On May 11, U.S. District Court Judge Sara Darrow refused to enjoin the Illinois 5% petition requirement for independent candidates for U.S. House. Flowers v Illinois State Board of Elections, c.d., 4:26cv-4062. Here is the opinion. It ignores the fact that no independent candidate for U.S. House in Illinois has managed to qualify since 1974 if the petition was challenged (excluding years ending in “2”, when the 5% requirement does not apply). The opinion says ten candidates have qualified in the last few decades for U.S. House, but they were candidates who were not challenged or who were running in years ending in “2”.
The decision depends on the 1971 U.S. Supreme Court decision Jenness v Fortson, but it fails to say that the reason the U.S. Supreme Court upheld that 5% petition was that the record showed that Georgia’s petition requirement had been successfully used in each of the two preceding elections before the case had been filed. And the opinion also errs when it says the U.S. Supreme Court upheld a June petition deadline in Jenness v Fortson. As Justice Stevens explained in Mandel v Bradley, the plaintiffs in Jenness did not challenge the petition deadline, so anything in Jenness about the deadline is dicta.
The order is also flawed because it implies that the only time the U.S. Supreme Court ever struck down a petition requirement on the grounds that too many signatures were required was in 1968, in Williams v Rhodes. The order does not mention the unanimous U.S. Supreme Court decision Illinois State Board of Elections v Socialist Workers Party, in 1979, which struck down a petition requirement of approximately 2%. The U.S. Supreme Court reaffirmed that again in 1992 in Norman v Reed, yet another Illinois case.
Nor does the order mention the U.S. Supreme Court decision Storer v Brown, from 1974, which said there is no litmus test for evaluating petition requirements.
Judge Darrow has a bad record on ballot access. She had previously upheld the same 5% petition for U.S. House in Gill v Scholz.
