Andrea Raila v. Cook County Officers Electoral Board and Its Members

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued August 3, 2022
Decided August 9, 2022
Before
DIANE S. SYKES, Chief Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 21-3275
ANDREA RAILA,
Plaintiff-Appellant,
v.
COOK COUNTY OFFICERS
ELECTORAL BOARD AND ITS
MEMBERS, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 19-cv-7580
Thomas M. Durkin,
Judge.
O R D E R
The Cook County Electoral Board (“the County Board”), comprised of the Cook
County Clerk, the State’s Attorney, and the Clerk of the Circuit Court, administers
elections for Cook County and the City of Chicago. The Chicago Board of Election
Commissioners (“the City Board”) manages elections only for the City of Chicago
(collectively referred to as the “Election Authorities”). Andrea Raila was a candidate for
Cook County Assessor in the 2018 Democratic primary election.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

-- 1 of 6 --

No. 21-3275 Page 2
In December 2017, Raila filed her nomination petitions for the Democratic ballot
with significantly more signatures than required to qualify for the ballot. Several people
objected, and the County Board assigned a hearing officer who initially determined that
Raila submitted enough valid signatures but later concluded that eleven notaries
engaged in notary misconduct and ten notaries, including Raila, engaged in fraud. The
officer recommended, and the Election Authorities agreed, that the notarized sheets be
stricken, leaving Raila with fewer signatures than necessary to appear on the ballot. As
a result, the County Board printed 1 million green notices stating that a vote for Raila
would not count; ordered each election supply box (“Election Supply Carriers” or
“ESCs”) to include these green notices along with several posters repeating the
message; mailed 40,000 absentee voter notices specifying that votes for Raila would not
count; and posted a green notice on the Cook County Clerk’s Facebook page.
Additionally, the Chicago Board placed full-page ads in two major newspapers, and the
Cook County Clerk posted a Facebook video of her holding a green notice.
On March 14, six days before the primary, the state appellate court unanimously
overturned the Board’s decision. The objectors could not prove fraud by clear and
convincing evidence, and the signatures should have counted. The court then remanded
“solely for the purpose that the Board fashion an appropriate remedy to ensure that
votes cast for Raila … are counted.” In response, the County Board printed new black-
and-white notices, in contrast to the green ones, which removed the statement that
votes for Raila would not count. The new notices were given to election judges before
the primary with the instruction to distribute them—but no instruction was given to
remove the green notices or posters. The Chicago Board did not run any new ads
correcting its prior representation, and for some time, the Cook County Clerk’s
Facebook page still displayed the incorrect green notice.
The day before the primary, March 19, the Cook County Clerk held a press
conference to explain the mistake. The Clerk also informed Raila that emails would be
sent to election judges instructing them to give out only the correct black-and-white
notices.1 Additionally, a preprogrammed text message was supposed be sent to all
election judges instructing them to give out the correct notices. On the day of the
primary, however, the message sent said the opposite: “This is a message from Election
Central—Hand Out the Green ‘NOTICE to All Democratic Voters’ Thank you. Chicago
BOE.” As a result, for several hours the next morning, voters were given the wrong
1 Raila alleges that many polling places had not received the corrected notices, and the promised emails
were either not sent, not received, or ignored.

-- 2 of 6 --

No. 21-3275 Page 3
notices. Eventually, a correct message was sent, and the election authorities held
another press conference apologizing for the error.
Raila lost the election and sued in federal court. She filed two complaints, both of
which were dismissed at the 12(b)(6) stage with leave to amend. This case concerns her
third amended complaint against Cook County Officers Electoral Board, its members,
the Cook County Clerk, and the Board of Election Commissioners and its members, all
sued in their official capacities. She asserts violations of her First Amendment right to
free association and her Fourteenth Amendment right to be treated like “other similarly
situated individuals, namely the other candidates for Assessor.” She requested
monetary damages and an injunction “requiring the appointment of an impartial
monitor to oversee elections in Cook County and City Chicago until the Defendants can
adequately establish their ability to conduct free and fair elections.” The district court
granted defendants’ motion to dismiss for failure to state a claim.
Raila argues on appeal that she adequately pleaded a claim for relief based on
the election authorities’ alleged violations of her First and Fourteenth Amendment
rights. We review the dismissal of a complaint for failure to state a claim de novo,
construing all allegations as true and drawing reasonable inferences in favor of the
plaintiff. Dix v. Edelman Fin. Servs., LLC, 978 F.3d 507, 512–13 (7th Cir. 2020) (quoting
League of Women Voters v. City of Chicago, 757 F.3d 722, 724 (7th Cir. 2014)).
We begin with our jurisdiction over Raila’s injunction claim.2 A plaintiff must
satisfy Article III’s standing requirements for each requested form of relief: “(1) a
concrete and particularized injury that is actual or imminent, (2) traceable to the
defendant’s conduct, and (3) can be redressed by judicial relief.” Hero v. Lake Cnty.
Election Bd., 2022 WL 3040109, *3 (7th Cir. Aug. 2, 2022) (quoting Pierre v. Midland Credit
Mgmt., Inc., 29 F.4th 934, 937 (7th Cir. 2022)). Here, Raila’s injunction claim falters
because she has not alleged an “actual or imminent” injury. Raila has not, of course,
suffered an injury yet for the next election, so no “actual” injury has occurred. Our focus
then turns to the alleged “imminent” injury.
A plaintiff seeking “prospective relief against a harm not yet suffered … must
establish that [s]he ‘is immediately in danger of sustaining some direct injury as the
2 Raila may have abandoned her request for injunctive relief at oral argument, stating “we withdraw” the
injunction issue in response to questions regarding her standing to pursue it. But we address it
nonetheless for completeness.

