Thaddeus Jones v. Michelle Qualkinbush ( 2018 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________________
    No. 17-1227
    THADDEUS JONES, STEVON GRANT, and CALUMET CITY
    CONCERNED CITIZENS,
    Plaintiffs-Appellants,
    v.
    MICHELLE MARKIEWICZ-QUALKINBUSH, et al.,
    Defendants-Appellees.
    ____________________
    Appeal from the United States District Court for the
    Northern District of Illinois, Eastern Division.
    No. 16 C 8977 — Robert W. Gettleman, Judge.
    ____________________
    ARGUED OCTOBER 31, 2017 — DECIDED JUNE 14, 2018
    ____________________
    Before WOOD, Chief Judge, and EASTERBROOK and SYKES,
    Circuit Judges.
    EASTERBROOK, Circuit Judge. Thaddeus Jones, an alder-
    man in Calumet City, Illinois, wants to be mayor. One of his
    supporters, Stevon Grant (plus others who formed a com-
    mi\ee), tried to prevent the incumbent, Michelle Markie-
    wicz-Qualkinbush, mayor since 2003, from running for
    reelection in spring 2017. The means: a referendum that
    2                                                  No. 17-1227
    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 elec-
    tion, 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 refer-
    enda will roll over to the next election. 10 ILCS 5/28-5. Grant
    did not ask that his proposal do so.
    One of the City’s proposals was a term-limits rule that
    would prevent the election as mayor of anyone who has
    served four or more consecutive terms as either mayor or
    alderman. That did not block Markiewicz-Qualkinbush from
    running but did bar Jones, who had been elected as an al-
    derman in 1997 and was in his fifth term. That referendum
    passed, and Jones was removed from the ballot for the April
    2017 mayoral race. Markiewicz-Qualkinbush was reelected.
    (Jones says that the City’s other two proposals also were
    aimed at him, but they do not require discussion.)
    Jones filed two lawsuits—one in federal court under fed-
    eral law, the other in state court under state law. In each he
    sought an injunction against the application of the Rule of
    Three and an order removing the City’s term-limits referen-
    dum from the ballot or nullifying the voters’ approval of that
    referendum. In the federal suit, which was joined by Grant
    and the citizens group, plaintiffs also sought damages. Jones
    lost the state suit. Jones v. Calumet City, 
    2017 IL App (1st) 170236
    . (The defendants in the federal suit have not invoked
    preclusion, even though Jones deliberately split his claims.)
    The district court denied Jones’s motion for a preliminary
    No. 17-1227                                                    3
    injunction, and we affirmed. Jones v. Markiewicz-Qualkinbush,
    
    842 F.3d 1053
    (7th Cir. 2016). Now we have the appeal from
    the district court’s final decision in defendants’ favor. The
    request for an injunction against the application of the Rule
    of Three in November 2016 is moot, but the requests for
    damages plus prospective relief that would knock out the
    Rule of Three in the future, and abrogate the term-limits rule
    that prevents Jones from running for mayor, remain live.
    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 ob-
    serving 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 ap-
    pearing. 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.
    This assumes that the ballot is a public forum and that
    there is a constitutional right to place referenda on the ballot.
    But there is no such right. Nothing in the Constitution guar-
    antees direct democracy. The Constitution establishes the
    United States as an indirect democracy, in which elected
    representatives make the law. The nation’s founders thought
    4                                                   No. 17-1227
    that direct democracy would produce political instability
    and contribute to factionalism. See, e.g., Federalist No. 10
    (Madison). There has never been a federal referendum. Nor
    has any federal court ever concluded that the ballot is a pub-
    lic forum that must be opened to referenda, let alone to as
    many referenda as anyone cares to propose.
