Lamone v. Schlakman

Greene, J. This case involves a challenge under the election law article to a candidate’s qualifications to appear on the ballot. See Md. Code Ann., Elec. Law § 12-202 (a) (2002, 2010 Repl. Vol., 2016 Supp.).

Ian Schlakman and Frank Richardson (Appellees), along with Dan Sparaco, were among the candidates in the 2016 General Election vying for a seat representing Council-manic District Twelve on the Baltimore City Council. 1 Appel-lees challenged the decisions of the Baltimore City Board of Elections (“City Board”) to certify Mr. Sparaco as an eligible candidate and the State Board of Elections (“State Board”) to include him as a candidate for the District Twelve seat on the 2016 General Election ballot. They maintained that Mr. Spara-co’s failure to comply with statutory filing requirements in a timely manner disqualified him from running for election as a candidate for the District Twelve vacancy. Appellees sought to have the City Board withdraw its certification of Mr. Sparaco’s candidacy and the State Board strike his name from the ballot. When the relief they sought was not forthcoming, Appellees went to court.

Appellees initially challenged Mr. Sparaco’s qualifications in court by filing on August 25, 2016 an action against the State Board of Elections in the United States District Court for the District of Maryland, seeking an injunction “prohibiting ... [the] State Board from violating Maryland Law” and other relief. The federal court dismissed Appellees’ lawsuit out of hand because then counsel had not been admitted to practice before the federal court. On September 20, 2016, Appellees then filed the instant action in the Circuit Court for Anne Arundel County against Linda H. Lamone and Armstead B. C. Jones, Jr., in their ⁴⁷⁴ official capacities as the Administrator of the State Board of Elections and Election Director of the Baltimore City Board of Elections, respectively. See Md. Code Ann,, Elec.

Law § 6-209(a) (2002, 2010 Repl. Vol., 2015 Supp.); Elec. Law § 12-203(a)(8). On September 22, after notifying the Boards’ counsel, Appellees submitted an ex parte request for an immediate temporary restraining order.

See Md. Rule 15-504. The Circuit Court granted the request on September 22 and issued the temporary restraining order directing Appellants to remove Mr. Sparaco’s name from ballots and granting further relief. On September 23, Appellants filed direct appeals both to the Court of Special Appeals as well as this Court. See Elec.

Law § 12-203(a)(3). On that date, this Court entered an order staying both the temporary restraining order and all further Circuit Court proceedings pending our review. On September 27, Appellants filed a “Petition for Certiorari and Request for Expedited Review,” On October 6, we granted certiorari, before consideration of the direct appeal by the Court of Special Appeals. Lamone, et al. v. Schlakman, 450 Md. 214 , 147 A.3d 393 (2016).

We also allowed Appellants’ request for expedited review and heard oral argument on October 18, following which we entered an order lifting the stay, vacating the temporary restraining order, and remanding the case to the Circuit Court with instructions to dismiss the complaint. Id. The mandate issued forthwith, and we now explain the reasons for our decision. 2 Issue Appellants have advanced the following question for our review: ⁴⁷⁵ Did the circuit court err in entering an ex parte temporary restraining order that requires the defendants to remove the name of a qualified candidate from the ballot in Baltimore City Councilmanic District No. 12 for the 2016 General Election? For the reasons set forth below, we agree that the temporary restraining order was granted in error.

Appellees’ state court challenges to the State Board’s and City Board’s actions were untimely and are barred by laches. Moreover, Appellees have not demonstrated any basis for relief on the merits under any theory of action or avenue for relief. The City Board’s certification of Mr. Sparaco as a qualified candidate, and the State Board’s listing of his candidacy, complied with the provisions of the Election Law Article. Background The operative facts are not in dispute. 3 Ian Schlakman was the Green Party candidate for the District Twelve Council-manic seat on the Baltimore City Council.

Frank W. Richardson and Dan Sparaco were independent candidates for the same vacancy. By February 3, 2016, Appellees Schlakman and Richardson had each filed a declaration of intent or certificate of candidacy with the Baltimore City Board of Elections, filings that were required of them as part of the process by which each would qualify for a place on the ballot for the District Twelve seat. See generally Elec. Law §§ 5-301(a), (d); COMAR 33.01.06.01B(2) (definition of “candidate filing document” includes certificate of candidacy and declaration of intent).

Anticipating a run for the District Twelve seat, Dan Sparaco formed a candidate committee in September 2015, and filed his campaign finance report with the State Board of Elections on January 13, 2016. See Elec. Law § 13-202. He did not file his declaration of intent by February 3, however.

