CHICAGO — Illinois’ so-called "Rule of Three" - a legal provision which limits referendum questions on voter ballots in particular communities - for years has been blocking citizens from bringing their issues forward, a community legal association says.
But a recent federal appeals court has offered a potential opening to perhaps alter the rule and end a blocking strategy repeatedly employed by municipal officials seeking to keep political foes from enacting binding referendums to alter the political landscape in a particular city, village or county.
“We see situations often where citizens who are trying to get a binding question on the ballot are blocked by three questions that were essentially put there just to block them,” said Ben Silver, a community lawyer with the Elmhurst-based Citizen Advocacy Center. “We hope that wasn’t the intent of the Rule of Three. In addition we are very much in favor of citizen participation, and we think that this blocks them in a completely unnecessary way.”
The issue was recently discussed in an opinion issued by a panel of three judges in the U.S. Seventh Circuit Court of Appeals in Chicago. The panel recognized that the limit on referendums that voters in a single municipality can have on the ballot can mean that officials purposely use their legislative advantage to fill the ballots and prevent citizen-initiated questions from appearing on the ballot.
The appellate decision arose out of a power struggle in south suburban Calumet City, where a group of Calumet residents supporting an alderman aspiring to the office of mayor sought to have a measure placed on the ballot that would limit the terms a mayor could serve. The Cook County clerk refused to place the citizens referendum on the ballot, as the Calumet mayor and city council had already placed three propositions on the ballot before the alderman and his backers could get their referendum certified.
The plaintiffs requested an injunction from a Chicago federal district judge, on the grounds that the “actions of city officials violated the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the Constitution of Illinois,” court documents stated. They were denied an injunction but appealed the decision.
In their written decision, Seventh Circuit Judges Kenneth F. Ripple, Diane P. Wood and Ann C. Williams said the plaintiffs “have at lease a colorable First Amendment claim.”
Silver said that the decision highlights an interesting scenario about the potential for the Rule of Three to be unconstitutional.
"The court suggests that if a municipality were to submit an advisory question to the ballot via ordinance or resolution, and if, through the advisory question, the municipality was taking a side on a question submitted by public petition, then the Rule of Three could be unconstitutional in that limited situation,” he explained. “It's a narrow scenario that the courts haven't had the opportunity to decide. If they did decide that the Rule of Three is unconstitutional in that narrow scenario, the rule would probably survive for most other situations."
He also said that the organization understood there needed to be some restrictions regarding ballots.
“Obviously the election authorities need some ability to limit the advisory questions just in terms of having a ballot that is tenable," Silver said. "But, in terms of binding questions, we don’t think that an advisory question should be bumping binding questions off the ballot as we have seen very recently.”
In Calumet City, for instance, the mayor and a majority of the city council placed an advisory referendum on the ballot asking residents whether they wished the city council to change city liquor laws to allow taverns to stay open a couple hours later. That third referendum prevented the alderman and his supporters from winning a spot for their term limits referendum on the Nov. 8, 2016, ballot.
In its opinion on the case, the Seventh Circuit panel also said that while a state has the right to impose regulations that prevent the ballot from being cluttered, the regulations were not to be used to “discriminate against particular advocates or viewpoints.”
Silver suggested an amendment to the law that to keep the Rule of Three to limit advisory questions, but yet not allow three advisory questions to limit binding questions to a would be a good solution.
“The law, as it stands, allows, for instance, back-door referenda as well as a couple of other types," Silver said. "So, essentially we would just like to extend that so the exception is for all binding referenda.”