    To the contrary, many courts have held that private citi-
    zens lack a right to propose referenda or initiatives for any
    ballot, federal or state. See Molinari v. Bloomberg, 
    564 F.3d 587
    , 597 (2d Cir. 2009) (“[T]he right to pass legislation
    through a referendum is a state-created right not guaranteed
    by the U.S. Constitution”); Kendall v. Balcerzak, 
    650 F.3d 515
    ,
    523 (4th Cir. 2011) (“The referendum is a form of direct de-
    mocracy and is not compelled by the Federal Constitution”);
    Taxpayers United for Assessment Cuts v. Austin, 
    994 F.2d 291
    ,
    295 (6th Cir. 1993) (“[W]e conclude that … the Constitution
    does not require a state to create an initiative procedure”);
    Dobrovolny v. Moore, 
    126 F.3d 1111
    , 1113 (8th Cir. 1997)
    (“Clearly, the right to a state initiative process is not a right
    guaranteed by the United States Constitution, but is a right
    created by state law”); Angle v. Miller, 
    673 F.3d 1122
    , 1133
    (9th Cir. 2012) (“There is no First Amendment right to place
    an initiative on the ballot”); Petrella v. Brownback, 
    787 F.3d 1242
    , 1259 (10th Cir. 2015) (“[W]e have repeatedly held that
    there is no First Amendment right to propose a voter initia-
    tive”); Biddulph v. Mortham, 
    89 F.3d 1491
    , 1497–98 (11th Cir.
    1996) (“[T]he right to place a citizen initiative proposal on
    the ballot is a state-created right (and thus, by implication,
    not a right guaranteed by the First Amendment).”). See also
    Timmons v. Twin Cities Area New Party, 
    520 U.S. 351
    , 363
    (1997) (“Ballots serve primarily to elect candidates, not as
    forums for political expression.”); John Doe No. 1 v. Reed, 561
    No. 17-1227                                                    
    5 U.S. 186
    , 212 (2010) (Sotomayor, J., concurring, joined by
    Stevens & Ginsburg, JJ.) (“[W]e must be mindful of the char-
    acter of initiatives and referenda. These mechanisms of di-
    rect democracy are not compelled by the Federal Constitu-
    tion”); Georges v. Carney, 
    691 F.2d 297
    , 300 (7th Cir. 1982)
    (“[T]he parties to this litigation agree that there is no consti-
    tutional right to use the ballot box as a forum for advocating
    a policy”).
    Many of these decisions have cited Meyer v. Grant, 
    486 U.S. 414
    (1988). Meyer concerned a challenge to a Colorado
    statute that criminalized the payment of petition circulators.
    Among other things, the state argued that, because the fed-
    eral Constitution did not prohibit Colorado’s government
    from completely eliminating citizens’ state-created right to
    propose ballot initiatives, the statute did not significantly
    burden protected speech. The Court rejected this argument
    and ultimately struck down the statute—a state that does
    open the ballot cannot impose unconstitutional conditions—
    but did not reject the premise that the right to propose initia-
    tives is an exclusively state-created right that the First
    Amendment does not guarantee. 
    Id. at 424–25.
        So is the Rule of Three an unconstitutional condition on
    the exercise of a state-created right? Because the Rule of
    Three does not distinguish by viewpoint or content, the an-
    swer depends on whether the rule has a rational basis, not
    on the First Amendment. There can be li\le doubt that the
    Rule of Three is rationally related to a legitimate state objec-
    tive. Each voter knows that other people likely will deter-
    mine the outcome. That leads to free riding: each voter is
    tempted to allow others to do the work of reading about
    candidates, studying proposals, and making hard decisions.
    6                                                    No. 17-1227
    Many voters will do the work out of civic spirit, and others
    will do it out of self-interest (if some candidate or proposal
    could have a big effect on that voter), but the more complex
    the ballot the less a\ention each candidate and proposal re-
    ceives. So the Supreme Court has said that states have a
    strong interest in simplifying the ballot. See, e.g., Munro v.
    Socialist Workers Party, 
    479 U.S. 189
    , 194–96 (1986); Illinois
    State Board of Elections v. Socialist Workers Party, 
    440 U.S. 173
    ,
    184–85 (1979); Bullock v. Carter, 
    405 U.S. 134
    , 145 (1972).
    Limiting the number of referenda improves the chance
    that each will receive enough a\ention, from enough voters,
    to promote a well-considered outcome. There’s nothing
    magical about three; it may be too low (or too high; remem-
    ber that the cap in federal elections is zero); but the benefit of
    some limit is plain. That is enough to show that the rule used
    in Illinois is valid. Indeed, Georges sustains the Rule of Three
    against the sort of arguments that Jones has advanced.
