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 This opinion is being released in typescript. A printed version will follow.

IN THE

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

________________________

No. 06–3111

PROTECT MARRIAGE ILLINOIS, et al., on behalf of themselves

 and all others similarly situated,

Plaintiffs-Appellants,

v.

DAVID D. ORR, et al.,

Defendants-Appellees.

__________________________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 06 C 3835—Elaine E. Bucklo, Judge.

__________________________

Submitted August 23, 2006—Decided September 6, 2006*

__________________________

Before POSNER, KANNE, and MANION, Circuit Judges.

POSNER, Circuit Judge. Illinois law permits “advisory

questions” to be placed on the ballot in general elections. Ill.

Election Code, art. 28, 10 ILCS 5/28–1 to –13. The advice has

no legal force. ILCS 5/28–6(c); Georges v. Carney, 691 F.3d

297, 299 (7th Cir. 1982). The plaintiffs want to place on the

ballot for the forthcoming elections in November the question

whether the Illinois General Assembly should propose to

amend the state constitution to provide that in order “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.”
No. 06–3111 

2

To get an advisory question placed on the ballot,

petitions must be signed by registered voters equal in

number to at least 8 percent of the votes cast at the last

gubernatorial election, and must be submitted to the Board

of Elections at least six months before the election. 10 ILCS

5/28–9. This rule required the plaintiffs to collect

approximately 283,000 petitions by the deadline. They

collected more than 347,000. But state law further requires

the Board to compare the signature on a petition with the

petitioner’s signature on his voter registration card and

determine whether the signatures “reasonably compare,” and

also to compare the address on the petition with the address

on the card to determine whether they match. If a sample of

comparisons reveals that more than 5 percent of the

petitions are invalid, the question is not placed on the ballot.

10 ILCS 5/28–11 to –12. That is what happened here,

precipitating this suit which charges that the requirements

for getting an advisory question on the Illinois ballot are so

onerous that they violate freedom of speech (or of

association, or to petition for redress of grievances), equal

protection, and due process of law. The district court

disagreed and dismissed the suit on the pleadings.

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. Georges

v. Carney, supra, 691 F.3d at 301–02. Except in states that

authorize referenda, initiatives, or other modes of direct

democracy, the purpose of a ballot is to list candidates for

public office rather than to list policy positions or survey

public opinion. Timmons v. Twin Cities Area New Party, 520

U.S. 351, 363 (1997). 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. The fact that a public facility could be used for

political speech doesn’t require that it be made available for

such use. A publicly owned theater doesn’t have to be thrown

open for political rallies. See Hotel Employees & Restaurant
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3

Employees Union v. City of New York Department of Parks &

Recreation, 311 F.3d 534, 550–54 (2d Cir. 2002). A state can

operate schools without having to throw the classrooms open

for such rallies either, Perry Education. Ass’n v. Perry Local

Educators’ Assn, 460 U.S. 37, 47 (1983), and likewise it can

hold elections without having to permit political or

commercial advertising to be affixed to the ballot. Cf.

Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974).

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 thus ban advisory questions from the ballot

altogether, it can impose requirements designed to avoid

ballot clutter, provided the requirements are not jiggered in

a way that discriminates against particular advocates or

viewpoints. There is no suggestion of that here. Nor is any

objective basis suggested for trading off the benefits of

advisory questions as modes of expression against the costs

in making ballots unwieldy and distracting voters from their

main function, which is to vote for candidates.

Even if as we do not believe Illinois is required by the

First Amendment to impose only limitations that we would

deem reasonable on access to the ballot for political speech,

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. The

“butterfly ballot” that caused such chaos in the 2000

Presidential election in Palm Beach County, Florida, shows

how hard it is to make an overlong ballot intelligible to the

voter.

The plaintiffs also complain about the further

requirement that all petitions of individuals in the same

election district be combined and attached to a separate

sheet, to facilitate checking the signatures against the voter

registration cards, which are kept in the election board of
No. 06–3111 

4

each district. The convenience served by the requirement is

obvious but the plaintiffs complain that it might require each

of their canvassers to carry 110 sheets to each location

(church, stadium, etc.) in which the canvasser seeks

petitioners, because there are 110 election districts in the

state. But there are few locations in which people from all

110 districts, or indeed from more than a small fraction of

that number, congregate. And anyway while the canvasser

could carry with him on his forays blank sheets of paper on

which to write the number of the district when he encounters

someone from a different part of the state, he needn’t; he

need only note the petitioner’s address (which, remember,

must appear on the petition) and then back at canvassing

headquarters sort the petitions by district and attach all the

petitions from the same district to a sheet.

