An interesting state trial court ruling from Illinois last week, in Colazzo v. Illinois State Board of Elections, illustrates the complex nature of the law surrounding ballot access, a topic that is of particular importance in election years.
The background for Colazzo is a bit technical but mostly straightforward. Under state law, candidates from major parties for the 2024 elections for the lower branch of the state legislature were permitted to start circulating nominating petitions (to collect signatures of support from party members) in September of 2023, and then were required to file their nominating papers (showing they were eligible and had the requisite support to participate in the party primary) with the State Election Board at the end of November or the beginning of December 2023. The Illinois primary election was then held on March 19, 2024. Now the complexity: Under preexisting state statutes (those in effect in the fall of 2023 and at the time of the March 2024 primary), if there were no party candidates who sought to be on or qualified for the primary election, then a committee from that party could select a candidate to represent the party on the general election ballot, provided the committee did so within 75 days after the primary. But in May of 2024, the Illinois legislature passed, and Governor JB Pritzker signed into law, an amendment of the relevant statutes, removing that party-committee-nomination option, that is, eliminating a party’s ability to put up someone for the general election ballot in the event that no one from a party ran at primary election stage. The new law was set to take effect immediately—i.e., to the 2024 election cycle—even though various key events in that cycle (petition circulation, nomination paper filing, the holding of a primary, etc.) had already taken place.
Various Republican would-be general-election candidates sued. In the districts they wanted to represent, no Republicans had run in the primary, but these plaintiffs were seeking to be appointed by a Republican Party Committee to represent the Party in the fall 2024 general election. If the new law prevented the Party from filling the vacancy after the primary election had already occurred, Republicans would have no one from their Party on the ballot for these districts come the November election.
The plaintiffs sought a declaration that applying the new law to them (preventing them from being able to be selected by the Party for the fall election) would violate Article II, section 1 of the 1970 Illinois constitution, and an injunction preventing election officials from excluding the plaintiffs from the fall 2024 ballot on account of the recent statutory amendments.
Last week, a state trial judge granted the plaintiffs a declaration that the statutory amendments, as applied to them, “are unconstitutional,” and an injunction preventing state election officials from invoking the amendments as a basis for denying the plaintiffs spots on the fall ballot.
The reasoning of the opinion (though rather sparse) is intuitive and appealing. Because the party-committee-nomination option (as distinct from the primary-election option) was available during the nomination period and even when the primary election was held, it is unfair, and violates notions of fair notice and reasonable reliance, to apply the new amendments to the current election cycle. Although the court was not explicit on this point, the reasoning seems to be: Had the Republican Party and its backers known the party-committee-nomination route was not going to be available, they might have tried harder to recruit plausible folks to participate in the March primary contest.
All of that is pretty commonsensical. Nonetheless, the opinion is quite interesting in at least three respects. First, it highlights how cavalier state courts continue to be about making clear whether their decisions rest on independent and adequate state law (as distinguished from federal law) grounds. If the trial court order in Colazzo were to be affirmed without opinion (or fully adopted en toto) by the Illinois appellate courts up the ladder, and the state Board of Elections then sought review in the U.S. Supreme Court, tricky questions would arise concerning whether the U.S. Supreme Court could take up the matter. Absent extraordinary circumstances not present here, the U.S. Supreme Court has no authority to correct misinterpretations of state-law (as distinguished from federal-law) questions, and the plaintiffs in Colazzo seem to have brought claims under the state constitution only (and not the U.S. Constitution). But the Colazzo trial court order never even mentioned the state constitution (much less any of its particular provisions) when describing the declaratory and injunctive relief it granted. (Indeed, the only reference to the state constitution is in the first paragraph when the court describes what plaintiffs seek.) More problematically still, the analysis of the Colazzo court drew heavily on standards of review and other doctrinal formulations plucked explicitly from U.S. Supreme Court cases that involved application of the U.S., and not state, constitutional provisions.
For this reason, it is not clear to an outside observer that the meaning of the Illinois constitution (as understood by the Colazzo court) is “independent” of the meaning of the U.S. Constitution. In other words, if one were to conclude that the Colazzo court misunderstood the U.S. Supreme Court cases that the judge invoked and drew upon, then it is possible that correcting that mistake quite possibly could lead to a different outcome under the state constitution. When state law is dependent on the meaning of federal law, in that the meaning of state law invariably tracks the meaning of federal law, the U.S. Supreme Court can (and in some instances should) take review to clarify the meaning of the predicate federal law.
To be fair, the Colazzo court did cite to some state as well as federal cases. But of the two state cases the judge principally relied upon, one of them itself (even though it was a state court ruling) involved claims brought predominantly or exclusively under the federal Constitution. This too undermines the notion that the content of Illinois constitutional law is meaningfully separate from the content of federal law.
The U.S. Supreme Court, in the seminal case of Michigan v. Long four decades ago, tried to solve this problem of state-court inscrutability on the question whether the state court’s ruling rested on “independent” state law grounds. The Court said that it did not want to be in the business of consulting the state court opinions that are themselves cited in the state decision as to which review is sought—the way I did above—and doing other research into the meaning of state law itself, because that approach “requires [the U.S. Supreme Court] to interpret state laws with which [it is] generally unfamiliar, and which often . . . have not been discussed at length by the parties.” “Accordingly,” the Court in Long declared:
when a state court decision fairly appears to rest primarily on federal law, or to be interwoven with federal law, and when the adequacy and independence of any possible state law ground is not clear from the face of the opinion, this Court will accept as the most reasonable explanation that the state court decided the case the way it did because it believed that federal law required it to do so.
