No constitutional right to referendums, appeals panel says, ending Calumet term limits tussle

By Scott Holland | Jun 18, 2018

A federal appeals panel said citizens have no constitutional right to place referenda on ballots, rejecting an appeal from a Calument City official and state lawmaker challenging state rules limiting the number of referendums that can appear on the ballot at the same time.

Three judges from the U.S. Seventh Circuit Court of Appeals — Chief Judge Diane Wood and judges Frank Easterbrook and Diane Sykes — issued an opinion June 14 in Chicago resolving a long-running tussle between Calumet City Mayor Michelle Markiewicz-Qualkinbush and her political rival, Third Ward Alderman Thaddeus Jones. A Democrat, Jones has served continuously on the Calumet City Council since 1997, and also is now in his third term as a state representative in the Illinois House from the 29th Representative District.

In June 2016, Jones’ political allies moved to collect signatures to place on the ballot a referendum to limit to three the number of terms a mayor can serve in Calumet — which would have made Markiewicz-Qualkinbush ineligible to seek reelection in April 2017. However, before Jones’ referendum could land on the ballot, the Calumet City Council voted to place its own questions on the November ballot.

Jones said two such questions were aimed directly at him — one prohibiting a Calumet City official from collecting pensions from both the city and the pension system for state lawmakers, and a second to limit to four the total number of terms any mayor or alderman could serve. The latter, if approved, would prohibit Jones from running for mayor in April 2017.


Thaddeus Jones  

The council also placed a third referendum on the ballot, asking voters whether taverns should be allowed to remain open until 2 a.m. on Fridays and Saturdays. As Illinois allows only three questions on one ballot — the Rule of Three — Jones’ term limit measure was barred.

In December 2016, Seventh Circuit judges declined to overturn District Judge Robert W. Gettleman’s refusal to grant Jones an injunction, but in so doing hinted a constitutional challenge to the law governing referendums could yet find more firm legal footing. On Oct. 31, 2017, Wood, Easterbook and Sykes heard arguments on Jones’ appeal of Gettleman’s final decision in Markiewicz-Qualkinbush’s favor.

And in their latest decision, the judges said the Rule of Three holds up, after all.

“Nothing in the Constitution guarantees direct democracy,” Wood wrote in the opinion. “The Constitution establishes the United States as an indirect democracy, in which elected representatives make the law. … There has never been a federal referendum. Nor has any federal court ever concluded that the ballot is a public forum that must be opened to referenda, let alone to as many referenda as anyone cares to propose.”

States are allowed to set rules for ballot questions, Wood explained, so long as they do not abridge constitutional rights while doing so. And since the Rule of Three doesn’t impose limits based on the contents of a ballot question, the only deciding factor is whether the rule reasonably serves a state purpose.

“Limiting the number of referenda improves the chance that each will receive enough attention, from enough voters, to promote a well-considered outcome,” Wood wrote. “There’s nothing magical about three; it may be too low (or too high; remember 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.”

The panel also rejected Jones’ argument the city’s two ballot questions specifically targeted him, which he said violated his 14th Amendment equal protection rights. It noted three other aldermen had served at least four terms at the time, and Markiewicz-Qualkinbush would be barred from running again in 2021.

“Politics is a rough-and-tumble game, where hurt feelings and thwarted ambitions are a necessary part of robust debate,” Wood wrote. “It is impossible to imagine the judiciary attempting to decide when a politically 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.”

What Jones should have done, the panel suggested, was campaign against the term limits referendum. Instead, it passed with about 65 percent of votes in favor.

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