Chancey v. Ill. State Bd. of Elections

635 F.Supp.3d 627

John Matthew CHANCEY, et al., Plaintiffs, v. The ILLINOIS STATE BOARD OF ELECTIONS, et al., Defendants.

No. 22 CV 04043

United States District Court, N.D. Illinois, Eastern Division

Signed October 14, 2022

Jeffrey M. Schwab, Liberty Justice Center, Chicago, IL, for Plaintiffs.

Erin Walsh, Marci L. Sahinoglu, Office of the Illinois Attorney General, Chicago, IL, for Defendants.

MEMORANDUM OPINION AND ORDER

John J. Tharp, Jr., United States District Judge

The plaintiffs challenge two recently enacted provisions of the Illinois Election Code as violative of their First Amendment rights to free speech. Both provisions regulate campaign financing during state judicial elections. The first prohibits judicial candidate committees from receiving any contributions from an out-of-state person. The second caps the amount that any independent expenditure committee established to support or oppose a judicial candidate can receive from any single source during an election cycle at $500,000. The plaintiffs seek to preliminarily enjoin the defendants from enforcing these two provisions during the upcoming November 8, 2022, election, a permanent injunction to the same effect for future election cycles, and a declaratory judgment that these two provisions are unconstitutional. Defendant Illinois Attorney General Kwame Raoul has moved to dismiss the plaintiffs' complaint for failure to state a claim and opposed the plaintiffs' motion for preliminary injunction. For the reasons set forth below, the plaintiffs' motion for a preliminary injunction is granted, and the motion to dismiss is denied because the plaintiffs, having shown they have some likelihood of success on the merits, necessarily have also demonstrated that they have stated a plausible claim for relief.

BACKGROUND

For the most part, state court judges in Illinois are elected officials.¹ The Illinois Election Code regulates various aspects of state and local elections, including campaign financing for judicial elections. See 10 ILCS 5/9-1 et seq. It imposes, inter alia, disclosure, reporting, accounting, and spending requirements and contribution limits for the various kinds of political committees that are formed to support or oppose candidates for office.

Candidates for judicial office in Illinois, like candidates for other elected positions, organize (or designate) candidate political committees to facilitate their campaigns. The Code defines "candidate political committee" as, "the candidate himself or herself or any natural person, trust, partnership, corporation, or other organization or group of persons designated by the candidate that accepts contributions or makes expenditures during any 12-month period in an aggregate amount exceeding $5,000 on behalf of the candidate." 10 ILCS 5/9-1.8. Each candidate can only have one candidate committee.

The Code also regulates other types of political committees that seek to receive, contribute, and spend money to support or oppose candidates in state and local elections. See 10 ILCS 5/9-1.8(a)-(f) (defining the types of political committees governed by Art. 9 of the Code). One such type of committee is an "independent expenditure committee," or IEC. As the name implies, IECs are formally independent from the candidate committees, and they are subject to special rules. By definition, they exist either to make "independent expenditures" in support of or opposition to candidates or public policy positions, or to make electioneering communications on those subjects to voters. 10 ILCS 5/9-1.8(f). "Independent expenditures" cannot be made in concert with the candidates' campaigns or political committees. 10 ILCS 5/9-1.15. Electioneering communications are subject to the same restriction. Id. Under no circumstance may an IEC "give any money directly to a candidate committee." Compl. ¶ 31 (citing 10 ILCS 5/9-8.5(b)).

Election Code Provisions at Issue

The Illinois legislature recently made a series of changes to the Election Code. Two of those changes are at issue in this case, and they only come into effect during judicial elections. They reflect Illinois' decision to treat some aspects of fundraising for judicial elections differently from fundraising for executive or legislative elections.

First, enacted on November 15, 2021, Illinois Senate Bill 536 (Public Act 102-0668) amended the Code by prohibiting any judicial candidate political committee from "accept[ing] contributions from any out-of-state-person . . ." 10 ILCS 5/9-8.5(b-5)(1)(B).²,³ The statutory amendment provides that any "political committee that receives a contribution in violation of this Section" must dispose of or return the contribution, or else the contribution escheats to the State's General Revenue Fund and the committee will be "subject to a civil penalty not to exceed 150% of the total amount of the contribution." 10 ILCS 5/9-8.5(j). The Code only distinguishes between in- and out-of-state contributions to candidate committees for the purposes of judicial elections; there is no bar to out-of-state contributions to candidate committees in executive or legislative elections. No provision of the Code prohibits out-of-state persons from contributing to other types of political committees involved in judicial elections, e.g., political party committees or IECs.

