Last year, Clinton Krislov was a candidate for the Democratic nomination for Illinois Supreme Court Justice. He needed 5,050 signatures and he submitted 9,542, but when his petition was challenged, he was found to be 108 signatures short. He did not bring an action in state court to show that he really had enough valid signatures. Instead, he sued in federal court, alleging that because the petition-checking process is so faulty, that when the number of signatures found to be valid is within the “statistical margin of error”, the petition should be presumed valid.

On March 10, 2020, the U.S. District Court ruled against him. Krislov v Cook County Officers Electoral Board, 1:20cv-469. Here is the 6-page decision, which says in footnote five, “Krislov might have some sort of Due Process claim, but he does not allege a Due Process claim, and the Court has received no briefing on whether the facts alleged state such a claim.” The District Court rejected the notion that if a petition almost has enough valid signatures, that it should then be deemed valid on the grounds that the petition-checking process inevitably has errors. The decision says there is no substitute for battling over each signature, one at a time, to decide if the requirement was met or not.

Krislov appealed to the Seventh Circuit, which had an oral argument on February 18, 2021, and which ruled against him on February 22, 2021. Here is the five-page Seventh Circuit opinion. The decision, by Judge Frank Easterbrook, determines that the appeal is moot. It says, “The question is not whether the issue will matter to someone, but whether it will matter to him, in particular. Also, “Because the 2020 election season is over, Krislov is entitled to decision in federal court only if the legal issues that arose in 2020 are both capable of repetition with respect to Krislov personally and bound to evade judicial review if they recur.”

Judge Eastberbrook is in error. In ballot access cases, the issue is not moot even if the election is over, regardless of whether the plaintiff candidate plans to run in the future or not. This was settled in Moore v Ogilvie, 394 U.S. 814, which said that ballot access cases are not moot just because the election is over. In Richardson v Ramirez, Justice William Rehnquist talked about Moore v Ogilvie, and said about the plaintiffs in that case, “the particular candidacy was not apt to be revived.” See 418 U.S. 24, at page 35. Rehnquist was correct. The plaintiffs in Moore v Ogilvie were running as unpledged candidates for presidential elector in Illinois in 1968, because they perceived Hubert Humphrey and Richard Nixon would not end the Vietnam war, and the unpledged candidates for elector wanted Illinois voters to be able to vote for presidential electors who were against the war. There was no expectation that the electors would be doing that again in 1972.

Judge Easterbrook also erred in his description of the recent U.S. Supreme Court opinion Carney v Adams, the case in which a registered independent challenged the Delaware law barring registered independents from being appointed as a judge to most of the state courts. Easterbrook wrote, “Adams could not show any prospect of appointment to any of the courts in the foreseeable future, so the Court held he lacks standing.” Actually, the court found that Adams lacked standing because he hadn’t actually applied for appointment; it did not say that he lacked standing because he wasn’t likely to receive an appointment. The Delaware decision says, “Adams must at least show that he is likely to apply to become a judge in the reasonably foreseeable future…Adams did not show that he was ‘able and ready’ to apply for a vacancy in the reasonably imminent future.” There is not a word in Carney v Adams that Adams lacked standing because it wasn’t likely that the Governor would appoint him.

Finally, Judge Easterbrook stated, “The Supreme Court has held that a state does not violate the Constitution by requiring a would-be candidate to present signatures equal to 5% of the total electorate. Jenness v Fortson, 403 US 431 (1971).” That is a misstatement. Twice the U.S. Supreme Court has struck down petition requirements that were less than 5% of the electorate, in Illinois State Board of Elections, and Norman v Reed. Lower federal courts have struck down petitions below 5% of the number of registered voters in Arkansas, Colorado, Georgia, Iowa, Michigan, Mississippi, New York, North Carolina, North Dakota, and Pennsylvania. The U.S. Supreme Court said in Storer v Brown (1974) that there is no litmus test, and whether a state requires too many signatures cannot be settled simply by looking at the percentage; all the evidence must be considered.