This clear-statement rule (the notion that a state court need include on the face of the opinion a clear statement of adequacy and independence of the state law grounds) has not always made the problem go away, for several reasons. One is that state courts (perhaps carelessly and perhaps sometimes intentionally, so as to blur accountability to state polities) often fail to heed Long’s admonitions, with the result being the U.S. Supreme Court may end up issuing some federal rulings that have no real-world effect in the cases at hand because after the U.S. Supreme Court has spoken and sent the cases back to the state courts, it is only at that point that the state courts eschew any dependence on federal law and go their own way under state law. Another reason is that the trigger for the application of Long’s plain-statement requirement—that the state court opinion “fairly appears to rest primarily on federal law, or to be interwoven with federal law”—is itself susceptible of differing interpretations. The virtue of a well-crafted plain-statement rule is that it becomes an easy sorting tool, but if the trigger for a plain-statement rule itself generates disagreement and controversy, then the tool has not achieved its goal of efficient case processing. (Things would be different, for example, if the Long Court had said something more mechanical, like, “whenever a state court ruling cites any federal precedent construing federal law, a plain statement of adequacy and independence of state-law grounds is required to avoid U.S. Supreme Court review,” that kind of trigger is easy to understand and apply.)
In Colazzo, at least a decent argument can be made that the Illinois state trial court decision (and of course I recognize that the state appellate courts could refine and clarify the analysis on appeal) “fairly appears to rest primarily on federal law,” or more compellingly still, “fairly appears . . . to be interwoven with federal law.” And yet there is no clear statement by the Colazzo court that the decision in the case is grounded on independent Illinois law.
A second interesting feature of the case becomes plain when we examine the merits of the Republicans’ claim. The concerns the Colazzo court identified, relating to fair notice with respect to placing one’s preferred candidate on the ballot, seem (as noted above) forceful. In this regard, the Colazzo ruling dovetails with the so-called Purcell doctrine, a somewhat controversial but seemingly stable rule, that holds that it is nearly always problematic for the lower federal courts (and perhaps the U.S. Supreme Court itself) to grant remedies in cases involving voting and ballot access too close (an ill-defined concept to be sure) in time to a scheduled election. The Purcell principle, which applies to and constrains the federal judiciary and prevents federal judges from effectively altering election rules in the runup to Election Day, is rooted in federal equity practice and explained largely by reference to principles of fair notice, the reasonable expectations of voters and campaigning candidates, and smooth election administration. The Colazzo case suggests that, at least in some instances, Purcell-like considerations constrain not only federal judges, but also state legislatures, from altering election rules too close in time to a scheduled election, whether those constraints on the legislature come from state constitutions or (perhaps) the federal Constitution.
But, and this is my third point, the Purcell instinct cannot be absolute. Sometimes changes in election administration close in time to a scheduled election are needed to maintain basic integrity and functionality of democracy, even if some candidates and voters are adversely affected in some ways. Think back to COVID spikes in 2020 (pre-vaccines); changing balloting rules shortly before Election Day to permit people who were (understandably) frightened away from crowded polling precincts, to enable these voters to return their ballots in other ways and still maintain public health, may have impaired the campaign strategies of some candidates, but these tweaks seemed fully necessary and proper to further the compelling goal of minimally acceptable voter turnout. In this regard, I have two concerns about the reasoning of the Colazzo court. One is that the court didn’t really place any emphasis on a point that I find very compelling—namely, that if the May 2024 amendments in Illinois were allowed to go into effect, then the November election would be a complete sham in the districts in question (even more so than general elections are in a world of aggressive partisan gerrymandering), because one major party would not even be on the ballot. Single-party elections are commonplace in other countries, but they don’t seem to align with American notions of what constitutional democracy entails. I think the absence of any competition in the fall makes the defendant’s position in Colazzo all the more untenable, and that fact should have been highlighted.
The other qualm I have about the Colazzo court’s reasoning cuts the other way, and relates to the court’s treatment of the state’s interest in adopting the amendments in the first place. The attorneys for the defendants asserted that “the government’s interest at issue is the need to prevent political insiders [Party Committees] from having control over which candidates are slated [to appear on general-election ballots] and to ensure that the voters, and only the voters, make this determination.” The court pooh-poohed this defense simply by saying even if the government’s interest in this regard were compelling, the legislature’s interest could have been accomplished by less restrictive means by simply making the amendments operative in future election cycles only.
As I have noted above, when the relevant factors are weighed, I think the Colazzo court reached the correct result (and I expect it will withstand any appeal.) But the generic idea that the government doesn’t lose anything by being unable to apply its (enlightened) election rules to any particular election is wrong-headed. If (and the court assumed this to be the case) eliminating politicians from slating candidates is a worthy goal, it is a worthy goal not just for out-year elections, but for every election. Again, I think that goal has to be weighed in the 2024 cycle against concerns about fairness and notice, but one problem with the Purcell doctrine is that it (in isolation, at least) pays insufficient attention to the importance of each and every election. Even if flaws in election-law regimes can be ironed out in future elections, damage to democracy is incurred in the meantime, something neither the Purcell doctrine nor the Colazzo court seems fully to appreciate. (For much more on the Purcell doctrine and the ways in which rules about access to federal court can and should be tweaked to compensate for or offset the problems Purcell creates, readers can consult this draft article that is set to be published later this year.)