    If we take Jones as objecting to the order in which pro-
    posals are placed on the ballot—with a municipality’s com-
    ing first as a practical ma\er, creating the possibility that all
    private proposals will be excluded—nothing changes. Be-
    cause the ballot is not a public forum, the Constitution does
    not prevent a state from reserving the referendum process
    for its own communication, asking the voters to give thumbs
    up or down to municipal proposals while preventing any
    other access. That is indeed how many nonpublic forums
    operate, as means for communication by a single speaker or
    group of favored speakers. See, e.g., Perry Education Associa-
    tion v. Perry Local Educators’ Association, 
    460 U.S. 37
    (1983).
    Jones makes a different kind of challenge to the referen-
    dum that knocked him out of the race for mayor. He con-
    No. 17-1227                                                   7
    tends that placing the City’s referendum on the ballot violat-
    ed the Equal Protection Clause of the Fourteenth Amend-
    ment. It does not draw any suspect or forbidden line; it co-
    vers all persons who have served four or more terms in local
    offices. No one thinks that term limits are uniformly uncon-
    stitutional. But Jones says that this referendum was aimed at
    him, specifically, and therefore treated him as a prohibited
    class of one. See Village of Willowbrook v. Olech, 
    528 U.S. 562
    (2000); Del Marcelle v. Brown County, 
    680 F.3d 887
    (7th Cir.
    2012) (en banc).
    The Appellate Court of Illinois observed that this is false
    in fact. Three aldermen, not just Jones, were in their fourth or
    fifth terms and thus were ruled out of the mayoral race. 
    2017 IL App (1st) 170236
    at ¶6. The referendum also prevents
    Markiewicz-Qualkinbush from running for reelection in
    2021. It does not identify Jones by name; he does not contend
    that it should be treated as a bill of a\ainder. Still, he says
    that because he was the only person affected by the referen-
    dum in 2017 (the other two aldermen did not want to run for
    mayor), it should be treated as if it specified him as a class of
    one.
    Olech holds that governmental action in class-of-one situ-
    ations requires a rational basis. See also Nixon v. Administra-
    tor of General Services, 
    433 U.S. 425
    , 468–84 (1977). (Whether
    there is also a state-of-mind requirement divided the court in
    Del Marcelle, which did not produce a majority for any ra-
    tionale.) Jones does not deny that term-limits rules in general
    are supported by rational bases; instead he contends that
    this referendum lacks an adequate basis for knocking him, in
    particular, out of the 2017 race. The proposal designed to
    eliminate Markiewicz-Qualkinbush from the 2017 election
    8                                                  No. 17-1227
    may or may not have been a political dirty trick, but Jones
    tells us that the City’s referendum definitely was a political
    dirty trick rather than a piece of neutral legislation.
    That’s politics: if Senators from State A propose to cut off
    a project valuable to State B, and Senators from B then sup-
    port a tariff that hurts producers in State A, courts don’t use
    the Equal Protection Clause to regulate the outcome. Politics
    is a rough-and-tumble game, where hurt feelings and
    thwarted ambitions are a necessary part of robust debate.
    See Manley v. Law, 
    889 F.3d 885
    (7th Cir. 2018). It is impossi-
    ble to imagine the judiciary a\empting to decide when a po-
    litically retaliatory step goes “too far” without displacing the
    people’s right to govern their own affairs and making the
    judiciary just another political tool for one faction to wield
    against its rivals. The right response is political: Jones could
    have campaigned against the City’s referendum, and if the
    people wanted him to be mayor they could have defeated
    the proposed term limit. Instead it received about 65% of the
    votes cast.
    Engquist v. Oregon Department of Agriculture, 
    553 U.S. 591
    (2008), holds that a fired public employee cannot use a class-
    of-one claim to contest the discharge or otherwise to ask a
    federal court to govern management of the workplace. The
    Court observed that a public employer, like a private em-
    ployer, must exercise control that is bound to ruffle some
    feelings and produce economic injury. It added that judicial
    intervention under a class-of-one approach would substan-
    tially displace hierarchical (or civil-service) management
    practices and crimp management in ways that would do
    more harm than good. See also GarceWi v. Ceballos, 547 U.S.
    No. 17-1227                                                   9
    410 (2006) (for similar reasons, the First Amendment does
    not apply to speech that is part of a public job).
    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 litiga-
    tion to regulate political infighting. Any effort by the judici-
    ary 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 ear-
    lier the Rule of Three has such a basis, and Jones does not
    contest the validity of term limits. A class-of-one claim can-
    not be used to a\ack political practices that are valid as a
    general ma\er 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 MassachuseWs 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