Morgan v. White, No. 20-1801 (7th Cir. 2020)

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Illinois permits voters to place initiatives and referenda on both local and statewide ballots but requires proponents to collect a specific number of signatures during a period of 18 months. That period ended for the state on May 3, 2020, and will end for the city on August 3. Plaintiffs filed suit, 42 U.S.C. 1983, contending that the state’s requirements are unconstitutional, given the social-distancing requirements adopted by Illinois' Governor during the COVID-19 pandemic. A district judge denied relief.

The Seventh Circuit affirmed, first holding that at least one plaintiff (Morgan) had standing because began his petition campaign before filing suit. During most of the time available to seek signatures, Morgan did nothing. The other plaintiffs did not do anything of substance until the suit was filed. They had plenty of time to gather signatures before the pandemic began and are not entitled to emergency relief. The Governor’s orders did not limit their speech. The orders concern conduct, not what anyone may write or say. Although the orders make it hard to obtain signatures, so would the reluctance of people to approach strangers during a pandemic. The federal Constitution does not require any state or local government to put referenda or initiatives on the ballot; if the Governor’s orders, coupled with the signature requirements, amount to a decision to skip all referenda for the 2020 election cycle, there is no federal problem.

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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 support. 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 plainti s led this suit under 42 U.S.C. §1983 contending that the state’s requirements are too onerous, and hence unconstitutional, given the social-distancing requirements adopted by the Governor of Illinois in light of the COVID-19 pandemic. A district judge expressed skepticism that any of the plainti s has standing but found it unnecessary to resolve that question because she denied relief on other grounds. 2020 U.S. Dist. LEXIS 86618 (N.D. Ill. May 18, 2020). Plainti s have appealed. We expedited the brie ng, and all litigants have agreed to waive oral argument to facilitate a faster decision. The district court’s approach, sometimes called hypothetical 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 plainti , William Morgan, has standing, the district court had jurisdiction. Morgan began his petition campaign (he seeks to amend the state’s constitution) before ling 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 plainti s also want to amend the state’s constitution, and one proposes a change that would a ect Evanston alone. Federal judges routinely adjudicate suits led by persons who have encountered di culty obtaining the signatures required to put candidates’ names or substantive proposals on the ballot. This is as far as plainti s 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 important question, when a plainti seeks emergency relief, is whether the plainti has brought the emergency on himself. The district judge concluded that Morgan had done so. During 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 Governor began to issue orders requiring social distancing. The other plainti s did not do anything of substance until the suit was on le. Plainti s had plenty of time to gather signatures before the pandemic began. That’s a good reason to conclude that they are not entitled to emergency relief. We add that plainti s 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 e ects 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). Plainti s do not question the propriety of those orders. Cf. Jacobson v. Massachuse=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 itself whether a pandemic is a good time to be soliciting signatures on the streets in order to add referenda to a ballot. The order denying the motion for a preliminary injunction is a rmed. The plainti s remain free to contend to the district court that a permanent injunction would be justi ed if social-distancing rules are inde nitely extended, but that long-term question does not require immediate resolution.

Primary Holding

Seventh Circuit denies injunctive relief with respect to Illinois signature requirements for ballot initiatives and referenda.

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