Thompson v. DeWine

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

CHAD THOMPSON, et al.,

Plaintiffs,

Case No. 2:20-cv-2129

v. JUDGE EDMUND A. SARGUS, JR.

Magistrate Judge Chelsey M. Vascura

GOVERNOR OF OHIO

MICHAEL DEWINE, et al.,

Defendants.

OPINION AND ORDER

Plaintiffs initiated this action in April of 2020 challenging Ohio’s requirements for placing

initiatives on the November 2020 general election ballot in light of the COVID-19 pandemic and

Ohio’s stay-at-home orders. In May of 2020, this Court granted in part Plaintiffs’ motion for a

preliminary injunction. The Sixth Circuit Court of Appeals stayed the preliminary injunction

pending an appeal and eventually reversed the grant of a preliminary injunction in September of

2020. (ECF No. 58.) Plaintiffs petitioned the Supreme Court for a writ of certiorari, which the

Supreme Court denied.

Defendants now move to dismiss under Rule 12(b)(1) and (6). (ECF No. 68.) Plaintiffs

move for judgment on the pleadings under Rule 12(c). (ECF No. 71.) Defendants contend that

this case is moot because Plaintiffs only sought relief related to the November 2020 election.

Plaintiffs disagree, arguing that this case falls within the “capable of repetition, yet evading

review” exception to the mootness doctrine. Plaintiffs contend that they are suffering the same

injury in the 2021 election cycle as they suffered in 2020. They argue that enforcement of Ohio’s

ballot-initiative requirements, combined with the ongoing COVID-19 pandemic and Ohio’s public

health orders violates the First Amendment as applied to them. They now seek declaratory and

injunctive relief for the duration of the pandemic.

Whatever the merits of Plaintiffs’ claims, a fair reading of the Sixth Circuit’s opinions in

this case leaves no room for these allegations. Accordingly, the Court GRANTS Defendants’

Motion to Dismiss.

I. Background

The background of this case is set out at length in this Court’s preliminary injunction order

and the Sixth Circuit’s opinions that came after. Thompson v. DeWine, 461 F. Supp. 3d 712 (S.D.

Ohio), stayed, 959 F.3d 804 (6th Cir. 2020), rev’d, 976 F.3d 610 (6th Cir. 2020). But the key facts

bear repeating, as do subsequent developments since the November 2020 general election.

Plaintiffs are three registered Ohio voters who “regularly circulate petitions to have

initiatives placed on local election ballots throughout Ohio and in adjacent States.” (Compl. ¶ 4,

ECF No. 1; Stip. Facts ¶ 1, ECF No. 35.) In 2020, Plaintiffs sought to place initiatives to

decriminalize marijuana possession on the November 3, 2020 general election ballot in cities and

villages throughout Ohio. (Stip. Facts ¶¶ 3–4.) To place an initiative on a municipal ballot, Ohio

law requires a petition to be submitted to the Ohio Secretary of State with the signatures of at least

ten percent of the number of electors who voted for governor in the municipality’s previous general

election. Ohio Rev. Code § 731.28. The signatures must be original, affixed in ink, and witnessed

by the petition’s circulator. Id. § 3501.38. The collected signatures must be submitted to the Ohio

Secretary of State at least 110 days before the election. Id. § 731.28.

In early March of 2020, less than two weeks after Plaintiffs filed several proposed

initiatives to begin collecting signatures, Governor DeWine declared a state of emergency in Ohio

due to the outbreak of COVID-19. (Stip. Facts ¶¶ 4, 18.) Over the next few days, the Ohio

Department of Health issued several emergency public health orders to limit the spread of COVID-

19. (Id. ¶¶ 19–29.) On March 22, 2020, the Ohio Department of Health issued the “Director’s

Order that All Persons Stay at Home Unless Engaged in Essential Work Activity.” (Id. ¶ 30.)

A month later, in April 2020, Plaintiffs filed this action against Governor DeWine, then-

Director of the Ohio Department of Health Dr. Amy Acton, and Ohio Secretary of State Frank

LaRose in their official capacities. (Compl. ¶¶ 1–12.) Plaintiffs alleged that they were “prevented

from collecting the needed supporting signatures of Ohio voters required by Ohio law to place

their initiatives on . . . local November 3, 2020 election ballots by the COVID-19 pandemic” and

Governor DeWine and then-Director Acton’s emergency public health orders. (Id. ¶ 10.) Plaintiffs

moved for a preliminary injunction, requesting that the Court either (1) direct “Defendants to

immediately place Plaintiffs’ marijuana decriminalization initiatives on local November 3, 2020

election ballots without the need for supporting signatures from Ohio voters,” or alternatively (2)

modify Ohio’s in-person signature requirements, extend the deadlines for submitting signatures,

require Defendants to develop procedures for gathering electronic signatures, and reduce the

number of needed voter signatures. (Compl. ¶ 79.)

