Case: 2:20-cv-02129-EAS-CMV Doc #: 1 Filed: 04/27/20 Page: 1 of 23 PAGEID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Chad Thompson, William Schmitt, and Don Keeney,
Plaintiffs,
v.
Richard "Mike" DeWine, in his official capacity as Governor of Ohio,
Amy Acton, in her official capacity as Director of Ohio Department of Health,
and
Frank LaRose, in his official capacity as Ohio Secretary of State,
Defendants.

Case No. _________
TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION REQUESTED

VERIFIED COMPLAINT Nature of the Case
1. This is an action to declare unconstitutional, enjoin and/or modify Ohio's in-person signature collection and witnessing requirements and the deadlines required for the presentation of collected signatures for popular measures such as initiatives and referenda presented to local governments in Ohio for inclusion on Ohio's November 3, 2020 general election ballot in light of the current public health emergency caused by COVID-19 and Defendant DeWine's and Defendant Acton's emergency orders effectively shutting down the State.

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Jurisdiction 2. Jurisdiction in this case is predicated on 28 U.S.C. § 1331, this being a case arising under the Constitution of the United States and 42 U.S.C. § 1983.
Venue 3. Venue is proper in this District and Division under 28 U.S.C. 1391(b) because all the Defendants reside in this District and Division, are residents of Ohio, and a substantial part of the events giving rise to Plaintiffs’ claims occurred in this District and Division.
Parties 4. Plaintiffs, Chad Thompson, William Schmitt and Don Keeney, are registered voters in the State of Ohio who regularly circulate petitions to have initiatives placed on local election ballots throughout Ohio and in adjacent States. See, e.g., Schmitt v. Husted, 933 F.3d 628 (6th Cir. 2019) (describing Thompson's and Schmitt's circulation efforts for initiatives presented in Windham and Garrettsville, Ohio), cert. pending, No. 19-974 (U.S., Feb. 4, 2020); Hyman v. City of Salem, 396 F. Supp.3d 666 (N.D. W.Va. 2019) (describing Thompson's circulation efforts for local initiative). 5. Plaintiffs routinely and regularly circulate in Ohio proposed popular measures in the form of initiatives in cities and villages that seek to amend local ordinances and laws that criminalize and/or penalize marijuana possession. 6. Plaintiffs have succeeded in placing several of these initiatives on local ballots in cities and villages across Ohio and in adjacent States over the past several election cycles. 7. Plaintiffs seek to place these same initiatives on local November 3, 2020 election ballots in cities and villages across Ohio, including but not limited to Adena, Ohio and Cadiz, Ohio.
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8. Plaintiffs on February 27, 2020 filed proposed initiatives in compliance with O.R.C. § 731.32's first filing requirement with the relevant city auditors and village clerks in Jacksonville, Ohio, Timble, Ohio, and previously in Maumee, Ohio, in order to have those initiatives once sufficient signatures were collected included on local November 3, 2020 ballots. 9. Plaintiffs have been prevented from collecting the needed supporting signatures of Ohio voters required by Ohio law in order to place their initiatives on these and other local November 3, 2020 election ballots by the COVID-19 pandemic and Defendant DeWine's and Defendant Acton's emergency orders. 10. Defendant Richard "Mike" DeWine is the Governor of Ohio and is responsible for issuing Ohio's many emergency orders banning gatherings, shuttering businesses and other public places, requiring that people stay and shelter at home, and making it impossible for Plaintiffs to collect the signatures needed to place their initiatives on local November 3, 2020 election ballots in cities and villages across Ohio. 11. Defendant Amy Action is the Director of Ohio's Department of Health and is responsible for issuing Ohio's many emergency orders banning gatherings, shuttering businesses and other public places, requiring that people stay and shelter at home, and making it impossible for Plaintiffs to collect the signatures needed to place their initiatives on local November 3, 2020 election ballots in cities and villages across Ohio. 12. Defendant Frank LaRose is Ohio's Secretary of State and as such 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. See O.R.C. § 3501.05(B), (C) & (M); Rosen v. Brown, 970 F.2d 169, 171 (6th Cir. 1992); Hunter v. Hamilton County Board of Elections, 850 F. Supp.2d 795, 806 (S.D. Ohio 2012) ("The
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Ohio Secretary of State is the state's chief elections officer. …The Secretary of State's electionrelated duties include “[i]ssu[ing] instructions by directives and advisories ... to members of the boards as to the proper methods of conducting elections;” “[p]repar[ing] rules and instructions for the conduct of elections;” and “[c]ompel[ling] the observance by election officers in the several counties of the requirements of the election laws.'”) (citations omitted). 13. 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.
Ohio Circulation and Signature Collection Requirements 14. Ohio, like many States, recognizes the right of its citizens to use popular democratic measures to make law at both the local and state-wide levels. 15. Initiatives and referenda are recognized forms of popular democracy in Ohio both under Ohio's Constitution and its Revised Code, and are recognized both for state-wide and local elections. 16. Ohio adopted popular democracy, including the initiative, as part of its Constitution in 1912. See Ohio Const., art. II, § 1.a; The Ohio Legislature: 133rd General Assembly: Ohio Constitution: The 1851 Constitution with Amendments to 2017 (stating this provision took effect in September 1912);1 see generally DAVID SCHMIDT, CITIZEN LAWMAKERS: THE BALLOT INITIATIVE REVOLUTION 16 (Table 1-1) (1989). 17. Contemporaneous with its adoption of popular democracy in 1912, Ohio adopted its present method of petitioning to include popular measures on ballots, that is, collecting signatures in-person from a number of voters to support placing the proposed initiative on the
1 https://www.legislature.ohio.gov/laws/ohio-constitution/section?const=2.01a.
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ballot. See, e.g., Ohio Const., art. II, § 1.a. ("the signatures of ten per centum of the electors shall be required upon a petition to propose an amendment to the constitution"). 18. Notwithstanding enormous technological advances since 1912, Ohio's signature collection process for popular measures has remained virtually unchanged for over one hundred years. 19. Signature collection as a method of supporting candidates for office in Ohio, by way of comparison, was first implemented in 1929 when the definition of "qualified political party" found in § 4785-61 of the General Code (the immediate predecessor to O.R.C. § 3517.01) was altered to add language stating that "those political associations that presented nominating petitions supported by signatures from voters equal in number to 15% of the total vote for Governor in the preceding election," 1932 OAG 4587 at 10003 (Sep. 1, 1932) (quoting § 478561, General Code)), would be qualified political parties. 20. In contrast, Ohio like most States has adopted statutes like the Uniform Electronic Transactions Act to modernize practically all other aspects of its economy and polity; § 1306.06 of the Ohio Revised Code, for example, provides that:
(A) A record or signature may not be denied legal effect or enforceability solely because it is in electronic form. (B) A contract may not be denied legal effect or enforceability solely because an electronic record was used in its formation. (C) If a law requires a record to be in writing, an electronic record satisfies the law. (D) If a law requires a signature, an electronic signature satisfies the law. O.R.C. § 1306.06. 21. For local governments, Ohio's Constitution guarantees the right to popular democracy in Article II, § 1.f., also adopted in 1912, which states:
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The initiative and referendum powers are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action; such powers shall be exercised in the manner now or hereafter provided by law. Ohio Const., art. II, § 1.f.2 22. Section 731.28 of the Ohio Revised Code implements Article II of the Ohio Constitution by providing 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." 23. In order to place an initiative on a local election ballot, a citizen of Ohio must comply with the requirements of Chapter 731 of the Ohio Revised Code. 24. Local initiatives in Ohio must be supported by voters' signatures that are gathered and witnessed in-person by circulators who can attest to their validity. 25. The process of petitioning to place a popular measure on a local election ballot begins with the filing of the "proposed ordinance measure" as an initiative or referendum "before circulating such petition … with the city auditor or the village clerk." O.R.C. § 731.32. 26. There is no specific, stated deadline for filing a popular measure with village auditors and village clerks under O.R.C. § 731.32 or any other statute. 27. Following the filing of a proposed ordinance measure with the city auditor or the village clerk, circulators of initiative petitions may begin collecting supporting signatures by circulating among voters "a full and correct copy of the title and text of the proposed ordinance or other measure," O.R.C. § 731.31, and having voters sign their names in support of the proposed ordinance measure's inclusion on the local ballot.
2 https://www.legislature.ohio.gov/laws/ohio-constitution/section?const=2.01f. 6

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28. "Each signer of any such petition 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." Id.
29. "Petitions shall be governed in all other respects by the rules set forth in section
3501.38 of the Revised Code." O.R.C. § 731.31.
30. Ohio Revised Code § 3501.38 provides, in relevant part:
(A) Only electors qualified to vote on the candidacy or issue which is the subject of the petition shall sign a petition. Each signer shall be a registered elector pursuant to section 3503.01 of the Revised Code. The facts of qualification shall be determined as of the date when the petition is filed.
(B) Signatures shall be affixed in ink. Each signer may also print the signer's name, so as to clearly identify the signer's signature.
(C) Each signer shall place on the petition after the signer's name the date of signing and the location of the sig ner's voting residence, including the street and number if in a municipal corporation or the rural route number, post office address, or township if outside a municipal corporation. The voting address given on the petition shall be the address appearing in the registration records at the board of elections.
31. Section 3501.38(E) of the Ohio Revised Code states in relevant part:
the circulator shall indicate the number of signatures contained on it, and shall 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.
32. Section 3501.38 also states:
(J) All declarations of candidacy, nominating petitions, or other petitions under this section shall be accompanied by the following statement in boldface capital letters: WHOEVER COMMITS ELECTION FALSIFICATION IS GUILTY OF A FELONY OF THE FIFTH DEGREE.
(K) All separate petition papers shall be filed at the same time, as one instrument.
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33. Section 731.28 of the Ohio Revised Code provides that an "initiative petition 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." 34. "When a petition is filed with the city auditor or village clerk, signed by the required number of electors proposing an ordinance or other measure, such auditor or clerk shall, after ten days, transmit a certified copy of the text of the proposed ordinance or measure to the board of elections." O.R.C. § 731.28. 35. "The board shall examine all signatures on the petition to determine the number of electors of the municipal corporation who signed the petition. The board shall return the petition to the auditor or clerk within ten days after receiving it, together with a statement attesting to the number of such electors who signed the petition." Id. 36. Upon receipt of the proposed measure and supporting signatures from the local board of elections found to be sufficient by the local board of elections, the city auditor or village clerk then has a ministerial duty to certify to the board of elections by 4 pm on the day that occurs ninety days before the next election "the validity and sufficiency of the petition." State ex rel. Harris v. Rubino, 155 Ohio St.3d 123, 127, 119 N.E.3d 1238, 1243 (2018). 37. Under Ohio law, including Ohio Revised Code §§ 731.28 & .31, a person proposing to place a popular measure on a local election ballot through Ohio's initiative process must gather signatures from a number of voters equal to 10% of the number of votes cast in the last gubernatorial election in that locale and submit those signatures to the city auditor or village clerk no later than at least twenty days before the ninety-day deadline stated in Ohio Revised Code § 731.28. See generally State ex rel. Harris v. Rubino, 155 Ohio St.3d 123, 127, 119
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N.E.3d 1238, 1243 (2018) ("The statute thus sets out the following procedure: (1) petitioners submit the municipal initiative petition to the city auditor, (2) the auditor holds the petition for 10 days, (3) the auditor transmits the petition to the board of elections to determine the number of valid signatures, (4) the board certifies the number of valid signatures and returns the petition to the auditor [within ten days, see O.R.C. § 731.28], (5) the auditor certifies to the board the validity and sufficiency of the petition, and (6) the board submits the petition to the electors at the next election occurring 90 days after the auditor's certification."). 38. For the November 2020 general election ballot, the ninety-day deadline stated in O.R.C. § 731.28 is August 5, 2020. 39. Plaintiffs in the present case must gather signatures from a number of voters equal to 10% 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 15, 2020 in order to have that initiative included on the cities' and villages' November 3, 2020 election ballots. 40. Because the number of voters who vote in gubernatorial elections varies between cities and village in Ohio, no single figure exists for initiative petitioners who seek to comply with O.R.C. § 731.28.
Enter the Pandemic
41. Because of the global COVID-19 pandemic, Defendant DeWine on March 9, 2020 declared a state of emergency in Ohio. See Executive Order 2020-01D.3
3 https://governor.ohio.gov/wps/portal/gov/governor/media/executive-orders/executive-order2020-01-d.
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42. Before Defendant DeWine's declaration of emergency in Ohio, the World Health Organization (WHO) on January 30, 2020 declared a Public Health Emergency of International Concern. 43. On January 31, 2020, the President of the United States suspended entry into the United States of foreign nationals who had traveled to China. See Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.4 44. On January 31, 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. See Press Release: CDC Confirms Person-to-Person Spread of New Coronavirus in the United States.5 45. On March 3, 2020, Defendant DeWine announced that the Arnold Sports Festival, a large gathering of athletes and spectators in downtown Columbus, Ohio, be closed to spectators. See Shawn Lanier, Arnold Sports Festival cancels convention due to coronavirus, will allow athletes to compete, NBCi.com, March 3, 2020.6
4 https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrantsnonimmigrants-persons-pose-risk-transmitting-2019-novel-coronavirus/. 5 https://www.cdc.gov/media/releases/2020/p0130-coronavirus-spread.html. 6 https://www.nbc4i.com/news/local-news/dewine-ginther-set-press-conference-on-arnoldclassic/.
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46. On March 13, 2020, the Columbus Metropolitan Library, one of the largest public libraries in the State, closed its branches. See Press Release: Columbus Metropolitan Library to close in response to COVID-19 coronavirus, March 13, 2020.7 47. Parades and events were canceled throughout Ohio at this same time, including the MidAmerican Conference Men's and Women's Basketball tournament in Cleveland, Ohio, the Columbus International Auto Show in Columbus, Ohio, and St. Patrick's Day parades throughout the State. See generally Mark Ferenchik, Coronavirus: What's closed, canceled in Columbus area, Columbus Dispatch, March 12, 2020.8 48. On March 13, 2020, the President of the United States declared a national emergency retroactive to March 1, 2020. See Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.9 49. Beginning with Ohio State University on or about March 9, 2020, see OHIO STATE SUSPENDS CLASSES UNTIL MARCH 30 DUE TO CORONAVIRUS OUTBREAK. The Lantern, March 9, 2020,10 colleges and universities throughout Ohio began closing their physical facilities and remaining closed until unknown future dates. 50. On March 12, 2020, Defendant DeWine and his Director of Ohio's Department of Health began ordering mandatory emergency closings throughout Ohio, including the following:
7 https://www.columbuslibrary.org/press/columbus-metropolitan-library-close-response-covid19-coronavirus. 8 https://www.dispatch.com/news/20200312/coronavirus-whats-closed-canceled-in-columbusarea. 9 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/. 10 https://www.thelantern.com/2020/03/ohio-state-suspends-classes-until-march-30-due-tocoronavirus-outbreak/.
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A. On March 12, 2020, Defendant DeWine ordered all private and public schools,
grades K through 12, closed; see News Release: Governor DeWine Announces School Closures;11
B. On March 12, 2020, Defendant DeWine's Department of Health banned all
gatherings of 100 or more persons; see Director's Order: In re: Order to Limit and/or Prohibit Mass Gatherings in Ohio;12
C. On March 17, 2020, Defendant DeWine's Department of Health's ban on mass
gatherings was extended to ban gatherings of 50 or more persons and to direct the closures of
most recreational activities in Ohio; see Director's Order: In re: Amended Order to Limit and/or Prohibit Mass Gatherings in Ohio;13
D. On March 15, 2020, Defendant DeWine's Department of Health closed all
restaurants, liquor stores and eating establishments and limited them to carry-out only; See
Director's Order: In re: Order Limiting the Sale of Food and Beverages, Liquor, Beer and Wine, to Carry-out and Delivery Only;14
11 https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/announces-schoolclosures. 12 https://coronavirus.ohio.gov/wps/wcm/connect/gov/b815ab52-a571-4e65-907732468779671a/ODH+Order+to+Limit+and+Prohibit+Mass+Gatherings%2C+3.12.20.pdf?MOD =AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO0 0QO9DDDDM3000-b815ab52-a571-4e65-9077-32468779671a-n6IAHNT. 13 https://coronavirus.ohio.gov/wps/wcm/connect/gov/dd504af3-ae2c-4d2e-b2bd02c1a3beed89/Director%27s+Order+Amended+Mass+Gathering+3.17.20+%281%29.pdf?MOD=AJPERES&CONVERT_TO=url& CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-dd504af3ae2c-4d2e-b2bd-02c1a3beed89-n5829IL. 14 https://coronavirus.ohio.gov/wps/wcm/connect/gov/aa5aa123-c6c9-4e95-8a0dbc77409c7296/Health+Director+Order+Limit+Food%2C+Alcohol+Sales+to+Carry+Out+Delive ry+Only.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_ M1HGGIK0N0JO00QO9DDDDM3000-aa5aa123-c6c9-4e95-8a0d-bc77409c7296-n58291W.
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E. On March 16, 2020, Defendant DeWine's Department of Health closed all polling places in Ohio and thereby canceled Ohio's March 17, 2020 primary election, see Director's Order: In re: Closure of Polling Locations in the State of Ohio on Tuesday, March 17, 2020,15 resulting in a rescheduling of the primary election by mail-in vote only on April 28, 2020; see Ohio Secretary of State Directive 2020-07;16
F. On March 19, 2020, Defendant DeWine's Department of Health closed all barber shops, hair salons, day spas, tattoo parlors, and similar places of business; see Director's Order;17 and
G. On March 22, 2020, Defendant DeWine's Department of Health ordered that everyone in Ohio "stay at home or at their place of residence" unless subject to a specific exception for providing or receiving "essential" services, maintain at least a six foot social distance between themselves and others outside "a single household or living unit," and completely banning gatherings of ten or more people. See Director's Stay at Home Order: Re: Director's Order that All Persons Stay at Home Unless Engaged in Essential Work or Activity.18
15 https://coronavirus.ohio.gov/wps/wcm/connect/gov/7c8309f8-9f28-4793-919805968d01a640/Order+to+Close+Polling+locations+3-162020.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1 HGGIK0N0JO00QO9DDDDM3000-7c8309f8-9f28-4793-9198-05968d01a640-n5829UP. 16 https://www.ohiosos.gov/globalassets/elections/directives/2020/dir2020-07pdf.pdf. 17 https://coronavirus.ohio.gov/wps/wcm/connect/gov/273f5e4f-823b-4ed1-a1197e7c6851f45a/Director%27s+Order+closing+hair+salons+nail+salons+barber+shops+3-192020.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1 HGGIK0N0JO00QO9DDDDM3000-273f5e4f-823b-4ed1-a119-7e7c6851f45a-n582aXd. 18 https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf.
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51. The aforementioned orders remain in place throughout Ohio at the time of the filing of this Verified Complaint and there is no reasonable forecast as to when they will be lifted or altered in the future. 52. Because of the presence of the pandemic in Ohio, the restrictions on businesses, the prohibitions on gatherings, the requirements of distancing, and the mandatory stay at home order, it is literally impossible for people outside the same family unit to solicit others for signatures needed to support the initiative petitions needed to place initiatives and referenda on Ohio's November 2020 election ballot. 53. Petition circulators rely heavily on public events and gatherings, such as sporting events, festivals, parades, conferences, concerts, rallies, and primary elections (including the canceled March 17, 2020 primary election) to collect signatures. 54. Petition circulators rely heavily on the human traffic that occurs inside and outside businesses and places of public accommodation, such as office buildings, college campuses, parks, theaters, shopping malls, libraries and commons to collect signatures. 55. Signature collection by mail is inefficient and unproductive, as pointed out by the United States District Court in Esshaki v. Whitmer, 2020 WL 1910154, *5 (E.D. Mich., Apr. 20, 2020) ("in the context of the COVID-19 pandemic, the efficacy of a mail-based campaign is unproven and questionable at best. Conducting an effective mail campaign in the current environment presents a significant hurdle"). 56. Gathering in-person signatures in Ohio under the current circumstances is not only illegal under Ohio law but risks spreading COVID-19. 57. Several states, because of the pandemic, have either voluntarily or by judicial order either reduced or eliminated the number of signatures required for a candidate to be placed on the
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ballot. See, e.g., Esshaki v. Whitmer, 2020 WL 1910154, at *12 (E.D. Mich., Apr. 20, 2020) (reducing the statutory signature requirement in Michigan by 50 percent); Goldstein v. Sec'y of Commonwealth, 2020 WL 1903931, at *9 (Mass., Apr. 17, 2020) (reducing the signature requirement in Massachusetts by 50 percent); N.Y. Exec. Order No. 202.2 (Mar. 14, 2020) (reducing the statutory signature requirement to 30 percent); H. 681, 2019–2020 Gen. Assemb., Adjourned Sess. (Vt. 2020) (suspending Vermont's statutory signature requirement entirely). 58. In Illinois, a federal Court last week in Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687 (N.D. Ill., Apr. 23, 2020), reduced Illinois's statutory signature requirements for all candidates to 10 percent of previous levels, extended their filing deadlines from June 22, 2020 until August 7, 2020, enjoined Illinois's in-person, witnessed, wet and notarized signature collection process in order to allow the electronic dissemination and collection of supporting signatures, and even directly placed on Illinois's ballots the candidates of the Libertarian and Green Parties in contests where the two parties had previously placed candidates in earlier elections. 59. Oklahoma's Governor has indefinitely suspended the deadlines imposed on signature collection for State initiatives. See Michael Rogers, Oklahoma Secretary of State and Education, Letter dated March 18, 2020.19
Injury-in-Fact Caused Plaintiffs 60. Ohio law, together with the COVID-19 outbreak and Defendants' orders, directly cause injury-in-fact to Plaintiffs and Plaintiffs' First and Fourteenth Amendment rights.
19https://www.boisestatepublicradio.org/sites/idaho/files/202003/sos_prpnt_ntc_and_sc_order_0 3-18-20.pdf.
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61. Plaintiffs' injuries are fairly traceable to the Ohio laws requiring in person signature collection for candidates, the COVID-19 pandemic, and the Defendants' orders described in this action. 62. This Court has the power to properly redress Plaintiffs' injuries by issuing prospective injunctive and declaratory relief either placing their initiatives or prohibiting enforcement of Ohio's signature requirements for popular measures such as initiatives and referenda for local elections during Ohio's November 3, 2020 general election. 63. This Court has authority to and may properly redress Plaintiffs' injuries by ordering appropriate relief by either directing that Plaintiffs' initiatives be placed on local election ballots or by enjoining enforcement of Ohio's in-person signature collection requirement, extending 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 November 3, 2020 election ballots, directing Defendants to develop efficient and realistic procedures and practices for gathering supporting signatures from voters and submitting them to local officials electronically in order to qualify initiatives for local November 3, 2020 election ballots, and reducing the number of needed voters' signatures in support of proposed popular measures to no more than ten percent of the number now prescribed by Ohio law.
FIRST CAUSE OF ACTION FIRST AMENDMENT
64. All previous paragraphs and allegations are incorporated herein. 65. Under present circumstances, Ohio's ballot-access requirements for popular measures proposed for Ohio's November 3, 2020 election violate rights guaranteed to these Plaintiffs by the First and Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983.
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66. A real and actual controversy exists between the parties. 67. Plaintiffs have no adequate remedy at law other than this action for declaratory and equitable relief. 68. Plaintiffs are suffering irreparable harm as a result of the violations complained of herein, and that harm will continue unless declared unlawful and enjoined by this Court.
SECOND CAUSE OF ACTION FOURTEENTH AMENDMENT EQUAL PROTECTION CLAUSE 69. All previous paragraphs and allegations are incorporated herein. 70. Under present circumstances, Ohio's ballot-access requirements for popular measures proposed for Ohio's November 3, 2020 election violate rights guaranteed to these Plaintiffs by the Equal Protection Clause of the Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983. 71. A real and actual controversy exists between the parties. 72. Plaintiffs have no adequate remedy at law other than this action for declaratory and equitable relief. 73. Plaintiffs are suffering irreparable harm as a result of the violations complained of herein, and that harm will continue unless declared unlawful and enjoined by this Court.
THIRD CAUSE OF ACTION FOURTEENTH AMENDMENT DUE PROCESS CLAUSE 74. All previous paragraphs and allegations are incorporated herein. 75. Under present circumstances, Ohio's emergency orders prohibiting in-person meetings have so altered Ohio's ballot-access requirements for popular measures proposed for Ohio's November 3, 2020 election that they have not only made it impossible for those proposing popular measures to comply with existing Ohio law, they have changed Ohio's ballot
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requirements in the midst of the 2020 election and thereby violated rights guaranteed to these Plaintiffs by the Due Process Clause of the Fourteenth Amendments to the United States Constitution, as enforced through 42 U.S.C. § 1983. 76. A real and actual controversy exists between the parties. 77. Plaintiffs have no adequate remedy at law other than this action for declaratory and equitable relief. 78. Plaintiffs are suffering irreparable harm as a result of the violations complained of herein, and that harm will continue unless declared unlawful and enjoined by this Court.
DEMAND FOR RELIEF 79. WHEREFORE, the Plaintiffs respectfully pray that this Court: (1) Assume original jurisdiction over this case; (2) Issue a temporary restraining order, preliminary injunction and/or permanent injunction against Defendants either directing Defendants to immediately place Plaintiffs' marijuana decriminalization initiatives on local November 3, 2020 election ballots without the need for supporting signatures from Ohio voters, or alternatively: (3) Issue a temporary restraining order, preliminary injunction and/or permanent injunction against Defendants (i) prohibiting enforcement of Ohio's in-person supporting signature requirements for candidates for office for Ohio's November 3, 2020 general election; (ii) extending 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 November 3, 2020 election ballots to September 1, 2020; (iii) directing Defendants to develop at their expense timely, efficient and realistic procedures and practices for gathering supporting signatures from voters and submitting them to local officials electronically in order to qualify initiatives for local
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November 3, 2020 election ballots; and (iv) reducing the number of needed voters' signatures in support of proposed popular measures for local November 3, 2020 election ballots in Ohio to no more than ten percent of the number now prescribed by Ohio law; and (4) Issue a declaratory judgment against Defendants stating that, in light of the current public health emergency caused by the COVID-19 pandemic and executive orders requiring that Ohio citizens stay at home and shelter in place, Ohio's supporting in-person signature requirements and submission deadlines for popular measures proposed for local November 3, 2020 elections in Ohio violate the First and Fourteenth Amendments to the United States Constitution; and (5) Order Defendants to pay to Plaintiffs their costs and a reasonable attorney’s fees under 42 U.S.C. § 1988(b); and (6) Retain jurisdiction over this matter and order Defendants to provide to Plaintiffs any additional relief the Court deems just.

Oliver Hall Center for Competitive Democracy P.O. Box 21090 Washington, DC 20009 202-248-9294 oliverhall@competitivedemocracy.org Attorney for Plaintiffs Pro hac vice pending

Respectfully submitted,
/s/ Mark R. Brown
Mark R. Brown 303 E. Broad Street Columbus, Ohio 43215 614-236-6590 Attorney for Plaintiffs

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Case: 2:20-cv-02129-EAS-CMV Doc #: 1 Filed: 04/27/20 Page: 23 of 23 PAGEID #: 23 CERTIFICATE OF SERVICE
I certify that this Verified Complaint was electronically served by e-mail delivery on Defendants through their attorney, Julie Pfeiffer, Associate Assistant Attorney General – Constitutional Offices, Office of Ohio Attorney General Dave Yost, 30 East Broad Street, Columbus, OH 43215, julie.pfeiffer@OhioAttorneyGeneral.gov, this 27th day of April 2020.
/s/ Mark R. Brown_ Mark R. Brown
23

 
 Case: 2:20-cv-02129-EAS-CMV Doc #: 4 Filed: 04/27/20 Page: 1 of 3 PAGEID #: 32

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Chad Thompson, et al.,
Plaintiffs,
v.
Richard "Mike" DeWine, in his official capacity as Governor of Ohio,
Amy Acton, in her official capacity as Director of Ohio Department of Health,
and
Frank LaRose, in his official capacity as Ohio Secretary of State,
Defendants.

Case No. 20-2129
TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION REQUESTED

PLAINTIFFS' MOTION FOR TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTION

Plaintiffs move for a Temporary Restraining Order and/or Preliminary Injunction against Defendants in the above-styled case either directing Defendants to immediately place Plaintiffs' marijuana decriminalization initiatives on local November 3, 2020 election ballots without the need for supporting signatures from Ohio voters, or alternatively:
(1) prohibiting enforcement of Ohio's in-person supporting signature requirements for initiatives for office for Ohio's November 3, 2020 general election;
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(2) extending 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 November 3, 2020 election ballots to September 1, 2020;
(3) directing Defendants to develop at their expense timely, efficient and realistic procedures and practices for gathering supporting signatures from voters electronically and submitting them to local officials electronically in order to qualify initiatives for local November 3, 2020 election ballots; and (iv) reducing the number of needed voters' signatures in support of proposed popular measures for local November 3, 2020 election ballots in Ohio to no more than ten percent of the number now prescribed by Ohio law; and
(4) declaring under 28 U.S.C. § 2201 that, in light of the current public health emergency caused by the COVID-19 pandemic and executive orders requiring that Ohio citizens stay at home and shelter in place, Ohio's supporting in-person, wet, witnessed signature requirements and submission deadlines for popular measures including initiatives and referenda proposed for local November 3, 2020 elections in Ohio violate the First and Fourteenth Amendments to the United States Constitution;
In support of this Motion, Plaintiffs respectfully submit their Verified Complaint and the accompanying Memorandum of Law. Plaintiffs certify that Defendants have been contemporaneously served by e-mail delivery with a copy of the Verified Complaint and a copy of this Motion through their attorney, Julie Pfeiffer, Associate Assistant Attorney General – Constitutional Offices, Office of Ohio Attorney General Dave Yost, 30 East Broad Street, Columbus, OH 43215, julie.pfeiffer@OhioAttorneyGeneral.gov. Plaintiffs and Defendants, through counsel, have agreed that in light of the COVID-19 pandemic and Ohio's stay-at-home
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orders Defendants will accept service of process under Federal Rule of Civil Procedure 4 electronically through their attorneys.

Dated: April 27, 2020.

Oliver B. Hall CENTER FOR COMPETITIVE DEMOCRACY P.O. Box 21090 Washington, D.C. 20009 (202) 248-9294 oliverhall@competitivedemocracy.org Pro hac vice pending

Respectfully submitted,
/s/ Mark R. Brown
Mark R. Brown 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I certify that this Motion, Memorandum of Law and a copy of the Verified Complaint were electronically served by e-mail delivery on Defendants through their attorney, Julie Pfeiffer, Associate Assistant Attorney General – Constitutional Offices, Office of Ohio Attorney General Dave Yost, 30 East Broad Street, Columbus, OH 43215, julie.pfeiffer@OhioAttorneyGeneral.gov, this 27th day of April 2020.

/s/ Mark R. Brown__________________ Mark R. Brown

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Chad Thompson, et al.,

Plaintiffs,

v.

Case No. 20-2129

Richard "Mike" DeWine, in his official capacity as Governor of Ohio,

Amy Acton, in her official capacity as Director of Ohio Department of Health,

and
Frank LaRose, in his official capacity as Ohio Secretary of State,

TEMPORARY RESTRAINING ORDER/PRELIMINARY INJUNCTION REQUESTED

Defendants.

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR TEMPORARY RESTRAINING
ORDER AND/OR PRELIMINARY INJUNCTION

Plaintiffs Thompson, Schmitt and Keeley are residents of Ohio who regularly circulate

initiative petitions for local election ballots. Compt. at ¶ 4; see, e.g., Schmitt v. Husted, 933 F.3d

628 (6th Cir. 2019) (describing Thompson's and Schmitt's circulation efforts for initiatives they

presented in Windham and Garrettsville, Ohio), cert. pending, No. 19-974 (U.S., Feb. 4, 2020).

Plaintiffs' initiatives address the continuing criminalization of marijuana possession. Compt. at ¶

