Petition for Writ of Certiorari — Chad Thompson, et al., Petitioners v. Richard Michael DeWine, Governor of Ohio, et al.
Supreme Court briefFeb 10, 2022
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PETITION APPENDIX
1a
APPENDIX A
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P 32.1(b)
File Name: 21a0176p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHAD THOMPSON; WILLIAM T. SCHMITT;
DON KEENEY,
Plaintiffs-Appellants,
v.
RICHARD MICHAEL DEWINE, in his official
capacity as the Governor of Ohio;
STEPHANIE B. MCCLOUD, in her official
capacity as Director of Ohio Department of
Health; FRANK LAROSE in his official
capacity as Ohio Secretary of State,
No.
213514
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Ohio at Columbus
No. 2:20-cv-02129—Edmund A. Sargus, Jr., District
Judge
Decided and Filed: August 6, 2021
Before: SUTTON, Chief Judge; McKEAGUE, and
NALBANDIAN, Circuit Judges
COUNSEL
ON BRIEF: Mark R. Brown, CAPITAL UNIVERSITY LAW
SCHOOL, Columbus, Ohio, for Appellants. Benjamin
2a
M. Flowers, ZACHERY P. KELLER, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
AMENDED OPINION
PER CURIAM. This is the third time we have seen
this case. Plaintiffs are three Ohioans who, during the
2020 election, tried to get initiatives to decriminalize
marijuana on local ballots. To do so, they had to comply
with Ohio’s ballot-access laws. Those laws impose.
various requirements on an initiative’s proponents,
including submitting a petition with a minimum
number of ink signatures witnessed by the petition’s
circulator.
Plaintiffs say the laws, as applied during the
COVID-19 pandemic, made it too difficult for them to
get any of their initiatives on 2020 ballots. So they
sued for declaratory and injunctive relief. But
plaintiffs tied their requests for relief exclusively to
the November 2020 election. That election has come
and gone—and with it the prospect that plaintiffs can
get any of the relief they asked for. This case is thus
moot. We VACATE the district court’s order
dismissing plaintiffs’ complaint and REMAND with
instructions to dismiss the case as moot.
I.
We need not restate the facts at length. See
Thompson v. DeWine, 461 F. Supp. 3d 712 (S.D. Ohio),
stayed, 959 F.3d 804 (6th Cir.) (Thompson I), rev’d, 976
F.3d 610 (6th Cir. 2020) (Thompson II). The short of it
is this: Plaintiffs are three Ohio voters. They regularly
circulate petitions to get initiatives on local and
statewide ballots. For the 2020 election cycle, plaintiffs
hoped to place initiatives on municipal ballots to
decriminalize marijuana.
3a
Before an initiative finds its way onto a local ballot,
its proponents must circulate a petition. Ohio Rev.
Code Ann. § 731.28. The petition must get signatures
from at least ten percent of the number of electors who
voted for governor in the municipality’s previous
election. Id. And those signatures must be original and
in ink, and the petition’s circulator must witness them.
Id. § 3501.38. Once a petition has enough qualifying
signatures, the circulator must submit it to the
Secretary of State at least 110 days before the election.
Id. § 731.28.
Soon after plaintiffs filed proposed initiatives for
November 2020 ballots, Ohio declared a state of
emergency because of COVID-19 and ordered Ohioans
to stay at home. As a result, plaintiffs found it harder
than usual to gather signatures for their initiative
petitions. So they sued Governor Mike DeWine and
other state officials for declaratory and injunctive
relief. They allege that, because the pandemic and
emergency orders made signature gathering difficult,
“Ohio’s ballot-access requirements for popular
measures proposed for Ohio’s November 3, 2020
election violate” the First and Fourteenth
Amendments. (R. 1, Compl. at 16–17, PID 16–17.) And
they asked the district court to “immediately place”
their initiatives “on local November 3, 2020 election
ballots without the need for supporting signatures.”
(Id. at 18, PID 18.) If that failed, they also asked the
court to reduce the number of signatures they needed
to qualify for the ballot, extend the deadline for
submitting petitions, and order the state to develop a
way for voters to sign petitions electronically.
The district court enjoined the ink and witness
requirements, extended the deadline for submitting
petitions, and ordered the state to accept electronic
signatures. Thompson, 461 F. Supp. 3d at 739–40. We
4a
stayed that injunction, Thompson I, 959 F.3d at 804,
and then reversed it, Thompson II, 976 F.3d at 614.
After plaintiffs unsuccessfully sought review in the
Supreme Court, defendants moved to dismiss
plaintiffs’ complaint, claiming it was moot and barred
by the Eleventh Amendment. The district court,
relying on our opinions in Thompson I and II,
dismissed the case on its merits after holding that it
was not moot. Plaintiffs appeal, and we review the
decision de novo. See, e.g., Keys v. Humana, Inc., 684
F.3d 605, 608 (6th Cir. 2012).
II.
Under Article III of the Federal Constitution, we can
only decide “Cases” or “Controversies.” U.S. Const. art.
III, § 2. So we adjudicate “only genuine disputes
between adverse parties, where the relief requested
would have a real impact on the legal interests of those
parties.” Libertarian Party of Ohio v. Blackwell, 462
F.3d 579, 584 (6th Cir. 2006). Thus, “[i]f ‘the issues
presented are no longer live or the parties lack a
legally cognizable interest in the outcome,’ then the
case is moot and the court has no jurisdiction.” Id.
(quoting Los Angeles County v. Davis, 440 U.S. 625,
631 (1979)).
A.
This case is moot. Plaintiffs request two types of
relief, injunctive and declaratory. But unlike many
election cases, plaintiffs do not challenge Ohio’s ballotaccess laws standing alone. See Common Sense Party
v. Padilla, 834 F. App’x 335, 336 (9th Cir. 2021)
(COVID-related challenge to a ballot-access law was
moot because plaintiff did not challenge “the
constitutionality of the provision itself or its
constitutionality as applied to [plaintiff] outside this
context”); cf. Storer v. Brown, 415 U.S. 724, 727 (1974).
5a
Instead, plaintiffs tie all their requested relief to the
November 2020 election, COVID-19, and Ohio’s stayat-home orders. See Memphis A. Philip Randolph Inst.
v. Hargett, 2 F.4th 548, 560 (6th Cir. 2021) (case was
moot when plaintiff’s injury and motion for a
preliminary injunction were “inextricably tied to the
COVID-19 pandemic, a once-in-a-century crisis”).
Plaintiffs’
complaint
was
one
to
“declare
unconstitutional, enjoin and/or modify” Ohio’s ballot
access laws so that their initiatives could be included
“on Ohio’s November 3, 2020 general election ballot.”
(R. 1, Compl. at 1, PID 1.) Why? Because “the current
public health emergency caused by COVID-19 and
defendant DeWine’s and defendant Acton’s emergency
orders effectively shutting down the State” made it
hard for them to gather signatures. (Id.) So they asked
the court to “immediately place” their initiatives “on
local November 3, 2020 election ballots.” (Id. at 18, PID
18.) And in case they didn’t get that relief, plaintiffs
also asked the court to enjoin enforcement of Ohio’s
ballot-access laws and to unilaterally modify them—
but again, only “for Ohio’s November 3, 2020 general
election,” and only because COVID-19 and Ohio’s stayat-home orders made signature gathering too difficult.
(Id. at 14, PID 14, 18–19, PID 18–19.)
Without a time machine, we cannot go back and
place plaintiffs’ initiatives on the 2020 ballot. So
plaintiffs’ first request for injunctive relief is moot. See
Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir.
2005); Ariz. Green Party v. Reagan, 838 F.3d 983, 987
(9th Cir. 2016) (“The 2014 election has come and gone,
so we cannot devise a remedy that will put the Green
Party on the ballot for that election cycle.”). And
plaintiffs’ alternative requests for an injunction, which
they tied specifically to the 2020 election, also became
moot when the election passed. Memphis A. Philip
6a
Randolph Inst. v. Hargett, 2 F.4th at 560; Operation
King’s Dream v. Connerly, 501 F.3d 584, 591 (6th Cir.
2007); Padilla, 834 F. App’x at 336 (noting in a
COVID-19 election case that “the occurrence of an
election moots relief sought with respect to that
election cycle”).
Plaintiffs’ request for declaratory relief is likewise
moot. To determine whether a request for declaratory
relief is moot, we ask “whether the facts alleged, under
all the circumstances, show that there is a substantial
controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.”
Preiser v. Newkirk, 422 U.S. 395, 402 (1975) (emphasis
altered) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co.,
312 U.S. 270, 273 (1941)).
No such controversy exists for plaintiffs’ declaratory
relief claim. Like their demands for injunctive relief,
plaintiffs tie their declaratory relief request
specifically to the 2020 election. They ask the court to
declare that Ohio’s ballot-access laws—as applied to
“measures proposed for local November 3, 2020
elections in Ohio”—violate the Constitution “in light of
the current public health emergency caused by the
COVID-19 pandemic and the executive orders
requiring that Ohio citizens stay at home and shelter
in place.” (R. 1, Compl. at 19, PID 19.) But those orders
are no longer in place, and the election is over. (See
Rescinded Public Health Orders, OHIO DEP’T OF
HEALTH, https://coronavirus.ohio.gov/wps/portal/gov/c
ovid-19/resources/publichealth-orders/public-healthorders-rescinded (last accessed July 23, 2021, 9:45
AM)). So no “substantial controversy” of “immediacy
and reality” exists. See Preiser, 422 U.S. at 402; see
also 28 U.S.C. § 2201 (requiring “a case of actual
7a
controversy” before a court can issue declaratory
relief).
Plaintiffs sought specific relief. They challenged
Ohio’s ballot-access laws as applied to the unique
circumstances existing during the 2020 election. But
because of intervening events—the passing of the
election and the rescission of Ohio’s stay-at-home
orders and emergency declaration—we cannot give
plaintiffs what they ask for. Chafin v. Chafin, 568 U.S.
165, 172 (2013) (noting that a case is moot when the
court cannot “grant any effectual relief”); Maryville
Baptist Church, Inc. v. Beshear, 977 F.3d 561, 564 (6th
Cir. 2020). Thus, “in view of the limited nature of the
relief sought, we think the case is moot because the . .
. election is over.” Brockington v. Rhodes, 396 U.S. 41,
43 (1969).
B.
The capable-of-repetition-yet-evading-review
exception to mootness does not apply here. See Fed.
Election Comm’n v. Wis. Right to Life, Inc., 551 U.S.
449, 462 (2007). Plaintiffs point out that they are
trying to get initiatives on the ballot for local 2021
elections. And because COVID-19 persists, the threat
that Ohio will again implement stay-at-home orders
keeps this case alive.
The
capable-of-repetition
exception
features
regularly in election disputes. See In re 2016 Primary
Election, 836 F.3d 584, 588 (6th Cir. 2016). To be
capable of repetition but evading review, a dispute
must satisfy a two-pronged test. First, the challenged
action must be too short in duration for the parties to
fully litigate it before it becomes moot. And second,
there must be “a reasonable expectation that the same
complaining party will be subject to the same action
again.” Wis. Right to Life, 551 U.S. at 462 (quoting
8a
Spencer v. Kemna, 523 U.S. 1, 17 (1998)). We can
assume the first prong is met here, as it commonly is
in election cases. See Lawrence, 430 F.3d at 371.
But plaintiffs falter on the second prong. To be sure,
we relax our inquiry at this step for election cases. See
Memphis A. Philip Randolph Inst., 2 F.4th at 560. So
plaintiffs need not show that the same controversy will
recur “down to the last detail.” Wis. Right to Life, 551
U.S. at 463. In other words, “[t]o be capable of
repetition, ‘the chain of potential events does not have
to be air-tight or even probable.’” Memphis A. Philip
Randolph Inst., 2 F.4th at 560 (quoting Barry v. Lyon,
834 F.3d 706, 716 (6th Cir. 2016)). Still, “a mere
physical or theoretical possibility” that the events
prompting the suit will come back is not enough.
Murphy v. Hunt, 455 U.S. 478, 482 (1982). So a case
“is not capable of repetition if it is based on a unique
factual situation.” Memphis A. Philip Randolph Inst.,
2 F.4th at 560; see also Libertarian Party of Ohio, 462
F.3d at 584.
If any case is “based on a unique factual situation,”
this one is. See Memphis A. Philip Randolph Inst., 2
F.4th at 560. As pled, plaintiffs’ claims “are
inextricably tied to the COVID-19 pandemic.” Id. A
once-in-a-lifetime
global
pandemic
prompted
unprecedented stay-at-home orders right as election
machinery was gearing up. The pandemic dissuaded
the public from going outdoors, interacting with
strangers, and gathering in groups—the situations
plaintiffs say they rely on to solicit signatures. But the
situation today differs markedly from a year ago.
“Fortunately, because of advancements in COVID-19
vaccinations and treatment since this case began, the
COVID-19 pandemic is unlikely to pose a serious
threat during the next election cycle.” Id. And so
9a
“[t]here is not a reasonable expectation” that plaintiffs
“will face the same burdens” that they did in 2020. Id.
Plaintiffs insist that “[t]here is not only a likelihood
of recurrence, there is recurrence here.” (Appellant Br.
at 38.) They say COVID-19 remains a “full blown
crisis” hampering their efforts to gather signatures for
2021 initiatives. (Id.) But we recently rejected a
similar argument in another election case, citing
advancements in the COVID-19 vaccine and
treatment. See Memphis A. Randolph Institute, 2
F.4th at 560–61; see also People Not Politicians Or. v.
Fagan, No. 6:20-cv-01053-MC, 2021 WL 2386118, at
*3 (D. Or. June 10, 2021). Plaintiffs also insist that
Ohio’s COVID restrictions not only hampered their
ability to gather signatures for the 2020 election but
also carried over to the 2021 election. Plaintiffs claim
that they could have used “[s]ignatures collected
between March and July of 2020 . . . to qualify
initiatives for the November 2, 2021 ballot.” (Appellant
Br. at 40.) Even if that’s true, this is the first time
plaintiffs are saying so. See Operation King’s Dream,
501 F.3d at 592 (“Because the Plaintiffs present this
argument for the first time on appeal, we decline to
address it.”). All along, plaintiffs have claimed Ohio
violated their constitutional rights as it relates to the
November 2020 election and the emergency
surrounding it. “Plaintiffs’ decision on appeal to alter
the relief sought and transform the cause of action
further underscores that their appeal is moot.” Id.