This Court granted Plaintiffs’ request for injunctive relief in part in May of 2020. The

Court enjoined enforcement of the ink signature and witness requirements for the November 2020

general election as to Plaintiffs and also enjoined enforcement of the deadline in Ohio Revised

Code § 731.28 for the November 2020 general election as to Plaintiffs.1 Thompson, 461 F. Supp.

3d at 739. This Court did not enjoin the State from enforcing its signature quantity requirement.

1 The Court also granted injunctive relief in favor of two Intervenor-Plaintiffs who sought to place

proposed constitutional amendments on the ballot in the November 2020 general election. Those

Intervenor-Plaintiffs have withdrawn from this litigation.

Id. A week later, the Sixth Circuit granted Defendants’ motion for a stay pending appeal.

Thompson, 959 F.3d at 813.

In September of 2020, the Sixth Circuit reversed this Court’s grant of a preliminary

injunction. Thompson, 976 F.3d at 620. The court held that Plaintiffs were not likely to succeed

on the merits of their First Amendment challenge and that all preliminary injunction factors

weighed in favor of Ohio. Id. at 615–19. Plaintiffs therefore did not obtain relief for the November

2020 general election.

The November 2020 general election came and went. The COVID-19 pandemic remained.

In early 2021, Plaintiffs petitioned the United States Supreme Court for a writ of certiorari for

interlocutory review of the Sixth Circuit’s decision reversing this Court’s grant of a preliminary

injunction. The Supreme Court denied Plaintiffs’ petition in April 2021. Thompson, No. 20-1072,

2021 WL 1520804, at *1 (U.S. Apr. 19, 2021). Following the denial of certiorari, Defendants

moved to dismiss, arguing that the case is moot and that Defendants are now immune from any

retrospective relief under the Eleventh Amendment. (Defs.’ Mot. Dismiss, ECF No. 68.)

Plaintiffs move for judgment on the pleadings. They ask the Court to declare strict

enforcement of Ohio’s ballot-initiative requirements unconstitutional for the duration of the

pandemic and to grant a permanent injunction: (1) prohibiting enforcement of Ohio’s in-person

wet signature and witness requirements; (2) prohibiting enforcement of Ohio’s July submission

deadline; and (3) prohibiting enforcement of Ohio’s signature quantity requirements. (Pls.’ Mot.

J. on Pleadings and Resp. in Opp’n at 1, ECF No. 71, hereinafter, “Pls.’ Resp.”)

II. Standard of Review

First up, a matter of procedure. Plaintiffs argue that Defendants’ 12(b) motion is improper;

Defendants argue that Plaintiffs’ (12)(c) motion is improper. Defendants ask the Court to dismiss

Plaintiffs’ 12(c) motion on procedural grounds, while Plaintiffs ask the Court to construe

Defendants’ 12(b) motion as a motion under Rule 12(c) or Rule 56 to efficiently resolve this case

given the time-sensitive nature of Plaintiffs’ claims.

The difference between a Rule 12(b) motion and a Rule 12(c) motion “stems from when in

the course of proceedings they can be raised.” Reed Elsevier, Inc. v. TheLaw.net Corp., 269 F.

Supp. 2d 942, 947 (S.D. Ohio 2003). Motions under 12(b) must be brought before a defendant

files an answer to the complaint—except for motions under 12(b)(1), which can be brought at any

stage of the litigation. Arbaugh v. Y&H Corp., 546 U.S. 500, 506; Fed. R. Civ. P. 12(b). Motions

under 12(c) can be brought only “[a]fter the pleadings are closed[.]” Fed. R. Civ. P. 12(c).

Pleadings are only “closed” within the meaning of Rule 12(c) if an answer has been filed and no

counterclaims or crossclaims are still at issue. Williams v. United States, 754 F. Supp. 2d 942, 945

(W.D. Tenn. 2010) (citing Fed. R. Civ. P. 7(a) and Wright & Miller, 5C Fed. Prac. & Proc. § 1367

(3d ed.)).

In this case, no answer has been filed. So the pleadings have not “closed” for purposes of

Rule 12(c). See id. That means Plaintiffs’ motion is not technically proper. 2 In any event, all

procedural roads lead to the same destination in this case. Plaintiffs argue that, because the time

for filing an answer has passed, all factual allegations in the Complaint are deemed admitted. But,

in reviewing Defendants’ motion to dismiss, the Court must accept all the Complaint’s factual

allegations as true anyway. Albrecht v. Treon, 617 F.3d 890, 893 (6th Cir. 2010) (citing Ashcroft

2 Because a “plaintiff cannot move under Rule 12(c) until after an answer has been filed, the proper

course for the plaintiff in a case in which the defendant fails to answer is to move for a default judgment

under Rule 55 rather than seek a judgment on the pleadings.” Wright & Miller, 5C Fed. Prac. & Proc. Civ.

