dissenting:
I dissent. The holding of the majority that section 28 — 1.1 of the Election Code is invalid because the same purpose could have been accomplished by “less drastic means” is based on the fallacious premise that the right to propose a constitutional amendment by means of an initiative is to be equated with the right of suffrage.
None of the cited authorities to which the “less drastic means” test was applied involved the initiative process; they involved the opportunity to vote for a candidate for office. The Nebraska and Arizona cases cited by the majority are not controlling because they are based upon provisions of the constitutions of those States that are not found in the Constitution of Illinois.
The Arizona Constitution provides:
“Sec. 1. Legislative authority; initiative and referendum
Section 1. (1) [Senate; house of representatives; reservation of power to people] The legislative authority of the State shall be vested in a Legislature, consisting of a Senate and a House of Representatives, but the people reserve the power to propose laws and amendments to the Constitution and to enact or reject such laws and amendments at the polls, independently of the Legislature; and they also reserve, for use at their own option, the power to approve or reject at the polls any Act, or item, section, or part of any Act, of the Legislature.
(2) [Initiative power] The first of these reserved powers is the Initiative. Under this power ten per centum of the qualified electors shall have the right to propose any measure, and fifteen per centum shall have the right to propose any amendment to the Constitution.” Ariz. Const, art. 4, sec. 1.
The Nebraska Constitution provides:
“Sec. 2. First power reserved; initiative. The first power reserved by the people is the initiative whereby laws may be enacted and constitutional amendments adopted by the people independently of the Legislature. This power may be invoked by petition wherein the proposed measure shall be set forth at length. If the petition be for the enactment of a law, it shall be signed by seven per cent of the electors of the state and if the petition be for the amendment of the Constitution, the petition therefor shall be signed by ten per cent of such electors. In all cases the electors signing such petition shall be so distributed as to include five per cent of the electors of each of two-fifths of the counties of the state and when thus signed the petition shall be filed with the Secretary of State, who shall submit the measure thus proposed to the electors of the state at the first general election held not less than four months after such petition shall have been filed. The same measure, either in form or in essential substance, shall not be submitted to the people by initiative petition, either affirmatively or negatively, oftener than once in three years. If conflicting measures submitted to the people at the same election be approved, the one receiving the highest number of affirmative votes shall thereby become law as to all conflicting provisions. The constitutional limitations as to the scope and subject matter of statutes enacted by the Legislature shall apply to those enacted by the initiative.” Neb. Const, art. III, sec. 2.
That under the Constitution of this State the right to propose a constitutional amendment by initiative is not to be equated with the right to vote is clearly demonstrated by the explicit language of the Constitution. Article III, section 3, of the Constitution of 1970 provides that “All elections shall be free and equal,” and is designed to assure to every citizen the right to vote. In constrast, the method of effecting a change in the legislative article by means of an initiative is very carefully limited. See Ill. Const. 1970, art. XIV, sec. 3.
At the time of the constitutional convention only 13 State constitutions contained provisions for an initiative. (7 Record of Proceedings, Sixth Illinois Constitutional Convention 2299.) The Constitution of 1870 contained no such provision, and constitutional amendment could be commenced only by constitutional convention or legislative proposal. (Ill. Const. 1870, art. XIV, secs. 1, 2.) It is apparent from the constitutional debates that the framers of the 1970 Constitution were acutely aware of the abuse of the initiative in other States and wished to prevent its misuse in Illinois. The discussions show a clear intent to limit the use set forth in article XIV, section 3, and to that end the convention included the requirement that the petitions be signed by 8% of the vote cast in the preceding gubernatorial election. In view of the very restricted provision for use of the initiative, the citation of authorities from Arizona and Nebraska is meaningless.
Assuming, arguendo, the relevance of the cases involving the petition requirements to place the name of a candidate on the ballot, it should be noted that the rationale of the cases in which unusual limitations on those requirements have been held invalid on the ground that the legislative purpose could have been achieved by less drastic means is that in no other manner could the electorate have been presented the opportunity to exercise its right to nominate and elect those persons to office. On the contrary, that condition does not exist with respect to amendments to the Constitution. Article XIV provides that the General Assembly may, at any time, place on the ballot the question whether a constitutional convention should be called. If the question is not submitted during any 20-year period the Secretary of State must submit the question at the general election in the 20th year following the last submission. Further, the electorate, displeased with the failure of its elected representatives to call a convention or to place an amendment on the ballot can demonstrate its displeasure by voting out of office those members of the General Assembly who failed to vote in favor of the amendment allegedly desired by the electorate.
Section 3 of article XIV requires the General Assembly to provide by law “[t]he procedure for determining the validity and sufficiency of a petition ***.” We have held repeatedly that whether the course chosen by the General Assembly to achieve a desired result is either wise or the best means available is not a proper subject of judicial inquiry. The majority recognizes that the statewide referendum on what was popularly known as the “Thompson” proposition resulted in a number of individuals being convicted of misconduct in circulating the petitions. The General Assembly, acutely aware of the problem created at that time, apparently sought to forestall its repetition by the enactment of the legislation here under attack. This, it seems to me, falls within the ambit of its constitutional charge to provide by law “[t] he procedure for determining the validity and sufficiency of a petition ***.” Furthermore, the record shows beyond question that the proponents of the proposal failed to comply with the statute, as amended, not because to do so would have been unduly burdensome but because they had concluded that it was invalid.
MR. JUSTICE RYAN joins in this dissent.