                               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, MANION, and KANNE, 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 mar-
2                                                 No. 06-3111

riage 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.”
  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 signa-
tures “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
No. 06-3111                                                  3

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 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).
Likewise a state 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 method 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 candi-
dates.
  Even if as we do not believe Illinois is required by the
First Amendment to impose only limitations that we
4                                                 No. 06-3111

would deem reasonable on access to the ballot for polit-
ical 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 over-
long 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 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. Anyway, while the canvasser could carry with
him on his forays blank sheets of paper he wouldn’t need
110 of them on which to write the number of the dis-
trict 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 peti-
tions by district and attach all the petitions from the same
district to a sheet.
No. 06-3111                                                5

  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 signa-
tures 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 constitutional-
ly forbid proponents to pay the canvassers. The Court made
clear, however, that the state was free not only to impose a
percentage requirement for ballot eligibility but also to
adopt strict measures for preventing the forging of signa-
tures. It was in light of these controls that the Court con-
cluded that the criminalization of paid canvassers
was an undue further burden on the initiative process. Id. at
425-28. Another superfluous restriction on Colorado’s
initiative process—requiring that the canvassers be regis-
tered 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 homo-
6                                                 No. 06-3111

sexual 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 restric-
tions 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 initia-
tives or referenda place reasonable restrictions (as the Court
acknowledged in Meyer) 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 further argue that Illinois has denied
them the equal protection of the laws by allowing a candi-
date 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 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
No. 06-3111                                                   7

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 thou-
sands 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.
8                                            No. 06-3111

A true Copy:
       Teste:

                      _____________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                USCA-02-C-0072—9-14-06