Finally, plaintiffs fall back on their fear that a future
pandemic could wreak similar havoc on elections. This
speculation does not get the job done. See Speer v. City
of Oregon, 847 F.2d 310, 311–12 n.3 (6th Cir. 1988)
(“Plaintiff cannot avoid mootness by engaging in
speculation that at some point in the future she may
move and then return and seek to run for City Council
10a
and again be subjected to the residency
requirement.”); People Not Politicians, 2021 WL
2386118, at *3 (rejecting a COVID election challenge
as moot in part because plaintiffs’ argument “that the
circumstances that led to Plaintiffs’ as-applied
challenge following the 2020 election cycle ‘could recur’
is highly speculative”). Because of the specific relief
sought and the unique harm alleged, this is not a case
when “the controversy” prompting the lawsuit “almost
invariably will recur with respect to some future”
ballot initiatives. See Lawrence, 430 F.3d at 372; see
also Libertarian Party of Mich. v. Johnson, 714 F.3d
929, 932 (6th Cir. 2013).
III.
Ohioans had to make sacrifices as the state
responded to COVID-19. We appreciate the difficulties
the virus posed to plaintiffs’ efforts to gather
signatures for their initiatives. But the event for which
plaintiffs sought relief has passed. So their claims are
now moot. We VACATE the district court’s order
dismissing plaintiffs’ complaint and REMAND with
instructions that the case be dismissed as moot. See
United States v. Munsingwear, Inc., 340 U.S. 36, 39
(1950).
11a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 21-3514
CHAD THOMPSON; WILLIAM T.
SCHMITT; DON KEENEY,
Plaintiffs-Appellants,
v.
RICHARD MICHAEL DEWINE, in
his official capacity as the Governor of
Ohio; STEPHANIE B. MCCLOUD, in
her official capacity as Director of
Ohio Department of Health; FRANK
LAROSE in his official capacity as
Ohio Secretary of State,
FILED
Aug 06,
2021
DEBORAH
S. HUNT,
Clerk
Defendants-Appellees.
Before: SUTTON, Chief Judge; McKEAGUE and
NALBANDIAN, Circuit Judges.
AMENDED JUDGEMENT
On Appeal from the United States District Court
For the Southern District of Ohio at Columbus
THIS CAUSE was heard on the record from the
district court and was submitted on the briefs without
oral argument.
IN CONSIDERATION THEREOF, it is ORDERED
that the district court’s order dismissing plaintiffs’
complaint is VACATED and REMANDED with
instructions to dismiss the case as moot.
ENTERED BY ORDER OF THE COURT
12a
Clerk
Deborah S. Hunt,
13a
APPENDIX B
Case No. 21-3514
UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
ORDER
CHAD THOMPSON; WILLIAM T. SCHMITT;
DON KEENEY,
Plaintiffs-Appellants,
v.
RICHARD MICHAEL DEWINE, in his official
capacity as the Governor of Ohio; STEPHANIE
B. MCCLOUD, in her official capacity as Director
of Ohio Department of Health; FRANK LAROSE
in his official capacity as Ohio Secretary of State,
Defendants-Appellees.
BEFORE:
SUTTON,
Chief
Circuit
Judge;
MCKEAGUE and NALBANDIAN, Circuit Judges;
The motion to amend is GRANTED as to the
district court’s opinion and order dismissing plaintiffs’
complaint. The motion is DENIED as to the panel’s
May 26, 2020 opinion and order staying the district
court’s injunction pending appeal and as to the panel’s
September 16, 2020 opinion and order reversing the
district court’s preliminary injunction.
ENTERED BY ORDER OF THE COURT
Issued: August 06, 2021
Clerk
Deborah S. Hunt,
14a
APPENDIX C
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P 32.1(b)
File Name: 21a0170p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHAD THOMPSON; WILLIAM T. SCHMITT;
DON KEENEY,
v.
Plaintiffs-Appellants, No. 213514
RICHARD MICHAEL DEWINE, in his
official capacity as the Governor of
Ohio; STEPHANIE B. MCCLOUD, in her
official capacity as Director of Ohio
Department of Health; FRANK LAROSE
in his official capacity as Ohio
Secretary of State,
Defendants-Appellees.
Appeal from the United States District Court
For the Southern District of Ohio at Columbus
No. 2:20-cv-02129—Edmund A. Sargus, Jr., District
Judge
Decided and Filed: July 28, 2021
Before: SUTTON, Chief Judge; McKEAGUE, and
NALBANDIAN, Circuit Judges
COUNSEL
15a
ON BRIEF: Mark R. Brown, CAPITAL UNIVERSITY LAW
SCHOOL, Columbus, Ohio, for Appellants. Benjamin
M. Flowers, ZACHERY P. KELLER, OFFICE OF THE OHIO
ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
OPINION
PER CURIAM. This is the third time we have seen
this case. Plaintiffs are three Ohioans who, during the
2020 election, tried to get initiatives to decriminalize
marijuana on local ballots. To do so, they had to comply
with Ohio’s ballot-access laws. Those laws impose
various requirements on an initiative’s proponents,
including submitting a petition with a minimum
number of ink signatures witnessed by the petition’s
circulator.
Plaintiffs say the laws, as applied during the
COVID-19 pandemic, made it too difficult for them to
get any of their initiatives on 2020 ballots. So they
sued for declaratory and injunctive relief. But
plaintiffs tied their requests for relief exclusively to
the November 2020 election. That election has come
and gone—and with it the prospect that plaintiffs can
get any of the relief they asked for. This case is thus
moot. We AFFIRM the district court’s dismissal of
plaintiffs’ complaint.
I.
We need not restate the facts at length. See
Thompson v. DeWine, 461 F. Supp. 3d 712 (S.D. Ohio),
stayed, 959 F.3d 804 (6th Cir.) (Thompson I), rev’d, 976
F.3d 610 (6th Cir. 2020) (Thompson II). The short of it
is this: Plaintiffs are three Ohio voters. They regularly
circulate petitions to get initiatives on local and
16a
statewide ballots. For the 2020 election cycle, plaintiffs
hoped to place initiatives on municipal ballots to
decriminalize marijuana.
Before an initiative finds its way onto a local ballot,
its proponents must circulate a petition. Ohio Rev.
Code Ann. § 731.28. The petition must get signatures
from at least ten percent of the number of electors who
voted for governor in the municipality’s previous
election. Id. And those signatures must be original and
in ink, and the petition’s circulator must witness them.
Id. § 3501.38. Once a petition has enough qualifying
signatures, the circulator must submit it to the
Secretary of State at least 110 days before the election.
Id. § 731.28.
Soon after plaintiffs filed proposed initiatives for
November 2020 ballots, Ohio declared a state of
emergency because of COVID-19 and ordered Ohioans
to stay at home. As a result, plaintiffs found it harder
than usual to gather signatures for their initiative
petitions. So they sued Governor Mike DeWine and
other state officials for declaratory and injunctive
relief. They allege that, because the pandemic and
emergency orders made signature gathering difficult,
“Ohio’s ballot-access requirements for popular
measures proposed for Ohio’s November 3, 2020
election violate” the First and Fourteenth
Amendments. (R. 1, Compl. at 16–17, PID 16–17.) And
they asked the district court to “immediately place”
their initiatives “on local November 3, 2020 election
ballots without the need for supporting signatures.”
(Id. at 18, PID 18.) If that failed, they also asked the
court to reduce the number of signatures they needed
to qualify for the ballot, extend the deadline for
submitting petitions, and order the state to develop a
way for voters to sign petitions electronically.
17a
The district court enjoined the ink and witness
requirements, extended the deadline for submitting
petitions, and ordered the state to accept electronic
signatures. Thompson, 461 F. Supp. 3d at 739–40. We
stayed that injunction, Thompson I, 959 F.3d at 804,
and then reversed it, Thompson II, 976 F.3d at 614.
After plaintiffs unsuccessfully sought review in the
Supreme Court, defendants moved to dismiss
plaintiffs’ complaint, claiming it was moot and barred
by the Eleventh Amendment. The district court,
relying on our opinions in Thompson I and II,
dismissed the case on its merits after holding that it
was not moot. Plaintiffs appeal, and we review the
decision de novo. See, e.g., Keys v. Humana, Inc., 684
F.3d 605, 608 (6th Cir. 2012).
II.
Under Article III of the Federal Constitution, we can
only decide “Cases” or “Controversies.” U.S. Const. art.
III, § 2. So we adjudicate “only genuine disputes
between adverse parties, where the relief requested
would have a real impact on the legal interests of those
parties.” Libertarian Party of Ohio v. Blackwell, 462
F.3d 579, 584 (6th Cir. 2006). Thus, “[i]f ‘the issues
presented are no longer live or the parties lack a
legally cognizable interest in the outcome,’ then the
case is moot and the court has no jurisdiction.” Id.
(quoting Los Angeles County v. Davis, 440 U.S. 625,
631 (1979)).
A.
This case is moot. Plaintiffs request two types of
relief, injunctive and declaratory. But unlike many
election cases, plaintiffs do not challenge Ohio’s ballotaccess laws standing alone. See Common Sense Party
v. Padilla, 834 F. App’x 335, 336 (9th Cir. 2021)
(COVID-related challenge to a ballot-access law was
18a
moot because plaintiff did not challenge “the
constitutionality of the provision itself or its
constitutionality as applied to [plaintiff] outside this
context”); cf. Storer v. Brown, 415 U.S. 724, 727 (1974).
Instead, plaintiffs tie all their requested relief to the
November 2020 election, COVID-19, and Ohio’s stayat-home orders. See Memphis A. Philip Randolph Inst.
v. Hargett, 2 F.4th 548, 560 (6th Cir. 2021) (case was
moot when plaintiff’s injury and motion for a
preliminary injunction were “inextricably tied to the
COVID-19 pandemic, a once-in-a-century crisis”).
Plaintiffs’
complaint
was
one
to
“declare
unconstitutional, enjoin and/or modify” Ohio’s ballot
access laws so that their initiatives could be included
“on Ohio’s November 3, 2020 general election ballot.”
(R. 1, Compl. at 1, PID 1.) Why? Because “the current
public health emergency caused by COVID-19 and
defendant DeWine’s and defendant Acton’s emergency
orders effectively shutting down the State” made it
hard for them to gather signatures. (Id.) So they asked
the court to “immediately place” their initiatives “on
local November 3, 2020 election ballots.” (Id. at 18, PID
18.) And in case they didn’t get that relief, plaintiffs
also asked the court to enjoin enforcement of Ohio’s
ballot-access laws and to unilaterally modify them—
but again, only “for Ohio’s November 3, 2020 general
election,” and only because COVID-19 and Ohio’s stayat-home orders made signature gathering too difficult.
(Id. at 14, PID 14, 18–19, PID 18–19.)
Without a time machine, we cannot go back and
place plaintiffs’ initiatives on the 2020 ballot. So
plaintiffs’ first request for injunctive relief is moot. See
Lawrence v. Blackwell, 430 F.3d 368, 371 (6th Cir.
2005); Ariz. Green Party v. Reagan, 838 F.3d 983, 987
(9th Cir. 2016) (“The 2014 election has come and gone,
so we cannot devise a remedy that will put the Green
19a
Party on the ballot for that election cycle.”). And
plaintiffs’ alternative requests for an injunction, which
they tied specifically to the 2020 election, also became
moot when the election passed. Memphis A. Philip
Randolph Inst. v. Hargett, 2 F.4th at 560; Operation
King’s Dream v. Connerly, 501 F.3d 584, 591 (6th Cir.
2007); Padilla, 834 F. App’x at 336 (noting in a
COVID-19 election case that “the occurrence of an
election moots relief sought with respect to that
election cycle”).
Plaintiffs’ request for declaratory relief is likewise
moot. To determine whether a request for declaratory
relief is moot, we ask “whether the facts alleged, under
all the circumstances, show that there is a substantial
controversy, between parties having adverse legal
interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment.”
Preiser v. Newkirk, 422 U.S. 395, 402 (1975) (emphasis
altered) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co.,
312 U.S. 270, 273 (1941)).
No such controversy exists for plaintiffs’ declaratory
relief claim. Like their demands for injunctive relief,
plaintiffs tie their declaratory relief request
specifically to the 2020 election. They ask the court to
declare that Ohio’s ballot-access laws—as applied to
“measures proposed for local November 3, 2020
elections in Ohio”—violate the Constitution “in light of
the current public health emergency caused by the
COVID-19 pandemic and the executive orders
requiring that Ohio citizens stay at home and shelter
in place.” (R. 1, Compl. at 19, PID 19.) But those orders
are no longer in place, and the election is over. (See
Rescinded Public Health Orders, OHIO DEP’T OF
HEALTH, https://coronavirus.ohio.gov/wps/portal/gov/c
ovid-19/resources/publichealth-orders/public-healthorders-rescinded (last accessed July 23, 2021, 9:45
20a
AM)). So no “substantial controversy” of “immediacy
and reality” exists. See Preiser, 422 U.S. at 402; see
also 28 U.S.C. § 2201 (requiring “a case of actual
controversy” before a court can issue declaratory
relief).
Plaintiffs sought specific relief. They challenged
Ohio’s ballot-access laws as applied to the unique
circumstances existing during the 2020 election. But
because of intervening events—the passing of the
election and the rescission of Ohio’s stay-at-home
orders and emergency declaration—we cannot give
plaintiffs what they ask for. Chafin v. Chafin, 568 U.S.
165, 172 (2013) (noting that a case is moot when the
court cannot “grant any effectual relief”); Maryville
Baptist Church, Inc. v. Beshear, 977 F.3d 561, 564 (6th
Cir. 2020). Thus, “in view of the limited nature of the
relief sought, we think the case is moot because the . .
. election is over.” Brockington v. Rhodes, 396 U.S. 41,
43 (1969).
B.
The capable-of-repetition-yet-evading-review
exception to mootness does not apply here. See Fed.
Election Comm’n v. Wis. Right to Life, Inc., 551 U.S.
449, 462 (2007). Plaintiffs point out that they are
trying to get initiatives on the ballot for local 2021
elections. And because COVID-19 persists, the threat
that Ohio will again implement stay-at-home orders
keeps this case alive.
The
capable-of-repetition
exception
features
regularly in election disputes. See In re 2016 Primary
Election, 836 F.3d 584, 588 (6th Cir. 2016). To be
capable of repetition but evading review, a dispute
must satisfy a two-pronged test. First, the challenged
action must be too short in duration for the parties to
fully litigate it before it becomes moot. And second,
21a
there must be “a reasonable expectation that the same
complaining party will be subject to the same action
again.” Wis. Right to Life, 551 U.S. at 462 (quoting
Spencer v. Kemna, 523 U.S. 1, 17 (1998)). We can
assume the first prong is met here, as it commonly is
in election cases. See Lawrence, 430 F.3d at 371.
But plaintiffs falter on the second prong. To be sure,
we relax our inquiry at this step for election cases. See
Memphis A. Philip Randolph Inst., 2 F.4th at 560. So
plaintiffs need not show that the same controversy will
recur “down to the last detail.” Wis. Right to Life, 551
U.S. at 463. In other words, “[t]o be capable of
repetition, ‘the chain of potential events does not have
to be air-tight or even probable.’” Memphis A. Philip
Randolph Inst., 2 F.4th at 560 (quoting Barry v. Lyon,
834 F.3d 706, 716 (6th Cir. 2016)). Still, “a mere
physical or theoretical possibility” that the events
prompting the suit will come back is not enough.