5. Plaintiffs have in past elections, including the November 2018 general election, succeeded in

placing these initiatives on local ballots in cities and villages across Ohio. Compt. at ¶ 6.
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Plaintiffs seek to place these same initiatives on local November 3, 2020 election ballots in cities and villages across Ohio. Compt. at ¶ 7. Plaintiffs, however, are prevented from collecting the needed supporting signatures required by Ohio law in order to place their initiatives on local November 3, 2020 election ballots by Defendants DeWine's and Acton's emergency orders effectively shutting down the State. Compt. at ¶ 8.
Defendants DeWine and Acton are jointly responsible for issuing Ohio's many emergency orders banning gatherings, shuttering businesses and other public places, requiring that people stay and shelter at home, and making it impossible for Plaintiffs to collect the signatures needed to place their initiatives on local November 3, 2020 election ballots in cities and villages across Ohio. Compt. at ¶¶ 9, 10. Defendant LaRose is vested by Ohio law with the enforcement of Ohio's election laws. This authority includes the power to direct local elections boards to comply with Ohio law, the Constitution of the United States, and his own directives and advisories. See O.R.C. § 3501.05(B), (C) & (M); Rosen v. Brown, 970 F.2d 169, 171 (6th Cir. 1992); Hunter v. Hamilton County Board of Elections, 850 F. Supp.2d 795, 806 (S.D. Ohio 2012). Defendants are sued in their official capacities for actions taken under color of law and in violation of the United States Constitution. See Ex parte Young, 209 U.S. 123 (1908).
Facts This case is a product of the global pandemic that has strangled not only Ohio's economy and social relations, but also its political processes. On March 16, 2020, Defendants were forced to cancel Ohio's primary elections that were scheduled for the following morning. See Director's
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Order: In re: Closure of Polling Locations in the State of Ohio on Tuesday, March 17, 2020.1 That primary election was converted into an absentee vote (by mail) conducted over the course of several weeks and concluded on April 28, 2020. See Ohio Secretary of State Directive 2020-07.2
Weeks before Ohio's primary was canceled, world, national and local leaders began taking emergency steps to close public gatherings, shutter public accommodations, force people to physically distance themselves from one another, and require that they stay home. The World Health Organization (WHO) on January 30, 2020, for example, declared a Public Health Emergency of International Concern. Complt. at ¶ 36. On January 31, 2020, the President of the United States suspended entry into the United States of foreign nationals who had traveled to China. See Proclamation on Suspension of Entry as Immigrants and Nonimmigrants of Persons who Pose a Risk of Transmitting 2019 Novel Coronavirus.3
On January 31, 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. See Press Release: CDC Confirms Person-to-Person Spread of New Coronavirus in the United States.4
1 https://coronavirus.ohio.gov/wps/wcm/connect/gov/7c8309f8-9f28-4793-919805968d01a640/Order+to+Close+Polling+locations+3-162020.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00Q O9DDDDM3000-7c8309f8-9f28-4793-9198-05968d01a640-n5829UP. 2 https://www.ohiosos.gov/globalassets/elections/directives/2020/dir2020-07pdf.pdf. 3 https://www.whitehouse.gov/presidential-actions/proclamation-suspension-entry-immigrants-nonimmigrantspersons-pose-risk-transmitting-2019-novel-coronavirus/. 4 https://www.cdc.gov/media/releases/2020/p0130-coronavirus-spread.html.
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Defendant DeWine on March 9, 2020 declared a state of emergency in Ohio. See Executive Order 2020-01D.5 One week before that, on March 3, 2020, Defendant DeWine announced that the Arnold Sports Festival, a large gathering of athletes and spectators in downtown Columbus, be closed to spectators. See Shawn Lanier, Arnold Sports Festival cancels convention due to coronavirus, will allow athletes to compete, NBCI.COM, March 3, 2020.6 On March 13, 2020, the Columbus Metropolitan Library, one of the largest public libraries in the State, closed its branches. See Press Release: Columbus Metropolitan Library to close in response to COVID-19 coronavirus, March 13, 2020.7
Parades and public events were canceled throughout Ohio at this same time, including the Mid-American Conference Men's and Women's Basketball tournament in Cleveland, Ohio, the Columbus International Auto Show in Columbus, Ohio, and St. Patrick's Day parades throughout the State. See generally Mark Ferenchik, Coronavirus: What's closed, canceled in Columbus area, COLUMBUS DISPATCH, March 12, 2020.8
On March 13, 2020, the President of the United States declared a national emergency retroactive to March 1, 2020. See Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak.9 Beginning with the Ohio State University on or about March 9, 2020, see OHIO STATE SUSPENDS CLASSES UNTIL MARCH
5 https://governor.ohio.gov/wps/portal/gov/governor/media/executive-orders/executive-order-2020-01-d. 6 https://www.nbc4i.com/news/local-news/dewine-ginther-set-press-conference-on-arnold-classic/. 7 https://www.columbuslibrary.org/press/columbus-metropolitan-library-close-response-covid-19-coronavirus. 8 https://www.dispatch.com/news/20200312/coronavirus-whats-closed-canceled-in-columbus-area. 9 https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergency-concerning-novelcoronavirus-disease-covid-19-outbreak/.
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30 DUE TO CORONAVIRUS OUTBREAK, THE LANTERN, March 9, 2020,10 colleges and universities throughout Ohio began closing their physical facilities and remaining closed until unknown future dates.
On March 12, 2020, Defendants DeWine and Acton began ordering mandatory closings throughout Ohio, including all private and public schools (grades K through 12). See News Release: Governor DeWine Announces School Closures.11 These orders also banned, with limited exceptions, all gatherings of 100 or more persons. See Director's Order: In re: Order to Limit and/or Prohibit Mass Gatherings in Ohio.12 On March 17, 2020, Defendants DeWine and Acton extended their ban on mass gatherings to include gatherings of 50 or more persons, and also banned most recreational activities in Ohio. See Director's Order: In re: Amended Order to Limit and/or Prohibit Mass Gatherings in Ohio.13
On March 15, 2020, Defendants DeWine and Acton closed all restaurants, liquor stores and eating establishments and limited them to carry-out service only. See Director's Order: In re: Order Limiting the Sale of Food and Beverages, Liquor, Beer and Wine, to Carry-out and
10 https://www.thelantern.com/2020/03/ohio-state-suspends-classes-until-march-30-due-to-coronavirus-outbreak/. 11 https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/announces-school-closures. 12 https://coronavirus.ohio.gov/wps/wcm/connect/gov/b815ab52-a571-4e65-907732468779671a/ODH+Order+to+Limit+and+Prohibit+Mass+Gatherings%2C+3.12.20.pdf?MOD=AJPERES&CON VERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-b815ab52-a5714e65-9077-32468779671a-n6IAHNT. 13 https://coronavirus.ohio.gov/wps/wcm/connect/gov/dd504af3-ae2c-4d2e-b2bd02c1a3beed89/Director%27s+Order+Amended+Mass+Gathering+3.17.20+%281%29.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOT
WORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-dd504af3-ae2c-4d2e-b2bd-02c1a3beed89-n5829IL.
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Delivery Only.14 On March 19, 2020, Defendants DeWine and Acton closed all barber shops, hair salons, day spas, tattoo parlors, and similar places of business. See Director's Order.15 On March 22, 2020, Defendants DeWine and Acton ordered that everyone in Ohio "stay at home or at their place of residence" unless subject to a specific exception for providing or receiving "essential" services, maintain at least a six foot social distance between themselves and others outside "a single household or living unit," and avoid altogether gatherings of ten or more people. See Director's Stay at Home Order: Re: Director's Order that All Persons Stay at Home Unless Engaged in Essential Work or Activity.16
Defendants' emergency orders are presently in effect throughout Ohio, and there is no indication that they will be repealed or significantly altered in the immediate future. Even should Ohio begin re-opening its economy on May 1, 2020 as some news reports have indicated will occur in some States, it is doubtful that Ohio will rescind its prohibitions on gatherings and close personal contact between unrelated individuals.
Ohio Circulation and Signature Collection Requirements for Local Initiatives and Referenda Ohio, like many States, recognizes the right of its citizens to use popular democratic measures to make law at both the local and state-wide levels. Relevant to local elections and this
14 https://coronavirus.ohio.gov/wps/wcm/connect/gov/aa5aa123-c6c9-4e95-8a0dbc77409c7296/Health+Director+Order+Limit+Food%2C+Alcohol+Sales+to+Carry+Out+Delivery+Only.pdf?MOD =AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM300 0-aa5aa123-c6c9-4e95-8a0d-bc77409c7296-n58291W. 15 https://coronavirus.ohio.gov/wps/wcm/connect/gov/273f5e4f-823b-4ed1-a1197e7c6851f45a/Director%27s+Order+closing+hair+salons+nail+salons+barber+shops+3-192020.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00Q O9DDDDM3000-273f5e4f-823b-4ed1-a119-7e7c6851f45a-n582aXd. 16 https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf.
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case, § 731.28 of the Ohio Revised Code provides 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." These local initiatives, meanwhile, must be supported by voters' signatures that are gathered and witnessed in-person by circulators who can attest to their validity.
The process of petitioning for local measures begins with the filing of the "proposed ordinance measure" as an initiative or referendum "before circulating such petition … with the city auditor or the village clerk." O.R.C. § 731.32. Following this first filing of the proposed ordinance with the city auditor or the village clerk, circulators of initiative petitions may begin collecting supporting signatures by circulating among voters "a full and correct copy of the title and text of the proposed ordinance or other measure," O.R.C. § 731.31, and having voters sign their names in ink in support of the proposed ordinance measure's inclusion on the local ballot.
Under § 731.31, "[e]ach signer of any such petition 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." Id. The signatures collected to support these initiatives "shall be governed in all other respects by the rules set forth in section 3501.38 of the Revised Code." O.R.C. § 731.31. Section 3501.38(B) of the Ohio Revised Code provides that "[s]ignatures shall be affixed in ink," and "[e]ach signer may also print the signer's name, so as to clearly identify the signer's signature." Further, it is the responsibility of "each signer" to "place on the petition after the signer's name the date of signing and the location of the signer's voting residence, including the street and number if in a municipal corporation or the rural route number, post office address, or township if outside a municipal
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corporation." Id. Consequently, Ohio law presently requires the collection of so-called "wet" signatures.
Section 3501.38(E) of the Ohio Revised Code in addition states that the circulator of an initiative petition "shall 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." In addition to wet signature collection, the signature and its collection must accordingly be in-person and actually witnessed by the circulator. Id.
Section 731.28 of the Ohio Revised Code provides that an "initiative petition 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." The number of required signatures therefore varies with the municipality. In small villages the number of required signatures can reach into hundreds. In larger cities, the number can range into thousands. In either case, the collected signatures must all be personally collected and witnessed, a feat that cannot be accomplished under Defendants' emergency orders and the present reality that exists in Ohio.
Once a circulator has personally gathered and witnessed the wet signatures, they are submitted to "the city auditor or village clerk, … [who then] shall, after ten days, transmit a certified copy of the text of the proposed ordinance or measure to the board of elections." O.R.C. § 731.28. Upon receipt, "[t]he board shall examine all signatures on the petition to determine the
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number of electors of the municipal corporation who signed the petition." Id. "[W]ithin ten days," these petition and signatures are then returned to the "auditor or clerk … with a statement attesting to the number of such electors who signed the petition." Id.
After the proposed measure and supporting signatures are reviewed and returned by the local board of elections to the city auditor or village clerk, the latter has a ministerial duty to certify to the board the sufficiency of the initiative by 4 pm on the day that occurs ninety days before the next election. State ex rel. Harris v. Rubino, 155 Ohio St.3d 123, 127, 119 N.E.3d 1238, 1243 (2018). For Ohio's November 3, 2020 election, this date falls on August 5, 2020.
In order to comply with this time line and have an initiative placed on a local November 3, 2020 election ballot, an initiative accordingly must be submitted with sufficient supporting signatures to the city auditor or village clerk no later than at least twenty days before August 5, 2020. See generally Rubino, 155 Ohio St.3d at 127, 119 N.E.3d at 1243 ("The statute thus sets out the following procedure: (1) petitioners submit the municipal initiative petition to the city auditor, (2) the auditor holds the petition for 10 days, (3) the auditor transmits the petition to the board of elections to determine the number of valid signatures, (4) the board certifies the number of valid signatures and returns the petition to the auditor [within ten days, see O.R.C. § 731.28], (5) the auditor certifies to the board the validity and sufficiency of the petition, and (6) the board submits the petition to the electors at the next election occurring 90 days after the auditor's certification."). For the November 3, 2020 general election ballot, this translates into approximately July 15, 2020.
Because of the presence of the COVID-19 pandemic in Ohio, Ohio's restrictions on businesses, its prohibitions on gatherings, its requirement of distancing, and its mandatory stay at
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home order, it is literally impossible for people outside the same family unit to approach others in order to collect the signatures needed to support popular measures proposed for Ohio's November 2020 election ballot. And even if it were legal to move within six feet of another person, that person would likely not permit it. Further, petition circulators (including Plaintiffs) rely heavily on public events and gatherings, such as sporting events, festivals, parades, conferences, concerts, rallies, and primary elections (including the canceled March 17, 2020 primary election) to collect signatures. Many of these events have already been canceled in Ohio, and it seems a foregone conclusion that they and others will not be permitted in the near future.
Because circulators cannot begin collecting signatures supporting a popular measure until after that measure has been drafted and placed on file with the relevant city auditor or village clerk, see O.R.C. § 731.32, signature collection in support of popular measures is confined to the period between that first formal filing and approximately 110 days before the day of the election. For most initiatives, this means circulators have only four or five months to collect signatures. Plaintiffs, for example, filed with Jacksonville and Timble officials their initiatives on February 27, 2020, Complt. at ¶ 8, expecting to use the March 17, 2020 primary election traffic to collect signatures. They also assumed they would have all of March, April, May, and June to collect signatures. Those expectations were defeated by the pandemic, the cancellation of the primary election, and the closing of the State.
Plaintiffs also seek to file additional popular measures decriminalizing marijuana possession throughout Ohio. Plaintiffs, however, are precluded from collecting the needed signatures by the combination of the pandemic, Defendants' emergency orders, and Ohio's in-
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person, witnessed, wet signature requirements. Something in this mix must give in order for democracy to proceed in Ohio, and it does not appear that something will be the pandemic.
Argument “When a district court is asked to issue a preliminary injunction, it … balances four factors …: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction.” Vittitow v. City of Upper Arlington, 43 F.3d 1100, 1108-09 (6th Cir. 1995).17 Balancing these four factors, Plaintiffs are entitled to emergency relief. I. Plaintiffs are Likely to Prevail on the Merits. A. Making it Impossible to Collect Signatures In Order to Qualify Ballot
Initiatives Violates the First and Fourteenth Amendments. States are not required to recognize popular democracy. Once they do, however, it is clear that the processes they employ to place initiatives and referenda on ballots are fully governed by the First and Fourteenth Amendments. See Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) ("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”). Popular democracy is no different from representative democracy in this regard. After all, States need not directly elect the vast majority of their representative officials -- including governors, Department heads, and even presidential electors -
17 Although procedures differ, the substantive standard for issuing a temporary restraining order is essentially the same. See Bryant v. Matvieshen, 904 F. Supp.2d 1034, 1042 (E.D. Cal. 2012).
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- but once they choose to do so those election procedures are governed by the First and Fourteenth Amendments. See, e.g., Anderson v. Celebrezze, 460 U.S. 780 (1983).
Ballot initiatives implicate “core political speech.” Meyer v. Grant, 486 U.S. 414, 22 (1988). “First Amendment protections” are accordingly “at [their] zenith” and “exacting scrutiny” is required. Id. at 425, 420. For citizens in nearly half the states in the Union, ballot initiatives are “basic instruments of democratic government.” City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 196 (2003).
In Meyer, 486 U.S. 414, for example, the Supreme Court invalidated a Colorado law that banned paying circulators who were collecting signatures to support initiatives. In Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182 (1999), it invalidated Colorado laws requiring that initiative-petition circulators be registered voters, requiring that they wear identification badges, and that the proponents of the initiatives report the names and addresses of all their paid circulators. These cases leave no doubt that the processes used to certify initiatives and referenda are subject to full First and Fourteenth Amendment scrutiny. Further, they indicate that First and Fourteenth Amendment ballot access precedents for candidates are equally applicable in the context of placing initiatives on ballots. The Sixth Circuit, for its part, has recognized the holding in these cases and has thus applied First and Fourteenth Amendment restrictions to the processes that States like Ohio use to regulate initiatives. See, e.g., Austin, 994 F.2d at 296-97; Schmitt, 933 F.3d 628.
The extraordinary circumstances from which this case arises make it a relatively easy one to decide in terms of the need for relief. Under Ohio law as it now exists, Plaintiffs have no lawful procedure by which they may qualify their initiatives for Ohio's November 3, 2020 general
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election ballot. Thus, Plaintiffs are entitled to some form of relief. Plaintiffs believe that this relief should include, given their past success in placing their decriminalization initiatives on local ballots, an order directing Defendant-LaRose to place their pending initiatives and those that they propose to file on local ballots without the need for additional supporting signatures.
This relief is justified because Ohio law, as modified by Defendants' orders and the current crisis, cannot withstand constitutional scrutiny under the analytic framework the Supreme Court set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992). Using that analysis, the Sixth Circuit ruled in Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 593 (6th Cir. 2006), that Ohio's signature collection mechanism for political parties placed a severe burden on their First Amendment rights that could not be justified by any compelling concern. The same result is necessarily true here where Ohio's signature collection requirement under current circumstances makes it impossible to qualify initiatives for the ballot.
When states fail to provide candidates and parties with a workable procedure by which they may qualify for the ballot, the Supreme Court and lower federal courts have not hesitated to remedy the defect by placing candidates and parties on the ballot by court order. The same must be true for popular measures, as indicated by the Supreme Court in cases like Meyer and Buckley.
In 1976, for instance, several States provided no procedure for independent candidates to qualify for the ballot. In each of those States, independent presidential candidate Eugene McCarthy sought relief in federal court, and without exception the courts, including the Supreme Court, ordered that he be placed on the ballot. See McCarthy v. Briscoe, 429 U.S. 1317 (1976) (Powell, J. in Chambers) (placing McCarthy on Texas ballot); McCarthy v. Askew, 540 F.2d 1254, 1255 (5th Cir. 1976) (per curiam) (affirming order placing McCarthy on Florida’s ballot);
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McCarthy v. Noel, 420 F. Supp. 799 (D. R.I. 1976) (placing McCarthy on Rhode Island ballot); McCarthy v. Tribbitt, 421 F. Supp. 1193 (D. Del. 1976) (placing McCarthy on Delaware ballot); McCarthy v. Austin, 423 F. Supp. 990 (W.D. Mich. 1976) (placing McCarthy on Michigan ballot). As Justice Powell observed in McCarthy v. Briscoe, 429 U.S. 1317, the Supreme Court had followed the same procedure in 1968 when it ordered that several candidates who successfully challenged the constitutionality of Ohio’s ballot access laws be placed on its ballot. See McCarthy v. Briscoe, 429 U.S. 1317 (citing Williams v. Rhodes, 89 S. Ct. 1 (Stewart, J., in Chambers, 1968)).
To use examples from the Sixth Circuit, consider Michigan's 1980 election. Michigan had failed to remedy the defect identified by the Court in Austin, meaning it had no constitutionally acceptable procedure for placing independent presidential candidates on its ballot. See Hall v. Austin, 495 F. Supp. 782 (E.D. Mich. 1980). The Court accordingly ordered that the independent candidates be placed on Michigan’s ballot without any need for signature collection. See id. at 791-92. The issue arose again in 1984, because the Michigan Legislature still had not enacted a procedure for independent candidates to qualify for the ballot. An independent candidate for the State Board of Education filed suit, the district court again declared Michigan’s ballot access scheme unconstitutional, and the Secretary was ordered to place the candidate on the ballot. See Goldman-Frankie v. Austin, 727 F.2d 603, 607-08 (6th Cir. 1984).
This Court took that same approach in Libertarian Party of Ohio v. Brunner, 462 F. Supp. 2d 1006 (S.D. Ohio 2008), after finding Ohio's ballot requirement for political parties ruled unconstitutional in Blackwell, 462 F.3d 579, had not been corrected. Rather than fashion a new requirement with new dates and numbers of signatures, this Court ordered the Libertarian
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Party onto the ballot: "where a state has unconstitutionally prevented a party or a candidate from accessing the ballot, “a court may properly look to available evidence or to matters subject to judicial notice to determine whether there is reason to assume the requisite community support.” Id. at 1015 (quoting McCarthy v. Briscoe, 429 U.S. at 1323). "[T]he Court finds that the Libertarian Party has the requisite community support to be placed on the ballot in the state of Ohio." Id.
In a separate case, Moore v. Brunner, 2008 WL 3887639, *5 (S.D. Ohio 2008), this Court also ordered the Socialist Party onto Ohio's ballot: "Goldman–Frankie established that a showing of support need not be “compelling” but rather, “sufficient.” The Court finds that the Socialist Party USA has the requisite community support to be placed on the ballot in the state of Ohio …." See also Libertarian Party of Ohio v. Husted, 2014 WL 11515569, *5 (S.D. Ohio 2014) ("Brunner remains good law …and the evidence tends to show the LPO, OPG, and CPO have the requisite modicum of community support to warrant placement on the ballot as a matter of right under the First and Fourteenth Amendments").
Applying these principles here, although Ohio law prescribes procedures by which its citizens may place popular measures on local ballots, Ohio has in turn made it impossible for citizens to do so. This is no different than a State's granting to its citizens the right to run as a candidate for President but then making it impossible for them to do so. It is no different than creating a popular election mechanism for Presidential electors but then making it impossible for voters to cast their ballots. In all these situations, the First and Fourteenth Amendments are violated. In all these situations, a federal court is warranted in authorizing immediate relief. This
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relief can take the form found in McCarthy, Goldman-Frankie, and Brunner, that is, directly placing the candidates or initiatives on the ballot, or it may take shape in a modified form.
Plaintiffs here have succeeded in the past in placing their marijuana decriminalization initiatives on local ballots. See, e.g., Schmitt, 933 F.3d 628 (describing Thompson's and Schmitt's circulation efforts for initiatives presented in Windham and Garrettsville, Ohio). They have therefore established a sufficient modicum of past support to justify an order directing that their pending initiatives be placed on local ballots without signatures for the November 3, 2020 election.
Should an alternative remedy be preferred, guidance can be found in Courts' and States' reactions to the current COVID-19 pandemic crisis. Several states, for instance, have either voluntarily or by judicial order drastically reduced the number of signatures required for a candidate to be placed on the ballot. See, e.g., Esshaki v. Whitmer, 2020 WL 1910154, at *12 (E.D. Mich., Apr. 20, 2020) (reducing the statutory signature requirement in Michigan by 50 percent); Goldstein v. Sec'y of Commonwealth, 2020 WL 1903931, at *9 (Mass., Apr. 17, 2020) (reducing the signature requirement in Massachusetts by 50 percent); N.Y. Exec. Order No. 202.2 (Mar. 14, 2020) (reducing the statutory signature requirement to 30 percent of previous number); H. 681, 2019–2020 Gen. Assemb., Adjourned Sess. (Vt. 2020) (suspending Vermont's statutory signature requirement entirely).
Along with reductions in the number of signatures, States have also switched to electronic signature collection mechanisms and extended deadlines. In Illinois, for example, it was ordered last week in Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687 (N.D. Ill., Apr. 23, 2020), that Illinois do all three: reduce its signature requirements for all candidates to 10 percent
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of previous levels; extend the filing deadline from June 22, 2020 until August 7, 2020; and
forego in-person, witnessed, wet and notarized signature collection processes in favor of the
electronic dissemination and collection of supporting signatures. The Court also directly placed
on Illinois's ballots the candidates of the Libertarian and Green Parties in contests where the two
parties had previously established a modicum of support.
Chief Judge Pallmeyer in Pritzker, 2020 WL 1951687, at *4, explained:
Reducing the required number of signatures to 10 percent accommodates the fact that Plaintiffs have not been able to rely on their usual signature-gathering methods for the 2020 general election ballot because the window for collecting signatures in Illinois was slated to begin on March 24, 2020, after the stay-at-home order took effect.
Additionally, permitting candidates to submit physical or electronic copies of petitions accommodates the various practical barriers to collecting signatures at this time—due to the closure of most public places, Illinoisans may have limited access to the Internet or a printer, or may even be wary of opening mailed petitions.
(Citation omitted). She also described the electronic signature collection mechanisms developed
in several states:
Other states have similarly permitted signature collection and petition submission in both electronic and physical formats. See, e.g., Fla. Emergency R. 1SER20-2 (Apr. 2, 2020); N.J. Exec. Order Nos. 105, 120 (Mar. 19, 2020, Apr. 8, 2020); Utah Exec. Order No. 2020-8 (Mar. 26, 2020). The court recognizes that the state will be burdened by extending the signature-gathering deadline, but finds this hardship outweighed by the significant difficulties that would be experienced by campaigns trying to implement a new signaturegathering process while complying with even the modified statutory requirements in such a short amount of time. In particular, the court notes that even after some restrictions are lifted, until a vaccine is available, voters are likely to continue practicing social distancing and avoiding any physical hand contact with other persons or objects.
Id.
Chief Judge Pallmeyer's rationale applies equally here. Plaintiffs request that at bare
minimum, should the Court choose not to directly order their initiatives on local ballots, Ohio's
required number of signatures be reduced to 10% of the prior level. Ohio's in-person, witnessed,
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and wet signature requirements, meanwhile, should be enjoined. Ohio, like Illinois, should be ordered to accept electronically collected signatures without wet signatures and that have not been personally witnessed by circulators. Ohio's deadline, like that in Illinois, should be extended for approximately six weeks in order to allow initiative sponsors the time needed to adjust their tried and true signature collection practices to the pandemic's conditions. The key, of course, is to insure that people remain safe while allowing Ohio's democratic processes to continue. B. Imposing New Restrictions in the Middle of an Election Contradicts Basic Principles
of Fair Notice in Violation of Due Process. The First Amendment expresses a strong aversion to retroactive legislation: A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. ... Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; …When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech. Federal Communications Commission v. Fox Television Stations, 567 U.S. 239, 253-54 (2012) (emphasis added). Applying this principle, this Court in Libertarian Party of Ohio v. Husted, 2014 WL 11515569 (S.D. Ohio 201), ruled that Ohio's changes to its election laws in the midst of the 2013-14 election cycle violated the Due Process Clause. There, Ohio had in November 2013 passed a law that altered the process for minor parties to access the general election ballot in 2014. The Court concluded that this belated change in procedure interfered with "Plaintiffs' legitimate expectation that, having complied with the process that was (and remains) in place, they would have the opportunity to reap the political benefits of participating in the primary." Id. at *7. "The Ohio Legislature moved the proverbial goalpost in the midst of the game. Stripping
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Plaintiffs of the opportunity to participate in the 2014 primary in these circumstances would be patently unfair." Id.
Likewise here. The pandemic and Ohio's emergency shutdown have "moved the proverbial goalpost in the midst of the game." It is patently unfair to now expect Plaintiffs to somehow attempt to comply with both Ohio's in-person signature requirement by mid-July and abide by Ohio's new distancing and shelter rules. Indeed, it is impossible. II. Plaintiffs Are Experiencing Irreparable Harm.
Plaintiffs are threatened with continuing irreparable injury. Any impediment placed on First Amendment rights, even for brief periods, causes irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."). Although Ohio is not required under the federal Constitution to utilize initiatives and referenda, once it does the First Amendment applies to those processes. See Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) ("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”). III. Defendants Will Suffer No Injury.
Defendants will suffer no identifiable injury should the Court either order Plaintiffs' initiatives onto local ballots or modify Ohio's in-person signature collection requirements for the November 3, 2020 election. And even if they did, as pointed out by the Court in Pritzker, 2020 WL 1951687, at *4, "this hardship [is] outweighed by the significant difficulties that would be
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experienced by campaigns trying to implement a new signature-gathering process while complying with even the modified statutory requirements in such a short amount of time." IV. The Public Will Benefit.
Preliminary relief will benefit the public because it will help people's confidence in Ohio's democratic systems. The last thing Ohioans need in these extraordinary times is the collapse of their established political system. Just as the casting of votes remains critical to Ohio's future, so does the ability to cast a vote for change. Forcing a forfeiture of that valuable right would only compound the crisis. V. No Monetary Security is Required.
The Sixth Circuit has observed that security is not mandatory under Rule 65(c) and can be dispensed with in the discretion of the court. See Moltan Co. v. Eagle-Picher Industries, Inc., 55 F.3d 1171, 1176 (6th Cir. 1995). Security is regularly dispensed with in election cases. See, e.g., Libertarian Party of Ohio v. Husted, 2014 WL 11515569, *11 (S.D. Ohio 2014). No security is needed in this case as it threatens no financial harm to Defendants or Ohio.
CONCLUSION For the foregoing reasons, Plaintiffs respectfully move the Court to GRANT the preliminary relief requested.
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Oliver B. Hall CENTER FOR COMPETITIVE DEMOCRACY P.O. Box 21090 Washington, D.C. 20009 (202) 248-9294 oliverhall@competitivedemocracy.org Pro hac vice pending

Respectfully submitted,
/s/ Mark R. Brown
Mark R. Brown 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I certify that this Motion and a copy of the Verified Complaint were electronically served by e-mail delivery on Defendants through their attorney, Julie Pfeiffer, Associate Assistant Attorney General – Constitutional Offices, Office of Ohio Attorney General Dave Yost, 30 East Broad Street, Columbus, OH 43215, julie.pfeiffer@OhioAttorneyGeneral.gov, this 27th day of April 2020.
/s/ Mark R. Brown__________________ Mark R. Brown

21

 
 Case: 2:20-cv-02129-EAS-CMV Doc #: 40 Filed: 05/12/20 Page: 1 of 39 PAGEID #: 517

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO, EASTERN DIVISION

CHAD THOMPSON, et al,
Plaintiffs, v.
GOVERNOR OF OHIO MIKE DEWINE, et al, Defendants.

: : : : Case No. 2:20-cv-2129 : : JUDGE SARGUS : : MAG. JUDGE VASCURA : :

DEFENDANTS’ MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR TEMPORARY RESTRAINING ORDER / PRELIMINARY INJUNCTION
Respectfully submitted,
DAVE YOST Ohio Attorney General
/s/ Julie M. Pfeiffer JULIE M. PFEIFFER (0069762)*
*Counsel of Record MICHAEL WALTON (0092201) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872 | Fax: 614-728-7592 Julie.pfeiffer@ohioattorneygeneral.gov Michael.Walton@ohioattorneygeneral.gov
Counsel for Defendants

Case: 2:20-cv-02129-EAS-CMV Doc #: 40 Filed: 05/12/20 Page: 2 of 39 PAGEID #: 518
TABLE OF CONTENTS Table of Authorities ....................................................................................................................... iii
Memorandum in Opposition to Temporary Restraining Order / Preliminary Injunction ........................................................................................................................................ 1
I. Introduction......................................................................................................................... 1
II. Background ......................................................................................................................... 2
III. Law and Argument ............................................................................................................. 8
A. Plaintiffs and Intervenors Are Not Likely to Succeed on the Merits of Their Claims. ...................................................................................................... 9
1. No State Actor Has Infringed on Plaintiffs’ First Amendment Rights. .................................................................................... 9
2. The First Amendment is not applicable as the regulations do not affect political speech or the Plaintiffs’ associational rights. ........................................................................................................ 13
3. Plaintiffs rel-y on inapplicable caselaw. ................................................... 15
4. Plaintiffs’ claims are not likely to succeed because any burden is outweighed by the substantial regulatory interests governing Ohio’s initiative process. ......................................................... 17
a. Any burden on Plaintiffs is slight. ...................................................... 18 b. The State’s regulatory interests are substantial and
outweigh the minimal burden to Plaintiffs and Intervenors. ......................................................................................... 21 B. Plaintiffs Cannot Establish That They Will Suffer Irreparable Harm Without the Injunction. ............................................................................... 24
1. Plaintiffs fail to show that the alleged irreparable injury is actual and imminent. ................................................................................. 24
C. The Balance of Harms Weighs Heavily Against Plaintiffs Because Their Requested Relief is Inappropriate as a Matter of Law and Because it Would Harm the Public Interest. ......................................................... 27
IV. Conclusion ........................................................................................................................ 31
Certificate of Service .................................................................................................................... 32
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TABLE OF AUTHORITIES

Cases

Page(s)

Abney v. Amgen, Inc., 443 F.3d 540 (6th Cir. 2006) ...................................................................................................24

ACLU Fund of Mich. v. Livingston Cnty., 796 F.3d 636 (6th Cir. 2015) .....................................................................................................8

Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092 (10th Cir.1997) ................................................................................................16

American Party of Texas v. White, 415 U.S. 767 (1974).................................................................................................................23

Anderson v. Celebrezze, 460 U.S. 780 (1983).................................................................................................................17

Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012) .................................................................................................22

Bailey v. Callaghan, 715 F.3d 956 (6th Cir. 2013) ...................................................................................................12

Benisek v. Lamone, ___U.S.___, 138 S.Ct. 1942, 1944 (2018)...............................................................................29

Biddulph v. Mortham, 89 F.3d 1491(11th Cir. 1996) ..................................................................................................16

Blankenship v. Blackwell, 341 F.Supp.2d 911 (S.D. Ohio 2004) ................................................................................29, 30

Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999)...........................................................................................................21, 22

Burdick v. Takushi, 504 U.S. 428 (1992).....................................................................................................13, 17, 18

State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 65 Ohio St.3d 167, 600 N.E.2d 244, 602 N.E.2d 615 (1992) ..................................................23

City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427 (6th Cir. 2014) (en banc) .....................................................................................8

Comm. to Impose Term Limits on the Ohio Supreme Ct. v. Ohio Ballot Bd., 885 F.3d 443 (6th Cir. 2018) ...................................................................................................21

iii

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Cases

Page(s)

Country Club v. Jefferson Metropolitan, 5 Ohio App.3d 77, 449 N.E.2d 460 (7th Dist. 1981)...............................................................29

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008).................................................................................................................29

D.T. v. Sumner Cty. Sch., 942 F.3d 324 (6th Cir.2019) ....................................................................................................26

Doe v. Reed, 561 U.S. 186 (2010).................................................................................................................13

Esshaki v. Whitmer, 2020 U.S. App. LEXIS 14376 (6th Cir. May 5, 2020) ..................................................2, 27, 28

Esshaki v. Whitmer, 2020 WL 1910154 (E.D. Mich., Apr. 20, 2020), stay on appeal granted in part, denied in part by No. 20-1336 (6th Cir. May 5, 2020) ...................................................16

Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214 (1989).................................................................................................................29

Farnsworth v. Nationstar Mortg., LLC, 569 F. App’x 421 (6th Cir. 2014) ..............................................................................................8

First Natl. Bank v. Bellotti, 435 U.S. 765 (1978).................................................................................................................21

Garbett v. Herbert, 2020 U.S. Dist. LEXIS 75853 (D. Utah Apr. 29, 2020) ..........................................................16

Gary B. v. Whitmer, 2020 U.S. App. LEXIS 13110 (6th Cir. 2020) ........................................................................12

Georgetown v. Brown Cty. Bd. of Elections, 158 Ohio St.3d 4, 2019-Ohio-3915, 139 N.E.3d 852 ..............................................................22

Goldstein v. Sec’y of Commonwealth, 2020 WL 1903931 (Mass., Apr. 17, 2020) ..............................................................................16

Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc) ...................................................................13, 14, 16

Jolivette v. Husted, 694 F.3d 760 (6th Cir. 2012) .....................................................................................................8

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Case: 2:20-cv-02129-EAS-CMV Doc #: 40 Filed: 05/12/20 Page: 5 of 39 PAGEID #: 521
Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 (7th Cir.2018) ..............................................................................................14, 21
Libertarian Party of Illinois v. Pritzker, 2020 U.S. Dist. LEXIS 71563 (N.D. Ill., Apr. 23, 2020) ........................................................16
Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) ...................................................................................................15
Los Angeles v. Lyons, 461 U.S. 95 (1983).............................................................................................................24, 25
State ex rel. Loss v. Lucas Cty. Bd. of Elections, 29 Ohio St.2d 233, 281 N.E.2d 186 (1972) .............................................................................23
Marijuana Policy Project v. United States, 304 F.3d 82 (D.C. Cir.2002) ........................................................................................13, 14, 15
Maryland v. King, 133 S. Ct. 1 (2012) ...................................................................................................................30
Mazurek v. Armstrong, 520 U.S. 968 (1997).............................................................................................................7, 24
McIntyre v. Ohio Elections Comm., 514 U.S. 334 (1995).................................................................................................................14
Meyer v. Grant, 486 U.S. 414 (1988).................................................................................................................21
Mich. State AFL-CIO v. Schuette, 847 F.3d 800 (6th Cir. 2017) ...................................................................................................12
Munro v. Socialist Workers Party, 479 U.S. 189 (1986).................................................................................................................21
Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008) ...................................................................................................30
State ex rel. Ohioans for Secure and Fair Elections et al. v. LaRose et al., Case No. 2020-0327...................................................................................................................7
Ohioans for Secure and Fair Elections v. LaRose, 2020-Ohio-1459 .......................................................................................................................26
Port of Tacoma v. Save Tacoma Water, 4 Wash.App.2d 562, 577, 422 P.3d 917 (2018).......................................................................14
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Cases

Page(s)

Regan v. Taxation With Representation of Wash., 461 U.S. 540, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983) .........................................................15

Rubin v. City of Santa Monica, 308 F.3d 1008 (9th Cir.2002) ..................................................................................................17

Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019) ...................................................................................................15

Skrzypczak v. Kauger, 92 F.3d 1050 (10th Cir.1996) (overruled on other grounds) ...................................................15

Smith v. Highway Employees, 441 U.S. 463, 99 S. Ct. 1826, 60 L. Ed. 2d 360 (1979) (per curiam) .....................................12

State v. Barnett, 93 Ohio St.3d 419, 755 N.E.2d 857 (2001) .............................................................................13

Summit Cnty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547 (6th Cir. 2004) .....................................................................................................8

Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291 (6th Cir.1993) ..............................................................................................18, 22

Thomas v. Nationwide Children’s Hosp., 882 F.3d 608 (6th Cir. 2018) .....................................................................................................9

Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997)...........................................................................................................14, 17

Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307 (6th Cir. 1998) ...................................................................................................12

Winter v. NRDC, Inc., 555 U.S. 7 (2008).................................................................................................................8, 24

State ex rel. Yiamouyiannis v. Taft, 65 Ohio St.3d 205, 602 N.E.2d 644 (1992) .............................................................................23

Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353 (2009)...........................................................................................................11, 12

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Statutes

Page(s)

42 U.S.C. § 1983........................................................................................................................9, 10

Ohio Rev. Code § 731.28.............................................................................................................3, 4

Ohio Rev. Code § 731.31...........................................................................................................3, 22

Ohio Rev. Code § 731.32.................................................................................................................3

Ohio Rev. Code § 3501.011.............................................................................................................5

Ohio Rev. Code § 3501.11(K) .........................................................................................................3

Ohio Rev. Code § 3501.38.............................................................................................................23

Ohio Rev. Code § 3501.38(B) .........................................................................................................5

Ohio Rev. Code § 3501.38(M)(1)(a) ...............................................................................................3

Ohio Rev. Code § 3501.39(A) .........................................................................................................3

Ohio Rev. Code § 3519.01(A) .........................................................................................................4

Ohio Rev. Code § 3519.16.............................................................................................................23

Ohio Rev. Code § 3519.16(F)........................................................................................................23

Ohio Revised Code Chapter 35........................................................................................................5

Ohio Revised Code Chapter 731......................................................................................................3

Constitutional Provisions

Page(s)

Ohio Const., Art. II, Sec. 1a.........................................................................................................4, 5

Ohio Const., Art. II, Sec. 1f .............................................................................................................3

Ohio Const., Art. II, Sec. 1g ................................................................................................5, 22, 23

U.S. Const., First Amendment ............................................................................................... passim

U.S. Const., Fourteenth Amendment ...................................................................................8, 10, 18

