Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 4917 -- William T. Hart, Judge.
Cummings, Chief Judge, and Cudahy and Posner, Circuit Judges. Cudahy, Circuit Judge, dissenting.
This appeal from the denial of a preliminary injunction brings up to us questions of freedom of speech and of equal protection of the laws arising from the methods by which the Illinois Election Code rations access to the ballot by those who wish to put to the electorate a question rather than a candidate. The plaintiffs in this action under 42 U.S.C. § 1983 are members of the DuPage County Citizens for Nuclear Arms Freeze. They want the ballot in DuPage County in the next general election, which is to be held on November 2, 1982, to contain a question asking, "shall the people of the County of DuPage endorse the call to halt the nuclear arms race and request the DuPage County Board . . . to adopt an immediate, mutual, and verifiable freeze on all further testing, production and deployment" of Soviet and American nuclear weapons "followed by reductions of present nuclear weapons?" In the nomenclature of the Illinois Election Code this is an "advisory" question, see Ill. Rev. Stat. 1981, ch. 46, §§ 28-1, 28-6, because, despite its wording, the adoption by the DuPage County Board of a freeze on Soviet and American nuclear weapons would have no legal effect; and anyway the voters are just being asked to "request" action of the Board. A "binding" question, in contrast, proposes to the electorate a course of action that, if the electorate approves, becomes law. See Ill. Rev. Stat. 1981, ch. 46, § 28-1.
For a private group, as distinct from a public body such as a county board, to get an advisory question placed on the ballot in a local political subdivision of Illinois requires the signatures of 25 percent of the registered voters in the subdivision. Ill. Rev. Stat. 1981, ch. 46, § 28-6. This hurdle seems to be nearly impossible to leap, at least in DuPage County. A summer of vigorous canvassing with the assistance of a professional canvasser yielded 8,500 signatures for the question on a nuclear arms freeze, and although this was more than had ever been obtained, so far as anyone could recall (there are no reliable statistics), for an advisory question in DuPage County, it fell far short of the 75,000 that would have been required to meet the 25 percent requirement in DuPage. And even if this Sisyphean task had been accomplished it would have done these plaintiffs no good. Section 28-1 of the Election Code limits the number of questions that can be placed on the ballot to three, and provides that if more than three are submitted to the local election board the first three will appear on the ballot. Ill. Rev. Stat. 1981, ch. 46, § 28-1. The plaintiffs' question was fifth in line. The DuPage County Board -- which, being a public body, is not required to obtain any signatures in order to submit a question -- had submitted four questions after the plaintiffs had begun their canvass but before they had given up on obtaining the signatures of 25 percent of the registered voters and had submitted their question without the required number of signatures. All four of the Board's questions were binding questions, having to do not with nuclear issues but with local issues of water supply and the like. So far as the record discloses, public bodies in DuPage County such as the County Board have never submitted advisory questions.
In asking that the election commissioners of DuPage County be enjoined from preparing ballots for the November election that do not contain the nuclear arms freeze question, the plaintiffs argue that the 25 percent requirement, the limit of three questions per ballot, and the first-come first-served method of choosing the three from among those submitted infringe their freedom of speech under the First Amendment, which has, of course, been held applicable against the states by virtue of the due process clause of the Fourteenth Amendment. The plaintiffs also argue that the Election Code violates the equal protection clause of the Fourteenth Amendment by making it (1) easier for public bodies than for private groups to put a question on the ballot and (2) harder for private groups to get advisory questions on the ballot than to get certain kinds of binding questions on it. For example, only 1000 signatures are required to place on the ballot a proposal to establish a home for wayward minors, Ill. Rev. Stat. 1981, ch. 23, § 2686, and only 100 for a proposal for a property tax to support a county fair, Ill. Rev. Stat. 1981, ch. 34, § 2442.
Challenges to state election laws on federal constitutional grounds are legion, see, e.g., Clements v. Fashing, 457 U.S. 957, 102 S. Ct. 2836, 73 L. Ed. 2d 508 (1982), but this is the first case we have found in which the challenged laws involve the regulation of ballot propositions rather than of candidacy, except for Massachusetts Public Interest Research Group v. Secretary of the Commonwealth, 375 Mass. 85, 375 N.E.2d 1175 (1978), which involved a challenge to the geographical weighting of votes for propositions and so was a kind of reapportionment case. It and the candidate cases involve such different issues from those in this case that we must treat this as a genuine case of first impression and decide it on the basis of fundamental principles, though we derive a little help, as will appear, from two "public forum" cases, United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 101 S. Ct. 2676, 69 L. Ed. 2d 517 (1981), and Lehman v. City of Shaker Heights, 418 U.S. 298, 41 L. Ed. 2d 770, 94 S. Ct. 2714 (1974).
