United States District Court, Northern District of Illinois, E.D
September 2, 1982
WENDY A. GEORGES, REV. THOMAS STREITER, REV. LEROY KENNEL, AND EUGENE PARVIN, PLAINTIFFS,
CLIFFORD M. CARNEY, JEAN MCNAMARA, AND WILLIAM TOERPE, DEFENDANTS.
The opinion of the court was delivered by: Hart, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiffs Wendy A. Georges, Rev. Thomas Streiter, Rev. Leroy
Kennel and Eugene Parvin ("Plaintiffs"), residents and registered
voters in DuPage County, Illinois, seek to preliminarily and
permanently enjoin Clifford M. Carney, Jean McNamara and William
Toerpe, in their capacity as members of the DuPage County Board
of Election Commissioners ("Defendants")*fn1 from enforcing certain
portions of Ill. Rev. Stat. ch. 46, §§ 1-1 et seq. (1981),
relating to the submission of citizen-initiated advisory
questions of public policy for consideration by voters, §§ 28-1
and 28-6. Plaintiffs allege that these provisions, as they
pertain to the general election to be held in DuPage County on
November 2, 1982, individually and cumulatively violate their
first and fourteenth amendment rights under the Constitution of
the United States.
Plaintiffs' first amendment challenges are two-fold. First,
they claim that the 25 percent signature requirement for
submission of citizen-initiated advisory questions for voter
consideration in a political subdivision, § 28-6, is unduly
restrictive. Second, plaintiffs challenge as a "lock-out" the
statutory limit to three of the number of public questions which
may appear on any one ballot, whether initiated by citizen
petition or resolution of a political subdivision, whether
binding or advisory. § 28-1.
Plaintiffs also contend that the challenged provisions deny
them equal protection of the law as guaranteed under the
fourteenth amendment. This set of constitutional claims focuses
on section 28-6 as creating an impermissible classification
between citizen-initiated advisory public questions and
citizen-initiated binding public questions,*fn2 by requiring that
advisory questions be endorsed by 25 percent of registered
voters and that binding questions need varying but lesser
percentages in order to reach the ballot.*fn3
Additionally, plaintiffs claim that the
"first-come/first-served" method provided by § 28-1 for selecting
the three questions of public policy for a ballot, regardless of
the source of initiation or legal effect, creates a
classification in favor of resolutions adopted by a political
subdivision over citizen-initiated petitions. This is because,
plaintiffs say, resolutions of a political subdivision may be
tendered for inclusion merely upon a majority vote of such a body
whereas citizen-initiated questions require a citizen petition
drive. Plaintiffs argue, therefore, that questions prepared by
political subdivisions almost always will be received first and,
in effect, preempt those ballot places which otherwise might be
claimed by citizen-initiated questions.
For reasons set forth more fully below, the Court finds that
the requirement for 25 percent signatures as a predicate for
placing non-binding questions of public policy on the ballot of
a political subdivision is unnecessarily restrictive and,
therefore, unconstitutional. The Court, however, declines to
grant plaintiffs' motion for a preliminary injunction and to
direct the DuPage County Board of Elections to certify the
advisory public question solicited by the plaintiffs. This is
because the other challenged provisions — only three public
questions on any one ballot, determined on a
first-come/first-served basis — are not repugnant to the
Constitution when the Illinois Election Code is considered in its
entirety. Accordingly, it need not be determined what lesser
percentage of signatures than 25 percent of eligible voters might
preserve and make meaningful the statutorily granted right to
present to the electorate advisory questions of public policy.
The DuPage County Citizens for Nuclear Arms Freeze, a voluntary
organization of which the plaintiffs are members, undertook a
petition drive to collect the signatures necessary to submit an
advisory public question to the voters of DuPage County at the
general election to be held on November 2, 1982. The question
Whereas one of the greatest challenges facing the
people of the earth is to prevent the occurrence of
nuclear war by accident or design, shall the people
of the County of DuPage endorse the call to halt the
nuclear arms race and request the DuPage County
Board, in addition to our municipal governments,
state legislature and the U.S. Congress and Senate,
to adopt an immediate, mutual, and verifiable freeze
of all further testing, production and deployment of
nuclear warheads, missiles, and designed delivery
systems by the U.S.S.R. and the U.S. governments,
followed by reductions of present nuclear weapons?