vii

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MEMORANDUM IN OPPOSITION TO TEMPORARY RESTRAINING ORDER / PRELIMINARY INJUNCTION
I. INTRODUCTION As we speak, Ohio is reopening its economy. Medical care facilities have resumed non-
essential surgeries, all manufacturing, distribution and construction businesses are open, people have returned to work in general office environments and, starting today, retail establishments like shopping malls, bars, restaurants and coffee shops can open their doors to the public for sit-down service. Despite Ohio’s return to business, Plaintiffs claim that they cannot obtain the required signatures for their initiative petitions, not because the laws are unconstitutionally flawed, but because they fear exposure to COVID-19. They wrongly claim that the Defendants and this Court are constitutionally obligated to clear the path and make it easier for them to gather signatures for their initiative petitions. Their solution? To completely dismantle Ohio’s ballot access scheme just a few short months before the November general election.
Truly, Plaintiffs are bringing an as-applied challenge to Ohio’s COVID-19 orders, when those orders do not actually apply to them. Since the beginning of Governor DeWine’s successful quest to “flatten the curve,” he and the Ohio Department of Health have exempted First Amendment protected activities from their health orders. So, Plaintiffs have been, and continue to be, free to speak whenever, wherever, however, and to whomever they like in support of their positions and to seek signatures for their petitions. Plaintiffs have suffered no First Amendment infringement at the hand of the State.
The Plaintiffs are very wrong in another paramount way. They have no First Amendment right to have their initiatives on the November 3, 2020 ballot. And the Defendants have no First Amendment obligation to make it happen for them. Yes, the pandemic has made Plaintiffs’, and every other petition circulators’, journey to ballot access unquestionably daunting and the
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Defendants are not unsympathetic to them. Indeed, six months ago, most Ohioans would have never imagined the daily hurdles and barriers they now face.
But that does not mean that this Court can, or should, dismantle Ohio’s entire ballot access system so that Plaintiffs, and frankly, all other petition sponsors who come along, can have unfettered access to the November 3, 2020 general election ballot. It would offend the State’s constitutionally protected authority to run its elections. See Esshaki v. Whitmer, 2020 U.S. App. LEXIS 14376, *4 (6th Cir. May 5, 2020). And, Plaintiffs’ requested relief would surely cause immeasurable harm to the public interest because it would upend long held safeguards to ballot integrity, it would likely inject fraud into Ohio’s petition process, and it would clutter the ballot and confuse voters. For these reasons, the only lawful course here is to deny Plaintiffs’ Motion for Preliminary Injunction. II. BACKGROUND
Ohioans have reserved for themselves the right to legislate through initiative and referendum. That right, and the process ultimately leading to ballot access, are set by the Ohio Constitution and by statute.
Plaintiffs Thompson, Schmitt and Keeney are registered voters who filed proposed local initiatives with “city auditors and village clerks in Jacksonville, Ohio, Trimble, Ohio, and previously in Maumee, Ohio, in order to have those initiatives once sufficient signatures were collected included on local November 3, 2020 ballots.” Thompson Compl., Doc.1, PageID # 3, ¶ 8. The Plaintiffs also intend to “place these same initiatives on local November 3, 2020 election ballots in cities and villages across Ohio.” Id. at ¶ 7. Plaintiff-Intervenors Ohioans for Secure and Fair Elections et. al. (“OSFE”) claim that “until the coronavirus pandemic” they “intended to circulate and/or sign the petition for a “Secure and Fair Elections Amendment” to the Ohio Constitution” for placement on the ballot in the November 3, 2020 general election. OSFE Compl.,
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Doc. 14, PageID # 99, ¶ 1. Finally, Plaintiff-Intervenors Ohioans for Raising the Wage et. al (“OFRW”) seek to have their proposed constitutional amendment “Raise the Wage Ohio” on the ballot in the November 3, 2020 general election. OFRW Compl., Doc. 17-1, PageID # 221, ¶ 1. OFRW claims that “[]prior to the COVID-19 pandemic” they “had made considerable headway” in the process and had “collected nearly 74,000 signatures, and has invested over $1.5 million in the signature gathering effort to date.” Id.
Local Initiatives. The Ohio Constitution provides the power of initiative “to the people of each municipality on all questions which such municipality may now or hereafter be authorized by law to control by legislative action” in the manner “provided for by law.” Ohio Const., Art. II, Sec. 1f. Ohio laws governing this local initiative process delegate to the county boards of elections the obligation to ensure that each proposed initiative is within a municipality’s legislative authority. See Ohio Rev. Code §§ 3501.11(K), 3501.38(M)(1)(a), and 3501.39(A). Chapter 731 of the Ohio Revised Code also provides the statutory scheme for proposing “[]ordinances 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” by initiative petition. Ohio Rev. Code § 731.28.
Ohio Rev. Code § 731.31 provides that “any initiative petition shall contain a full and correct copy of the title and test of the proposed ordinance or other measure” and must be signed by “an elector of the municipal corporation in which the election, upon the ordinance or measure proposed by such initiative petition…is to be held.” At any time before circulating an initiative petition, a certified copy of the petition must be filed with the city auditor or village clerk. Ohio Rev. Code § 731.32. Once a petition is filed with the city auditor or village clerk, petition sponsors may begin circulating the petition for signatures by registered voters that reside in the municipality
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and who support the petition. All initiative 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 of the office of governor in the municipal corporation.” Ohio Rev. Code § 731.28; Ohio Const., Art. II, Sec. 1a. If a petition sponsor can obtain the required number of supporting signatures by registered voters, the sponsor must file the petition and the signatures with the city auditor or village clerk. Id. Within ten days, the auditor or clerk must transmit a certified copy of the petition and signatures to the county board of elections.” Id. It falls to the county boards of elections to “examine all signatures on the petition to determine the number of electors of the municipal corporation who signed the petition” and to “submit such proposed ordinance or measure for the approval or rejection of the electors of the municipal corporation at the next general election occurring subsequent to ninety days after the auditor or clerk certifies the sufficiency and validity of the initiative petition to the board of elections.” Id. A board of election has only ten days from receipt of the petition to examine and verify all signatures and to submit the proposed ordinance to the voters, or to reject it. Id.
Constitutional Amendments. Like the power to bring local initiatives, the power and procedure for amending the Ohio Constitution is enshrined in the Ohio Constitution. See Article II, Section 1a (“The first aforestated power reserved by the people is designated the initiative”). Petitions for constitutional amendments initially must proceed through a certification process, which involves certification by the Ohio Attorney General that the summary of the amendment is “fair and truthful,” and a determination by the Ohio Ballot Board that the proposed amendment contains only one proposed law or amendment. Ohio Rev. Code §§ 3519.01(A); 3505.062(A). OSFE and OFRW complied with these initial requirements and are both authorized to gather signatures as provided for by Chapter 35 of the Ohio Revised Code and by the Ohio Constitution.
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OFRW has been authorized to gather signatures since February 5, 2020. Doc. 17-1, PageID # 224, ¶ 16. Likewise, OSFE has been authorized to gather signatures since April 23, 2020. Doc. 14, PageID # 105, ¶ 27.
Signature Requirements. A petition for a constitutional amendment may not appear on the ballot for general election unless it is accompanied by signatures equal to at least ten percent of the total votes cast in the last gubernatorial election and filed with the Secretary of State not later than 125 days before the general election. Ohio Const., Art. II, Secs. 1g, 1a. The signatures must be from at least 44 of Ohio’s 88 counties, and from each of the 44 counties, there must be signatures equal to at least five percent of the total vote cast for governor in the last gubernatorial election. Id. To be valid, each signature must be in ink, Ohio Rev. Code § 3501.38(B); Ohio Const., Art. II, Sec. 1g, and must be the original signature of the elector, signed in the elector’s “own hand.” See Ohio Rev. Code § 3501.011; Ohio Const., Art. II, Sec. 1g. The elector’s signature on the petition must match the signature that is on file with the board of elections. Grandjean Aff., ¶11, Def. Ex. A. (The Affidavit of Amanda Grandjean was previously filed in Ohioans for Raising the Wage et al. v. LaRose, Case No. 20 CV 2381 (Franklin County Court of Common Pleas). Each part-petition must contain a circulator’s statement, signed by the circulator “under penalty of election falsification” to affirm “that the circulator witnessed the affixing of every signature.” Ohio Const., Art. II, Sec. 1g.
All Present and Prior COVID-19 Orders Allow Signature Gathering. From the very beginning of Ohio’s fight to stem the COVID-19 virus, Governor DeWine and the Ohio Department of Health have specifically carved out First Amendment speech from their health orders and directives. Most recently, on April 30, 2020, the Ohio Department of Health issued Ohio’s plan to reopen the economy and outlined a detailed schedule for the graduated re-opening
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of businesses, retail establishments, offices, medical facilities and other institutions by May 12, 2020.1 Medical care facilities have resumed non-essential surgeries, all manufacturing, distribution and construction businesses are open, people have returned to work in general office environments, and retail establishments and facilities can open their doors on May 12 provided social distancing and other health precautions are observed. Id.
But, First Amendment protected activities need not be “reopened” because they were never closed. The April 30, 2020 Stay Safe Ohio Order provides that “First Amendment protected speech, including petition or referendum circulators, and any activity by the Media, which includes newspapers, television, radio and other media services” are not “prohibited activities” under the order. Id. at ¶ 4. First Amendment protected speech was also exempted from Ohio Department of Health’s April 2, 2020 “Amended Stay at Home Order,”2 Ohio Department of Health’s March 22, 2020 “Stay at Home Order,”3 Ohio Department of Health’s March 17, 2020 “Amended Order to Limit and/or Prohibit Mass Gatherings and the Closure of Venues in the State of Ohio,”4 and Ohio Department of Health’s March 12, 2020 order “Order to Limit and/or Prohibit Mass Gatherings in the State of Ohio.”5 So, any directives requiring social distancing and staying-athome or prohibiting gatherings of more than 10 people do not apply, and have never applied, to individuals who are circulating petitions and gathering signatures.
1 See Ohio Department of Health, “Director’s Stay Safe Ohio Order,” April 30, 2020 available at https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf. 2 See https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-At-Home-Order-Amended04-02-20.pdf at ¶ g. 3 See https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf at ¶ g. 4 See https://coronavirus.ohio.gov/wps/wcm/connect/gov/dd504af3-ae2c-4d2e-b2bd02c1a3beed89/Director%27s+Order+Amended+Mass+Gathering+3.17.20+%281%29.pdf?MOD=AJPERES&CONVERT_TO=url& CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-dd504af3ae2c-4d2e-b2bd-02c1a3beed89-n6XVz7y at ¶ 5. 5 See https://coronavirus.ohio.gov/static/publicorders/Director-of-Health-Gatherings-Order.pdf
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Ohio Courts Denied Plaintiff-Intervenors Relief from the Signature Requirements. Before intervening in the instant matter, Ohio courts twice denied OFRW and OSFE the nearlyidentical relief that they seek here. In State ex rel. Ohioans for Secure and Fair Elections et al. v. LaRose et al., Case No. 2020-0327, the Ohio Supreme Court denied OSFE’s request for additional time to collect signatures in support of its petition for a constitutional amendment.6
Two weeks later on April 28, 2020, the Franklin County Common Pleas Court denied OFRW’s and OSFE’s motion for preliminary injunction where they requested that the Ohio laws and constitutional provisions that set out the signature requirements for initiative petitions be completely enjoined as applied to them or, in the alternative, be reduced or modified.7 There, the court denied a preliminary injunction because it lacked “the power to order an exception or remedy that was not contemplated or intended by the plain language of the Ohio Constitution” and because the Plaintiff-Intervenors “failed to meet their burden by demonstrating that they will suffer irreparable harm.” FN 6 at 8, 10.
6 See Ohio Supreme Court’s Order of April 14, 2020 granting writ of mandamus directing Ohio Ballot Board to certify the OSFE amendment as a single amendment and denying their request for additional time to gather signatures, available at: http://supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=222931.pdf. 7 See Decision & Entry, Judge David C. Young, Case No. 20 CV 2381, available at: https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/imageLinkProcessor.pdf?coords=QjGP dB%2B62zCp9nGYpCgZZDYLYHPjEz8Y9o6lK1IGVG5d%2BkvqvYfxRjGdgePcByzNN73c %2BTJ3YsRMEy8EFjiILDwYespwcGazD63Qa9BzRveAffqatkw0MRKFz0JlIrM9dU1Qh9YT GM4ZNBa8w5LuEhFJqC2EPj%2BXobh5v3QZGwE%3D. See also Motion for Preliminary Injunction by OFRW available at https://fcdcfcjs.co.franklin.oh.us/CaseInformationOnline/imageLinkProcessor.pdf?coords=Bl%2 BdvXls%2FEaLTtpSztYlvqeJMk96ytO1BUZljTuAjQO9stfDZMGCXvCyS05bxmFYCKaW28 Qcs07w9Lb%2FasUmyDp%2FvdE7%2BBfojxxFumvkdil7uwRjWRA21HTd7uNRaFlAYP1W %2By%2FC6r374LxbItwRjlPoBYPGOER7OHq8kz5hxOE%3D.
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III. LAW AND ARGUMENT “[A] preliminary injunction is an extraordinary and drastic remedy . . . that should not be
granted unless the movant, by a clear showing, carries the burden of persuasion.” Mazurek v. Armstrong, 520 U.S. 968, 972 (1997). The movant “bears the burden of justifying such relief,” and it is “never awarded as of right.” ACLU Fund of Mich. v. Livingston Cnty., 796 F.3d 636, 642 (6th Cir. 2015). Indeed, “the proof required is much more stringent than the proof required to survive a summary judgment motion.” Farnsworth v. Nationstar Mortg., LLC, 569 F. App’x 421, 425 (6th Cir. 2014) (quotation and alternation omitted). When determining whether to grant a party’s request for such a remedy, district courts must balance four factors: “‘(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction.’” City of Pontiac Retired Emps. Ass’n v. Schimmel, 751 F.3d 427, 430 (6th Cir. 2014) (en banc) (citation omitted).
“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. NRDC, Inc., 555 U.S. 7, 20 (2008). As to the first factor, a plaintiff must establish a “strong” likelihood of success, Jolivette v. Husted, 694 F.3d 760, 765 (6th Cir. 2012) (quotation omitted); a mere “possib[ility]” of success does not suffice, Summit Cnty. Democratic Cent. & Exec. Comm. v. Blackwell, 388 F.3d 547, 551 (6th Cir. 2004). Similarly, the plaintiff must show a likelihood, not just a possibility, of irreparable injury. Winter, 555 U.S. at 22. As discussed more fully below, Plaintiffs fail on all counts.
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A. Plaintiffs and Intervenors Are Not Likely to Succeed on the Merits of Their Claims.
Plaintiffs and Intervenors are not likely to succeed on their as-applied claims that Ohio’s constitutional amendment and local initiative process violates the First and Fourteenth Amendments to the United States Constitution in light of the COVID-19 pandemic. Specifically, Plaintiffs8 cannot show that a state actor violated their rights to engage in political speech because political speech has always been exempted from Ohio’s COVID-19 public health orders. Further, because Ohio’s statutory and constitutional provisions do not regulate political speech or expressive conduct, the First Amendment is not implicated. Finally, Plaintiffs cannot prevail under the Anderson-Burdick standard because any burden on their First Amendment rights is slight and is outweighed by the State’s substantial regulatory interests.
1. No State Actor Has Infringed on Plaintiffs’ First Amendment Rights. All COVID-19 orders that restrict activities or require social distancing practices have carved out First Amendment activities. See supra FN 1-4. So, simply put, the State’s orders are not preventing, and never have prevented, Plaintiffs from seeking signatures for their petitions. They are free to choose who they reach out to, how they approach individuals, and which locations they choose to target. This freedom extends not just to circulators but to their listeners and potential signers too. The individuals who are being approached are free to choose whether they will listen and lend their signatures without fear of violating COVID-19 orders. The gist of Plaintiffs’ complaint is that, even with this freedom, the fear of is COVID-19 will impact these choices and make it difficult to gather signatures. But, this claim lacks the critical link required for them to succeed: a causal link between state action and the alleged constitutional infringement.
8 Defendants’ references to “Plaintiffs” include both the original Plaintiffs and PlaintiffIntervenors unless specified otherwise.
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But, to prevail under their 42 U.S.C. § 1983 claims, the Plaintiffs must show that the Defendants acted under color of state law and that their actions caused the violation of their First Amendment rights. “By its terms, § 1983 requires an act “under color of any statute, ordinance, regulation, custom, or usage, of any State.” Thomas v. Nationwide Children’s Hosp., 882 F.3d 608, 612 (6th Cir. 2018) (affirming summary judgment against plaintiff because defendant, a private hospital, did not act under “color of state law”). As discussed infra, Plaintiffs do not have a First Amendment right to ballot access. At best, the First Amendment protects their right to engage in speech about their petitions, circulate their petitions and to request signatures for their petitions. Since no state action has infringed upon this right, Plaintiffs’ Section 1983 claims fail at their threshold.
The same is true for the Thompson Plaintiffs’ novel claim that “[u]nder present circumstances, Ohio’s emergency orders…have changed Ohio’s ballot requirements in the midst of the 2020 election and thereby violated rights guaranteed to [them] by the Due Process Clause of the Fourteenth Amendment to the United States Constitution, as enforced through 42 U.S.C. § 1983.” Doc. 1, PageID # 17-18 at ¶ 75. The Thompson Plaintiffs cannot show that state action, or Ohio’s COVID-19 orders for that matter, “have changed Ohio’s ballot requirements.” Accordingly, their due process claim also lacks a causal connection between state action and infringement of their substantive due process rights under the Fourteenth Amendment.
Nor are Plaintiffs entitled to an open road for signature gathering. According to Plaintiffs, the COVID-19 pandemic is the culprit that makes it impossible for them to meet the signature
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requirements for their proposed ballot initiatives.9 OFRW states that, “[g]iven the temporary changes in our society – specifically, the severe reduction of the ability to physically encounter other people – there is no means of complying with Ohio’s signature requirements.” OFRW Compl., Doc. 17-1 at ¶ 4. Likewise, OSFE claims that, “[p]rior to the coronavirus pandemic, Intervening-Plaintiffs had worked diligently to place the Proposed Amendment on the November 2020 ballot. However, the pandemic has made it impossible for Intervenors to meet these requirements for the Proposed Amendment.” OSFE Compl., Doc. 14 at ¶ 3. Finally, the Thompson Plaintiffs argue that, “it is literally impossible for people outside the same family unit to solicit others for signatures needed to support the initiative petitions needed to place initiatives and referenda on Ohio’s November 2020 election ballot.” Thompson Compl., Doc. 1, PageID # 14 at ¶ 52. Because the COVID-19 pandemic is proving difficult for them to get the results they desire, Plaintiffs claim that the Defendants are constitutionally obligated to clear the path. They are wrong as a matter of law.
States are not obligated to subsidize the exercise of a fundamental right. Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 359 (2009). In Ysursa, a group of public sector labor unions brought a First Amendment claim against an Idaho law that permitted public employees to authorize payroll deductions for general union dues but not for union political activities. Id. at 355. The labor unions argued that the law’s ban on payroll deductions for political activities acted as a ban on their right to free speech because they faced “substantial difficulties in collecting funds for political speech without using payroll deductions.” Id. at 359. The Supreme Court upheld the law
9 Although the Thompson Plaintiffs claim that “[g]athering in-person signatures in Ohio under the current circumstances is not only illegal under Ohio law but risks spreading COVID-19,” a quick read of the COVID-19 orders as discussed herein bear out that their claims of illegality are simply erroneous. Thompson Compl., Doc. 1, PageID # 14 at ¶ 56.
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under rational basis review as a reasonable regulation of a public employer’s payroll deduction system and not an abridgement of the unions’ First Amendment rights. Id. The Court ruled, “[t]he First Amendment, however, protects the right to be free from government abridgement of speech. While in some contexts the government must accommodate expression, it is not required to assist others in funding the expression of particular ideas, including political ones.” Id. at 358. "[A] legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny." Id. quoting Regan v. Taxation With Representation of Wash., 461 U.S. 540, 549, 103 S. Ct. 1997, 76 L. Ed. 2d 129 (1983); Smith v. Arkansas State Highway Employees, 441 U.S. 463, 465, 99 S. Ct. 1826, 60 L. Ed. 2d 360 (1979) (per curiam) ("First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize [a labor] association and bargain with it").
The Sixth Circuit also has recognized that governments need not subsidize or enhance a party’s exercise of free speech. See Mich. State AFL-CIO v. Schuette, 847 F.3d 800, 806 (6th Cir. 2017); Toledo Area AFL-CIO Council v. Pizza, 154 F.3d 307 (6th Cir. 1998). In Mich. State AFLCIO and Toledo Area AFL-CIO, labor unions challenged laws that barred employers from administering payroll deductions for political donations claiming that the laws infringed on their First Amendment rights to speak through monetary donations. Mich. State AFL-CIO at 801; Toledo Area AFL-CIO Council at 311. In both cases, the Court rejected the unions’ claims that the First Amendment gave them unfettered access to payroll systems because “the unions remain free to collect donations and to use those donations for political purposes.” Mich. State AFL-CIO at 806; Toledo Area AFL-CIO Council at 320 (unions do not have an independent constitutional right to “compel their employer to assist them in exercising their First Amendment rights”). See also Bailey v. Callaghan, 715 F.3d 956 (6th Cir. 2013) (same result). Accordingly, “absent a
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burden on a constitutionally cognizable right, the government may regulate what is at best a speech-facilitating mechanism.” Mich. State AFL-CIO at 806. See also Gary B. v. Whitmer, 2020 U.S. App. LEXIS 13110, *139 (6th Cir. 2020) (J. Murphy dissenting on other grounds) citing Ysursa, 555 U.S. at 364 (“It has, however, been black-letter law for decades that the Free Speech Clause does not require states to "affirmatively assist" speech.”).
Much like the labor unions in Ysursa, Mich. State AFL-CIO and Toledo Area AFL-CIO who suffered no infringement of their right to obtain political donations through means other than payroll deductions, Plaintiffs face no infringement of their First Amendment right to collect signatures. The onerousness of Ohio’s ballot access signature requirements at this moment in time, whatever it may be, does not constitutionally obligate the Defendants or this Court to clear their path to the November 3, 2020 ballot.
2. The First Amendment is not applicable as the regulations do not affect political speech or the Plaintiffs’ associational rights.
The United States Constitution does not guarantee anyone the right “to make law, by initiative, or otherwise.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir. 2006) (en banc). In other words, although “the First Amendment protects public debate about legislation, it confers no right to legislate on a particular subject.” Marijuana Policy Project v. United States, 304 F.3d 82, 85 (D.C. Cir.2002). “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.” Doe v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J., concurring). Thus, any right to place a specific issue on the ballot is limited to what is granted in the Ohio Constitution or Ohio Revised Code.
The First Amendment guarantees two different types of associational freedoms. State v. Barnett, 93 Ohio St.3d 419, 424, 755 N.E.2d 857 (2001). The first includes the choice to enter into
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and maintain certain intimate human relationships. Id., citing Dallas v. Stanglin, 490 U.S. 19, 2323 (1989). The second type is the right to associate for the purpose of engaging expressive activity protected by the First Amendment, including the rights of free speech, assembly, petition for the redress of grievances, and the exercise of religion. Id., citing Stanglin, 490 U.S. at 24. It is this second associational right that Intervenors OSFE and OFRW claim is violated. With regard to elections, the First Amendment right to association ensures that state laws cannot “unconstitutionally limit access to the ballot by party or independent candidates,” Burdick v. Takushi, 504 U.S. 428, 434 (1992) , or “exclude[] a particular group of citizens, or a political party, from participation in the election process.” Timmons, 520 U.S. at 361.
Here, the challenged constitutional and statutory provisions regulate the mechanics of the initiative process, not protected speech or a political candidate’s access to the ballot, and, as a result, the First Amendment does not apply. Laws, unlike those at issue here, that do regulate expressive speech come under closer scrutiny. For that reason, laws that “[require] that petition circulators be registered voters, [require] that petition circulators wear a name badge, and certain reporting requirements applicable to proponents of an initiative” are unconstitutional. Walker, 450 F.3d at 1099 (citing Am. Constitutional Law Found., Inc. v. Meyer, 120 F.3d 1092, 1100-05 (10th Cir.1997), aff’d sub nom. Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182 (1999)). These laws implicate the First Amendment because they “specifically regulated the process of advocacy itself: the laws dictated who could speak (only volunteer circulators and registered voters) or how to go about speaking (with name badges and subsequent reports).” Id. A law that makes it a felony to pay a petition circulator is unconstitutional for the same reason. Id. (citing Meyer v. Grant, 486 U.S. 414, 416 (1988)). A law that altogether bans the distribution of anonymous leaflets is likewise unconstitutional. McIntyre v. Ohio Elections Comm., 514 U.S. 334, (1995).
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On the other hand, laws regulating the initiative process itself, like those challenged here, do not implicate the First Amendment. For example, limiting the subjects available for initiative, requiring a supermajority to pass certain types of initiated laws, restricting the number of initiative ballot slots available, or requiring pre-screening do not implicate protected speech. Marijuana Policy Project, 304 F.3d at 87 (limit on initiative subject); Port of Tacoma v. Save Tacoma Water, 4 Wash.App.2d 562, 577, 422 P.3d 917 (2018) (limit on initiative subject); Walker, 450 F.3d at 1101 (supermajority requirement); Jones v. Markiewicz-Qualkinbush, 892 F.3d 935, 938 (7th Cir.2018) (limit on number of initiative spots); Skrzypczak v. Kauger, 92 F.3d 1050, 1053 (10th Cir.1996) (overruled on other grounds) (removal of initiative during prescreening review of its content for constitutionality); Schmitt v. LaRose, 933 F.3d 628, 634 (6th Cir. 2019) (upholding Ohio law mandating pre-submission review of initiatives and referenda noting that the challenged laws “regulate the process by which initiative legislation is put before the electorate, which has, at most, a second-order effect on protected speech”) (emphasis added). There is a difference between “establishing [] limits on legislative authority” and “limits on legislative advocacy.” Marijuana Policy Project, 304 F.3d at 85. The former does not implicate the First Amendment, the latter does. Id. The provisions challenged here fall within the former. Without any intrusion on protected speech or association, the First Amendment does not apply at all and therefore, Plaintiffs are not likely to prevail on the merits of their constitutional claims.
3. Plaintiffs rely on inapplicable caselaw. The statutory and constitutional framework governing Ohio’s initiative process for amending the Ohio Constitution and local ordinances do not implicate a political party’s or candidate’s ability to qualify for the ballot, which otherwise triggers the First Amendment and is entitled to more protection. Compare Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 588 (6th Cir. 2006) (“However, when a candidate wishes to appear as one party's standard-bearer and
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voters want to exercise their constitutional right to cast a ballot for this candidate, the [Supreme ] Court has viewed state-imposed restrictions on this fundamental process with great skepticism.”) with Schmitt v. LaRose, 933 F.3d 628, 638 (6th Cir. 2019), quoting Timmons v. Twin Cities Area New Party, 520 U.S. 351, 363 (1997) (“[The Supreme Court] has also stated that ‘ballots serve primarily to elect candidates, not as forums for political expression.’ ”). Accordingly, the majority of cases cited by the Plaintiffs and Intervenors are inapplicable as they involve situations where a party or candidate sought to have their name on the ballot, which is not the case here. See generally Plaintiffs’ Memorandum, Doc. #4-1 at PageID # 46-49; Intervenor OFSE’s Memorandum in Support, Doc#15 at PageID # 152; Intervenor OFRW’s Memorandum in Support, Doc. #17-2 at PageID # 254-255.
Likewise, the most recent COVID-19 elections cases relied upon by Plaintiffs and Intervenors are inapt as all involved challenges by individual candidates or political parties to get their names on the ballot. See Garbett v. Herbert, 2020 U.S. Dist. LEXIS 75853 (D. Utah Apr. 29, 2020); Libertarian Party of Illinois v. Pritzker, 2020 U.S. Dist. LEXIS 71563 (N.D. Ill., Apr. 23, 2020); Esshaki v. Whitmer, 2020 WL 1910154 (E.D. Mich., Apr. 20, 2020), stay on appeal granted in part, denied in part by No. 20-1336 (6th Cir. May 5, 2020); Goldstein v. Sec'y of Commonwealth, 2020 WL 1903931, at * (Mass., Apr. 17, 2020). Notably, unlike the orders issued by Defendants in this case, none of the public health orders in Illinois, Massachusetts, Michigan, or Utah exempted First Amendment protected speech.
Further, the Intervenors reliance upon Meyer is misplaced. They argue that the ongoing pandemic necessitates application of a higher level of scrutiny to the State’s reasonable and necessary ballot control measures. But, the law challenged in Meyer “specifically regulated the process of advocacy itself: the laws dictated who could speak (only volunteer circulators and
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registered voters) or how to go about speaking (with name badges and subsequent reports).” Walker, 450 F.3d 1082, 1099 (10th Cir. 2006) (en banc), cert. denied, 549 U.S. 1245 (2007). In Meyer, “the Court established an explicit distinction between a state’s power to regulate the initiative process in general and the power to regulate the exchange of ideas about political changes sought through the process. The Court only addressed the constitutionality of the latter.” Biddulph v. Martham, 89 F.3d 1491, 1498 (11th Cir. 1996). Here, the challenged constitutional and statutory provisions are only process related regulations, not restrictions on the exchange of ideas.
Here, Plaintiffs argue that the constitutional and statutory provisions governing Ohio’s initiative petition mechanism coupled with the ongoing pandemic prevents their initiative proposals from appearing on the ballot. But “[b]allots serve primarily to elect candidates, not as fora for political expression.” Timmons, 520 U.S. at 363. While political parties, their members, and their candidates have the right to “campaign . . . , endorse, and vote” in an election, they do not have “a right to use the ballot itself to send a particularized message.” Id. After all, “[a] ballot is a ballot, not a bumper sticker.” Rubin v. City of Santa Monica, 308 F.3d 1008, 1016 (9th Cir. 2002). In short, Plaintiffs have no First Amendment right to speak or associate by placing initiatives on the State’s or a county’s ballot.
Rather, as explained below, any First Amendment analysis targeted at the statutory and constitutional provisions addressing the initiative or referendum process requires a much less stringent approach.
4. Plaintiffs’ claims are not likely to succeed because any burden is outweighed by the substantial regulatory interests governing Ohio’s initiative process.
Assuming, arguendo, that the First Amendment does apply, which it does not, the challenged provisions are still constitutional under the analysis set forth in Anderson v. Celebrezze, 460 U.S. 780 (1983) and Burdick v. Takushi, 504 U.S. 428 (1992). The Supreme Court has found
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that any election regulation will, invariably, result in some burden to voters, but subjecting each regulation to strict scrutiny “would tie the hands of States seeking to assure that elections are operated equitably and efficiently.” Burdick at 433. Under this “more flexible standard[,]” id. at 434, courts must “weigh the character and magnitude of the burden the State's rule imposes on [Plaintiffs' First Amendment] rights against the interests the State contends justify that burden, and consider the extent to which the State's concerns make the burden necessary.” Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (citations and internal quotation marks omitted).
In short, “when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Burdick at 434, quoting Anderson at 789. As the Sixth Circuit explained in Taxpayers United for Assessment Cuts v. Austin, “it is constitutionally permissible for [a State] to condition the use of its initiative procedure on compliance with content-neutral, nondiscriminatory regulations that are, as here, reasonably related to the purpose of administering an honest and fair initiative procedure.” 994 F.2d 291, 297 (6th Cir.1993).
a. Any burden on Plaintiffs is slight. Any burden to the Plaintiffs is slight given the lack of any state action restricting political speech or association, and because they provide no reason as to why the issue must be placed on the November 2020 ballot as opposed to a future ballot or that they have actually attempted to obtain signatures through alternative processes. Further, both the constitutional framework for proposed constitutional amendments and the statutory framework for proposing local ordinances are content-neutral and nondiscriminatory regulations. See Taxpayers United for Assessment Cuts at 297.
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Importantly, Plaintiffs have the burden to present evidence to show a high likelihood of success, which would include evidence as to the steps they have taken to get these issues on the ballots. Specifically, the Thompson Plaintiffs have not submitted any affidavits, declarations, or other examples of evidence to show either the steps they have taken in attempt to obtain the requisite signatures (less than 10 in one village) or how the challenged provisions are unreasonable. Thus, at best, the Thompson Plaintiffs merely speculate that they would have been unsuccessful. ). See Stipulation by All Parties, Doc. 35, PageID # 468 at ¶¶ 5-9. Unlike the Thompson Plaintiffs, Intervenors OSFE and OFRW have submitted some evidence as to their efforts, however they still fail to carry their burden.
First, as stated in more detail above, neither Plaintiffs nor Intervenors can point to any state action that infringes upon political speech in light of the COVID-19 pandemic. This is first and foremost because neither has a constitutionally protected right to have their respective issue placed on the ballot. Further, unlike every other COVID-19 elections case that Plaintiffs and Intervenors cite, the Defendants’ Orders have always specifically exempted First Amendment Protected Speech. Also, it is impossible for them to show and would be an incredible leap for this Court to find that the only reason people have not signed the petitions is because of the COVID-19 Orders.
Further, using the 2010 census as a guide, with the exception of Akron (approximately 15,352 signatures), the Thompson Plaintiffs’ required signatures for the other municipalities is nominal (Jacksonville – 31; Trimble – 31; Glouster – 131; Maumee – 1,106). See Stipulation by All Parties, Doc. 35, PageID # 468 at ¶¶ 5-9. This, of course, gives the Thompson Plaintiffs the benefit of the doubt by assuming all voting age citizens voted in the most recent gubernatorial election. In reality, these numbers are likely significantly less. Therefore, had Plaintiffs started
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their circulation effort earlier, i.e. prior to the COVID-19 pandemic or by targeting an earlier election, they could have acquired the requisite signatures in some, if not all, of these municipalities. Additionally, none of the Plaintiffs have offered evidence that they have attempted any alternative means to obtain the required signatures in light of the current circumstances. For example, although a mailing campaign might not be cost-effective, nothing prevented Plaintiffs from initiating a telephone campaign to gauge interest and arrange to obtain a voter’s signature. But, again, the burden is not on the Defendants to show how Plaintiffs could have gotten the required signatures. Rather, the burden lies with the Plaintiffs to show how the signature requirements are unreasonable. They have failed to carry that burden.
Finally, the Thompson Plaintiffs have failed to show how they would be severely burdened by having to wait until the next election cycle to include their proposed ordinances. Again, as stated before, Plaintiffs could have avoided this by bringing their issues to the voters in earlier elections. Thus, when one considers all of the circumstances, the burden, in this particular case as it relates to the initiative petition process, is relatively small.
The burden on the two Intervenors is also slight. First, they do not have a right to have their issues placed on the ballot. Second, Ohio is in the process of reopening its doors. On May 4, 2020, all manufacturing, distribution, and construction businesses and operations as well as general office environments were permitted to re-open. See FN 1-2. Further, on May 12, all retail stores were permitted to re-open. Id. The Governor also announced that restaurants will be permitted to service outdoor dining effective May 15 and indoor dining on May 21.10 He also

10 See Chris Anderson, “Gov. DeWine Outside Dining at Ohio Restaurants Can Resume May 15,

Inside

Seating

Can

Continue

May

21,”

available

at

https://www.cleveland19.com/2020/05/07/gov-dewine-outside-dining-ohio-restaurants-can-

resume-may-inside-seating-can-continue-may/.

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announced that hair salons, barbershops, and other beauty services will re-open on May 15.11 As a result, the Intervenors’, as well as the Thompson Plaintiffs’ ability to obtain signatures is improving daily. Third, rather than seek alternative solutions in light of the pandemic, both the Thompson Plaintiffs and the Intervenors have merely thrown up their arms in defeat and, now, ask this Court to intervene on their behalves. Fourth, Intervenor OSFE offers one party-declarant who claims that he will not sign its petition for fear of exposure to COVID-19. See Campbell Decl., Doc. 15-4. This is the sum total evidence that any of the Plaintiffs offer in support of their wide-sweeping allegation that Ohioans won’t sign their petitions because they fear COVID19. See Gallaway Decl., Doc. #17-2, Ex. B-3, at PAGE ID 277; see also Dippold-Webb Decl., Doc #14-2, at PAGE ID 134. Not only does this prove that the Plaintiffs’ claimed harm is not at the hand of the State, but it also ignores the possibility that Ohio voters might simply disagree with their petitions. For all of these reasons, the burden to the Thompson Plaintiffs and Intervenors OSFE and OFRW is slight.
b. The State’s regulatory interests are substantial and outweigh the minimal burden to Plaintiffs.
Ohio and its citizens have important interests in keeping unauthorized initiative proposals off the ballot itself that outweigh the burden to Plaintiffs. First, it simplifies the ballot. See Jones, 892 F.3d at 938 (“[S]tates have a strong interest in simplifying the ballot.”); see also Munro v. Socialist Workers Party, 479 U.S. 189, 194-95 (1986) (noting the Supreme Court has “never required a State to make a particularized showing of the existence of voter confusion [or] ballot overcrowding . . . prior to the imposition of reasonable restrictions on ballot access”). Second, it
11 See Jen Picciano and Chris Anderson, “Gov. DeWine Says Ohio Hair Salons, Barbershops Can Reopen May 15,” available at https://www.cleveland19.com/2020/05/07/ohioans-anticipate-govdewine-announce-when-ohio-restaurants-hair-salons-can-reopen/.
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prevents voter confusion. See Comm. to Impose Term Limits on the Ohio Supreme Ct. v. Ohio Ballot Bd., 885 F.3d 443, 448 (6th Cir. 2018) (finding Ohio’s single-subject requirement helps to avoid voter confusion). Third, it furthers the State’s interest in maintaining voter confidence in the government and electoral process. See First Natl. Bank v. Bellotti, 435 U.S. 765, 788-89 (1978) (recognizing that “equally” of the highest importance is the “[p]reservation of the individual citizen’s confidence in government”). These substantial interests justify the framework governing initiatives as set forth in Ohio’s Constitution and by statute.
The challenged provisions are also supported by the regulatory interest of “making sure that an initiative has sufficient grass roots support to be placed on the ballot.” Meyer, 486 U.S. at 425-26. This interest is “substantial.” Buckley v. American Constitutional Law Foundation, 525 U.S. 182, 191 (1999). In fact, “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.” 525 U.S. at 191. In Buckley, the Supreme Court found that “necessary or proper ballot access controls,” include requiring “submission of valid signatures” of a certain percentage of the electorate in order “[t]o ensure grass roots support.” Id. at 205. The Sixth Circuit has also emphasized that the State “has a strong interest in ensuring that proposals are not submitted for enactment into law unless they have sufficient support.” Taxpayers United, 994 F.2d at 297; see also Angle v. Miller, 673 F.3d 1122, 1133 (9th Cir. 2012) (upholding Nevada’s geographic distribution requirement for petition signatures).
The Supreme Court has further recognized that states have a substantial interest in ensuring that submitted signatures are authentic. See Buckley, 525 U.S. at 205. As confirmed by Ohio’s Constitution, ensuring the validity of the signatures on petitions is an interest of the highest order of both the State and its people. It requires that “[e]ach signer of any initiative,
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supplementary, or referendum petition must be an elector of the state” and provide additional verification of authenticity, including that “signer shall place on such petition after his name the date of signing and his place of residence.” Ohio Const., Art. II, Sec. 1g. This information is required to facilitate “the duty of the boards of elections [ ] to establish the authenticity of the elector[.]” Georgetown v. Brown Cty. Bd. of Elections, 158 Ohio St.3d 4, 2019-Ohio-3915, 139 N.E.3d 852, ¶24. (Emphasis in original). Similar provisions exist in the Ohio Revised Code for local initiative petitions. See Ohio Rev. Code § 731.31 (“Each signer of any such petition must be an elector of the municipal corporation in which the election, upon the ordinance or measure proposed by such initiative petition * * * is to be held.”).
To further aid in verifying the elector’s authenticity, the Constitution requires that “[t]he names of all signers to such petitions shall be written in ink, each signer for himself.” Ohio Const., Art. II, § 1g; see also Ohio Rev. Code § 731.31 (signature requirements for local initiative petitions are governed by the same rules that apply to proposed constitutional amendment initiative petitions). Indeed, the Ohio Supreme Court has held that “boards of election are required to compare petition signatures with voter registration cards to determine if the signatures are genuine.” State ex rel. Yiamouyiannis v. Taft, 65 Ohio St.3d 205, 209, 602 N.E.2d 644 (1992). (Emphasis added.) The Ohio Constitution also requires that each part-petition shall be accompanied by “the statement of the circulator, as may be required by law, that he witnessed the affixing of every signature.” Ohio Const., Art. II, Sec. 1g. This circulator statement must be affirmed under penalty of election falsification. Ohio Rev. Code § 3501.38.
The Ohio Supreme Court has identified numerous important reasons for these requirements. For one, it “is a protection against signatures being added later. As such, it is a substantial, reasonable requirement.” State ex rel. Loss v. Lucas Cty. Bd. of Elections, 29 Ohio
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St.2d 233, 281 N.E.2d 186 (1972). For another, it ensures that each elector signs the petition by themselves and not by proxy. State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 65 Ohio St.3d 167, 174, 600 N.E.2d 244, 602 N.E.2d 615 (1992).
Finally, Ohio Rev. Code § 3519.16 requires electronic copies and indexes of the partpetitions to enable the boards of elections to carry out their statutory duties to review the partpetitions for authenticity. In part, it accomplishes this by providing a cut-off period for the collection of signatures plus a defined, ten-day window of opportunity ensuring that all proponents have a fair and equal grace period in which to make up any shortfalls. R.C. 3519.16(F). This deadline advances the state’s interest in providing sufficient time for the Secretary of State to verify signatures, and for that verification to occur in an orderly and fair fashion. See American Party of Texas v. White, 415 U.S. 767, 787, fn 18 (1974) (“We agree with the District Court that some cut off period is necessary for the Secretary of State to verify the validity of signatures on the petitions, to print the ballots, and, if necessary, to litigate any challenges.”).
In sum, the challenged provisions are supported by numerous, substantial regulatory interests that outweigh any burden resulting from COVID-19 to the Plaintiffs. Accordingly, they are unlikely to succeed on the merits of their claim.
B. Plaintiffs Cannot Establish That They Will Suffer Irreparable Harm Without the Injunction. 1. Plaintiffs fail to show that the alleged irreparable injury is actual and imminent.
Even if Plaintiffs can establish that they have a likelihood of success on the merits of their constitutional claims, which they do not, they cannot show that without the injunction they will suffer actual and imminent irreparable injury. To establish irreparable harm, the Plaintiffs must show that, unless their motion is granted, they will suffer actual and imminent harm rather than
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harm that is speculative or unsubstantiated. Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir. 2006). The Court’s role on a motion for preliminary injunction is to assess not whether a particular outcome or harm is possible or certain, but whether “irreparable injury is likely in the absence of an injunction.” Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008). “Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.” Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S. Ct. 1865, 138 L. Ed. 2d 162 (1997) (per curiam). A preliminary injunction will not be issued simply to prevent the possibility of some remote future injury. Los Angeles v. Lyons, 461 U.S. 95 (1983).
Plaintiffs’ right to gather signatures for their initiatives was never restricted by any State order or action. Nonetheless, medical care facilities have resumed non-essential surgeries, all manufacturing, distribution and construction businesses are open, people have returned to work in general office environments, and retail establishments and facilities have opened their doors. Id. Moving forward, Plaintiffs’ claimed injury resulting from their inaccessibility to individuals at now re-opened locations such “businesses and other establishments of public accommodation such as restaurants, bars, libraries, [and] office buildings” has been mitigated. See OFRW Compl. at ¶ 39; Thompson Compl. at ¶ 54 (“Petition circulators rely heavily on the human traffic that occurs inside and outside businesses and places of public accommodation, such as office buildings, college campuses, parks, theaters, shopping malls, libraries and commons to collect signatures.”); OSFE Compl. at ¶ 55 (same). Any argument to the contrary is pure conjecture. That Plaintiffs’ petition circulators are refraining, or were refraining, from signature gathering because they fear exposure to COVID-19 does not change the analysis. Plaintiffs and their petition circulators are, and have been free to engage in their free speech activities and, moving forward, they will have
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even more opportunities if they choose to do so. See OSFE Compl. at ¶¶ 56-62; OFRW Compl. at ¶¶ 40-45; Thompson Compl. at ¶ 56. Their choice not to do so, and their assumptions that those effort would be fruitless, does not entitle them to an injunction from this Court.
Further, Plaintiffs’ claims that their ballot initiatives would likely have enough support to make it on the November 3, 2020 is purely speculative. As Judge Young ruled when OSFE and OFRW were before that court, “[t]he only harm alleged in this action is speculative and theoretical. Plaintiffs and Intervenors do not yet know if they will have the required number of signatures by the deadline and otherwise meet the constitutional requirements. There is also no way to know if they would have been able to collect the necessary signatures regardless of the stay at home order. At this time, there is a possibility of harm, but nothing more.” See Decision & Entry, FN 6 at 9. As to the Thompson Plaintiffs, their signature burden is extremely low, and they offer no evidence that they have even attempted to obtain the required signatures. See Stipulation by All Parties, Doc. 35, PageID # 468 at ¶¶ 5-9. Indeed, their alleged injury likely came from their mistaken belief that the COVID-19 orders prohibited them from gathering signatures.
As to OSFE and OFRW, they have thrown up their hands and turned to this Court with no evidence of an actual or imminent redressable injury. And, as has already been held, OSFE and OFRW’s monetary investment in support of their petition efforts is not irreparable harm to justify a preliminary injunction. See Judge Young, Decision & Entry, FN 6 at 9 (“However, the monetary investments made in the petition process do not constitute irreparable harm sufficient to justify a preliminary injunction.”) Finally, even if the Plaintiffs do not make it to the November 3, 2020 election, they have not shown why they cannot continue to seek access to ballots after this November. As the Ohio Supreme Court already recognized when it denied OSFE’s request for more time to circulate the exact same petition at issue in this matter, “there is no urgency for the
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proposed amendment to appear on the next general-election a ballot.” Ohioans for Secure and Fair Elections v. LaRose, 2020-Ohio-1459, ¶ 21, citing. State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845, 928 N.E.2d 410, ¶ 30. See D.T. v. Sumner Cty. Sch., 942 F.3d 324, 327 (6th Cir.2019) (“If the plaintiff isn’t facing imminent and irreparable injury, there’s no need to grant relief now as opposed to at the end of the lawsuit.”). The deadline for filing a petition for the November 2020 Presidential General Election is not until July 1, 2020— roughly 45 days from now. Grandjean Aff., ¶ 19. But Petitioners are not beholden to that deadline—they can file their petition in advance of another future general election. And, they do not have a constitutional right to automatic access to the ballot of their choosing. Because the November 3, 2020 election is not Plaintiffs’ only chance at ballot access, and because the deadlines are not imminent, Plaintiffs’ alleged injuries are neither imminent nor irreparable.
C. The Balance of Harms Weighs Heavily Against Plaintiffs Because Their Requested Relief is Inappropriate as a Matter of Law and Because it Would Harm the Public Interest.
The Plaintiffs invite this Court to travel down one of two treacherous paths. Either enjoin completely Ohio’s scheme for ensuring that only proposed initiatives that enjoy a modicum of voter support appear on the November 3, 2020 general election ballots, as evidenced by true, verifiable, quantifiable, and geographically relevant voter signatures; or dismantle it and replace it with Plaintiffs’ preferred deadlines and an entirely new and completely unknown plan for submission of electronic signatures for the upcoming election. See Thompson Compl., Doc. 1, PageID # 18 at ¶ 79; OSFE Compl., Doc. 14, PageID # 121-124; OFRW Compl., Doc. 17-1, PageID # 234. The former will allow unfettered and automatic access to the general election ballot for innumerable petitions. As a result, Ohio’s ballot will be cluttered with proposed initiated statutes, ordinances and constitutional amendments that do not have so much as the minimum level of support otherwise required by law. The latter will throw the signature gathering process into
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disarray and confusion just a few short months before the election. Both are unworkable and inappropriate as a matter of law.
“Simply put, federal courts have no authority to dictate to the States precisely how they should conduct their elections.” Esshaki v. Whitmer, 2020 U.S. App. LEXIS 14376, *4 (6th Cir. May 5, 2020). In Esshaki, political candidates for state and national elected offices challenged two Michigan laws that require a certain amount of signatures in support of a candidate’s petition before the candidate is placed on the ballot. They claimed that Michigan’s COVID-19 stay-athome order prevented them from collecting the signatures and that enforcement of those laws, under the circumstances presented by the COVID-19 pandemic, was an unconstitutional infringement of their First Amendment rights. Michigan’s COVID-19 orders, unlike Ohio’s, do not exempt First Amendment protected speech from their definition of “prohibited activities.” See Michigan Executive Order 2020-21 available at https://www.michigan.gov/whitmer/0,9309,7387-90499_90705-522626--,00.html. In any event, the Michigan district court “enjoined the State from enforcing the ballot-access provisions at issue unless the State provides some reasonable accommodations to aggrieved candidates.” Esshaki at *4. The district court, then, through a “plenary re-writing of the State’s ballot-access provisions… (1) reduced the number of signatures required by 50%; (2) extended the deadline for filing the signatures to May 8; and (3) ordered the State to permit the collection of signatures through the use of electronic mail.” Id.
In a ruling last week, the Sixth Circuit upheld the core injunction but vacated the district court’s re-writing of Michigan’s ballot access provisions. Id. at *4-5. The Court stated “[t]his compulsory aspect of the preliminary injunction was not justified…This is the States' constitutionally protected right.” Id. The Court also found that, “the State is likely to succeed on the merits and will be irreparably harmed if forced to comply with this re-writing of its ballot-
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access provisions, that neither the plaintiffs nor others similarly situated will be harmed by staying this portion of the injunction given that the prohibition in the injunction remains, and that the public interest is furthered by protecting the State's constitutionally guaranteed authority and preventing a federal court from usurping a State's legislative authority by re-writing its statutes.” Id. at *5. Finally, the Court ruled that, “the federal court cannot impose such specific manner-ofelection requirements on a State without breaching the express delegation of authority in the Constitution.” Id. at *6. Here, the Plaintiffs urge this Court to do what the Esshaki Court swiftly struck down just last week. This Court does not have the authority to upend Ohio constitutional amendments or impose the manner-of-election re-writes that Plaintiffs’ request.
Plaintiffs’ requested relief would harm the public interest. Ohio has a compelling public interest in preserving the integrity of its election processes. Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 231 (1989); cf. also Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 194-97 (2008). “[C]aution” granting injunctions is “especially” warranted “in cases affecting a public interest where the court is asked to interfere with or suspend the operation of important public works or to control the action of another department or government.” Country Club v. Jefferson Metropolitan, 5 Ohio App.3d 77, 80, 449 N.E.2d 460, 464 (7th Dist. 1981) (quotation omitted). Such significant impact cuts against the interest of Ohio, and the public, in orderly elections. See Benisek, ___U.S.___, 138 S.Ct. 1942, 1944 (2018).
Nonetheless, Plaintiffs ask this Court to issue an order that ignores all of the statutory and constitutional safeguards that ensure ballot integrity. They demand an order that either relaxes, or waives entirely, petition signature requirements, even though those requirements are enshrined in the Ohio Constitution.
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They invite this Court to invent a new process which permits electronic petition signatures, in direct contravention of the Ohio Constitution’s requirements that signatures be witnessed, and in ink. Implementing a system that utilizes un-witnessed, anonymous signature gathering invites fraud. Ohio has seen this before. In 2004, an investigation of petitions circulated for Ralph Nader found that the process was “replete with credible, unchallenged instances of actual fraud in the circulation of petitions[]” and that the fraud was “widespread and took various forms.” Blankenship v. Blackwell, 341 F.Supp.2d 911, 923 (S.D. Ohio 2004). The 2004 circulators “engaged in outright fraud by using false addresses to purportedly satisfy Ohio law” and “falsely attest[ed] that petitions were circulated when they were not and . . . falsely attest[ed] to signatures. Id.; see also Nader v. Blackwell, 545 F.3d 459 (6th Cir. 2008). Enjoining the signature requirements here would invite the same type of fraud found in Blankenship. Backsliding now serves no public interest.
Given that electronic signatures are unprecedented in Ohio, it is unsurprising that Plaintiffs offer no evidence to explain how an unwitnessed and electronically-collected signature might be authenticated. Apparently, the Defendants, and all of Ohio’s eighty-eight county boards of elections are supposed to develop, implement, and ensure uniform voter access to such a system roughly three to four months. It is hard to imagine how such an Order would not cause systemic confusion and disarray.
Plaintiffs do not seriously expect the State of Ohio and its boards of elections to quickly implement an electronic signature gathering process. Thus, they request an alternative remedy which would prove equally harmful to the public interest – automatic ballot access. They want this Court to presume that, but for COVID-19, the public would so overwhelmingly support their respective measures and they would have obtained the requisite number of signatures and in the
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requisite geographic proportions. Never mind that Plaintiffs might be wrong, and Ohio voters might not want to sign their petitions, they unabashedly request this Court to put a finger on the side of the scale that benefits only them. Accordingly, Plaintiffs’ request for automatic ballot access cannot be justified.
Finally, Ohio has a considerable interest in seeing that its duly-enacted laws are carried out. See Maryland v. King, 133 S. Ct. 1, 3 (2012) (Roberts, C.J., in chambers) (“[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.”) (Quotation omitted). Equally important is Ohio’s strong public interest in enforcing its Constitution, that the People enacted. The harm to Ohio in enjoining its laws and Constitution are presumed, and Plaintiffs have completely failed to overcome that presumption. IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Motion for Preliminary Injunction should be denied. Respectfully submitted, DAVE YOST Ohio Attorney General /s/ Julie M. Pfeiffer JULIE M. PFEIFFER (0069762)* Counsel of Record MICHAEL WALTON (0092201) Assistant Attorneys General Constitutional Offices Section 30 East Broad Street, 16th Floor Columbus, Ohio 43215 Tel: 614-466-2872 | Fax: 614-728-7592 Julie.pfeiffer@ohioattorneygeneral.gov Michael.Walton@ohioattorneygeneral.gov Counsel for Defendants
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Case: 2:20-cv-02129-EAS-CMV Doc #: 40 Filed: 05/12/20 Page: 39 of 39 PAGEID #: 555 CERTIFICATE OF SERVICE
I hereby certify that on May 12, 2020, the foregoing was filed with the Court. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties for whom counsel has entered an appearance. Parties may access this filing through the Court’s system.
/s/ Julie M. Pfeiffer JULIE M. PFEIFFER (0069762) Assistant Attorney General
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Defendant’s Exhibit A Affidavit of Amanda Grandjean

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 Case: 2:20-cv-02129-EAS-CMV Doc #: 41 Filed: 05/13/20 Page: 1 of 22 PAGEID #: 562

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Chad Thompson, William Schmitt, and Don Keeney,
Plaintiffs,
Ohioans for Secure and Fair Elections, et al.,
Intervenor-Plaintiffs,
and
Ohioans for Raising the Wage, et al.,
Intevenor-Plaintiffs, v.
Richard "Mike" DeWine, in his official capacity as Governor of Ohio,
Amy Acton, in her official capacity as Director of Ohio Department of Health,
and
Frank LaRose, in his official capacity as Ohio Secretary of State,
Defendants.

