Committee for the Illinois Dem v. Jesse White ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 20-1801
WILLIAM MORGAN, et al.,
Plaintiffs-Appellants,
v.
JESSE WHITE, Secretary of State of Illinois, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 20 C 2189 — Rebecca R. Pallmeyer, Chief Judge.
____________________
SUBMITTED JULY 6, 2020 — DECIDED JULY 8, 2020
____________________
Before EASTERBROOK, KANNE, and HAMILTON, Circuit
Judges.
PER CURIAM. Illinois permits voters to place initiatives
and referenda on both local and statewide ballots, but it also
requires proponents to collect enough signatures to show
that each proposal is likely to have a decent amount of sup-
port. The state allows 18 months for proponents to collect
signatures. This year that period ended for the State of Illi-
2 No. 20-1801
nois on May 3, 2020, and will end for the City of Evanston on
August 3.
Seven plaintiffs filed this suit under 42 U.S.C. §1983 con-
tending that the state’s requirements are too onerous, and
hence unconstitutional, given the social-distancing require-
ments adopted by the Governor of Illinois in light of the
COVID-19 pandemic. A district judge expressed skepticism
that any of the plaintiffs has standing but found it unneces-
sary to resolve that question because she denied relief on
other grounds. 2020 U.S. Dist. LEXIS 86618 (N.D. Ill. May 18,
2020). Plaintiffs have appealed. We expedited the briefing,
and all litigants have agreed to waive oral argument to facili-
tate a faster decision.
The district court’s approach, sometimes called hypothet-
ical standing, was disapproved by the Supreme Court
in Steel Co. v. Citizens for a Be=er Environment, 523 U.S. 83(1998). But because at least one plaintiff, William Morgan,
has standing, the district court had jurisdiction. Morgan be-
gan his petition campaign (he seeks to amend the state’s
constitution) before filing suit. Relief such as reducing the
number of signatures required, permifing electronic rather
than physical signatures, and extending deadlines would
materially improve his chances. Other plaintiffs also want to
amend the state’s constitution, and one proposes a change
that would affect Evanston alone. Federal judges routinely
adjudicate suits filed by persons who have encountered
difficulty obtaining the signatures required to put candi-
dates’ names or substantive proposals on the ballot.
This is as far as plaintiffs get, however. District judges
have discretion when weighing the considerations relevant
to requests for preliminary relief. See, e.g., Winter v. Natural
No. 20-1801 3
Resources Defense Council, Inc., 555 U.S. 7 (2008). One im-
portant question, when a plaintiff seeks emergency relief, is
whether the plaintiff has brought the emergency on himself.
The district judge concluded that Morgan had done so. Dur-
ing most of the time available to seek signatures, Morgan did
absolutely nothing. He did not evince any interest in the
subject until early April 2020, several weeks after the Gover-
nor began to issue orders requiring social distancing. The
other plaintiffs did not do anything of substance until the
suit was on file. Plaintiffs had plenty of time to gather signa-
tures before the pandemic began. That’s a good reason to
conclude that they are not entitled to emergency relief.
We add that plaintiffs also have not established that the
Governor’s orders limit their speech. The orders concern
conduct (social distancing), not what anyone may write or
say. Orders regulating conduct often have incidental effects
on speech, but this does not require courts to treat them as if
they were regulations of speech. See, e.g., Clark v. Community
for Creative Non-Violence, 468 U.S. 288 (1984). Plaintiffs do not
question the propriety of those orders. Cf. Jacobson v. Massa-
chuse=s, 197 U.S. 11 (1905); Elim Romanian Pentecostal Church
v. PriJker, No. 20-1811 (7th Cir. June 16, 2020). Although the
orders surely make it hard to round up signatures, so would
the reluctance of many people to approach strangers during
a pandemic.
One more consideration bears emphasis. The federal
Constitution does not require any state or local government
to put referenda or initiatives on the ballot. That is wholly a
mafer of state law. See, e.g., Jones v. Markiewicz-Qualkinbush,
892 F.3d 935 (7th Cir. 2018). If we understand the Governor’s
orders, coupled with the signature requirements, as equiva-
4 No. 20-1801
lent to a decision to skip all referenda for the 2020 election
cycle, there is no federal problem. Illinois may decide for it-
self whether a pandemic is a good time to be soliciting signa-
tures on the streets in order to add referenda to a ballot.
The order denying the motion for a preliminary injunc-
tion is affirmed. The plaintiffs remain free to contend to the
district court that a permanent injunction would be justified
if social-distancing rules are indefinitely extended, but that
long-term question does not require immediate resolution.