Thaddeus Jones, Stevon Grant, and Calumet City Concerned Citizens, Plaintiffs-Appellants,
Michelle Markiewicz-Qualkinbush, et al., Defendants-Appellees.
October 31, 2017
from the United States District Court for the Northern
District of Illinois, Eastern Division. No. 16 C 8977 -
Robert W. Gettleman, Judge.
Wood, Chief Judge, and Easterbrook and Sykes, Circuit Judges.
Easterbrook, Circuit Judge.
Jones, an alderman in Calumet City, Illinois, wants to be
mayor. One of his supporters, Stevon Grant (plus others who
formed a committee), tried to prevent the incumbent, Michelle
Markiewicz-Qualkinbush, mayor since 2003, from running for
reelection in spring 2017. The means: a referendum that would
have set a three-term limit on the City's mayor. Grant
gathered enough signatures to put that referendum on the
ballot in November 2016. But it did not appear on that
ballot, because the City itself proposed three referenda for
that election, and the City's proposals were certified
before Grant's. Illinois law limits to three the number
of referenda on any ballot. See 10 ILCS 5/28-1. The parties
call this the "Rule of Three." Illinois law creates
a possibility that displaced referenda will roll over to the
next election. 10 ILCS 5/28-5. Grant did not ask that his
proposal do so.
the City's proposals was a term-limits rule that would
prevent the election as mayor of anyone who has served four
or more consecutive terms as either mayor or alderman. That
did not block Markiewicz-Qualkinbush from running but did bar
Jones, who had been elected as an alderman in 1997 and was in
his fifth term. That referendum passed, and Jones was removed
from the ballot for the April 2017 mayoral race.
Markiewicz-Qualkinbush was reelected. (Jones says that the
City's other two proposals also were aimed at him, but
they do not require discussion.)
filed two lawsuits-one in federal court under federal law,
the other in state court under state law. In each he sought
an injunction against the application of the Rule of Three
and an order removing the City's term-limits referendum
from the ballot or nullifying the voters' approval of
that referendum. In the federal suit, which was joined by
Grant and the citizens group, plaintiffs also sought damages.
Jones lost the state suit. Jones v. Calumet City,
2017 IL App (1st) 170236. (The defendants in the federal suit
have not invoked preclusion, even though Jones deliberately
split his claims.) The district court denied Jones's
motion for a preliminary injunction, and we affirmed.
Jones v. Markiewicz-Qualkinbush, 842 F.3d 1053 (7th
Cir. 2016). Now we have the appeal from the district
court's final decision in defendants' favor. The
request for an injunction against the application of the Rule
of Three in November 2016 is moot, but the requests for
damages plus prospective relief that would knock out the Rule
of Three in the future, and abrogate the term-limits rule
that prevents Jones from running for mayor, remain live.
to Jones (as we now call the three federal plaintiffs
collectively), the Rule of Three violates the First Amendment
(applied to the states by the Fourteenth Amendment) because
it disables him from asking voters to support his proposal.
The Rule of Three selects the first three proposals to be
certified, and a municipality can reach that goal with as
little as 48 hours' notice, see 5 ILCS 120/2.02(a), while
a private citizen's proposal depends on acquiring enough
signatures. 10 ILCS 5/28-7. This means that a city observing
a signature-gathering campaign in progress can get its own
proposals on the ballot first-even if the real goal of those
proposals is just to prevent the private ones from appearing.
Jones contends that this is what happened in 2016 and
maintains that any system barring private proposals from the
ballot-whether directly or by allowing a unit of government
to fill the available slots-violates the First Amendment.
assumes that the ballot is a public forum and that there is a
constitutional right to place referenda on the ballot. But
there is no such right. Nothing in the Constitution
guarantees direct democracy. The Constitution establishes the
United States as an indirect democracy, in which elected
representatives make the law. The nation's founders
thought that direct democracy would produce political
instability and contribute to factionalism. See, e.g.,
Federalist No. 10 (Madison). There has never been a
federal referendum. Nor has any federal court ever concluded
that the ballot is a public forum that must be opened to
referenda, let alone to as many referenda as anyone cares to
contrary, many courts have held that private citizens lack a
right to propose referenda or initiatives for any ballot,
federal or state. See Molinari v. Bloomberg, 564
F.3d 587, 597 (2d Cir. 2009) ("[T]he right to pass
legislation through a referendum is a state-created right not
guaranteed by the U.S. Constitution"); Kendall v.
