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September 2, 1982


The opinion of the court was delivered by: Hart, District Judge.


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.

Factual Background

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 asks:

    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 canvassing.

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 percent requirement.

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, provides that

  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); ...

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