§ 1367 (3d ed.); see also, e.g., Poliquin v. Heckler, 597 F. Supp. 1004, 1006 (D. Me. 1984) (holding the

same); Stands Over Bull v. Bureau of Indian Affs., 442 F. Supp. 360, 367 (D. Mont. 1977) (citation omitted)

(“When a defendant has failed to file an answer, a motion for judgment on the pleadings is not the correct

procedural remedy.”).

v. Iqbal, 556 U.S. 662 (2009)). And even if Defendants’ motion to dismiss was untimely, Courts

can review motions raising Rule 12(b)(6) defenses under Rule 12(c) using an identical standard of

review. See Gillespie v. City of Battle Creek, 100 F. Supp. 3d 623, 628 (W.D. Mich. 2015);

Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 295 (6th Cir. 2008). With those

distinctions noted, the Court moves on to the standard of review.

Rule 12(b)(1) challenges the Court’s subject-matter jurisdiction. Fed. R. Civ. P. 12(b)(1).

There are two types of subject-matter jurisdiction challenges: facial attacks and factual attacks.

United States v. Richie, 15 F.3d 592, 598 (6th Cir. 1994). When a motion “attacks the factual basis

for jurisdiction,” as Defendants’ motion does here, “the district court has broad discretion over

what evidence to consider and may look outside the pleadings to determine whether subject-matter

jurisdiction exists.” Adkisson v. Jacobs Eng’g Grp., Inc., 790 F.3d 641, 647 (6th Cir. 2015). The

plaintiff has the burden of proving subject-matter jurisdiction when jurisdiction is challenged

under Rule 12(b)(1). Rogers v. Stratton Indus., Inc., 798 F.2d 913, 915 (6th Cir. 1986).

To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 677–78 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the

court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.

Furthermore, “[a]lthough for purposes of a motion to dismiss [a court] must take all the factual

allegations in the complaint as true, [it][is] not bound to accept as true a legal conclusion couched

as a factual allegation.” Id. at 677–79 (quoting Twombly, 550 U.S. at 55) (internal quotations

omitted).

“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented

to and not excluded by the court, the motion must be treated as one for summary judgment under

Rule 56.” Fed. R. Civ. P. 12(d). However, “[i]n ruling on a motion to dismiss, the Court may

consider the complaint as well as (1) documents referenced in the pleadings and central to

plaintiff's claims, (2) matters of which a court may properly take notice, [and] (3) public

documents[.]” Overall v. Ascension, 23 F. Supp. 3d 816, 824 (E.D. Mich. 2014) (citing Yeary v.

Goodwill Indus.-Knoxville, Inc., 107 F.3d 443, 445 (6th Cir. 1997)). In deciding these motions,

the Court will look to the pleadings, the stipulated facts in the record, and facts of which the Court

will take judicial notice.3

III. Analysis

The Court first takes up Defendants’ Motion to Dismiss. (Defs.’ Mot., ECF No. 68.) The

Court must first address Defendants’ 12(b)(1) motion because the Court has no power to consider

a Rule 12(b)(6) motion if it lacks subject-matter jurisdiction. Moir v. Greater Cleveland Reg’l

Transit Auth., 895 F.2d 266, 269 (6th Cir. 1990).

A. Plaintiffs’ claims are capable of repetition, yet evading review.

Defendants assert that the Court lacks subject-matter jurisdiction because Plaintiffs’ claims

were rendered moot once the November 3, 2020 election occurred. (Defs.’ Mot. at 6.) Plaintiffs

disagree. Plaintiffs assert that their claims meet the “capable of repetition, yet evading review”

exception to mootness. (Pls. Resp. at 22.)

The judicial power under Article III of the U.S. Constitution only extends to “Cases” and

“Controversies”. U.S. Const. Art. III, § 2. A case becomes moot “when the issues presented are

no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Already, LLC v.

3 Plaintiffs urge the court to take judicial notice of subsequently adopted emergency orders as

public records. (Pls.’ Resp. at 6–7.)

Nike, Inc., 568 U.S. 85, 91 (2013) (citing Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)).

If a case becomes “moot at any point during the proceedings” it falls outside the jurisdiction of a

federal court. United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1537, 200 L. Ed. 2d 792 (2018)

(internal quotations and citation omitted).

