No. A-695
Argued: Decided: February 17, 1976
On February 13, 1976, appellants filed an application for a stay of the judgment of the Supreme Court of Illinois entered on January 19, 1976, reversing an order entered by the Circuit Court for the Seventh Judicial Circuit, Sangamon County, Ill., on January 12, 1976, enjoining the defendant officers of the Illinois State Board of Election Commissioners from conducting a lottery for the purpose of assigning ballot positions in accordance with Regulation 1975-2 adopted by the State Board of Elections on November 21, 1975.
Regulation 1975-2 prescribes a lottery system for breaking ties resulting from the simultaneous filing of petitions for nomination to elective office. 1 Appellants [424 U.S. 1309 , 1310] are independent candidates for judicial office who argue that the regulation increases the probability that their names will appear in the bottom portion of the ballot rather than in the middle portion, and therefore that their federal constitutional rights are impaired. 2 This consequence flows from the fact that candidates filing a group petition for the same office are treated as one for lottery purposes.
As I understand the regulation, it also increases the [424 U.S. 1309 , 1311] probabilty that each of the appellants’ names will appear in the top portion of the ballot rather than the middle portion. Thus, the adverse effect of increasing the probabilty of an especially unfavorable position is offset by the beneficial effect of increasing the probabilty of an especially favorable position. 3 Although there may be undesirable consequences of a regulation which permits organization candidates to be grouped in sequence on the ballot, I do not understand the jurisdictional statement to present any question as to the propriety of that feature, in and of itself, of the regulation. The questions presented relate only to the impact of the regulation on the ballot positions of the individual appellants. 4 With respect to that matter, I find insufficient indication of unfairness or irreparable injury to warrant the issuance of a stay against enforcement of the judgment of the Supreme Court of Illinois. Presumably because the questions presented are capable of repetition, appellants [424 U.S. 1309 , 1312] do not suggest that there is any danger that the election will moot the case; accordingly, the stay need not issue to protect our jurisdiction.