Second, enacted on May 27, 2022, Illinois House Bill 0716 (Public Act 102-0909) added a provision prohibiting any "independent expenditure committee established to support or oppose a candidate seeking nomination, election, or retention to the Supreme Court, the Appellate Court, or the Circuit Court" from "accept[ing] contributions from any single person in a cumulative amount that exceeds $500,000 in any election cycle." 10 ILCS 5/9-8.5(b-5)(1.2). Section 9-8.5(b-5)(1.2) of the Code further provides that "[a]ny contribution [to an IEC by a single person] in excess of [$500,000 in an election cycle] shall escheat to the State of Illinois." IECs are required to immediately forward any amount received by an individual that exceeds $500,000 to the State Treasurer who shall deposit the funds into the State Treasury. 10 ILCS 5/9-8.5(b-5)(1.2). In contrast, the Code does not restrict the amount of money that an IEC established to support or oppose a candidate running for a non-judicial office may receive from any single person.

Other Relevant Portions of the Election Code

Since these new provisions are embedded within a complicated framework of campaign financing, spending, and disclosure rules, it is necessary to understand how they interact with preexisting rules. First, the Code imposes general limits on the amounts that donors may contribute directly to a candidate committee (as distinguished from an IEC) for all races, including judicial races. Those limits are: $5,000 from any individual; $10,000 from any corporation, labor organization, or association; and $50,000 from a candidate political committee or political action committee.⁴ 10 ILCS 5/9-8.5(b). There is no limit, however, to how much political party committees may contribute to candidate committees during general elections (except during primary elections). Compl. ¶ 31 (citing 10 ILCS 5/9-8.5(b)).

The Code lifts these limits on direct contributions to candidate committees in two circumstances. The Court will refer to these as the "self-funding waiver" and the "independent-expenditure waiver," respectively. In both of these circumstances, the Board notifies all candidates running in the race that these waivers have been triggered, and the 10 ILCS 5/9-8.5(b) direct contribution limits (discussed in the preceding paragraph) are lifted for all candidates in that race. In non-judicial races, both of these waivers remove any limit on direct campaign contributions. In judicial races, however, the degree to which the contribution limits are lifted depends on which waiver is triggered.

The self-funding waiver is triggered when a candidate or his immediate family contributes to the candidate's committee during the 12 months prior to an election (i.e., a candidate self-funds) in an aggregate amount of more than (i) $250,000 for statewide office or (ii) $100,000 for all other elective offices. 10 ILCS 5/9-8.5(h). The Code does not treat any judicial office as a "statewide office." See 10 ILCS 5/9-8.5(k). Therefore, once a judicial candidate self-funds in excess of $100,000, the self-funding waiver kicks in, and candidate committee contribution limits increase for that race. In judicial elections, the $5,000 (individual), $10,000 (corporation, union, association), $50,000 (candidate committee or PAC) candidate committee contribution limits are increased to $500,000 regardless of the category of contributor. See 10 ILCS 5/9-8.5(b-5)(1.1).⁵ For non-judicial races, the triggering of the self-funding waiver lifts the contribution limits entirely, i.e., anyone can then make unlimited contributions to the candidate committees. See 10 ILCS 5/9-8.5(h).

The independent-expenditure waiver is triggered when an individual or IEC makes independent expenditures in support of or in opposition to a candidate in an aggregate amount of more than (i) $250,000 for statewide office or (ii) $100,000 for all other elective offices in an election cycle. 10 ILCS 5/9-8.5(h-5). Again, the Code does not treat any judicial office as a "statewide office." Therefore, when an individual or IEC spends $100,000 or more in support of or in opposition to a judicial candidate, the independent-expenditure waiver kicks in, and candidate committee contribution limits are completely removed for that judicial race. Id. In other words, anyone (except an IEC) can make unlimited contributions directly to the candidate committee when the independent-expenditure waiver kicks in.

The Code also contains numerous provisions aimed at increasing transparency in campaign financing. Some apply to all elections, and some are geared toward judicial elections specifically. The Code requires...