Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 81 C 194 -- Thomas R. McMillen, Judge.
Bauer, Wood, and Coffey, Circuit Judges.
Defendants appeal from a decision of the district court holding unconstitutional the application of Ill. Rev. Stat. ch. 24, § 3-2-7 (1980), which authorized the Mayor of the City of Chicago to fill an aldermanic vacancy by appointment. In view of the Supreme Court's recent decision in Rodriguez v. Popular Democratic Party, 457 U.S. 1, 102 S. Ct. 2194, 72 L. Ed. 2d 628 (1982), we reverse.
Prior to December 1, 1980, the Illinois Municipal Code authorized special elections to be held for the purpose of filing vacancies in elective municipal offices. Ill. Rev. Stat. ch. 24, § 3-2-7 (1979). Effective December 1, 1980, the Illinois General Assembly amended section 3-2-7 as part of an overall plan for the consolidation of elections in Illinois:
Except as otherwise provided in this Code, whenever a vacancy occurs in any elective municipal office, with at least 28 months remaining in a 4-year term, and the vacancy occurs at least 130 days before the next scheduled general municipal election as provided in the general election law, the office shall be filled for the remainder of the term at that general municipal election. . . . Until the office is filled by election, the mayor or president shall appoint a qualified person to the office, subject to the advice and consent of the corporate authorities. Municipal officers appointed or elected under this Section shall hold office until their successors are elected and have qualified.
1980 Illinois Laws, P.A. 80-1469, § 4; 1981 Illinois Laws, P.A. 81-1490, § 2. That amendment thus eliminated the use of special elections.
Section 3-2-7 must be read with reference to the new Illinois Election Code, which establishes a consolidated schedule of elections. Ill. Rev. Stat. ch. 46, § 2A-1.2 (1980). That schedule provides for all elections, with only a few exceptions, to be held on one of five regular dates over a two-year cycle. The general election and the general primary election are held in the even-numbered years. Id. § 2A-1.1(a). In the odd-numbered years, the consolidated election is held in April, the consolidated primary election in February, and the nonpartisan election in November. Id. § 2A-1.1(b), (c). The pertinent provision here, section 2A-1.2(d), requires that where, as in the City of Chicago, candidates for alderman are not permitted to be candidates of political parties, aldermanic elections shall be held on the consolidated primary election date, subject only to possible run-off elections held at the consolidated election. By eliminating the use of special elections to fill aldermanic vacancies, section 3-2-7 of the Municipal Code, in conjunction with section 2A-1.2 of the Elections Code, allows suspension of representation by ballot for up to 28 months plus 129 days.
Plaintiffs are three registered voters of the 17th Ward in the City of Chicago. Their claim arises from an appointment made by the mayor, pursuant to section 3-2-7, to fill a vacancy created on January 13, 1981 in the office of alderman for the 17th Ward. That vacancy occurred with twenty-seven months of a four-year term remaining and only one month before the next general municipal election. Under the new Illinois elections law, the mayor's appointee will hold office for twenty-five months, until the consolidated primary election in February 1983. That is, he will serve out the remainder of the term because it is less than twenty-eight months.
Plaintiffs complained that the twenty-five month suspension of their right to vote offends the Constitution of the United States. The district court agreed and ordered a special election to be held June 1, 1982 and, if necessary, a run-off election to be held June 29, 1982.
Although it is unclear what standard of review the district court applied, the opinion of the court suggests the standard of strict scrutiny.*fn1 Supporting the district court's analysis, plaintiffs argue that "Section 3-2-7 involves a discernible fundamental liberty -- the right of direct election of the people's representative -- [, and therefore] this statute must be given strict scrutiny . . . and the State must show a compelling interest in the least ...