The Supreme Court has recognized an exception to the mootness doctrine in cases that are

“capable of repetition, yet evading review.” Murphy, 455 U.S. at 482. In the absence of a class

action, this exception applies in situations when: “(1) the challenged action [is] in its duration too

short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable

expectation that the same complaining party [will] be subjected to the same action again.” Id.

(citing Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam)). This exception applies

“only in exceptional situations[.]” Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969,

1976 (2016) (citation omitted).

The first prong—whether the action is too short in duration to be fully litigated prior to

expiration—is “easily satisfied” in challenges to election laws brought during the election cycle.

Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 584 (6th Cir. 2006). In Blackwell, “less

than eleven months elapsed between the filing of the lawsuit and the occurrence of the election[.]”

Id. In this case, less than seven months elapsed between the filing of the lawsuit in April 2020 and

the November 3, 2020 general election.

Mootness in this case therefore turns on the second prong—whether there is a “reasonable

expectation that” Plaintiffs will “be subjected to the same action again.” Murphy, 455 U.S. at 482

(citation omitted). To satisfy the second prong, “there must be a ‘reasonable expectation’ or a

‘demonstrated possibility’ that the same controversy will recur involving the same complaining

party.” Kundrat v. Halloran, 206 F. Supp. 2d 864, 869 (E.D. Mich. 2002) (citing Murphy, 455

U.S. at 482).

Defendants argue this case is moot and that it is not “capable of repetition, yet evading

review.” They contend that “Plaintiffs have not shown that another pandemic with the severity of

COVID-19 is likely to occur again, or that the COVID-19 pandemic will revert back to the

conditions as they existed in the spring of 2020, or that Ohio would issue public health orders that

would prevent them from obtaining signatures.” (Defs.’ Reply in Support at 13.) Defendants

argue that, because this is an as-applied challenge to Ohio’s ballot-initiative requirements during

the COVID-19 pandemic, it is “uniquely incapable of repetition.” (Id. at 14 (emphasis in

original).) Defendants point out that the Ohio Department of Health rescinded the restrictive

orders that Plaintiffs alleged in the Complaint made it impossible for them to collect signatures.

(Defs.’ Mot. at 8.) They argue that the operative order from the Ohio Department of Health is

much less restrictive. (Id. at 8.) On May 17, 2021, the Ohio Department of Health issued an order

stating that “the vast majority of health orders—except some orders for safety in congregate living

and health settings and some technical matters—will be rescinded on June 2, 2021[.]”4

Plaintiffs submit that they are actively attempting to qualify initiatives for local ballots for

the November 2021 election subject to the same ballot-initiative laws Plaintiffs originally

challenged. (Pls.’ Resp. at 26–27.) And, crucially, the COVID-19 pandemic remains ongoing.

(Id.) They argue that there “is not only a likelihood of recurrence, there is a recurrence here.” (Id.

at 27.)

Plaintiffs have shown a “‘demonstrated possibility’ that the same controversy will recur”

involving them. Kundrat, 206 F. Supp. 2d at 869 (citing Murphy, 455 U.S. at 482). Plaintiffs

4 Ohio Dep’t of Health, Director’s Second Amended Order for Social Distancing, Facial Coverings

and Non-Congregating (May 17, 2021).

allege in the Complaint that “Ohio law, taken together with the COVID-19 outbreak and

Defendants’ orders, directly cause injury-in-fact to Plaintiffs” and that Plaintiffs’ injuries are

“fairly traceable to the Ohio laws requiring in person signature collection for candidates, the

COVID-19 pandemic, and the Defendants’ orders described in this action.” (Compl. ¶¶ 60–61.)

While the “Defendants’ orders described” in the Complaint have changed, the Ohio laws requiring

in-person signature collection remain in place. And the COVID-19 pandemic is ongoing.5

One year ago, society was optimistic that the worst of the pandemic passed and that

emergency public health restrictions would lessen. In this case, the Court of Appeals observed on

May 26, 2020, “What’s more, Ohio is beginning to lift their stay-at-home restrictions.” Thompson,

959 F.3d at 810. Instead, the pandemic worsened. In November 2020 amid an acceleration of

COVID-19 cases in the State, the Ohio Department of Health imposed a new stay-at-home order.6

This time does seem different. But the previous year illustrates the difficulty in predicting the high

and low tides of a once-in-a-century pandemic. So long as a global pandemic is present, there is

a “demonstrated possibility” that Plaintiffs will be again subject to public health orders of the type

they challenge in the Complaint.

Defendants contend that even “if pandemic conditions worsen again and the Plaintiffs’

claims are capable of repetition, they will still fail as a matter of law.” (Defs.’ Mot. at 9.) However,

that Plaintiffs’ claims may fail as a matter of law does not also mean that those claims are moot.