The 5 percent validity requirement is also reasonable. If

sampling reveals a high incidence of fraud, the chances are

that even more of the petitions have fraudulent signatures

than the ones that were detected, but that those frauds

escaped detection because the signatures on those petitions

were forged more deftly. Of course, false

positives—signatures mistakenly deemed fraudulent by the

election office’s staff—are possible as well, but they

presumably would be challenged by the proponent of the

advisory question, in this case Protect Marriage Illinois, as

the proponent is authorized to do (as we are about to see).

The plaintiffs point us to Meyer v. Grant, 486 U.S. 414

(1988), where the Supreme Court held that Colorado, which

authorizes the initiative (that is, a ballot proposal that if

supported by a majority of the voters becomes a law,

bypassing the legislature), could not constitutionally forbid

proponents to pay the canvassers. The Court made clear,

however, that the state was free not only to impose a

percentage requirement but also to adopt strict measures for

preventing the forging of signatures. It was in light of these

controls that the Court concluded that the criminalization of

paid canvassers was an undue burden on the initiative

process. Id. at 425–28. Another restriction on Colorado’s
No. 06–3111 

5

initiative process—requiring that the canvassers be

registered voters—was struck down on similar grounds in

Buckley v. American Constitutional Law Foundation, Inc.,

525 U.S. 182 (1999).

People who go about asking voters to sign petitions in

support of proposed laws are engaged in political speech, as

in the Meyer and Buckley cases, and a state cannot tax

speakers without a compelling reason. Illinois places no

limitations on petitions asking legislators to oppose

homosexual marriage. Ballot access is another matter. It

must be tightly regulated for the protection of the democratic

process. This is true even when the 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. It can impose reasonable restrictions

on access, as by requiring, just as in this case, that the

would-be candidate demonstrate significant support for his

candidacy by submitting thousands (or, depending on the

size of the electorate, tens or even hundreds of thousands) of

petitions in order to prevent the voter confusion that would

be engendered by too long a ballot. Munro v. Socialist

Workers Party, 479 U.S. 189, 193 (1986); American Party of

Texas v. White, 415 U.S. 767, 782 (1974); Storer v. Brown,

415 U.S. 724, 732, (1974): Jenness v. Fortson, 403 U.S. 431,

442 (1970); Libertarian Party of Illinois v. Rednour, 108 F.3d

768, 774 (7th Cir. 1997). Equally can states that permit

initiatives or referenda place reasonable restrictions on the

use of these methods of putting public issues before the

electorate. Taxpayers United for Assessment Cuts v. Austin,

994 F.2d 291, 297 (6th Cir. 1993).

The plaintiffs argue separately that Illinois has denied

them the equal protection of the laws by allowing a

candidate to be listed on the ballot if he has petitions signed

“by 1% of the number of voters who voted in the next

preceding Statewide general election or 25,000 qualified

voters of the State, whichever is less,” 10 ILCS 5/10–3—a

much lower percentage than required to get an advisory

question on the ballot (though percentages higher than 1
No. 06–3111 

6

percent are required for some offices). But the difference is

warranted by the fact that the primary purpose of the ballot

is to list candidates rather than questions, each of which

takes up more space on the ballot than the name, party

affiliation, and office sought of a candidate.

To demonstrate, finally, a denial of due process, the

plaintiffs point out that there is no procedure by which an

individual petitioner whose petition was struck because the

signature was invalid can challenge the strike. But what is

required in the name of due process depends, as the Supreme

Court made clear in Mathews v. Eldridge, 424 U.S. 319, 335

(1976), on the costs as well as the benefits of process. See

also Wilkinson v. Austin, 125 S. Ct. 2384, 2395 (2005); Holly

v. Wolfolk, 415 F.3d 678, 680–81 (7th Cir. 2005) (and cases

cited there). The cost of allowing tens of thousands of people

to demand a hearing on the validity of their signatures

would be disproportionate to the benefits, which would be

slight because the state allows the organization

orchestrating a campaign to put an advisory question on the

ballot, in this case Protect Marriage Illinois, to challenge the

disqualification of any petitions. Nor is it clear to us what

right of liberty or property (an essential predicate of a due

process claim) the plaintiffs have been deprived of by being

required to comply with the requirements of state law.

Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997);

Biddulph v. Mortham, 89 F.3d 1491, 1500 (11th Cir. 1996)

(per curiam).

No other issue has sufficient merit to warrant discussion.

The judgment dismissing the suit is

AFFIRMED.