Murphy v. Hunt, 455 U.S. 478, 482 (1982). So a case
“is not capable of repetition if it is based on a unique
factual situation.” Memphis A. Philip Randolph Inst.,
2 F.4th at 560; see also Libertarian Party of Ohio, 462
F.3d at 584.
If any case is “based on a unique factual situation,”
this one is. See Memphis A. Philip Randolph Inst., 2
F.4th at 560. As pled, plaintiffs’ claims “are
inextricably tied to the COVID-19 pandemic.” Id. A
once-in-a-lifetime
global
pandemic
prompted
unprecedented stay-at-home orders right as election
machinery was gearing up. The pandemic dissuaded
the public from going outdoors, interacting with
strangers, and gathering in groups—the situations
plaintiffs say they rely on to solicit signatures. But the
situation today differs markedly from a year ago.
“Fortunately, because of advancements in COVID-19
vaccinations and treatment since this case began, the
22a
COVID-19 pandemic is unlikely to pose a serious
threat during the next election cycle.” Id. And so
“[t]here is not a reasonable expectation” that plaintiffs
“will face the same burdens” that they did in 2020. Id.
Plaintiffs insist that “[t]here is not only a likelihood
of recurrence, there is recurrence here.” (Appellant Br.
at 38.) They say COVID-19 remains a “full blown
crisis” hampering their efforts to gather signatures for
2021 initiatives. (Id.) But we recently rejected a
similar argument in another election case, citing
advancements in the COVID-19 vaccine and
treatment. See Memphis A. Randolph Institute, 2
F.4th at 560–61; see also People Not Politicians Or. v.
Fagan, No. 6:20-cv-01053-MC, 2021 WL 2386118, at
*3 (D. Or. June 10, 2021).
Plaintiffs also insist that Ohio’s COVID restrictions
not only hampered their ability to gather signatures
for the 2020 election but also carried over to the 2021
election. Plaintiffs claim that they could have used
“[s]ignatures collected between March and July of
2020 . . . to qualify initiatives for the November 2, 2021
ballot.” (Appellant Br. at 40.) Even if that’s true, this
is the first time plaintiffs are saying so. See Operation
King’s Dream, 501 F.3d at 592 (“Because the Plaintiffs
present this argument for the first time on appeal, we
decline to address it.”). All along, plaintiffs have
claimed Ohio violated their constitutional rights as it
relates to the November 2020 election and the
emergency surrounding it. “Plaintiffs’ decision on
appeal to alter the relief sought and transform the
cause of action further underscores that their appeal
is moot.” Id.
Finally, plaintiffs fall back on their fear that a future
pandemic could wreak similar havoc on elections. This
speculation does not get the job done. See Speer v. City
of Oregon, 847 F.2d 310, 311–12 n.3 (6th Cir. 1988)
23a
(“Plaintiff cannot avoid mootness by engaging in
speculation that at some point in the future she may
move and then return and seek to run for City Council
and again be subjected to the residency
requirement.”); People Not Politicians, 2021 WL
2386118, at *3 (rejecting a COVID election challenge
as moot in part because plaintiffs’ argument “that the
circumstances that led to Plaintiffs’ as-applied
challenge following the 2020 election cycle ‘could recur’
is highly speculative”). Because of the specific relief
sought and the unique harm alleged, this is not a case
when “the controversy” prompting the lawsuit “almost
invariably will recur with respect to some future”
ballot initiatives. See Lawrence, 430 F.3d at 372; see
also Libertarian Party of Mich. v. Johnson, 714 F.3d
929, 932 (6th Cir. 2013).
III.
Ohioans had to make sacrifices as the state
responded to COVID-19. We appreciate the difficulties
the virus posed to plaintiffs’ efforts to gather
signatures for their initiatives. But the event for which
plaintiffs sought relief has passed. So their claims are
now moot. We affirm the district court’s dismissal of
their complaint.
24a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 21-3514
CHAD THOMPSON; WILLIAM T.
SCHMITT; DON KEENEY,
Plaintiffs-Appellants,
v.
RICHARD MICHAEL DEWINE, in
his official capacity as the Governor
of Ohio; STEPHANIE B. MCCLOUD,
in her official capacity as Director of
Ohio Department of Health; FRANK
LAROSE in his official capacity as
Ohio Secretary of State,
FILED
July 28,
2021
DEBORAH
S. HUNT,
Clerk
Defendants-Appellees.
Before: SUTTON, Chief Judge; McKEAGUE and
NALBANDIAN, Circuit Judges.
AMENDED JUDGEMENT
On Appeal from the United States District Court
For the Southern District of Ohio at Columbus
THIS CAUSE was heard on the record from
the district court and was submitted on the briefs
without oral argument.
IN CONSIDERATION THEREOF, it is
ORDERED that the district court’s order dismissing
plaintiffs’ complaint is AFFIRMED.
ENTERED BY ORDER OF THE COURT
Deborah S. Hunt, Clerk
25a
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHAD THOMPSON,
et al.,
Plaintiffs,
v.
GOVERNOR OF
OHIO MICHAEL
DEWINE, et al.,
Case No. 2:20-cv-2129
JUDGE EDMUND A.
SARGUS, JR.
Magistrate Judge
Chelsey M. Vascura
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.
26a
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 withealth 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
27a
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
28a
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. 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
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.
29a
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. 201072, 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 inperson 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
30a
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 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
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.”).
31a
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 subjectmatter 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).
32a
“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 subjectmatter 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.)
3 Plaintiffs urge the court to take judicial notice of subsequently
adopted emergency orders as public records. (Pls.’ Resp. at 6–7.)
33a
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. 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.
34a
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
35a
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 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 COVID19 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
4 Ohio Dep’t of Health, Director’s Second Amended Order for
Social Distancing, Facial Covering and Non-Congregating (May
17, 2021).
5 Ohio Dep’t of Health, COVID-19 Dashboard (accessed May 28,
2021), https://coronavirus.ohio.gov/wps/portal/gov/covid19/dashboards.
36a
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. 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
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).
37a
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.
Plaintiff’s 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
38a
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
39a
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. 1:19CV-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
40a
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 ballotinitiative laws impose on Plaintiffs during the COVID19 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-athome orders”—including gathering signatures for
petitions. Id. (citing Ohio Dep’t of Health, Director’s
Order that Reopens Businesses, with Exceptions, and
41a
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 TwentyOne 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)).
42a
C. Balancing of Burdens and Justifications
At the third and final and final step of AndersonBurdick, 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
43a
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 ballotaccess 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
44a
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
45a
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 Sawari Media, 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 AndersonBurdick 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
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/covid19/dashboards/covid-19-vaccine/covid-19-vaccinationdashboard.
8 Ohio Dep’t of Health, COVID-19 Dashboard (accessed on June
2,
2021),
https://coronavirus.ohio.gov/wps/portal/gov/covid19/dashboards.
9 Ohio Dep’t of Health, Director’s Second Amended Order for
Social Distancing, Facial Coverings and Non-Congregating (May
17, 2021).
46a
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 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
DATE
/s/Edmund A. Sargus, Jr.
EDMUND A. SARGUS, JR.
UNITED STATES DISTRICT JUDGE
47a
APPENDIX E
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P 32.1(b)
File Name: 20a0314p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHAD THOMPSON; WILLIAM T. SCHMITT;
DON KEENEY,
v.
Plaintiffs-Appellees, No. 203526
RICHARD MICHAEL DEWINE, in his
capacity as the Governor of Ohio;
LANCE HIMES, in his official capacity as
Interim Director of Ohio Department
of Health; FRANK LAROSE in his official
capacity as Ohio Secretary of State,
Defendants-Appellants.
Appeal from the United States District Court
for the Southern District of Ohio at Columbus
No. 2:20-cv-02129—Edmund A. Sargus, Jr., District
Judge
Decided and Filed: September 16, 2020 ∗
Before: SUTTON, McKEAGUE, and NALBANDIAN,
Circuit Judges.
This decision was originally filed as an unpublished opinion
on September 16, 2020. The court has now designated the opinion
for publication.
∗
48a
COUNSEL
ON BRIEF: Benjamin M. Flowers, Michael J.
Hendershot, Stephen P. Carney, Shams H. Hirji,
OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants. Mark R. Brown,
CAPITAL UNIVERSITY LAW SCHOOL, Columbus,
Ohio, Oliver B. Hall, CENTER FOR COMPETITVE
DEMOCRACY, Washington, D.C., Jeffrey T. Green,
SIDLEY AUSTIN LLP, Washington, D.C., Naomi A.
Igra, Stephen Chang, Jennifer H. Lee, Tyler Wolfe,
SIDLEY AUSTIN LLP, San Francisco, California, for
Plaintiffs-Appellees. Anne Marie Sferra, Christopher
N. Slagle, Bryan M. Smeenk, BRICKER & ECKLER
LLP, Columbus, Ohio, Paul A. Zevnik, MORGAN,
LEWIS & BOCKIUS LLP, Washington, D.C., for
Amici Curiae. Mark R. Brown, CAPITAL UNIVERSITY
LAW SCHOOL, Columbus, Ohio, for Appellants.
Benjamin M. Flowers, ZACHERY P. KELLER, OFFICE OF
THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellees.
OPINION
PER CURIAM. The COVID-19 pandemic has
upended life in many ways. In response to the
unfolding public health crisis, states across the
country imposed various orders in hopes of containing
the virus. Ohio, for its part, asked its citizens to stay
at home and restricted the size of gatherings.
This case, which we’ve seen before, involves the
intersection of COVID-19, the state’s responses to that
pandemic, and some of Ohio’s conditions that must be
met before a ballot initiative can get on the ballot for
49a
Election Day. See Thompson v. DeWine, 959 F.3d 804,
806 (6th Cir.) (per curiam), mot. to vacate stay denied,
--- S. Ct. ----, No. 19A1054, 2020 WL 3456705 (2020).
Plaintiffs say that Ohio’s ballot initiative conditions
are unconstitutional as applied during this pandemic
and request that the federal courts relax them, at least
for the time being. Plaintiffs’ challenge is a curious
one. There is no question that Ohio’s ballot initiative
conditions are, standing alone, constitutional, there is
no question that Ohio is not responsible for COVID-19,
and Plaintiffs are not challenging Ohio’s restrictions
on public gatherings and the like, which Ohio imposed
to address the pandemic—so we assume those are
constitutional as well. And yet, Plaintiffs contend that
when you put all of this together, in effect, two
constitutional rights plus one outside catalyst make
one constitutional wrong. The district court agreed
and granted a preliminary injunction. We stayed that
order because we disagreed. And now, because we still
disagree, we reverse the district court’s grant of a
preliminary injunction.
I.
To get an initiative on a municipal ballot, Ohio
requires the ballot’s proponents to gather signatures
totaling at least ten percent of the number of electors
who voted for governor in the municipality’s previous
election. Ohio Rev. Code Ann. § 731.28. The signatures
must be original and affixed in ink, and the petition’s
circulator must witness them. Id. § 3501.38. And the
initiative’s proponents must submit these signatures
to the Ohio Secretary of State at least 110 days before
the election. 1 Id. § 731.28.
1 This date has already passed. But Ohio doesn’t argue that the
case is moot. And we are satisfied that we still have jurisdiction
despite the date’s passing. Plaintiffs ask us to place their
50a
Plaintiffs here are three Ohioans hoping to get
initiatives on local ballots to decriminalize
marijuana. 2 They argue that Ohio’s ballot initiative
requirements, as applied during the COVID-19
pandemic and given Ohio’s stay-at-home orders and
other pandemic restrictions, violate the First and
Fourteenth Amendments. So they asked the district
court to enjoin Ohio from enforcing the ballot initiative
requirements. The district court agreed, at least in
part. It granted plaintiffs’ request for a preliminary
injunction, enjoining Ohio from enforcing some of
its ballot access requirements. And it ordered Ohio to
accept electronically signed and witnessed petitions,
extended the deadline for petition submission, and told
Ohio to come up with a system that would “reduce the
burden on ballot access.” 3 Thompson v. DeWine, --- F.
Supp. 3d ----, No. 2:20-CV-2129, 2020 WL 2557064, at
*21 (S.D. Ohio 2020) (quotation omitted).
Ohio asked us to stay the district court’s injunction
while its appeal was pending. We did. Thompson, 959
F.3d at 813. We reasoned that Ohio’s compelling
interests in preventing fraud and ensuring a fair and
orderly signature verification process outweighed the
intermediate burden the requirements imposed on
plaintiffs’ First and Fourteenth Amendment rights. Id.
at 811. Now, we review whether a preliminary
injunction was warranted in the first place. For
initiative directly on the ballots—and that relief is still available,
in theory, until Ohio prints its first round of ballots.
2 Our original stay order covered these Plaintiffs and two
Intervenor-Plaintiffs who sought to get proposed constitutional
amendments on Ohio’s November ballot. The IntervenorPlaintiffs have since withdrawn from this litigation. See Order
Granting Mot. to Withdraw by Intervenors-Appellees.
3
The court upheld Ohio’s signature quantity requirement.
51a
reasons we’ll discuss below, we don’t think it was. We
thus reverse the district court’s grant of a preliminary
injunction.
II.
This case comes to us on appeal from an order
granting an injunction. So we have jurisdiction under
28 U.S.C. § 1292. We review a district court’s grant of
a preliminary injunction for abuse of discretion,
“subjecting factual findings to clear-error review and
examining legal conclusions de novo.” Daunt v.
Benson, 956 F.3d 396, 406 (6th Cir. 2020).
“A plaintiff seeking a preliminary injunction must
establish that he is likely to succeed on the merits, that
he is likely to suffer irreparable harm in the absence
of preliminary relief, that the balance of equities tips
in his favor, and that an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council, Inc., 555
U.S. 7, 20 (2008). When we evaluate these factors for
an alleged constitutional violation, “‘the likelihood of
success on the merits often will be the determinative
factor.’” Obama for Am. v. Husted, 697 F.3d 423, 436
(6th Cir. 2012) (quoting Jones v. Caruso, 569 F.3d 258,
265 (6th Cir. 2009)). So we start there.
A.
If this all sounds familiar, that’s because it is. In
staying the district court’s preliminary injunction, we
went through the factors above and concluded that
Plaintiffs aren’t likely to succeed on the merits.
Thompson, 959 F.3d at 811. We still think so.
The First Amendment doesn’t guarantee the right to
an initiative. Taxpayers United for Assessment Cuts v.
Austin, 994 F.2d 291, 295 (6th Cir. 1993). But once the
people of a state, in their sovereign authority, decide
to allow initiatives, “the state may not place
52a
restrictions on the exercise of the initiative that
unduly burden First Amendment rights.” Id.