Plaintiffs are collecting signatures for the 2021 election; the same state laws challenged during the

2020 election cycle remain in place; the spread of COVID-19 remains a global pandemic.

5 Ohio Dep’t of Health, COVID-19 Dashboard (accessed May 28, 2021),

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/dashboards.

6 Ohio Dep’t of Health, Director’s Twenty-One Day Order that All Persons Stay at Home During

Specified Hours Unless Engaged in Work or Essential Activity (Nov. 19, 2020).

Plaintiffs’ claims therefore fall within the “capable of repetition, yet evading review” exception to

mootness.

B. Plaintiffs’ claims fail as a matter of law under Rule 12(b)(6).

Next, Defendants move for dismissal under Rule 12(b)(6). (Defs.’ Mot. at 10.) They

argue that the Eleventh Amendment bars Plaintiffs’ claims for declaratory relief related to the 2020

election because such relief is retrospective. (Id.) Defendants’ Eleventh Amendment argument is

of a piece with their argument that Plaintiffs’ claims for injunctive relief are moot, which the Court

addressed above. Plaintiffs respond that the Eleventh Amendment does not bar Plaintiffs’ claims

for declaratory relief because, although the Complaint was originally designed to obtain relief for

the November 3, 2020 election, prospective relief is still available for the 2021 election cycle.

(Pls.’ Resp. at 28.)

Defendants are entitled to dismissal of Plaintiffs’ claims, but for another reason: based on

the Sixth Circuit’s opinions in this case, Plaintiffs’ claims cannot succeed as a matter of law. In

the Complaint, Plaintiffs alleged that enforcement of Ohio’s ballot-initiative requirements for the

2020 election in conjunction with the COVID-19 pandemic and Ohio’s stay-at-home orders violate

their First and Fourteenth Amendment rights. (Compl. ¶¶ 64–78.) Plaintiffs requested declaratory

relief and preliminary and permanent injunctive relief against Defendants. (Id. ¶ 79.)

This Court granted in part Plaintiffs’ motion for a preliminary injunction on May 19, 2020.

Thompson, 461 F. Supp. 3d at 717. One week later, the Sixth Circuit granted Defendants’ motion

to stay pending appeal, holding that all four preliminary injunction factors favored Defendants.

Thompson, 959 F.3d at 812. In September of 2020, the Sixth Circuit reversed the grant of a

preliminary injunction, indicating that its analysis of the four preliminary injunction factors

remained unchanged from its order granting a stay. Thompson, 976 F.3d at 615.

Plaintiffs now request declaratory relief and a permanent injunction “(1) prohibiting

enforcement of Ohio’s in-person supporting signature requirements for candidates for office

during the ongoing COVID crisis, (2) extend[ing] the deadline for submitting supporting

signatures to city auditors, village clerks and local election boards of elections in order to qualify

popular measures for local election ballots during the ongoing COVID crisis, and (3) enjoining the

required number of signatures required in order to place initiatives on local election ballots during

the ongoing COVID crisis.” (Pls. Resp. at 43.) Further, Plaintiffs urge the Court “to order

Defendants to develop with Plaintiffs a timely, efficient and realistic procedure for gathering

supporting signatures from voters and submitting them to local officials.” (Id.) A fair reading of

the Sixth Circuit’s opinion forecloses such relief. See Thompson, 976 F.3d at 620.

1. The Sixth Circuit’s September 16, 2020 opinion guides the analysis here.

As an initial matter, the parties dispute whether the Sixth Circuit’s opinion reversing the

grant of a preliminary injunction is the “law of the case.” (Defs.’ Reply in Support and Resp. in

Opp’n at 18; Pls.’ Reply in Support at 11.)

The law-of-the-case doctrine “provides that when a court decides upon a rule of law, that

decision should continue to govern the same issues in subsequent stages in the same case.” Daunt

v. Benson, ---F.3d----, 2021 WL 2154769, at *5 (6th Cir. May 27, 2021) (citing Westside Mothers

v. Olszewski, 454 F.3d 532, 538 (6th Cir. 2006) (internal quotations omitted)). “Put another way,

‘[t]he law-of-the-case doctrine precludes reconsideration of issues decided at an earlier stage of

the case.’” Id. (citing Moody v. Mich. Gaming Control Bd., 871 F.3d 420, 425 (6th Cir. 2017)).

