Amid the current pandemic, it was just a matter of time before courts would begin issuing orders surrounding the complexities the pandemic has created. One of those orders came on May 26, 2020, out of the Sixth Circuit of the United States Court of Appeals in the case Thompsons et al. v. DeWine et al. The Sixth Circuit addressed the question of “whether the COVID-19 pandemic and Ohio’s stay-at-home orders increased the burden that Ohio’s ballot-initiative regulations place on Plaintiff’s First Amendment rights.”
Plaintiffs brought an action in Ohio federal district court challenging Ohio’s decision not to further modify state election laws after they had modified the date of the Ohio primary election, which was to occur at the height of the pandemic. Ohio requires that for an initiative to be placed on the ballot, it must include signatures – in ink – from ten percent of the applicable jurisdiction’s electors that voted in the last gubernatorial election, which are witnessed by the initiative’s circulators. These signatures must be submitted to the Secretary of State 125 days before the election for a constitutional amendment and 110 days for a municipal ordinance.
Plaintiffs’ concern is that Ohio’s stay-at-home restrictions issued during the pandemic interfere with the ballot initiator’s ability to comply with Ohio’s ballot initiative restrictions, which is a violation of their First and Fourteenth Amendment rights. The federal district court ruled in favor of plaintiffs and granted a preliminary injunction finding that certain provisions of the Ohio Constitution and Ohio Code violated the First Amendment. They provided modifications to Ohio’s laws to allow plaintiffs’ less burdensome ways of getting signatures to support their initiatives. In response, Defendants sought an interlocutory appeal to the Sixth Circuit seeking a stay of the injunction pending appeal.
The Sixth Circuit granted defendant’s request to stay the injunction. The Court disagreed with the federal district court’s decision. In evaluating Ohio’s laws, the Sixth Circuit looked at the Esshaki case that came out of Michigan in early May. Esshaki v. Whitmer, 2020 WL 2185553 (6th Cir. May 5, 2020). The Esshaki plaintiffs challenged Michigan’s strict enforcement of its ballot-access provisions in the face of the very strict stay-at-home orders issued by Michigan. That court found that Michigan’s laws violated the plaintiffs’ First Amendment rights. Michigan’s stay-at-home orders prevented the plaintiffs from obtaining signatures during the last month before the deadlines for ballot initiatives, which left plaintiffs in Michigan with only the signatures that they had collected at the time the stay-at-home orders went into effect. In addition, the Michigan stay-at-home orders had no exemptions to allow the collection of signatures. The Michigan court did not find it convincing that law enforcement stated it would not enforce the orders for protected activities, such as protestors exercising their First Amendment rights, as Michigan’s law was still on the books.
On the contrary, Ohio’s stay-at-home orders specifically exempted conduct protected by the First Amendment. The Ohio Department of Health Order stated that the stay-at-home orders would not apply to “gatherings for the purpose of the expression of First Amendment protected speech.” Nor did the restrictions apply to petition or referendum circulars. Moreover, Ohio rescinded their restrictions on May 20th and the deadlines for the signatures have not yet passed, leaving plaintiffs with time to obtain signatures. Thus, the Sixth Circuit concluded that any burdens imposed due to the stay-at-home order on Ohio’s ballot initiative laws did not result in a burden as restrictive as Michigan’s. Further, unlike Michigan’s stay-at-home order, which was in effect when the signatures on the petitions were due, Ohio’s is not: Ohio has lifted its stay-at-home restrictions and the deadline for submitting petitions has not yet passed.
The Sixth Circuit stated that plaintiffs’ claim in essence boils down to frustration over their ability to procure signatures because of the social distancing restrictions. The Sixth Circuit commented that the plaintiffs could certainly advertise to interested voters to obtain signatures or obtain signatures in public while following the guidelines for social distancing. Further, the Sixth Circuit reminded plaintiffs that the action regarding the ballot must be state action, not actions of private citizens. Thus, it is not state action if citizens choose not to leave their homes due to the pandemic even though Ohio rescinded its stay-at-home orders. Thus, plaintiffs could not challenge in court any issues arising from citizen’s personal choices to stay at home. The Sixth Circuit also pointed out that the Ohio federal district court could not amend Ohio Code or its Constitution.
Ultimately, there is likely to be significantly more laws challenged as a result of the pandemic. Stay tuned…
Elle J. Byram is a native Midwesterner, born and raised in the Kansas City area. Elle earned her law degree at the University of California Davis, School of Law. She earned her Bachelors in Psychology at the University of Colorado at Boulder as well as a Masters in clinical psychology at Pacific Graduate School of Psychology in Palo Alto, CA. Elle has worked for small and large firms doing litigation, corporate work and technology.
Desiring to start her own practice, Elle stepped out of the corporate world in 2013 and began her own solo firm focused on family law, estate planning and probate administration. Elle's practice focuses primarily in family law, where Elle litigates divorces, represents victims of domestic violence and assists in every other aspect of family law.
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