On September 22, the Seventh Circuit issued a 12-page opinion in Libertarian Party of Illinois v Scholz, 16-1667. The opinion says the U.S. District Court was correct when it invalidated the Illinois “full-slate” ballot access restriction. The law, which has existed since 1931, says a newly-qualifying party must run a full slate of candidates or it can’t run any. The law has made life miserable for minor parties in Illinois for 86 years, and there have been many attempts to have it declared unconstitutional in the past, but they had all failed. The law did not apply to qualified parties.
This current case took years to reach this point. It was filed in 2012. The attorney who filed the case, Gary Sinawski, had died in the meantime, and the party had had to find a new attorney to carry on the case, David Schoen. Both of them did an excellent job.
The full-slate law was especially harmful in the years when Illinois had cumulative voting for the lower house of the legislature, before 1981. The cumulative voting law said that each district elected three representatives. If a ballot-qualified party only wanted to run one nominee in a district, then the voters were permitted to cast all three of their votes for that one candidate. Or, if a party ran two, then voters could give each of the two one and one-half votes. But, unqualified parties were forced to run a “full slate”, meaning three candidates. Thus their candidates couldn’t take advantage of the cumulative voting system.
The Harold Washington Party had challenged the full-slate law in 1990, along with a challenge to the number of signatures, in a case called Norman v Reed, which went to the U.S. Supreme Court. Although the party won the part of the case about the number of signatures, the U.S. Supreme Court avoided settling the full-slate issue. Later, the Green Party had challenged the full-slate law in Illinois state court, but in 2005 the state court upheld the law, in a case called Green Party v Henrichs.
One of the consequences of this decision is that in future years, if both the Libertarian Party and the Green Party get on the statewide ballot, they no longer have to run for all the statewide offices. They can coordinate with each other, and in midterm years each party can agree not to nominate for one or two lesser statewide offices, such as Comptroller or Treasurer. In 2010, when both parties were on the ballot, Greens got 3.19% for Comptroller and 3.18% for Treasurer. Libertarians got 3.31% for Comptroller and 1.89% for Treasurer. So neither party got 5% for any statewide race, and they therefore didn’t qualify for automatic statewide access in 2012. But if in either race, one of them had had no candidate, it is plausible the other party would have hit 5%. Parties that get 5% for any statewide office are then automatically on the ballot for all the statewide offices (but not district offices) in the next election.
Also, in 2016, there were three statewide offices up, president, US Senate, and a special election for Comptroller. Both parties had nominees for all three offices. No candidate got 5%, but the total for the two parties together was over 5% in all three races. For Comptroller, Greens got 2.67% and Libertarian got 3.46%, totaling over 6%.
The tricky part would be convincing enough people in each party to agree to such coordination. Getting Libertarians and Greens to overlook their parties’ differing economic ideas is like trying to mix oil and water, but otherwise there’s a fair bit of overlap.
Brain dead courts since 1931 —
each office is obviously totally separate from other offices.
What parties and campaigns did it prevent from going on the ballot?
1934, Communist (for state rep in their strong district in Chicago)
1964, Socialist Labor Party
1972, Socialist Workers Party
Also it really injured both the Illinois Solidarity Party and the Democratic Party in 1986. The print edition of BAN explains all this (the Oct. 1 2017 issue, being mailed today).
Thanks so much for this history and analysis, Rich. While ballot access issues are often looked on as “party” or “candidate” rights, often by the party’s themselves, in fact, these are fundamentally Voter Rights issues- something Gary Sinawski deeply understood and why his arguments and this case are so compelling (not that the Courts don’t routinely ignore compelling arguments). If voters had had viable alternatives – or “effective choices” as the decision says, in 2016 and the years leading up to this, I don’t think we’d be in the horrifying and dangerous state we now found ourselves. It was focus on the rights of voters and citizens, rather than ‘candidates’ and parties, that swayed the court and which was at the core of its favorable decision:
“Laws restricting a party’s ballot access thus burden two rights: “the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms.”
Countless efforts were never even begun because of increasingly onerous legal hurdles. How do we measure those costs to our democracy: our inability to “vote effectively” for those who will actually represent us? If the existing independent and third parties – as well as the major parties – don’t become less sectarian, it seems clear that this law can help new formations – whether formal or coalitional or adhoc parties – who can effectively galvanize the majority of voters who are totally fed up with existing choices.
If Illinois were to adopt Top 2, there would be no need for a full slate, since there would not be slates, and there would not be a reason to pre-qualify parties since they would not have their own primaries.
Like-minded citizens could engage in voluntary political association to recruit and support candidates.