Case No. 20-2129 Judge Sargus

PLAINTIFFS' REPLY TO DEFENDANTS' RESPONSE, R. 40, TO PLAINTIFFS' MOTION FOR EMERGENCY RELIEF, R. 4

Case: 2:20-cv-02129-EAS-CMV Doc #: 41 Filed: 05/13/20 Page: 2 of 22 PAGEID #: 563
All true living is face to face. – Albert Schweitzer I. The Emergency Orders Issued Before April 30 Made No Reference to Nor
Exception for Petition Circulators, Soliciting Signatures, Going Door to Door, or Approaching People in Public. Defendants' emergency order issued on March 22, 2020 was courageous and correct. It saved lives. Plaintiffs applaud Defendants' efforts in this regard. But now, notwithstanding their life-saving orders, Defendants remarkably claim that Ohioans could have -- and should have -ignored these life-saving measures all along. People should have been out and about, mixing and mingling, exchanging pens and clip boards, going door to door, approaching pedestrians, engaging in face to face conversations, soliciting and witnessing signatures. The claim is beyond ironic; it is insulting. It not only minimizes the hardships all Ohioans have experienced, it insults the sacrifices they have made. Ohioans have given up what Albert Schweitzer called "true living" to comply with Defendants' orders. They are now being rewarded with Defendants' mocking claims that "they could have ignored these life-and-death warnings" and they "should have studied the First Amendment." The exigencies in this case speak for themselves. Ohio's Department of Health and Governor issued a series of orders, described in Plaintiffs' Verified Complaint, R.1, and the Stipulated Facts, R.35, shuttering the vast majority of businesses and offices, requiring that Ohioans stay inside their homes, banning most gatherings and mandating physical separations (outside close family members) of at least six feet (both inside and outside) when small gatherings are even permissible. Along with the orders' legalese detailing and describing what gatherings, what movement, and what physical contact is permitted, Dr. Acton explained in plain language to Ohioans what all this meant: "This order," she stated, "prohibits holding gatherings of any size
1

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and closes all nonessential businesses." Ohio Department of Health: Stay at Home Order Frequently Asked Questions, April 2, 2020 (emphasis added) (Attached as Exhibit 1) (emphasis added). "This order is mandatory," she continued. Id. (emphasis added). "To help prevent the further spread of COVID-19 in Ohio and protect our friends, neighbors, and vulnerable populations, please stay home." Id. (emphasis added). "For your safety, as well as the safety of those in your community, you should remain at home to help fight the spread of COVID-19." Id. (emphasis added).
Dr. Acton explained that some physically separated outside activity would be allowed; but like the orders themselves, she said nothing about gathering signatures: "Families will still be able to go outside, …but should continue to practice social distancing by remaining 6 feet away from other people. " Id. (emphasis added). "Adhering to the order will save lives and it is the responsibility of every Ohioan to do their part. We are in this together." Id. (emphasis added).
Defendants' orders were not advisory. Governor DeWine repeatedly emphasized this to the public: "'We would not have issued this if it was not a matter of life and death,'" Ian Cross, Gov. DeWine clarifies enforcement, reporting of stay-at-home order violations, News5Cleveland.com, March 23, 2020 (quoting DeWine and emphasis added).1 The Governor encouraged Ohioans to report violations: "residents should contact the business’ human resources department or their local health department to report violations of the stay-at-home order." Id. Emphasizing how serious these closures and prohibitions were, Governor DeWine stated that he and local authorities were prepared to prosecute: "DeWine noted this is an order, not a suggestion, and he expects all people to comply and that all health departments and local law enforcement can enforce this order. " Laura Mazade, What does the stay-at-home order
1https://www.news5cleveland.com/news/continuing-coverage/coronavirus/gov-dewine-clarifies-enforcementreporting-of-stay-at-home-order-violations.
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mean for Ohio, Cincinnati Enquirer, March 22, 2020 (emphasis added).2 Governor DeWine emphasized that violating the orders constituted a "second-degree misdemeanor and can be enforced by the state's 113 public health departments and local police." Id.
Plaintiffs and all Ohioans were left to struggle under these orders. They relied on the Governor's and Dr. Acton's life and death warnings. Neither the Governor's official orders, his many press announcements, nor Dr. Acton's explanations ever said anything about being able to collect signatures. Indeed, had they done so, Plaintiffs would have risked prosecution. Defendants’ contention that Plaintiffs should have engaged in potentially criminal conduct speaks for itself: it is a legally untenable position. II. Defendants' April 30 Order Mentioned Circulators for the First Time After This
Case was Filed. Defendants' most recent iteration of their orders, issued on April 30, 2020, extends Ohio's life-and-death restrictions for many businesses, most public places and virtually all gatherings until at least May 29, 2020. See Ohio Department of Health, Director's Stay Safe Ohio Order, April 30, 2020.3 In his most recent announcement on May 8, 2020, Governor DeWine stated "the obvious and [did] not shy away from it: The risk is up. The more contacts we have, the more that we do, the more risk there is." DeWine warns ‘risk is up’ as Ohio continues reopening process: 'This is a high-risk operation', 10tv.com, May 8, 2020 (emphasis added).4 "He urged all Ohioans to continue following physical distancing guidelines of staying at least six feet apart and wearing a mask whenever possible." Id. (emphasis added). Consequently, the physical circumstances making it practically impossible to gather signatures in Ohio did not change after April 30, 2020.
2 https://www.cincinnati.com/story/news/2020/03/22/coronavirus-ohio-stay-home-order/2895154001/. 3 https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-Ohio-Order.pdf. 4 https://www.10tv.com/article/dewine-warns-risk-ohio-continues-reopening-process-high-risk-operation-2020-may.
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Defendants to this day offer no explanation for how circulators might approach voters to obtain their hand-written signatures on petitions while simultaneously maintaining a distance of at least six feet from those same voters.
This reality is proved by the April 30, 2020 order; all primary/secondary schools remain closed. Ohio Department of Health, Coronavirus (COVID-19): Continued Business Closures, May 2, 2020.5 All "places of public amusement, whether indoors or outdoors," id., "Auditoriums, stadiums, arenas," id., "Movie theatres, performance theatres, and concert and music halls," id., "Public recreation centers and indoor sports facilities," id., "Parades, fairs, festivals, and carnivals," id., "Amusement parks, theme parks, outdoor water parks, children's play centers, playgrounds, and funplexes," id., "Aquariums, zoos, museums, historical sites, and similar institutions," id., "Country clubs and social clubs," id., "Spectator sports, recreational sports tournaments and organized recreational sports leagues," id., "Health clubs, fitness centers, workout facilities, gyms, and yoga studios," id., "Swimming pools, whether public or private, except swimming pools for single households," id., "Residential and day camps," id., and "Campgrounds, including recreational camps and recreational vehicle (RV) parks" remain closed. Id. Most public places in Ohio remain indefinitely closed. See Randy Ludlow, Coronavirus in Ohio: Gov. Mike DeWine warns virus remains 'a dangerous risk' even as state reopens, Columbus Dispatch, May 12, 2020.6
Meanwhile, Section 4 of the April 30, 2020 order continues to state that "[a]ll public and private gatherings of any number of people occurring outside a single household and connected property, or living unit and connected property are prohibited, except for the limited purposes
5 https://coronavirus.ohio.gov/wps/portal/gov/covid-19/responsible-restart-ohio/Continued-Business-Closures/. 6 https://www.dispatch.com/news/20200512/coronavirus-in-ohio-gov-mike-dewine-warns-virus-remains-rsquoadangerous-riskrsquo-even-as-state-reopens.
4

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permitted by this Order." April 30 Order, supra (emphasis added). "Any gathering of more than ten is prohibited unless exempted by this Order." Id. (emphasis added). It was in Section 4 of the April 30, 2020 Order that -- for the first time -- "circulators" were provided an exception.
Putting aside the fact that the April 30 Order's mention of circulators at this late date is obviously a litigation tactic, its purported exception does not really exempt much of anything at all. It only provides an exception from "[t]his Section['s]" ban on public gatherings. Id. It says nothing about the application of other prohibitions in the Order. Because of the continuing closures described above and continuing bans found in other Sections of the April 30 Order, circulators will still have virtually no one to solicit, nowhere to go, and no lawful means to collect signatures. For instance, Section 3's continuing stay-at-home and physical distancing requirements extend the shelter, stay-at-home aspect of all prior orders by stating:
all individuals currently living within the State of Ohio are ordered to stay at home or at their place of residence except as allowed in this Order. To the extent individuals are using shared or outdoor spaces when outside their residence, they must at all times and as much as reasonably possible, maintain social distancing of at least six feet from any other person, with the exception of family or household members. April 30, 2020 Order, supra (emphasis added). Even if circulators may now be able to venture out without violating Section 4's ban on gatherings, they cannot physically approach anyone who is not a family member without violating Section 3. Those being solicited, moreover, are still subject to both the prohibitions found in Sections 3 and 4. Even assuming that those being solicited are somehow not in violation of Section 4, it remains almost impossible to distribute a clip board with a petition and pen and witness a person's signature from six feet away. Section 3 will always be violated. And even if it can be physically accomplished, it is quite unlikely that those solicited will be willing to even try. Governor DeWine and Dr. Action, after all, have repeatedly told them to maintain six feet of
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separation. Knocking on doors of non-family members is out of the question. It will correctly be viewed as a threat to residents’ safety.
Demanding that Plaintiffs and supporters attempt to engage in such a close-proximity practice while also telling them to stay home and more than six feet apart defies the very purpose behind the shelter and closure orders. Other than a litigation tactic, it makes no sense. A more sensible solution, of course, is to modify the signature collection requirements, which is what Plaintiffs seek in this case. About all that Defendants' April 30, 2020 Order excepting circulators does is prove that their prior orders included no exception, meaning that Plaintiffs at bare minimum (even if Defendants' arguments are otherwise accepted) lost six weeks of signature collection to Defendants' prior orders. All by itself this loss requires constitutional correction. III. Defendants' Exception for "First Amendment Protected Speech" Is Vague and
Constitutionally Meaningless. Petitioning to place popular measures on election ballots is “core political speech,” Meyer v. Grant, 486 U.S. 414, 22 (1988), and is fully protected by the First Amendment. See Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 296-97 (6th Cir. 1993); Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019). Notwithstanding this controlling Sixth Circuit precedent, Defendants remarkably argue that because Ohio's "challenged constitutional and statutory provisions regulate the mechanics of the initiative process, not protected speech or a political candidate’s access to the ballot, … the First Amendment does not apply." Defendants' Memorandum in Opposition, R.40, at PAGEID # 537 (emphasis added). Defendants then even more remarkably contradict themselves by arguing that because all of their orders have "carved out First Amendment activities" as exceptions, id. at PAGEID # 532, Plaintiffs have always been "free to choose who they reach out to, how they approach individuals, and which locations they choose to target." Id.
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Case: 2:20-cv-02129-EAS-CMV Doc #: 41 Filed: 05/13/20 Page: 8 of 22 PAGEID #: 569
So which is it? Are Plaintiffs free to go where they want, gather as they wish, and breach physical distancing requirements with immunity because they are protected by the March 22 Order's supposed First Amendment exception, as Defendants assert at PAGEID # 532, or will Plaintiffs be arrested because they are not engaged in First Amendment speech, as Defendants assert at PAGEID # 537? Defendants cannot have it both ways.
Defendants' purported exception, which first appeared in their March 22, 2020 Order, listed among others a separate heading for "First Amendment protected speech." Unlike the other exceptions, however, it failed to list or describe any activities. See Director's Stay at Home Order, March 22, 2020 (merely stating "g. First Amendment protected speech").7 The exception is absolutely blank. Defendants, understandably, could not think of anything that could be included. No mention was ever made in any orders or announcements issued before this litigation commenced on April 27, 2020 that circulators were exempt from anything.
Now, Defendants still cannot figure out what this exception means. In one breath they claim that Plaintiffs fall under it because they are exercising their First Amendment rights. In the next breath, Defendants claim Plaintiffs do not have any First Amendment rights anyway. The argument, just like the vapid exception they created, makes no sense.
No one can make any sense of Defendants' argument. It is vague beyond understanding. It requires that citizens "guess and gamble" about how Defendants' exception might be interpreted, what it allows, and where it applies. Ohioans must guess at what is "protected by the First Amendment" means. They must gamble with their lives.
Deciding what is and what is not "First Amendment protected speech" is complicated even for skilled lawyers, as illustrated by this case. Defendants' lawyers here, after all, insist
7 https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf.
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(incorrectly) that signature collection is not protected by the First Amendment. The lay public can hardly be expected to have a better understanding than the government's "top lawyers."
The Supreme Court made this point and used this precise language in Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018), where Minnesota had prohibited any person from wearing a “political badge, political button, or other political insignia … at or about the polling place.” Id. at 1883. The prohibition was unconstitutional, the Supreme Court explained, because it gave Minnesota election judges authority “to decide whether a particular item falls within the ban.” Id. The Supreme Court ruled that Minnesota violated the First Amendment by leaving undefined what is and what is not allowed, and leaving its election judges to address “riddles that even the State's top lawyers struggle to solve.” Id. at 1891.
Even assuming that Defendants conceded that the First Amendment protects Plaintiffs' signature collection efforts, their argument would still fail because Defendants' First Amendment exception is inherently vague. The Supreme Court in Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972), summarized the problems with vague laws under the First and Fourteenth Amendments this way:
First, … [v]ague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. … Third, but related, where a vague statute ‘abut(s) upon sensitive areas of basic First Amendment freedoms, it ‘operates to inhibit the exercise of (those) freedoms.’ Uncertain meanings inevitably lead citizens to “steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked.' Grayned, 408 U.S. at 108-09 (1972) (citations and footnotes omitted). Defendants' laws and purported exemptions unconstitutionally set a "trap [for] the innocent" who are trying to assert their First Amendment rights. Indeed, the laws have even trapped Defendants into making an irreconcilable contradiction.
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Even local law enforcement expressed confusion over Defendants' orders: "Montgomery County Sheriff Rob Streck called the Ohio Department of Health’s stay-at-home order 'vague'." Chris Stewart, Coronavirus: Police will start with warnings under Ohio stay-at-home order, Dayton Daily News, March 23, 2020.8 The same goes for the media: "The order is vague as to what constitutes an essential business." Stephanie Haney, Watch/Here's how to report a business you suspect isn't following Ohio's public health order to close non-essential workplaces, wkyc.com, March 30, 2020.9 Plaintiffs understandably did not choose to irresponsibly risk prosecution, as Defendants now insist they should, by flouting the pandemic and Defendants' orders. If there is fault here it is not in Plaintiffs’ lawful and responsible conduct, but is in Defendants’ unconstitutionally vague exception.
A. Defendants' Exemption Would Include Much of What is Prohibited. If this were not enough, many if not most of the places closed and the activities expressly prohibited throughout March and April of 2020 -- and which continue to be closed and banned to this very day -- involve protected First Amendment activity. Defendants fail to explain how under their exemption these protected places and activities can be banned while others are not. They fail to explain how Ohioans are expected to know the difference, other than to listen to their responsible public officials. Take door-to-door solicitation, for example. Notwithstanding that commercial speech is protected by the First Amendment, see, e.g., Sorrell v. IMS Health Co., 564 U.S. 552 (2011), and can be practiced with full protection both in-person at the point of sale, see, e.g., 44 Liquormart,
8 https://www.daytondailynews.com/news/local/coronavirus-police-will-start-with-warnings-under-ohio-stay-homeorder/yvV5iHTowr8FYI7gu7bkEP/. 9 https://www.wkyc.com/article/entertainment/television/programs/whats-new/heres-how-to-report-a-business-yoususpect-isnt-following-ohios-public-health-order-to-close-non-essential-workplaces/95-fbacb5c1-c6b5-4fdb-b1bec0fa5b923fe5.
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Inc. v. Rhode Island, 517 U.S. 484 (1996), as well as door-to-door, see, e.g., Watchtower Bible & Tract Society v. Stratton, 536 U.S. 150 (2002), magazine subscription solicitors in Springfield, Ohio were arrested for violating the Governor's orders. See 6 out-of-state residents arrested in Springfield Township for violating stay-at-home order, Local12wkrc.com, Apr. 15, 2020.10
Everyone in Ohio thought they understood that the Governor's orders banned door to door commercial activities. But how can this be if Defendants' First Amendment exception means what Defendants now claim? The fact is that Defendants' First Amendment exception is so meaningless that it could no more be understood to authorize door-to-door soliciting than it could be understood to allow attending movies, museums, and strip clubs. It could no more be understood as a blank check to collect signatures than it can be understood as an exception to hold parades, festivals, and social events, or even conduct classes in schools. In all of these places and with all of these events, after all, speech is "protected" by the First Amendment. Yet Defendants’ orders expressly prohibit citizens from engaging in such activities.
Just to use a few additional examples, consider theatres and music venues. They, too, are engaged in "First Amendment protected" speech. See, e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 563 (Douglas, J., concurring) (1975) ("A municipal theater is no less a forum for the expression of ideas than is a public park, or a sidewalk; the forms of expression adopted in such a forum may be more expensive and more structured than those typically seen in our parks and streets, but they are surely no less entitled to the shelter of the First Amendment."); Young v. American Mini Theatres, 427 U.S. 50, 70 (1976) ("the First Amendment protects communication in this area [adult movie theatres] from total suppression"); Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).
10 https://local12.com/news/local/6-out-of-state-residents-arrested-in-springfield-township-for-violating-stay-athome-order.
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The same goes for museums and erotic dance studios. See, e.g., National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (holding that fine arts and places where they are shown are protected by First Amendment); Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). Parades, meanwhile, represent the quintessential form of protected First Amendment speech. See, e.g., Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995). Primary and secondary schools, both private and public, are protected by the First Amendment: "It can hardly be argued," after all, "that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
Social clubs, too, are protected by the First Amendment. See, e.g., Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537, 548 (1987). Sports stadiums, have also been recognized as protected First Amendment environments. See, e.g., Stewart v. District of Columbia Armory Board, 789 F. Supp. 402 (D.D.C. 1992) (holding that "RFK Stadium is a public forum" subject to the protections of the First Amendment). So have book stores. See, e.g, Executive Arts Studio v. City of Grand Rapids, 391 F.3d 783, 796 (6th Cir. 2004) (holding that book store is protected by First Amendment). Does this mean that all of the closure orders and bans that are applied to these places and activities by the March 22, 2020 Order, the April 30, 2020 Order and all those in between are meaningless?
Defendants' First Amendment exception either consumes most of Defendants' closures and prohibitions, or it means nothing at all. The latter can be the only logical conclusion. In either event, Defendants could hardly expect Plaintiffs or anyone else to understand the many details and nuances of Constitutional Law. They certainly could not expect them to bet their lives and risk potential prosecution on it.
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B. Purported First Amendment Safe Harbors and Exceptions Violate the First Amendment.
Courts have routinely rejected boiler-plate exemptions like that inserted by Defendants as some sort of safe harbor to protect First Amendment rights. Rather than protecting First Amendment rights, exceptions like these threaten First Amendment rights by creating traps and causing confusion.
In Rubin v. City of Santa Monica, 823 F. Supp. 709 (C.D. Cal. 1993), for example, the Court rejected the very argument that Defendants make here. Rubin, 823 F. Supp. at 710, involved a "First Amendment challenge to a recently-enacted City of Santa Monica ordinance … [that] establishe[d] a scheme whereby groups of 35 or more which seek to congregate in city parks must apply beforehand for permits." The ordinance "exempt[ed] so-called 'First Amendment Activities' from the regulations." Id. at 712. In rejecting the City's claim that this exemption somehow saved the ordinance, the Court observed that the exemption itself was so vague that it violated the Constitution: it "does not define the concept of 'First Amendment Activities,' nor, indeed, could it define this concept." Id. (emphasis added).
The Court noted in Rubin, 823 F. Supp. at 712 n.6, that in Board of Airport Commissioners v. Jews for Jesus, Inc.,482 U.S. 569, (1987), the Supreme Court had rejected a similar argument in the context of restrictions placed on speech in airport terminals. Jews for Jesus, it stated, "suggests the peril in drafting an ordinance which uses the term 'First Amendment Activities' as if the meaning of such a term were self-evident or easily discernible. More precisely, Jews for Jesus suggests that such provisions are inherently vague and unenforceable, and hence unconstitutional." 823 F. Supp. at 712 n.6.
Rubin makes clear that Ohio's exemption for undefined "First Amendment protected speech" is "inherently vague and unenforceable." 823 F. Supp. at 712 n.6. The exemption, all by
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itself, is unconstitutional. Id. Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991), further illustrates the point. There, a lawyer who had made statements about a criminal case to the press was charged in a disciplinary proceeding with making prejudicial extrajudicial statements about a pending case. Id. at 1033. The Nevada Code of Professional Conduct, meanwhile, provided a "safe harbor" provision that allowed lawyers to publicly "state without elaboration ... the general nature of the ... defense.” Even assuming that the restrictions on speech proved consistent with the First Amendment, the majority in an opinion authored by Justice Kennedy ruled, this safe harbor provision itself unconstitutionally "misled [the lawyer] into thinking that he could give his press conference without fear of discipline." Id. at 1048.
The majority explained: Given this grammatical structure, and absent any clarifying interpretation by the state court, the Rule fails to provide “fair notice to those to whom [it] is directed. ” A lawyer seeking to avail himself of Rule 177(3)'s protection must guess at its contours. … The lawyer has no principle for determining when his remarks pass from the safe harbor of the general to the forbidden sea of the elaborated. Id. at 1048-49 (quoting Grayned, 408 U.S. 104, and emphasis added). Plaintiffs here want to remain safe. They want their families to remain safe. They want their friends to remain safe. They want Ohioans to remain safe. They also do not want to be arrested. What Plaintiffs want is to fully exercise their First Amendment rights without having to guess about what might happen. Defendants' argument that Plaintiffs always could have done so because of their "First Amendment" exception makes that impossible. Plaintiffs are forced to guess at what they can and cannot do. They are forced to take their chances. Ohio's prohibition on movement outside the home, requirement of physical distancing, and multiple closures of public places, followed by an exception for "First Amendment activity," sets the precise trap that the Court in Gentile ruled States cannot constitutionally spring. As in
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Grayned, Mansky, and Gentile, Defendants expect citizens to understand legal terms "hav[ing] no settled usage," Gentile, 501 U.S. at 1040, and "pose[s] riddles that even the State's top lawyers struggle to solve.” Mansky, 138 S. Ct. at 1891. Nobody, including Plaintiffs, could have known before April 30, 2020 that circulators were excepted from Ohio's ban on gatherings. No one could have known that circulators could go door to door, move within six feet of another, hand over a clip board and pen, and stand close enough to witness a signature. Even now, after the adoption of the April 30, 2020, anyone who tries to do this risks criminal prosecution. Signers risk arrest. The simple fact is that Ohio remains closed to in-person signature collection. Under Defendants' argument, no one can know what is lawful and what is not. Collecting signatures in person by hand is physically impossible, dangerous, and legally treacherous.
Courts, moreover, have recognized that it is not only that people risk legal penalties if they try to circulate petitions, they simply cannot do so as a factual matter. In Garbett v. Herbert, 2020 WL 2064101 (D. Utah, April 29, 2020), in ruling that a pro-rata reduction was required under the First Amendment to Utah's signature collection requirement, the Court rejected the State's claim that candidates technically could have collected signatures given the advisory nature of the State's orders: "it is difficult to imagine a confluence of events that would make it more difficult for a candidate to collect signatures." Id. at * 12. "In short, under these specific circumstances, the character and magnitude of the burden on Garbett’s First Amendment rights was severe." Id. at *13.
For this same reason, New Jersey's Governor on April 29, 2020 specifically ordered that initiative circulators not go door-to-door to collect signatures; instead that they can and should collect signatures electronically. See Jonathan D. Salant, No knocking on doors. Murphy orders
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political petition signatures be collected electronically, NJ.COM, April 29, 2020.11 The Supreme Judicial Court of Massachusetts, meanwhile, on April 30, 2020 approved an agreement that allows initiative circulators to obtain signatures electronically. See Chris Lisinski, Accord clears way for e-signatures on ballot questions, 22WWLP.COM, April 30, 2020.12 Connecticut's Governor on May 11, 2020 issued an executive order reducing signature collection numbers by 30% and allowing circulators to electronically collect signatures. See Connecticut Ex. Order No. 7LL, May 11, 2020.13 Governor Inslee in Washington State ruled that in-person signature collection cannot be required because "[g]athering signatures during the COVID-19 pandemic 'runs contrary to recommended public health practices.'" Jim Camden, Candidates who are broke will get a break when filing to get names on the ballot, Spokesman Review, May 6, 2020.14 Everyone, it seems, except for Defendants in this case, recognizes the impossibility of collecting signatures in person during a pandemic. IV. Local Government Offices Were Closed During the Effective Dates of the
Defendants' Orders. Defendants' April 30, 2020 order, like their prior orders, includes "governmental entities (other than federal)" as "covered businesses." April 30, 2020 Order, supra. Like most of their State- and Federal-office counterparts, see, e.g., Ohio BMVs to reopen later in May, date for restaurants expected soon, 10tv.com, May 4, 2020,15; United States District Court for the

11 https://www.nj.com/coronavirus/2020/04/no-knocking-on-doors-murphy-orders-political-petition-signatures-becollected-electronically.html.

12 https://www.wwlp.com/news/state-politics/accord-clears-way-for-e-signatures-on-ballot-questions/.

13

https://portal.ct.gov/-/media/Office-of-the-Governor/Executive-Orders/Lamont-Executive-Orders/Executive-

Order-No-7LL.pdf.

14 https://www.spokesman.com/stories/2020/may/06/candidates-who-are-broke-will-get-a-break-when-fil/.

15 https://www.10tv.com/article/ohio-bmvs-reopen-later-may-date-restaurants-expected-soon-2020-may.

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Southern District of Ohio, General Order, April 3, 2020,16 (closing this Court), local offices across Ohio understood Defendants' closure orders to apply to them. They accordingly closed. See, e.g., City of Maumee, Announcement, March 18, 2020.17
Local offices in many of the cities where Plaintiffs seek to file, see Stipulation, R. 35, at PAGEID # 469, closed their doors because of the pandemic and Defendants' March 22,2020 order. McArthur, Ohio, see Facebook, Village of McArthur, March 23, 2020,18 New Lexington, Ohio, see Village of New Lexington, Ohio: Attention Please,19 Baltimore, Ohio, see The Village of Baltimore: COVID-19/Coronavirus Precautions,20 Syracuse, Ohio, see Sarah Hawley, COVID-19 related office closures: Village of Syracuse Closures, The Daily Sentinel, March 16, 2020,21 Cadiz, Ohio, see Welcome to the Village of Cadiz,22 and Chagrin Falls, Ohio, see Village of Chagrin Falls COVID-19 Virus Response – Offices Closed, March 17, 2020,23 have all been closed in the wake of the Governor's orders.
Plaintiffs were prevented from filing their initiatives in these places and were thereby prevented from collecting signatures. Without those prior filings, after all, signature collection -even if it had been physically and legally possible -- would be meaningless. Ohio law requires filing proposed initiatives beforehand. See O.R.C. § 731.32. Plaintiffs could not because of the pandemic and the closing of these local governmental offices across Ohio.
16 https://www.ohsd.uscourts.gov/sites/ohsd/files//General%20Order%2020-08.pdf. 17 https://www.maumee.org/docs/Building%20Closed%20Until%20Further%20Notice%20Sign.pdf. 18 https://www.facebook.com/Village-of-McArthur-Ohio-452072178274827/. 19 http://www.newlexington.org/. 20 http://baltimoreohio.org/covid-19-coronavirus-precautions/. 21 https://www.mydailysentinel.com/news/51616/covid-19-related-office-closures. 22 http://villageofcadiz.com/. 23 https://chagrin-falls.org/village-of-chagrin-falls-covid-19-virus-response-offices-closed/.
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V. The Sixth Circuit's Decision in Esshaki Controls this Case. Even if Defendants' confused argument that Ohioans could have and should have been
knocking on doors for signatures all along – in violation of Defendants’ own orders – were accepted, Esshaki v. Whitmer, 2020 WL 1910154 (E.D. Mich., Apr. 20, 2020), aff'd in part, 2020 WL 2185553 (6th Cir., May 5, 2020), still controls this case. And in Esshaki, the Sixth ruled that the combination of the pandemic, restrictions on the public, and requirement of signature collection (which even included, unlike in Ohio, collection by mail, see Esshaki, 2020 WL 1910154, *5), violated the First Amendment.
In Esshaki, Michigan's Governor had issued two executive orders, Ex. Order 2020-21 (COVID-19) (March 23, 2020),24 and Ex. Order 2020-43 (COVID-19) (Apr. 8, 2020),25 that are virtually identical to those issued in Ohio at the same time. See Esshaki, 2020 WL 1910154, at * 6. Michigan, like Ohio, "insist[ed] on enforcing the signature-gathering requirements as if its Stay-at-Home Order … had no impact on the rights of candidates and the people who may wish to vote for them." Id. at * 1. Michigan also argued precisely what Ohio argues here, that circulators should have braved the crisis and gathered signatures. The District Court rejected the argument as "both def[ying] good sense and fl[ying] in the face of all other guidance that the State was offering to citizens at the time." Id. at *5. "[P]rudence at that time counseled in favor of doing just the opposite." Id.
Applying "the framework established in Anderson [v. Celebrezze, 460 U.S. 780 (1983),] as later refined in Burdick v. Takushi, 504 U.S. 428 (1992)," the District Court found a severe
24 https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-522626--,00.html. 25 https://www.michigan.gov/whitmer/0,9309,7-387-90499_90705-525182--,00.html.
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burden and applied strict scrutiny to invalidate the combined effects of the emergency orders, Michigan's in-person signature collection requirements, and the pandemic: "[T]his Court has little trouble concluding that the unprecedented—though understandably necessary— restrictions imposed on daily life by the Stay-at-Home Order, when combined with the ballot access requirements … have created a severe burden on Plaintiff’s exercise of his free speech and free association rights under the First Amendment …." Id. at *6 (emphasis added).
The Sixth Circuit affirmed the District Court's judgment: The district court correctly determined that the combination of the State’s strict enforcement of the ballot-access provisions and the Stay-at-Home Orders imposed a severe burden on the plaintiffs’ ballot access, so strict scrutiny applied, and even assuming that the State’s interest (i.e., ensuring each candidate has a reasonable amount of support) is compelling, the provisions are not narrowly tailored to the present circumstances. 2020 WL 2185553, at *1. The Sixth Circuit sustained "the district court’s order enjoin[ing] the State from enforcing the ballot-access provisions at issue unless the State provides some reasonable accommodations to aggrieved candidates." Id. It was only in terms of remedy that the Sixth Circuit remanded the matter to the District Court: "we are instructing the State to select its own adjustments so as to reduce the burden on ballot access, narrow the restrictions to align with its interest, and thereby render the application of the ballot access provisions constitutional under the circumstances." Id. at *2. The Sixth Circuit also advised the State that the simplest way to proceed was for it to implement what the District Court had ordered, id., which is exactly what happened in the end. On Friday, May 8, 2020, Michigan agreed to reduce its signature collection requirement by 50%, which is what the District Court had previously required. See Richard Winger, Michigan
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Secretary of State Now Agrees to 50% Cut in Number of Primary Petition Signatures, Ballot Access News, May 8, 2020.26
As in Esshaki, Anderson/Burdick plainly applies here. The Sixth Circuit, after all, made clear in Schmitt v. Husted, 933 F.3d 628 (6th Cir. 2019), that Anderson/Burdick and the First Amendment govern the whole of the initiative process. Initiatives are no different from candidates in this regard. And as in Esshaki, 2020 WL 2185553, at *1, "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." Esshaki controls here. Its conclusions need not be reinvented and cannot be distinguished. Ohio's laws and orders severely burden Plaintiffs' First Amendment rights here just as Michigan's did in Esshaki. Ohio must accordingly fashion acceptable relief, just as Michigan was forced to fashion acceptable relief. Ohio's in-person signature requirements must be enjoined during the pandemic just as they were in Esshaki.
Defendants' claim that Plaintiffs' burden is not severe contradicts the Sixth Circuit's conclusion in Esshaki. Defendants contest none of the factual allegations in the Verified Complaint. They have stipulated that Plaintiffs "routinely and regularly circulate" their decriminalization initiatives in cities in Ohio, see Stipulation, R 35, at PAGEID # 469, have filed at least four in different Ohio cities in order to begin collecting signatures, id., and seek to file the same initiatives in at least half a dozen more cities in Ohio, all in time for the November 3, 2020 election. Id. Plaintiffs are accordingly severely burdened in precisely the same way that the plaintiffs in Esshaki were. No additional proof or argument is necessary.
Defendants' argument that the number of signatures needed for local initiatives is trivial and easily satisfied is simply wrong. True, in smaller villages there are fewer signatures needed,
26 https://ballot-access.org/2020/05/08/michigan-secretary-of-state-now-agrees-to-50-cut-in-number-of-primarypetitions/.
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but there are also fewer people to ask and fewer who might be willing to sign in the midst of a pandemic. It is just as impossible, moreover, in these small villages to go door-to-door as it is anywhere else. Further, Plaintiffs do not limit their activities to small villages. Akron is one of the cities Plaintiffs seek ballot access in, see Stipulation, R.35, at PAGEID # 469, and it has almost 200,000 residents. See U.S. Census: Quick Facts: City of Akron, Ohio.27 Ten percent of Akron's vote in the last gubernatorial election translates to thousands of required voters' signatures -- all of which must be collected by July 16, 2020. This kind of effort is hardly trivial, especially given Defendants' orders and the pandemic.
CONCLUSION Ohio's ballot access laws and Defendants' orders, when coupled with the pandemic, fail under the First Amendment, Equal Protection and Due Process. As argued in Plaintiffs' Motion for emergency relief (and not challenged in Defendants' Response), Ohio's newly proposed "guess and gamble" process unconstitutionally moves the goalpost in the middle of the game in violation of Due Process. See Libertarian Party of Ohio v. Husted, 2014 WL 11515569 (S.D. Ohio 2014). It also creates differing rules for the same election in violation of Equal Protection. See Obama for America v. Husted, 888 F. Supp.2d 897, 905-06 (S.D. Ohio 2012) (citing Bush v. Gore, 531 U.S. 98 (2000)). Ohio's ballot access laws under the facts presented here also plainly violate the First Amendment. The only question is one of remedy. As in Esshaki, Defendants should be instructed to timely confer with Plaintiffs in an effort to construct a workable, constitutional solution, the results of which should be immediately reported to the Court for review.
27 https://www.census.gov/quickfacts/akroncityohio.
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Oliver Hall Center for Competitive Democracy P.O. Box 21090 Washington, DC 20009 202-248-9294 oliverhall@competitivedemocracy.org Attorney for Plaintiffs

Respectfully submitted,
/s/ Mark R. Brown
Mark R. Brown 303 E. Broad Street Columbus, Ohio 43215 614-236-6590 Attorney for Plaintiffs

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Stay At Home Order Frequently Asked Questions
April 02, 2020 | COVID-19
Stay At Home Order Frequently Asked Questions

On Sunday, March 22th, under the direction of Ohio Governor Mike DeWine, Ohio Department of Health Director Amy Acton, M.D., MPH issued a director’s order to require all Ohioans to stay in their homes to prevent the further spread of COVID-19 beginning at 11:59 p.m. EDT on Monday, March 23, 2020 until 11:59 p.m. on April 6, 2020. Dr. Acton issued a new stay at home order that begins on April 7, 2020 and lasts through May 1, 2020. This order prohibits holding gatherings of any size and closes all nonessential businesses. It does NOT prohibit essential activities like going to the grocery store, receiving medical care, or taking your pet for a walk. Residents can return home from out of state and can leave the state.
For more information on what this order means for you, please see below.

When does the order take effect?



The order will take effect at 11:59 p.m. EDT on Monday, March 23rd

Where does the Stay at Home order apply?



The director’s order includes the entire state. Unless you work for an essential business or are doing an essential activity, you should stay home. Work from home is permitted and encouraged where possible.

Is this mandatory or just guidance?



https://coronavirus.ohio.gov/wps/portal/gov/covid-19/families-and-individuals/stay-at-home-information/Stay-At-Home-Order-Frequently-Asked-Questions 1/7

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This order is mandatory. To help prevent the further spread of COVID-19 in Ohio and protect our friends, neighbors, and vulnerable populations, please stay home.

Will the Ohio National Guard be enforcing this order?



No. The Ohio National Guard will not be enforcing this order.

I work in an essential service. How will the police know



I'm allowed to be outside my house?

Law enforcement officials will not stop residents who are on their way to or from work or who are out for necessities like going to the pharmacy or getting groceries, or just taking a walk. People gathering in any size group may be asked to physically distance themselves or go home. Ohioans should abstain from all nonessential activities. Adhering to the order will save lives and it is the responsibility of every Ohioan to do their part. We are in this together.

Will grocery stores be open?



Yes, essential services will still be operational including, but not limited to:
Grocery stores Gas stations Pharmacies Police stations Fire stations Hospitals, clinics and healthcare operations Garbage/sanitation Public transportation Public benefits (i.e. SNAP, Medicaid) hotlines
These stores, including big box stores, must determine, display and enforce the maximum capacity of people permitted in any store at one time to safely and comfortably maintain a six-foot distance from each other. If a line is present inside or outside a store, a six-foot distance must remain among those

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How can I get medical care if I need it?



If you are feeling sick, call your doctor, a nurse hotline, any telehealth hotline set up specifically for COVID-19 (check with your insurance company) or an urgent care center. If you are experiencing symptoms or are currently in isolation, you should stay at home and follow the guidelines provided by your physician. Do not go to an emergency room unless necessary. Nonessential medical care like eye exams and teeth-cleaning should be postponed. When possible, healthcare visits should be done remotely. Contact your healthcare provider to see what tele-health services they provide.

What if I still have to go to work?



Unless your work is an essential function (i.e. healthcare provider, grocery store clerk, first responder), you should stay home. If you have been designated essential by your employer, you should continue to go to work and practice social distancing. If you are experiencing symptoms or are currently in isolation, you should stay at home and follow the guidelines provided by your physician.

What if I think my business should be closed but I'm



still being asked to operate?

Essential businesses will remain open during the Stay at Home order to provide services that are vital to the lives of Ohioans. Those businesses include, but are not limited to, pharmacies, certain government offices, and restaurants providing take-out meals. If you work for an essential business, you should continue to practice social distancing and should stay at home outside of work hours. If you believe your business is nonessential but are still being asked to show up to work, you may discuss with your employer. The amended order provides for enforcement of the order by boards of health of a general or city health district, health authorities and officials, officers of state institutions, police officers, sheriffs, constables, and other officers and employees of the state, or any county, city, or township, shall enforce quarantine and isolation orders, and the rules the department of health adopts.

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/families-and-individuals/stay-at-home-information/Stay-At-Home-Order-Frequently-Asked-Questions 3/7

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Can I order food/groceries?



Yes, grocery delivery will be available as well as meal-delivery, drive through, and take-out options.

Will public transportation and ridesharing be



available?

Public transportation and ridesharing should be used for essential travel only. When possible, walk, or drive yourself.

Will roads in Ohio be closed?



No, the roads will not be closed in Ohio. You should only travel if it is essential to your work or health.

Can I take a flight out of state?



Planes and any other form of travel should only be used for essential purposes. When you return from out of state, you should quarantine yourself for 14 days.

What if my home is not a safe environment?



If it is not safe for you to remain home, you are able and urged to find another safe place to stay during this order. Please reach out so we can help. You may call the Ohio Domestic Violence Hotline at 800934-9840 or contact your local law enforcement.

Can I visit friends and family?



For your safety, as well as the safety of those in your community, you should remain at home to help fight the spread of COVID-19. However you may travel to care for elderly, minors, dependents, persons with disabilities, or other vulnerable persons. If possible, it is recommended that you drop off supplies, food, and medication to those relatives in need of assistance, but minimize interaction.

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/families-and-individuals/stay-at-home-information/Stay-At-Home-Order-Frequently-Asked-Questions 4/7

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What about my pet?



You may walk your dog and seek medical care for your pet should they require it. Be sure to practice social distancing while out on walks, maintaining at least 6 feet from other neighbors and their pets.