Instead, on May 20, 2016, Mr. Sparaco filed suit in the United States District ⁴⁷⁶ Court for the District of Maryland, challenging the constitutionality of the early filing deadline for unaffiliated candidates. 4 Sparaco v. Lamone, No. 1:16-cv-1579-GLR (D. Md). Mr. Sparaco voluntarily dismissed this suit on August 15, 2016. On July 11, 2016, Mr. Sparaco filed with the City Board his declaration of intent to seek nomination by petition for the District Twelve seat. On August 2, the City Board approved the petition signatures that had been submitted by Mr. Spara-co, and certified his candidacy pursuant to Elec.

Law § 6-208(b)(1), which governed the certification of petitions. 5 The State Board included Mr. Sparaco’s name on the ballot and on August 31 posted on its website ballot proofs that included his name, as well as those of Appellees. On August 25, 2016, Appellees filed suit in the United States District Court for the District of Maryland, seeking to enjoin ⁴⁷⁷ what they perceived as the State Board’s violation of the Maryland Election Law. Schlakman et al. v. Md. State Bd. of Elections, No. 1:16-cv-02968 (D. Md.). They complained that the State Board was effectively rewriting the statute’s candidate filing deadline by including Mr. Sparaco’s name on the ballot, and that the State Board’s actions had harmed their campaign for the contested seat because they would be forced to “compete in an election against an ineligible candidate.” Appellees’ federal suit was dismissed on September 20 because their former attorney was not admitted to the bar of that court.

The district judge ordered all pleadings stricken, noting that the clerk had not been authorized to accept any previous filings, and prohibited the clerk from receiving the complaint and “all subsequent filings.” See D. Md. Loe. Adm. R. 101.1(a), (b)(i), (ü), 102.1(a)(i) (D. Md.). The action before us was docketed on September 20 in the Circuit Court for Anne Arundel County. 6 Appellees contested the Boards’ actions pursuant to Elec.

Law §§ 6-209 and 12-202(a). In an eight-count complaint, they sought declaratory and injunctive relief, as well as the issuance of a writ of mandamus and a temporary restraining order which would “require that [Appellants] remove the name of Dan Sparaco from any and all ballots to be distributed to voters in Baltimore City Councilmanic District No. 12 for the 2016 General Election.” On September 20, Appellees’ attorney notified counsel for the Boards that they would be filing a motion for a “TRO/preliminary injunction” in the Circuit Court. 7 Appellees ⁴⁷⁸ served the Boards’ counsel with the TRO motion and accompanying documents on September 21. On September 22, 2016, the Circuit Court issued the temporary restraining order that is the subject of this appeal. The court found that there were “no material facts in dispute.” The court also concluded: 3. [The] Court finds that Plaintiffs, registered voters and candidates for the Baltimore City Council in Councilmanic District No. 12, have raised a substantial question concerning whether Defendants are violating Maryland law by their including the name of Dan Sparaco as a candidate for Baltimore City Council in Councilmanic District No. 12 on ballots to be distributed to voters for the 2016 General Election. [The] Court further finds that the Defendants’ actions, unless restrained, may act in contravention of the Plaintiffs’ claimed rights before this Court has had the opportunity to determine those rights and effectively moot this case. [The] Court finds that this outcome would harm Plaintiffs’ legitimate interests.

The Court further finds that this harm will be immediate, substantial, and irreparable. * ⅜ * 5. Accordingly, Linda H. Lamone, in her official capacity as State Administrator, Maryland State Board of Elections, and Armstead B. C. Jones, Sr., in his official capacity as Election Director, Baltimore City Board of Elections (collectively “Defendants”) are ORDERED to remove the name of Dan Sparaco from any and all ballots to be distributed to ⁴⁷⁹ voters in Baltimore City Councilmanic District No. 12 for the General Election and ENJOINED from distributing to voters any ballot containing the name of Dan Sparaco as a candidate for election in the 2016 General Election. FURTHER, those working under Defendants’ direction and in concert with them shall be and hereby are ENJOINED temporarily to take any action to frustrate or impede this relief. This appeal and our grant of certiorari followed.

