United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 98-2724

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Jay Gary Wellwood, Individually and *

as a Representative of Citizens for a *

Better Pope County, *

*

Appellant, *

*

v. * Appeal from the United States

* District Court for the Eastern

Don Johnson, Clerk of Pope County, * District of Arkansas.

Arkansas, and State of Arkansas *

ex rel. Winston Bryant, Attorney *

General; Larry Newberry, John *

Robert Hawkins, and Larry Kinslow; *

and Gregg Long, Individually and *

in His Capacity as Representative of *

Citizens United to Protect Pope *

County; Charles Colflesh, Individually *

and in His Capacity as Representative *

of Citizens United to Protect Pope *

County; and Margaret Ragains, *

Individually and in Her Capacity as *

Representative of Citizens United *

to Protect Pope County, *

*

Appellees. *

___________

Submitted: February 10, 1999

Filed: April 16, 1999

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1The Honorable Susan Webber Wright, Chief United States District Judge for

the Eastern District of Arkansas.

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Before WOLLMAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

To put a local initiative on the ballot for most issues, Arkansas law requires the

signatures of 15 percent of the registered voters in a political subdivision. Act 266

of 1985 raised this requirement to 30 percent for local-option elections (initiatives to

decide whether to change a county from "wet" to "dry," or vice versa), and Act 243

of 1993 changed that requirement to 38 percent. See Ark. Code Ann. § 3-8-205(a).

Jay Gary Wellwood, individually and as a representative of a group styling itself

Citizens for a Better Pope County, sought a declaratory judgment that both statutes

unconstitutionally deprived him and his organization of rights guaranteed under the

Free Speech Clause of the First Amendment and under the Equal Protection and Due

Process Clauses of the Fourteenth Amendment. The district court1 granted the

defendants' motion to dismiss, holding that neither statute violates the Constitution.

Mr. Wellwood appeals and we affirm.

I.

The defendants contend that the relevant statutes are constitutional because the

Twenty-first Amendment's broad grant of power to the states to regulate alcohol

authorizes them. As the district court correctly pointed out, however, the purpose of

that amendment was to create an exception to the Commerce Clause and "[o]nce

passing beyond consideration of the Commerce Clause, the relevance of the Twentyfirst Amendment to other constitutional provisions becomes increasingly doubtful."

Craig v. Boren, 429 U.S. 190, 206 (1976). In fact, the Supreme Court has held that

the Twenty-first Amendment does not empower the states to pass laws that would
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 otherwise violate the First Amendment, 44 Liquormart, Inc. v. Rhode Island, 517

U.S. 484, 489, 516 (1996), or the Fourteenth Amendment, California Retail Liquor

Dealers Association v. Midcal Aluminum, Inc., 445 U.S. 97, 110, 114 (1980). Thus,

the Twenty-first Amendment has no bearing on our consideration of the three

constitutional challenges, which we now address in turn. 

For his First Amendment claim, Mr. Wellwood relies primarily on a line of

cases holding that the right to free speech is violated when the process of acquiring

signatures for ballot petitions is interfered with in a way that restricts the expression

of a particular political view. The most important of these cases, Meyer v. Grant, 486

U.S. 414, 416, 428 (1988), struck down a Colorado statute that made it an offense to

pay petition circulators. The Court applied strict scrutiny to the statute, id. at 420,

because it saw petition-circulating as "core political speech," id. at 422.

Mr. Wellwood also calls our attention to Bernbeck v. Moore, 126 F.3d 1114, 1117

(8th Cir. 1997), in which we relied on Meyer in striking down a Nebraska statute that

prohibited persons who were not registered voters from circulating petitions. 

We believe that these cases are inapposite to the present situation. In

Dobrovolny v. Moore, 126 F.3d 1111, 1112-13 (8th Cir. 1997), cert. denied, 118

S. Ct. 1188 (1998), we held that the principles laid out in Meyer did not invalidate a

Nebraska constitutional provision that required initiative petitions to include

signatures equal to 10 percent of the number of voters registered on the day that the

petitions were to be submitted. Even though this provision made it impossible for the

proponents of initiatives to know how many signatures were needed (and thus made

it more difficult to get issues on the ballot), we held that the requirement did not

violate the First Amendment because it did not infringe upon the "ability to circulate

petitions or otherwise engage in political speech," id. at 1112. That is equally the

case here. As the district court pointed out, the statutes involved in this case in no

way burden the ability of supporters of local-option elections to make their views

heard.
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Mr. Wellwood attempts to salvage his free speech claim by maintaining that

the statutes illegally discriminate between those who want the "wet/dry" issue on the

ballot and those who want other issues on the ballot. There is much case law

concerning discrimination against a specific position on a particular issue, but very

little with respect to discrimination against an issue itself, regardless of viewpoint.