On August 16, 1982, within the statutory filing deadline,
plaintiffs submitted to the DuPage Board of Elections petitions
signed by approximately 8,500 persons. These persons had been
solicited by extensive mailing, telephoning and door-to-door
Despite the "successful" canvass,*fn4 the number of signatures
falls short of the statutory prerequisite for inclusion on the
ballot. Section 28-6 provides that submission of an advisory
public question turns on a written petition signed by 25 percent
of the registered voters in the relevant political subdivision.*fn5
On August 16, 1982, DuPage County had approximately 301,000
registered voters. Accordingly plaintiffs claim they needed some
75,000 signatures in support of their petition to meet the 25
Even if plaintiffs had obtained 75,000 or more signatures,
their petition still would have been barred from the November
1982 ballot by section 28-1. Section 28-1, in pertinent part,
Irrespective of the method of initiation, not more
than 3 public questions . . . may be submitted to
referendum with respect to a political subdivision at
the same election.
If more than 3 propositions are timely initiated or
certified for submission at an election with respect
to a political subdivision, the first 3 validly
initiated, by the filing of a petition or by the
adoption of a resolution or ordinance of a political
subdivision, as the case may be, shall be printed on
the ballot and submitted at that election.
At the time plaintiffs filed their petition, four other public
questions had already been submitted to the DuPage County Board
of Elections. These questions derived, not from petitions bearing
the signatures of 25 percent of the DuPage County electorate, but
from resolutions passed by the DuPage County Board. One of these
resolutions would permit DuPage County to issue bonds for the
purpose of piping water from Lake Michigan. The other three
questions, which would be binding if passed, would require a 10
percent reduction in three county funds.
Standard of Review
As a preliminary matter, we must consider the standard of
scrutiny applicable to this case. The general rule is that a law,
even if some inequality results from it, "will not be set aside
if any state of facts reasonably may be conceived to justify it."
McGowan v. Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6
L.Ed.2d 393 (1961).
Certain statutes, however, require that a more rigorous
standard — strict scrutiny — be applied. These are laws in which
the challenged provisions infringe upon the rights of a suspect
class*fn6 or impinge on a fundamental interest.*fn7 Where strict
scrutiny is appropriate, i.e., after the plaintiff establishes
that a fundamental right has been infringed, the burden shifts to
the state to prove that the challenged provision promotes a
compelling interest in the least restrictive manner. See, e.g.,
San Antonio School District v. Rodriquez, 411 U.S. 1, 17, 93
S.Ct. 1278, 1288, 36 L.Ed.2d 16 (1973); Clements v. Fashing, ___
U.S. ___, 102 S.Ct. 2836, 73 L.Ed.2d 508 (1982).
No suspect classification is involved here, but plaintiffs
argue that a fundamental interest in access to the ballot box is
at stake. The Supreme Court has recognized that restrictions on
the ballot affect two distinct but related first amendment
rights: "the right of individuals to associate for the
advancement of political beliefs, and the right of qualified
voters, regardless of their political persuasion, to cast their
votes effectively." Illinois State Board of Elections v.
Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 990, 59
L.Ed.2d 230 (1979). See also Kusper v. Pontikes, 414 U.S. 51,
56-57, 94 S.Ct. 303, 307, 38 L.Ed.2d 260 (1973) ("the freedom to
associate with others for the common advancement of political
beliefs and ideas [is a form of] orderly group activity"
protected by the first and fourteenth amendments); Williams v.
Rhodes, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968); Citizens
Party of Illinois v. Illinois
State Board of Elections, No. 82 C 4574, Slip Op. at 8 (N.D.
Ill., August 6, 1982).
Ballot access cases generally fall within two categories: those
involving classifications based on wealth, see, e.g., Bullock v.
Carter, 405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972); Lubin
v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974)
(invalidating candidate filing fee provisions) and those
involving statutes which discriminatorily burden new or small
political parties or independent candidates at the expense of
established interests. See, e.g., Illinois State Board of
Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983,
59 L.Ed.2d 230 (1979); Storer v. Brown, 415 U.S. 724, 94 S.Ct.
1274, 39 L.Ed.2d 714 (1974); Jenness v. Fortson, 403 U.S. 431, 91
S.Ct. 1970, 29 L.Ed.2d 554 (1971); Williams v. Rhodes, supra
(considering statutes requiring independent candidates or
minority parties to demonstrate a certain level of voter support
in order to secure a place on the ballot).
