                           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.”

*
    This opinion is being released in typescript. A printed version will follow.
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
No. 06–3111
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.