-- 3 of 6 --

No. 21-3275 Page 4
result of the challenged official conduct,’” and that “‘the injury or threat of injury [is]
both real and immediate, not conjectural or hypothetical.’” Bell v. Keating, 697 F.3d 445,
451 (7th Cir. 2012) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983)). A
challenge to a statute or regulation is often justiciable because the “existence of the
statute constitutes the government’s commitment to prosecute in accordance with it.”
Bell, 697 F.3d at 451; see also Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158–59 (2014).
A plaintiff alleging some “criminal or unconstitutional behavior” based on official
conduct that has yet to transpire, however, faces a steeper climb: “the putative injury
typically proves too remote or attenuated to sustain our jurisdiction under Article III.”
Bell, 697 F.3d at 451. “[A]bsent ‘great and immediate’ irreparable injury, ‘the need for a
proper balance between state and federal authority counsels restraint in the issuance of
injunctions against state officers ….’” Lopez-Aguilar v. Marion Cnty. Sheriff’s Dep’t, 924
F.3d 375, 397 (7th Cir. 2019) (quoting Lyons, 461 U.S. at 112).
Raila has not established an “imminent harm.” She challenges an executive
action, not an already existing statute or regulation, that is unlikely to occur again.
Moreover, she has not declared her intention to run again; the board’s membership
might change; a state appellate court has already ruled on the exact dispute; and the
“balance between state and federal authority” counsels restraint, particularly for an
election governed by state law and more frequently adjudicated in state courts. Thus,
she does not have standing to pursue her injunction claim.
As for her damages claim, Raila is suing the Election Authorities and its
members only in their official capacities. See Brandon v. Holt, 469 U.S. 464, 471–72 (1985)
(holding that a suit “against a public servant ‘in his official capacity’ imposes liability on
the entity that he represents provided, of course, the public entity received notice and
an opportunity to respond”). Under the strict standards for municipal liability, a
plaintiff can sue a municipality only for “its own violations of the federal Constitution
and laws,” not the actions of its agents. Dean v. Wexford Health Sources, Inc., 18 F.4th 214,
235 (7th Cir. 2021) (emphasis in original) (quoting First Midwest Bank ex rel. LaPorta v.
City of Chicago, 988 F.3d 978, 986 (7th Cir. 2021)); see generally Monell v. Dep’t of Soc. Servs.
of N.Y.C., 436 U.S. 658 (1978). Beyond the threshold deprivation of a federal right, a
successful claim requires a municipal action, municipal fault, and “moving force”
causation. Dean, 18 F.4th at 235. We start with the first element:
There are at least three types of municipal action that may give rise to
municipal liability under § 1983: (1) an express policy that causes a
constitutional deprivation when enforced; (2) a widespread practice that is

-- 4 of 6 --

No. 21-3275 Page 5
so permanent and well-settled that it constitutes a custom or practice; or (3)
an allegation that the constitutional injury was caused by a person with
final policymaking authority. Inaction, too, can give rise to liability in some
instances if it reflects a conscious decision not to take action.
Id. (internal citations omitted).
Assuming an underlying constitutional violation, Raila has not established a
municipal action to state a successful Monell claim. There was no alleged express policy
by the County and City Boards that deprives candidates of their electoral rights, nor a
widespread practice, nor an allegation that some election official within these
organizations had final policymaking authority. See id. Similarly, Raila does not claim
inaction—in fact, she argues the Election Authorities willfully interfered with her
candidacy.
Moreover, Raila has not alleged deliberate indifference on the part of the Election
Authorities. “[W]here the policy relied upon is not itself unconstitutional, considerably
more proof than the single incident will be necessary in every case to establish both the
requisite fault on the part of the municipality, and the causal connection between the
‘policy’ and the constitutional deprivation.” City of Okla. City v. Tuttle, 471 U.S. 808, 824
(1985); see also Dean, 18 F.4th at 236 (“[T]he Supreme Court made clear that a plaintiff
seeking to hold a municipality liable for a facially lawful policy generally must prove a
prior pattern of similar constitutional violations resulting from the policy.”); Calderone v.
City of Chicago, 979 F.3d 1156, 1164 (7th Cir. 2020) (“One single incident cannot suffice;
rather, [the plaintiff] must show ‘a series of constitutional violations.’” (quoting Est. of
Novack ex rel. Turbin v. County of Wood, 226 F.3d 525, 531 (7th Cir. 2000)). Raila has not
identified an unconstitutional policy, and the allegations here show only one incident
around a single election, not a pattern of alleged unconstitutional behavior resulting
from a possible municipal action. See, e.g., Chatham v. Davis, 839 F.3d 679, 685 (7th Cir.
2016) (“Monell claims based on allegations of an unconstitutional municipal practice or
custom … normally require evidence that the identified practice or custom caused
multiple injuries.”); Roach v. City of Evansville, 111 F.3d 544, 548 (7th Cir. 1997) (noting
that liability can be shown through an allegation of an injury “caused by a person with
final policymaking authority” that requires proof beyond a single incident though the
parties agreed “there was [not] a constitutional deprivation by a person with final
decision-making authority”); see also Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 755
(5th Cir. 1993) (“[W]here … a policy in some sense causes, but does not compel, a
constitutional violation, plaintiffs must establish that the particular harm-producing

-- 5 of 6 --

No. 21-3275 Page 6
deficiency ‘resulted from conscious choice,’ that is, they must supply ‘proof that the
policymakers deliberately chose [measures] which would prove inadequate.’” (quoting
Tuttle, 471 U.S. at 823–24). The Boards may have committed numerous errors, but these
errors do not give rise to Monell liability.
AFFIRMED

-- 6 of 6 --