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.
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
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.
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); ...