Does the Stay at Home order mean I can't take my kids



to the park?

Families will still be able to go outside, including to parks and outdoor spaces that remain open, and take a walk, run, or bike ride but should continue to practice social distancing by remaining 6 feet away from other people. Playgrounds are closed because they pose a high risk of increasing transmission.

What is the difference between the Stay at Home order



and social distancing?

Social distancing is an important first step in preventing the spread of a disease like COVID-19 that allows people to go about their daily activities while taking extra health and safety precautions. The Stay at Home order requires people to remain in their homes unless they have an essential job or are doing an essential task like going to the grocery store or walking a pet.

Can I leave home to exercise?



Yes. Outdoor exercise like running or taking a walk is perfectly acceptable; however, exercise gyms, fitness centers and associated facilities are closed to reduce the spread of coronavirus. While exercising outside, you should still practice social distancing by running or walking at least six feet away from other people.

Can I pick up meals being provided by my child's



school?

https://coronavirus.ohio.gov/wps/portal/gov/covid-19/families-and-individuals/stay-at-home-information/Stay-At-Home-Order-Frequently-Asked-Questions 5/7

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Yes. Many districts and schools are continuing to support students by providing breakfast and lunch in non-congregate settings. To find a meal site near you, use the Ohio Department of Education’s interactive map or check your local district’s website or social media channels for meal distribution locations and times.

Can I go out to do laundry?



Yes. Laundromats, dry cleaners and laundry service providers are considered essential businesses that will remain open.

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 Case: 2:20-cv-02129-EAS-CMV Doc #: 44 Filed: 05/19/20 Page: 1 of 41 PAGEID #: 636

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

CHAD THOMPSON, et al.,

Plaintiffs, v.

CASE No. 2:20-CV-2129 JUDGE EDMUND A. SARGUS, JR. Magistrate Judge Chelsea M. Vascura

GOVERNOR OF OHIO MICHAEL DEWINE, et al.,

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 Court

GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motions.

I.

Plaintiffs Chad Thompson, William Schmitt and Don Keeney (“Thompson Plaintiffs”),

Plaintiff-Intervenor Ohioans for Safe and Secure Elections and their supporters (“OFSE

Plaintiffs”), and Plaintiff-Intervenor 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.

Case: 2:20-cv-02129-EAS-CMV Doc #: 44 Filed: 05/19/20 Page: 2 of 41 PAGEID #: 637
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 treatment guidelines to curtail the spread of COVID-19 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 COVID-19 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
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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
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
3

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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) & § 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.
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“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 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
5

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or village clerk, 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 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.
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B. The Parties Thompson Plaintiffs are proponents of initiative petitions that would enact local legislation.
Plaintiffs-Intervenors 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 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
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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 ¶¶ 9-13, 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 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 Plaintiffs-Intervenors 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
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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 ¶ 18-20.)
4. Defendants 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.)
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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.)
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
1 Governor 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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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.)
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 re-open 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
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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 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 COVID-19 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 develop,
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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 (6th Cir. 2014) (quoting Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998)).
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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-at-Home 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 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).
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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 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
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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 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-Home Order . . . had no impact on the rights of candidates and the people who may wish to vote for them.” 2020 WL 1910154 at *1 (E.D. Mich. Apr. 20, 2020). Id. Michigan also argued that circulators should have braved the crisis and gathered signatures. The district court rejected the state’s argument as “both def[ying] good sense
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and fl[ying] in the face of all other guidance that the State was offering to citizens at the time.” Id. at *5. “[P]rudence at that time counseled in favor of doing just the opposite.” Id.
Applying Anderson-Burdick, the district court found a severe burden on the Plaintiffs’ First Amendment rights and applied strict scrutiny to invalidate the combined effects of the emergency orders, Michigan’s in-person signature collection requirements, and the pandemic. The district court concluded that “[u]nder these unique historical circumstances,” the state’s enforcement of its Stay-at-Home Order and the statutory ballot-access requirements operated “in tandem to impose a severe burden on Plaintiff’s ability to seek elected office, in violation of his First and Fourteenth Amendment rights to freedom of speech, freedom of association, equal protection, and due process of the law.” 2020 WL 1910154 at *1 (E.D. Mich. Apr. 20, 2020). The court noted that the plaintiff “was “challenging neither the constitutionality of the State’s ballot access laws nor the Governor’s Stay-at-Home Order in isolation. Rather, Plaintiff seeks relief because the two regulations, taken together, have prevented him from collecting enough signatures before the deadline.” Id. at *4.
The Sixth Circuit, whose decisions bind this Court, agreed with the district court that under Anderson-Burdick, “the combination of the State’s strict enforcement of the ballot-access provisions and the Stay-at-Home Orders imposed a severe burden on the plaintiffs’ ballot access, so strict scrutiny applied, and even assuming that the State’s interest (i.e., ensuring each candidate has a reasonable amount of support) is compelling, the provisions are not narrowly tailored to the present circumstances.” Id. (emphasis in original). The court concluded that Michigan’s strict application of its ballot-access provisions was thus unconstitutional as applied to the plaintiffs. Id.
Defendants contend Esshaki does not apply here for two reasons: 1) Michigan’s Stay-atHome Order did not contain an exemption for First Amendment activity; and 2) Esshaki involved a candidate seeking access to the ballot, not an initiative.
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First, in concluding that the plaintiffs’ First Amendment rights were severely burdened, the district court found that Michigan’s Stay-at-Home Order did not contain “any exception for campaign workers.” 2020 WL 1910154 at *2. Here, the Defendants argue that no state action has infringed on the Plaintiffs’ rights because Ohio’s Stay-at-Home Orders “have always specifically exempted First Amendment Protected Speech” and the April 30, 2020 Stay Safe Ohio Order specifically exempts “petition or referendum circulators.” (Opp. at 6, 19, ECF No. 40.) Plaintiffs vigorously dispute whether this language actually exempted their signature collection efforts from Ohio’s Stay-at-Home Orders. (See e.g., Reply at 6–11, ECF No. 41.)
But this Court need not determine whether Ohio’s Stay-at-Home Orders exempt petition circulation because, as Plaintiffs clarify, the state action challenged here is “Ohio’s strict enforcement of its ballot access provisions – in the face of this pandemic” and not the State’s Orders. (See OFSE Reply at 2, ECF No. 43.) Therefore, it is irrelevant to this Court’s analysis whether there is or was an exemption in Ohio’s Stay-at-Home Orders. This conclusion is consistent with the holding in Esshaki, where the Sixth Circuit held that Michigan’s “strict application of the ballot-access provisions is unconstitutional as applied here” due to the “combination of the State’s strict enforcement of the ballot-access provisions and the Stay-at-Home Orders[.]” 2020 WL 2185553 at *1 (6th Cir. May 5, 2020). It is not uncommon for courts to grant relief in the aftermath of natural disasters based on states’ continued enforcement of election regulations. See e.g., Florida Democratic Party v. Scott, 215 F.Supp.3d 1250 (N.D. Fla. 2016) (requiring state to extend voter registration deadline in the face of Hurricane Matthew); Georgia Coalition for the Peoples’ Agenda, Inc. v. Deal, 214 F.Supp.3d 1344 (S.D. Ga. 2016) (same).
The issue before this Court is thus similar to the issue in Esshaki—whether strict enforcement of Ohio’s signature requirements, combined with the COVID-19 pandemic and effect
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of the Stay-at-Home Orders, unconstitutionally burden Plaintiffs’ First Amendment rights as applied here.
Second, Defendants argue Esshaki is inapplicable because that case involved a candidate seeking access to the ballot, not an initiative. Defendants further argue that Anderson-Burdick does not apply here because Ohio’s signature requirements “regulate the mechanics of the initiative process, not protected speech or a candidate’s access to the ballot, and as a result, the First Amendment does not apply.” (Opp. at 14, ECF No. 40). “In short,” Defendants contend, “Plaintiffs have no First Amendment right to speak or associate by placing initiatives on the State’s or a county’s ballot.” (Id. at 17.)
This Court agrees that the right to an initiative is not guaranteed by the First Amendment, but that does not mean that initiatives are without First Amendment protection. Like initiatives, there is “no fundamental right to run for elective office,” and yet the Supreme Court has recognized laws restricting candidates’ access to the ballot implicate the First Amendment because they “‘place burdens on two different, although overlapping, kinds of rights—the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively.’” Esshaki, 2020 WL 1910154, at *4 (E.D. Mich. Apr. 20, 2020) (quoting Williams v. Rhodes, 393 U.S. 23, 30-31 (1968)). Similarly, “[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.3d at 295; see also Buckley, 525 U.S. at 190-91 (“Initiative petition circulators also resemble candidatepetition signature gathers, however, for both seek ballot access.”) (citing Timmons v. Twin Cities Area New Party, 520 U.S. 351(1997)).
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Importantly, this Court is bound by the Sixth Circuit, which has twice in the last two years applied the Anderson-Burdick framework to First Amendment challenges to Ohio’s statutory requirements for initiative petitions. See Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019), reh’g en banc denied (6th Cir. Sept. 4, 2019), cert. pending, No. 19-974 (filed Feb. 3, 2020); see also Committee to Impose Term Limits v. Ohio Ballot Board, 885 F.3d 443 (6th Cir. 2018). This Court, and the Sixth Circuit, therefore disagree with Defendants that the First Amendment does not apply because Ohio’s signature requirements “regulate the mechanics of the initiative process[.]” See Daunt v. Benson, 956 F.3d 396, 422(6th Cir. Apr. 15, 2020) (Readler, J., concurring) (“AndersonBurdick is tailored to the regulation of election mechanics.”); see also Schmitt, 933 F. 3d at 639 (“Instead, we generally evaluate First Amendment challenge to state election regulations under the three-step Anderson-Burdick framework”); McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 345 (1995) (explaining Anderson’s “ordinary litigation” test did not apply because unlike the statutory provisions in Anderson, the challenged statute did not control the mechanics of the electoral process. It is a pure regulation of speech.”). Accordingly, this Court too will apply Anderson-Burdick to Plaintiffs’ challenges here.
a. Anderson-Burdick Anderson-Burdick provides a ‘flexible standard’” to evaluate “‘[c]onstitutional challenges to specific provisions of a State’s election laws’” under the First Amendment. See Daunt v. Benson, 956 F.3d at 406(citing Anderson, 460 U.S. 780 and Burdick, 504 U.S. 428 (1992)). Under Anderson-Burdick, “[a] court considering a challenge to a state election law must weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to
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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). The severity of the burden on those rights determines the level of scrutiny to be applied. See Daunt, 956 F.3d at 407 (citing Burdick, 504 U.S. at 434).
“When a state promulgates a regulation which imposes a ‘severe’ burden on individuals’ rights, that regulation will only be upheld if it is ‘narrowly drawn to advance a state interest of compelling importance.’” Lawrence v. Blackwell, 430 F.3d 368, 373 (6th Cir. 2005) (quoting Burdick, 504 U.S. at 434). “The analysis requiring that a state law be narrowly tailored to accomplish a compelling state interest is known as the ‘strict scrutiny’ test.” Esshaki, 2020 WL 1910154, at *4 (E.D. Mich. Apr. 20, 2020).
But “minimally burdensome” regulations are subject to “a less-searching examination closer to rational basis,” Committee To Impose Term Limits, 885 F.3d at 448, and “a State’s important regulatory interests will usually be enough to justify reasonable, nondiscriminatory restrictions.” Schmitt, 933 F.3d at 639 (citing Timmons, 520 U.S. at 358). “Regulations falling somewhere in between—i.e., regulations that impose a more-than-minimal but less-than-severe burden—require a ‘flexible’ analysis, ‘weighing the burden on the plaintiffs against the state’s asserted interest and chosen means of pursuing it.’” Daunt, 956 F.3d at 408(quoting Ohio Democratic Party v. Husted, 834 F.3d 620, 627 (6th Cir. 2016)). “This level of review is called ‘intermediate scrutiny.2’” Esshaki, 2020 WL 1910154, at *4 (E.D. Mich. Apr. 20, 2020).
The Court will first consider the “character and magnitude” of the burden on Plaintiffs’ First Amendment rights under Anderson-Burdick. Plaintiffs contend that this burden is “severe.”
2 The Court notes that based on its analysis herein of the severity of the burden and the tailoring of the application of the laws applicable here during this pandemic, the provisions at issue would not survive this intermediate level of scrutiny.
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According to Plaintiffs, their ballot access, freedom of speech, and freedom of association rights are severely burdened because Defendants’ strict enforcement of the signature requirements in light of the ongoing COVID-19 pandemic and Stay-at-Home Orders has made it impossible to qualify their measures for the ballot. “‘The hallmark of a severe burden is exclusion or virtual exclusion from the ballot.’” Schmitt, 933 F.3d at 639 (quoting Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 574 (6th Cir. 2016). “In some circumstances, the ‘combined effect’ of ballot-access restrictions can pose a severe burden.” Grimes, 835 F.3d at 575. “A very early filing deadline, for example, combined with an otherwise reasonable petitioning requirement, can impose a severe burden, especially on independent candidates or minority parties that must gather signatures well before the dominant political parties have declared their nominees.” Id. at 575. In contrast, “[a] burden is minimal when it ‘in no way limit[s] a political party’s access to the ballot.’” Id. at 577 (quoting Libertarian Party of Ohio v. Blackwell, 462 F.3d at 537).
In Schmitt, the Sixth Circuit assessed the plaintiffs’ claims that “the Ohio ballot-initiative process unduly hampers their right to political expression.” See 933 F.3d at 639 (“We first examine whether the burden imposed by the Ohio ballot-initiative statutes is “severe.” Timmons, 520 U.S. at 358.”). The Sixth Circuit analyzed the burden on Plaintiffs’ access to the ballot imposed by the statutes regulating the ballot-initiative process, finding that the cost of seeking mandamus relief to challenge a board of election’s certification decision “disincentivizes some ballot proponents from seeking to overturn the board’s decision, thereby limiting ballot access.” Id. at 641 (citing Grimes, 835 F.3d at 577).
Similarly, in Esshaki, the Sixth Circuit agreed with the district court that “the combination of the State’s strict enforcement of the ballot-access provisions and the Stay-at-Home Orders
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imposed a severe burden on the plaintiffs’ ballot access[.]” 2020 WL 2185553 at *1 (6th Cir. May
5, 2020). In concluding the burden was severe, the court held:
The reality on the ground for Plaintiff and other candidates is that state action has pulled the rug out from under their ability to collect signatures. Since March 23, 2020, traditional door-to-door signature collecting has become a misdemeanor offense; malls, churches and schools and other public venues where signatures might be gathered have been shuttered, and even the ability to rely on the mail to gather signatures is uncertain—if not prohibitively expensive. Absent relief, Plaintiff's lack of a viable, alternative means to procure the signatures he needs means that he faces virtual exclusion from the ballot.
After considering Defendants’ arguments, this Court has little trouble concluding that the unprecedented—though understandably necessary—restrictions imposed on daily life by the Stay-at-Home Order, when combined with the ballot access requirements of Sections 168.133 and 168.544f, have created a severe burden on Plaintiff’s exercise of his free speech and free association rights under the First Amendment . . .—as expressed in his effort to place his name on the ballot for elective office. See Libertarian Party of Ky., 835 F.3d at 574 (“The hallmark of a severe burden is exclusion or virtual exclusion from the ballot.”).
2020 WL 1910154, at *6 (E.D. Mich. Apr. 20, 2020).
Contrarily, Defendants contend that any burden on Plaintiffs’ First Amendment rights is
“slight” (See Opp. at 18, ECF No. 40.) Defendants further contend that Plaintiffs have offered no
reason why their issues must be placed on the November 2020 ballot and failed to show that they
have attempted to obtain signatures through an alternative process, such as by mail or by phone.
(Id. at 18-20.) Additionally, Defendants argue that “Ohio is in the process of reopening its doors”
and the Plaintiffs’ “ability to obtain signatures is improving daily.” (Id. at 20-21.)
According to Defendants, “both the constitutional framework for proposed constitutional
amendments and the statutory framework for proposing local ordinances are content-neutral and
nondiscriminatory regulations.” (Id. at 18. (citing Taxpayers United, 994 F.2d at 297).) In
Taxpayers United, the Sixth Circuit held that Michigan’s statute procedure for validating initiative
petition signatures, by performing “technical checks” for compliance with certain statutory
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requirements, did not violate the plaintiffs’ rights to free speech and political association of the plaintiffs. The court explained that its result may have been different if “the plaintiffs were challenging a restriction on their ability to communicate with other voters about proposed legislation, or if they alleged they were being treated differently than other groups seeking to initiate legislation.” 994 F.3d at 297. But “because the right to initiate legislation is a wholly statecreated right,” the Sixth Circuit held it was “constitutionally permissible for Michigan to condition the use of its initiative procedure on compliance with content-neutral, nondiscriminatory regulations that are, as here, reasonably related to the purpose of administering an honest and fair initiative procedure.” Id.
In ordinary times, the Court may agree with Defendants that Ohio’s signature requirements would likely be considered “reasonable, nondiscriminatory restrictions” that could be justified by the “State’s important regulatory interests.” See Anderson v. Celebrezze, 460 U.S. 780, 788 (1983); see also Committee to Impose Term Limits, 885 F.3d at 448 (“Ohio’s single-subject rule is such a minimally burdensome and nondiscriminatory regulation because it requires only that Plaintiffs submit their two proposed constitutional amendments in separate initiative petitions.”). “States enjoy ‘considerable leeway’ to choose the subjects that are eligible for placement on the ballot and to specify the requirements for obtaining ballot access (e.g., the number of signatures required, the time for submission, and the method of verification).” See John Doe No. 1 v. Reed, 561 U.S. 186, 212, (2010) (Sotomayor, J., concurring) (citing Buckley v. American Constitutional Law Foundation, Inc., 525 U.S. 182, 191 (1999)).
These times, however, are not ordinary. Plaintiffs do not argue that Ohio’s signature requirements are facially unconstitutional. Plaintiffs instead contend that they are unconstitutional as applied to them during this extraordinary time. That is, the COVID-19 pandemic has made it
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impossible to circulate petitions in person, the only method permitted under Ohio law because of the ink signature and witness requirements. Plaintiffs maintain that because they are unable to circulate in person, and they have no other means of collecting signatures, they are unable to meet the other numerical and geographical requirements by the deadline. Specifically, they state:
It is axiomatic that face-to-face encounters between people are essential for any physical in “ink” signature-gathering. Given the temporary changes in our society—specifically the severe reduction of the ability to physically encounter other people—there is no means of complying with Ohio’s formal signature requirements. In the throes of today’s extraordinary circumstances, Ohio’s requirements operate to completely eradicate Intervenors’ indelible First Amendment, Fourteenth Amendment and Ohio constitutional rights to ballot access, freedom of speech, and freedom of association. (OFSE Compl., ¶ 5; see also OFRW Compl. ¶ 4.) Here, OFRW Intervenors are faced not with a mere regulation of how they may access the ballot, but what amounts to a ban on ballot access, and on their related speech and association rights. Petition circulators cannot obtain in-person, pen-topaper signatures outside of their immediate households, and signers cannot sign petitions outside of their immediate households. Nor can supporters mobilize likeminded people to do these things. Public gatherings and in-person contact are suspended. OFRW has no hope of meeting Ohio’s requirements. (OFRW Mot. at 10; see also OFSE Mot. at 10; see also Thompson Mot. at 12-13 (“Under Ohio law as it now exists, Plaintiffs have no lawful procedure by which they may qualify their initiatives for Ohio's November 3, 2020 general . . . Ohio’s signature collection requirement under current circumstances makes it impossible to qualify initiatives for the ballot.”).) As did the Esshaki court, this Court finds that in these unique historical circumstances of a global pandemic and the impact of Ohio’s Stay-at-Home Orders, the State’s strict enforcement of the signature requirements for local initiatives and constitutional amendments severely burden Plaintiffs’ First Amendment rights as applied here. See 2020 WL 2185553, at (1 (6th Cir. May 5, 2020).
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Life as Ohioans knew it has drastically changed. Since March 22, 2020, all residents of Ohio have been mandated to stay home, with some limited exceptions that are all but clear. All non-essential business operations were ordered to cease activities. Sporting events and concerts have been cancelled. All polling locations were closed for the March 17, 2020 primary election. Public and private schools and universities moved to online learning and shut down campuses. Until very recently restaurants, bars, salons, and malls were closed to the public. Gatherings of 10 or more people have been prohibited. While some businesses are now re-opened, Ohioans have been directed to maintain social distancing, staying at least six feet apart from each other, and to wear masks or facial coverings.
The wet signature and witness requirements require circulators to go into the public and collect signatures in person. But the close, person-to-person contacts required for in person signature gathering have been strongly discouraged—if not prohibited—for several months because of the ongoing public health crisis, and likely pose a danger to the health of the circulators and the signers. Moreover, the public places where Plaintiffs may have solicited these signatures have been closed, and the public events drawing large crowds for Plaintiffs to share their message have cancelled and mass gatherings cancelled. And even if Plaintiffs had attempted to garner support for their measures by phone or mail, such efforts do not obviate the ink signature and witness requirements.
Plaintiffs cannot safely and effectively circulate their petitions in person. Ohio does not permit any other forms of signature gathering, including electronic signing. And because Plaintiffs cannot collect signatures in person or electronically, they have no hope of collecting the required number of signatures from the required geographic distribution by the July deadlines. As the district court in Esshaki concluded, without relief here, Plaintiffs “lack of a viable, alternative
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means to procure the signatures” they need means that they face “virtual exclusion from the ballot.” 2020 WL 1910154, at *3 (E.D. Mich. Apr. 20, 2020).
To be clear, this Court’s decision is not a criticism of the Stay-at-Home Orders or Ohio’s response to the COVID-19 crisis. Defendants Governor DeWine and Dr. Acton were some of the first in the nation to issue such orders to slow the spread of the coronavirus and are well-deserving of the national—and even global—praise they have received for their responses. See The Leader We Wish We All Had, N.Y. Times (May 5, 2020), https://www.nytimes.com/2020/05/05/ opinion/coronavirus-ohio-amy-acton.html; Coronavirus: The US governor who saw it coming early, BBC (Apr. 1, 2020), https://www.bbc.com/news/world-us-canada-52113186. Undoubtedly their actions have flattened the curve and saved the lives of countless Ohioans.
Yet the impact of the Stay-at-Home Orders on Ohioans and the continued risk of close interactions cannot be ignored. The reality is that the Orders and the COVID-19 pandemic have made it impossible for Plaintiffs to satisfy Ohio’s signature requirements. Because the burden imposed by the enforcement of the requirements in these circumstances is severe, strict scrutiny is warranted.
b. Meyer v. Grant As explained in detail supra, this Court concludes that Sixth Circuit precedent requires application of the Anderson-Burdick framework to the issues presented in this action. The Court here, however, briefly addresses the OFSE Plaintiffs arguments that the more appropriate framework is that established under Meyer v. Grant, 486 U.S. 414, (1988); see also Morgan v. White, Case No. 20-C-2189, slip op. (N.D. Ill. May 18, 220) (Pallmeyer, C.J.) (applying Meyer in considering similar signature requirement and finding no severe burden there because, unlike the instant action, the plaintiffs’ had slept on their rights to circulate petitions waiting until after the
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pandemic hit to attempt to circulate petitions). Under Meyer, courts “apply ‘exacting scrutiny,’ and uphold the restriction only if it is narrowly tailored to serve an overriding state interest.” McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 347 (1995) (striking down Ohio statute prohibiting distribution of anonymous campaign literature).
On their face, the witness and ink signature requirements do not “regulate pure speech.” See McIntyre, 514 U.S. at 357. OFSE argues that Ohio’s ink signature and witness requirements that require all circulation to be done in person, during the extraordinary circumstances of this moment, have effectively banned circulation because “[c]irculators cannot safely gather signatures in person in the midst of a pandemic without endangering their own and others’ health.” (OFSE Mot. at 8, ECF No. 15.) Because Ohio law does not provide for other forms of signature collection, such as electronic signatures, their “core political speech” through circulating “is altogether suppressed.” (Id.)
Even so, whether this Court were to apply Meyer’s exacting scrutiny or AndersonBurdick’s strict scrutiny, the result is the same—these two provisions cannot withstand constitutional scrutiny.
c. Strict Scrutiny under Anderson-Burdick In order to survive the strict scrutiny analysis, Defendants must show these requirements are “narrowly drawn to advance a state interest of compelling importance.” See Burdick, 504 U.S. at 434. The Court considers Plaintiffs’ challenges to: 1) ink signature requirements set forth in Article II § 1g and Ohio Revised Code § 3501.38(B), and the witness requirements in Article II § 1g and Ohio Revised Code § 3501.38(E); and 2) the numerical and geographical requirements in Article II § 1a, Article II § 1g, and Ohio Revised Code § 731.28, and the deadlines for submission of signatures in Article II § 1a and Ohio Revised Code § 731.28.
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i. Ink Signature and Witness Requirements The Court first addresses the ink signature and witness requirements and concludes Defendants have not established they are “narrowly tailored to the present circumstances.” Esshaki, 2020 WL 2185553, at *1 (6th Cir. May 5, 2020). In defense of the ink signature and witness requirements, Defendants contend that “states have a substantial interest in ensuring that submitted signatures are authentic,” (Id. at 22 (citing Buckley, 525 U.S. at 205)), and that the Ohio Constitution confirms that “ensuring the validity of the signatures on petitions is an interest of the highest order of both the State and its people.” (Id. at 23.) Defendants also assert that these requirements combat petition fraud by ensuring each elector signs for themselves and protecting against signatures being added later. (Id. at 23-24; see also id. at 30 (“un-witnessed, anonymous signature gathering invites fraud.”).) Defendants do not argue that these interests are “compelling” as required under strict scrutiny, because they contend that such an analysis is not warranted. But even assuming that ensuring they are compelling interests, the ink signature and witness requirements are narrowly tailored to achieve that interest in these particular circumstances. See Citizens for Tax Reform v. Deters, 518 F.3d 375, 387 (6th Cir. 2008) (“While eliminating election fraud is certainly a compelling state interest, [the statute] is not narrowly drawn.”). First, Defendants provide examples of how other signature requirements not challenged here (such as the requirement that every signer “be an elector of the state” and include “after his name the date of signing and his place of residence”) achieve their interests, and that ink signatures are because “‘boards of elections are required to compare petition signatures with voter registration cards to determine if the signatures are genuine[.]’” (Opp. at 23, ECF No. 40 (citing State ex rel. Yiamouyiannis v. Taft, 65 Ohio St.3d 205, 209, 602 N.E.2d 644 (1992)). But that requirement is
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by directive of the Secretary of State, no by the Ohio Constitution or Revised Code. See Secretary of State Directive 2019-17.
Furthermore, there is no evidence that certain personally identifiable information, such as the last four digits of a signer’s social security number as used for electronic voter registration and as proposed by Plaintiffs as methods to verify signatures, are any less reliable than boards of election employees comparing handwritten signatures, who likely have no training or expertise in handwriting analysis. Likewise, there is no evidence to support, nor reason to believe that enjoining enforcement of the ink signature and witness requirements and allowing electronic signatures would “likely inject fraud into Ohio’s petition process.” (Opp. at 2, ECF No. 40.); see also See Citizens for Tax Reform, 518 F.3d at 387 (finding statute was not narrowly tailored to eliminate election fraud because “there is no evidence in the record that most, many, or even more than a de minimis number of circulators who were paid by signature engaged in fraud in the past.”).
Moreover, there are other provisions of Ohio law that “expressly deal with the potential danger that circulators might be tempted to pad their petitions with false signatures.” See Meyer, 486 U.S. at 426-27. For example, false signatures are a fifth-degree felony under Ohio Revised Code § 3599.28. It is also a crime for a signer to sign a petition more than once, to sign someone else’s name, sign if they know they are not a qualified voter, accept anything of value for signing a petition, or make a false affidavit or statement concerning signatures on a petition. See Ohio Rev. § 3599.13. Violation of those provisions results in up to a $500 fine or up to six months imprisonment. Id. “These provisions seem adequate to the task of minimizing the risk of improper conduct in the circulation of a petition, especially since the risk of fraud or corruption, or the appearance thereof, is more remote at the petition stage of an initiative than at the time of balloting.” Meyer, 486 U.S. at 427-28; cf. First National Bank of Boston v. Bellotti, 435 U.S. 765,
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790 (1978) (“The risk of corruption perceived in cases involving candidate elections . . . simply is not present in a popular vote on a public issue”).
OFSE and OFRW Plaintiffs have proposed a detailed system for collecting and submitting electronic signatures that contains many of the same safeguards as paper petitions in order to ensure signatures are authentic and prevent petition fraud, including the last four numbers of the signer’s social security number to confirm identity, a method for circulators to monitor the online petitions, and various warnings about the criminal consequences of forging signatures and for election falsification. (See Leonard Decl., ECF No. 30-1; see also OFSE Reply at 18.) The interests in enforcing the ink signature and witness requirements—ensuring authenticity and combating fraud—can be achieved by the electronic system proposed by Intervenor Plaintiffs in conjunction with the other provisions in Ohio law not challenged here when considering the public health risks accompanying the close, person-to-person contact required to satisfy those requirements. Finally, the Court notes that large parts of the economy are conducted via electronic signatures, which can be linked to personal, secure identifiers and re-checked for errors or fraud.
In the context of the pandemic and the impact of the Stay-at-Home Orders on Plaintiffs’ ability to safely come into close contact with potential signers, the enforcement of the ink signature and witness requirements is not narrowly tailored to a compelling state interest as applied to Plaintiffs in these particular circumstances. Accordingly, the Court finds that Plaintiffs have established they are likely to succeed on the merits of their challenges to the ink signature requirements set forth in Article II § 1g and Ohio Revised Code § 3501.38(B) for constitutional amendments and Ohio Revised Code § 3501.38(B) for local initiatives, as well as the witness requirements in Article II § 1g for constitutional amendments and Ohio Revised Code § 3501.38(E) for local initiatives.
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ii. Numerical and Geographical Requirements and Deadlines The Court next turns to the numerical and geographical requirements in Article II § 1a and II § 1g and Ohio Revised Code § 731.28, and the deadlines for submission of signatures in Article II § 1a and Ohio Revised Code § 731.28. For the following reasons, the Court finds the numerical and geographical requirements survive strict scrutiny, but the deadlines cannot. Petitions for proposed local initiatives “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 of the office of governor in the municipal corporation.” Ohio Rev. Code § 731.28. In order to qualify local initiatives for the November 3, 2020 election, petitions must be filed with the city auditor or village clerk no later than approximately July 16, 2020. (Stip. Facts ¶ 13.) Defendants argue “Ohio and its citizens have important interests in keep unauthorized initiatives off the ballot itself that outweigh the burden to Plaintiffs.” (Opp. at 21, ECF No. 40.) They posit that the State’s “substantial interests” in simplifying the ballot, preventing voter confusion, and maintaining voter confidence in the government and electoral process justify the requirements challenged here. (Id. at 21-22.) Defendants contend that the numerical and geographic requirements are “supported by the regulatory interest of ‘making sure that an initiative has sufficient grass roots support to be placed on the ballot.’” (Id. at 22 (quoting Meyer, 486 U.S. at 425-26.).) The State contends that this interest is “substantial.” (Id.) This Court agrees that the State “has a strong interest in ensuring that proposals are not submitted for enactment into law unless they have sufficient support.” See Taxpayers United, 994 F.2d at 297 (6th Cir. 1993); Buckley, 525 U.S. at 205 (holding Colorado could “meet the State’s substantial interests in regulating the ballot-initiative process” and “ensure grass roots support” by
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“condition[ing] placement of an initiative proposal on the ballot on the proponent’s submission of valid signatures representing five percent of the total votes cast for Secretary of State at the previous general election.”).
The Supreme Court has held that “the State’s interest in preserving the integrity of the electoral process and in regulating the number of candidates on the ballot [is] compelling” and that “a state may require a preliminary showing of significant support before placing a candidate on the general election ballot.” Munro v. Socialist Workers Party, 479 U.S. 189, 195 (1986) (citing American Party of Texas v. White, 415 U.S. 767, 782 n. 14 (1974); Jenness v. Fortson, 403 U.S. 431 (1971)).
In the instant action, the State’s interest in requiring sufficient grassroots support for proposed local initiatives and constitutional amendments to be placed on the ballot is perhaps even more compelling than for candidates because of the nature of those measures. Ohioans have reserved for themselves this right to initiate legislation and propose constitutional amendments. The numerical signature requirements for those initiatives ensures that only those measures supported by a significant number of voters make it on the ballot for enactment, and prevents voter confusion, ballot overcrowding, or frivolous initiatives from earning spots on the ballot. The geographical requirement also ensures that the support is statewide, and not just from Ohio’s most populous counties.
Defendants assert that the deadlines for petitions to be submitted “advances the state’s interest in providing sufficient time for the Secretary of State to verify signatures, and for that verification to occur in an orderly and fair fashion.” (Id. at 24 (citing American Party of Texas v. White, 415 U.S. 767, 787, fn. 18 (1974).) While this Court agrees that ensuring the Secretary of State—and municipalities for local initiatives—have enough time to verify signatures without
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disrupting preparations for the upcoming election is important, the July 1 and July 16 deadlines here, respectively, are not narrowly tailored in light of Plaintiffs’ inability to safely circulate petitions in person beginning in mid-March and continuing to present day. See Esshaki, 2020 WL 1910154, at *7 (E.D. Mich. Apr. 20, 2020) (“The March 23, 2020 Stay-at-Home Order, for reasons already discussed, effectively halted signature-gathering by traditional means, reducing the available time prescribed by the Michigan Legislature to gather one thousand signatures by twentynine days.”). Plaintiffs had made significant efforts to qualify their initiatives for the November 3, 2020 general election ballot months before much of Ohio was shutdown due to the virus, prohibiting Plaintiffs from safely collecting signatures in person. Cf. Morgan v. White, Case No. 20-C-2189, slip op. (N.D. Ill. May 18, 2020) (Pallmeyer, C.J.) (concluding plaintiffs could not show Illinois’ Stay-at-Home Order caused the alleged burden on their ability to collect signatures in support of constitutional amendment rather than their own delay when the only party to begin circulation efforts started after the pandemic the week before filing suit and a month before deadline).
The Court comes to a different conclusion with respect to the numerical and geographical requirements, however. The most significant obstacle to Plaintiffs’ alleged ability to meet the numerical and geographic requirements in light of the COVID-19 pandemic and Stay-at-Home Orders is their inability to collect signatures in person and the prohibition on electronic signatures. Based on the above holdings with respect to the submission deadlines, signature requirements, and the witness requirements, the resulting burden imposed by the numerical and geographical requirements is not as severe.
This is consistent with the Esshaki court’s holding that Michigan did not show it had a compelling interest in enforcing “the specific numerical requirements . . . in the context of the
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pandemic conditions and the upcoming August primary.”) (emphasis in original). See 2020 WL 1910154, at *7 (E.D. Mich. Apr. 20, 2020). First, the Court emphasizes the compelling importance of the State’s interest in ensuring that initiatives to enact legislation or to amend Ohio’s constitution are submitted to Ohio’s voters only if they have sufficient grassroots support, not just a “modicum of support” as is true for the candidates. Second, the Esshaki court emphasized that the specific signature requirement was not narrowly tailored because it did not account for the plaintiffs’ inability to collect signatures in the twenty-nine days in between when Michigan’s Stay-at-Home Order went into effect and the statutory deadline. Id. at. *7. The court explained that “a state action narrowly tailored to accomplish the same compelling state interest would correspondingly reduce the signature requirement to account for the lost twenty-nine days.” Id.
In the case sub judice, the Court finds that reduction of the numerical and geographical requirements is not warranted given the compelling importance of ensuring the grassroots support for proposed initiatives (and that the support be statewide for constitutional amendments). Further, the Court’s decision with respect to other requirements impeding Plaintiffs’ ability to meet those requirements—the deadlines, the ink signature requirements, and the witness requirements—will have the effect of tailoring those requirements to the present circumstances. The Court therefore finds that Plaintiffs have established they are likely to succeed on the merits of their challenges to the deadlines for the submission of signatures in Article II § 1a and Ohio Revised Code § 731.28, but not with respect to the numerical and geographical requirements in Article II § 1a and II § 1g and Ohio Revised Code § 731.28. B. Irreparable Injury
Defendants contend that Plaintiffs suffer no injury because they can go into the public and gather signatures. Plaintiffs disagree, maintaining that their loss of constitutional rights satisfies
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the prong of the Rule 65 analysis. And, the OFRW Intervenors also argue that the “more than $1.5 million spent to qualify their proposal specifically for placement on the November 3, 2020 general election ballot—funds that would have all been expended ‘for naught’ if OFRW Intervenors cannot submit their proposal in 2020—does” constitute irreparable injury. Plaintiffs arguments are well taken.
While OFRW Intervenors are correct that “ordinarily, the payment of money is not considered irreparable,” when “expenditures cannot be recouped, the resulting loss may be irreparable.” (OFRW Reply at 17, ECF No. 42 (citing Philip Morris USA, Inc. v. Scott, 561 U.S. 1301, 1304 (2010)). The Court, however, need not make that determination here because “[w]hen constitutional rights are threatened or impaired, irreparable injury is presumed.” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012) (citing ACLU of Ky. v. McCreary County, Ky., 354 F.3d 438, 445 (6th Cir.2003)). “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373–74 (1976) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)). C. Substantial Harm to Others and Public Interest
The remaining factors, “harm to the opposing party and weighing the public interest . . . merge when the Government is the opposing party.” Nken v. Holder, 556 U.S. 418, 435 (2009). The State contends enjoining enforcement of Ohio’s signature requirements “will allow unfettered and automatic access to the general election ballot for innumerable petitions” and that as a result “Ohio’s ballot will be cluttered with proposed initiated statutes, ordinances and constitutional amendments that do not have so much as the minimum level of support otherwise required by law.” (Opp. at 27, ECF No. 40.) According Defendants, the “Plaintiffs urge this Court do what the Esshaki Court swiftly struck down just last week.” (Id. at 29.) Defendants further argue
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that Plaintiffs’ requested relief is not in the public interest because the requirements Plaintiffs seek to enjoin ensure ballot integrity and that “[i]mplementing a system that utilizes unwitnessed, anonymous signature gathering invites fraud.” (Opp. at 30, ECF No. 40.)
Plaintiffs respond that an injunction would be in the public’s interest, and that any harm to the State is outweighed by the burden on Plaintiffs and the public. This Court agrees. Plaintiffs have established a likelihood of success on the merits of their First Amendment claims with respect to some of Ohio’s signature requirements, and “[i]t is always in the public interest to prevent the violation of a party’s constitutional rights.” Libertarian Party of Ohio v. Husted, 751 F.3d 403, 412 (6th Cir. 2014) (quotation omitted). Conversely, it is not in the public’s interest to require Plaintiffs to go out into the public and risk their health and the public’s health to collect signatures in person from voters. See 2020 WL 1910154, at *9 (E.D. Mich. Apr. 20, 2020).
There is no evidence that electronic signatures would “likely inject fraud into Ohio’s petition process[.]” (Opp. at 2, ECF No. 40.) Moreover, Plaintiffs-Intervenors OFSE and OFRW have proposed a detailed system, developed and implemented at their own cost, for gathering, verifying, and submitting electronic signatures. OFRW states it has contracted with DocuSign, “the country’s leading company for execution of electronic signatures on legal documents.” (Leonard Decl. at ¶ 7, ECF No. 30-1.) They will establish a dedicated website that directs signers to a PDF of the petitions that closely mirrors paper versions and require the signer to provide the last 4 digits of their social security number to verify their identity. (Id. at ¶ 8.) The circulator will be the administrator of the on-line petition and will monitor the activity on the website, including for duplicate names and multiple uses of an IP address. (Id.) The Secretary of State will be provided the last 4 digits of the social security numbers to authenticate the identity of the signer. (Id.) According to OFSE Plaintiffs, “[t]he State would not itself need to implement the system; it would
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merely have to accept electronically-signed petitions instead of insisting on wet-ink, physicallywitnessed ones. The State already uses this method of verification when it registers voters electronically.” (OFSE Reply at 19, ECF No. 43.)
The Court also finds that any burden to Defendants will be outweighed by the burden on Plaintiffs and the public of attempting to comply with the signature requirements as enforced against them in these current circumstances. Libertarian Party of Illinois v. Pritzker, No. 20-CV2112, 2020 WL 1951687, at *4 (N.D. Ill. Apr. 23, 2020). There is no risk that “Ohio’s ballot will be cluttered” with unsupported initiatives because the numerical and geographical requirement will not be affected by the Court’s ruling. Additionally, this Court’s decision is limited to these Plaintiffs, in these particular circumstances, for the November 3, 2020 general election only. This order does not apply to other individuals or ballot issues not before this Court.
The balance of these factors therefore weighs in favor of an injunction. V.
Having found Plaintiffs are entitled to emergency injunctive relief, this Court is left to decide how to remedy these constitutional violations. “Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017). “In formulating the appropriate remedy, ‘a court need not grant the total relief sought by the applicant but may mold its decree to meet the exigencies of the particular case.’” Garbett v. Herbert, 2020 WL 2064101, *17 (D. Utah. Apr. 29, 2020) (quoting Int’l Refugee Assistance Project, 137 S. Ct. at 2087) (enjoining enforcement of some but not all requirements for candidate to qualify for ballot in light of COVID-19 pandemic).
38

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This Court is without power to modify the requirements set forth in the Ohio Revised Code for local initiatives as sought by the Thompson Plaintiffs in light of the Sixth Circuit’s decision in Esshaki, staying the district court’s “plenary re-writing of the State’s ballot-access provisions[.]” 2020 WL 2185553, at *2 (6th Cir. May 5, 2020). The Court will “instruct[] the State to select its own adjustments so as to reduce the burden on ballot access, narrow the restrictions to align with its interest, and thereby render the application of the ballot-access provisions constitutional under the circumstances.” Id.3 Defendants shall report their proposed adjustments to the enjoined requirements to the Court by 12:00 pm on Tuesday, May 26, 2020.
While the legislature may remedy the constitutional violations in the Ohio Revised Code, it is without power to amend the Ohio Constitution—all constitutional amendments must be approved by the people of Ohio. See Ohio Const. Art. II, § 1a. Neither Defendant LaRose nor the Ohio General Assembly can modify the requirements in the Ohio Constitution that this Court has found unconstitutionally burdens Plaintiffs’ First Amendment rights. Defendant LaRose affirmed his understanding of this in correspondence with OFSE Plaintiffs, where he stated he “is not free to modify or to refuse to enforce the explicit constitutional and statutory requirements for initiative petition signature gathering, even in the current crisis” and that “some of the requirements to which [OFSE Plaintiffs] are referring are in Ohio’s Constitution which the legislature cannot change on its own. (See ECF No. 15-1.)
3 The Court notes that after the Sixth Circuit’s decision in Esshaki, Michigan agreed to reduce its signature collection requirement by 50%, which is what the district court had previously ordered, extended the filing deadline, and allowed candidates to collect signature images and submit petition sheets electronically. See Elections, The Office of Secretary of State Jocelyn Benson (Updated May 8, 2020), https://www.michigan.gov/sos/0,4670,7-127-1633---,00.html.
39

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This Court, however, has the power to remedy those violations. See Goldman-Frankie v. Austin, 727 F.2d 603, 608 (6th Cir. 1984) (holding Michigan ballot access requirements, including provision of Michigan constitution, unconstitutional and affirming district court’s order placing independent candidate for state office on the ballot after Michigan failed to remedy violations).
The Court therefore orders Defendants to accept electronically-signed and witnessed petitions collected through the on-line signature collection plans proposed by OFRW Plaintiffs and OFSE Plaintiffs as set forth in their briefing and supporting documents and discussed above. (See Leonard Decl., ECF No. 30-1; OFSE Reply at 18-19, ECF No. 43.) The Court further orders the parties to meet and confer regarding any technical or security issues to OFSE and OFRW Plaintiffs’ on-line signature collection plan. The parties shall submit their findings to the Court by 12:00 pm on Tuesday, May 26, 2020.
VI. For the reasons set forth above, the Court GRANTS IN PART AND DENIES IN PART Plaintiffs’ Motions for a Preliminary Injunction. (ECF Nos. 4, 15, 17-2.). The Court hereby: • Enjoins enforcement of the ink signature requirement in Ohio Revised Code §
3501.38(B) and witness requirement in Ohio Revised Code § 3501.38(E) as applied to the Thompson Plaintiffs for the November 3, 2020 general election. • Enjoins enforcement of the deadline in Ohio Revised Code § 731.28 as to Thompson Plaintiffs for the November 3, 2020 general election. • Directs 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.” Esshaki, 2020 WL 2185553, at *2. • Enjoins enforcement of the ink signature and witness requirements in Article II § 1g and Ohio Revised Code § 3501.38(B) as applied to OFSE and OFRW Plaintiffs for the November 3, 2020 general election. • Enjoins enforcement of the deadlines in Article II § 1a of the Ohio Constitution as to OFSE and OFRW Plaintiffs for the November 3, 2020 general election.
40

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• Orders Defendants to accept electronically-signed and witnessed petitions from OFSE and OFRW Plaintiffs collected through the on-line signature collection plans set forth in their briefing and submitting documents.
• Orders Defendants to accept petitions from OFSE and OFRW Plaintiffs that are submitted to the Secretary of State by July 31, 2020.4
• Orders OFRW and OFSE Plaintiffs and Defendants to meet and confer regarding any technical or security issues to the on-line signature collection plans. The parties shall submit their findings to the Court by 12:00 pm on Tuesday, May 26, 2020.
IT IS SO ORDERED.

