Norman v. Reed Cook County Officers Electoral Board/Dissent Scalia

by Antonin Scalia

Justice SCALIA, dissenting.

In the absence of an opinion by the Illinois Supreme Court defending its own judgment, and lacking any clear alternative analysis presented by respondents, the Court accepts petitioners' characterization of this case as involving straightforward application of our decision invalidating a previous version of the Illinois election law, Illinois Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979). That characterization is in my view wrong, and leads to the wrong result. No proper basis has been established in this case for interfering with the State of Illinois' arrangement of its elections.

Socialist Workers Party involved a challenge to Illinois' then-requirement that, in elections for offices in political subdivisions of the State, new political parties (and independent candidates) had to obtain the signatures of 5% of the number of persons who voted at the previous election for those offices, no matter how high that number might be-even though new parties could qualify for statewide elections by gathering only 25,000 signatures. See id., at 175-176, 99 S.Ct., at 985-986. The Socialist Workers Party objected to having to collect over 60,000 signatures to run a candidate in the Chicago mayoral election. See id., at 177, 99 S.Ct., at 986. We held that, although the State had a legitimate interest in ensuring that a party or independent candidate had a " 'significant modicum of support,' " there was "no reason" justifying a requirement of greater support for Chicago elections than for statewide elections. Id., at 185-186, 99 S.Ct., at 990-991.

The Court contends that the current Illinois law, as interpreted by the Illinois Supreme Court, suffers from the same "constitutional flaw": It "effectively increas[es] the signature requirement applicable to elections for at least some offices in subdivisions with separate districts. . . . [because] the failure of a party's organizers to obtain 25,000 signatures for each district in which they run candidates disqualifies the party's candidates in all races within the subdivision." Ante, at 293. Thus, "a prerequisite to establishing a new political party in such multidistrict subdivisions is some multiple of the number of signatures required of new statewide parties." Ibid.

This analysis serves only to demonstrate why Socialist Workers Party is distinguishable. There is no heightened signature requirement (as there was in Socialist Workers Party ) for any single office; each candidate (and the party), for each district election and each county-wide election, need obtain no more than 25,000 signatures. What creates "effectively," as the Court says, a sort of heightened signature minimum is the requirement that a new party run a "complete slate," i.e., a candidate in each of the subdivision's districts. By virtue of that requirement, no one can run as a new-party candidate in any district unless there are not only 25,000 signatures for him in his own district, but also 25,000 votes for the party's candidate in each of the other districts. Such indirect consequences of a "complete slate" requirement were, of course, not at issue in Socialist Workers Party, which involved a single election for an at-large position. Thus, Socialist Workers Party is not at all dispositive of this case.

It seems clear that the "complete slate" rule advances a legitimate state interest. It is reasonable to require a purported "party," which presumably has policy plans for the political subdivision, to run candidates in all the districts that elect the multimember board governing the subdivision. Otherwise, it is less a "party" than an election committee for one member of the board. The Court ultimately concedes this, and concedes that this state interest was not involved (and therefore not taken into account) in SocialistWorkersParty. Ante, at 293-294. It nonetheless argues that this makes no difference, because: (1) Illinois could have achieved its interest in multidistrict support for the party by requiring that some proportion of the total signatures be from each district, but requiring no more than a 25,000 total, ante, at 293-294; and (2) multidistrict support is not an interest that Illinois considers important, since it "does not require a new party fielding candidates solely for statewide office to apportion its nominating signatures among the various counties or other political subdivisions of the State," ibid. I find neither response persuasive. As to the first: We did not say in Socialist Workers Party that the constitutionally permissible number for qualification in the various political subdivisions of the State had to be some fraction (presumably based on population) of the statewide 25,000 figure; to the contrary, we permitted the state to require in political subdivisions any number up to 25,000. Illinois has simply taken us at our word. Nor does this amount to an irrational failure to "apportion." Illinois' genuine minimum, we must recall, is a percentage (5%) of the votes in the prior election, which of course automatically adjusts for the size of the electoral unit. The 25,000 figure is simply a cap upon that minimum, and it is not at all reasonable to think an "apportionment" of that cap will assure serious voter support. As to the second argument: The fact that Illinois does not require geographic distribution of support for statewide office is irrelevant. Neither does it require geographic distribution, as such, in these Cook County elections. It does not care if all of the support for the Harold Washington Party, in each district-wide election, comes from a single ward-just as it does not care, in statewide elections, if all of a new party's support comes from a single county. What the law under challenge here reflects is not concern for geographically distributed support, but concern for serious support in each election; and when some of the elections are not at large but by district, the support must exist within each district.

Perhaps there are reasons why Illinois' "complete slate" requirement for political subdivisions is constitutionally invalid. The point might be made, for example, that the absence of any such requirement in statewide elections demonstrates (to take the Court's language erroneously addressed to a different point) that Illinois "deems [the requirement] unimportant," and has no "serious state interest" in it. Ante, at 294. But as American political scientists have known since James Madison pointed it out, see The Federalist No. 10 pp. 62-64 (H. Dawson ed. 1876), the dangers of factionalism decrease as the political unit becomes larger. There is not much chance the State as a whole will be hamstrung by a multitude of so-called "parties," each of which represents the sectional interest of only one or a few districts; there is a real possibility that the Cook County Board will be stalemated by an equal division between "City Party" and "County Party" members. But the litigants here have not addressed whether the "complete slate" requirement is unconstitutional, and I decline to speculate. It must be assumed to be legitimate, in which case there is no basis for saying that 25,000 signatures for each district election (if that is less than 5% of the votes in the prior district election) cannot be demanded. The Court's holding that the case is simply governed by Socialist Workers Party seems to me quite wrong. I respectfully dissent.

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