In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 17-1227

THADDEUS JONES, STEVON GRANT, and CALUMET CITY 

CONCERNED CITIZENS,

Plaintiffs-Appellants,

v.

MICHELLE MARKIEWICZ-QUALKINBUSH, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 16 C 8977 — Robert W. Gettleman, Judge.

____________________

ARGUED OCTOBER 31, 2017 — DECIDED JUNE 14, 2018

____________________

Before WOOD, Chief Judge, and EASTERBROOK and SYKES,

Circuit Judges.

EASTERBROOK, Circuit Judge. Thaddeus Jones, an alderman in Calumet City, Illinois, wants to be mayor. One of his 

supporters, Stevon Grant (plus others who formed a commi\ee), tried to prevent the incumbent, Michelle Markiewicz-Qualkinbush, mayor since 2003, from running for 

reelection in spring 2017. The means: a referendum that 
2 No. 17-1227

would have set a three-term limit on the City’s mayor. Grant

gathered enough signatures to put that referendum on the 

ballot in November 2016. But it did not appear on that ballot, 

because the City itself proposed three referenda for that election, and the City’s proposals were certified before Grant’s. 

Illinois law limits to three the number of referenda on any 

ballot. See 10 ILCS 5/28-1. The parties call this the “Rule of 

Three.” Illinois law creates a possibility that displaced referenda will roll over to the next election. 10 ILCS 5/28-5. Grant

did not ask that his proposal do so.

One of the City’s proposals was a term-limits rule that 

would prevent the election as mayor of anyone who has 

served four or more consecutive terms as either mayor or 

alderman. That did not block Markiewicz-Qualkinbush from 

running but did bar Jones, who had been elected as an alderman in 1997 and was in his fifth term. That referendum 

passed, and Jones was removed from the ballot for the April 

2017 mayoral race. Markiewicz-Qualkinbush was reelected.

(Jones says that the City’s other two proposals also were 

aimed at him, but they do not require discussion.)

Jones filed two lawsuits—one in federal court under federal law, the other in state court under state law. In each he

sought an injunction against the application of the Rule of 

Three and an order removing the City’s term-limits referendum from the ballot or nullifying the voters’ approval of that 

referendum. In the federal suit, which was joined by Grant 

and the citizens group, plaintiffs also sought damages. Jones

lost the state suit. Jones v. Calumet City, 2017 IL App (1st) 

170236. (The defendants in the federal suit have not invoked 

preclusion, even though Jones deliberately split his claims.) 

The district court denied Jones’s motion for a preliminary 
No. 17-1227 3

injunction, and we affirmed. Jones v. Markiewicz-Qualkinbush, 

842 F.3d 1053 (7th Cir. 2016). Now we have the appeal from 

the district court’s final decision in defendants’ favor. The 

request for an injunction against the application of the Rule 

of Three in November 2016 is moot, but the requests for 

damages plus prospective relief that would knock out the 

Rule of Three in the future, and abrogate the term-limits rule 

that prevents Jones from running for mayor, remain live.

According to Jones (as we now call the three federal 

plaintiffs collectively), the Rule of Three violates the First

Amendment (applied to the states by the Fourteenth 

Amendment) because it disables him from asking voters to 

support his proposal. The Rule of Three selects the first three 

proposals to be certified, and a municipality can reach that 

goal with as li\le as 48 hours’ notice, see 5 ILCS 120/2.02(a), 

while a private citizen’s proposal depends on acquiring 

enough signatures. 10 ILCS 5/28-7. This means that a city observing a signature-gathering campaign in progress can get 

its own proposals on the ballot first—even if the real goal of 

those proposals is just to prevent the private ones from appearing. Jones contends that this is what happened in 2016 

and maintains that any system barring private proposals 

from the ballot—whether directly or by allowing a unit of 

government to fill the available slots—violates the First 

Amendment.

This assumes that the ballot is a public forum and that 

there is a constitutional right to place referenda on the ballot. 

But there is no such right. Nothing in the Constitution guarantees direct democracy. The Constitution establishes the 

United States as an indirect democracy, in which elected 

representatives make the law. The nation’s founders thought 
4 No. 17-1227

that direct democracy would produce political instability 

and contribute to factionalism. See, e.g., Federalist No. 10

(Madison). 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.