5/19/2020 DATE

s/Edmund A. Sargus, Jr. EDMUND A. SARGUS, JR. UNITED STATES DISTRICT JUDGE

4 The Court selected this date for OFSE and OFRW Plaintiffs’ submission of petitions in part to remedy the loss of time already incurred by Plaintiffs and because the Secretary of State is required to accept signatures until this date. Ohio Const. Art. II § 1g.
41

 
 Case: 20-3526 Document: 36-1 Filed: 05/26/2020 Page: 1

Deborah S. Hunt Clerk

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
100 EAST FIFTH STREET, ROOM 540 POTTER STEWART U.S. COURTHOUSE
CINCINNATI, OHIO 45202-3988

Tel. (513) 564-7000 www.ca6.uscourts.gov

Filed: May 26, 2020

Ms. Elizabeth Bonham ACLU of Ohio 4506 Chester Avenue Cleveland, OH 44103
Mr. Mark R. Brown Capital University Law School 303 E. Broad Street Columbus, OH 43215
Mr. David Joseph Carey American Civil Liberties Union of Ohio Foundation 1108 City Park Avenue Suite 203 Columbus, OH 43206
Mr. Stephen P. Carney Office of the Attorney General of Ohio 30 E. Broad Street 25th Floor Columbus, OH 43215
Mr. Derek S. Clinger McTigue & Colombo 545 E. Town Street Columbus Columbus, OH 43215
Mr. Benjamin Michael Flowers Office of the Attorney General 30 E. Broad Street 14th Floor Columbus, OH 43215

Case: 20-3526 Document: 36-1 Filed: 05/26/2020 Page: 2
Oliver B. Hall Center for Competitive Democracy P.O. Box 21090 2515 Cliffbourne Place, N.W. Washington, DC 20009
Mr. Michael Jason Hendershot Office of the Attorney General of Ohio 30 E. Broad Street 25th Floor Columbus, OH 43215
Mr. Shams Hanif Hirji Ohio Attorney General's Office Appeals Section 30 E. Broad Street 17th Floor Columbus, OH 43215
Mr. Dale Edwin Ho American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004
Freda Levenson ACLU of Ohio 4506 Chester Avenue Cleveland, OH 44103
Mr. Donald J. McTigue McTigue & Colombo 545 E. Town Street Columbus Columbus, OH 43215
Ms. Julie M. Pfeiffer Ohio Attorney General's Office 30 E. Broad Street 16th Floor Columbus, OH 43215
Ms. Anne M. Sferra Bricker & Eckler 100 S. Third Street Columbus, OH 43215

Case: 20-3526 Document: 36-1 Filed: 05/26/2020 Page: 3

Mr. Bryan Matthew Smeenk Bricker & Eckler 100 S. Third Street Columbus, OH 43215
Ms. Tiffany Alora Thomas American Civil Liberties Union 125 Broad Street 18th Floor New York, NY 10004
Re: Case No. 20-3526, Chad Thompson, et al v. Richard Dewine, et al Originating Case No. : 2:20-cv-02129
Dear Counsel,
The attached order designated for full-text publication was filed today in this case.
Yours very truly,
Deborah S. Hunt, Clerk

cc: Mr. Richard W. Nagel Enclosure

Cathryn Lovely, Opinions Deputy

Case: 20-3526 Document: 36-2 Filed: 05/26/2020 Page: 1

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,

│

Plaintiffs-Appellees, │ │

│

v.

>

│

│

RICHARD MICHAEL DEWINE, in his official 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 RAISING THE │

WAGE; ANTHONY CALDWELL; JAMES E. HAYES; DAVID │

G. LATANICK; PIERRETTE M. TALLEY,

│

Intervenors-Appellees.

│ ┘

No. 20-3526

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,

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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 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

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State’s electors and impose many requirements for ballot access. Relevant here, a petition to put an 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 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.
1The 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.)

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“[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 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 Anderson-Burdick framework.2 Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019);

2Defendants 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,

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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,’ 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.
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 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.

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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.
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.

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Unlike the Ohio orders, the Michigan executive orders in Esshaki did not specifically exempt First 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-at-home 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 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

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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 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. 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
3To 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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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.
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 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 harm will thus result if Ohio cannot conduct its
4Defendants 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.

Case: 20-3526 Document: 36-2 Filed: 05/26/2020 Page: 10

No. 20-3526

Thompson v. DeWine

Page 10

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 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 re-writing 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.

Case: 20-3526 Document: 36-2 Filed: 05/26/2020 Page: 11

No. 20-3526

Thompson v. DeWine

Page 11

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 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 infringing upon Plaintiffs’ First Amendment rights in this particular case.

Case: 20-3526 Document: 36-2 Filed: 05/26/2020 Page: 12

No. 20-3526

Thompson v. DeWine

Page 12

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

Deborah S. Hunt, Clerk

 
 In The Supreme Court of the United States
No. 19-A____
CHAD THOMPSON; WILLIAM T. SCHMITT; DON KEENEY,
Plaintiffs - Appellees - Applicants
v.
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 - Respondents
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, Proposed Intervenors - Appellees
OHIOANS FOR RAISING THE WAGE; ANTHONY CALDWELL; JAMES E. HAYES; DAVID G. LATANICK; PIERRETTE M. TALLEY,
Proposed Intervenors - Appellees
Application to the Honorable Sonia Sotomayor Associate Justice of the United States Circuit Justice for the Sixth Circuit

EMERGENCY APPLICATION TO VACATE STAY

Oliver B. Hall CENTER FOR COMPETITIVE DEMOCRACY P.O. Box 21090 Washington, D.C. 20009 (202) 248-9294 oliverhall@competitivedemocracy.org

Mark R. Brown 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu Counsel of Record Attorneys for Applicants

TABLE OF CONTENTS Page
Table of Authorities ...................................................................................................... ii Application to Vacate Stay ........................................................................................... 1 Introduction ................................................................................................................. 5 The COVID-19 Crisis ................................................................................................... 6 District Court's Preliminary Injunction .................................................................... 13 Sixth Circuit's Stay .................................................................................................... 15 Reasons to Vacate Stay ............................................................................................. 17 I. The Sixth Circuit was demonstrably wrong in its application of accepted standards in issuing the stay. .................................................................... 19 A. Applicants were precluded by Ohio law under threat of criminal punishment from gathering signatures. ................................................................... 19 B. The Sixth Circuit's interpretation of Anderson-Burdick and how it applies to the mechanics of signature collection for initiatives contradicts this Court's and every Circuit's precedents............................................. 25 C. The Sixth Circuit's "total exclusion" standard contradicts Anderson-Burdick and this Court's many other precedents. ................................... 29 D. Courts and officials across the country recognize that petitioning cannot safely proceed during the COVID-19 pandemic. ........................................... 33 II. Applicants will suffer irreparable injury. ............................................................ 36 III. Respondents will suffer no significant harm. ..................................................... 36 Conclusion ................................................................................................................... 37 Certificate of Service ................................................................................................... 38 Attachments (8) in Appendix
i

TABLE OF AUTHORITIES

Cases

Page

Alaska Libertarian Party v. Fenumiai, No. 3:20-cv-127 (D. Ak., June 3, 2020) ...... 34

Alridge v. Louisiana, No. 18-8748, 2020 WL 1978920 (U.S., Apr. 27, 2020) ............. 4

Anderson v. Celebrezze, 460 U.S. 780 (1983) ..................................................... 14, 32

Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012) ....................................................... 29

Biddulph v. Morham, 89 F.3d 1491 (11th Cir. 1996) ................................................ 29

Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987) ........ 25

Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) ..................................................................................................... 13

Buckley v. American Constitutional Law Found., 525 U.S. 182 (1999) ............ 22, 26

Burdick v. Takushi, 504 U.S. 428 (1992) .................................................................. 14

Cowen v. Ga. Sec'y of State, 2020 WL 2896354 (11th Cir., June 3, 2020) ............... 32

Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008) ................................... 32

Dennis v. Secretary of the Commonwealth, Mass. Case No. SJ-2020-278 ............... 33

Elrod v. Burns, 427 U.S. 347 (1976) ........................................................................... 35

Esshaki v. Whitmer, __ Fed. App'x __, 2020 WL 2185553 (6th Cir., May 5, 2020) ................................................................. 14, 16, 28, 29, 31, 32

Fair Maps Nevada v. Cegavske, 2020 WL 2798018 (D. Nev., May 29, 2020) .......... 35

Frank v. Walker, 574 U.S. 929 (2014) .......................................................................... 1

Goldstein v. Sec’y of Commonwealth, No. SJC-12931, 2020 WL 1903931 (Mass. Apr. 17, 2020) .................................................................................................. 33

Gottlieb v. Lamont, 3:20-cv-0623 (D. Conn., June 8, 2020) ) .................................... 34

Grayned v. City of Rockford, 408 U.S. 104 (1972) ..................................................... 24

Green Party of Tennessee v. Hargett, 791 F.3d 684 (6th Cir. 2015) ........................ 33

Hawkins v. DeWine, No. 2:20-cv-2781 (S.D. Ohio, June 9, 2020) .......................... 33

ii

Hilton v. Braunskill, 481 U.S. 770 (1987) ................................................................. 17 Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) ..................................................................................................... 13 Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) ....... 28 Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687 (N.D. Ill., Apr. 23, 2020) ............................................................................................ 33 Libertarian Party of New Hampshire v. Sununu, No. 1:20-cv-688 (D.N.H., June 8, 2020) ........................................................................................................................... 34 Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006) ..................... 33 Libertarian Party of Pennsylvania v. Wolf, No. 2:20-cv-2299 (E.D. Pa., May 14, 2020) ............................................................................................................................ 34 Marijuana Policy Project v. United States, 304 F.3d 82 (D.C. Cir. 2002) ................ 29 Maryland Green Party v. Hogan, 1:20-cv-1253 (D. Md., May 19, 2020) .................. 34 McCullen v. Coakley, 573 U.S. 464 (2014) ........................................................... 26, 29 McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995) ................................ 30 Meyer v. Grant, 486 U.S. 414 (1988) ......................................................................... 26 Miller v. Thurston, 2020 WL 2617312 (W.D. Ark., May 25, 2020) ..................... 34, 35 Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018) ................................. 21 Morse v. Republican Party, 517 U.S. 186 (1996) ....................................................... 22 Nken v. Holder, 556 U.S. 418 (2009) ......................................................................... 17 Norman v. Reed, 502 U.S. 279 (1992) ........................................................................ 31 Omari Faulkner for Virginia v. Va. Dep't. of Elections, CL 20-1456 (Va. Cir. Ct. Mar. 25, 2020) ....................................................................................... 33 Planned Parenthood of Greater Texas Surgical Health Services v. Abbott, 571 U.S. 1061 (2013) .................................................................................................. 17 Ramsek v. Beshear, No. 20-5542, slip op., at 5 (6th Cir., May 23, 2020) ................ 21
iii

Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) .................................................................................................... 23 Rubin v. City of Santa Monica, 823 F. Supp. 709 (C.D. Cal. 1993) .................... 24, 25 SawariMedia LLC v. Whitmer, 2020 WL 3097266 (E.D. Mich., June 11, 2020) .... 34 Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019), cert. denied, No. 19-974 (U.S., May 26, 2020) ............................................................................................... 4, 25 Smith v. Goguen, 415 U.S. 566 (1974) ...................................................................... 21 South Bay United Pentecostal Church v. Gavin, 590 U.S. __, No. 19A1044 (May 29, 2020) ..............................................................................passim State ex rel. Harris v. Rubino, 155 Ohio St.3d 123, 127, 119 N.E.3d 1238, 1243 (2018) ............................................................................................................................. 4 Stone v. Board of Elections, 750 F.3d 678 (7th Cir. 2014) ........................................ 32 Storer v. Brown, 415 U.S. 724 (1974) ......................................................................... 32 Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291 (6th Cir. 1993) ....................................................................................... 26 Veasy v. Abbott, 136 S. Ct. 1823 (2016) ....................................................................... 4 Warren v. Colorado Secretary of State Jena Griswold, Denver County (Colo.) Dist. Ct. No. 20CV31077 (Apr. 21, 2020) ............................ 33 Western Airlines, Inc. v. International Board of Teamsters, 480 U.S. 1301 (1987) ................................................................................................... 17 Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005) .................................................. 29 Young v. American Mini Theatres, 427 U.S. 50 (1976) ............................................. 13
Statutes Federal 28 U.S.C. § 1254(1) ..................................................................................................... 17 28 U.S.C. § 1651 .......................................................................................................... 17
iv

State O.R.C. § 731.28 .............................................................................................................. 5 O.R.C. § 731.32 .............................................................................................................. 5 O.R.C. § 3501.38(B) ....................................................................................................... 5 O.R.C. § 3501.38(E) ....................................................................................................... 6
Rules S. Ct. Rule 21 ................................................................................................................. 1 S. Ct. Rule 22 ................................................................................................................. 1 S. Ct. Rule 23.3 .............................................................................................................. 2
Executive Rules and Orders Connecticut Ex. Order No. 7LL, May 11, 2020 ......................................................... 34 Director's Stay at Home Order, March 22, 2020. ...................................................... 12 Director's Order: In re: Amended Order to Limit and/or Prohibit Mass Gatherings in Ohio .............................................................................................. 8 Director's Order: In re: Closure of Polling Locations in the State of Ohio on Tuesday, March 17, 2020 ......................................................................................... 7 Director's Order: In re: Order to Limit and/or Prohibit Mass Gatherings in Ohio .... 7 Director's Stay at Home Order: Re: Director's Order that All Persons Stay at Home Unless Engaged in Essential Work or Activity ........................................................... 8 Executive Order 2020-01D .......................................................................................... 6 Fla. Emergency R. 1SER20-2 (Apr. 2, 2020) .............................................................. 34 N.J. Exec. Order Nos. 105, 120 (Mar. 19, 2020, Apr. 8, 2020) ................................. 34 Ohio Department of Health, Director's Order ............................................................ 11
v

Ohio Department of Health, Director's Stay Safe Ohio Order ................................. 10
Ohio Department of Health, Coronavirus (COVID-19): Continued Business Closures, May 2, 2020 ........................................................................................... 10, 11
Utah Exec. Order No. 2020-8 (Mar. 26, 2020) .......................................................... 34
Miscellaneous Jim Camden, Candidates who are broke will get a break when filing to get names on the ballot, Spokesman Review, May 6, 2020 ........................................................ 34 Colorado State Court Approve Electronic Signatures for Initiatives, Ballot Access News, May 29, 2020 .............................................................................................. 34, 35
Ian Cross, Gov. DeWine clarifies enforcement, reporting of stay-at-home order violations, News5Cleveland.com, March 23, 2020 ...................................................... 9 DeWine warns ‘risk is up’ as Ohio continues reopening process: 'This is a high-risk operation', 10tv.com, May 8, 2020 .............................................. 10 Mark Ferenchik, Coronavirus: What's closed, canceled in Columbus area, COLUMBUS DISPATCH, March 12, 2020 .................................................................... 6, 7
Richard L. Hasen, Direct Democracy Denied: The Right to Initiative in a Pandemic, 2020 U. CHIC. L. REV. ONLINE 1, 6 (May 27, 2020) ..................... 18, 19, 27, 28, 29, 34
Shawn Lanier, Arnold Sports Festival cancels convention due to coronavirus, will allow athletes to compete, NBCI.COM, March 3, 2020 ................................................. 6
Justin Levitt, The list of COVID-19 election cases, ElectionLawBlog, June 11, 2020 ................................................................................. 2
Randy Ludlow, Coronavirus in Ohio: Gov. Mike DeWine warns virus remains 'a dangerous risk' even as state reopens, Columbus Dispatch, May 12, 2020 ............. 11 Laura Mazade, What does the stay-at-home order mean for Ohio, Cincinnati Enquirer, March 22, 2020 ............................................................................................. 9
News Release: Governor DeWine Announces School Closures ................................... 7
Ohio State Suspends Classes Until March 30 Due to Coronavirus Outbreak, THE LANTERN, March 9, 2020 ................................................................................................. 7
vi

Press Release: CDC Confirms Person-to-Person Spread of New Coronavirus in the United States ................................................................................................................. 6 Jonathan D. Salant, No knocking on doors. Murphy orders political petition signatures be collected electronically, NJ.COM, April 29, 2020 ................................ 35
vii

Application to Vacate Stay Pursuant to Supreme Court Rules 21 and 22, Applicants respectfully request that Justice Sotomayor, Circuit Justice for the Sixth Circuit, vacate the United States Court of Appeals for the Sixth Circuit's stay, entered on May 26, 2020, (hereinafter “Sixth Circuit Order”) (Attachment 1), of the United States District Court for the Southern District of Ohio's preliminary injunction (hereinafter "District Court Order") (Attachment 2), entered on May 19, 2020. See Frank v. Walker, 574 U.S. 929 (2014) (vacating stay). The Sixth Circuit, see Sixth Circuit Order at 12, stayed a preliminary injunction entered by the District Court enjoining Ohio authorities from enforcing their in-person, "wet," witnessed signature collection requirements and July 16, 2020 deadline as applied to the November 3, 2020 general election. See District Court Order at 40. The District Court, like numerous Courts, Governors, and elections officials across the country, had concluded that in-person signature collection was rendered factually impossible and legally questionable by the COVID-19 pandemic and Ohio's mandatory shelter orders that were implemented on March 22, 2020. See District Court Order at 33-34. The Sixth Circuit’s Order staying the District Court’s injunction pending appeal is published and reported at 959 F.3d 804 (6th Cir. 2020). As explained in more detail below, it likely spells the death knell for Applicants'
1

efforts to collect enough signatures by the July 16, 2020 deadline in most cities in Ohio. Applicants have lost too much time, and future in-person efforts are still compromised by Ohio's ban on gatherings and distancing requirements. Moreover, serving as a potential precedent in the approximately 116 COVID-19 cases pending across 35 States, see Justin Levitt, The list of COVID-19 election cases, ElectionLawBlog, June 11, 2020,1 the Sixth Circuit's reasoning threatens to disenfranchise thousands of Americans who support democracy through alternative candidates and popular initiatives. Many of both will be left off ballots without relief from the effects of COVID-19.
The relief being sought here was also sought from the Sixth Circuit Panel that rendered the stay and the Sixth Circuit En Banc. See Supreme Court Rule 23.3. Applicants on the very day (May 26, 2020) the Sixth Circuit announced its stay petitioned the Sixth Circuit for Rehearing En Banc, see Attachment 3, and at the same time moved the En Banc Court to vacate the stay. See Attachment 4.
Applicants' May 26, 2020 request for En Banc review supplemented Respondents' own prior request on May 21, 2020 that the Sixth Circuit address the case initially En Banc. The Sixth Circuit on that day, May 21, 2020, ordered a Response to the initial En Banc petition by May 28, 2020.
1 https://electionlawblog.org/?p=111962. 2

On May 30, 2020, just hours after this Court handed down its decision in South Bay United Pentecostal Church v. Gavin, 590 U.S. __, No. 19A1044 (May 29, 2020) (Attachment 8), Applicants notified the En Banc Sixth Circuit of that decision and separately moved the original Panel to reconsider its stay based on that intervening case. See Attachment 5. Three weeks after Applicants requested the En Banc Court to vacate the stay, and more than two weeks after South Bay Pentecostal Church was decided, the Sixth Circuit on June 16, 2020 refused to vacate its stay and denied En Banc review. See Attachment 9.
Because of the Panel's stay and the En Banc Court's refusal to intervene and vacate the stay, Applicants' First Amendment rights remain on hold. Ohio's July 16, 2020 deadline closely approaches, Applicants cannot safely collect in-person, "wet" signatures, Ohio's shelter orders continue to require physical separation until at least July 1, 2020, and irreparable harm compounds with each passing day.
As explained below, in addition to vacating the Sixth Circuit's stay based on the traditional principles discussed below, see infra, the Sixth Circuit's stay should be vacated because it contradicts this Court's decision in South Bay United Pentecostal Church, 590 U.S. __. The principal reason supporting its stay -- a reason the Panel deemed "vitally important" -- was that Applicants were always free (the Sixth Circuit erroneously claimed) under the First Amendment, even during the height of the COVID-19 crisis,
3

to ignore Ohio's content-neutral shelter restrictions and go door-to-door circulating their petitions. This was the key to the Sixth Circuit's holding. Because it cannot be squared with this Court's decision in South Bay United Pentecostal Church, 590 U.S. __ (May 29, 2020), which ruled that Americans do not have protected First Amendment rights during times of crisis to ignore content-neutral shelter-in-place restrictions, the Panel's stay should be reconsidered.
Applicants therefore request that this Court either vacate the Sixth Circuit's stay under traditional principles, alternatively vacate and remand the matter for further consideration in light of South Bay United Pentecostal Church, see, e.g., Alridge v. Louisiana, No. 18-8748, 2020 WL 1978920 (U.S., Apr. 27, 2020), or take any additional action the Court deems appropriate to provide relief to Applicants and a timely resolution to this case. See, e.g., Veasy v. Abbott, 136 S. Ct. 1823 (2016) (stating that "[t]he Court recognizes the time constraints the parties confront in light of the scheduled elections in November").
4

Introduction Applicants are residents of Ohio who regularly circulate marijuana decriminalization initiative petitions throughout Ohio in order to amend municipal codes. See Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019), cert. denied, No. 19-974 (U.S., May 26, 2020). Because of prior litigation in Schmitt, Ohio elections officials recognize that Applicants' petitions are proper subjects and Applicants have continued their efforts. Before the onset of COVID-19 crisis in Ohio, Applicants on or about February 27, 2020 timely filed proposed initiatives with several cities in Ohio in order to collect signatures to support placing their initiatives on Ohio's November 3, 2020 general election ballot. Under Ohio law, the initial filings of these initiatives were required to "start the clock" in these cities and allow circulators to begin collecting the needed signatures. See O.R.C. § 731.32. The needed numbers vary with the size of the City or Village, see O.R.C. § 731.28, and can be dozens, hundreds or thousands (as in Akron, for instance, where Applicants are circulating petitions). They are due by July 16, 2020. See State ex rel. Harris v. Rubino, 155 Ohio St.3d 123, 127, 119 N.E.3d 1238, 1243 (2018). Section 3501.38(B) of the Ohio Revised Code provides that "[s]ignatures shall be affixed in ink" and must be original, meaning that collection efforts must produce "wet" signatures. Section 3501.38(E) of the Ohio Revised Code adds that circulators must personally witness the
5

signatures collected. The combination of these laws establishes that collection must be in-person and close enough to facilitate witnessing. Nothing in the record suggests it can be accomplished from a distance of six feet.
The COVID-19 Crisis COVID-19 erupted across the globe in January 2020. The World Health Organization (WHO) on January 30, 2020 declared a Public Health Emergency of International Concern. On January 31, 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. See Press Release: CDC Confirms Person-toPerson Spread of New Coronavirus in the United States.2 Ohio's Governor acted quickly. On March 3, 2020, he closed the Arnold Sports Festival, a large gathering of athletes and spectators in downtown Columbus that was fertile ground for signature collection. See Shawn Lanier, Arnold Sports Festival cancels convention due to coronavirus, will allow athletes to compete, NBCI.COM, March 3, 2020.3 On March 9, 2020 declared a state of emergency in Ohio. See Executive Order 2020-01D.4 Parades and public events were canceled throughout Ohio, including the Mid-American
2 https://www.cdc.gov/media/releases/2020/p0130-coronavirus-spread.html. 3 https://www.nbc4i.com/news/local-news/dewine-ginther-set-pressconference-on-arnold-classic/. 4 https://governor.ohio.gov/wps/portal/gov/governor/media/executiveorders/executive-order-2020-01-d.
6

Conference Men's and Women's Basketball tournament in Cleveland, Ohio, the Columbus International Auto Show in Columbus, Ohio, and St. Patrick's Day parades throughout the State. See generally Mark Ferenchik, Coronavirus: What's closed, canceled in Columbus area, COLUMBUS DISPATCH, March 12, 2020.5 All of these large, well-attended gatherings were prime signature-collection ground.
Beginning with Ohio State University on or about March 9, 2020, see Ohio State Suspends Classes Until March 30 Due to Coronavirus Outbreak, THE LANTERN, March 9, 2020,6 colleges and universities throughout Ohio began closing their physical facilities. They would remain closed for the rest of the semester, a fact that further hampered signature collection efforts.
On March 12, 2020, Respondents extended their closure orders throughout Ohio to private and public schools (grades K through 12). See News Release: Governor DeWine Announces School Closures.7 They also banned, with limited exceptions, all gatherings of 100 or more persons. See Director's Order: In re: Order to Limit and/or Prohibit Mass Gatherings in
5 https://www.dispatch.com/news/20200312/coronavirus-whats-closedcanceled-in-columbus-area. 6 https://www.thelantern.com/2020/03/ohio-state-suspends-classes-untilmarch-30-due-to-coronavirus-outbreak/. 7 https://governor.ohio.gov/wps/portal/gov/governor/media/news-andmedia/announces-school-closures.
7

Ohio.8 On March 17, 2020, Respondents extended their ban on gatherings to
include those with 50 or more persons, and also banned most recreational
activities in Ohio. See Director's Order: In re: Amended Order to Limit and/or
Prohibit Mass Gatherings in Ohio.9
On March 16, 2020, Respondents canceled Ohio's primary elections
scheduled for the following morning. See Director's Order: In re: Closure of
Polling Locations in the State of Ohio on Tuesday, March 17, 2020.10 This
cancellation was particularly devastating to Applicants, since experience has
taught them that local polling places present the best single opportunity for
the collection of signatures needed for local ballots.
On March 22, 2020, Respondents' most sweeping order was issued,
directing everyone in Ohio to "stay at home or at their place of residence"
8 https://coronavirus.ohio.gov/wps/wcm/connect/gov/b815ab52-a571-4e65907732468779671a/ODH+Order+to+Limit+and+Prohibit+Mass+Gatherings%2C+ 3.12.20.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORK SPACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-b815ab52-a571-4e659077-32468779671a-n6IAHNT.
9 https://coronavirus.ohio.gov/wps/wcm/connect/gov/dd504af3-ae2c-4d2e-b2bd02c1a3beed89/Director%27s+Order+Amended+Mass+Gathering+3.17.20+%281%29.pdf?MOD=AJPERES&CON VERT_TO=url&CACHEID=ROOTWORKSPACE.Z18_M1HGGIK0N0JO00Q O9DDDDM3000-dd504af3-ae2c-4d2e-b2bd-02c1a3beed89-n5829IL.
10 https://coronavirus.ohio.gov/wps/wcm/connect/gov/7c8309f8-9f28-47939198-05968d01a640/Order+to+Close+Polling+locations+3-162020.pdf?MOD=AJPERES&CONVERT_TO=url&CACHEID=ROOTWORKSP ACE.Z18_M1HGGIK0N0JO00QO9DDDDM3000-7c8309f8-9f28-4793-919805968d01a640-n5829UP.
8

unless subject to a specific, stated exception, maintain at least a six foot social distance between themselves and others outside "a single household or living unit," and avoid altogether gatherings of ten or more people. See Director's Stay at Home Order: Re: Director's Order that All Persons Stay at Home Unless Engaged in Essential Work or Activity.11
These orders were mandatory and came with criminal penalties. Governor DeWine repeatedly emphasized that they were a "'matter of life and death.'" Ian Cross, Gov. DeWine clarifies enforcement, reporting of stay-athome order violations, News5Cleveland.com, March 23, 2020.12 The Governor encouraged Ohioans to report violations, id., and stated that he and local authorities were prepared to prosecute. See Laura Mazade, What does the stay-at-home order mean for Ohio, Cincinnati Enquirer, March 22, 2020.13 None of Ohio's orders at this point said anything about circulators being able to go into public, approach others, and in any other way collect signatures inperson. Circulators, like everyone else, understood that Ohio law precluded that action.
11 https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf. 12 https://www.news5cleveland.com/news/continuingcoverage/coronavirus/gov-dewine-clarifies-enforcement-reporting-of-stay-athome-order-violations. 13 https://www.cincinnati.com/story/news/2020/03/22/coronavirus-ohio-stayhome-order/2895154001/.
9

Faced with no certain end to the shelter orders, over six weeks' worth of lost time and the need to collect dozens, hundreds, and thousands of signatures by July 16, 2020, Applicants filed this action on April 27, 2020 in an effort to force Respondents to relax their strict enforcement of Ohio's inperson signature collection laws. Applicants did not challenge Ohio's emergency orders -- indeed, Applicants had always complied and wanted to continue to comply for their and others' safety. Applicants instead sought to have Respondents relax their ballot access requirements to allow remotely collected signatures, to reduce the numbers required, or to provide additional time to compensate for Applicants' lost six-plus weeks.
On April 30, 2020, three days after this case was filed, Ohio responded with a new order stating that circulation of initiatives was permitted. That same order, however, also extended Ohio's prior shelter restrictions for many businesses, most public places and virtually all gatherings until at least May 29, 2020. See Ohio Department of Health, Director's Stay Safe Ohio Order.14 In his announcement of this order on May 8, 2020, Governor DeWine continued to emphasize that Ohioans needed to maintain compliance with his orders, especially physical distancing. DeWine warns ‘risk is up’ as Ohio
14 https://coronavirus.ohio.gov/static/publicorders/Directors-Stay-Safe-OhioOrder.pdf.
10

continues reopening process: 'This is a high-risk operation', 10tv.com, May 8, 2020 (emphasis added).15
Public and private places, such as primary/secondary schools and businesses, remained closed. Ohio Department of Health, Coronavirus (COVID-19): Continued Business Closures, May 2, 2020.16 "Parades, fairs, festivals, and carnivals" remained on the list of prohibited activities, id., as did gatherings at "Country clubs and social clubs." Id. See Randy Ludlow, Coronavirus in Ohio: Gov. Mike DeWine warns virus remains 'a dangerous risk' even as state reopens, Columbus Dispatch, May 12, 2020.17
On May 29, 2020, Respondents extended their April 30, 2020 closure/shelter orders until July 1, 2020. See Ohio Department of Health, Director's Order.18 Contrary to the Sixth Circuit's factually unsupported claim that Ohio was opening up after May 20, 2020, see Sixth Circuit Order at 7, schools remained closed and mass gatherings, including those for "parades, fairs, festivals, and carnivals," and those at "auditoriums, stadiums and arenas," remained prohibited. Further, the May 29, 2020 order extending
15 https://www.10tv.com/article/dewine-warns-risk-ohio-continues-reopeningprocess-high-risk-operation-2020-may. 16 https://coronavirus.ohio.gov/wps/portal/gov/covid-19/responsible-restartohio/Continued-Business-Closures/. 17 https://www.dispatch.com/news/20200512/coronavirus-in-ohio-gov-mikedewine-warns-virus-remains-rsquoa-dangerous-riskrsquo-even-as-statereopens. 18 https://coronavirus.ohio.gov/static/publicorders/revised-business-guidancesd.pdf.
11

the shut-down until at least July 1, 2020 continued to require physical distancing.
The April 30, 2020 order's new exception for "petition or referendum circulators" was an obvious litigation tactic designed to moot Applicants' case. It could not, however, give them back their lost six-plus weeks. Further, in addition to ignoring the six-plus weeks of circulation time Applicants had already lost because of Ohio's orders and the COVID-19 crisis, the April 30 order offered only an exception to Ohio's general ban on public "gatherings." It said nothing about Ohio's additional physical separation requirements and its bans on gatherings. Thus, even though circulators are now free to venture out without risk of criminal prosecution, they are still required to maintain a six foot separation and will find few lawful public gatherings. This means they will have to go door-to-door, a recipe for infectious disaster.
Before the April 30, 2020 order, Ohio had no circulator exception. It had included in its March 22, 2020 closure/shelter order exceptions for several places and activities, like "essential businesses," "funerals," "medical" personnel, etcetera, but said nothing about circulators. Respondents also had tucked into the middle of these many bold-lettered exceptions listed from "a" to "y" one for "g. First Amendment protected speech." See Director's Stay at Home Order, March 22, 2020.19 Unlike all of the other bold-lettered exceptions, however, this exception included no description or definitions of
19 https://coronavirus.ohio.gov/static/DirectorsOrderStayAtHome.pdf.
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any sort. It was absolutely blank. Respondents would later claim after this litigation commenced that this First Amendment "protected" speech exception made clear that Applicants could have circulated even before April 30. The Sixth Circuit agreed, observing that this was "vitally important." Sixth Circuit Order at 7.
No one in Ohio before April 30, including Respondents, understood Respondents' "protected" First Amendment speech exception to mean that all arguably "protected" First Amendment places could remain open. No one understood the exception to mean that arguably protected activities could proceed. Political conventions, parades, fairs, festivals, social clubs, movie theatres, book stores, schools, etcetera, all of which are "protected" to one extent or another by the First Amendment, see, e.g., Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557 (1995) (parades); Young v. American Mini Theatres, 427 U.S. 50 (1976) (theatres); Board of Directors of Rotary International v. Rotary Club of Duarte, 481 U.S. 537 (1987) (social clubs), remained prohibited and closed. Likewise, petition circulation in Ohio completely ceased.
District Court's Preliminary Injunction The District Court on May 19, 2020 after full briefing, the filing of stipulated facts, and Respondents' decision to forego an evidentiary hearing, entered a preliminary injunction in Plaintiffs' favor (1) prohibiting enforcement of Ohio's in-person, "wet," witnessed signature collection
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requirements, (2) prohibiting enforcement of Ohio's July 16, 2020 deadline for the submission of signatures, and (3) "[d]irect[ing] 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.'” District Court Order at 40 (citation omitted).
In support of the preliminary injunction, the District Court concluded that Ohio's purported exception for "First Amendment protected speech" was irrelevant: "the state action challenged here is 'Ohio’s strict enforcement of its ballot access provisions – in the face of this pandemic' and not the State’s Orders." Id. at 18 (citation omitted). "The issue before this Court," it explained, is "whether strict enforcement of Ohio’s signature requirements, combined with the COVID-19 pandemic and effect of the Stay-at-Home Orders, unconstitutionally burden Plaintiffs’ First Amendment rights as applied here." Id. at 18-19. Applying Anderson-Burdick balancing, see Anderson v. Celebrezze, 460 U.S. 780 (1983), Burdick v. Takushi, 504 U.S. 428 (1992), the District Court concluded, "[a]s did the [Sixth Circuit just three weeks before in Esshaki v. Whitmer, __ Fed. App'x __, 2020 WL 2185553 (6th Cir., May 5, 2020), discussed infra] … that in these unique historical circumstances of a global pandemic and the impact of Ohio’s Stayat-Home Orders, the State’s strict enforcement of the signature requirements for local initiatives and constitutional amendments severely burden Plaintiffs’ First Amendment rights as applied here." Id. at 25 (italics original
14

and citation omitted). Weighing the remaining factors and the equities involved, the District Court ruled that limited relief in the form of a prohibitive injunction was necessary, id. at 38, and directed Respondents to propose "adjustments." Id. at 40. The District Court also denied Respondents' motion to stay the injunction pending appeal. See Attachment 6.
Sixth Circuit's Stay A panel of the Sixth Circuit, Sutton, McKeague & Nalbandian, JJ., on May 26, 2020 (just minutes before Respondents' as-yet-to-be-filed report on its adjustments was due in the District Court) vacated the District Court's preliminary injunction in a published per curiam opinion. Key to the panel's decision were Ohio's post-litigation circulator exception created on April 30, 2020 and its pre-litigation exception for "First Amendment protected speech" issued on March 22, 2020. The panel found these "vitally important" to its conclusion that Applicants were not totally excluded from placing initiatives on ballots, and thus were not severely burdened. Sixth Circuit Order at 7. Because of Ohio's "First Amendment protected speech" exception, the Sixth Circuit stated, it was not the combination of the pandemic and Ohio's strict in-person signature collection requirement that caused any injury, it was circulators' own fault: "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." Id. at 8. It explained: "Ohio
15

specifically exempted conduct protected by the First Amendment from its stay-at-home orders." Id. at 6 (citation omitted). "And in its April 30 order, the State declared that its stay-at-home restrictions did not apply to 'petition or referendum circulators[.]'” Id. (citation omitted). "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." Id.
The Panel minimized the impact of the COVID-19 crisis: "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." Id. at 8-9. Without evidentiary support, it offered circulators advice on how they could have collected their signatures:
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. Id. The Panel further concluded, in violation of a wealth of precedent from this Court and the Supreme Court, that the District Court exceeded its authority by attempting to fashion relief -- even though the District Court did not order any affirmative relief at all for Plaintiffs: “federal courts have no authority to dictate to the States precisely how they should conduct their elections.” Id. at 10 (citing Esshaki, 2020 WL 218553 at *2).
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Reasons to Vacate Stay
This Court has jurisdiction under 28 U.S.C. § 1254(1) and the All Writs
Act, 28 U.S.C. § 1651.
[A] Circuit Justice has jurisdiction to vacate a stay where it appears that the rights of the parties to a case pending in the court of appeals, which case could and very likely would be reviewed here upon final disposition in the court of appeals, may be seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion that the court of appeals is demonstrably wrong in its application of accepted standards in deciding the issue of the stay.
Western Airlines, Inc. v. International Board of Teamsters, 480 U.S. 1301,
1305 (1987) (O'Connor, J., in chambers) (citation omitted). See also Planned
Parenthood of Greater Texas Surgical Health Services v. Abbott, 571 U.S.
1061 (2013) (Scalia, J., concurring).
When deciding whether to issue the stay in the first instance, the Sixth
Circuit was required to balance
(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.
Hilton v. Braunskill, 481 U.S. 770, 776 (1987). The "most critical" factors are
the applicant's (Respondents') likelihood of success and the irreparable harm
they risk. See Nken v. Holder, 556 U.S. 418, 434 (2009). Here, the Sixth
Circuit's stay under these two "most critical" factors is demonstrably
incorrect. First, Respondents risk no irreparable harm whatsoever. All
Applicants seek is relaxation of the in-person requirement and more time.
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Far from experiencing harm, forcing circulators to go door-to-door risks inflicting irreparable harm on Applicants and people across Ohio.
Second, the Sixth Circuit's stay was premised on erroneous legal conclusions. In particular, as made clear by the Chief Justice in this Court's recent ruling in South Bay United Pentecostal Church, 590 U.S. __, at 2, denying an emergency injunction to a church that claimed that California's COVID-19 restrictions "limit[ing] attendance at places of worship to 25% of building capacity or a maximum of 100 attendees" violated its First Amendment rights, "[t]he precise question of when restrictions on particular social activities should be lifted during the pandemic is a dynamic and factintensive matter subject to reasonable disagreement." Id. at 2. "The notion that it is 'indisputably clear' that the Government’s limitations are unconstitutional seems quite improbable." Id. at 3.
Likewise here. The Sixth Circuit's conclusion that Applicants had an "indisputably clear" First Amendment right to circulate in the face of a content-neutral emergency shelter order is "quite improbable." At bare minimum, Applicants could not have reasonably known they possessed such a powerful, overriding First Amendment right. Ohio's and the Sixth Circuit's after-the-fact conclusion that they should have known is not only wrong because one cannot know of a right they do not possess, it is wrong because it assumes that the average American knows more than federal judges about the complexities of the First Amendment.
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Additionally, as explained below, the Sixth Circuit both erroneously ruled that federal courts cannot affirmatively redress First Amendment violations in the context of elections, and ruled that this limitation somehow applied to the District Court's prohibitive orders in Applicants' favor directed at Respondents -- none of which were affirmative.
The Sixth Circuit's stay is riddled with momentous legal mistakes and unsupported factual conclusions. As one noted election law expert has observed, the Panel's holding is "deeply problematic," Richard L. Hasen, Direct Democracy Denied: The Right to Initiative in a Pandemic, 2020 U. CHIC. L. REV. ONLINE 1, 6 (May 27, 2020) (Attachment 7) (cited with permission),20 "very dismissive of the rights of direct democracy," id. at 2, and "portends bad things to come." Id. (footnote omitted). I. The Sixth Circuit Was demonstrably wrong in its application of
accepted standards in issuing the stay. A. Applicants were precluded by Ohio law under threat of criminal punishment from gathering signatures. It is undisputed that Ohio imposed justified, highly restrictive orders beginning no later than March 22, 2020 and extending until at least May 29, 2020. People have been and remain limited in where they can go and what they can do. Ohio's physical separation requirement remains in place to this day, and gatherings remain strictly limited. Criminal penalties remain in place. Applicants remained model citizens and duly complied with these
20 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3608472.
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orders. No official ever informed them that an exception for "First Amendment protected speech" absolutely allowed them to go door-to-door, gather in public, approach others, and collect signatures. No one in Ohio ever imagined door-to-door solicitation was still allowed.
Neither did Respondents. Only on April 30, 2020, three days following Petitioners' filing of this action, did they decide that their "First Amendment exception" included "circulators." Before then, no such exception existed. Applicants, like fellow Ohioans, complied. Applicants accordingly lost several weeks' worth of possible in-person signature collection. Ohio recognizes no other kind.
Ignoring these undisputed facts, the Sixth Circuit Panel concluded that Respondents' vapid exception for "First Amendment protected speech" was plainly understandable by all. Indeed, it insured that Applicants were free to exercise their First Amendment rights in the face of a content-neutral shelter restriction issued during a time of national emergency. Regardless of COVID19, the Sixth Circuit ruled, Applicants possessed a "First Amendment protected" right to ignore the emergency and Ohio's shelter orders. Because this erroneous conclusion, as this Court's ruling in South Bay United Pentecostal Church, 590 U.S. __, makes clear, was the "vitally important" lynchpin in the Sixth Circuit's stay, the fact that it has now definitively been proven wrong requires that the stay be vacated.
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Even before this Court's holding in South Bay Pentecostal Church the Sixth Circuit's summary conclusion in this case was baffling. Whether conduct demands First Amendment protection from a content-neutral emergency law (like Ohio's) always presented a difficult constitutional question. It was no slam dunk either way. There simply is no ready answer. The best one can do is predict what a court will say at the end of a complicated constitutional analysis. Concluding that Applicants always could have gathered signatures, as the Sixth Circuit did, put the constitutional cart in front of the proverbial horse in summary fashion.
This Court, of course, has often expressed disagreement over First Amendment protections for conduct, especially in the face of content-neutral restrictions and triply so during times of crisis. South Bay Pentecostal Church proves this fact. Justices have many times indicated that whether conduct is constitutionally protected and what protection it receives present "difficult" First Amendment questions. In Minnesota Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018), to use another example, the Court explained in terms of a ban on “political badge[s], political button[s], or other political insignia … at or about the polling place,” id. at 1883, that the law failed because it presented “riddles that even the State's top lawyers struggle to solve.” Id. at 1891. See also Smith v. Goguen, 415 U.S. 566, 591-92 (1974) (Rehnquist, J., dissenting) ("The issue of the application of the First Amendment to expressive conduct, or ‘symbolic speech,’
21

is undoubtedly a difficult one"); Morse v. Republican Party, 517 U.S. 186, 239 (1996) (Breyer, J., concurring) ("First Amendment questions about the extent to which the Federal Government, through preclearance procedures, can regulate the workings of a political party convention, are difficult ones").
This reality is further demonstrated by this Court's decision in Buckley v. American Constitutional Law Foundation, 525 U.S. 182 (1999), discussed below, which extended First Amendment protections to circulators under some circumstances; the Chief Justice dissented, Justice Thomas concurred, and Justices O'Connor and Breyer both concurred and dissented in part.
The Sixth Circuit itself should have recognized this fact, since just three days before it stayed the preliminary injunction in the present case in Ramsek v. Beshear, No. 20-5542, slip op., at 5 (6th Cir., May 23, 2020),21 it stated that it could not "on this exceptionally short notice ... conclude that [Kentucky's] prohibition on in-person protests would likely fail strict scrutiny."
South Bay United Pentecostal Church's logic applies three-times-over here, since Respondents get to decide when their "First Amendment" exception applies under their emergency orders, just recently (after this litigation commenced) discovered it includes circulators, and have consistently claimed throughout this litigation that the First Amendment does not protect initiative circulators at all. See, e.g., Appellants' Petition for
21 See https://www.wtvq.com/wp-content/uploads/2020/05/ramsek-appealscourt-ruling-in-favor-of-protesters.pdf.
22