“[W]e evaluate First Amendment challenges to
nondiscriminatory, content-neutral ballot initiative
requirements
under
the
Anderson-Burdick
4
framework.” Thompson, 959 F.3d at 808; see Burdick
v. Takushi, 504 U.S. 428, 434 (1992); Anderson v.
Celebrezze, 460 U.S. 780, 788 (1983). Under that
framework, the level of scrutiny we apply to “state
election law depends upon the extent to which a
challenged regulation burdens First and Fourteenth
Amendment rights.” Burdick, 504 U.S. at 434. When
the burden is severe, the state must narrowly draw the
regulation to serve an “interest of compelling
importance.” Id. (quotation omitted). But when the law
imposes “reasonable, nondiscriminatory restrictions,”
Although Ohio recognizes this, it also argues that “[l]aws regulating
ballot access for state initiatives do not implicate the First Amendment at
all.” (Appellants’ Br. at 26.) But as Ohio admits, that’s not the law in this
circuit. (Id. at 29–30.) And “until this court sitting en banc takes up the
question of Anderson-Burdick’s reach, we will apply that framework in
cases like this.” Thompson, 959 F.3d at 808 n.2. Still, we note that at least
two other courts of appeals take Ohio’s position. See Initiative &
Referendum Inst. v. Walker, 450 F.3d 1082, 1099–100 (10th Cir. 2006)
(en banc); Marijuana Pol’y Project v. United States, 304 F.3d 82, 85
(D.C. Cir. 2002). “And this court has often questioned whether AndersonBurdick applies to anything besides generally applicable restrictions on
the right to vote.” Thompson, 959 F.3d at 808 n.2 (collecting cases). So
there’s a circuit split on the applicability of Anderson-Burdick to laws
regulating ballot access for initiatives. This has caused “predictably
contrary conclusions as to whether and to what extent States must adapt
the initiative process to account for new obstacles to collecting
signatures.” Little v. Reclaim Idaho, --- S. Ct. ----, No. 20A18, 2020 WL
4360897, at *1 (2020) (Roberts, C.J., concurring in the grant of a stay).
That said, “the [Supreme] Court is reasonably likely to grant certiorari to
resolve the split presented by this case on an important issue of election
administration.” Id.
4
53a
we subject it to rational-basis review. Id. (quotation
omitted).
There’s one more layer to Anderson-Burdick. A
challenged law imposes an intermediate burden when
the burden is somewhere between severe on the one
hand and reasonable and nondiscriminatory on the
other. Kishore v. Whitmer, --- F.3d ----, No. 20-1661,
2020 WL 4932749, at *2 (6th Cir. 2020). When the
burden is intermediate, we weigh it against “the
precise interests put forward by the State as
justifications for the burden imposed by its rule.”
Anderson, 460 U.S. at 789; see also Thompson, 959
F.3d at 808. In doing so, we consider “the extent to
which those interests make it necessary to burden the
plaintiff’s rights.” Thompson, 959 F.3d at 808 (quoting
Burdick, 504 U.S. at 434). It’s this level of scrutiny
that we apply to Ohio’s laws here. 5
1. The Burden
5 In a surreply, Plaintiffs expand on their previous argument
that Ohio—by failing to answer Plaintiffs’ complaint or file a Rule
12 motion—“admitted” Plaintiffs’ claim from the complaint that
it was “impossible” for them to collect signatures. See Fed. R. Civ.
P. 8(b)(6). If this were true, perhaps stricter scrutiny would be
appropriate. But we don’t think “impossibility” here is a factual
allegation that can be admitted in pleadings. See Ohio
Democratic Party v. Husted, 834 F.3d 620, 628 (6th Cir. 2016)
(collecting cases); Bright v. Gallia County, 753 F.3d 639, 652 (6th
Cir. 2014) (explaining, in the context of a motion to dismiss, that
“legal conclusions masquerading as factual allegations” don’t
turn legal questions into factual ones (quotations omitted)). And
“a defendant’s failure to deny conclusions of law does not
constitute an admission of those conclusions.” 5 C. Wright & A.
Miller, Federal Practice & Procedure § 1279 (3d ed.). In any event,
Ohio has consistently argued, both before the district court and
before us, that it wasn’t impossible for Plaintiffs to collect
signatures.
54a
We see no reason to depart from our previous holding
that Ohio’s ballot-access restrictions impose, at most,
only an intermediate burden on plaintiffs’ First
Amendment rights, even during COVID-19. 6 Id. at
810–811. If anything, the interim between our stay
order and now has reinforced our holding. The federal
circuit tide has turned against Plaintiffs. The Eighth
Circuit, for instance, held that Arkansas’s “in-person
signature requirement, while implicating the First
Amendment, imposes less-than-severe burdens on the
plaintiffs’ rights and survives the applicable lesser
scrutiny.” Miller v. Thurston, 967 F.3d 727, 741 (8th
Cir. 2020); see also Libertarian Party of Pa. v. Governor
of Pa., 813 F. App’x 834, 835 (3d Cir. 2020) (mem.)
(holding that Pennsylvania’s ballot-access law, which
includes a signature requirement, “survives
intermediate scrutiny because it serves the
Commonwealth’s
legitimate
and
sufficiently
important interests in ‘avoiding ballot clustering,
ensuring viable candidates, and the orderly and
efficient administration of elections.’”). And in Morgan
v. White, the Seventh Circuit said that if Illinois
wanted to just skip referenda for the year, “there is no
federal problem”: “Illinois may decide for itself
whether a pandemic is a good time to be soliciting
signatures on the streets in order to add referenda to
a ballot.” 964 F.3d 649, 652 (7th Cir. 2020).
And in addition, the Supreme Court stayed two
injunctions against state enforcement of ballot access
6 Plaintiffs argue that our stay order “carries limited weight.”
(Appellees’ Br. at 24 n.29.) We don’t need to decide the
precedential weight to give to that order. But it’s worth noting
that we’ve since relied on it as “binding precedent.” Hawkins v.
DeWine, 968 F.3d 603, 604 (6th Cir. 2020).
55a
restrictions. Little v. Reclaim Idaho, --- S. Ct. ---, No.
20A18, 2020 WL 4360897 (2020); Clarno v. People Not
Politicians, --- S. Ct. ----, No. 20A21, 2020 WL 4589742
(2020). And the Court left our previous ruling in place.
Thompson, --- S. Ct. ----, 2020 WL 3456705 (2020).
Even without those developments, Plaintiffs still
faced an uphill battle. We noted in our stay order that
“[a]t bottom, a severe burden excludes or virtually
excludes electors or initiatives from the ballot.” 959
F.3d at 809. But Ohio’s ballot access laws don’t do that.
Id. Instead, all throughout the pandemic, “Ohio
specifically exempted conduct protected by the First
Amendment from its stay-at-home orders.” Id. This
included gathering signatures for petitions. 7 Even if
that was unclear at first, Ohio made it clear by April
30—which gave Plaintiffs months to gather
signatures. 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).
And 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. “[W]e must
remember, First Amendment violations require state
action.” Thompson, 959 F.3d at 810. So “Plaintiffs’
burden is less than severe” because Ohio hasn’t
excluded or virtually excluded them from the ballot.
7 Plaintiffs argue that Ohio’s First Amendment exception to its
stay-at-home orders was “too vague to alleviate the burden on
Thompson.” (Appellees’ Br. at 31.) We confronted that argument
head on in Hawkins and rejected it. Hawkins, 968 F.3d at 607
(“[T]he orders explicitly exempt First Amendment protected
speech, and it is well-established that the act of collecting
signatures for ballot access falls under that ambit.”).
56a
Id.; see Hawkins v. DeWine, 968 F.3d 603, 607 (6th Cir.
2020)
Plaintiffs argue that “total exclusion” from the ballot
isn’t essential for finding a severe burden. (Appellees’
Br. at 25.) But the cases Plaintiffs cite don’t support
their theory. For instance, they rely on our recent
decision in Esshaki v. Whitmer to claim that the
“combined effect” of strictly enforced ballot access laws
and stay-at-home orders can create a severe burden
See 813 F. App’x 170, 171 (6th Cir. 2020). This
language, they say, means that “total exclusion” isn’t
necessary to make out a severe burden. And for extra
support they cite SawariMedia, LLC v. Whitmer,
where “neither this court, nor the district court applied
a ‘total exclusion’ test to find severe burden.”
(Appellees’ Br. at 28); see 963 F.3d 595 (6th Cir. 2020).
True, we held in Esshaki that “the combination of
[Michigan’s] strict enforcement of the ballot-access
provisions and the Stay-at-Home Orders imposed a
severe burden on the plaintiffs’ ballot access.” 813 F.
App’x at 171. But Plaintiffs omit why we held that
way. We later clarified: “We held that there was a
severe burden because Michigan’s Stay-at-Home
Order remained in effect through the deadline to
submit ballot-access petitions, effectively excluding all
candidates who had not already satisfied the signature
requirements (and predicted a shutdown).” Kishore, -- F.3d ----, 2020 WL 4932749, at *3 (emphasis added).
And Kishore’s explanation of why we found a severe
burden in Esshaki applies with equal force to
SawariMedia. The restrictions at issue there were
“identical” to those in Esshaki. SawariaMedia, LLC,
963 F.3d at 597. So in finding a severe burden in both
Esshaki and SawariMedia, we relied on the fact that
Michigan’s restrictions “effectively excluded” the
plaintiffs from ballot access.
57a
Plaintiffs also cite Libertarian Party of Ky. v.
Grimes. That case noted that “the ‘combined effect’ of
ballot-access restrictions can pose a severe burden.”
835 F.3d 570, 575 (6th Cir. 2016). Fair enough. But
again, Plaintiffs read the case too narrowly. In fact,
Libertarian Party of Ky. explicitly stated—multiple
times, at that—that the ballot access restrictions at
issue couldn’t be a severe burden because they didn’t
“constitute exclusion or virtual exclusion.” Id. at 575;
see id. at 574 (“The hallmark of a severe burden is
exclusion or virtual exclusion from the ballot.”).
Since our stay order, we’ve already had the chance
to take another look at the burden Ohio’s ballot access
regulations impose. See Hawkins, 968 F.3d at 604; see
also Kishore, --- F.3d ----, 2020 WL 4932749, at *3.
Hawkins involved a challenge to Ohio’s requirements
for running for President of the United States as an
independent, which are virtually identical to those
here. 968 F.3d at 604 (noting that Ohio requires
independent presidential candidates to file “a
nominating petition with no fewer than 5,000
signatures,” which must be fixed in ink and witnessed
by the circulator). Relying on our Thompson stay
order, we held that “the burden imposed on Plaintiffs
by Ohio’s ballot-access statutes—in light of the state’s
response to the pandemic—is an intermediate one.” Id.
at 607. And in Kishore, we applied intermediate
scrutiny to Michigan ballot access regulations that
were “comparable to the burdens imposed upon the
plaintiffs in Thompson and Hawkins.” --- F.3d ----,
2020 WL 4932749, at *3.
To be sure, it may be harder for Plaintiffs to obtain
signatures given the conditions. But “just because
procuring signatures is now harder . . . doesn’t mean
that Plaintiffs are excluded from the ballot.”
Thompson, 959 F.3d at 810. The burden Plaintiffs face
58a
here is thus an intermediate one. That means we next
weigh it against the interests Ohio puts forward to
justify its regulations.
2. Ohio’s Justifications
Ohio’s ballot access laws place an intermediate
burden on Plaintiffs’ First and Fourteenth
Amendment rights. So the next step in the AndersonBurdick framework is “a flexible analysis in which we
weigh the ‘burden of the restriction’ against the ‘state’s
interests and chosen means of pursuing them.’”
Schmitt v. LaRose, 933 F.3d 628, 641 (6th Cir. 2019),
cert. denied, 207 L. Ed. 2d 141 (2020). Ohio articulates
two interests relevant to this appeal. The first relates
to the ink and attestation requirements: preventing
fraud by ensuring the authenticity of signatures.
There’s no question this is a legitimate—indeed
compelling—interest. “The State’s interest in
preserving the integrity of the electoral process is
undoubtedly important.” John Doe No. 1. v. Reed, 561
U.S. 186, 197 (2010). And “states have a strong
interest in ‘ensuring that [their] elections are run
fairly and honestly,’ as well as in ‘maintaining the
integrity of [their] initiative process.’” Schmitt, 933
F.3d at 641 (quoting Taxpayers United for Assessment
Cuts, 994 F.2d at 297).
So Ohio’s first interest is important—what about its
second? Ohio says 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. This is also an important
interest. Indeed, “[s]tates may, and inevitably must,
enact reasonable regulations of parties, elections, and
ballots to reduce election- and campaign-related
disorder.” Timmons v. Twin Cities Area New Party,
520 U.S. 351, 358 (1997).
59a
3. The Balancing Test
Finally, “[a]t the third step of Anderson-Burdick we
assess whether the State’s restrictions are
constitutionally valid given the strength of its
proffered interests.” Schmitt, 933 F.3d at 641; see
Kishore, 2020 WL 4932749, at *4. Remember, this
stage of the analysis is flexible, and we give states
considerable leeway to pursue their legitimate
interests. Buckley v. Am. Const. Law Found., 525 U.S.
182, 191 (1999). And 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. Thompson, 959 F.3d at 811. The method the
State chooses to pursue its interests need not be
narrowly tailored. Id.
We’ve already done much of the heavy lifting here.
We’ve previously held, in multiple cases, that the
interests Ohio pursues through its ballot access laws
“outweigh the intermediate burden those regulations
place on Plaintiffs.” Id.; Hawkins, 968 F.3d at 607; see
also Kishore --- F.3d ----, 2020 WL 4932749, at *3 (“On
balance, the State’s well-established and legitimate
interests in administering its own elections through
candidate-eligibility and ballot-access requirements
outweigh the intermediate burden imposed on
Plaintiffs.”). And “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.” Little, --- S. Ct. ----, 2020 WL 4360897, at *2
(Roberts, C.J., concurring in the grant of a stay).
***
In short, Ohio is likely to prevail on the merits—and
that’s the most important part of this analysis. Still,
60a
the remaining three preliminary injunction factors
favor Ohio, too.
B.
First, irreparable harm. “[A]ny time a State is
enjoined by a court from effectuating statutes enacted
by representatives of its people, it suffers a form of
irreparable injury.” Maryland v. King, 567 U.S. 1301,
133 S. Ct. 1, 3 (2012) (quoting New Motor Vehicle Bd.
of Cal. v. Orrin W. Fox Co., 434 U.S. 1345, 1351 (1977)
(Rehnquist, J., in chambers)). So “[u]nless the statute
is unconstitutional, enjoining a ‘State from conducting
[its] elections pursuant to a statute enacted by the
Legislature . . . would seriously and irreparably harm
[the State].’” Thompson, 959 F.3d at 812 (quoting
Abbott v. Perez, --- U.S. ----, 138 S. Ct. 2305, 2324
(2018)). Because we’ve already found that Ohio is
likely to prevail on the merits here, it would cause the
State irreparable harm if we blocked it from enforcing
its constitutional ballot access laws.