Schlakman, 450 Md. at 214 ,147 A.8d at 898 (2016). Discussion Standards of Review We review the Circuit Court’s decision to issue a temporary restraining order for an abuse of discretion. See Schisler v. State, 394 Md. 519, 534 , 907 A.2d 175, 185 (2006). See generally LeJeune v. Coin Acceptors, Inc., 381 Md. 288, 300-01 , 849 A.2d 451, 458-59 (2004) (reviewing a preliminary injunction).

To the extent the Circuit Court’s exercise of discretion is based on an interpretation of law, that aspect of the ruling below is reviewed de novo, because “even with respect to a discretionary matter, a trial court must exercise its discretion in accordance with correct legal principles.” LeJeune, 381 Md. at 301 , 849 A.2d at 459 (citation and internal quotation marks omitted); see Cabrera v. Penate, 439 Md. 99, 106 , 94 A.3d 50, 54 (2014) {de novo review of circuit court’s interpretation of Election Law Article). We review the factual findings of the lower court for clear error. See Toms v. Calvary Assembly of God, Inc., 446 Md. 543, 551 , 132 A.3d 866, 871 (2016) (citations and quotation marks omitted), The above standards of review govern appellate review of all interlocutory injunctions. Cf.

Fritszche v. Md. State Bd. of Elections, 397 Md. 331, 340 , 916 A.2d 1015, 1020 (2007) (addressing four factors to determine whether TRO should issue); Schisler, 394 Md. at 534 , 907 A.2d at 175 (applying the four factors in review of TRO); In re Kimmer, 392 Md. 251 , 260 n. 13, 896 A.2d 1006 , 1012 n. 13 (2006) ⁴⁸⁰ (stating that to determine “whether to issue a temporary restraining order, the trial court must examine and find four factors[.]”). “[W]here the issue is whether a party is precluded by laches from challenging an action of another party, we shall review the trial court’s ultimate determination of the issue de novo[.]” Liddy v. Lamone, 398 Md. 233, 248-49 , 919 A.2d 1276, 1286-87 (2007). Timeliness of Challenge Appellees sought review of the City Board’s actions pursuant to Elec. Law §§ 6-209(a) and 12-202. Appellants initially responded that Appellees may not rely on Elec.

Law § 6-209 to attack the candidacy of Mr. Sparaco. Title 6 of the Election Law Article governs petitions, including petitions in support of a candidate’s nomination. See Elec. Law § 6-208(c)(l).

Subtitle 2 governs the content of petitions, determinations as to their format or the sufficiency of local law or charter amendment on a ballot, validation of signatures and affidavits of petition circulators, the processes for filing, and the final determination of the sufficiency of the petitions. Further, Subtitle 2 affords judicial review to challenge determinations with respect to petitions and time limitations for fifing for judicial review. See Elec. Law §§ 6-201-6-210.

Elec. Law § 6-209 provides: § 6-209. Judicial Review. (a) In general— (1) A person aggrieved by determinations made under § 6-202, § 6-206, or § 6-208(a)(2) of this subtitle may seek judicial review: (i) in the case of a statewide petition, a petition to refer an enactment of the General Assembly pursuant to Article XVI of the Maryland Constitution, or a petition for a congressional or General Assembly candidacy, in the Circuit Court for Anne Arundel County; or (ii) as to any other petition, in the circuit court for the county in which the petition is filed. ⁴⁸¹ (2) The court may grant relief as it considers appropriate to assure the integrity of the electoral process.

(3) Judicial review shall be expedited by each court that hears the cause to the extent necessary in consideration of the deadlines established by law. (b) Declaration relief.—Pursuant to the Maryland Uniform Declaratory Judgments Act and upon the complaint of any registered voter, the circuit court of the county in which a petition has been or will be filed may grant declaratory relief as to any petition with respect to the provisions of this title or other provisions of law. By its terms, Elec. Law § 6-209 applies to determinations made with respect to the validity or sufficiency of petitions and their supporting documentation, and does not address the specific qualifications or eligibility of a candidate.

Moreover, even if Title 6 provided an avenue to Appellees for their challenge to Mr. Sparaco’s candidacy, their complaint was filed in the wrong court and came too late. See Elec. Law § 6-209(a)(l)(ii). Elec.

