Jones v McGuffage

Jones v McGuffage – The Basic Participants

On December 18, LeAlan Jones, Dave Sacks, and the Illinois Green Party filed suit in federal district court, charging that the statutory requirements to run as a candidate of a “new party” in the Special Election in the 2nd Congressional District are so difficult as to violate the Due Process and Equal Protection clauses in the U.S. Constitution.

LeAlan Jones was endorsed on December 8 by a caucus of Illinois Green Party members residing within the 2nd Congressional District to be the Green candidate in the race. In 2010, LeAlan was the Illinois Green Party’s candidate for U.S. Senate.

Dave Sacks is a Green Party voter desirous of being able to vote for LeAlan on April 9. It is common practice for voters to file as co-plaintiffs in ballot access cases like this.

The lead attorney in the case is Rich Whitney, two-time Green Party candidate for Governor. Local co-counsel is Chris Kruger, assisted by Werner Gruber.

William M. McGuffage is the current Chairman of the Illinois State Board of Elections. Each member of the Board was sued in their official capacity as board members. Federal rules require that when suits such as this are filed, the listed defendants must be the individual members in their official capacities. This is why the suit is not called Jones v State Board of Elections.

The Honorable John J. Tharp, Jr. is the federal judge assigned to the case. Judge Tharp was nominated by President George W. Bush in 2008, but no action was taken before the end of Bush’s term. He was subsequently nominated by President Barack Obama in November 2011 and confirmed by the Senate in May 2012.

Jones v McGuffage – The Circumstances

On November 21, Jesse Jackson Jr. resigned his seat in Congress, just 15 days after having been reelected by a strong majority. The circumstances surrounding Congressman Jackson’s final year in office and resignation are very complex and better explained elsewhere.

Governor Pat Quinn, at the request of Cook County Clerk David Orr, proclaimed that the Special Election to fill Jackson’s seat would be held on Tuesday, April 9, with a Special Primary for “established parties” (i.e. Democrats and Republicans only) to be held on Tuesday, February 26. These dates coincide with the previously scheduled Consolidated Election and Consolidated Primary across all of Illinois (except the City of Chicago) and by making the dates coincidental, additional election days and substantial taxpayer costs have been avoided.

Because Jackson resigned when he did, however, Quinn had to wait on the Illinois General Assembly to pass a special bill allowing for the Special Election and Special Primary to be held later than would otherwise have been permitted under the law. This was Senate Bill 3338, which in addition to setting the dates for the elections, set the dates for circulation of petitions. In so doing, the bill, for this special election only, resolved a hole in the Election Code whereby “new party” and independent candidates had no time frame specified for circulation of petitions.

As a result of the passage of Senate Bill 3338 – which became Public Act 97-1134 – Articles 7, 10, and 25 of the Election Code, read together, provide that a “new party” candidate for Congress would have to submit signatures by February 4. Since the Act was not enrolled until December 3, this afforded a collection period of only 62 days. Further, the only provision of the code relating to the numeric requirement is the requirement for all other elections (excepting redistricting year elections), meaning that the requirement would be 5% of the total number of votes cast for the office in 2012.

In summary, the Election Code requires that a Green Party candidate for 2nd Congress must submit 14,886 valid signatures, collected within a 62 day window, coinciding with two of the three coldest months of the year, with almost no advance ability to put together a plan and a campaign.

For comparison, to get onto the primary ballot, candidates had 35 days to collect signatures, with Democrats needing 942 signatures, and Republicans needing 346 signatures.

Given the difficulty of the season, the lack of public events, the very narrow time frame, and the extremely high signature requirement, it is functionally impossible to meet the requirements.

Jones v McGuffage – The Legal Argument (in short)

The plaintiffs’ argument boils down to this:

  • It is a violation of the Equal Protection clause of the 14th Amendment to expect a “new party” candidate to do so much more to get on the ballot than an “established party” candidate.
  • The existing requirement for general elections – 5% of the preceding vote total in 90 days – is unconstitutionally difficult based on the Supreme Court case Williams v Rhodes because no candidate for U.S. House has successfully defeated a challenge in Illinois in the last 20+ years when the signature requirement exceeded 10,000.
  • Above and beyond the existing requirement being unconstitutional, failing to lower the requirement for a Special Election is even worse, and there are several federal cases which support this argument.
  • ILGP and counsel have also been helped immensely by the advice of Richard Winger, editor of Ballot Access News and the nation’s leading expert on third-party and independent ballot access issues.

    Jones v McGuffage – The Status

    The plaintiffs have filed for injunctive relief. This step is necessary because otherwise it would not have been possible to get a relevant decision in time to matter. Generally speaking, when plaintiffs file for injunctive relief in such situations, it will be granted only if the judge deems that there is a high likelihood that the plaintiffs will eventually win the case. Of course, since the same judge is the one who will likely give the eventual ruling, he would be in a very good position to determine what he would eventually be ruling.

    The State has responded with a barrage of materials, including trying to get the affidavit of Richard Winger thrown out from the case, and even mining ilgp.org for information which could theoretically impugn the party. It should be noted here that when the State Board of Elections or its member commissioners are sued, it is not the legal staff of the SBE which represents the Board or its members, but instead the office of the Illinois Attorney General. The current Illinois Attorney General, Lisa Madigan, is the daughter of Illinois Democratic Party Chair and Speaker of the House Michael Madigan. While it is Lisa Madigan’s responsibility to defend state law, the particular vigor with which the Attorney General’s office may pursue such defense can be subject to interests other than those strictly legal. While that may or may not be the case in the matter at hand, there is no question that in the past decade, Michael Madigan has pushed through numerous bills to make ballot access even more difficulty in Illinois.

    Oral arguments are slated for January 30 at the Dirksen Federal Building in Chicago.

    Jones v McGuffage – The Filings

    Some of the case documents will be uploaded here soon.