Next, the balance of the equities. “When analyzing
the balance of equities, ‘[the Supreme] Court has
repeatedly emphasized that lower federal courts
should ordinarily not alter the election rules on the eve
of an election.’” Kishore, --- F.3d ----, 2020 WL 4932749,
at *4 (quoting Republican Nat’l Comm. v. Democratic
Nat’l Comm., --- U.S. ----, 140 S. Ct. 1205, 1207 (2020)
(per curiam)). Ohio will soon print ballots for overseas
and military voting. Ohio Rev. Code Ann. §
3509.01(B)(1). Because “federal courts are not
supposed to change state election rules as elections
approach,” this factor also favors Ohio. Thompson, 959
F.3d at 813.
Finally, the public interest. It’s in the public interest
that we give effect to the will of the people “by
enforcing the laws they and their representatives
61a
enact.” Id. at 812. So all four preliminary injunction
factors favor Ohio.
III.
Finally, we note that the Federal Constitution gives
states, not federal courts, “the ability to choose among
many permissible options when designing elections.”
Id. We don’t “lightly tamper” with that authority. Id.
Instead, the power to adapt or modify state law to
changing conditions—especially during a pandemic—
rests with state officials and the citizens of the state.
So while federal courts can sometimes enjoin
unconstitutional state laws, we can’t engage in “a
plenary re-writing of the State’s ballot-access
provisions.” Esshaki, 813 F. App’x at 172. Instead,
“[t]he Constitution grants States broad power to
prescribe the ‘Times, Places and Manner of holding
Elections for Senators and Representatives,’ which
power is matched by state control over the election
process for state offices.” Clingman v. Beaver, 544 U.S.
581, 586 (2005) (citations omitted).
We don’t have the power to tell states how they
should run their elections. If we find a state ballotaccess requirement unconstitutional, we can enjoin its
enforcement. See, e.g., Esshaki, 813 F. App’x at 172.
But otherwise, “state and local authorities have
primary responsibility for curing constitutional
violations.” Hutto v. Finney, 437 U.S. 678, 687 n.9
(1978); Esshaki, 813 F. App’x at 172 (holding that it
“was not justified” for a district court to extend the
deadline to file signed petitions and order the state to
accept electronic signatures).
So when the district court here ordered Ohio to
accept electronically signed and witnessed petitions
and extended the deadline for submitting petitions, it
overstepped its bounds. It effectively rewrote Ohio’s
62a
constitution and statutes and “intrude[d] into the
proper sphere of the States.” Missouri v. Jenkins, 515
U.S. 70, 131 (1995) (Thomas, J., concurring); see
Thompson, 959 F.3d at 812 (“[T]he district court
exceeded its authority by rewriting Ohio law with its
injunction.”). Federal courts don’t have this authority.
IV.
For these reasons, we reverse the district court’s
grant of a preliminary injunction.
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 20-3526
CHAD THOMPSON; WILLIAM T.
SCHMITT; DON KEENEY,
Plaintiffs-Appellees,
v.
RICHARD MICHAEL DEWINE, in
his capacity as the Governor of Ohio;
LANCE HIMES, in his official
capacity as Interim Director of Ohio
Department of Health; FRANK
LAROSE in his official capacity as
Ohio Secretary of State,
FILED
September
16, 2020
DEBORAH
S. HUNT,
Clerk
Defendants-Appellants.
Before: SUTTON, McKEAGUE, and NALBANDIAN,
Circuit Judges.
JUDGEMENT
On Appeal from the United States District Court
For the Southern District of Ohio at Columbus
63a
THIS CAUSE was heard on the record from
the district court and was submitted on the briefs
without oral argument.
IN CONSIDERATION THEREOF, it is
ORDERED that the district court’s grant of a
preliminary injunction is REVERSED.
ENTERED BY ORDER OF THE COURT
Clerk
Deborah S. Hunt,
64a
APPENDIX F
(ORDER LIST: 591 U.S.)
THURSDAY, JUNE 25, 2020
ORDER IN PENDING CASE
19A1054 THOMPSON, CHAD, ET AL. V.
DEWINE, GOV. OF OH, ET AL.
The application to vacate stay presented to Justice
Sotomayor and by her referred to the Court is denied.
65a
APPENDIX G
RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P 32.1(b)
File Name: 20a0162p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
CHAD THOMPSON; WILLIAM T. SCHMITT;
DON KEENEY,
v.
Plaintiffs-Appellees, No. 203526
RICHARD MICHAEL DEWINE, in his
capacity as the Governor of Ohio; AMY
ACTON, in her official capacity as
Director of Ohio Department of Health;
FRANK LAROSE in his official capacity
as Ohio Secretary of State,
Defendants-Appellants,
OHIOANS FOR SECURE AND FAIR
ELECTIONS; DARLENE L. ENGLISH;
LAURA A GOLD; ISABEL C. ROBERTSON;
EBONY SPEAKES-HALL; PAUL MOKE;
ANDRE WASHINGTON; SCOTT A.
CAMPBELL; SUSAN ZEIGLER; HASAN
KWAME JEFFRIES; OHIOANS FOR RASING
THE WAGE; ANTHONY CALDWELL; JAMES
E. HAYES; DAVID G. LATANICK;
PIERRETTE M. TALLEY,
Intervenors-Appellees.
66a
Appeal from the United States District Court
for the Southern District of Ohio at Columbus
No. 2:20-cv-02129—Edmund A. Sargus, Jr., District
Judge
Decided and Filed: May 26, 2020
Before: SUTTON, McKEAGUE, and NALBANDIAN,
Circuit Judges.
COUNSEL
ON MOTION: Benjamin M. Flowers, Michael J.
Hendershot, Stephen P. Carney, Shams H. Hirji,
OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellants.
ON RESPONSE: Mark R. Brown, CAPITAL
UNIVERSITY LAW SCHOOL, Columbus, Ohio, for
Plaintiffs-Appellees. Donald J. McTigue, Derek
Clinger, MCTIGUE & COLOMBO LLC, Columbus,
Ohio, for Intervenors-Appellees.
ORDER
PER CURIAM. By all accounts, Ohio’s public
officials have admirably managed the problems
presented by the unprecedented COVID-19 pandemic.
This includes restricting Ohioans’ daily lives to slow
the spread of a highly infectious disease. Nearly every
other state and the federal government have done the
same. And these are the types of actions and
judgments that elected officials are supposed to take
and make in times of crisis. But these restrictions have
not gone unchallenged. See, e.g., Maryville Baptist
67a
Church, Inc. v. Beshear, 957 F.3d 610 (6th Cir. 2020)
(per curiam); Adams & Boyle, P.C. v. Slatery, 956 F.3d
913 (6th Cir. 2020). Our Constitution, of course,
governs during both good and challenging times.
Unlike those cases, however, the Plaintiffs and
Intervenors here do not challenge the State’s
restrictions per se. Rather, they allege that COVID-19
and the State’s stay-at-home orders have made it
impossibly difficult for them to meet the State’s
preexisting requirements for initiatives to secure a
place on the November ballot—violating their First
Amendment rights. So they
challenge Ohio’s application of its general election
and ballot-initiative laws to them.
Ohio’s officials have not been unbending in their
administration of the State’s election laws. Indeed,
they postponed the Ohio primary election, originally
scheduled during the height of the pandemic. That
exercise of judgment is not before us. Rather, Plaintiffs
challenge the Ohio officials’ decision not to further
modify state election law in the context of this case.
The district court agreed with Plaintiffs and granted a
preliminary injunction, finding that, as applied,
certain provisions of the Ohio Constitution and Ohio
Code violate the First Amendment. Defendants now
ask for a stay of that injunction to preserve the status
quo pending appeal.
The people of Ohio vested their sovereign legislative
power in the General Assembly. Ohio Const. art. II, §
1. But they also retained the power to amend the State
Constitution, enact laws, and enact municipal
ordinances by initiative and referendum. Id. art. II, §§
1a, 1b, 1f. The Ohio Constitution and the Ohio Code
establish the process for proposing an initiative to the
State’s electors and impose many requirements for
ballot access. Relevant here, a petition to put an
68a
initiative before Ohio’s electors for referendum must
include signatures from ten percent of the applicable
jurisdiction’s electors that voted in the last
gubernatorial election, each signature must “be
written in ink,” and the initiative’s circulator must
witness each signature. Id. art. II, § 1g; see id. art. II,
§ 1a; Ohio Rev. Code Ann. § 731.28. And the initiative’s
proponents must submit these signatures to the
Secretary of State 125 days before the election for a
constitutional amendment and 110 days before the
election for a municipal ordinance. Ohio Const. art. II,
§ 1a; Ohio Rev. Code Ann. § 731.28.
Given the COVID-19 pandemic, three individuals
and two organizations, who are obtaining signatures
in support of initiatives to amend the Ohio
Constitution and propose municipal ordinances,
challenged these requirements, as-applied to them.
They claim Ohio’s ballot-initiative requirements
violate their First and Fourteenth Amendment rights
and moved to enjoin the State from enforcing these
requirements against them. The district court granted
their motion in part, enjoining enforcement of the ink
signature requirement, the witness requirement, and
the submission deadlines, and denied their motion in
part, upholding the number of signatures
requirement. The court also directed Defendants to
“update the Court by 12:00 pm on Tuesday, May 26,
2020 regarding adjustments to the enjoined
requirements so as to reduce the burden on ballot
access” as well as ordered them to “accept
electronically-signed and witnessed petitions from [the
organizational plaintiffs] collected through the on-line
signature collection plans set forth in their briefing”
and to “accept petitions from [the organizational
plaintiffs] that are submitted to the Secretary of State
69a
by July 31, 2020[.]” 1 (R. 44, Op. & Order at PageID #
675–76.) And the court ordered Defendants and the
organizational plaintiffs to “meet and confer regarding
any technical or security issues to the on-line
signature collection plans” and “submit their findings
to the Court by 12:00 pm on Tuesday, May 26, 2020.”
(Id.) Defendants now move for an administrative stay
and for a stay pending appeal.
“[I]nterlocutory orders of the district courts of the
United States . . . granting, continuing, modifying,
refusing or dissolving injunctions” are immediately
appealable. 28 U.S.C. § 1292(a)(1). And the district
court has already denied Defendants’ motion for a stay
pending appeal in that court. So we have jurisdiction
and Defendants’ motion is ripe for our review.
A movant must establish four factors to obtain a stay
pending appeal: “(1) whether the stay applicant has
made a strong showing that he is likely to succeed on
the merits; (2) whether the applicant will be
irreparably injured absent a stay; (3) whether issuance
of the stay will substantially injure the other parties
interested in the proceeding; and (4) where the public
interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009).
When evaluating these factors for an alleged
constitutional violation, “the likelihood of success on
1 The district court chose this date because it is also the
deadline for petition proponents to submit additional signatures
if the Secretary of State determines that the original submissions
were insufficient. (R. 50, Op & Order at PageID # 718.) The
Secretary of State would then have less than a month, until
August 30, to determine whether the petitions satisfy the
requirements for ballot access, Plaintiffs would need to file any
legal challenge to the Secretary of State’s determination by
September 9, the Secretary of State would have to certify the form
of official ballots by September 14, and the Supreme Court would
have to rule on any challenge by September 19. (Id.)
70a
the merits often will be the determinative factor.”
Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir.
2012); see also Bays v. City of Fairborn, 668 F.3d 814,
819 (6th Cir. 2012) (“In First Amendment cases,
however, the crucial inquiry is usually whether the
plaintiff has demonstrated a likelihood of success on
the merits. This is so because . . . the issues of the
public interest and harm to the respective parties
largely depend on the constitutionality of the state
action.” (internal quotation marks and alteration
omitted)). So we turn first to that.
I.
“[A]lthough the Constitution does not require a state
to create an initiative procedure, if it creates such a
procedure, the state cannot place restrictions on its
use that violate the federal Constitution[.]” Taxpayers
United for Assessment Cuts v. Austin, 994 F.2d 291,
295 (6th Cir. 1993); see also John Doe No. 1 v. Reed,
561 U.S. 186, 212 (2010) (Sotomayor, J., concurring)
(“[I]nitiatives and referenda . . . are not compelled by
the Federal Constitution. It is instead up to the people
of each State, acting in their sovereign capacity, to
decide whether and how to permit legislation by
popular action.”). As Defendants concede, our
precedent dictates that we evaluate First Amendment
challenges to nondiscriminatory, content-neutral
ballot initiative requirements under the AndersonBurdick framework. 2 Schmitt v. LaRose, 933 F.3d 628,
2 Defendants contend that Anderson-Burdick shouldn’t apply
to ballot initiative requirements because restrictions on the
people’s legislative powers (rather than political speech or voting)
don’t implicate the First Amendment. At least two other Courts
of Appeals have held as much. See Initiative & Referendum Inst.
v. Walker, 450 F.3d 1082, 1099–100 (10th Cir. 2006) (en banc);
Marijuana Policy Project v. United States, 304 F.3d 82, 85 (D.C.
Cir. 2002). And this court has often questioned whether
71a
639 (6th Cir. 2019); Comm. to Impose Term Limits on
the Ohio Supreme Court & to Preclude Special Legal
Status for Members & Emps. of the Ohio Gen.
Assembly v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th
Cir. 2018). First, we determine the burden the State’s
regulation imposes on the plaintiffs’ First Amendment
rights.
When
States
impose
“reasonable
nondiscriminatory restrictions[,]” courts apply
rational basis review and “‘the State’s important
regulatory interests are generally sufficient to justify’
the restrictions.” Burdick v. Takushi, 504 U.S. 428,
434 (1992) (quoting Anderson v. Celebrezze, 460 U.S.
780, 788, (1983)). But when States impose severe
restrictions, such as exclusion or virtual exclusion
from the ballot, strict scrutiny applies. Id. at 434;
Schmitt, 933 F.3d at 639 (“The hallmark of a severe
burden is exclusion or virtual exclusion from the
ballot.”). For cases between these extremes, we weigh
the burden imposed by the State’s regulation against
“‘the precise interests put forward by the State as
justifications for the burden imposed by its rule,’
Anderson-Burdick applies to anything besides generally
applicable restrictions on the right to vote. Daunt v. Benson, 956
F.3d 396, 423–24 (6th Cir. 2020) (Readler, J., concurring)
(acknowledging that “Anderson-Burdick is a poor vehicle” for
evaluating First Amendment challenges to public service
qualification regulations; Mays v. LaRose, 951 F.3d 775, 783 n.4
(6th Cir. 2020) (recognizing that applying Anderson-Burdick to
Equal Protection claims “takes some legal gymnastics”); Schmitt,
933 F.3d at 644 (Bush, J., concurring in part) (“[T]he Court's
precedents in Anderson and Burdick, though concerning election
regulation, similarly do not address the key question raised in
this case: is the First Amendment impinged upon by statutes
regulating the election mechanics concerning initiative
petitions?” (citation omitted)). But until this court sitting en banc
takes up the question of Anderson-Burdick’s reach, we will apply
that framework in cases like this.