The first line of cases, the wealth restrictions, holds that
strict scrutiny is required where a "system [of ballot access]
falls with unequal weight on voters, as well as candidates,
according to their economic status." Bullock v. Carter, supra,
405 U.S. at 144, 92 S.Ct. at 856. It is the Court's position that
economic status is not a measure of a prospective candidate's
qualifications for elective office nor of his serious intentions
as a candidate. Clements v. Fashing, supra, 102 S.Ct. at 2844.
In the second, level of support, line of cases, the Court has
struck down as violative of the first amendment right of freedom
of association, those restrictions which make it virtually
impossible for independent candidates or minority parties to
achieve a ballot position. See, e.g., Williams v. Rhodes, supra
(15% signature requirement to endorse independent candidate
unconstitutional); Illinois State Board of Elections v. Socialist
Workers Party, supra (provision requiring third party and
independent candidate seeking political subdivision office to be
endorsed by 5% of voters unconstitutional where it required a
greater number of signatures in Cook County than required
Both lines of case underscore another, more basic, proposition:
the state has both the right and the duty to regulate the
electoral process in order to prevent chaos. Indeed, "the States
have evolved comprehensive, and in many respects complex,
election codes regulating in most substantial ways, . . . the
time, place, and manner of holding primary and general elections,
the registration and qualification of voters, and the selection
and qualification of candidates." Storer v. Brown, supra. See
also Kusper v. Pontikes, supra.
The restrictions permitted on the electoral process are not
unlimited, however: They must serve some important or, compelling
state interest. Among those important interests which the Court
has recognized in restricting access to the ballot are
(1) "[p]rotect[ing] the integrity of . . . political
processes from frivolous or fraudulent
candidacies," Bullock v. Carter, supra, [405
U.S.] at 145 [92 S.Ct. at 857] (1972);
(2) ensuring that there are not so many items listed
on the ballot that "voters would be confronted
with a choice so confusing that the popular will
could be frustrated," Williams v. Rhodes, supra,
[393 U.S.] at 33 [89 S.Ct. at 11-12] (1968);
(3) "assur[ing] that the winner [of the election] is
the choice of a majority, or at least a strong
plurality, of those voting without the expense
and burden of run-off elections." Bullock, supra,
[405 U.S.] at 134 [92 S.Ct. at 851].
Despite well-settled law permitting regulation of the electoral
process, there has been a need for clarification of the level of
scrutiny to be applied to such restrictions. See, e.g., Trafelet
v. Thompson, 594 F.2d 623 (7th Cir.), cert. denied 444 U.S. 906,
100 S.Ct. 219, 62 L.Ed.2d 142 (1979); Massachusetts Public
Interest Research Group v. Secretary of Commonwealth, 375 Mass. 85,
375 N.E.2d 1175 (1978). The most recent ballot access case
decided by the Supreme Court, Clements v. Fashing, ___ U.S. ___,
102 S.Ct. 2836, 73 L.Ed.2d 508 (decided June 25, 1982), although
a plurality opinion, is dispositive of the issue. The existence
of barriers to a candidate's access to the ballot "does not of
itself compel close scrutiny." Id., 102 S.Ct. at 2843; Bullock v.
Carter, supra, 405 U.S. at 143, 92 S.Ct. 856. "[N]ot every
limitation or incidental burden on the exercise of voting rights
is subject to a stringent standard of review." Id.
The Clements Court directed that the proper degree of scrutiny
is to be discerned on a case by case basis. Such examination is
a matter of degree, necessarily involving consideration of the
facts and circumstances underlying the law, the interests which
the state seeks to protect and the interests of those who are
burdened by the restrictions. Id. 102 S.Ct. at 2844; Storer v.
Brown, supra, 415 U.S. at 730, 94 S.Ct. at 1279; Williams v.
Rhodes, supra, 393 U.S. at 30, 89 S.Ct. at 10 (1968).
Although "no litmus paper test" has been formulated for culling
the valid restrictions on ballot access from the invidious, the
cases clearly prohibit the unfair or unnecessary burdening of
"the availability of political opportunity", Lubin v. Panish,
supra, 415 U.S. at 716, 94 S.Ct. at 1320; or restrictions which
would impose so great a burden on voters that reasonably diligent
persons could be expected to obtain access rarely, if at all.
Storer v. Brown, supra, 415 U.S. at 742, 94 S.Ct. at 1285.