The closest that the cases come to recognizing this latter kind of discrimination as

illegal is Hunter v. Erickson, 393 U.S. 385 (1969), an equal protection case. 

In Hunter, 393 U.S. at 393, the Supreme Court struck down an amendment to

the city of Akron's charter that singled out fair housing measures (those intended to

end housing discrimination on the basis of "race, color, religion, national origin or

ancestry," id. at 387) passed by the city council and subjected them to an automatic

referendum requirement. The new requirement essentially created an extra step for

the passage of such measures. Although that case appears somewhat similar to this

one because a single issue was subjected to a special requirement, the Court, in

holding that the provision violated equal protection, made it clear that that was only

because the amendment had a discriminatory effect on minorities (since they were the

ones who would suffer if fair housing measures were subject to an additional step

before they could become effective). Id. at 391. 

In Gordon v. Lance, 403 U.S. 1, 2, 7-8 (1971), a similar equal protection case,

the Supreme Court upheld West Virginia laws requiring a 60 percent vote in a

referendum to approve tax increases or to incur bond indebtedness. The Court

distinguished Hunter, reasoning that it could "discern no independently identifiable

group or category that favors bonded indebtedness over other forms of financing,"

id. at 5, and held that the challenged laws did not "violate the Equal Protection Clause

or any other provision of the Constitution," id. at 8. Thus it does not appear that the

type of discrimination that Mr. Wellwood points to is illegal absent an effect on an

"independently identifiable group," id. at 5. There is no independently identifiable
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group that favors or disfavors the sale of alcohol or supports the placement of the

"wet/dry" issue on the ballot. Mr. Wellwood's First Amendment challenge therefore

fails. 

Mr. Wellwood next contends that the Arkansas statutes violate the Fourteenth

Amendment's guarantee of equal protection by treating differently those who want the

"wet/dry" issue on the ballot and those who want any other issue on the ballot.

Mr. Wellwood's argument again relies on a discrimination between one issue and

another, but, as we saw above, the Supreme Court has declined to recognize this form

of discrimination as illegal. It has been recognized as illegal only when an

independently identifiable class had an interest in the issue discriminated against, see

Hunter, 393 U.S. at 391, and has been explicitly rejected in cases where, as here, no

such group in fact had such an interest, Gordon, 403 U.S. at 5. Mr. Wellwood's equal

protection claim therefore also fails. 

II.

Mr. Wellwood contends, finally, that the Arkansas statutes violate the

Fourteenth Amendment's guarantee of substantive due process by preventing him

from getting the "wet/dry" issue on the ballot. To violate substantive due process,

governmental action must be " 'truly irrational,' that is, 'something more ... than ...

arbitrary [and] capricious.' " Anderson v. Douglas County, 4 F.3d 574, 577 (8th Cir.

1993), cert. denied, 510 U.S. 1113 (1994), quoting Lemke v. Cass County, 846 F.2d

469, 472-73 (8th Cir. 1987) (en banc) (per curiam) (Richard S. Arnold, J.,

concurring). We do not believe that these statutes are "truly irrational." In fact, we

believe that they are rationally related to legitimate state interests.

 The defendants have posited four different objectives for the statutes in

question: promoting temperance in counties that are already "dry," promoting

stability in the distribution of alcoholic beverages, maintaining sources of revenue by

making it more difficult to vote a "wet" county "dry," and avoiding election expenses
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absent substantial support for a vote on the issue. It is clear that the statutes in

question are rationally related to each of these purposes: Temperance is promoted

because people drink less in "dry" counties; frequent changes in the "wet/dry" status

of counties create difficulty for the state's highly regulated distribution system; sellers

of liquor will leave "wet" counties if they are voted "dry" or if their "wet/dry" status

is subject to easy change; and an increase in the number of signatures required will

decrease the number of elections and therefore save election expenses.

A statute that is rationally related to a legitimate state interest cannot also be

"truly irrational." The Arkansas statutes in question thus do not violate the

Fourteenth Amendment.

For the reasons stated, we affirm the judgment of the trial court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.