Initial Hearing En Banc, Doc. No. 9, at Page 14-17 (6th Cir., May 21, 2020). From March 22, 2020 until at least April 30, 2020 it was clear that Respondents were not going to recognize initiative circulation as one of their "First Amendment protected" activities. It was only after this litigation commenced that they came upon that discovery.
The Supreme Court's decision in South Bay United Pentecostal Church that it is "quite improbable" that a First Amendment exception will be carved out of a content-neutral limit on gatherings (like California's and Ohio's) during the COVID-19 crisis necessarily means that it could not have been clear -- nor likely even correct -- that Ohio's First Amendment protected speech exception encompassed circulation of initiatives. If such an exemption to a content-neutral law will not necessarily be recognized for religious speech and practice, which is recognized as a form of viewpoint discrimination under the Speech Clause, see Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995), it seems inconceivable that one would so plainly be carved out for initiative circulation. This is an a fortiori case.
At bare minimum, Applicants could not have reasonably known what the Justices of the Supreme Court do not even know. Because the Sixth Circuit's contrary conclusion was "vitally important" to its decision to issue a stay, that stay must be vacated and reconsidered.
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The Sixth Circuit's conclusion was and remains indefensible. Even before South Bay United Pentecostal Church, no Court had ever given effect to vague and standard-less First Amendment exceptions. If they did, after all, States could insulate all of their laws from First Amendment scrutiny by just stating the obvious -- that the law does not override "protected" First Amendment activities. Such a statement means nothing at all since this First Amendment protection already exists -- it is a constant.
Not only does such a holding threaten free speech, moreover, it places religious practices at dire risk. If the Sixth Circuit is correct, then California by the simple expedient of announcing a "First Amendment" exception could fully insulate all of its laws from Free Exercise challenges. California's successful defense, like Ohio's here, would be that its law did not prohibit the religious practices after all, thus no foul no harm.
No one can know beforehand in the face of a content-neutral health restriction issued during a world crisis like COVID-19 that they would have an iron-clad First Amendment right to ignore the law. The exception was hopelessly vague. This Court has repeatedly warned against these kinds of traps in the context of First Amendment rights. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) ("Vague laws may trap the innocent by not providing fair warning"). No Court has ever concluded that a statutory "First Amendment exception" means enough to insulate a law from First Amendment scrutiny. See, e.g., Rubin v. City of Santa Monica, 823 F. Supp.
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709, 712 (C.D. Cal. 1993) (stating that a "First Amendment" exception "does not define the concept of 'First Amendment Activities,' nor, indeed, could it define this concept"). The Rubin Court, for example, cited Board of Airport Commissioners v. Jews for Jesus, Inc., 482 U.S. 569 (1987), to "suggest[] the peril in drafting an ordinance which uses the term 'First Amendment Activities' as if the meaning of such a term were self-evident or easily discernible. More precisely, Jews for Jesus suggests that such provisions are inherently vague and unenforceable, and hence unconstitutional." 823 F. Supp. at 712 n.6.
Applicants here want to remain safe. They want their families to remain safe. They want their friends to remain safe. They want Ohioans to remain safe. They also do not want to be arrested. What Applicants want is to exercise their First Amendment rights in a way that is consistent with the COVID-19 crisis. The Sixth Circuit's conclusion not only makes that impossible, it encourages people to flout content-neutral emergency restrictions like those in Ohio in the name of the First Amendment. It encourages people to take the law into their own hands, which is the last thing this Country needs during this time of crisis. Its stay must be vacated.
B. The Sixth Circuit's interpretation of Anderson-Burdick and how it applies to the mechanics of signature collection for initiatives contradicts this Court's and every Circuit's precedents. The Sixth Circuit's application of Anderson-Burdick presents a dramatic split from existing precedent. Many Courts, including the Supreme
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Court and this Court, see Buckley, 525 U.S. 182; Meyer v. Grant, 486 U.S. 414, 22 (1988); Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291 (6th Cir. 1993); Schmitt v. LaRose, 933 F.3d 628, have concluded that the First Amendment applies equally to the mechanics of ballot access for both candidates and initiatives.
This Court in McCullen v. Coakley, 573 U.S. 464, 488-89 (2014), described the protections afforded "petition campaigns" in the strongest terms:
In the context of petition campaigns, we have observed that “one-onone communication” is “the most effective, fundamental, and perhaps economical avenue of political discourse.” And “handing out leaflets in the advocacy of a politically controversial viewpoint ... is the essence of First Amendment expression”; “[n]o form of speech is entitled to greater constitutional protection.” When the government makes it more difficult to engage in these modes of communication, it imposes an especially significant First Amendment burden. Circulators of petitions are thus afforded the same First Amendment protections be they for candidates or initiatives, as this Court's decision in Buckley, 525 U.S. 182, makes clear. Burdens placed on the efforts of circulators of candidate petitions and initiative petitions must thus be judged under Anderson-Burdick equally. If a burden -- such as the State’s enforcement of the challenged provisions during a pandemic -- is severe for circulators of candidate petitions, it must also be severe for circulators of initiatives. The relief required might differ, but the analysis is the same. There is no principled constitutional basis for conducting it differently.
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Professor Hasen in his thoughtful critique of the Panel's disparate application of Anderson-Burdick calls it "deeply problematic." Hasen, supra, at 6. He describes the Panel's decision as being "very dismissive of the rights of direct democracy … that portends bad things to come." Id. at 2 (footnote omitted). While the District Court below "did a good job trying to put the plaintiffs in the position they would have been in if there had been no pandemic," id. at 8, the Panel "[d]ismissed the realities of how the pandemic had essentially ended successful petitioning activity," id. at 9, and "suggest[ed] without evidence that petition circulators would have an easier time collecting signatures in Ohio than in Michigan as the pandemic spread in both states." Id. at 10.
"The decision of the Sixth Circuit is unfortunate," id. at 11, Professor Hasen laments. The Panel "has put a thumb on the scale favoring the state, denigrating the right to petition along the way, and minimizing the real costs that the pandemic has placed on democratic petitioning activity." Id. " Most importantly, the Sixth Circuit decision sends a disturbing signal about how some courts may approach burdens on fundamental voting rights questions during the pandemic." Id.
As Professor Hasen explains, failing to accord equal First Amendment consideration to circulators of initiatives is "unsupported by any reasoning." Id. at 6. Indeed, the Panel's disparate approach to restrictions on the mechanics of initiatives here is particularly troubling. It cannot be squared
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with decisions of the Supreme Court, prior decisions of this Court, or the many decisions handed down in other Circuits. This Circuit and every other Circuit agrees that the First Amendment applies to the signature collection process used for initiatives, just as it applies to the same kind of process used for candidates. The effects of COVID-19 on both are the same. The constitutional analysis must be the same.
The Panel's analysis under Anderson-Burdick was not only improperly "dismiss[ive] [of] the realities of how the pandemic had essentially ended successful petitioning activity" in Ohio, Hasen, supra, at 9, it was detached from the reality that the Sixth Circuit itself acknowledged just weeks ago when it affirmed a district court order granting relief from petitioning requirements. See Esshaki, 2020 WL 2185553 at *1. In Esshaki, under a nearly identical time-frame and indistinguishable facts, the Court ruled that "[t]he 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 …." (Emphasis added).
Michigan officials there, like Ohio officials here, had assured citizens that they were free to engage in First Amendment activities during the State's lockdown. The Sixth Circuit ignored Michigan's exception for First Amendment activity and concluded that Michigan's in-person signature collection requirement was severe. See Esshaki, 2020 WL 2185553, at *1.
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Equal application of Esshaki to the present case can leads to only one result: Ohio's strict in-person signatures requirements during the COVID-19 crisis, like Michigan's, place a severe burden on the rights of circulators. Plaintiffs-Appellees lost time to the COVID-19 crisis and Ohio's emergency shut-down. The Panel's conclusion contradicts the Sixth Circuit's own precedents.
No Circuit has ever ruled that the First Amendment does not apply equally to the mechanics of signature collection requirements for initiatives. True, Circuits have split over the First Amendment's application to subject matter restrictions placed on initiatives, compare Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005) (holding First Amendment applied); Angle v. Miller, 673 F.3d 1122 (9th Cir. 2012) (same); Biddulph v. Morham, 89 F.3d 1491 (11th Cir. 1996) (same), with Initiative & Referendum Institute v. Walker, 450 F.3d 1082 (10th Cir. 2006) (First Amendment does not apply); Marijuana Policy Project v. United States, 304 F.3d 82 (D.C. Cir. 2002) (same), but as Professor Hasen explains, this does not reflect a split over the First Amendment's application to the mechanics of signature collection. Hasen, supra, at 6. The Sixth Circuit's approach is unprecedented.
C. The Sixth Circuit's "total exclusion" standard contradicts Anderson-Burdick and this Court's many other precedents. The Sixth Circuit further erred by grafting onto this Court's AndersonBurdick analysis a singular litmus test for assessing the severity of burdens. It ruled that in the absence of "total exclusion" a State's burdens on
29

signature collection cannot be severe. No Court, and certainly not this Court, has ever recognized such a rule, and it certainly cannot be squared with this Court's holding in McCullen, 573 U.S. at 489, where it stated that "[w]hen the government makes it more difficult to engage in these modes of communication [i.e., a "petition campaign"], it imposes an especially significant First Amendment burden."
Ohio's restrictions on petition circulators' and signers' ability to closely interact with one another -- which Ohio admits is still prohibited by its sixfoot separation rule -- thus as a matter of law presents a "significant First Amendment burden." The Sixth Circuit's marginalization of that restriction by asserting without evidentiary support that circulators can stand back several feet and use sterilized pens, Sixth Circuit Order at 8, reflects a fundamental misunderstanding of how petitioning works.
In developing its contrary standard, the Sixth Circuit put great weight on the availability of its proposed possible collection methods, as well as the remaining time circulators have before July 16, 2020. That Applicants might be able collect signatures by standing back and sterilizing pens and clip boards, the Sixth Circuit concluded, meant any burden they experienced could not be severe. This holding plainly contradicts Coakley and the cases it cites, like McIntyre v. Ohio Elections Commission, 514 U.S. 334 (1995). Even assuming Ohio had all along exempted circulators from its gathering restrictions, its physical separation requirement (which had and has no
30

similar exemption, as the Sixth Circuit's suggestion demonstrates) presents a significant and severe burden.
Ohio's First Amendment exception, which the Sixth Circuit found "vitally important" to its conclusion, id. at 6, cannot alter this conclusion. Even assuming it could be understood as allowing circulators to venture out and go door-to-door, they would have still been required to maintain physical separation.
Further, the exception cannot distinguish Ohio from Michigan, where the Sixth Circuit ruled that the same kinds of restrictions were a severe burden. See Esshaki. Michigan, after all, informed its citizens that there was a First Amendment exception. The Sixth Circuit's claim that "none of Ohio’s pandemic response regulations changed the status quo on the activities Plaintiffs could engage in to procure signatures for their petitions," Sixth Circuit Order at 6, is thus no more true of Ohio than Michigan, or any other State for that matter, since there is necessarily a First Amendment exception for "protected" speech everywhere in the United States.
The Sixth Circuit's reasoning is shocking to say the least. It amounts to nothing less than saying that a State may constitutionally place its polling places in the middle of a flood-plain during a hurricane, threaten voters with prosecution if they take swimming lessons, and then tell them to swim for it. It is the weather that changed the status quo, after all. Voters should have learned how to swim before the crisis. If they cannot, or simply choose to
31

"stay home for their own safety" that is their own fault. The State bears absolutely no responsibility.
The Sixth Circuit's analysis erroneously grafts onto Anderson-Burdick not only a "total exclusion" requirement, but a "total exclusion caused solely by the State" litmus test. Neither requirement alone finds support in case law; together they are doubly unprecedented. The Supreme Court has made clear there is no single test for severity, let alone a "total exclusion" caused solely by government requirement. "In neither Norman [v. Reed, 502 U.S. 279 (1992),] nor Burdick did we identify any litmus test for measuring the severity of a burden that a state law imposes." Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 191 (2008). The Court's decision just three weeks ago in Esshaki, 2020 WL 2185553, demonstrates that the combination of state action and COVID-19 placed a severe burden on circulators.
Nothing has changed since Anderson, 460 U.S. at 789, Storer v. Brown, 415 U.S. 724, 730 (1974), and Crawford were decided. See, e.g., Stone v. Board of Elections, 750 F.3d 678, 681 (7th Cir. 2014); Cowen v. Ga. Sec'y of State, 2020 WL 2896354 (11th Cir., June 3, 2020). This Court and every Circuit reject any single litmus test, let alone one that requires total exclusion. In Anderson, 460 U.S. 780, for example, John Anderson was not totally banned from the ballot by Ohio law; he was burdened by Ohio's earlyfiling deadline. Yet the Court found it severe and ruled it unconstitutional.
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Indeed, even the Sixth Circuit has rejected any litmus test, at least until the Panel imposed one in the present case. In Green Party of Tennessee v. Hargett, 791 F.3d 684, 694 (6th Cir. 2015), the Sixth Circuit concluded that a 5% of the total vote signature collection requirement was a severe, unconstitutional restriction on ballot access. See also Libertarian Party of Ohio v. Blackwell, 462 F.3d 579 (6th Cir. 2006); Esshaki. No other Court has applied a ‘total exclusion’ litmus test like the Panel here.
D. Courts and officials across the country recognize that petitioning cannot safely proceed during the COVID19 pandemic. Courts across the country have recognized that people simply cannot collect signatures in-person in a safe way during the COVID-19 crisis. They have therefore routinely and uniformly extended petitioning relief to candidates in various forms, either by reducing the numbers of signatures, extending deadlines, or allowing remote collection. See Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687 (N.D. Ill., Apr. 23, 2020); Goldstein v. Sec’y of Commonwealth, No. SJC-12931, 2020 WL 1903931, at *6 (Mass. Apr. 17, 2020); Omari Faulkner for Virginia v. Va. Dep't. of Elections, CL 20-1456 (Va. Cir. Ct. Mar. 25, 2020); Warren v. Colorado Secretary of State Jena Griswold, Denver County (Colo.) Dist. Ct. No. 20CV31077 (Apr. 21, 2020); Dennis v. Secretary of the Commonwealth, Mass. Case No. SJ-2020-278. More litigation continues to be filed each day in an effort to win relief from COVID-19. See, e.g,, Hawkins v. DeWine, No. 2:20-cv-2781 (S.D. Ohio, June
33

9, 2020); Libertarian Party of New Hampshire v. Sununu, No. 1:20-cv-688 (D.N.H., June 8, 2020); Alaska Libertarian Party v. Fenumiai, No. 3:20-cv127 (D. Ak., June 3, 2020); Libertarian Party of Pennsylvania v. Wolf, No. 2:20-cv-2299 (E.D. Pa., May 14, 2020); Maryland Green Party v. Hogan, 1:20cv-1253 (D. Md., May 19, 2020).
Many States, moreover, have taken these steps voluntarily. See Fla. Emergency R. 1SER20-2 (Apr. 2, 2020); N.J. Exec. Order Nos. 105, 120 (Mar. 19, 2020, Apr. 8, 2020); Utah Exec. Order No. 2020-8 (Mar. 26, 2020); Connecticut Ex. Order No. 7LL, May 11, 2020 (described in Gottlieb v. Lamont, 3:20-cv-0623, Doc. No. 33, at 12 (D. Conn., June 8, 2020)); Jim Camden, Candidates who are broke will get a break when filing to get names on the ballot, Spokesman Review, May 6, 2020 (describing Governor Inslee's statement in Washington that "[g]athering signatures during the COVID-19 pandemic 'runs contrary to recommended public health practice'").22
While the same has not proven universally true for initiatives, see Hasen, supra, this small handful of contrary courts, including the Sixth Circuit now, represent a minority view in terms of dealing with COVID-19, at least for the present and assuming the Sixth Circuit's flawed approach does not catch on. Many States, either through litigation, see, e.g., SawariMedia LLC v. Whitmer, 2020 WL 3097266 (E.D. Mich., June 11, 2020); Miller v.

22

https://www.spokesman.com/stories/2020/may/06/candidates-who-are-

broke-will-get-a-break-when-fil/.

34

Thurston, 2020 WL 2617312 (W.D. Ark., May 25, 2020), stay pending appeal denied, 2020 WL 2850223 (W.D. Ark., June 2, 2020); Fair Maps Nevada v. Cegavske, 2020 WL 2798018 (D. Nev., May 29, 2020); or executive action, see, e.g., Jonathan D. Salant, No knocking on doors. Murphy orders political petition signatures be collected electronically, NJ.COM, April 29, 2020 (describing New Jersey Governor's order directing initiative circulators not go door-to-door but to collect electronically);23 Colorado State Court Approve Electronic Signatures for Initiatives, Ballot Access News, May 29, 2020 (describing Colorado Governor's order authorizing electronic signature collection for initiatives),24 have extended relief to initiatives.
This problem will not go away. The Sixth Circuit's stay needs to be immediately addressed. Lower Courts are struggling with the problem COVID-19 has caused voters and confused by the mistaken principles announced by the Sixth Circuit. Courts need to know that they can offer relief when States will not during this time of crisis to ensure that voters can trust government's orders and not be tricked into forfeiting their First Amendment rights.
23 https://www.nj.com/coronavirus/2020/04/no-knocking-on-doors-murphyorders-political-petition-signatures-be-collected-electronically.html. 24 https://ballot-access.org/2020/05/29/colorado-state-court-approveselectronic-signatures-for-initiatives/.
35

II. Applicants Will Suffer Irreparable Injury. Applicants are threatened with continuing irreparable injury. Any
impediment placed on First Amendment rights, even for brief periods, causes irreparable harm. See Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality) ("The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury."). Without the relief promised by the preliminary injunction, which merely directed Respondents to develop their own plan to "adjust" the collection requirements and deadlines in light of COVID-19, it is highly unlikely that Applicants will be able to exercise their First Amendment rights in a timely fashion. III. Respondents Will Suffer No Significant Harm.
Because the District Court issued only a prohibitive preliminary injunction and awarded Applicants no affirmative relief, Respondents presently risk no harm whatsoever. The District Court instructed Respondents to develop their own "adjustments" to their in-person, wet, witnessed, signature requirement. District Court Order at 40. Respondents offered nothing, and just minutes before their plan was due in the District Court on May 26, 2020, the Sixth Circuit stayed the preliminary injunction. It is therefore impossible to ascertain any injury to Respondents since no one knows what kind of acceptable plan could be developed. It might be as simple as waiving the witness requirement. It might only require dropping for now the requirement of original signatures. It might be as simple as
36

extending the deadline for a short period of time. No one can know because the Sixth Circuit rushed to stay the preliminary injunction.
One thing is certain; forcing circulators to go door-to-door and collect signatures in-person through close witnessing will increase the risk to them and the public. Encouraging people to ignore shelter orders because of their purported "First Amendment rights," moreover, threatens to encourage disobedience across Michigan, Ohio, Kentucky and Tennessee (and elsewhere should other Courts follow the Sixth Circuit's lead). Contrary to the Sixth Circuit's conclusion, COVID-19 is not over. People still need help.
Conclusion Applicants respectfully request that the stay be vacated.

Oliver B. Hall CENTER FOR COMPETITIVE DEMOCRACY P.O. Box 21090 Washington, D.C. 20009 (202) 248-9294 oliverhall@competitivedemocracy.org

Respectfully submitted,
/s/ Mark R. Brown
Mark R. Brown 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu Counsel of Record Attorneys for PlaintiffsAppellees-Applicants

37

Certificate of Service I certify that this Application was e-mailed pursuant to a service of process agreement entered into by all parties to: Benjamin Flowers, Ohio Solicitor General, Counsel of Record for Respondents, at benjamin.flowers@ohioattorneygeneral.gov, Freda Levenson, Counsel of Record for Proposed Intervenors-Appellees-Ohioans for Secure and Fair Elections, et al., at flevenson@ohioaclu.org, and Donald J. McTigue, Counsel of Record for Proposed Intervenors-Appellees-Ohioans for Raising the Wage, et al., at dmctigue@electionlawgroup.com, this 16th day of June 2020.
/s/ Mark R. Brown Mark R. Brown
38

 
 No. 19A1054
In the Supreme Court of the United States
________________________________
CHAD THOMPSON, ET AL.,
Applicants, v.
RICHARD MICHAEL DEWINE, ET AL.,
Respondents. __________________________________
ON APPLICATION FOR STAY FROM THE UNITED STATES CIRCUIT COURT FOR
THE SIXTH CIRCUIT ___________________________________
OPPOSITION TO EMERGENCY APPLICATION TO VACATE THE SIXTH CIRCUIT’S STAY
___________________________________
DAVE YOST Ohio Attorney General
BENJAMIN M. FLOWERS* Solicitor General
*Counsel of Record MICHAEL J. HENDERSHOT Chief Deputy Solicitor General ZACHERY P. KELLER SHAMS H. HIRJI Deputy Solicitors General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 614-466-5087, fax benjamin.flowers@ohioattorneygeneral.gov
Counsel for Respondents Ohio Governor Mike DeWine; Lance Himes, Director of the Ohio Department of Health; and Ohio Secretary of State Frank LaRose

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES..................................................................................... ii
INTRODUCTION ..................................................................................................... 1
STATEMENT ........................................................................................................... 4
ARGUMENT........................................................................................................... 13
I. The Sixth Circuit’s decision to grant Ohio a stay was correct; and it certainly was not “demonstrably wrong.” ................................................... 14
A. Laws regulating the mechanics of the initiative process do not implicate the First Amendment............................................................. 14
B. The challenged laws are constitutional under Anderson-Burdick. ...... 22
1. Ohio’s signature requirements impose (at most) moderate burdens. ............................................................................................. 23
2. Ohio’s compelling interests in a fair and orderly initiative process easily outweigh any non-severe burdens. ........................... 26
C. The remaining factors also support the Sixth Circuit’s stay. ............... 29
1. The District Court ordered an unworkable remedy that exceeded its authority. ...................................................................... 29
2. Reinstating the District Court’s injunction would harm Ohio and the public.................................................................................... 33
II. Thompson’s arguments are unpersuasive. ................................................. 35
CONCLUSION ....................................................................................................... 40

i

TABLE OF AUTHORITIES

Cases

Page(s)

Abbott v. Perez, 138 S. Ct. 2305 (2018) ............................................................................................ 34

Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999) .................................................................................................. 23

Anderson v. Celebrezze, 460 U.S. 780 (1983) ................................................................................................ 23

Angle v. Miller, 673 F.3d 1122 (9th Cir. 2011) .......................................................................... 17, 20

Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888 (1988) ................................................................................................ 21

Buckley v. Am. Constitutional Law Foundation, Inc., 525 U.S. 182 (1999) .................................................................................... 16, 27, 36

Burdick v. Takushi, 504 U.S. 428 (1992) ...................................................................................... 9, 21, 23

State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 65 Ohio St.3d 167 (1992) ........................................................................................ 28

Clingman v. Beaver, 544 U.S. 581 (2005) ................................................................................................ 23

Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237 (6th Cir. 2006) .................................................................................. 34

Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd., 885 F.3d 443 (6th Cir. 2018) .................................................................................. 20

Crawford v. Marion County Election Bd., 553 U.S. 181 (2008) .......................................................................................... 23, 27

Daunt v. Benson, 956 F.3d 396 (6th Cir. 2020) ............................................................................ 21, 22

Esshaki v. Whitmer, No. 20-1336, 2020 U.S. App. LEXIS 14376 (6th Cir., May 5, 2020) ..................... 38

ii

Georgetown v. Brown Cty. Bd. of Elections, 158 Ohio St.3d 4 (2019) .......................................................................................... 28
Hutto v. Finney, 437 U.S. 678 (1978) ................................................................................................ 32
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc) .......................................................passim
John Doe No. 1 v. Reed, 561 U.S. 186 (2010) ................................................................................ 1, 15, 17, 27
Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 (7th Cir. 2018) .................................................................. 3, 15, 19, 27
Kansas v. Nebraska, 574 U.S. 445 (2015) ................................................................................................ 39
Lux v. Rodrigues, 561 U.S. 1306 (2010) ........................................................................................ 15, 35
Marijuana Policy Project v. United States, 304 F.3d 82 (D.C. Cir. 2002) .................................................................. 2, 15, 16, 18
Maryland v. King, 133 S. Ct. 1 (2012) .................................................................................................. 33
Mays v. LaRose, 951 F.3d 775 (6th Cir. 2020) ............................................................................ 23, 28
Meyer v. Grant, 486 U.S. 414 (1988) .........................................................................................passim
Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271 (1984) ................................................................................................ 16
Missouri v. Jenkins, 515 U.S. 70 (1995) ............................................................................................ 32, 33
Molinari v. Bloomberg, 564 F.3d 587 (2d Cir. 2009) ................................................................................ 2, 19
Munro v. Socialist Workers Party, 479 U.S. 189 (1986) ................................................................................................ 27
Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117 (2011) .................................................................................... 15, 16, 17
iii

Nken v. Holder, 556 U.S. 418 (2009) .......................................................................................... 14, 34
Ohio Manufacturers’ Ass’n v. Ohioans for Drug Price Relief Act, 149 Ohio St. 3d 250 (2016) ....................................................................................... 5
Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U.S. 1061 (2013) .......................................................................................... 2, 13
Pony Lake Sch. Dist. 30 v. State Comm. for the Reorganization of Sch. Dists., 271 Neb. 173 (Neb. 2006) ....................................................................................... 19
Port of Tacoma v. Save Tacoma Water, 422 P.3d 917 (Wash. Ct. App. 2018) ...................................................................... 19
Purcell v. Gonzalez, 549 U.S. 1 (2006) .................................................................................................... 32
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020) ............................................................................................ 32
State ex rel. ResponsibleOhio v. Ohio Ballot Bd., 2015-Ohio-3758 (2015) ........................................................................................... 27
Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019) ...........................................................................passim
South Bay United Pentecostal Church v. Newsom, 590 U.S. __, Case No. 19A1044 (May 29, 2020) .............................................. 35, 37
Western Airlines, Inc. v. International Brotherhood of Teamsters, 480 U.S. 1301 (1987) .............................................................................................. 13
Williams v. Rhodes, 393 U.S. 23 (1968) .................................................................................................. 23
Wirzburger v. Galvin, 412 F.3d 271 (1st Cir. 2005) ................................................................................... 20
Statutes and Constitutional Provisions
Ohio Const., Art. II, §1 .................................................................................................. 4
Ohio Const., Art. II, §1a ............................................................................................ 4, 5
Ohio Const., Art II, §1b ................................................................................................. 4
iv

Ohio Const., Art. II, §1f ................................................................................................. 4 Ohio Const., Art. II, §1g........................................................................................passim 42 U.S.C. §1983............................................................................................................ 23 Ohio Rev. Code §149.45 ............................................................................................... 31 Ohio Rev. Code §731.28 ................................................................................... 4, 5, 6, 25 Ohio Rev. Code §3501.38 ........................................................................................... 4, 5 Ohio Rev. Code §3503.14 ............................................................................................. 31 Ohio Rev. Code §3509.01 ......................................................................................... 6, 29 Other Authorities 2019 Population Estimates: Cities, Villages and Townships by County,
Research Office (May 2020) ................................................................................... 24 Fears Of Marijuana ‘Monopoly’ In Ohio Undercut Support For
Legalization, NPR (Sept. 2, 2015).......................................................................... 27 Identity Theft and Your Social Security Number, Social Security
Administration (June 2018) ................................................................................... 30 Letter to Governors and Secretaries of State on the insecurity of online
voting, American Association for the Advancement of Science (April 9, 2020).................................................................................................................... 30
v

INTRODUCTION Our Constitution leaves it “up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action.” John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J., concurring). Ohioans have chosen to permit voter initiatives, and they have adopted various procedural requirements governing “how” to legislate by popular action. Three such requirements are relevant here. First, to gain ballot access, ballot-initiative proponents must gather a sufficient number of signatures by deadlines keyed to the date of the election. Second, the signatures must be signed in ink. Third, the petition circulator must attest that he or she witnessed the signings. The applicants in this case wish to put municipal initiatives regarding marijuana on the November 2020 ballot. They have had months to gather ink-signed, witnessed signatures in advance of the July 16 deadline. But they say the COVID19 pandemic made it too hard to gather the required signatures, and that enforcing the deadline and the signing requirements would therefore violate the Free Speech Clause of the First Amendment. The District Court agreed. And it ordered the State to fix the problem by implementing, on the fly, an online signature-collection system. The court did not specify how the online signature gathering would work. But it envisioned allowing signatories to “sign” initiative petitions by providing the last four digits of their social security numbers to a third-party vendor. This system could not possibly work; state election officials do not have all voters’ social security numbers and so cannot identify signatories in the manner proposed. Still, the District Court ordered the State to move forward, and to meet and confer with the

plaintiffs to iron out “technical” and “security” concerns with its half-baked plan. Appx.56.
The Sixth Circuit stayed the District Court’s injunction pending a merits appeal. The applicants ask this Court to vacate that stay. To win relief, they must show that the Sixth Circuit “clearly and demonstrably erred in its application of accepted standards.” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U.S. 1061, 1061 (2013) (Scalia, J., concurring in denial of application to vacate stay) (internal quotations omitted); accord id. at 1065 (Breyer, J., dissenting from denial of application to vacate the stay). The application therefore presents the following question: Did the Sixth Circuit clearly and demonstrably err? The answer is no. For three reasons, the applicants cannot meet that lofty standard.
First, the applicants’ claims fail because the challenged laws do not implicate the Free Speech Clause at all. Laws “that determine the process by which legislation is enacted”—including laws governing the initiative process, like those at issue here—do not implicate the Free Speech Clause. Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099–1100 (10th Cir. 2006) (en banc) (per McConnell, J.); see also Marijuana Policy Project v. United States, 304 F.3d 82, 83 (D.C. Cir. 2002) (per Tatel, J.); Molinari v. Bloomberg, 564 F.3d 587, 599–601 (2d Cir. 2009). The initiative process is a legislative process, and the Free Speech Clause protects the right to express oneself, not the right to legislate. Marijuana Policy Project, 304 F.3d at 83; Walker, 450 F.3d at 1099–1100. Since the deadlines, the ink requirement, and the witness requirement all “determine the process by which legislation is enacted” by
2

initiative—they govern legislative procedure, not communicative conduct—they are not subject to the Free Speech Clause at all, and the applicants’ challenge fails. It would therefore be improper to resuscitate the District Court’s injunction.
Second, even if the First Amendment applied to such laws, the Sixth Circuit correctly recognize that the challenged laws pass constitutional muster under the Anderson-Burdick test. That test requires balancing the burdens a law imposes against the state interests it furthers. The burden here is moderate at most. The applicants had months to gather the necessary signatures—in some cases, just a few dozen signatures—and they still have until July 16. And during all that time, they were free to gather signatures because Ohio’s stay-at-home orders always exempted First Amendment activity, including signature gathering. The at-most moderate burden resulting from the stay-at-home orders was more than justified by the important interests served by the laws challenged in this case. This Court has made clear that signature requirements serve States’ important “interest in making sure that an initiative has sufficient grass roots support to be placed on the ballot.” Meyer v. Grant, 486 U.S. 414, 425 (1988). Limiting ballot access to initiatives with sufficient support “improves the chance that each will receive enough attention, from enough voters, to promote a well-considered outcome.” Jones v. MarkiewiczQualkinbush, 892 F.3d 935, 938 (7th Cir. 2018). The ink and witness requirements ensure the authenticity of that grass-roots support, and protect against fraud in the initiative process. They also provide aggrieved parties a means of challenging initiative eligibility. The deadlines serve an important purpose too: they ensure elec-
3

tion officials have ample time to review the signatures, and they ensure parties have enough time to challenge election officials’ determinations, before the time comes to print ballots.
Finally, and independent of the merits, the District Court’s expansive remedy was improper: Ohio cannot be forced, with deadlines fast approaching, to devise and secure an online signature-gathering system that verifies signatories’ identities using information not in election officials’ possession.
STATEMENT 1. The Ohio Constitution reserves to the People the right to make law by initiative. Ohio Const., Art. II, §§1, 1a, 1f. On a statewide level, Ohioans have the power to “propos[e] an amendment to the constitution … for the approval or rejection of the electors.” Ohio Const., Art. II, §1a. Citizens may also seek to amend Ohio’s statutory law by initiative. Id., §1b. And Ohioans engage in direct democracy at the municipal level, too: Ohioans may, by initiative, enact municipal legislation “on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action.” Id., §1f. Ohio’s Constitution and statutes guide the initiative process by setting forth a variety of eligibility requirements that initiatives must satisfy before being placed on the ballot. Ohio Const., Art. II, §§1a–1b, 1g; Ohio Rev. Code §3501.38(B), (E)(1). For example, Ohio law imposes signature requirements. For both constitutional and municipal initiatives, proponents must collect signatures amounting to at least 10 percent of the total votes cast by the relevant electorate in the most recent governor’s race. Ohio Const., Art. II, §1a; Ohio Rev. Code §731.28. For constitutional
4

initiatives, proponents must also collect a sufficient number of signatures from at least half of Ohio’s eighty-eight counties. Ohio Const., Art. II, §1g.
Three aspects of this signature-collection process are at stake here. First, Ohio law imposes an “ink requirement.” That is, initiative proponents must gather a sufficient number of signatures hand-signed in ink. Ohio Const., Article II, §1g (“names of all signers … shall be written in ink”); Ohio Rev. Code §3501.38(B) (“Signatures shall be affixed in ink.”). To be counted, each signature must match the signature that is on file with election officials. See Ohio Manufacturers’ Ass’n v. Ohioans for Drug Price Relief Act, 149 Ohio St. 3d 250, 250–51 (2016).
Second, Ohio law imposes a “witness requirement.” To meet this requirement, petition circulators must attest that they “witnessed the affixing of every signature.” Ohio Const., Art. II, §1g; accord Ohio Rev. Code §3501.38(E)(1).
Third, Ohio law sets deadlines by which initiative proponents must submit valid signatures. For constitutional initiatives, the proper number of valid signatures must be turned in at least 125 days before the general election. Ohio Const., Art. II, §§1a, 1g. So, to qualify for the November 3, 2020 election, signatures must be submitted by July 1, 2020. Proponents of municipal initiatives must gather the required signatures at least 110 days before the election. See Ohio Rev. Code §731.28. Thus, for a municipal initiative to appear on the November 2020 ballot, supporting signatures must be submitted by July 16, 2020.
These signature deadlines kick off a chain of related deadlines. With respect to constitutional initiatives, the Secretary of State has twenty days to verify the
5

supporting signatures upon their being submitted. Ohio Const., Art. II, §1g. After that, Ohio law sets aside another period for the Ohio Supreme Court to review any challenges that arise from signature gathering and verification. After that, there are supplemental rounds of signature gathering, verification, and court challenges. See id. For municipal initiatives, the process is similar but the timeframe more condensed: the county board of elections has just ten days to verify signatures. Ohio Rev. Code §731.28.
Ultimately, for constitutional and municipal initiatives alike, everything must be completed in time for the boards of elections to finalize and print ballots. Those ballots must be ready to go at least forty-six days before an election, when overseas and military voting begins. See Ohio Rev. Code §3509.01(B)(1).
2. Ohio, like the rest of the country, is fighting the spread of COVID-19. Ohio’s Governor Mike DeWine, along with the Director of the Ohio Department of Health, have strived to protect Ohioans from this pandemic. (Dr. Amy Acton stepped down as Director after the filing of this suit. The current Director is Lance Himes.) With this in mind, they have issued orders restricting certain activities. These orders have always been temporary. Nearly all have been eased or eliminated as the State “reopens.” See April 30 Order, online at https://tinyurl.com/ y7s6cre2; May 20 Order, online at https://bit.ly/303A8de.
Even at their peak, these orders always sought to balance the State’s interests in protecting Ohioans’ health and protecting Ohioans’ rights. As a result, pandemic-related restrictions have never been absolute. For example, the stay-at-home
6

orders in place during March and April exempted a variety of essential activities. March 22 Order ¶¶7–14, online at https://tinyurl.com/y8urb7mn; April 2 Order ¶¶7–14, online at https://tinyurl.com/vbwpwp2. Relevant here, every order restricting the public’s conduct has expressly permitted individuals to engage in activity protected by the First Amendment. See April 30 Order ¶4, online at https://tinyurl .com/y7s6cre2; April 2 Order ¶12g, online at https://tinyurl.com/vbwpwp2, March 22 Order ¶12g, online at https://tinyurl.com/y8urb7mn; March 17 Order ¶5, online at https://tinyurl.com/y9zfcnpq. Under well-settled law, the First Amendment protects the gathering of signatures in support of legislation. Meyer v. Grant, 486 U.S. 414, 421–22 (1988). That means that all initiative proponents have, at all times, been free to solicit signatures throughout the pandemic. To remove any doubt, the April 30 order expressly listed the circulation of “petition[s] or referend[a]” as an example of protected First Amendment activity exempt from the stay-at-home order. See April 30 Order ¶4, online at https://tinyurl.com/y7s6cre2. Thus, initiative proponents have unquestionably been free since then to solicit signatures—and they have until either July 1 (in the case of statewide initiatives) or July 16 (for municipal initiatives) to gather the needed signatures.
3. This case began when various plaintiffs and intervenors sued Governor DeWine, Dr. Amy Acton, and Ohio Secretary of State Frank LaRose. For ease of reference, this brief will call the defendants “Ohio” or “the State.” Some of the challengers wanted ballot access for constitutional amendments, while others wanted ballot access for municipal initiatives. Of particular note here, the applicants—
7

