Sara L. Ellis
Sara L. Ellis

A federal judge Monday indicated her skepticism that Gov. J.B. Pritzker’s limits on gatherings during the pandemic unfairly infringe on political parties’ rights.

U.S. District Judge Sara L. Ellis during the hour-long phone hearing largely directed her questions toward arguments made by Daniel Suhr, a senior associate attorney for the Liberty Justice Center, which represents the plaintiff Illinois Republican Party, Will County Republican Central Committee, Schaumburg Township Republican Organization and Northwest Side GOP Club.

They sued Pritzker earlier this month alleging his May 29 executive order, which explicitly lifted in-person restrictions for religious gatherings but not for political parties, violated their First and 14th Amendment rights.

The three-count complaint seeks a declaratory judgment that Pritzker issued the order and its accompanying disaster proclamation ultra vires, or beyond the legal scope, of his authority under the Illinois Emergency Management Agency Act.

They argue an injunction would allow them to hold in-person gatherings like campaign rallies without size restrictions in the run-up to the November general election.

Suhr on Monday told Ellis that Pritzker created a “carve-out” for some in-person gatherings but not for others.

The “winners” created by the governor’s order, according to Suhr, include in-person religious services at churches and Black Lives Matter protests across the state, which followed the killing of George Floyd at the hands of Minneapolis police.

Pritzker “explicitly endorsed” protests against police brutality and attended one, suggesting other participants would be exempt from enforcement of the gathering limits, Suhr said.

That implied immunity conflicts with the threat of enforcement that was directed toward “Reopen Illinois” protests and in-person gatherings of political parties, he argued.

“The governor has extended the cover of his blessing to one type of rally and permitted that to go forward without law enforcement, and yet for our clients, they show up and they may or may not face law enforcement,” Suhr said. “That different treatment is at the heart of our argument. We fundamentally believe you shouldn’t have to risk arrest to exercise your First Amendment rights.”

Ellis pushed back.

“People do that all the time, counsel, all the time,” she said. “When you go and protest, that’s exactly one of the things you think about — that you may be risking arrest. That’s why it’s called a protest.”

People who attended a protest or rally while the gathering limits were in place took the same calculated risk that there would not be enforcement, regardless of the political affiliation of the gathering, Ellis said. And because there has not been enforcement of the order at rallies and protests, she said, nothing is stopping the GOP from taking the same risk.

Illinois Assistant Attorney General Jeffrey J. VanDam largely invoked the same argument.

The limits ordered by the governor are only intended to regulate gatherings, not speech or expressive conduct, VanDam said, adding that the state has not taken action against any political protests or rallies, even when they were held on state property.

The state also has a compelling interest to impose limits on in-person gatherings to combat the spread of the coronavirus, VanDam said. The 10-person limit on public gatherings was replaced with a 50-person limit on June 26, when the state entered Phase 4 of Pritzker’s “Restore Illinois” reopening plan.

Sparing political parties from the limit would create another category of exempted gatherings, which could be extended to other places like movie theaters and businesses, he said.

“It could open the floodgates, honestly, and dilute the order,” VanDam said.

Ellis agreed that one of the ways to prevent the spread of the virus is to limit the number of people gathering in one place at any time.

And imposing those limits, whether on religious services or political events, does not infringe on participants’ ability to exercise religion or exercise speech, she said.

“They just cannot do it in numbers larger than 50,” Ellis said.

This case is Illinois Republican Party et al. v. J.B. Pritzker, No. 20 C 3489.