Krislov v. Rednour
In a July 2008 decision, Nader v. Brewer, the United States Court of Appeals for the Ninth Circuit cites Krislov with approval, and dings the United States Court of Appeals for the Eighth Circuit for failing to consider Krislov in their 2000 decision, Initiative & Referendum Institute v. Jaeger.
The primary plaintiffs were Clinton Krislov, a candidate in the March 1996 Illinois Democratic Party primary elections for the United States Senate, and Joan Sullivan, a candidate in the same primary for the seventh congressional district for the U.S. House of Representatives.
Both candidates initially obtained the required number of signatures to be placed on the ballot. Supporters of other candidates in the Democratic primary then launched a signature challenge against the signatures on the grounds that:
- They were gathered by circulators who were not registered voters in Illinois or the seventh district, as required by Illinois law.
Krislov and Sullivan "after expending substantial time, effort and money" successfully fought back against the signature challenge. Krislov and Sullivan then sued the Illinois Board of Elections, claiming that:
- Requiring signature gatherers to be registered voters of the relevant political subdivision violates the First and Fourteenth Amendments of the United States Constitution.
A federal district court in Illinois agreed with the plaintiffs, basing its decision on the recently-decided Buckley v. American Constitutional Law Foundation. The district court issued a summary judgment for Krislov and Sullivan.
The Illinois Board of Elections appealed, arguing that:
- The plaintiffs did not have standing,
- That Buckley does not control this case,
- That the residency law in question is narrowly tailored to serve a compelling interest.
The Seventh Circuit upheld the lower court ruling, rejecting the Board of Elections reasoning.
First amendment implications
In its decision, the 7th Circuit holds forth on the 1st Amendment in this fashion:
- The First Amendment, made applicable to the States by the Fourteenth Amendment, prohibits States from enforcing laws "abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
- This Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."
- Associating for the purpose of placing a candidate on the ballot is one of the actions protected by the First Amendment; indeed the circulation of petitions for ballot access "involves the type of interactive communication concerning political change that is appropriately described as 'core political speech.'"
- Restrictions on ballot access, therefore, can violate several constitutionally protected interests.
The decision notes that these rights are not absolute:
- The Constitution does not prohibit the States from enacting laws which incidentally burden candidates, for such a proscription would similarly preclude the regulation of elections and efforts to ensure their integrity.
- Because elections must be regulated to remain free from fraud and coercion, some latitude is given to regulations designed to serve these purposes.
- The Constitution itself grants the States broad powers to regulate the time, place, and manner of elections, including primary elections.
The judges further lay out that the specifics of different laws must be considered: "In assessing whether a State election law impermissibly burdens First Amendment rights, we examine the character and magnitude of the burden and the extent to which the law serves the State's interests" and concludes:
- "Laws imposing severe burdens must be narrowly tailored to serve compelling state interests, but lesser burdens receive less exacting scrutiny."
The nature and extent of the burden
The 7th Circuit reasons:
- The district court determined that the residency requirement placed a substantial burden on the candidates' rights.
- The Board concedes that the regulation imposes some burden, but argues that it is minimal.
And concludes from this, "In cases where the material facts are undisputed, the character and extent of the statute's burden involves a question of law which we review de novo."
The court then reasons:
- In arguing that the regulation is only minimally burdensome, the Board mistakenly focuses solely on the fact that Krislov needed only 5,000 signatures statewide to be placed on the ballot, while Sullivan needed only about 660 from the district.
- In reality a candidate needs a surplus of signatures, because they will likely be challenged on any number of grounds, resulting in some, perhaps many, invalidations.
- The number of signatures a candidate is required to obtain is just one of several important considerations.
- Even though the candidates in this case ultimately obtained ballot access, in the process their rights were substantially burdened.
- The uncontested record indicates that their ballot access took a lot of time, money and people, which cannot be characterized as minimally burdensome.
- In addition, the candidates contend that the statute installs other barriers: it inhibits their right to ballot access; it burdens their right to associate with a class of circulators; it limits their ability to choose the methods of political speech they consider most effective for their campaigns; and it reduces their ability to disseminate their message to a wider audience.
- Thus, even an election law which required a candidate to obtain only a relatively small number of signatures could still burden First Amendment rights if it also precluded the candidate from utilizing a large class of potential solicitors to convey his message, or if it substantially restricted the candidate's ability to choose the means of conveying his message.