1st Amendment Violation – Rule of Three

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7^th Circuit Court of Appeals

Case Name: Thaddeus Jones, et al. v. Michelle Markiewicz-Qualkinbush, et al.

Case No.: 17-1227

Officials: WOOD, Chief Judge, and EASTERBROOK and SYKES, Circuit Judges.

Focus: 1^st Amendment Violation – Rule of Three

Thaddeus Jones, an alderman in Calumet City, Illinois, wants to be mayor. One of his supporters, Stevon Grant (plus others who formed a committee), tried to prevent the incumbent, Michelle Markiewicz-Qualkinbush, mayor since 2003, from running for reelection in spring 2017. The means: a referendum that would have set a three-term limit on the City’s mayor. Grant gathered enough signatures to put that referendum on the ballot in November 2016. But it did not appear on that ballot, because the City itself proposed three referenda for that election, and the City’s proposals were certified before Grant’s. Illinois law limits to three the number of referenda on any ballot. See 10 ILCS 5/28-1. The parties call this the “Rule of Three.” Illinois law creates a possibility that displaced referenda will roll over to the next election. 10 ILCS 5/28-5. Grant did not ask that his proposal do so.

According to Jones (as we now call the three federal plaintiffs collectively), the Rule of Three violates the First Amendment (applied to the states by the Fourteenth Amendment) because it disables him from asking voters to support his proposal. The Rule of Three selects the first three proposals to be certified, and a municipality can reach that goal with as li\le as 48 hours’ notice, see 5 ILCS 120/2.02(a), while a private citizen’s proposal depends on acquiring enough signatures. 10 ILCS 5/28-7. This means that a city observing a signature-gathering campaign in progress can get its own proposals on the ballot first—even if the real goal of those proposals is just to prevent the private ones from appearing. Jones contends that this is what happened in 2016 and maintains that any system barring private proposals from the ballot—whether directly or by allowing a unit of government to fill the available slots—violates the First Amendment.

Everything that Engquist and Ceballos said about using constitutional law to regulate personnel management in a public workforce goes double about using class-of-one litigation to regulate political infighting. Any effort by the judiciary to stop one politician from proposing and advocating steps that injure another politician would do more to violate the First Amendment (the right to advocate one’s view of good policy is the core of free speech) than to vindicate the Equal Protection Clause. Laws with general effects must have the support of a rational basis, but as we observed earlier the Rule of Three has such a basis, and Jones does not contest the validity of term limits. A class-of-one claim cannot be used to attack political practices that are valid as a general matter but bear especially hard on one politician. Cf. Washington v. Davis, 426 U.S. 229 (1976) (only disparate treatment can violate the Equal Protection Clause; disparate impact does not); Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979) (same). The price of political dirty tricks must be collected at the ballot box rather than the courthouse.

Affirmed

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Attorney Derek A. Hawkins is the managing partner at Hawkins Law Offices LLC, where he heads up the firm’s startup law practice. He specializes in business formation, corporate governance, intellectual property protection, private equity and venture capital funding and mergers & acquisitions. Check out the website at www.hawkins-lawoffices.com or contact them at 262-737-8825.