Whether a panel’s ruling on a preliminary injunction becomes “the law of the case is

tricky[.]” Howe v. City of Akron, 801 F.3d 718, 739 (6th Cir. 2015). As a general matter,

“decisions on preliminary injunctions do not constitute law of the case and ‘parties are free to

litigate the merits.’” William G. Wilcox, D.O., P.C. Employees’ Defined Ben. Pension Tr. v. United

States, 888 F.2d 1111, 1114 (6th Cir. 1989) (citations omitted). However, when the “appellate

panel considering the preliminary injunction has issued ‘[a] fully considered appellate ruling on

an issue of law,’ then that opinion becomes the law of the case.” Howe, 801 F.3d at 740 (citing

Wright & Miller, Fed. Prac. and Proc.: Jurisdiction and Related Matters §4478.5 (4th ed. 2015)).

Here, the Court need not determine whether the Sixth Circuit’s opinion reversing the grant

of a preliminary injunction is the law of the case. Even assuming that “the Sixth Circuit’s rulings

in the preliminary-injunction context are not binding on this Court’s current task under Rule 12,

the Court finds the rulings are persuasive[.]” Daunt v. Benson, No. 1:19-CV-614 (LEAD), 2020

WL 8184334, at *11 (W.D. Mich. July 6, 2020), aff’d, No. 20-1734, 2021 WL 2154769 (6th Cir.

May 27, 2021). The Sixth Circuit’s opinion will therefore guide this Court’s analysis.

2. Plaintiffs’ First Amendment claims fail as a matter of law under the Anderson-

Burdick framework.

A plaintiff seeking a permanent injunction must show actual success on the merits. Amoco

Prod. Co. v. Village of Gambell, AK, 480 U.S. 531, 546 n. 12 (1987). Courts review “First

Amendment challenges to nondiscriminatory, content-neutral ballot initiative requirements under

the Anderson-Burdick framework.” Thompson, 976 F.3d at 615 (citing Burdick v. Takushi, 504

U.S. 428, 434 (1992); Anderson v. Celebrezze, 460 U.S. 780, 788 (1983)). Under this framework,

“the level of scrutiny” to apply to “state election law depends upon the extent to which a challenged

regulation burdens First and Fourteenth Amendment rights.” Id. (citing Burdick, 504 U.S. at 434).

When state law imposes a severe burden, a court evaluates the law under strict scrutiny. Id. When

the law imposes “reasonable, nondiscriminatory restrictions,” a court applies rational-basis review

to the state law. Id. (citing Burdick, 504 U.S. at 434). When the challenged law imposes an

intermediate burden, a court weighs the burden against “the precise interests put forward by the

State as justifications for the burden imposed by its rule.” Id. (citing Anderson, 460 U.S. at 789);

Kishore v. Whitmer, 972 F.3d 745, 748–49 (6th Cir. 2020). In doing so, a court must “consider

‘the extent to which those interests make it necessary to burden the plaintiff’s rights.’” Id. at 616

(quoting Burdick, 504 U.S. at 434).

The Sixth Circuit—in both its opinion granting a stay and its opinion reversing this Court—

concluded that “Ohio’s ballot-access restrictions impose, at most, only an intermediate burden on

plaintiffs’ First Amendment rights, even during COVID-19.” Thompson, 976 F.3d at 616;

Thompson, 959 F.3d at 811. The Court will adhere to the Sixth Circuit’s reasoning. In weighing

the burdens Ohio’s ballot-initiative laws impose on Plaintiffs during the COVID-19 pandemic

against Ohio justifications for those laws, Ohio’s justifications come out on top. Id. at 616–19.

a. Burden

A “severe burden excludes or virtually excludes electors or initiatives from the ballot.” Id.

at 617. Ohio’s laws, however, “specifically exempted conduct protected by the First Amendment

from its stay-at-home orders”—including gathering signatures for petitions. Id. (citing Ohio Dep’t

of Health, Director’s Order that Reopens Businesses, with Exceptions, and Continues a Stay

Healthy and Safe at Home Order ¶ 4 (April 30, 2020)). That much remained true during and after

the election cycle following the panel’s decision in September. Ohio Dep’t of Health, Director’s

Twenty-One Day Order that All Persons Stay at Home During Specified Hours Unless Engaged

in Work or Essential Activity ¶ 2 (Nov. 19, 2020) (“This Order does not apply to . . . First

Amendment protected speech[.]”) And even though the conditions as a result of COVID-19 may

make it harder for Plaintiffs to obtain signatures, that does not mean “that Plaintiffs are excluded

from the ballot.” Thompson, 976 F.3d at 618 (citing Thompson, 959 F.3d at 810) (emphasis in

original). Therefore, Plaintiffs face an intermediate burden.

b. Ohio’s Justifications

“The next step in the Anderson-Burdick framework is a flexible analysis in which” the

Court weighs “the burden of the restriction against the state’s interests and chosen means of

pursuing them.” Id. (citing Schmitt v. LaRose, 933 F.3d 628, 641 (6th Cir. 2019), cert. denied, ---

U.S. ----, 140 S.Ct. 2803, 207 L. Ed. 2d 141 (2020)) (internal quotations omitted).