72a
taking into consideration ‘the extent to which those
interests make it necessary to burden the plaintiff's
rights.’” Burdick, 504 U.S. at 434 (quoting Anderson,
460 U.S. at 789).
We have regularly upheld ballot access regulations
like those at issue. See Schmitt, 933 F.3d at 641–42
(upholding Ohio’s provision of only mandamus review
for challenges to a Board of Elections’ ruling over
compliance with ballot initiative requirements against
a First Amendment challenge); Ohio Ballot Bd., 885
F.3d at 448 (upholding Ohio’s single-subject
requirement for ballot initiatives against a First
Amendment challenge); Taxpayers United, 994 F.2d at
296–97 (upholding Michigan’s number-of-signatures
requirement for ballot initiatives against a First
Amendment challenge). But these are not normal
times. So the question is whether the COVID-19
pandemic and Ohio’s stay-at-home orders increased
the burden that Ohio’s ballot-initiative regulations
place on Plaintiffs’ First Amendment rights. We must
answer this question from the perspective of the people
and organizations affected by Ohio’s ballot initiative
restrictions and considering all opportunities these
parties had to exercise their rights. Mays, 951 F.3d at
785–86.
The district court held that Ohio’s strict enforcement
of its ballot initiative regulations imposed a severe
burden on Plaintiffs’ First Amendment rights, given
the pandemic. Not so. The district court based its
order, in part, on this court’s recent order in Esshaki
v. Whitmer, --- F. App’x ----, 2020 WL 2185553 (6th Cir.
May 5, 2020). But there are several key differences
between this case and Esshaki. At bottom, a severe
burden excludes or virtually excludes electors or
initiatives from the ballot. See Mays, 951 F.3d at 786;
Schmitt, 933 F.3d at 639. But Ohio law doesn’t do that.
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In Esshaki we held that “the combination of
[Michigan’s] strict enforcement of [its] ballot-access
provisions and [its] Stay-at-Home Orders imposed a
severe burden on the plaintiff’s ballot access[,]” 2020
WL 2185553, at *1 (emphasis added). In other words,
Michigan still required candidates seeking ballot
access by petition to procure the same number of
physical signatures as a non-pandemic year, “without
exception for or consideration of the COVID-19
pandemic or the Stay-at-Home Orders.” Id. What’s
more, Michigan’s stay-at-home orders remained in
place through the deadline for petition submission. Id.
So Michigan abruptly prohibited the plaintiffs from
procuring signatures during the last month before the
deadline, leaving them with only the signatures that
they had gathered to that point.
On the other hand, Ohio specifically exempted
conduct protected by the First Amendment from its
stay-at-home orders. From the first Department of
Health Order issued on March 12, Ohio made clear
that its stay-at-home restrictions did not apply to
“gatherings for the purpose of the expression of First
Amendment protected speech[.]” Ohio Dep’t of Health,
Order to Limit and/or Prohibit Mass Gatherings in the
State of Ohio ¶ 7 (March 12, 2020). And in its April 30
order, the State declared that its stay-at-home
restrictions did not apply to “petition or referendum
circulators[.]” 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). So none of Ohio’s pandemic response
regulations changed the status quo on the activities
Plaintiffs could engage in to procure signatures for
their petitions.
Unlike the Ohio orders, the Michigan executive
orders in Esshaki did not specifically exempt First
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Amendment protected activity. To be sure, executive
officials in Michigan informally indicated that they
would not enforce those orders against those engaged
in protected activity. See Mich. Dep’t of Health &
Human Servs., Executive Order 2020-42 FAQs (Apr.
2020), https://www.michigan.gov/coronavirus/0,9753,
7-406-98178_98455-525278--,00.html. Of course, that
promise is not the same as putting the restriction in
the order itself. Cf. Conn. Nat’l Bank v. Germain, 503
U.S. 249, 253–54 (1992) (We “must presume that [the]
legislature says in a statute what it means and means
in a statute what is says there.”); Sosna v. Iowa, 419
U.S. 393, 399–400 (1975) (noting, in the context of the
capable of repetition yet evading review exception to
mootness, that just because a state official says they
won’t enforce a statute against a party now doesn’t
mean they won’t exercise their discretion to enforce
the statute at a later time). But in any event, we did
not address the significance of exemptions in Esshaki
at all. By contrast, we believe that Ohio’s express
exemption (especially for “petition or referendum
circulators” specifically) is vitally important here.
What’s more, Ohio is beginning to lift their stay-athome restrictions. On May 20, the Ohio Department of
Health rescinded its stay-at-home order. Ohio Dep’t of
Health, Director’s Order that Rescinds and Modifies
Portions of the Stay Safe Ohio Order (May 20, 2020).
We found a severe burden in Esshaki because
Michigan’s stay-at-home order remained in effect
through the deadline to submit ballot-access petitions.
Considering all opportunities Plaintiffs had, and still
have, to exercise their rights in our calculation of the
burden imposed by the State’s regulations, see Mays,
951 F.3d at 785–86, Plaintiffs’ burden is less than
severe. Even if Ohio’s stay-at-home order had applied
to Plaintiffs, the five-week period from Ohio’s
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rescinding of its order until the deadline to submit an
initiative petition undermines Plaintiffs’ argument
that the State has excluded them from the ballot.
Plaintiffs’ claim effectively boils down to frustration
over failing to procure as many signatures for their
petitions (because of social distancing and reduced
public crowds) as they would without the pandemic.
But that’s not necessarily true. There’s no reason that
Plaintiffs can’t advertise their initiatives within the
bounds of our current situation, such as through social
or traditional media inviting interested electors to
contact them and bring the petitions to the electors’
homes to sign. Or Plaintiffs could bring their petitions
to the public by speaking with electors and witnessing
the signatures from a safe distance, and sterilizing
writing instruments between signatures.
Moreover, just because procuring signatures is now
harder (largely because of a disease beyond the control
of the State) doesn’t mean that Plaintiffs are excluded
from the ballot. And we must remember, First
Amendment violations require state action. U.S.
Const. amend. I (“Congress shall make no law . . . .”
(emphasis added)); 42 U.S.C. § 1983 (“Every person
who, under color of any statute, ordinance, regulation,
custom, or usage, of any State . . . .” (emphasis added)).
So we cannot hold private citizens’ decisions to stay
home for their own safety against the State. Because
the State has not excluded Plaintiffs from the ballot,
the burden imposed on them by the State’s initiative
requirements cannot be severe. See Schmitt, 933 F.3d
at 639.
Despite the pandemic, we believe that the more apt
comparison is to our burden analysis in Schmitt. The
plaintiffs there made a First Amendment challenge to
Ohio’s restriction of judicial review for board of
elections ballot decisions to petitions for a writ of
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mandamus. And we held that the burden was
intermediate because there are some costs associated
with obtaining legal counsel and seeking mandamus
review. Id. at 641. So this prevents some proponents
from seeking judicial review of the board’s exclusion of
their initiative and constitutes more than a de minimis
limit on access to the ballot. 3 Id. Schmitt concluded
that a burden is minimal when it “in no way” limits
access to the ballot.3 Id. (quoting Libertarian Party of
Ky. v. Grimes, 835 F.3d 570, 577 (6th Cir. 2016)). Thus,
the burden in Schmitt had to be intermediate. Same
here. Requiring Plaintiffs to secure hundreds of
thousands of signatures in support of their initiative
is a burden. That said, Ohio requires the same from
Plaintiffs now as it does during non-pandemic times.
So the burden here is not severe.
3 To be sure, this statement arguably conflicts with other
articulations of what constitutes a minimal burden. See Burdick,
504 U.S. at 434–39 (because Hawaii’s election laws were
reasonable and nondiscriminatory they imposed a minimal
burden on the plaintiff’s First Amendment rights, even though
they prevented the plaintiff from casting a vote for his preferred
candidate); Daunt, 956 F.3d at 408 (classifying regulations that
are “generally applicable [and] nondiscriminatory” as imposing a
minimal burden); Taxpayers United, 994 F.2d at 297 (finding
Michigan’s ballot initiative regulations minimally burdensome
because they were “content-neutral, nondiscriminatory
regulations that [were] reasonably related to the purpose of
administering an honest and fair initiative procedure.”). Indeed,
it’s hard not to conclude that the signature requirements in
Taxpayers United necessarily limited ballot access. And in
Burdick, the Supreme Court remarked that all “[e]lection laws
will invariably impose some burden on individual voters.” 504
U.S. at 433. But the State doesn’t argue that its ballot initiative
regulations impose only a minimal burden. And because those
regulations satisfy intermediate scrutiny, they would survive
under the framework for regulations that impose a minimal
burden. So we proceed under the intermediate burden analysis
discussed in Schmitt. 933 F.3d at 641.
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Whether this intermediate burden on Plaintiffs’
First Amendment rights passes constitutional muster
depends on whether the State has legitimate interests
to impose the burden that outweigh it. See Burdick,
504 U.S. at 434. Here they offer two. 4 Defendants
claim the witness and ink requirements help prevent
fraud by ensuring that the signatures are authentic.
And the deadlines allow them time to verify signatures
in an orderly and fair fashion, while also providing
initiative proponents time to challenge any adverse
decision in court.
These interests are not only legitimate, they are
compelling. John Doe No. 1, 561 U.S. at 186 (“The
State’s interest in preserving the integrity of the
electoral process is undoubtedly important.”); Citizens
for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir.
2008) (“[E]liminating election fraud is certainly a
compelling state interest[.]”); Austin, 994 F.2d at 297
(“[S]tate[s] ha[ve] a strong interest in ensuring that its
elections are run fairly and honestly,” as well as “in
maintaining the integrity of its initiative process.”
(internal quotation marks omitted)). The district court
faulted Defendants for not narrowly tailoring their
regulations. But Anderson-Burdick’s intermediate
scrutiny doesn’t require narrow tailoring. Because the
State’s compelling and well-established interests in
4 Defendants also claim a third state interest: ensuring that
each initiative on the ballot has a threshold amount of support to
justify taking up space on the ballot. This interest is more
appropriately related to Ohio’s number of signatures
requirement. Jolivette v. Husted, 694 F.3d 760, 769 (6th Cir. 2012)
(A State may legitimately “avoid[ ] overcrowded ballots” and
“protect the integrity of its political processes from frivolous or
fraudulent candidacies.”). But the district court did not enjoin the
State’s enforcement of that regulation so it’s not properly before
us in this motion for a stay pending appeal.
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administering its ballot initiative regulations
outweigh the intermediate burden those regulations
place on Plaintiffs, Defendants are likely to prevail on
the merits.
II.
Unless the statute is unconstitutional, enjoining a
“State from conducting [its] elections pursuant to a
statute enacted by the Legislature . . . would seriously
and irreparably harm [the State].” Abbott v. Perez, 138
S. Ct. 2305, 2324 (2018). Defendants have shown they
are likely to prevail on the merits. Serious and
irreparable election in accordance with its lawfully
enacted ballot-access regulations. Comparatively,
Plaintiffs have not shown that complying with a law
we find is likely constitutional will harm them. So the
balance of the equities favors Defendants. Finally,
giving effect to the will of the people by enforcing the
laws they and their representatives enact serves the
public interest. Coal. to Defend Affirmative Action v.
Granholm, 473 F.3d 237, 252 (6th Cir. 2006). With all
four factors favoring Defendants, we grant their
motion for a stay pending appeal.
III.
Last, even though we grant Defendants’ motion for a
stay pending appeal, we note that the district court
exceeded its authority by rewriting Ohio law with its
injunction. Despite relying heavily on Esshaki, the
district court failed to apply its primary holding:
“federal courts have no authority to dictate to the
States precisely how they should conduct their
elections.” ---F. App’x ----, 2020 WL 218553 at *2. In
Esshaki we granted a stay for the affirmative portion
of the district court’s injunction that (1) reduced the
number of signatures required to appear on the ballot,
(2) extended the filing deadline, and (3) ordered the
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State to permit the collection of signatures by
electronic mail. While it may not have done the first of
these, the court below did the second and third. The
district court extended the filing deadline by almost a
month, to July 31, and ordered Defendants to accept
petitions electronically signed, under the plan
Plaintiffs drafted.
Federal courts can enter positive injunctions that
require parties to comply with existing law. But they
cannot “usurp[] a State’s legislative authority by rewriting its statutes” to create new law. Id. The district
court read this holding too narrowly; recognizing it
could not modify the Ohio Code but remained free to
amend the Ohio Constitution. Instead of simply
invalidating Ohio’s initiative deadline and signature
requirement, the district court chose a new deadline
and prescribed the form of signature the State must
accept. The Ohio Constitution requires elector
approval for all amendments. Ohio Const. art. II, § 1a;
id. art. XVI, §§ 1, 2. By unilaterally modifying the Ohio
Constitution’s ballot initiative regulations, the district
court usurped this authority from Ohio electors.
The broader point is that the federal Constitution
provides States—not federal judges—the ability to
choose among many permissible options when
designing elections. And because that’s where the
decision-making authority is, federal courts don’t
lightly tamper with election regulations. These
concerns are magnified here where the new election
procedures proffered by Plaintiffs threaten to take the
state into unchartered waters. It may well be that the
new methods for gathering signatures and verifying
them proposed by Plaintiffs (using electronic
signatures gathered online by third parties and
identified by social security number) will prove
workable. But they may also pose serious security
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concerns and other, as yet unrealized, problems. So the
decision to drastically alter Ohio’s election procedures
must rest with the Ohio Secretary of State and other
elected officials, not the courts.
One final point, rewriting a state’s election
procedures or moving deadlines rarely ends with one
court order. Moving one piece on the game board
invariably leads to additional moves. This is exactly
why we must heed the Supreme Court’s warning that
federal courts are not supposed to change state
election rules as elections approach. See, e.g.,
Republican Nat’l Comm. v. Democratic Nat’l Comm.,
140 S. Ct. 1205, 1207 (2020) (per curiam) (“This Court
has repeatedly emphasized that lower federal courts
should ordinarily not alter the election rules on the eve
of an election.”); Purcell v. Gonzalez, 549 U.S. 1, 4–5
(2006) (per curiam) (“Court orders affecting elections,
especially conflicting orders, can themselves result in
voter confusion and consequent incentive to remain
away from the polls. As an election draws closer, that
risk will increase.”). Here, the November election itself
may be months away but important, interim deadlines
that affect Plaintiffs, other ballot initiative
proponents, and the State are imminent. And moving
or changing a deadline or procedure now will have
inevitable, other consequences.