Law § 6-210 sets forth various deadlines in the petition process, and provides the following deadlines for seeking judicial review: § 6-210. Schedule of process. *** (e) Judicial review—(1) Except as provided in paragraph (2) of this subsection, any judicial review of a determination, as provided in § 6-209 of this subtitle, shall be sought by the 10th day following the determination to which the judicial review relates. (2)(i) If the petition seeks to place the name of an individual or a question on the ballot at any election, except a presidential primary election, judicial review shall be sought by the day specified in paragraph (1) of this subsection or the 63rd day preceding that election, whichever day is earlier, (ii) If the petition seeks to place the name of an individual on the ballot for a presidential primary election in accordance with § 8-502 of this article, judicial review of a determination made under § 6-208(a)(2) of this subtitle ⁴⁸² shall be sought by the 5th day following the determination to which the judicial review relates. Although the City Board certified Mr. Sparaco’s petition pursuant to then Elec.

Law § 6—208(b)(1), Elec, Law § 6-209 does not provide a remedy for Appellees to challenge Mr. Sparaco’s candidacy based on their assertion that he failed to adhere to the deadlines for filing his candidacy documents. Appellees were required to pursue their challenge pursuant to the statutory provision, Elec, Law § 12-202, that was enacted to provide relief “from any act or omission relating to an election!)]” Section 12-202 of the Election Law Article governs judicial challenges to certain irregularities in relation to an election; it provides “judicial redress for any act or omission that violates the Election Law Article!)]” Ross v. State Board of Elections, 387 Md. 649, 667-68 , 876 A.2d 692, 703 (2005). It “is the mechanism for challenging the qualifications of a candidate seeking election!)]” Cabrera v. Penate, 439 Md. at 109 , 94 A.3d at 56 . Elec, Law § 12—202(b) by its terms, affords a party the opportunity to challenge irregularities as elaborated in Elec, Law § 12-202(a) by “seeking] judicial relief ... in the appropriate circuit court[,]” and constitutes general judicial review authority when no other Election Law provisions apply.

Cf. Citizens Against Slots at the Mall v. PPE Casino Resorts Maryland, LLC, 429 Md. 176, 190 , 55 A.3d 496, 505 (2012) (Elec, Law §§ 12-201 through 12-203 authorize judicial review and appeal in absence of other judicial review provisions in Election Law Article). Section 12-202 provides: § 12-202. Judicial challenges.

(a) In general.—If no other timely and adequate remedy is provided by this article, a registered voter may seek judicial relief from any act or omission relating to an election, whether or not the election has been held, on the grounds that the act or omission: ⁴⁸³ (1) is inconsistent with this article or other law applicable to the elections process; and (2) may change or has changed the outcome of the election. (b) Place md time of filing.—A registered voter may seek judicial relief under this section in the appropriate circuit court within the earlier of: (1) 10 days after the act or omission or the date the act or omission became known to the petitioner; or (2) 7 days after the election results are certified, unless the election was a gubernatorial primary or special primary election, in which case 3 days after the election results are certified.[ 8 ] Relying on Elec. Law § 12—202(b)(1), Appellants contend that Appellees acted too late to seek declaratory, injunctive and mandamus relief in the circuit court because their complaint fell outside of the ten-day “window” afforded by Elec. Law § 12—202(b)(1) for a challenger to seek a remedy for acts or omissions relating to an election.

They also aver that Appellees’ challenge is foreclosed by laches. Seeking to avoid procedural default, Appellees insist that the filing of their federal action “within 10 days of their becoming aware” of the allegedly improper certification of Mr. Sparaco as a candidate for the District Twelve seat tolled the running of the Section 12-202(b)(l) limiting period. Appellees accordingly urge this Court to credit their filing in the United States District Court under the savings provision of Maryland Rule 2-101(b), which elaborates when a federal filing may be deemed to be timely filed in our courts. They also maintain that their filing for a writ of mandamus excuses any delay in their judicial challenge because the limitations period set forth in Elec.

Law § 12-202(b) does not apply. ⁴⁸⁴ As noted, Elec. Law § 12—202(b)(1) requires a challenge to be made “10 days after the act or omission or the date the act or omission became known to the petitioner!.]” Yet, “[b]ecause the action [before us is] an equitable one, however, laches, rather than direct application of the statutory time period, [is] the proper focus.” Fraternal Order of Police v. Montgomery County, 446 Md. 490, 509 , 132 A.3d 311, 332 (2016) (discussing Ross, 387 Md. at 668-70 , 876 A.2d at 704-05 ). See also Md. Rule 2-323 (recognizing laches as an affirmative defense). Notwithstanding the equitable nature of Appel-lees’ claims and the relief they seek, we may gauge their delay against the statutory limitations period because “courts sitting in equity will apply statutory time limitations in determining, at least as an outside limit, whether laches has run.” Fraternal Order of Police, 446 Md. at 509 , 132 A.3d at 322 (citing Ross, 387 Md. at 670 , 876 A.2d at 704-05 ).