In this case, Ohio has articulated two interests. “The first relates to the ink and attestation

requirements: preventing fraud by ensuring the authenticity of signatures.” Id. The Sixth Circuit

concluded that there is “no question this is a legitimate—indeed compelling—interest.” Id.

Second, Ohio posits that its “deadlines allow it to verify signatures in a fair and orderly way,

ensuring that interested parties have enough time to appeal an adverse decision in court.” Id. This

interest is also legitimate, as “[s]tates may, and inevitably must, enact reasonable regulations of

parties, elections, and ballots to reduce election- and campaign-related disorder.” Id. (citing

Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997)).

c. Balancing of Burdens and Justifications

At the third and final and final step of Anderson-Burdick, the Court must “assess whether

the State’s restrictions are constitutionally valid given the strength of its proffered interests.” Id.

(citing Schmitt, 933 F.3d at 641). All “that’s required for the State to win at this step is for its

legitimate interests to outweigh the burden on Plaintiffs’ First Amendment rights.” Id. at 619.

The Sixth Circuit has “held, in multiple cases, that the interests Ohio pursues through its

ballot access laws ‘outweigh the intermediate burden those regulations place on Plaintiffs.’” Id.

(citing Thompson, 959 F.3d at 811; Hawkins v. DeWine, 968 F.3d 603, 607 (6th Cir. 2020)).

Furthermore, “reasonable, nondiscretionary restrictions are almost certainly justified by the

important regulatory interests in combating fraud and ensuring that ballots are not cluttered with

initiatives that have not demonstrated sufficient grassroots support.” Id. (citing Little, --- U.S. at -

---, 140 S. Ct. 2616, 2020 WL 4360897, at *2 (Roberts, C.J., concurring in the grant of a stay)).

3. Plaintiffs’ efforts to distinguish the panel’s analysis are unpersuasive.

The Sixth Circuit issued its decision on this Court’s preliminary injunction order in

September of 2020. The November 3, 2020 election occurred less than two months later. Since

then, the course of the COVID-19 pandemic and Ohio’s emergency public health orders have

changed. See supra Part III.A. Plaintiffs now attempt to distinguish both the facts and the law on

which the panel relied.

a. Facts

Plaintiffs contend that this case “stands in stark contrast to the case as it existed when the

preliminary proceedings were litigated.” (Pls.’ Resp. at 31.) The Sixth Circuit’s September 2020

opinion noted that the “severe burden” standard under Anderson-Burdick requires a showing that

the combined effect of ballot-access restrictions amounts to an “exclusion or virtual exclusion”

from the ballot. Thompson, 976 F.3d at 617–18 (citing Libertarian Party of Ky. v. Grimes, 835

F.3d 570, 575 (6th Cir. 2016)). Plaintiffs argue that facts developed after the panel’s decision in

September 2020 show “exclusion or virtual exclusion” from the 2020 ballot and thus, strict

scrutiny should apply under Anderson-Burdick. (Pls.’ Resp. at 31–32.)

First, Plaintiffs argue that Ohio’s strict enforcement of its in-person petitioning

requirements in-fact resulted in the exclusion or virtual exclusion of initiatives on the 2020 ballot.

(Id. at 32.) No statewide initiatives appeared on Ohio’s November 2020 general election ballot,

and Plaintiffs “succeeded in placing only 4 out of the 73 initiatives they reasonably anticipated

placing on local ballots[.]” (Id.) Second, they argue that “science has learned that COVID-19 is

airborne and primarily transmitted through aerosol[,]” posing unacceptable risk of community

spread to circulators and citizens. (Id.) Third, they submit that, contrary to the State’s

representations to the Sixth Circuit in 2020, the state did not “open up,” instead shutting down

even further. (Id.) Fourth, they point to the fact that COVID-19 has killed over 570,000 Americans

and continues to spread. (Id. at 33.) Fifth and finally, they claim that Defendants admit that

collecting signatures from March 2020 to April 30, 2020 was “both physically impossible and

illegal” by virtue of Defendants’ failure to file an answer—therefore admitting the Complaint’s

allegation that collecting signatures was “literally impossible.” (Id.; Compl. ¶ 52.)