To the contrary, many courts have held that private citizens lack a right to propose referenda or initiatives for any 

ballot, federal or state. See Molinari v. Bloomberg, 564 F.3d 

587, 597 (2d Cir. 2009) (“[T]he right to pass legislation 

through a referendum is a state-created right not guaranteed 

by the U.S. Constitution”); Kendall v. Balcerzak, 650 F.3d 515, 

523 (4th Cir. 2011) (“The referendum is a form of direct democracy and is not compelled by the Federal Constitution”); 

Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 

295 (6th Cir. 1993) (“[W]e conclude that ... the Constitution 

does not require a state to create an initiative procedure”); 

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

(“Clearly, the right to a state initiative process is not a right 

guaranteed by the United States Constitution, but is a right 

created by state law”); Angle v. Miller, 673 F.3d 1122, 1133 

(9th Cir. 2012) (“There is no First Amendment right to place 

an initiative on the ballot”); Petrella v. Brownback, 787 F.3d 

1242, 1259 (10th Cir. 2015) (“[W]e have repeatedly held that 

there is no First Amendment right to propose a voter initiative”); Biddulph v. Mortham, 89 F.3d 1491, 1497–98 (11th Cir. 

1996) (“[T]he right to place a citizen initiative proposal on 

the ballot is a state-created right (and thus, by implication, 

not a right guaranteed by the First Amendment).”). See also

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 

(1997) (“Ballots serve primarily to elect candidates, not as 

forums for political expression.”); John Doe No. 1 v. Reed, 561 
No. 17-1227 5

U.S. 186, 212 (2010) (Sotomayor, J., concurring, joined by 

Stevens & Ginsburg, JJ.) (“[W]e must be mindful of the character of initiatives and referenda. These mechanisms of direct democracy are not compelled by the Federal Constitution”); Georges v. Carney, 691 F.2d 297, 300 (7th Cir. 1982) 

(“[T]he parties to this litigation agree that there is no constitutional right to use the ballot box as a forum for advocating 

a policy”).

Many of these decisions have cited Meyer v. Grant, 486 

U.S. 414 (1988). Meyer concerned a challenge to a Colorado 

statute that criminalized the payment of petition circulators. 

Among other things, the state argued that, because the federal Constitution did not prohibit Colorado’s government 

from completely eliminating citizens’ state-created right to 

propose ballot initiatives, the statute did not significantly 

burden protected speech. The Court rejected this argument 

and ultimately struck down the statute—a state that does 

open the ballot cannot impose unconstitutional conditions—

but did not reject the premise that the right to propose initiatives is an exclusively state-created right that the First 

Amendment does not guarantee. Id. at 424–25.

So is the Rule of Three an unconstitutional condition on 

the exercise of a state-created right? Because the Rule of 

Three does not distinguish by viewpoint or content, the answer depends on whether the rule has a rational basis, not 

on the First Amendment. There can be li\le doubt that the 

Rule of Three is rationally related to a legitimate state objective. Each voter knows that other people likely will determine the outcome. That leads to free riding: each voter is 

tempted to allow others to do the work of reading about 

candidates, studying proposals, and making hard decisions. 
6 No. 17-1227

Many voters will do the work out of civic spirit, and others

will do it out of self-interest (if some candidate or proposal 

could have a big effect on that voter), but the more complex 

the ballot the less a\ention each candidate and proposal receives. So the Supreme Court has said that states have a 

strong interest in simplifying the ballot. See, e.g., Munro v. 

Socialist Workers Party, 479 U.S. 189, 194–96 (1986); Illinois 

State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 

184–85 (1979); Bullock v. Carter, 405 U.S. 134, 145 (1972).

Limiting the number of referenda improves the chance 

that each will receive enough a\ention, from enough voters, 

to promote a well-considered outcome. 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. Indeed, Georges sustains the Rule of Three 

against the sort of arguments that Jones has advanced.

If we take Jones as objecting to the order in which proposals are placed on the ballot—with a municipality’s coming first as a practical ma\er, creating the possibility that all 

private proposals will be excluded—nothing changes. Because the ballot is not a public forum, the Constitution does 

not prevent a state from reserving the referendum process 

for its own communication, asking the voters to give thumbs 

up or down to municipal proposals while preventing any 

other access. That is indeed how many nonpublic forums 

operate, as means for communication by a single speaker or 

group of favored speakers. See, e.g., Perry Education Association v. Perry Local Educators’ Association, 460 U.S. 37 (1983).