In Salisbury Beauty Schools v. State Board of Cosmetologists, we said: [L]aches is an inexcusable delay, without necessary reference to duration, in the assertion of a right, and unless mounting to the statutory period of limitations, mere delay is not sufficient to constitute laches, if the delay has not worked a disadvantage to another. Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 63 , 300 A.2d 367, 385 (1973). The following observation by this Court in Stevens v. Bennett, 234 Md. 348 , 199 A.2d 221 (1964) comes to mind: The authorities indicate that even when the remedy for a claimed right is only in equity the period of limitations most nearly apposite at law will be invoked by an equity court, provided there is not present a more compelling equitable reason—such as fraud or other inequitable conduct which would cause injustice if the bar were interposed—why the action should not be barred. 34 Am. Jur.

Limitation of Actions Sec. 60; 53 C.J.S. Limitations of Actions § 36; 30 C.J.S. Equity § 131; Wood, Limitations (4th Ed.), Sec. 59; 79 U. op PA. L. Rev. 341. This Court has suggested that it is in accord. Wilhelm v. Caylor, 32 Md. 151, 157-158 [ (1870) ].

Judge Henderson, for the Court, said in Berman v. Leckner, ⁴⁸⁵ 188 Md. 321, 328 , 52 A.2d 464, 467 [ (1947) ]: “There is no doubt that limitations will apply by analogy, to proceedings in equity as well as to actions at law, particularly where the jurisdiction is concurrent.” Stevens, 234 Md. at 351 , 199 A.2d at 223-24 . 9 This Court has “consistently ... adhered to the principle that there is no inflexible rule as to what constitutes, or what does not constitute, laches; hence, its existence must be determined by the facts and circumstances of each case.” Ross, 387 Md. at 669 , 876 A.2d at 704 (citations, internal quotation marks and brackets omitted). As noted above, a statutory limitations period, such as that provided by Elec. Law § 12-202(b)(l), provides a benchmark for the application of laches, as it will, against which this Court can assess whether the Appellees’ delay in filing in the Circuit Court was unreasonable and whether it prejudiced the interests of Appellants. See Liddy, 398 Md. at 242 , 919 A.2d at 1282-83 .

We shall hold that Appellees’ judicial challenge is barred as a matter of law by laches. Even granting, arguendo, that they did not learn of the City Board’s certification of Mr. Sparaco’s candidacy until August 15, 2016, their challenge under Elec. Law § 12-202(a) came too late because they did not file the instant action in the Circuit Court for Anne Arundel County until September 20, 2016, when their complaint was docketed by the clerk and, on this record, their delay was unreasonable and prejudicial to Appellants and the election process. 10 ⁴⁸⁶ At the outset, we discern no basis on this record to hold that Appellees’ obligation to file in the appropriate circuit court, as instructed by Elec. Law § 12—202(b)(1) was tolled by their failed attempt to file suit in the United States District Court, The savings provision of Maryland Rule 2-101, as pertinent here, reads: Rule 2-101, Commencement of action.

(a) Generally. A civil action is commenced by filing a complaint with a court. (b) After Certain Dismissals by a United States District Court or a Court of Another State. Except as otherwise provided by statute, if an action is filed in a United States District Court or a court of another state within the period of limitations prescribed by Maryland law and that court enters an order of dismissal (1) for lack of jurisdiction, (2) because the court declines to exercise jurisdiction, or (3) because the action is barred by the statute of limitations required to be applied by that court, an action filed in a circuit court within 30 days after the entry of the order of dismissal shall be treated as timely filed in this State.

Maryland Rule 2—101(b) offers no support for Appel-lees’ assertion that the instant lawsuit in the Circuit Court was tolled by their filing in the United States District Court. The federal court’s disposition of Appellees’ federal action does not fit within the relevant factors enumerated in Rule 2-101(b). That court did not dismiss the federal suit for “lack of jurisdiction,” because that court did not have the occasion to consider the issue of jurisdiction. See Md. Rule 2-101(b)(l).

Nor did the federal court “decline to exercise jurisdiction” in the first instance. See Md. Rule 2-101(b)(2). See generally 28 U.S.C. § 1367 (c) (enumerating bases for a federal court’s decision to “decline” to exercise jurisdiction). Instead, the district judge had no occasion to address the merits of Appel- ⁴⁸⁷ lees’ federal complaint because the clerk was ordered not to accept the complaint for filing 11 : For the reasons stated at today’s teleconference, Plaintiffs’ Complaint is STRICKEN and DISMISSED without prejudice.