These arguments do not persuade the Court that Plaintiffs are now entitled to a higher level

of scrutiny than the Sixth Circuit applied in its September 16, 2020 opinion. The Sixth Circuit

already disposed of Plaintiffs argument that “impossibility” is a factual allegation that can be

admitted in a pleading. Thompson, 976 F.3d at 616 n.5 (6th Cir. 2020) (“we don’t think

‘impossibility’ here is a factual allegation that can be admitted in pleadings.”). And even if that

were true, the panel noted that “Ohio made it clear by April 30” that it exempted conducted

protected by the First Amendment from its stay-at-home orders. Id. at 617. Therefore, according

to the Sixth Circuit, “Plaintiffs [had] months to gather signatures” after April 30, 2020. Id.

Furthermore, the panel cautioned that even if “prospective signatories were deciding to

stay home or avoid strangers—thus reducing Plaintiffs’ opportunities to interact with them—we

don’t attribute those decisions to Ohio” because “First Amendment violations require state action.”

Id. (citing Thompson, 959 F.3d at 810). There is no telling from the facts Plaintiff cites whether

the lack of ballot initiatives on the 2020 general election ballot were the result of Ohio’s public

health orders or private “prospective signatories [ ] deciding to stay home or avoid strangers” due

to the risks of COVID-19. Id.

In any event, Plaintiffs now seek prospective relief for the duration of the COVID-19

pandemic, not retrospective relief for the November 2020 election. (Pls.’ Resp. at 27.) If “Plaintiffs

[ ] faced an uphill battle” under the Anderson-Burdick framework in 2020, Thompson, 976 F.3d at

617, the hill is even steeper now. Given the advent of the vaccine,7 the decrease in COVID-19

cases,8 and the lifting of most public health orders as of June 2,9 the conditions as they now exist

do not appear to be more burdensome than those alleged in the Complaint and established in the

stipulated facts prior to this Court’s preliminary injunction order in May of 2020. Therefore,

subsequent factual developments do not warrant departing from the Sixth Circuit’s prior analysis.

b. Law

Plaintiffs also contend that there “is no valid basis for distinguishing” Esshaki v. Whitmer,

813 F. App’x 170 6th Cir. 2020) and SawariMedia, LLC v. Whitmer, 963 F.3d 595 (6th Cir. 2020)

from this case. In those cases, the Sixth Circuit held that the district court properly applied strict

scrutiny under the Anderson-Burdick framework in evaluating the plaintiffs’ likelihood of success

on First Amendment challenges brought in response to Michigan’s stay-at-home orders. Esshaki,

813 F. App’x at 171 (“The district court correctly determined that the combination of the State’s

strict enforcement of the ballot-access provisions and the Stay-at-Home Orders imposed a severe

burden on the plaintiffs’ ballot access, so strict scrutiny applied[.]”); SawariMedia, LLC, 963 F.3d

at 597 (“with respect to the burden imposed on Plaintiffs’ access to the ballot, the restrictions at

issue here are identical to those in Esshaki”). Plaintiffs argue that “[n]ot only are Esshaki and

7 As of June 2, over 45% of Ohioans have received at least one dose of a COVID-19 vaccine. Ohio

Dep’t of Health, COVID-19 Vaccination Dashboard (accessed June 2, 2021),

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/dashboards/covid-19-vaccine/covid-19-vaccination-

dashboard.

8 Ohio Dep’t of Health, COVID-19 Dashboard (accessed on June 2, 2021),

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/dashboards.

9 Ohio Dep’t of Health, Director’s Second Amended Order for Social Distancing, Facial

Coverings and Non-Congregating (May 17, 2021).

SawariMedia materially indistinguishable from this case, but also, the severity of the burdens

imposed in those cases was less onerous than the burdens imposed on Plaintiffs here.” (Pls.’ Resp.

at 42.) The Sixth Circuit considered the same argument in this case and rejected it. Thompson,

976 F.3d at 617 (“But the cases Plaintiffs cite don’t support their theory.”).

In the end, the Sixth Circuit’s analysis is fatal to Plaintiffs’ claims. Id. at 619. Taking all

factual allegations in the Complaint, stipulated facts, and undisputed public record as true,

Plaintiffs fail to state a claim under the First and Fourteenth Amendments upon which relief can

be granted in light of the Sixth Circuit’s decisions. Defendants are therefore entitled to dismissal

under Rule 12(b)(6). Plaintiffs’ Motion for Judgment on the Pleadings is moot.

IV. Conclusion

For the foregoing reasons, the Court GRANTS Defendants’ Motion to Dismiss (ECF No.

68) and DENIES AS MOOT Plaintiffs’ Motion for Judgment on the Pleadings (ECF No. 71).

Plaintiffs’ claims are DISMISSED. The Clerk is DIRECTED to close this case.

IT IS SO ORDERED.

6/3/2021 s/Edmund A. Sargus, Jr.

DATE EDMUND A. SARGUS, JR.

UNITED STATES DISTRICT JUDGE