There is no doubt that the COVID-19 pandemic and
Ohio’s responsive restrictions to halt the spread of that
disease have made it difficult for all Ohioans to carry
on with their lives. But for the most part we are letting
our elected officials, with input from public health
experts, decide when and how to apply those
restrictions. The election context is no different. And
while the Constitution provides a backstop, as it
must—we are unwilling to conclude that the State is
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infringing upon Plaintiffs’ First Amendment rights in
this particular case.
For these reasons, we GRANT Defendants’ motion
for a stay pending appeal and DISMISS AS MOOT
their motion for an administrative stay.
ENTERED BY ORDER OF THE COURT
Cler
Deborah S. Hunt,
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APPENDIX H
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHAD THOMPSON,
et al.,
Plaintiffs,
v.
CASE No. 2:20-CV2129
JUDGE EDMUND A.
SARGUS, JR.
GOVERNOR OF
OHIO MICHAEL
DEWINE, et al.,
Magistrate Judge
Chelsea M. Vascura
Defendants.
OPINION AND ORDER
The instant matter is before the Court for
consideration of three Applications for a Temporary
Restraining Order and/or three Motions for
Preliminary Injunction filed by each of the groups of
Plaintiffs in this matter. (ECF Nos. 4, 15, 17-2.) The
Court held several telephone conferences with the
parties, who unanimously indicated that they did not
need an evidentiary hearing, instead requesting that
the Court rely on their agreed stipulated facts, their
non-contested affidavits, and their briefing.
Defendants filed their Memorandum in Opposition
(ECF No. 40) and Plaintiffs filed their Replies (ECF
Nos. 41, 42, 43). For the reasons set forth below, the
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Court GRANTS IN PART AND DENIES IN PART
Plaintiffs’ Motions.
I.
Plaintiffs Chad Thompson, William Schmitt and
Don Keeney (“Thompson Plaintiffs”), PlaintiffIntervenor Ohioans for Safe and Secure Elections and
their supporters (“OFSE Plaintiffs”), and PlaintiffIntervenor Ohioans for Raising the Wage and their
supporters (“OFRW Plaintiffs”) (together “Plaintiffs”),
seek to place proposed local initiatives and
constitutional amendments on the November 3, 2020
general election ballot.
The Ohio Constitution provides state electors the
right to amend the Ohio Constitution and legislate
through initiative and referendum. The Ohio
Constitution and various statutes set forth a number
of formal requirements for qualifying on the ballot,
including a total number of signatures required, a
geographic distribution of signers, requirements that
petitions must be signed in ink, must be witnessed by
the petition circulator, and may not be made by proxy,
together with deadlines for submission to the
Secretary of State or local officials.
While Plaintiffs were advancing their petitions for
the November 3, 2020 general election, the world was
stunned by the advent of Coronavirus Disease
(“COVID-19”), a highly contagious respiratory virus.
The virus has spread throughout the world like
wildfire quickly rising to the level of a global pandemic
that has posed a significant threat to the safety of all
people. In an effort to respond rapidly to this threat,
Ohio Governor Mike DeWine, in Executive Order
2020-01D, authorized Ohio Department of Health
Director Amy Acton, M.D., to formulate general
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treatment guidelines to curtail the spread of COVID19 in Ohio. In accordance with Governor DeWine’s
Executive Order, Dr. Acton issued several Director’s
Orders, one of which required all individuals living in
Ohio to stay home beginning March 22, 2020 subject
to certain exceptions.
According to Plaintiffs, Ohio’s enforcement of several
signature requirements in light of the ongoing COVID19 pandemic and Ohio’s responding Stay-at-Home
orders, make it impossible to qualify their
constitutional amendments and initiatives for the
November ballot. Plaintiffs Thompson, Schmitt, and
Keeley seek an order directing Defendants to either
place their marijuana decriminalization initiatives on
local ballots, or in the alternative, to enjoin or modify
the requirements for qualifying initiatives for the
November ballot in light of the public health
emergency caused by COVID-19 and Ohio’s emergency
orders that were issued in response. OFSE and OFRW
and their supporters similarly seek orders placing
their proposed constitutional amendments on the
November ballot or modification of the requirements
for qualifying their proposal amendments for the
ballot.
Although Plaintiffs seek place to place different local
initiatives and constitutional amendments on the
November ballot, the key issue is the same: whether
Ohio’s strict enforcement of its requirements for
placing
local
initiatives
and
constitutional
amendments on the ballot unconstitutionally burden
Plaintiffs’ First Amendment rights in light of the
ongoing pandemic and Ohio’s emergency orders.
II.
A. Ohio’s Initiative Procedure
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An initiative is a method of direct democracy
whereby the people enact laws or adopt constitutional
amendments without reliance upon the legislature.
See generally Pfeifer v. Graves, 88 Ohio St. 473 (1913).
The Ohio Constitution reserves to Ohioans the right to
engage in direct democracy through the advancement
of initiative petitions. Ohio Const., Art. II, § 1a & 1f.
The Ohio Constitution empowers Ohioans to advances
initiative petitions for local ordinances and measures
as well as for constitutional amendments.
1. Initiative Procedure for Constitutional
Amendments
Article II, § 1 of the Ohio Constitution empowers
Ohioans to “propose amendments to the constitution
and to adopt or reject the same at the polls”
independent of the Ohio legislature. Ohio Const., Art.
II, § 1. Ohio Revised Code § 3519.01 requires anyone
who seeks to propose an Ohio constitutional
amendment via initiative petition to submit a
summary of the amendment along with the signatures
of one thousand qualified electors to the attorney
general for certification. If the attorney general
determines that the summary is fair and truthful
within ten days of receiving the initiative petition,
then the attorney general must send the initiative
petition to the Ohio Ballot Board. Ohio Rev. Code §
3519.01(A). Within ten days of receiving the proposed
amendment, the Board must determine whether the it
contains only one proposed law or amendment. Ohio
Rev. Code § 3505.062(A).
If both the attorney general and the Board certify
the petition, then the attorney general is directed to
file with the secretary of state “a verified copy of the
proposed law or constitutional amendment together
with its summary and the attorney general’s
certification.” Ohio Rev. Code § 3505.062(A) & §
86a
3519.01. Once this process is complete, the Ohio law
permits the proponents of the constitutional
amendment to acquire signatures to support its
placement on the ballot. Id.
The Ohio Constitution requires an initiative petition
for a proposed constitutional amendment to be signed
by ten percent of the electors of the state who voted in
the last gubernatorial election. Ohio Const. Art. II, §
1a; Ohio Rev Code § 3519.14 (Secretary of State shall
not accept any petition which does not purport to
contain the minimum number of signatures). The
petitions must contain valid signatures from at least
44 of Ohio’s 88 counties, in an amount equal to at least
five percent of the total votes cast in the last
gubernatorial election in those 44 counties. Ohio
Const. Art. II, § 1a; Ohio Rev. Code § 3519.14.
In addition, the “[t]he names of all signers to such
petitions shall be written in ink” and the petition
initiative must include a “statement of the circulator,
as may be required by law, that he witnessed the
affixing of every signature” Ohio Const. Art. II, § 1g;
see Ohio Rev. Code § 3501.38(B). “No person shall
write any name other than the person’s own . . . [and]
no person may authorize another to sign for the
petition,” Ohio Rev. Code § 3501.38; Ohio Const. Art.
II § 1g.
The proponents of the amendment must file their
petitions with the Secretary of State no later than 125
days before the general election to qualify for the
ballot. Ohio Const. Art. II, § 1a. “This year, in order to
qualify for the November general-election ballot, the
petitioners must submit their petitions on or before
July 1, 2020.” State ex rel. Ohioans for Secure & Fair
Elections, 2020-Ohio-1459, *P5 (Ohio 2020). The
proponents must file the completed petitions and
signatures in searchable electronic form with a
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summary of the number of part petitions per county
and the number of signatures, along with an index of
the electronic copy of the petition. Ohio Rev. Code §
3519.16(B). After a petition is filed with the Secretary
of State, various deadlines are triggered for the
Secretary of State to determine the sufficiency of the
signatures, for supplemental signatures to be
collected, and for challenges to petitions and
signatures to be filed in the Ohio Supreme Court.
2. Initiative Procedure for Local Ordinances
and Measures
Article II, §1f of the Ohio Constitution reserves the
use of referendum and initiative powers to the citizens
of a municipality for questions on which a municipality
is “authorized by law to control by legislative action.”
Ohio Const., Art. II, § 1f.
Ohio Revised Code § 731.28 outlines generally the
procedure by which municipal initiative petitions are
to be submitted, verified, and certified to the board of
elections for placement on the ballot. The statute
states that, “[o]rdinances and other measures
providing for the exercise of any powers of government
granted by the constitution or delegated to any
municipal corporation by the general assembly may be
proposed by initiative petition.” Id. Such petitions
must contain the signatures of not less than ten per
cent of the number of electors who voted for governor
at the most recent general election for the office of
governor in the municipal corporation.” Id.
Ohio law requires the proponents of local initiative
petitions to file “a certified copy of the proposed
ordinance or measure with the city auditor or the
village clerk” prior to its circulation. Ohio Rev. Code §
731.32. After the initial filing of the proposed
ordinance with the city auditor or village clerk,
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circulators of initiative petitions may begin to collect
signatures by circulating “"a full and correct copy of
the title and text of the proposed ordinance or other
measure.” Ohio Rev. Code § 731.31.
Ohio Revised Code § 731.31, which contains
requirements for the presentation of municipal
initiative and referendum petitions, provides that
these petitions “shall be governed in all other respects
by the rules set forth in section 3501.38 of the Revised
Code.” A signer “must be an elector of the municipal
corporation in which the election, upon the ordinance
or measure proposed by such initiative petition, or the
ordinance or measure referred to by such referendum
petition, is to be held.” Ohio Rev. Code § 3501.38(B).
Moreover, the signatures must be “affixed in ink” and
accompanied by information that can be used to
identify the signer. Id.
The circulator of an initiative petition must “sign a
statement made under penalty of election falsification
that the circulator witnessed the affixing of every
signature, that all signers were to the best of the
circulator’s knowledge and belief qualified to sign, and
that every signature is to the best of the circulator’s
knowledge and belief the signature of the person
whose signature it purports to be or of an attorney in
fact acting pursuant to section 3501.382 of the Revised
Code.” Ohio Rev. Code § 3501.38(E)(1).
Pursuant to Ohio Revised Code § 731.28, 10 days
after a petition containing the required number of
signatures is filed, the auditor or clerk transmits the
petition and a certified copy of the proposed issues to
the board of elections to determine the number of valid
signatures. Id. The board of elections then certifies the
number of signatures and returns the petition to the
auditor or clerk within 10 days after receiving it. Id.
The auditor or clerk “then certifies to the board the
89a
validity and sufficiency of the petition and the board
submits the petition to the electors at the next election
occurring 90 days after the auditor’s certification.” Id.
B. The Parties
Thompson Plaintiffs are proponents of initiative
petitions that would enact local legislation. PlaintiffsIntervenors are proponents of two separate
constitutional amendments. Although they have
achieved differing levels of progress in this regard,
Plaintiffs all began their attempts to comply with
Ohio’s initiative procedures before the pandemic.
1. Thompson Plaintiffs
Plaintiffs Chad Thompson, William Schmitt and
Don Keeney are registered voters in the State of Ohio
who regularly circulate initiative petitions they seek
to be placed on local election ballots throughout Ohio.
(Stip. Facts ¶ 1.) Thompson Plaintiffs routinely and
regularly circulate in Ohio proposed initiatives in
cities and villages that seek to amend local ordinances
and laws that criminalize and/or penalize marijuana
possession. For example, a local ballot initiative was
filed in Windham, Ohio in August of 2018, that was
put to that Villages voters on November 6, 2018, and
passed. (Stip. Facts ¶ 2.)
Plaintiffs’ proposed marijuana initiatives they
intend to be filed, but have not yet been, for inclusion
on the November 3, 2020 general election ballot with
the appropriate officials in McArthur, Ohio, Rutland,
Ohio, Zanesville, Ohio, New Lexington, Ohio,
Baltimore, Ohio, Syracuse, Ohio, Adena, Ohio, Cadiz,
Ohio and Chagrin Falls, Ohio. (Stip. Facts ¶ 3.) On or
before February 27, 2020, Plaintiffs filed proposed
marijuana initiatives with local officials in
Jacksonville, Ohio, Trimble, Ohio, Glouster, Ohio,
Maumee, Ohio, and Akron, Ohio, in order to begin
90a
collecting the signatures needed to have those
proposed measures placed on the November 3, 2020
general election ballot. (Stip. Facts ¶ 4, Exhs. 2-6.)
Plaintiffs, in the present case, must gather signatures
from a number of voters equal to percent of the total
gubernatorial vote in the city or village where they
seek to include an initiative and submit these
signatures to the city auditor or village clerk no later
than approximately July 16, 2020 in order to have that
initiative included on the cities’ and villages’
November 3, 2020 election ballots. (Stip. Facts ¶ 13.)
2. Ohioans for Safe and Secure Election
Plaintiffs
Plaintiff-Intervenor Ohioans for Safe and Secure
Elections (“OSFE”) is a political action committee
seeking through Ohio’s initiative process to place a
constitutional amendment on the November 3, 2020
ballot concerning the voting rights of Ohioans and
Ohio election procedure. (See OFSE Compl., ¶¶ 1, 19,
ECF No. 14.) Plaintiffs-Intervenors Darlene L.
English, Laura A. Gold, Hasan Kwame Jeffries, Isabel
C. Robertson, and Ebony-Speaks Hall are residents
and electors of the State of Ohio and are members of
the OFSE, and Plaintiffs-Intervenors Susan Zeigler,
Scott Campbell, Paul Moke, and Andrew Washington
seek to sign and/or circulate petitions to place OFSE’s
proposed amendment on the ballot. (Compl. at ¶¶ 913, ECF No. 14.) Beginning in January 2020, OFSE
collected more than 2,000 signatures from eligible
Ohio signers in support of its proposed amendment,
which was certified by the Ohio Attorney General on
February 20, 2020. (Compl. at ¶¶ 21-25, ECF No. 14.)
On April 23, 2020, the Ohio Ballot Board certified the
OSFE’s proposed amendment. (Id. at ¶ 27.) OFSE has
contracted with a petition circulation firm, Advanced
Microtargeting (“AMT”) to assist in circulating its
91a
proposed amendment and has spent over $500,000 on
its campaign. (Id. at ¶¶ 19-20.)
3. Ohioans for Raising the Wage Plaintiffs
Likewise, Plaintiff-Intervenor Ohioans for Raising
the Wage (“OFRW”) is a ballot issue committee
operating in the State of Ohio, and PlaintiffsIntervenors Anthony A. Caldwell, James E. Hayes,
David G. Latanick, and Pierrette M. Talley are the
members of the committee. (Compl. at ¶¶ 6-7, ECF No.