The First Amendment's prohibition against governmental abridgments of freedom of speech and of the press is, as is the Bill of Rights in general, a guarantee of negative rather than of positive liberties. It forbids government to interfere with the competition of ideas but does not require it to create a well informed citizenry -- to subsidize newspapers or book publishing or soundtrucks or soapboxes. United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, supra, at 151 n.10 (Marshall, J., dissenting); cf. Harris v. McRae, 448 U.S. 297, 318, 65 L. Ed. 2d 784, 100 S. Ct. 2671 (1980).
Consistently with this distinction the parties to this litigation agree that there is no constitutional right to use the ballot box as a forum for advocating a policy, such as a freeze on nuclear weapons, and that Illinois therefore has no constitutional obligation to allow advisory questions to be placed on the ballot. Not all states make provision for including such questions on the ballot, and the plaintiffs have no quarrel -- no constitutional quarrel, at any rate -- with states that do not.
Nor should it make a difference whether a state that does not provide for advisory questions does provide for binding questions. The submission of binding questions to the electorate -- the initiative, as in this case, or the referendum -- is a technique of direct, as distinct from representative, democracy. It allows the people to vote directly for a law rather than indirectly by voting for the lawmaker. We do not think that by opting for a measure of direct democracy a state obliges itself to allow the ballot also to be used as a means of pure advocacy. Such an obligation would have no basis in the logic of the First Amendment. Direct democracy is not an interference with the marketplace of ideas; it therefore does not put the state under an obligation to compensate for such an interference by taking measures to promote or enlarge that marketplace, as by allowing the ballot to be used to take official polls on controversial issues of public policy.
Lehman v. City of Shaker Heights, supra, supports this conclusion. The city owned a bus line, and while it allowed commercial advertising on its buses it refused to allow political advertising. The Supreme Court found no violation of the First Amendment. "Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician." 418 U.S. at 304 (plurality opinion). To similar effect see United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, supra, which upheld the constitutionality of the federal statute that forbids people to deposit circulars or other messages in letterboxes without affixing postage. " [A] letterbox, once designated an'authorized depositary' [for mail], does not at the same time undergo a transformation into a 'public forum' of some limited nature to which the First Amendment guarantees access to all comers." 453 U.S. at 128. But these cases actually involve a stronger argument for First Amendment protection than the present case. Buses and letterboxes are in fact vehicles for the communication of messages, and the issue was whether access to them could be restricted -- access by political advertisers in City of Shaker Heights, or by persons unwilling to pay postage in Council of Greenburgh Civic Ass'ns. But the ballot in DuPage County, Illinois is in fact not a vehicle for communicating messages; it is a vehicle only for putting candidates and laws to the electorate to vote up or down. If and when advisory questions begin to show up on the ballot, we may have a different case.
In short, if Illinois allowed only binding questions to be placed on the ballot in DuPage County these plaintiffs would have no case. But in effect that it just what Illinois has done. It has made it practically impossible, at least in political subdivisions as populous as DuPage County (the only subdivision we are concerned with in this case), to put advisory questions on the ballot. Public bodies could do so with ease but they have no inclination to do so; private groups want to but the requirement of getting the signatures of 25 percent of the registered voters prevents them from doing so. Assuming public bodies never submit advisory questions, even a 100 percent requirement would thus be lawful for it would be just an oblique way of keeping all advisory questions off the ballot; and if a 25 percent requirement has the same practical effect as a 100 percent one, we do not see why the former should be treated differently in law.
This assumes that public bodies submit no advisory questions. The case would be different if they did -- and particularly if, as a result, the challenged provisions of the Illinois Election Code could be viewed as a device by which the state (or county) was taking sides in the nuclear arms debate. Then the case would be like Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975), where the Supreme Court held that the managers of a municipally owned theater violated the First Amendment by forbidding a particular musical play to be performed in the theater because the play was too sexy for the managers' taste -- without, of course, suggesting that the municipality had a constitutional duty to operate a theater. Similarly, if the DuPage County Board had submitted a question expressing opposition to a nuclear arms freeze while the plaintiffs were laboring valiantly but hopelessly to get the necessary signatures for their question, a serious constitutional issue would be raised. But, as we have said, so far as appears on this record the County Board has never tried to put an advisory question on the ballot; nor has any other public body in DuPage.
Nor is there much danger that the 25 percent requirement might have the effect of allowing just popular viewpoints to be embodied in advisory questions, and by thus discriminating against minority viewpoints distort the marketplace of ideas; for no one can remember when any group in DuPage County gathered enough signatures to get an advisory question on the ballot. And it is clear that the challenged restrictions were not enacted in response to the nuclear arms freeze movement -- perhaps in an effort to close off an avenue of communication which that movement has found especially effective for its message -- because the restrictions date back to 1901. See Ill. Laws of 1901, ch. 46, § 428. Illinois is not discriminating either directly or indirectly ...