| In
Buckley V. American Constitutional Law Foundation, 119
S.Ct.636 (Jan. 12, 1999), the
United States Supreme Court held that a Colorado state law
requiring that a circulator for a
ballot petition be a registered voter was unconstitutional. In
October, 1997, I entered summary
judgment against plaintiffs in this case on a similar
claim. Because that decision did not resolve all claims in the
case final judgment was not
entered.1 Thus, despite the fact that plaintiffs have filed
the present motion pursuant to
Rule 60(b), Fed. R. Civ. P., since no judgment was entered
Rule 60 is not applicable. WRIGHT,
MILLER and KANE, 11 FEDERAL PRACTICE & PROCEDURE, § 2852
at 233 (1995). Since the earlier
decision was only interlocutory, if subsequent law shows
that it was wrong, it should be corrected. On
the merits, I am compelled to conclude that plaintiffs are
correct. My earlier decision
cannot be reconciled with the Supreme Court's decision in Buckley.
Indeed, the dissenters in Buckley
essentially have so stated. E.g., Chief Justice
Rehnquist stated, citing the Illinois law in question here,
that under Buckley, "it would
seem that a State can no longer impose an elector or residency
requirement on those who
circulate petitions to place candidates on ballots,
either." Id. at 661. Thus,
while plaintiffs, who did not cite the Tenth Circuit decision
in Buckley in their briefs
on the cross motions for summary judgment before me in 1997,
presumably thought the two cases
were governed by different principles at the time, I cannot
ignore the decision by the Supreme Court. Defendants do argue
that the cases are distinguishable.
It seems clear, however, that if being a registered voter is
not a permissible limitation on a
ballot petition circulator, it is no more acceptable for a
candidate petition circulator. In both cases, less restrictive
means will accomplish any state
regulatory purpose. Defendants also argue that the Supreme
Court considered the factual
circumstances relevant to its decision and that plaintiffs
have not made the same factual showing here. I agree that the
Court looked at the facts
surrounding Colorado's regulation of voter initiative
petitions in reaching its
decision. However, defendants have not begun to show that the
factual circumstances here would lead to
a different conclusion First, similar to the
facts relied on by the Court in Buckley, the U.S.
Department of Commerce, Bureau of
Census, Statistical Abstract of the United States, 289, table
463, indicates only 63 percent of
the voting-age population in Illinois was registered to vote
in 1994, excluding 3,167,570
unregistered persons of voting age from circulating candidate
petitions. Compare Buckley, 119
S.Ct. at 643 and n.l5. Furthermore, as in Buckley,
the defendants can police circulators by
the fact that they list their addresses on the
affidavits they file with their petitions. Id. at 644.
See Lucas V. Lakin, 175 Ill.2d
166, 676 N.E.2d 637, 221 Ill. Dec. 834 (1997). Thus, judgment
will be entered for plaintiffs on
plaintiffs' claim that requiring candidate circulators to be
registered to vote violates plaintiffs'
rights under the First and Fourteenth Amendments
to the United States Constitution.
ENTER ORDER:
Dated: July 3, 1999
Elaine E, Bucklo, U.S. District Judge
1. The
parties stated that they were settling the other claims. After
several status hearings at which
they asked for more time, and a last one in which they represented
they would be submitting an agreement shortly, this court did
not set a further date. The
parties never submitted the agreement and this court failed to
catch that fact. With this order
final judgment will be entered dismissing all other claims.
Plaintiffs have had the benefit of
extensive time to pursue their case and have not done so.
The remaining claims are therefore dismissed for want of
prosecution.
Top
of Page
|