Implied in the prescription for a sliding scale of scrutiny is
that ballot access cases do not necessarily impinge on a
fundamental right. If they did, strict scrutiny always would be
the test. Indeed, the Clements court stated that candidacy, for
example, is not a fundamental interest which itself requires
departure from traditional equal protection, i.e., rational
Far from recognizing candidacy as a `fundamental
right,' we have held that the existence of barriers
to a candidate's access to the ballot `does not of
itself compel close scrutiny.'
102 S.Ct. at 2843; Bullock v. Carter, supra, 405 U.S. at 143, 92
S.Ct. at 856. See also Rodriquez v. Popular Democratic Party, ___
U.S. ___, 102 S.Ct. 2194, 72 L.Ed.2d 628 (1982) (no fundamental
right to have a special election to fill a vacancy in the Puerto
Rico legislature); Lynch v. Illinois State Board of Elections,
682 F.2d 93 (7th Cir. 1982) (no fundamental right to a special
election in the 17th Ward of the City of Chicago for the purpose
of filling a legislative vacancy).
One way to rationalize the cases where strict scrutiny was
applied absent a fundamental right in candidacy is that where
ballot restrictions are so burdensome as to make access virtually
impossible, the underlying fundamental right of freedom of
association is impaired. Any injury of that magnitude clearly
requires that the State demonstrate a compelling interest, served
in the least restrictive manner.
With these principles in mind, we turn now to consider whether
any or all of the restrictions placed on citizen-initiated
advisory public questions, pursuant to Ill. Rev. Stat. ch. 46, §§
28-1 and 28-6 (1981) will constitutionally survive the glare of
either strict or rational relationship scrutiny.
Rights of Plaintiffs
This is a case of first impression.*fn8 The United States Supreme
Court has never directly spoken to the constitutional dimensions
of citizens' rights to the initiative or
referendum process.*fn9 Certainly it has never considered the
constitutional distinction, if any, between public questions
which bind the legislature to take action from those which merely
seek to "send a message to the legislature."
The Court, however, has, in the context of considering ballot
access restrictions on candidacy, approved the initiative and
referendum. The Court has characterized them as "basic
instrument[s] of a democratic government," City of Eastlake v.
Forest City Enterprises, Inc., 426 U.S. 668, 679, 96 S.Ct. 2358,
2364-65, 49 L.Ed.2d 132 (1976), a "classic demonstration" id., of
"devotion to democracy" James v. Valtierra, 402 U.S. 137, 141, 91
S.Ct. 1331, 1333, 28 L.Ed.2d 678 (1971), which give[s] citizens
a voice on questions of public policy." Id. Perhaps the statement
which comes closest to assigning the referendum fundamental right
status, albeit also the dicta of a concurring Justice, is found
in Williams v. Rhodes, supra. In Rhodes, Justice Harlan asserted
that "[t]he right to have one's voice heard and one's views
considered by the appropriate governmental authority is at the
core of the right of political association. Id. 393 U.S. at 41,
89 S.Ct. at 15-16 (Harlan, J., concurring).
Clearly there is no fundamental right to require a referendum
under Illinois law. The Illinois Supreme Court in City of Mt.
Olive v. Braje, 366 Ill. 132, 135, 7 N.E.2d 851, 853 (1937) said:
The legal voters of any such municipality have no
inherent or constitutional right to require the
governing body to submit any legislation to a
referendum. Such requirements exist only by virtue of
statutory provisions which the Legislature has the
right to impose or withhold. The wisdom of requiring
a question to be submitted under certain
circumstances, and not under others, is a matter for
legislative determination and not for the courts.
Thus the power to grant or withhold a referendum rests with the
legislature or in a constitutional provision.
Since Illinois does not recognize referenda as fundamental and
despite persuasive Supreme Court dicta, we are reluctant to hold
that a referendum whereby a citizen-initiated question of public
policy may be submitted for voter consideration, is a fundamental
Having declined the role of trail-blazer, we still must
determine whether the ballot access restrictions placed on
citizen-initiated advisory questions are so restrictive as to
render the statutorily granted right meaningless and
unconstitutional. If they are, the defendants must satisfy the
rigors of strict scrutiny. See generally the discussion of the
level of scrutiny required by Clements v. Fashing, supra and
related cases of candidates' ballot access.
