                          In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 02-4041
SUSAN C. HILEMAN,
                                          Plaintiff-Appellant,
                              v.

LOUIS MAZE, et al.,
                                       Defendants-Appellees.

                        ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
         No. 02-4059-DRH—David R. Herndon, Judge.
                        ____________
       ARGUED MAY 27, 2003—DECIDED MAY 10, 2004
                     ____________



 Before ROVNER, DIANE P. WOOD, and WILLIAMS, Circuit
Judges.
  DIANE P. WOOD, Circuit Judge. A few days before the
Democratic primary election for Circuit Clerk of Alexander
County, Illinois, a police raid turned up a cache of absentee
ballots in the custody of County Clerk Louis Maze. Along
with the ballots was extensive material indicating that
Maze was opening the ballots and replacing those in favor
of incumbent Susan Hileman with ballots naming her
opponent, Sharon McGinness. For mysterious reasons, the
seized ballots were then returned to election officials and
commingled with all other ballots cast on election day,
March 21, 2000. Hileman lost the election and eventually
2                                               No. 02-4041

brought this lawsuit under 42 U.S.C. § 1983 and Illinois
state law on March 20, 2002, one day short of the two-year
anniversary of her defeat. The district court dismissed
Hileman’s complaint as time-barred, finding that her claim
had accrued on March 16, 2000—the date police seized the
fraudulent ballots—rather than the March 21 date of the
primary election. Hileman now appeals. Because we con-
clude that the district court erred in finding that Hileman’s
claim accrued at the earlier of the two dates, we reverse and
remand for further proceedings.


                             I
  With her term as Circuit Clerk of Alexander County due
to expire in December 2000, Hileman entered the
Democratic primary set for March 21, 2000. Her principal
competition for a spot on the ballot in the upcoming general
election was defendant McGinness. On March 16, 2000, just
five days before the primary, Illinois State Police executed
search warrants and entered the home, office, car dealer-
ship, and truck of defendant Maze, the County Clerk. The
police confiscated 681 absentee ballots for the upcoming
primary, along with paraphernalia suggesting that Maze
was involved in widescale election fraud aimed at unseating
Hileman. The evidence suggested that Maze was, among
other things, opening absentee ballots and replacing ballots
cast in favor of Hileman with ballots naming her opponent,
McGinness, and then re-glueing the envelopes shut.
  As we noted, the police returned the seized ballots to
Maze on the day of the primary, March 21, 2000. The bal-
lots were distributed to the appropriate precincts and com-
mingled and counted with the other ballots in the election.
Hileman lost the primary election to McGinness by a count
of 1299 to 1089. Hileman’s first response was to file a
petition in state court to contest the election. An Illinois
circuit court declared the result of the primary election
No. 02-4041                                                 3

invalid and ordered a new primary election to be held. The
state appeals court reversed and remanded with instruc-
tions to hold an evidentiary hearing. See Hileman v.
McGinness, 739 N.E.2d 81, 82 (Ill. App. Ct. 2000). The trial
court then found that “fraud permeated the electoral
process in the 2000 Democratic primary.” It again declared
the results of the primary election invalid, removed
McGinness from office, and ordered that a new election be
held.
  Hileman did not run in the new primary election. Instead,
on March 20, 2002, she filed suit against fourteen defen-
dants, alleging violations of federal and state law as a
result of the voting improprieties. Count I focused on
defendant Maze, alleging that he violated Hileman’s rights
under the Fourth, Fifth, and Fourteenth Amendments to an
election free from fraud, in violation of § 1983. Counts II
and III asserted state-law conspiracy claims against all
defendants, including Maze, under the Illinois Election
Code, 10 ILCS. 5/29-17, 18. Defendants moved to dismiss
Hileman’s complaint for failure to state a claim. The district
court granted the motion insofar as it applied to Hileman’s
§ 1983 claim, finding that the statute of limitations had
run. The court reasoned that Hileman’s claims accrued on
the date that the ballots were seized, March 16, 2000,
rather than the date of the primary election, March 21,
2000. Because Hileman did not file her complaint until
March 20, 2002, it was too late under the governing two-
year period that applies to § 1983 actions in Illinois. The
district court then declined to retain jurisdiction over the
state-law claims (Counts II and III). This appeal followed.


                             II
  This case presents a single question for our consideration:
did Hileman’s § 1983 claim accrue on the date the ballots
were seized, or on the date of the primary election? This is
a question of law that we review de novo. See Booker v.
4                                                No. 02-4041

