Illinois Republican leaders and Democratic Gov. JB Pritzker sparred in federal court this week over Pritzker’s decisions of when – and when not – to enforce his COVID-19 emergency orders prohibiting large gatherings, with the governor arguing his decision to attend and endorse large anti-racism protests in Chicago should have no bearing on his ability to block other large gatherings from occurring.
On June 24, Illinois Attorney General Kwame Raoul, on behalf of Pritzker, filed his reply to a lawsuit brought by the Illinois Republican Party, challenging his authority to continue to prohibit GOP gatherings, citing the threat posed by COVID-19.
In the filing, Pritzker and Raoul asserted the governor has not “selectively enforced” 10-person capacity limits on gatherings imposed throughout much of the COVID-19 emergency period, despite his decision to attend Black Lives Matter rallies, and vocally support them, in his official capacity as governor.
“At bottom, Plaintiffs raise the specter of selective enforcement, but provide no allegations or evidence that they have attempted any gatherings that have been thwarted by state authorities,” the Attorney General wrote in the brief on behalf of the governor. “Nor do they contend that the Governor’s political party, or any other political party, is receiving preferential exemption from the gatherings limitation.
“Plaintiffs’ objection to the Governor’s personal participation in a protest march may be a political talking point, but it does not transform a public health measure that has been widely upheld into a First Amendment violation.”
The state GOP followed a day later with their reply, arguing Pritzker’s attendance of and support for the anti-racism mass protests “extends to them more favorable treatment” than other “political speech.”
“That is content-based discrimination, and it cannot stand,” the GOP wrote in its brief.
The Republican Party and several affiliated local party organizations filed suit in mid-June. They essentially accused Pritzker of picking and choosing whose political speech and First Amendment-protected gatherings would be allowed and endorsed by the state amid the pandemic.
The lawsuit took particular aim at Pritzker’s orders limiting the ability of people throughout the state from gathering in groups of more than 10 at a time.
Pritzker issued those orders in March, as part of a series of executive actions issued under emergency powers to combat the spread of the novel coronavirus that causes COVID-19.
In the months since, Pritzker has fiercely defended his ability under the law to wield those emergency powers, even as the number of lawsuits challenging his use of that authority has continuously grown.
Most of those lawsuits have questioned whether Illinois law and the Illinois and U.S. constitutions give the governor the authority he claims.
The GOP lawsuit, however, centers on the permissive attitude Pritzker has taken to other gatherings, particularly anti-racism demonstrations that have brought tens of thousands of people out at a time to the streets of Chicago and elsewhere in Illinois.
The GOP also noted Pritzker has relaxed requirements on religious gatherings, after several churches challenged in court whether those restrictions could be allowed under the First Amendment.
In his reply, Pritzker claimed his orders have not trampled any First Amendment rights. The governor compared his limits on gatherings to capacity limits placed on buildings in the name of fire safety, and he said the restrictions apply equally to all political parties.
“Political rallies and conventions have always had to abide by occupancy limits, even though overflow crowds (or lack thereof) may signal strong support (or the reverse) for a particular message or messenger,” Raoul wrote in the Pritzker brief. “The act of gathering in a confined space, which increases the risk of casualties in the event of a fire, is what is being regulated, not the message being delivered at the gathering.”
Pritzker noted the state took no action to shut down anti-lockdown protests against his COVID-19 orders.
Pritzker further asserted Republicans can use videoconferencing to attempt to spread their message and boost support.
And the governor drew a distinction between political gatherings and religious worship services, noting the practice of religion enjoys special protections under the Constitution and in specific state and federal religious freedom laws.
In their reply, however, the Republicans said Pritzker’s rationale doesn’t hold up.
They argued political parties should be treated the same as churches and political demonstrations, as all enjoy the highest level of protection under the First Amendment.
The Republicans scoffed at the notion that they could politick on Zoom or other video conferencing services.
“If churches were only allowed online services, and Black Lives Matter protestors were only permitted to make and share viral videos on social media, this would be fair,” they wrote. “But they’re not. They’re allowed to gather in person. Plaintiffs (Republicans) aren’t.”
Republicans also asserted anti-Pritzker protests were disrupted by Chicago Police, raising at least a reasonable risk that people gathering for a political rally could risk “arrest based on the discretion of the Governor or Mayor.”
And they said Pritzker “misses the point” in arguing the orders apply the same to Democratic Party gatherings as to Republican Party gatherings.
“The issue isn’t viewpoint discrimination, but content discrimination,” they said.
They said Pritzker and the Attorney General have mistakenly treated the Republicans’ lawsuit the same as all other constitutional and legal challenges to the governor’s authority. They said those other cases “have turned on arguments about whether churches and retailers” should be treated alike, making them “apples-to-oranges comparisons.”
“This is the first case to clearly compare apples to apples: churches to political parties, Black Lives Matter rallies to Republican rallies,” the Republicans wrote. “But the Governor’s response treats this case just like all the others, and this foundational error infects his entire brief.”
The Republican plaintiffs are represented by attorneys with the Liberty Justice Center, of Chicago.