17-1.) ORFW Intervenors seek to amend the Ohio
constitution through the proposal of an initiative
petition that would raise Ohio’s minimum wage
incrementally from its current rate to $13.00 over the
span of several years beginning on January 1, 2021
and ending on January 1, 2025. (Compl. at ¶ 12, ECF
No. 17-1.) On October 12, 2019, OFRW Intervenors
started circulating an initiative petition containing a
summary and text of the proposed amendment. (Id. at
¶ 13.) OFRW filed the summary petition along with
1,898 signatures with the attorney general on January
17, 2020, and the attorney general certified that the
summary of the proposed amendment was fair and
truthful on January 27, 2020. (Id. at ¶ 15.) Thereafter,
the Ohio Ballot Board certified the proposed
amendment on February 5, 2020. (Id. at ¶ 16.) Two
weeks later, on February 17, 2020, OFRW contracted
with a petition circulation firm, FieldWorks, to acquire
signatures in support of the amendment’s placement
on the November 3, 2020 election. (Id. at ¶ 17.) With
the assistance of FieldWorks and volunteer
supporters, OFRW began to circulate the final version
of its amendment on February 28, 2020. (Id. at ¶ 1820.)
4. Defendants
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Defendants are Ohio Governor DeWine, Director of
the Ohio Department of Health Dr. Acton and Ohio
Secretary of State LaRose. (Stip. Facts ¶¶ 9-11.)
Following the outbreak of COVID-19, Governor
DeWine issued various orders directed towards
protecting Ohio’s citizens from its spread. (Stip. Facts
¶ 9.) Likewise, Ohio Department of Health Director
Dr. Amy Acton issued various health orders to protect
Ohio citizens from the COVID-19 pandemic. (Stip.
Facts ¶ 10.) Ohio Secretary of State Frank LaRose is
vested by Ohio law with the authority to enforce Ohio’s
election laws and to direct that local elections boards
comply with Ohio law, the Constitution of the United
States, and his own directives and advisories. (Stip.
Facts ¶ 11.) At all relevant times Defendants in this
action were and are engaged in state action and were
and are acting under color of Ohio law. (Stip. Facts ¶
12.)
C. COVID-19 and Ohio’s Response
On January 30, 2020, the World Health
Organization (“WHO”) declared the outbreak of
COVID-19 a public health emergency of international
concern. (Stip. Facts ¶ 14.) On January 31, 2020, the
President of the United States suspended entry into
the United States of foreign nationals who had
traveled to China. (Stip. Facts ¶ 15.).
On January 30, 2020, the Director of the National
Center for Immunization and Respiratory Diseases at
the Centers for Disease Control and Prevention
(“CDC”) announced that COVID-19 had spread to the
United States. (Stip. Facts ¶ 16.) On March 3, 2020,
Governor DeWine announced that the Arnold Sports
Festival, a large gathering of athletes and spectators
in downtown Columbus, Ohio, was closed to
spectators. (Stip. Facts ¶ 17.)
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On March 9, 2020, Governor DeWine declared a
state of emergency in Ohio. (Stip. Facts ¶ 18.) On
March 13, 2020, the Columbus Metropolitan Library
closed its branches. (Stip. Facts ¶ 19.) Parades and
events were canceled throughout Central Ohio at this
same time, including the Columbus International Auto
Show in Columbus, Ohio, and St. Patrick’s Day
parades in Columbus and Dublin. (Stip. Facts ¶ 20.)
On March 13, 2020, the President of the United
States declared a national emergency retroactive to
March 1, 2020. (Stip. Facts ¶ 21.) On March 9, 2020,
the Ohio State University suspended classes. (Stip.
Facts ¶ 22.)
On March 12, 2020, Governor DeWine and the Dr.
Acton ordered mandatory emergency closings
throughout Ohio. (Stip. Facts ¶ 23.)1 On March 12,
2020, Governor DeWine ordered all private and public
schools, grades K through 12, closed beginning at the
conclusion of the school day on Monday, March 16,
2020. (Stip. Facts ¶ 24.)
On March 12, 2020, the Ohio Department of Health
issued “Director’s Order: In re: Order to Limit and/or
Prohibit Mass Gatherings in Ohio.” (Stip. Facts ¶ 25.)
On March 17, 2020, the Ohio Department of Health
issued “Director’s Order: In re: Amended Order to
Limit and/or Prohibit Mass Gatherings and the
Closure of Venues in the State of Ohio.” (Stip. Facts ¶
26.)
1Governor DeWine has issued several executive orders in
response to the outbreak of COVID-19. The orders focus mainly
on granting Ohio’s various government agencies the ability to
adopt emergency rules and amendments to Ohio’s administrative
code. Yet, others such as Executive Order 2020-01D (Mar. 9,
2020) require the Ohio Department of Health to formulate
general treatment guidelines to curtail the spread of COVID-19.
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On March 15, 2020, the Ohio Department of Health
issued “Director’s Order: In re: Order Limiting the
Sale of Food and Beverages, Liquor, Beer and Wine, to
Carry-out and Delivery Only.” (Stip. Facts ¶ 27.) On
March 16, 2020, the Ohio Department of Health issued
“Director’s Order: In re: Closure of Polling Locations in
the State of Ohio on Tuesday, March 17, 2020.” (Stip.
Facts ¶ 28.)
On March 19, 2020, the Ohio Department of Health
issued “Director’s Order to Cease Business Operations
at Hair Salons, Day Spas, Nail Salons, Barber Shops,
Tattoo Parlors, Body Piercing Locations, Tanning
Facilities and Massage Therapy Locations.” (Stip.
Facts ¶ 29.)
On March 22, 2020, the Ohio Department of Health
issued “Director’s Order that All Persons Stay at Home
Unless Engaged in Essential Work or Activity.” (Stip.
Facts ¶ 30.). And on April 30, 2020, Defendant
Governor DeWine announced a plan to begin to reopen Ohio, and the Ohio Department of Health issued
the “Director’s Stay Safe Ohio Order.” (Stip. Facts ¶
31.)
D. Plaintiffs’ Claims
Plaintiffs contend that prior to the onset of the
COVID-19 pandemic, they were working diligently to
place their proposed issues on the November 3, 2020
general election ballot, but that the pandemic and
Ohio’s responding Ohio’s Stay-at-Home orders have
made it impossible to circulate petitions and obtain the
signatures required by Ohio law to qualify their issues
for the November general election. Several of the
Plaintiffs wrote to Defendant LaRose in March, asking
him to modify or decline to enforce Ohio’s signature
requirements “in order to make it possible, in light of
the current pandemic” for their proposed amendments
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to be placed on the ballot this fall.” (Correspondence
between Secretary of State’s office and OSFE
Campaign Director, Mar. 26, 2020, ECF No. 15-1.)
Defendant LaRose responded that he “is not free to
modify or to refuse to enforce the explicit
constitutional and statutory requirements of initiative
petition gathering, even in the current crisis.” (Id.)
OFSE and ORFW Plaintiffs sought a state court order
enjoining the signature gathering requirements in the
Ohio Constitution and Revised Code in light of the
pandemic. Ohioans for Raising the Wage v. LaRose,
No. 20-CV-2381, at 7 (Ohio Com. Pl., Apr. 28, 2020).
The Franklin County Common Pleas denied the
Plaintiffs’ request for a preliminary injunction, finding
Ohio’s “constitutional language does not include an
exception for extraordinary circumstances or public
health emergencies” and that the court “does not have
the power to order an exception or remedy that was not
contemplated or intended by the plain language of the
Ohio Constitution.” Id. at 8.
In this action, Plaintiffs seek declarations that in the
extraordinary circumstances presented by the COVID19 pandemic, Ohio’s signature requirements violate
Plaintiffs’ First and Fourteenth Amendment rights as
applied for the November 3, 2020 election.
Plaintiffs originally requested emergency injunctive
relief enjoining enforcement of Ohio’s signature
requirements and placing their initiatives on the
ballot, or in the alternative, modifying those
requirements by permitting electronic signatures,
reducing the numerical signature requirement, and
extending the submission deadline. In light of the
Sixth Circuit’s recent decision in Esshaki v. Whitmer,
No. 20-1336, 2020 WL 2185553 (6th Cir. May 5, 2020)
to be discussed more fully below, however, Plaintiffs
now request that the parties be ordered to confer to
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develop, with assistance from the Court, adjustments
to the signature requirements as applied to Plaintiffs
for the November 2020 general election.
III.
Rule 65 of the Federal Rules of Civil Procedure
provides for injunctive relief when a party believes it
will suffer immediate and irreparable injury, loss, or
damage. Still, an “injunction is an extraordinary
remedy which should be granted only if the movant
carries his or her burden of proving that the
circumstances clearly demand it.” Overstreet v.
Lexington-Fayette Urban Cnty. Gov’t, 305 F.3d 566,
573 (6th Cir. 2002). While Plaintiffs requested either
temporary restraining orders or preliminary
injunctions, the Court finds it appropriate to address
only the requests for preliminary injunctions.
In determining whether to issue a preliminary
injunction, the Court must examine four factors: (1)
whether the movant has shown a strong likelihood of
success on the merits; (2) whether the movant will
suffer irreparable harm if the injunction is not issued;
(3) whether the issuance of the injunction would cause
substantial harm to others; and (4) whether the public
interest would be served by issuing the injunction. Id.
(citing Leary v. Daeschner, 228 F.3d 729, 736 (6th Cir.
2000); McPherson v. Michigan High Sch. Athletic
Ass’n, 119 F.3d 453, 459 (6th Cir.1997) (en banc).
These considerations are factors a court must balance,
not prerequisites that must be met. Id. (citing United
Food & Commercial Workers Union, Local 1099 v.
Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 347
(6th Cir. 1998). “‘When a party seeks a preliminary
injunction on the basis of the potential violation of the
First Amendment, the likelihood of success on the
merits often will be the determinative factor.’”
Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412
97a
(6th Cir. 2014) (quoting Connection Distrib. Co. v.
Reno, 154 F.3d 281, 288 (6th Cir. 1998)).
IV.
This case reflects the tension between the state’s
interest in protecting the integrity and reliability of its
constitutional amendment and local initiative process,
and the Plaintiffs’ First Amendment rights during a
global pandemic that has disrupted the lives and
livelihoods of millions of Ohioans. Plaintiffs contend
that they are substantially likely to succeed on their
claims that Ohio’s enforcement of the signature
requirements for placing local initiatives and
constitutional amendments on the ballot, combined
with the COVID-19 pandemic and Ohio’s Stay-atHome Orders, violates the First Amendment as
applied to them.
A. Likelihood of Success
The First Amendment to the United States
Constitution, applicable to the states through the
Fourteenth Amendment, provides that “Congress
shall make no law . . . abridging the freedom of speech,
or of the press; or the right of the people peaceably to
assemble, and to petition the government for a redress
of grievances.” U.S. Const. amend. I. The First
Amendment, however, does not provide a right to place
initiatives or referendum on the ballot. See John Doe
No. 1 v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J.,
concurring) (“[W]e must be mindful of the character of
initiatives and referenda. These mechanisms of direct
democracy are not compelled by the Federal
Constitution.”); see also Taxpayers United for
Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir.
1993) (“[T]he right to an initiative is not guaranteed
by the federal Constitution”). “It is instead up to the
people of each State, acting in their sovereign capacity
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to decide whether and how to permit legislation by
popular action.” Reed, 561 U.S. at 212 (Sotomayor, J.,
concurring). “States allowing ballot initiatives have
considerable leeway to protect the integrity and
reliability of the initiative process, as they have with
respect to election processes generally.” Buckley v.
American Constitutional Law Foundation, Inc., 525
U.S. 182, 191 (1999).
However, “a state that adopts an initiative
procedure violates the federal Constitution if it unduly
restricts the First Amendment rights of its citizens
who support the initiative.” Taxpayers United, 994
F.2d 291, 295 (6th Cir. 1993) (citing Meyer v. Grant,
486 U.S. 414 (1988)). Accordingly, “although the
Constitution does not require a state to create an
initiative procedure, if it creates such a procedure, the
state cannot place restrictions on its use that violate
the federal Constitution.” Id.
The Ohio Constitution and statutes at issue in the
instant action set forth several formal requirements
for petition signature gathering for local initiatives
and constitutional amendments that are challenged
here, including: the total number of signatures
required, the geographic distribution of signers,
requirements that signatures be made in ink, not be
made by proxy, and must be personally witnessed by
the petition circulators, and deadlines for submission
of petitions to the Ohio Secretary of State and local
authorities.
Plaintiffs claim that enforcement of these
requirements
“severely
burden”
their
First
Amendment ballot access and freedom of association
rights and cannot survive strict scrutiny under
Anderson v. Celebrezze, 460 U.S. 780 (1983), as later
refined in Burdick v. Takushi, 504 U.S. 428 (1992)
(“Anderson-Burdick”), which they contend governs
99a
this analysis. OFSE Plaintiffs have also argued that
certain requirements that are premised on gathering
signatures in person, namely, the requirements that
petitions be signed in ink and witnessed by the
circulator, severely burden their core political speech,
and cannot survive the exacting scrutiny inquiry
under Meyer v. Grant, 486 U.S. 414 (1988).
Defendants contend, however, that the First
Amendment is not even implicated here because
Ohio’s petition restrictions regulate the mechanics of
the initiative process, and do not regulate political
speech or expressive conduct or a candidate’s right to
access the ballot. (Opp. at 9, 14, ECF No. 40.)
Defendants further argues if the federal constitution
is implicated, “no state actor has infringed on
Plaintiffs’ First Amendment rights” and, the
provisions at issue survive the applicable review,
which they maintain is closer to rational basis. Under
that analysis, any burden on Plaintiffs’ First
Amendment rights is slight and outweighed by the
Defendants’ substantial regulatory interests. (Id. at 9,
17.)
The Court will address all of these arguments made
by the parties, starting with determining the
appropriate framework to utilize when reviewing the
constitutional and statutory provisions at issue here.
1. Framework
Plaintiffs urge this Court to adopt the reasoning of
the Sixth Circuit’s recent opinion in Esshaki v.
Whitmer, 2020 WL 2185553 (6th Cir. May 5, 2020),
where the court upheld the core of the district court’s
preliminary injunction enjoining Michigan from
enforcing the statutory ballot-access provisions for
political candidates in advance of Michigan’s
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upcoming primary election under the framework
established in Anderson-Burdick.
In Esshaki, the plaintiffs asserted that Michigan’s
March 23, 2020 Stay-At Home Orders issued in
response to the COVID-19 pandemic prevented them
collecting the required signatures by the April 21, 2020
deadline, and that Michigan’s enforcement of the
statutory
requirements
“under
the
present
circumstances, is an unconstitutional infringement on
their (and voters’) rights to association and political
expression.” Id. at 1. Michigan, like Ohio, “insist[ed]
on enforcing the signature-gathering requirements as
if its Stay-at-Hom
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