Balcerzak, 650 F.3d 515, 523 (4th Cir. 2011) ("The
referendum is a form of direct democracy and is not compelled
by the Federal Constitution"); Taxpayers United for
Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir.
1993) ("[W]e conclude that … the Constitution
does not require a state to create an initiative
procedure"); Dobrovolny v. Moore, 126 F.3d
1111, 1113 (8th Cir. 1997) ("Clearly, the right to a
state initiative process is not a right guaranteed by the
United States Constitution, but is a right created by state
law"); Angle v. Miller, 673 F.3d 1122, 1133
(9th Cir. 2012) ("There is no First Amendment right to
place an initiative on the ballot"); Petrella v.
Brownback, 787 F.3d 1242, 1259 (10th Cir. 2015)
("[W]e have repeatedly held that there is no First
Amendment right to propose a voter initiative");
Biddulph v. Mortham, 89 F.3d 1491, 1497-98 (11th
Cir. 1996) ("[T]he right to place a citizen initiative
proposal on the ballot is a state-created right (and thus, by
implication, not a right guaranteed by the First
Amendment)."). See also Timmons v. Twin Cities Area
New Party, 520 U.S. 351, 363 (1997) ("Ballots serve
primarily to elect candidates, not as forums for political
expression."); John Doe No. 1 v. Reed, 561 U.S.
186, 212 (2010) (Sotomayor, J., concurring, joined by Stevens
& Ginsburg, JJ.) ("[W]e must be mindful of the
character of initiatives and referenda. These mechanisms of
direct democracy are not compelled by the Federal
Constitution"); Georges v. Carney, 691 F.2d
297, 300 (7th Cir. 1982) ("[T]he parties to this
litigation agree that there is no constitutional right to use
the ballot box as a forum for advocating a policy").
these decisions have cited Meyer v. Grant, 486 U.S.
414 (1988). Meyer concerned a challenge to a
Colorado statute that criminalized the payment of petition
circulators. Among other things, the state argued that,
because the federal Constitution did not prohibit
Colorado's government from completely eliminating
citizens' state-created right to propose ballot
initiatives, the statute did not significantly burden
protected speech. The Court rejected this argument and
ultimately struck down the statute-a state that does open the
ballot cannot impose unconstitutional conditions- but did not
reject the premise that the right to propose initiatives is
an exclusively state-created right that the First Amendment
does not guarantee. Id. at 424-25.
the Rule of Three an unconstitutional condition on the
exercise of a state-created right? Because the Rule of Three
does not distinguish by viewpoint or content, the answer
depends on whether the rule has a rational basis, not on the
First Amendment. There can be little doubt that the Rule of
Three is rationally related to a legitimate state objective.
Each voter knows that other people likely will determine the
outcome. That leads to free riding: each voter is tempted to
allow others to do the work of reading about candidates,
studying proposals, and making hard decisions. Many voters
will do the work out of civic spirit, and others will do it
out of self-interest (if some candidate or proposal could
have a big effect on that voter), but the more complex the
ballot the less attention each candidate and proposal
receives. So the Supreme Court has said that states have a
strong interest in simplifying the ballot. See, e.g.,
Munro v. Socialist Workers Party, 479 U.S. 189,
194-96 (1986); Illinois State Board of Elections v.
Socialist Workers Party, 440 U.S. 173, 184-85 (1979);
Bullock v. Carter, 405 U.S. 134, 145 (1972).
the number of referenda improves the chance that each will
receive enough attention, from enough voters, to promote a
well-considered outcome. There's nothing magical about
three; it may be too low (or too high; remember that the cap
in federal elections is zero); but the benefit of
some limit is plain. That is enough to show that the
rule used in Illinois is valid. Indeed, Georges
sustains the Rule of Three against the sort of arguments that
Jones has advanced.
take Jones as objecting to the order in which proposals are
placed on the ballot-with a municipality's coming first
as a practical matter, creating the possibility that all
private proposals will be excluded-nothing changes. Because
the ballot is not a public forum, the Constitution does not
prevent a state from reserving the referendum process for its
own communication, asking the voters to give thumbs up or
down to municipal proposals while preventing any other
access. That is indeed how many nonpublic forums operate, as
means for communication by ...