On October 1, the 7th circuit upheld the number of signatures needed for an independent candidate for U.S. House in Illinois. Stevo v Keith, 08-3218. The opinion is only six pages long and was written by Judge Richard Posner and co-signed by Judges Joel Flaum and Richard Cudahy. The opinion ignores all the evidence and all the favorable precedents. Instead, it merely says since the U.S. Supreme Court upheld 5% petitions in Jenness v Fortson, the Illinois law is constitutional. Here is the opinion.

Illinois only requires 5,000 signatures in years that end in “2”. The evidence showed that in the 61 U.S. House elections in which the 5,000 signature requirement was in effect, not a single independent candidate ever qualified for U.S. House. Therefore, logic seems to say that the state has no interest in requiring 10,000 or more signatures in other years. The opinion does not mention this evidence. Nor dies it mention the U.S. Supreme Court admonition in Storer v Brown that “there is no litmus test” for determining whether a ballot access law is constitutional, but that lower courts should analyze how many times the law is used. Nor does the opinion mention the unanimous U.S. Supreme Court decision Illinois State Board of Elections v Socialist Workers Party, which struck down the 5% formula in Illinois in jurisdictions in which applying the 5% formula would result in requiring more signatures for a district office than for a statewide office. The message of Illinois State Board of Elections v Socialist Workers Party is that judges should use common sense. That was not done in the Stevo decision.

The decision says that there is one U.S. House district in which the 5% formula yields fewer signatures than 5,000, and suggests that if the 5,000 formula used in years like 1992 and 2002 were used in all cases, independents in that one district would be injured. But the state is free to require 5,000 signatures or 5% of the last vote cast. For statewide petitions, the law requires 25,000 or 1% of the last vote cast. The decision does not mention the statewide formula, even though applying the statewide idea would solve the so-called problem set forth by the decision.