Ward, 94 F.3d 1052, 1056 (7th Cir. 1996); see also EEOC v.
Kentucky State Police Dep’t, 80 F.3d 1086, 1094 (6th Cir.
1996).
  We described the appropriate analysis to be applied to
questions of statutes of limitations and claim accrual in
§ 1983 actions in Kelly v. City of Chicago, 4 F.3d 509 (7th
Cir. 1993). In general, the limitations period in a § 1983
case is governed by the personal injury laws of the state
where the injury occurred. Id. at 511; see also Wilson v.
Garcia, 471 U.S. 261, 279 (1985); Hondo, Inc. v. Sterling, 21
F.3d 775, 778 (7th Cir. 1994). Federal law, however,
governs the date of accrual. Kelly, 4 F.3d at 511; Wilson v.
Giesen, 956 F.2d 738, 740 (7th Cir. 1992). A § 1983 claim
accrues “when the plaintiff knows or should know that his
or her constitutional rights have been violated.” Kelly, 4
F.3d at 511. This inquiry proceeds in two steps. First, a
court must identify the injury. Id. Next, it must determine
the date on which the plaintiff could have sued for that in-
jury. That date should coincide with the date the plaintiff
“knows or should know” that her rights were violated. Id.
  Applying this framework, the district court first took note
of the fact that Illinois has a two-year statute of limitations
for personal injury claims, see 735 ILCS 5/13-202, and that
this is the period to apply to a § 1983 case. That much is
uncontroversial and clearly correct. Hileman’s alleged
injury, however, and whether she knew or should have
known that her constitutional rights had been violated as
early as March 16 raise more difficult questions.
  It is unclear what the district court considered to be the
precise injury Hileman suffered, but this question is critical
to the evaluation of the sufficiency of her complaint. On the
one hand, the district court might have defined the underly-
ing right as the right to participate as a voter or candidate
in an untainted election. This type of broad, abstract
definition might seem to favor the appellees, since a
No. 02-4041                                                  5

description of the underlying right at a high enough level of
abstraction might sweep in the March 16 discovery. On the
other hand, the injury might have been more concrete: the
right of a voter to cast an undiluted ballot, or the right of a
primary candidate to participate in an honest election in
which a person could be selected as her party’s candidate in
the subsequent general election. This is the position
Hileman takes. Even if this is the injury, however, we must
still consider when, in a tainted election, the injury occurs:
at the moment the first ballot is doctored, or when the
tainted votes are actually counted or a winner certified?
  Existing decisions on the subject are surprisingly unhelp-
ful in answering this basic question. There is no shortage of
cases proclaiming an enforceable right against various
forms of election fraud, if it involves “willful conduct which
undermines the organic processes by which candidates are
elected,” Hennings v. Grafton, 523 F.2d 861, 864 (7th Cir.
1975), or reflects “patent and fundamental unfairness,”
Bodine v. Elkhart County Election Bd., 788 F.2d 1270, 1272
(7th Cir. 1986) (quoting Hendon v. North Carolina State Bd.
of Elections, 710 F.3d 177, 182 (4th Cir. 1993)). The forms
of election misconduct found to have a constitutional
dimension include misrepresentations by election officials
or other forms of “fraud on the voters,” Rudisill v. Flynn,
619 F.2d 692, 694 (7th Cir. 1980) (quoting Russo v. Vasin,
528 F.2d 27, 30 (7th Cir. 1976)); Hennings, 523 F.2d at 863-
64, fraudulent ballot placement, Bloomenthal v. Lavelle, 614
F.2d 1139, 1141 (7th Cir. 1980); Bohus v. Bd. of Election
Comm’rs, 447 F.2d 821, 822 (7th Cir. 1971), and the barring
of candidates from the ballot based on disputes about the
validity of petition signatures, Briscoe v. Kusper, 435 F.2d
1046, 1051-52 (7th Cir. 1970). Nonetheless, these cases do
not answer the core characterization question at issue here.
Nor can we look to criminal cases brought under the Voting
Rights Act, 42 U.S.C. § 1973i. See, e.g.,United States v. Cole,
41 F.3d 303 (7th Cir. 1994); United States v. Carmichael,
6                                                No. 02-4041

685 F.2d 903 (4th Cir. 1982). These cases hold that the
language of § 1973i authorizes prosecution even for abstract
harm to the integrity of the electoral process, see Cole, 41
F.3d at 307, but we are wary of applying that holding to the
adjudication of constitutional claims under § 1983.
  We turn, therefore, to the general test for claim accrual:
when did the plaintiff know, or should she have known, that
her rights had been violated. Kelly, 4 F.3d at 511. This is a
fact-intensive inquiry, in which both the surrounding
circumstances and the claims plaintiff herself is trying to
raise are critical. We conclude that two aspects of this case
compel reversal of the district court’s order dismissing
Hileman’s complaint as time-barred.
   First, a fair reading of Hileman’s complaint shows that
she seeks redress as a spurned candidate, not as a voter
whose franchise was diluted. Her amended complaint says
that “Plaintiff was deprived of her office at the expiration of
her term in December 2000.” Similarly, her statement of
damages in the complaint asserts that the defendants’
conduct resulted in “Plaintiff’s loss of her office and the
benefits thereof.” Thus, the injury Hileman herself alleged
flowed from the denial of her status as the Democratic
candidate for Circuit Clerk of Alexander County in the up-
coming general election, not her right to cast an undiluted
ballot in that election. In this light, Hileman’s injury could
not have taken place until the March 21 date of the primary
election.
  This becomes even more clear when we move to the sec-
ond point. Hileman, or a reasonably vigilant person in her
position, would have been alerted to the fact that an at-
tempt to commit election fraud had been thwarted, rather
than perpetrated, after the police seized the tainted ballots
on March 16. At that moment, the logical conclusion was
that the March 21 election would proceed in a lawful
manner. Hileman had no reason to suspect that she had
No. 02-4041                                                 7