Furthermore, although the right to place a question on the
ballot is not fundamental in Illinois, the legislature has seen
fit to confer such right. Once Illinois decided to extend this
forum, it became obligated to do so in a manner consistent with
the Constitution. See, e.g., Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) (held
that once a municipal board has opened up a forum for the
presentation of theater, its failure to grant permission for the
presentation of a play due to its content constitutes an improper
prior restraint that lacked the constitutionally mandated minimum
procedural safeguards); Right to Read Defense Committee of
Chelsea v. School Committee of the City of Chelsea, 454 F. Supp. 703,
712 (D. Mass. 1978) ("[i]t is a familiar constitutional
principle that a state, though having acted when not compelled,
may consequentially create a constitutionally protected
The 25 Percent Signature Requirement
There is no question that a state has a legitimate and
compelling interest in regulating the number of candidates on the
ballot. It may insist that potential candidates "demonstrate a
significant modicum of support" sufficient to justify
consideration by all voters. Jenness v. Fortson, supra. See also
Bullock v. Carter, supra; American Party of Texas v. White,
415 U.S. 767, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974). Level of support
requirements serve, if no other interest, "in avoiding confusion,
deception and even frustration of the democratic process at the
general election." Jenness v. Fortson, supra, 403 U.S. at 442, 91
S.Ct. at 1976.
Thus two classes of inter-related interests are involved in
level of support requirements: a demonstration of a level of
community support as well as minimization of voter confusion.
These very real concerns expressed relative to candidate access
to the ballot, apply equally to the placement of public questions
on the ballot.
In the instant case, however, we believe that the 25 percent
signature requirement for advisory questions is "overkill." It is
true that the 25 percent signature requirement, if met, would
function to demonstrate community support.*fn10 It also is true,
however, that the restriction meets the Storer test of being so
high that a reasonably diligent person could not be expected to
meet it. Storer v. Brown, supra, 415 U.S. at 742, 94 S.Ct. at
There is no evidence that any group has ever gathered the
requisite number of signatures in DuPage County. In the case of
the DuPage Citizens for a Nuclear Arms Freeze, a professional
coordinator was hired to oversee the petition drive and
coordinate and train petition solicitors. The canvassers sent out
approximately 5,000 petitions. Nonetheless, plaintiffs were able
to gather only 8,500 signatures, approximately 1/8 of the
If professionals cannot gather the threshold number of
signatures, how much more difficult will it be for a group of
citizens without professional backup to get their advisory
question on the ballot. Certainly we cannot suppose that the
Legislature intended that professional canvassers be employed in
order to allow citizens to exercise their statutory right to
place on the ballot advisory public questions.
Accordingly we find that the effect on the voters of this level
of support restriction is overly burdensome. In practice, the 25
percent requirement overburdens the very right which the
legislature has created. Strict scrutiny of the 25 percent
signature minimum, therefore, is triggered.
The state has not carried its burden by satisfactorily
explaining why its legitimate need to predetermine voter interest
or to minimize voter confusion*fn11 cannot be
attained through a less restrictive or lower percentage of
Although the 25 percent restriction is unconstitutional, the
Court will not rewrite the statute by prescribing some lesser
percentage. This matter has been heard on a motion for a
preliminary injunction which of necessity was quickly prepared by
the parties. There was little discovery and the factual record is
inadequate for an exhaustive determination of what the proper
percentage might be.
It is also unnecessary to decide what percentage of signatures
will pass constitutional muster because we reject plaintiffs'
remaining contentions that the limit of three public questions on
a first-come/first-served basis are unconstitutional. Despite the
unconstitutionality of the signature requirement, plaintiffs, in
the posture of this case, could not have earned a ballot position
even with some lesser percentage.
Only The First Three Validly Initiated Public Questions May
Appear on the Ballot
The statute requires that only the first three validly
initiated public questions may appear on any one ballot. Ill.
Rev. Stat. ch. 46, § 28-6 (1981). This provision falls equally on
all questions of public policy, regardless of their source of
initiation or legal effect. As no fundamental right exists in
citizen-initiated public questions, invalidation of these
provisions only can occur where they are not rationally related
to the legislative purpose or are overly burdensome. The norm
which we must follow is to give much deference to the legislative
design of the Illinois Unified Election Code. Lynch v. State
Board of Elections, supra.
Although the number three likely was chosen in an arbitrary
fashion, we cannot say that the limit is so onerous or
restrictive as to meaningfully preclude public questions from the
ballot. Clearly it rationally serves the interest of avoiding a
cluttered ballot. Thus if three questions are timely and properly
submitted, they will appear on the ballot.
