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  • Writer's pictureOliver Hall

Justice Delayed Is Justice Denied

On April 13, 2023, the Seventh Circuit Court of Appeals issued its mandate confirming dismissal of the oldest pending ballot access case in the nation.


The reason? The Court concluded that the Plaintiffs' claims were moot.


The case was nearly seven years old.


What happened?


In August 2016, Plaintiff David Gill, an Independent candidate for U.S. House in Illinois, and several supporters filed a lawsuit to challenge the constitutionality of Illinois' ballot access requirements. (CCD did not initially represent Gill.)


The Illinois State Board of Elections ("ISBE") had denied Gill ballot access on the ground that he failed to submit enough valid signatures to meet Illinois' requirement -- 5 percent of the voters in the last election, or 10,754 signatures.


Gill submitted 11,348 signatures in total -- more than almost every other candidate nationwide in more than 25,000 U.S. House races in American history.


But his petitions were challenged, and ISBE concluded that only 8,491 signatures were valid. So Gill sued.


On the merits, Gill's claims were as strong as any case we have ever seen.


Illinois' signature requirement is higher than any other state's except Georgia. But unlike Georgia, Illinois only allows candidates 90 days to collect the signatures. That makes Illinois the hardest state in the nation. It's so hard, in fact, that no candidate has overcome its requirements since 1974, and the candidate who did it then had unlimited time, because the 90-day time limit had not been enacted.


This and other evidence practically compels the conclusion that Illinois's requirements are unconstitutional under Supreme Court precedent: they operate to freeze the political status quo; reasonably diligent candidates -- even the most diligent in American history -- cannot comply with them; and less burdensome requirements are plainly sufficient to protect Illinois's regulatory interests.


Not surprisingly, the first District Court judge who heard the case concluded that Gill was likely to prevail and granted an injunction directing ISBE to place Gill on the ballot.


But the Seventh Circuit stayed the injunction, without opinion, and remanded the case back to the District Court. Gill did not appear on Illinois's 2016 general election ballot.


The case was then reassigned to a second District Court judge who upheld Illinois's requirements in December 2018. That judge failed to address almost all of Gill's evidence.


Gill, represented by CCD, appealed to the Seventh Circuit and won in June 2020.


The case was now nearly four years old.


On remand, the case returned to the same District Court judge who upheld Illinois's requirements. The parties filed cross-motions for summary judgment.


In August 2021, after presiding over the remand proceedings for more than a year, the District Court judge recused himself pursuant to 28 U.S.C. 455, which requires recusal whenever a judge's "impartiality might reasonably be questioned," among other reasons. The judge did not specify the grounds for his recusal.


The case was now five years old.


The case was reassigned to a third District Court judge in August 2021. The Chief District Judge then reassigned the case to herself -- the fourth District Court judge to hear the case -- and upheld Illinois's requirements once again on March 31, 2022.


Gill filed his second appeal to the Seventh Circuit in April 2022.


The parties briefed the appeal and the Seventh Circuit held oral argument in December 2022.


Then, in March 2023 -- approximately six years and eight months after Gill filed suit seeking emergency relief in this election law case -- the Seventh Circuit issued its opinion dismissing the case as moot.


Cases are dismissed as moot when, due to the passage of time, there is no longer anything for a court to decide.

But election law cases are a classic example of the "capable of repetition yet evading review" exception to the mootness doctrine. Simply put, elections happen too fast for courts to decide cases arising from them, so courts typically decide election law cases even if the election has passed. Mootness does not apply because if it did, election law cases would almost never be decided.


In fact, that's exactly what the Seventh Circuit concluded when Gill won his first appeal -- the case was not moot because the controversy was capable of repetition yet evading review.


So what changed?


In the nearly seven years since Gill filed suit, Illinois conducted its decennial redistricting, and so the congressional district in which he sought to run in 2016 is no longer geographically the same as it was then. The Seventh Circuit therefore concluded (p.2) that any relief granted "would speak to a congressional district that no longer exists, and Gill's circumstances are not capable of repetition yet evading review."


If there is a bright lining to this otherwise dismal outcome, it is that the Seventh Circuit vacated the District Court decision upholding Illinois's requirements. It's as if this case never happened.


But the fact remains that Illinois's requirements are clearly unconstitutional under Supreme Court precedent.


Unfortunately, after nearly seven years of litigation, we couldn't get a final judgment to that effect. We didn't get any decision at all on the merits of Gill's claims.


Which makes this case yet another demonstration of the old but endlessly applicable adage -- justice delayed is justice denied.

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