Jones makes a different kind of challenge to the referendum that knocked him out of the race for mayor. He con-
No. 17-1227 7

tends that placing the City’s referendum on the ballot violated the Equal Protection Clause of the Fourteenth Amendment. It does not draw any suspect or forbidden line; it covers all persons who have served four or more terms in local 

offices. No one thinks that term limits are uniformly unconstitutional. But Jones says that this referendum was aimed at 

him, specifically, and therefore treated him as a prohibited 

class of one. See Village of Willowbrook v. Olech, 528 U.S. 562 

(2000); Del Marcelle v. Brown County, 680 F.3d 887 (7th Cir. 

2012) (en banc).

The Appellate Court of Illinois observed that this is false 

in fact. Three aldermen, not just Jones, were in their fourth or 

fifth terms and thus were ruled out of the mayoral race. 2017 

IL App (1st) 170236 at ¶6. The referendum also prevents 

Markiewicz-Qualkinbush from running for reelection in 

2021. It does not identify Jones by name; he does not contend 

that it should be treated as a bill of a\ainder. Still, he says 

that because he was the only person affected by the referendum in 2017 (the other two aldermen did not want to run for 

mayor), it should be treated as if it specified him as a class of 

one.

Olech holds that governmental action in class-of-one situations requires a rational basis. See also Nixon v. Administrator of General Services, 433 U.S. 425, 468–84 (1977). (Whether 

there is also a state-of-mind requirement divided the court in

Del Marcelle, which did not produce a majority for any rationale.) Jones does not deny that term-limits rules in general 

are supported by rational bases; instead he contends that 

this referendum lacks an adequate basis for knocking him, in 

particular, out of the 2017 race. The proposal designed to 

eliminate Markiewicz-Qualkinbush from the 2017 election
8 No. 17-1227

may or may not have been a political dirty trick, but Jones 

tells us that the City’s referendum definitely was a political 

dirty trick rather than a piece of neutral legislation.

That’s politics: if Senators from State A propose to cut off 

a project valuable to State B, and Senators from B then support a tariff that hurts producers in State A, courts don’t use 

the Equal Protection Clause to regulate the outcome. Politics 

is a rough-and-tumble game, where hurt feelings and 

thwarted ambitions are a necessary part of robust debate. 

See Manley v. Law, 889 F.3d 885 (7th Cir. 2018). It is impossible to imagine the judiciary a\empting 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. The right response is political: Jones could 

have campaigned against the City’s referendum, and if the 

people wanted him to be mayor they could have defeated 

the proposed term limit. Instead it received about 65% of the 

votes cast.

Engquist v. Oregon Department of Agriculture, 553 U.S. 591 

(2008), holds that a fired public employee cannot use a classof-one claim to contest the discharge or otherwise to ask a 

federal court to govern management of the workplace. The 

Court observed that a public employer, like a private employer, must exercise control that is bound to ruffle some 

feelings and produce economic injury. It added that judicial 

intervention under a class-of-one approach would substantially displace hierarchical (or civil-service) management 

practices and crimp management in ways that would do 

more harm than good. See also GarceWi v. Ceballos, 547 U.S. 
No. 17-1227 9

410 (2006) (for similar reasons, the First Amendment does 

not apply to speech that is part of a public job).

Everything that Engquist and Ceballos said about using 

constitutional law to regulate personnel management in a 

public workforce goes double about using class-of-one litigation to regulate political infighting. Any effort by the judiciary to stop one politician from proposing and advocating 

steps that injure another politician would do more to violate 

the First Amendment (the right to advocate one’s view of 

good policy is the core of free speech) than to vindicate the 

Equal Protection Clause. Laws with general effects must 

have the support of a rational basis, but as we observed earlier the Rule of Three has such a basis, and Jones does not 

contest the validity of term limits. A class-of-one claim cannot be used to a\ack political practices that are valid as a 

general ma\er but bear especially hard on one politician. Cf. 

Washington v. Davis, 426 U.S. 229 (1976) (only disparate 

treatment can violate the Equal Protection Clause; disparate 

impact does not); Personnel Administrator of MassachuseWs v. 

Feeney, 442 U.S. 256 (1979) (same). The price of political dirty 

tricks must be collected at the ballot box rather than the 

courthouse.

AFFIRMED