballots and getting them out to people

remembering too that, you know, for reasons that we can all

immediately understand, there's going to be a lot more mail

voting, I think, this year than there has been in previous

years.

MR. CAHNMAN: Yes, but it -- this is Sam Cahnman.

But it's the local election officials that print the ballots

and get them out, not the State.

MR. KASPER: Your Honor, this is Michael Kasper for

the Board.

That's correct, the local election officials mail out

the ballots, but they can't do that until they're notified by

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the defendant State Board of Elections what the final form of

the statewide ballot is going to be. That's -- and so the

problem is that if the mail -- the deadline to mail the ballot

comes before the State Board has finalized it, voters are

going to receive potentially inaccurate ballots. And that's

what we're trying to prevent. That's why -- that's why the

late filing deadline is different.

And I won't bore you with the details about the

difference between local referenda which are filed on August

3rd for a smaller jurisdiction like a county or a village or

something like that versus one that's filed for the whole

state.

As Mr. Cahnman pointed out, the deadline for filing a

statewide referendum is six months before the election, which

has long since passed. And the reason for that is because it

takes time to resolve all the steps that are necessary to

finalize.

THE COURT: I also think there's at least some

difference between the constitutional significance of names on

a ballot versus the state referendum process. I don't think

there's any clear right answer here. I don't think that

there's any clear way to address all of the concerns that have

been generated by this public health emergency but I think

really impinge on both sides significantly. I just don't

think there's any way to resolve this in a way that's truly

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fair to both sides.

I will note that the plaintiff believes -- or

plaintiffs believe that the requirements of gathering

signatures are going to be truly onerous, and the defendants

believe that it will be easy enough that there will be too

many names. Those things can't both be true.

My inclination in the end is to do pretty much what I

suggested at the outset. I'm going to move the deadline back

just by a couple of weeks to, say, we'll say July 20th and

then leave the 10 percent requirement as it is recognizing,

ladies and gentlemen, I'm no Solomon here. We don't always

get it exactly right.

I think getting an answer is better than waiting for

the perfect answer, and that's why I'm going to enter an order

today that grants some of the relief that's been requested but

not all of it. I want to --

MR. CAHNMAN: Thank you, your Honor.

THE COURT: -- thank you for your prompt and vigorous

advocacy. These are hard issues, and they're important

issues. I'm honored to be in this role. And I wish I could

do more for both sides. Thank you.

THE CLERK: Court is in recess.

(Proceedings recessed at 11:00 a.m.)

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C E R T I F I C A T E

I, Judith A. Walsh, do hereby certify that the

foregoing is a complete, true, and accurate transcript of the

telephonic proceedings had in the above-entitled case before

the Honorable REBECCA R. PALLMEYER, one of the judges of said

court, at Chicago, Illinois, on May 15, 2020.

/s/ Judith A. Walsh, CSR, RDR, F/CRR May 15, 2020

Official Court Reporter

United States District Court

Northern District of Illinois

Eastern Division

Case: 1:20-cv-02112 Document #: 35 Filed: 05/15/20 Page 21 of 21 PageID #:498