The Supreme Court has been sitting for two months on a question without a clear answer: How many is too many? Or put another way, how many is not enough?
In the case at hand, the question goes to a political right as old as the Republic. It is the First Amendment right of the people to petition their government for redress of their grievances. Last year in Illinois, roughly 347,000 persons with a grievance against homosexual unions signed a petition. Implicitly the sponsors asked voters to express their support of an amendment to the Illinois state constitution that would say:
"To secure and preserve the benefits of marriage for our society and for future generations of children, a marriage between a man and a woman is the only legal union that shall be valid or recognized in this state."
This was to be merely an advisory kind of referendum, urging state legislators to submit a state constitutional amendment to the voters. Under Illinois law, even such a toothless petition requires a number of signatures equal to 8 percent of the votes cast in the prior governor’s election. This would have meant 283,000 verified signatures. As it turned out, sponsors of the referendum could not meet the minimum. They sought relief in U.S. District Court. When that failed, they appealed vainly to the Seventh U.S. Circuit. Now they are asking the Supreme Court to rescue their initiative.
The Supremes may well deny a hearing on the grounds that a state’s amendatory process is none of the high court’s business. On the other hand, the plaintiffs in this case have a good deal to be plaintive about. The state’s cumbersome procedures for a nonbinding referendum require meticulous validation of every signature. Is this "reasonable"? In other areas, the high court has not hesitated to draw lines. In matters of eminent domain, e.g., what is "just" compensation? In fixing punitive damages, how should juries be guided? In criminal cases, what is "reasonable" doubt? How minimis is "de minimis"? How grand is "grand" larceny? The Supreme Court is sitting on a case from Florida involving a publicly owned park for nudists: How much of a woman’s breast, if any, must be covered? The fixing of boundaries lies at the essence of law.
In the Illinois case at hand, U.S. District Judge Elaine E. Bucklo found nothing constitutionally amiss in the state’s tough requirements. Proponents of the marriage amendment have no fundamental right to seek an advisory opinion from state voters. To provide an appellate process by which each rejected signature could be judicially determined would impose an "enormous" administrative burden.
A three-judge panel of the Seventh Circuit, speaking through Judge Richard Posner, roundly affirmed the lower court. Judge Posner, the most gifted writer on the federal appellate bench today, was in great form:
"A state no more has a federal constitutional obligation to permit advisory questions on its ballot than it has to permit them to be painted on the walls of the state capitol …
"The ballot is not a traditional public forum for the expression of ideas and opinions, like streets or parks, to which reasonable access must be given to people who want to engage in political and other protected expression. … Illinois is the only state that permits ballots to include advisory questions submitted by citizens (as distinct from officials) and no one supposes (unless perhaps it is these plaintiffs) that the other 49 states are violating the Constitution. … If a state can ban advisory questions from the ballot altogether, it can impose requirements designed to avoid ballot clutter."
The test of ballot access in this case, said Judge Posner, is whether the state’s requirements impose an "unreasonable" burden on opponents of homosexual union. "We are given no grounds for thinking that 8 percent of the votes cast in a previous election is an unreasonably high percentage given the state’s undoubted interest in sparing the voter a ballot as long as Rip Van Winkle’s beard."
As Posner said, nothing prevents pro-marriage voters from voluntarily circulating petitions to the legislature. This is political speech of the first order. "Ballot access is another matter. It must be tightly regulated for the protection of the democratic process. This is true even when a regulation concerns the listing of candidates. A state is not required to list everyone who wants to stand for office, for then ballots would be the size of telephone books."
Is the Illinois law on ballot access "reasonable"? Judge Kilpatrick, meaning me, joins Judge Posner’s opinion. But just barely.