Similarly the fact that only the first three validly initiated
questions gain a ballot slot is not improper. If the length of
the ballot is to be circumscribed and if more than the number of
questions permitted are validly filed, there must be some method
of determining which question will reach the ballot. The method
set forth in section 28-1 seems fair.
First, by utilizing a first-come/first-served procedure, a
determination based on the content of the question or a weighing
of its source is avoided. Such factors, if employed, clearly
would be arbitrary and capricious.
Second, this statute, by awarding diligence, applies a similar
with respect to candidate nominating petitions, i.e., candidates
are assigned places on the ballot in the order in which their
nominating petitions are filed with the appropriate election
official. Ill. Rev. Stat. ch. 46, §§ 7-14 and 10-14 (1981).
Finally, even where four or more questions of public policy are
validly submitted, the statute provides a saving clause: The
extra questions shall be certified as the first validly initiated
proposition(s) in the next regular election, no more than one
year subsequent to the filing of the initiating petition or the
adoption of an ordinance or resolution by a political
subdivision. Ill. Rev. Stat. ch. 46, § 28-5 (1981). The
prerequisite to this holdover provision is that the petition,
resolution or ordinance proposing a public question does not
specify a particular election for its submission.
In the instant case, plaintiffs indicated on their petition
that the question on limiting nuclear arms should be presented at
the November 1982 election, thereby relinquishing the right to a
holdover place on the ballot. Notwithstanding the fact that they
did not meet the unconstitutionally high signature requirement,
testimony indicated that their petition would have been first in
line for inclusion on the ballot of the next regularly scheduled
election had they not elected to ignore section 28-5. In this
case, plaintiffs themselves have made the statute more
restrictive than it is intended.
Rather than being overly intrusive or oppressive, the holdover
clause mitigates some of the harshness which necessarily attends
the imposition of an absolute limit on the number of questions
which will appear on one ballot. It therefore addresses the
concern expressed in Williams v. Rhodes that the "entangling web
of election laws" might accumulate to prevent access to the
ballot. 383 U.S. at 35, 89 S.Ct. at 12 (Douglas, J., concurring).
Furthermore, the limit of three public questions, in
conjunction with the holdover clause, present only a de minimus
burden on a citizen's access to the ballot. In that regard, it is
similar to the two-year waiting period imposed on a "sitting"
Justice of the Peace who seeks election to the Texas Legislature.
This legislative scheme recently was approved in Clements v.
Fashing, supra. In Clements, the Court held that the waiting
period "places a de minimus burden on the political aspirations
of a current officeholder," which "is hardly a significant
barrier to candidacy." Id. 102 S.Ct. at 2848. Similarly, a
maximum of three public questions, reserved for those which are
filed first, does not significantly prevent plaintiffs from
exercising their first amendment rights if they do not specify an
election date on their petitions.
Plaintiffs also charge that their equal protection rights are
violated because by limiting public questions to the first three
validly submitted, an advantage is created in favor of
citizen-initiated binding questions requiring less than 25
percent signatures and resolutions passed by a political
subdivision, requiring no signatures. This advantage will, it is
said, result in excluding from the ballot non-binding
citizen-initiated public questions because it is too hard for
such questions to be filed first.
Plaintiffs' claims in this regard do not rise to constitutional
dimension. Where no fundamental right is at stake, a statute
which classifies among groups need only be rationally related to
the legislative purpose. The courts have consistently held that
parity among classifications is unnecessary. Indeed, equality of
restriction or effect may not be desirable. See, e.g., Jenness v.
Fortson, supra, 403 U.S. at 442, 91 S.Ct. at 1976 ("sometimes the
grossest discrimination can lie in treating things that are
different as though they are exactly alike"); Bowe v. Board of
Elections Commissioners of Chicago, 614 F.2d 1147 (7th Cir. 1980)
(minimum signature requirement applied toward committeeman was
not excessive even though greater than the minimum requirements
for other offices).
Thus, the bare fact of a disparity is not unconstitutional nor
can we say that this disparate plan is not rationally related to
the Legislature's interest in minimizing ballot confusion. We
therefore conclude that
restrictions on citizen-initiated advisory questions, pursuant to
Ill. Rev. Stat. ch. 46, §§ 28-1 and 28-6 (1981), exclusive of the
25 percent signature requirement, do not unconstitutionally
impair plaintiffs' first or fourteenth amendment rights.
Accordingly, plaintiffs' motion for a preliminary injunction is
IT IS SO ORDERED.