suffered constitutional injury until she was made aware
of the inexplicable decision to return the tainted ballots
to County Clerk Maze, and, in turn, the decision to com-
mingle those ballots with the untainted ones. Because
Hileman could have reasonably believed that fraud had
been averted, and because she could have held this belief
right up to the moment of the commingling and counting of
the ballots on March 21 (perhaps later, depending on when
she learned of the decision to commingle the ballots), we
find that Hileman neither knew nor should have known
that her constitutional rights had been invaded until the
day of the primary election.
  Notwithstanding these circumstances, the appellees argue
that this court’s decision in Kelly compels affirmance of the
district court. Kelly, however, offers more support
to Hileman than to her adversaries. In Kelly, plaintiffs
alleged that police officers lied at a hearing and that this
resulted in the revocation of their liquor license by the
Chicago Liquor License Commission and, several months
later, the closure of their bar by way of an enforcement or-
der. The question presented was whether plaintiffs’ § 1983
claim accrued at the time of the Commission’s revocation of
the license, or at the moment of its eventual enforcement.
Kelly, 4 F.3d at 511-12. We found that it was the former,
relying on language from the Supreme Court that “the
proper focus is on the time of the discriminatory act, not the
point at which the consequences of the act became painful.”
Id. at 512 (citing Chardon v. Fernandez, 454 U.S. 6, 8
(1981), and Ricks v. Delaware State Coll., 449 U.S. 250, 258
(1980)) (emphasis in original).
  Taking their cue from this distinction, the appellees argue
that the alleged discriminatory act of doctoring the ballots
took place at the beginning of the conspiracy, and that it
merely became “more painful” for Hileman on election day.
But the pre-election efforts to tamper with the ballots might
have amounted to nothing at all, if the police had retained
8                                                 No. 02-4041

custody of the fraudulent materials; those acts were nothing
at all like the formal decision of an administrative body to
revoke a license. Kelly relied crucially on Chardon, where
the Supreme Court held that it is the “operative decision”
by the state actor that is the moment of injury. See
Chardon, 454 U.S. at 8. Here, the “operative decision”
occurred at the moment when the state officials decided to
commingle the fraudulent ballots with the legitimate
ballots, irrevocably tainting the results of the election. Prior
to that, the alteration of the ballots was only an attempted
election fraud conspiracy that may or may not have come to
fruition in the Alexander County primary. Of course, this
does not mean that the decision to amass and doctor
absentee ballots was not a decision on the part of the
alleged conspirators. In fact, the mere gathering of the
ballot-altering paraphernalia seized in the March 16 raid
might have been enough to support a criminal prosecution
of some or all of the defendants under 18 U.S.C. § 241.
United States v. Redwine, 715 F.2d 315, 320 (7th Cir. 1983).
But this is a § 1983 case focusing on injury to Hileman’s
rights, not a conspiracy prosecution under § 241 focusing on
the wrongful acts of the defendants. Under Chardon, it was
the decision to return the tainted ballots and commingle
them with the untainted versions that was the “operative
decision” for accrual purposes.
  The facts of Kelly support our decision in a further re-
spect. In Kelly, the Commission’s vote to revoke plaintiffs’
liquor license made enforcement relatively certain. Indeed,
the Commission’s decision had binding legal effect upon
its passage, even though the City chose to postpone en-
forcement of the revocation order until all appeals had been
exhausted. See Kelly, 4 F.3d at 511 & n.2. By contrast, the
police seizure of the absentee ballots on March 16 might
have thwarted, rather than perpetrated, the massive
election fraud in the primary election. This merely under-
scores our point that a reasonable plaintiff in Hileman’s
No. 02-4041                                                 9

position could have received the news of the police seizure
on March 16 with a sigh of relief, rather than the indigna-
tion of one whose constitutional rights have been violated.
  Finally, the appellees claim that Hileman is conflating
the concepts of injury and damages. They point out, ac-
curately enough, that the Supreme Court has held that
even the most abstract procedural harms can support a due
process claim, Carey v. Piphus, 435 U.S. 247, 267 (1978),
but that damages in § 1983 actions must flow from concrete
harms, Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299,
310 (1986). In effect, appellees assert that Hileman suffered
legally cognizable injury on March 16, and that any further
legal detriment—including her denial of status as a candi-
date in the general election—was merely the loss that
followed the earlier injury. But, as we have already pointed
out, Hileman did not suffer any concrete harm, procedural
or otherwise, until the commingling and counting of the
tainted ballots. It is appellees who are doing the conflating,
by refusing to acknowledge what Hileman is complaining
about.


                             III
  For these reasons, we REVERSE the district court’s order
dismissing Hileman’s complaint. With the federal claims
reinstated, the district court should also revisit on remand
its decision not to retain supplemental jurisdiction over
Hileman’s state-law claims under 28 U.S.C. § 1367.
10                                        No. 02-4041

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—5-10-04