Plaintiffs’ counsel has failed to comply with Local Rule 101.1(b)(i) and (ii) in that she is not a member of the bar of this Court and an active member in good standing has not moved for her admission pro hac vice. Accordingly, the Clerk of the Court was prohibited from accepting Plaintiffs’ Complaint and all subsequent filings. Because Md. Rule 2—101(b) was never triggered, the consequences of Appellees’ untimely judicial challenge in Circuit Court will not be alleviated by application of the savings provision of Md. Rule 2-101(b). We turn to Appellees’ claim that because they also sought a writ of mandamus, the limitations period set forth in Elec.

Law § 12-202(b)(l) does not apply to bar their judicial challenge to the City Board’s certification of Mr. Sparaco. The short answer to Appellees’ argument is that laches operates to bar their mandamus claim as well. We do not agree with Appellees that, by seeking a writ of mandamus, they can, in every case, circumvent the time constraints of Elec. Law § 12—202(b)(1) by pursuing an alternate challenge to an election board’s actions. 12 Again, “if the equities so require,” courts ⁴⁸⁸ are at liberty “to assess the facts of a purely equitable action independent of the statutory time limitations applicable at law.” Ross, 387 Md. at 670 , 876 A.2d at 705 .

We again stress, however, that “any claim against a state electoral procedure must be expressed expeditiously.” Liddy, 398 Md. at 250 , 919 A.2d at 1287 (citation omitted). Accordingly, our analysis as to reasonableness of the delay and resulting prejudice in the case before us is informed by this precept, as well as the delay as measured against the “benchmark” limitations period for election challenges established by the General Assembly in Elec. Law § 12-202(b). Appellees have offered no valid explanation as to why they waited until September 20 to cause their judicial challenge to be docketed in the Circuit Court.

To be sure, they attempted to file in the United States District Court, and this effort was both unsuccessful, because counsel had not been admitted to practice there, and did not comport with the explicit requirement of Elec. Law § 12-202(b) which mandates that a challenge be filed in the circuit court. It also appears, according to Appellants, that Appellees waited until September 14, 2016, to serve Appellants with their federal motion for a temporary restraining order. This delay “must be juxtaposed against [their] duty to petition for redress without delay when the election approaches[.]” Ross, 387 Md. at 672 , 876 A.2d at 705 .

With respect to prejudice, Appellants point out that the delay in not filing until September 19, or September 20 when Appellees’ case was docketed by the clerk, preceded “only days before the scheduled mailing of absentee ballots to military and overseas voters.” Appellees counter that they filed this action before any ballots had been sent out, and speculate that “even if those ballots had been mailed they would have been few in number.” ⁴⁸⁹ We are not convinced that the equities favor Appellees in light of their eleventh hour challenge. Although Appellees filed their action in the Circuit Court seven weeks before the General Election, the election process had begun in earnest. Moreover, even though Appellees claim not to have become aware of Mr. Sparaco’s candidacy until August 15, 2016, when he dismissed his federal lawsuit, the State Elections Board had by that time listed him as an “active” candidate on August 2. By August 4, Mr. Sparaco had provided enough signatures to be placed on the ballot.

On August 31, his name was included on proofs of the 2016 General Election ballot which were posted on the State Board’s website. In their answer to the complaint, Appellees indicated: The defendants admit that federal law requires that, if an absentee military or overseas citizen voter has requested mail delivery of an absentee ballot for the 2016 general election before September 24, 2016, the deadline for mailing such ballots is September 24. The defendants further state that the State Board had arranged to have absentee ballot packages assembled and mailed on September 21-22 and that counsel for the plaintiffs had been advised of that schedule. In view of this, the following observation by the United States Court of Appeals for the Seventh Circuit is apposite.

Affirming the denial of a preliminary injunction sought by Ralph Nader to compel the State of Illinois to place his name on the Presidential ballot, the court noted: By waiting as long as he did to sue, and despite the strenuous efforts by the district court and this court to expedite the litigation, Nader created a situation in which any remedial order would throw the state’s preparations for the election into turmoil. Absentee ballots have already been mailed to voters who will be overseas on election day, see 42 U.S.C. § 1973ff—2(e)(2), and the remaining absentee ballots will be mailed on September 23.