Chad Thompson, William Schmitt, and Don Keeney (together, “Thompson”)—are individuals who regularly circulate municipal initiatives to change local laws about marijuana possession. Thompson Compl. ¶5, R.1, PageID#2. For this November’s election, their goal was to place municipal initiatives on the ballots of localities ranging from the rather-large City of Akron to the quite-small township of Cadiz and the even-smaller village of Adena. Stip. Facts ¶¶3–4, R.35, PageID#469.
The various plaintiffs and intervenors all asked for preliminary injunctions, and they all advanced the same theory. They argued that the ink requirement, the witness requirement, and the signature deadlines violated the First Amendment. Each claimed that the pandemic made it too difficult to gather signatures in person, and thus too difficult to obtain and witness enough signatures by the applicable deadlines in early- and mid-July. See, e.g., Thompson Compl. ¶52, R.1, PageID#14; OSFE Compl. ¶3, R.14, PageID#99–100; OFRW Compl. ¶3, R.17-1, PageID#221–22. Despite the plaintiffs’ focus on the pandemic, none of them sought relief from Ohio’s pandemic-related orders. See Thompson Compl., R.1, PageID#18–19; OSFE Compl. ¶3, R.14, PageID#121–24; OFRW Compl., R.17-1, PageID#233–35. They instead sought to alter Ohio’s signature requirements and loosen the deadlines that, as just discussed, mostly come straight out of the Ohio Constitution.
In moving for preliminary relief, the plaintiffs relied on a sparse record. The parties stipulated to some background facts, many of which simply summarized Ohio’s pandemic response. See Stip. Facts, R.35, PageID#469–75. But the challengers supplied little evidence about their efforts to collect signatures, either while
8

Ohio’s stay-at-home orders were in place or since. Indeed, Thompson submitted no evidence at all. The remaining challengers submitted declarations from a few individuals stating their personal unwillingness to circulate or sign petitions during the pandemic. E.g., Ziegler Decl. ¶¶7–8, R.15-3, PageID#178; Cambpell Decl. ¶13, R.154, PageID#183. One group of challengers also proposed a “model” for gathering signatures online, which presumed changes to Ohio’s signature requirements. Leonard Decl. ¶8, R.30-1, PageID#434; accord OFSE Reply, R.43, PageID#626 n.11. None of these materials detailed what, if anything, the plaintiffs had been doing to adapt their signature-collection efforts to the pandemic circumstances.
4. On May 19, the District Court granted the request for a preliminary injunction as to the ink requirement, witness requirement, and signature deadlines. Appx.55–56.
On the merits, the District Court held that all of these requirements and deadlines likely violated the First Amendment by unduly restricting ballot access “during a global pandemic.” Appx.29. To reach that holding, the court applied the Anderson-Burdick test—a flexible test that requires weighing the burdens a state law imposes against the state interest it furthers. Appx.35. Under AndersonBurdick, severe burdens on First Amendment interests are strictly scrutinized, minimal burdens are reviewed under a deferential standard resembling rational-basis review, and intermediate burdens are subjected to a more ad hoc balancing. See Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)); Schmitt v. LaRose, 933 F.3d 628, 639 (6th Cir. 2019). The
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District Court suggested that, “[i]n ordinary times,” Ohio would likely have “considerable leeway” to set the requirements for its ballot-initiative process. Appx.39 (internal quotation omitted). That leeway changed, however, because of the “unique historical circumstances of a global pandemic.” Appx.40. Those unique circumstances changed the standard of review, the District Court held, transforming Ohio’s signature requirements into a severe burden deserving of strict scrutiny. Appx.42. And the court held that the challenged laws all failed strict scrutiny. (At one point it noted, without analysis, that the requirements would have flunked intermediate scrutiny, too. Appx.35 n.2.) The court said that the ink and witness requirements were not narrowly tailored to allowing state interests because other approaches—like using the last four digits of social security numbers—might work to verify the identities of the signatories. Appx.45–46. And the signature-gathering deadlines, the court concluded, were not “narrowly tailored in light of Plaintiffs’ inability to safely circulate petitions” during the pandemic. Appx.49.
As to relief, the District Court enjoined the ink and witness requirements. Appx.55–56. In place of those requirements, it ordered the State to “accept electronically-signed and witnessed petitions.” Appx.56. Apparently recognizing the likely “technical” and “security” issues with that approach, the District Court further ordered the parties to meet and confer to iron out those issues. Id. The District Court also enjoined enforcement of Ohio’s signature deadlines. The court ordered the State to accept signatures pertaining to constitutional initiatives through at least
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July 31, 2020. Id. It is unclear what new deadline the District Court imposed for municipal initiatives. See id.
5. Ohio immediately appealed and sought a stay pending appeal. The Sixth Circuit unanimously granted a stay the next week. Appx.3–14. It initially noted a circuit split over the applicable standard—it recognized that at least two circuits have held that laws governing the mechanics of the initiative process do not implicate the First Amendment at all, since the initiative process is a legislative process, and since legislation is not expression protected by the First Amendment. Appx.6–7 n.2. It further observed that Sixth Circuit judges have “often questioned” whether the Circuit overuses the Anderson-Burdick test. Id. But, based on the Sixth Circuit’s past precedent, it applied that test. Appx.6.
The Sixth Circuit first rejected the notion that Ohio’s signature requirements impose a severe burden; it held the burden was instead “intermediate.” Appx.8–11. It credited, as “vitally important,” the fact that Ohio’s pandemic-related restrictions always permitted First Amendment activity. Appx.9. Ohio’s actions, therefore, did not “exclude[] or virtually exclude[]” the plaintiffs’ initiatives from the ballot. Appx.8. The plaintiffs instead could have adapted their behavior “within the bounds of our current situation, such as through social or traditional media inviting interested electors to contact them.” Appx.9–10. What is more, the panel explained, the State could not be held liable for “private citizens’ decisions to stay home for their own safety.” Appx.10.
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The Sixth Circuit next concluded that the intermediate burden was justified by the important state interests advanced by the deadlines, the ink requirement, and the witness requirement. Appx.11. With respect to the ink and witness requirements, the court emphasized that Ohio has “compelling and well-established interests in administering its ballot initiative regulations” in a manner that ensures signatures are authentic and verified in an orderly fashion. Id. And the deadlines played a critical role in this process, since “[m]oving one piece on the game board invariably,” would have consequences elsewhere and require “additional moves”— that is, additional alterations to state law and state initiative processes. Appx.13.
Lastly, the Sixth Circuit stressed that the District Court “exceeded its authority” by entering an injunction forcing Ohio, with no guidance, to accept electronic signatures. Appx.12. It reasoned that the District Court was not “free to amend the Ohio Constitution,” particularly not in a way that “threaten[ed] to take the state into unchartered waters.” Appx.12–13. And the threat became particularly stark because the plaintiffs and intervenors, in their Sixth Circuit briefing, revealed that they did not even agree on a uniform process for collecting or validating electronic signatures under the District Court’s injunction. That injunction required the State “to accept electronically-signed and witnessed petitions collected through the on-line signature collection plans proposed by” two groups of intervenor plaintiffs (neither of which are applicants here). Appx.55–56. But as it turned out, the parties did not really agree on what form that signature-gathering should take. One intervenor group said it would collect signatures for its proposed initiative through its own
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website (with the help of a third-party vendor). Another wanted to implement its own signature-collection plan—an unexplained plan for which it had yet to “retain[] an online vendor” or “set[] up an online signature collection system.” OSFE Br., Doc.25-2 at 1 (6th Cir.). And Thompson, for his part, did not propose any concrete plan at all. Instead, he argued that the District Court actually left the State “with discretion to fashion a remedy.” Thompson Br., Doc.21 at 3 (6th Cir.). In sum, no one seemed to know what the District Court required, and no one could offer a uniform plan for implementing the District Court’s injunction. If the Sixth Circuit’s stay is vacated, the parties will be put right back in that same, uncertain position.
ARGUMENT This Court will “not vacate a stay entered by a court of appeals unless that court clearly and demonstrably erred in its application of accepted standards.” Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 571 U.S. 1061, 1061 (2013) (Scalia, J., concurring in denial of application to vacate stay) (internal quotation omitted); accord id. at 1065 (Breyer, J., dissenting from denial of application to vacate the stay). Thus, to justify vacating a stay, an applicant must show that the stay was “‘demonstrably wrong.’” Western Airlines, Inc. v. International Brotherhood of Teamsters, 480 U.S. 1301, 1305 (1987) (O’Connor, J., in chambers) (quoting Coleman v. PACCAR, Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, J., in chambers)). When deciding whether to issue a stay, a court of appeals considers four factors: “(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
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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) (quotations omitted); Appx.6 (same). The first two factors “are the most critical.” Nken, 556 U.S. at 434. I. The Sixth Circuit’s decision to grant Ohio a stay was correct; and it
certainly was not “demonstrably wrong.” For at least three reasons, Thompson falls far short of his burden in asking to undo the Sixth Circuit’s stay. First, the process by which initiatives gain ballot access does not implicate the First Amendment at all. As a result, Thompson’s First Amendment challenge fails as a matter of law, and the Sixth Circuit’s stay of the District Court’s free-speech-based injunction must be left in place. Second, even if this Court’s Anderson-Burdick test applies, as the Sixth Circuit assumed, the challenged laws pass that test and the District Court erred in holding otherwise. Third, the remaining balance of harms also favored a stay: in particular, the District Court’s injunction would have forced Ohio to experiment with a never-before-tried electronic-signature system—or perhaps three separate systems—and that experiment would have occurred with an election fast approaching. A. Laws regulating the mechanics of the initiative process do not
implicate the First Amendment. Thompson argues that the State violated the First Amendment’s Free Speech Clause by requiring compliance with its laws governing the mechanics of the State’s initiative process. That cannot be. The initiative process is a legislative process. And “the freedom of speech” protected by the First Amendment does not include the right to legislate. It follows that States do not implicate the First Amendment when
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they structure the process by which initiatives become law. The D.C. and Tenth Circuits—in opinions by Judges Tatel and McConnell—have already so held. Marijuana Policy Project v. United States, 304 F.3d 82, 85 (D.C. Cir. 2002); Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir. 2006) (en banc). And while some other courts have concluded otherwise without meaningful analysis, the existence of the split suggests that the Sixth Circuit’s judgment was not demonstrably wrong, as it would have to be for this Court to vacate the stay order. See Lux v. Rodrigues, 561 U.S. 1306, 1308 (2010) (Roberts, C.J., in chambers).
1. The First Amendment’s Free Speech Clause prohibits laws “abridging the freedom of speech.” U.S. Const., Am. 1. But the First Amendment confers no positive “right to use governmental mechanics to convey a message.” Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 127 (2011). And the First Amendment makes no promise that States will even have an initiative process. Jones v. MarkiewiczQualkinbush, 892 F.3d 935, 937 (7th Cir. 2018). Rather, it is “up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action.” John Doe No. 1 v. Reed, 561 U.S. 186, 212 (2010) (Sotomayor, J., concurring).
To be sure, States that adopt an initiative process must run it without violating rights the Constitution does guarantee. For instance, under the First Amendment’s Free Speech Clause, States that choose to have an initiative process cannot then abridge speech relating to the process. Take this Court’s decision in Meyer v. Grant, 486 U.S. 414 (1988). In that case, the Court invalidated a Colorado law that
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criminalized the payment of petition circulators. That crossed the line, this Court held, because it regulated “interactive communication” between petition circulators and potential signatories—it regulated who could communicate about an initiative. Id. at 421–22. That holding makes sense because “freedom of speech,” U.S. Const., Am. 1, “undoubtedly” includes the freedom to engage in political speech in the initiative context, “just as it” includes the freedom to engage in “speech intended to influence other political decisions,” Walker, 450 F.3d at 1099. It follows that laws “restrict[ing] the communicative conduct of persons advocating a position” on an initiative—for example, laws regulating who may advocate for the initiative’s passage— implicate the Free Speech Clause. Id. at 1100; see, e.g., Meyer, 486 U.S. at 415–16; Buckley v. Am. Constitutional Law Foundation, Inc., 525 U.S. 182, 187 (1999).
But while the “freedom of speech” includes the right to communicate during an initiative campaign or circulation drive, it does not include the freedom to ignore rules governing the mechanics of the initiative process. This flows from the fact that the initiative power is a legislative power; the “‘power of direct legislation by the electorate.’” Marijuana Policy Project, 304 F.3d at 85 (quoting Convention Ctr. Referendum Comm. v. D.C. Bd. of Elections, 441 A.2d 889, 897 (D.C. 1981) (en banc)). The nature of the power means that the People act as legislators when they make law by initiative. The First Amendment does not confer on legislators (or anyone else) a “right to use governmental mechanics to convey a message.” Carrigan, 564 U.S. at 127; see also Minn. State Bd. for Cmty. Colleges v. Knight, 465 U.S. 271, 283–84 (1984).
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Nor does the Free Speech Clause have anything to say about the process by which law is made. When a State regulates the process by which voter initiatives or legislative bills become law, how is it “abridging the freedom of speech”? Again, everyone seems to agree that there is no First Amendment right to legislate by initiative, Doe, 561 U.S. at 212 (Sotomayor, J., concurring), and that the right to free speech does not include any “right to use governmental mechanics to convey a message,” Carrigan, 564 U.S. at 127. Given that, how do these laws impact speech rights at all? The Ninth Circuit has suggested that such laws, at least in the initiative context, “indirectly impact core political speech” because they decrease the odds that the law in question will become “the focus of statewide discussion.” Angle v. Miller, 673 F.3d 1122, 1132 (9th Cir. 2011) (internal quotation omitted). That, however, proves too much. Every limit on the legislative power, including Article I’s limits on congressional power, “indirectly impact[s] core political speech” by making it less likely that issues beyond the legislative power become “the focus of [widespread] discussion.” Id. Thus, accepting this logic “would call into question all subject matter restrictions on what Congress or state legislatures may legislate about.” Schmitt, 933 F.3d at 649 n.3 (Bush, J., concurring in part and concurring in the judgment) (internal quotation omitted).
Putting all this together, courts must distinguish between laws “that regulate or restrict the communicative conduct of persons advocating a position in a referendum,” which implicate the First Amendment, and laws “that determine the process by which legislation is enacted, which do not.” Walker, 450 F.3d at 1100. Laws
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within the latter category limit legislative power, not expression, and such laws do not implicate the Free Speech Clause. Thus, while the Free Speech Clause applies to state laws restricting what initiative proponents may say to the public, it does not apply to laws that govern the process by which initiatives gain ballot access and become law.
2. Decisions from several circuits support this distinction. The D.C. Circuit’s decision in Marijuana Policy Project and the en banc Tenth Circuit’s decision in Walker are particularly illustrative.
In Marijuana Policy Project, the D.C. Circuit held that “the First Amendment imposes no restriction on the withdrawal of subject matters from the initiative process.” 304 F.3d at 86. The case involved a federal law prohibiting the District of Columbia from passing any law, by initiative or otherwise, that reduced penalties for drug-related crimes. Id. at 83. In upholding the prohibition, the D.C. Circuit stressed the difference between ballot access and speech surrounding a ballot issue. Id. The court noted that the initiative process is “‘a power of direct legislation by the electorate.’” Id. at 85 (quoting Convention Ctr. Referendum Comm., 441 A.2d at 897). While the “First Amendment protects public debate about legislation, it confers no right to legislate on a particular subject.” Id. Because the challenged law “silence[d] no one,” but instead just stopped them from legislating, it had no impact on the plaintiffs’ First Amendment rights. Id. at 86.
The en banc Tenth Circuit drew the same line in Walker. That case involved a First Amendment challenge to a provision of Utah’s constitution that required a
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supermajority for all initiatives involving wildlife-management issues. 450 F.3d at 1086, 1099. The Tenth Circuit held that Utah’s requirement did “not implicate the First Amendment at all.” Id. at 1099. The Tenth Circuit held that the supermajority requirement did not “regulate or restrict the communicative conduct of persons advocating a position” on issues being put to a vote, but rather set forth “the process by which legislation is enacted.” Id. at 1099–1100. And such laws, the court held, do not “implicate the First Amendment at all.” Id. at 1099
Decisions from other courts are in accord. See, e.g., Jones, 892 F.3d at 937– 38; Molinari v. Bloomberg, 564 F.3d 587, 597 (2d. Cir. 2009); Pony Lake Sch. Dist. 30 v. State Comm. for the Reorganization of Sch. Dists., 271 Neb. 173, 191 (Neb. 2006); Port of Tacoma v. Save Tacoma Water, 422 P.3d 917, 924–25 (Wash. Ct. App. 2018). Consider especially the Second Circuit’s decision in Molinari. That case addressed whether New York City’s City Council could repeal a local law passed by popular referendum. Molinari, 564 F.3d at 595. The Second Circuit held that the legality of such repeals did not implicate the First Amendment. Id. at 596. Relying on Walker, it explained that “First Amendment rights are not implicated by referendum schemes per se … but by the regulation of advocacy within the referenda process.” Id. at 602. New York City’s different legislative processes did not restrict referenda proponents “from engaging in First Amendment activity,” so the proponent’s First Amendment challenges failed. Id. at 599.
3. True enough, not all courts have recognized the distinction between laws regulating communicative conduct about initiatives and laws that simply regulate
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the initiative process. See, e.g., Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd., (“CITL”), 885 F.3d 443, 448 (6th Cir. 2018); Angle v. Mil-
ler, 673 F.3d 1122, 1132 (9th Cir. 2011); Wirzburger v. Galvin, 412 F.3d 271, 278
(1st Cir. 2005). But the weakness of their arguments for applying the Free Speech Clause to laws governing the mechanics of the initiative process bolsters the argument against the Clause’s application.
The first sign of weakness is that most of the courts that analyze these laws under the Free Speech Clause simply assume the Clause applies or provide only cursory reasoning. See, e.g., Wirzburger, 412 F.3d at 275, 279; Schmitt, 933 F.3d at 639. On the rare occasion that courts show their work, the results are unsatisfying. Again, courts that apply the First Amendment in this context absolutely must have an answer to the following question: When a State regulates the process by which voter initiatives become law, how is it “abridging the freedom of speech”? Most courts do not even try to answer this question. The only one that has—the Ninth Circuit—offered the unsatisfying explanation already rejected above: that such laws “indirectly impact core political speech” by decreasing the odds that proposed initiatives will qualify for the ballot and thereby become “the focus of statewide discussion.” Angle, 673 F.3d at 1133. Again, embracing that explanation entails calling into question all subject-matter and procedural limitations on the legislative process, since all such limitations “indirectly impact core political speech” by making legislation harder. See above 17; Schmitt, 933 F.3d at 649 n.3 (Bush, J., concurring in part and concurring in the judgment).
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In addition to their inability to explain why the First Amendment applies in this context, courts have yet to identify any good test for analyzing alleged violations. For example, the Sixth and Ninth Circuits apply the Anderson-Burdick test for which Thompson advocates here. But that test is poorly suited to the initiative context. It requires courts to “weigh ‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ 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). The first problem with applying Anderson-Burdick here stems from the already-discussed fact that no one can explain how laws regulating the mechanics of the initiative process “injur[e] … the rights protected by the First and Fourteenth Amendments.” Burdick, 504 U.S. at 434. Without a definable injury, the test makes no sense: asking whether an impossible-to-identify injury outweighs the State’s interests is about as sensible as asking “whether a particular line is longer than a particular rock is heavy.” Bendix Autolite Corp. v. Midwesco Enters., Inc., 486 U.S. 888, 897 (1988) (Scalia, J., concurring in the judgment).
There also is a second, more serious problem. Anderson-Burdick “is a dangerous tool.” Daunt v. Benson, 956 F.3d 396, 424 (6th Cir. 2020) (Readler, J., concurring in the judgment). It is a “quintessential balancing test,” and one that “does little to define the key concepts a court must balance.” Id. (internal quotation omit-
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ted). Thus, “Anderson-Burdick leaves much to a judge’s subjective determination.” Id. That discretion is unacceptable in the context of deciding what the initiative process within a given State should look like. Courts “are ill-suited to determine whether or not a state advances an important governmental interest” in the structuring of the State’s legislative power. Schmitt, 933 F.3d at 648–49 (Bush, J., concurring in part and concurring in the judgment). Indeed, courts should be especially deferential with respect to the questions of whether and how the People may wield the legislative power directly. Few issues more clearly bear on state sovereignty than the States’ processes for making law
* If it is true that the Free Speech Clause does not apply to laws governing the mechanics of the initiative process—or if the courts saying so are at least not demonstrably wrong—then Thompson’s application must be denied. None of Ohio’s signature requirements for ballot initiatives restrict communication between initiative proponents and the potential signatories they must convince. As a result, they do not trigger scrutiny under the Free Speech Clause. B. The challenged laws are constitutional under Anderson-
Burdick. Even assuming that laws regulating the mechanics of the initiative process are subject to Anderson-Burdick balancing, as the District Court held, the Sixth Circuit correctly held that the ink requirement, witness requirement, and signature deadlines pass constitutional muster. Appx.6–11.
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The Anderson-Burdick test is a “flexible standard.” Burdick, 504 U.S. at 434; see also Anderson, 460 U.S. at 789. As mentioned above, the test requires courts to balance voting burdens against state interests. Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789). It operates on a sliding scale. Laws that impose “severe” burdens receive strict scrutiny. Id. Laws that impose “lesser burdens” receive far more deference. Clingman v. Beaver, 544 U.S. 581, 586–87 (2005). For those less-than-severely-burdensome laws, the Anderson-Burdick test presumes that the State’s important interests in regulating elections will “usually be enough to justify reasonable, nondiscriminatory restrictions.” Id. (internal quotations omitted).
1. Ohio’s signature requirements impose (at most) moderate burdens.
Given Anderson-Burdick’s sliding scale, the first consideration is whether the challenged laws impose a severe burden or something less. Two points about burden measuring are especially relevant here. First, a burden qualifies as “severe” only if it makes exercising the First Amendment right “‘virtually impossible.’” Crawford v. Marion County Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring in the judgment) (quoting Storer v. Brown, 415 U.S. 724, 728–29 (1974)); accord Williams v. Rhodes, 393 U.S. 23, 24 (1968); Mays v. LaRose, 951 F.3d 775, 787 (6th Cir. 2020). Second, in measuring the severity of the burden, States are accountable only for the burdens they impose. That is so because, under 42 U.S.C. §1983, state actors are liable only for their own conduct, not private action. Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999); Appx.10. Thus, litigants cannot hold the State liable for the private decisions of third parties.
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Applying these principles here, Ohio’s ink requirement, witness requirement, and signature deadlines impose moderate burdens at most. Appx.8–11. Each provision no doubt makes it harder to legislate by initiative than it would otherwise be. But it does not follow that these provisions make ballot access virtually impossible. Far from it. These are all longstanding requirements that many initiative proponents have been able to satisfy in the past, including at least some of the plaintiffs. See Thompson Compl. ¶4, R.1, PageID#2. And the pandemic does not transform these requirements into severe burdens on direct democracy. For one thing, Ohio officials have consistently exempted First Amendment activity from their pandemicrelated restrictions. See above 6–7. And the April 30 order made express that people could continue circulating “petition[s] or referend[a].” April 30 Order ¶4, online at https://tinyurl.com/y7s6cre2. Thus, all of the plaintiffs and intervenors unquestionably had months to circulate their proposed initiatives. Ohio’s stay-at-home orders were not in effect during much of that time. See id.; May 20 Order, online at https://bit.ly/303A8de. And the signature-gathering deadlines have not even expired: those gathering signatures have until July 1 (for statewide initiatives) or July 16 (for municipal initiatives).
Thompson is in a particularly poor spot to assert a burden. Recall that Thompson seeks to advance municipal initiatives to decriminalize marijuana in several localities. Stip. Facts ¶¶3–4, R.35, PageID#469. Some of the municipalities he targets are quite small—for example, the village of Adena (population 704) and the township of Cadiz (population 3,481). See 2019 Population Estimates: Cities,
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Villages and Townships by County, Research Office (May 2020), online at https://bit.ly/2MObEwQ. To win access to the ballot, Thompson must obtain “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.” Ohio Rev. Code §731.28. Assuming (unrealistically) fifty-percent of the entire town population voted in the last election, that would mean just 36 signatures in Adena and 175 in Cadiz. Even taking Akron, Thompson’s largest target, he would need just 9,880 signatures assuming (again, very unrealistically) that half of the Rubber City voted in the 2018 governor’s race.
Given these relatively small numbers, it would seem any failure on Thompson’s part is more attributable to voters’ lack of interest or his own lack of effort than it is to the difficulty of gathering signatures during a pandemic. In recent months, organizations across this country have come up with many “contactless” ways to go about their business and interact with the public. Whether it be ordering a pizza, curbside shopping, or even buying a car, innovators have accomplished tasks the pandemic made harder. Surely Thompson and the other plaintiffs could have done the same. They could have, for example, “advertise[d] their initiatives within the bounds of our current situation, such as through social or traditional media inviting interested electors to contact them.” Appx.9–10. Or they could have set up booths outside food stores and other facilities, allowing interested parties to sign their names with disposable or sanitized pens from a safe distance. Or they could have solicited signatures door to door, maintaining a six-foot distance while
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speaking to the homeowner, and then, if the homeowner wished to sign, putting down the clipboard and allowing the signer to sign his or her name from six feet away. But, from the limited record the plaintiffs presented below, it appears that, instead of trying these alternatives, they just threw up their hands and sued.
On top of all this, the difficulty of signature gathering in a pandemic is “beyond the control of the State.” Appx.10. The State can exempt First Amendment activity from pandemic restrictions. But it cannot force private citizens to carry on with speech in the same way they usually would. So, if potential signers expressed limited interest over fear of the virus, that is attributable to their own choices, not state action.
Thompson failed to show that the deadlines, the ink requirement, or the witnesses requirement imposed a severe burden. The burden is moderate at most, as the Sixth Circuit correctly held.
2. Ohio’s compelling interests in a fair and orderly initiative process easily outweigh any non-severe burdens.
The moderate burdens must be balanced against the State’s justifications. To understand those justifications, begin by recognizing the reason that Ohio (and other States) require signatures. States have a “substantial” interest in “avoid[ing] overcrowded ballots.” Schmitt, 933 F.3d at 641 (internal quotation omitted). After all, if States were to put every initiative on the ballot, the ballot would be confusing and would likely dissuade democratic participation; voters have neither the time nor the interest to learn about every idea that every citizen might wish to turn into state law. “Limiting the number of referenda” and initiatives thus “improves the
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chance that each will receive enough attention, from enough voters, to promote a well-considered outcome.” Jones, 892 F.3d at 938. States reasonably limit ballot access to initiatives with “sufficient grass roots support.” Meyer, 486 U.S. at 425– 26.
Once States require signatures, they must ensure the signatures’ authenticity. See Buckley, 525 U.S. at 205. In other words, States have an interest in preventing fraud in the initiative process. They also have related-but-separate interests in ferreting out mistakes, promoting transparency, and preserving the public’s confidence in the initiative process. See Reed, 561 U.S. at 198; Crawford, 553 U.S. at 197 (op. of Stevens, J.). These interests are compelling as to all election-related laws, but particularly with respect to those that govern the initiative process. One reason is that signature gathering takes place, by and large, outside the presence of election officials. Moreover, there is often quite a bit of money riding on initiatives. For example, in 2015, proponents of a marijuana initiative stood to make millions (likely billions) because they had built a distribution monopoly into their proposed constitutional amendment. See Fears Of Marijuana ‘Monopoly’ In Ohio Undercut Support For Legalization, NPR (Sept. 2, 2015), online at https://n.pr/2B1763i; cf. State ex rel. ResponsibleOhio v. Ohio Ballot Bd., 2015-Ohio-3758 (2015). Those types of stakes, unfortunately, create financial incentives to cut corners. Thus, Ohio may be proactive in ensuring that self-interested proponents, hired circulators, and everybody else is playing fair throughout the initiative process. Cf. Munro v. Socialist Workers Party, 479 U.S. 189, 195–96 (1986).
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The ink and witness requirements further these interests. The ink requirement, by mandating a handwritten signature in ink, gives election officials signatures that they can then compare to the ones in voters’ records. The signatures thus aid election officials in fulfilling their “duty … to establish the authenticity of the elector.” Georgetown v. Brown Cty. Bd. of Elections, 158 Ohio St.3d 4, 9 (2019) (emphasis omitted). The witness requirement also helps counteract potential fraud. By requiring that petition circulators swear to having personally witnessed each signing, circulators have a strong incentive to keep close watch over the initiative petition and to stop improper signatures. Both requirements ensure that each elector signs the petition by themselves and not by proxy, and decreases the odds that fraud will corrupt Ohio’s initiative-lawmaking process. See State ex rel. Citizens for Responsible Taxation v. Scioto Cty. Bd. of Elections, 65 Ohio St.3d 167, 173–74 (1992). (As addressed below, and contrary to the District Court, it is not possible to further these interests using the last four digits of the signatory’s social security number, at least not without creating other serious problems.)
The deadlines for submitting signatures are vital, too. As a general matter, deadlines allow election officials to accomplish the many tasks they have to complete in the “busy pre-election period.” Mays, 951 F.3d at 787–88. More specifically here, Ohio’s signature deadlines ensure that petitions are submitted far enough in advance that election officials can verify the signatures in an orderly, fair fashion. In addition to allowing time for verification, the initial signature deadlines trigger other deadlines, which ensure, among other things, that initiative proponents and
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opponents can seek judicial review of adverse decisions about signatures. See Ohio Const., Art. II, §1g. And importantly, the ultimate cutoff for completing all initiative-related tasks comes long before Election Day, since ballots are sent six weeks early to military and overseas voters. See Ohio Rev. Code §3509.01(B)(1).
When all is said and done, Ohio’s compelling interests in an orderly, aboveboard initiative process easily justify all of its reasonable, nondiscriminatory signature requirements. Thus, the challenged laws pass muster even if AndersonBurdick applies.
C. The remaining factors also support the Sixth Circuit’s stay. Ohio’s strong likelihood of success in this case is more than enough to show that the Sixth Circuit’s stay was not “demonstrably wrong.” But, even apart from that, the potential harms of the District Court’s remedy independently justified staying the decision. As the Sixth Circuit rightly concluded, allowing that impractical and experimental remedy to remain would have injected great uncertainty into Ohio’s initiative lawmaking process with an election only “months away” and “interim deadlines” fast approaching. Appx.13.
1. The District Court ordered an unworkable remedy that exceeded its authority.
The District Court awarded the plaintiffs relief that was both impractical and improper. Remember that the District Court did not simply issue a negative injunction to stop Ohio’s signature requirements. It issued a positive injunction commanding that Ohio devise a system “to accept electronically-signed and witnessed petition” collected online. Appx.56. How, between now and any pre-November
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deadline for signature submission, is the State supposed to create a safe system for receiving and verifying electronic signatures submitted online? And even if the State manages to do so, how would it prove the safety so as to preserve the public’s confidence in the electoral process? The District Court had no answer to these questions. So, it told the parties to meet and confer to figure out all the “technical” and “security” issues; and then reach a solution in a week. Appx.55–56.
This is not a viable solution. First, any such online system would present tremendous security risks. Even the most thoughtfully designed online systems are vulnerable to attack, creating a risk that petitions signed electronically and emailed or submitted online can be manipulated. Cf. Letter to Governors and Secretaries of State on the insecurity of online voting, American Association for the Advancement of Science (April 9, 2020), online at https://bit.ly/3fjVaZz. A system developed and implemented on the fly, and with all the other pressures now facing state election officials, would be even more likely to have serious vulnerabilities.
Putting security concerns aside, any attempt to verify online signatures using the last four digits of signers’ social security numbers, as the District Court suggested, Appx.45, would prove unworkable. First, requiring this information would allow identity thieves posing as the State or as initiative proponents to credibly convince people to hand over their social security numbers. See Identity Theft and Your Social Security Number, Social Security Administration (June 2018), online at https://www.ssa.gov/pubs/EN-05-10064.pdf. The State has a strong interest in making clear to voters that they will never be asked to hand over this sensitive infor-
30

mation in order to support an initiative or referendum—and that anyone asking them to do so is a fraudster. Second, neither the Secretary of State nor the county boards of elections have the social security numbers of all registered voters. (That should come as no surprise, since Ohio does not require that voters provide this information when registering to vote. Ohio Rev. Code §3503.14(A)(5).) Finally, everyone agrees that the last four digits of a social security number, in contrast to the signatures on file with election officials, are not public records. See Ohio Rev. Code §149.45(A)(1)(a). That creates a problem for anyone hoping to challenge the validity of submitted signatures, as they will be unable to view the four digits linked to each “signature” even after making a public-records request. And even if would-be challengers could see those numbers, they would have no way of knowing whether the social security number matches the name of the voter to which it is linked on the petition. Thus, resorting to social security numbers would deprive initiative proponents and opponents of the ability to seek meaningful judicial review of ballotqualification decisions.
The District Court’s order enjoining the deadlines creates problems for would-be ballot-access challengers, too. Under the District Court’s order, the new deadline for submitting signatures is apparently July 31 (as mentioned above, the order is vague as to municipal initiative deadlines). But July 31 is also the date, under state law, by which challenges to the validity of signatures must be filed in Ohio’s Supreme Court. Grandjean Aff., R.40-1, PageID#560. The revised plan thus made it impossible for anyone to challenge the validity of submitted signatures.
31

The timing of the District Court’s decision creates more problems still. This Court has repeatedly cautioned that late-in-the-day injunctions affecting election procedures are disfavored. See, e.g., Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205, 1207 (2020) (per curiam); Purcell v. Gonzalez, 549 U.S. 1, 45, (2006) (per curiam). Such injunctions, in and of themselves, increase the risk of “voter confusion and [the] consequent incentive to remain away from the polls.” Purcell, 549 U.S. at 4–5. Any alteration of Ohio’s initiative process at this point would implicate these concerns. Although the election itself is months away, the signature deadlines are just weeks away—and altering deadlines and procedures now will affect the remainder of Ohio’s initiative process, including the deadlines waiting downstream. See Ohio Const., Art. II, §1g. Worse still, creating lastminute confusion over Ohio’s initiative requirements could create confusion over Ohio law itself. If an otherwise-ineligible issue makes it on the ballot, and is adopted, the State could be indefinitely saddled with a legal change (perhaps a constitutional change) that would not have been adopted but for federal interference.
Finally, and putting aside all the practical problems, the District Court strayed far beyond the role of an Article III court in crafting its injunction. When a constitutional violation exists, state officials—not federal courts—“have primary responsibility” for figuring out the cure. Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978). It follows that, “in devising” an equitable remedy, federal courts “must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution.” Missouri v. Jenkins, 515 U.S. 70, 88 (1995)
32

(quoting Milliken v. Bradley, 433 U.S. 267, 280-81 (1977)). There are, after all, “[t]wo clear restraints on the use of the equity power” that “derive from the very form of our Government”—federalism and the separation of powers. Id. at 131 (Thomas, J., concurring). These restraints should give federal courts “pause before using their inherent equitable powers to intrude into the proper sphere of the States.” Id. “When district courts seize complete control over” a State’s election process, they “strip” the State “of one of” its “most important governmental responsibilities, and thus deny” its “existence as” an “independent governmental” entity. Id. They also exceed their authority under Article III: “There simply are certain things that courts, in order to remain courts, cannot and should not do.” Id. at 132. One of those things is amending a State’s initiative process. Despite these principles, the District Court substituted its wisdom for Ohio’s: it rewrote Ohio’s Constitution and Revised Code by “cho[osing] a new deadline and prescrib[ing] the form of signature the State must accept.” Appx.12.
2. Reinstating the District Court’s injunction would harm Ohio and the public.
“[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, 133 S. Ct. 1, 3 (2012)) (Roberts, C.J., in chambers) (alteration in original) (quotations omitted). The same goes for state constitutional provisions adopted by the People directly. Thus, an injunction “seriously and irreparably harm[s]” a State any time it wrongly “bar[s] the State from conducting … elections pursuant to a statute enacted by the Legislature” or a constitutional provision ratified by the Peo-
33

ple themselves. Abbott v. Perez, 138 S. Ct. 2305, 2324 (2018). Here, since Ohio’s signature requirement do not even implicate—much less violate—the First Amendment, any injunction of those requirements would result in irreparable harm to the State.
The public interest comes out the same way. That interest lies in a correct application of constitutional law and “upon the will of the people of [Ohio] being effected in accordance with [Ohio] law.” Coalition to Defend Affirmative Action v. Granholm, 473 F.3d 237, 252 (6th Cir. 2006) (per Sutton, J.). Because Ohio’s signature requirements are lawful, the Court should not disrupt “the will of the people” by enjoining parts of Ohio’s Constitution and Revised Code. Additionally, while this case is brought by proponents of certain initiatives, many oppose those initiatives. See Br. of Amici Curiae Ohio Manufacturers Assoc., et. al., Doc.29-2, (6th Cir.). Initiative opponents will suffer harm if the plaintiffs receive a shortcut to the ballot.
That leaves only the question “whether issuance of the stay will substantially injure the other parties interested in the proceeding.” Nken, 556 U.S. at 434. It will not; at least, it will not impose an injury the law cares to acknowledge. While the stay requires Thompson to comply with Ohio law, he has no right not to comply with that law. And even if Thompson fails to qualify his initiatives for the November 2020 ballot, he can try again at the very next election. That distinguishes this case from the case of a political candidate, who cannot run again until the office is up for election.
34

On a final note, this case is not over. If the Sixth Circuit agrees with Thompson that his constitutional rights have been violated, it will then, presumably, craft a remedy—one more workable than that envisioned by the District Court. II. Thompson’s arguments are unpersuasive.
Thompson’s attempts to establish clear and demonstrable error come up short. To begin, he suggests that every circuit agrees about how the First Amendment applies in the initiative context, Appl.28, only to later admit that there is actually a circuit split on the topic, Appl.29. Thompson treats that split as an afterthought, but it is actually fatal to his application. As explained already, the fact that circuits have disagreed as to whether the First Amendment applies to initiative procedures at all makes it hard to show that the Sixth Circuit clearly and demonstrably erred. Lux, 561 U.S. at 1308 (Roberts, C.J., in chambers). Indeed, two of the Nation’s most eminent jurists—namely, Judge Tatel and former Judge McConnell—would have gone even farther than the Sixth Circuit, upholding the challenged laws without even subjecting them to First Amendment scrutiny.
Thompson’s other arguments fare no better. Consider his reliance on South Bay United Pentecostal Church v. Newsom, 590 U.S. __, Case No. 19A1044 (May 29, 2020), which serves as the cornerstone of his application. In that case, this Court declined to grant emergency injunctive relief to a California-based church that wished to assemble in numbers larger than California’s stay-at-home order permitted. Thompson tries to link the decision in that case to the stay order in this one through a few steps. He first notes that Chief Justice Roberts, in his concurring opinion in South Bay, explained that he voted to deny injunctive relief because it
35

was not “‘indisputably clear’” that California’s restrictions violated the First Amendment. Appl.18 (quoting South Bay, slip op.3). From this, Thompson infers that the First Amendment’s application is often (perhaps always) unclear. Why does that matter here? Because, Thompson says, if it is unclear what the First Amendment covers, then the First Amendment exemptions in Ohio’s stay-at-home orders, see above 6–7, gave circulators no confidence that they could gather signatures while the stay-at-home order remained in effect. See Appl.18. Therefore, he concludes, the challenged laws impose a significant burden.
This argument suffers from several flaws. Right off the bat, Thompson overstates any vagueness of Ohio’s First Amendment exemption as applied to the collection of signatures. This Court’s cases leave zero doubt that petition circulation is communicative activity protected by the First Amendment. Meyer, 486 U.S. at 421– 22; Buckley, 525 U.S. at 186–87. So an exemption for First Amendment activity covered signature collection, even if the exemption’s precise boundaries were unclear in other circumstances.
In any event, it is undisputed that the State began expressly permitting signature-gathering campaigns on April 30, and Thompson has until mid-July to collect signatures supporting municipal initiatives. Thompson speculates that postApril signature-collection efforts would have been unsuccessful. See Appl.12. But he submitted no evidence about his signature collection efforts—including any attempts to adapt his efforts to pandemic times—despite having the burden to justify a preliminary injunction. Thus, contrary to Thompson’s repeated suggestions, any
36

evidentiary gap is his fault, not the State’s or the Sixth Circuit’s. See Appl. 13, 16, 27. What is more, Thompson misstates Ohio’s social-distancing requirements as an absolute command. Appl.6. While the stay-at-home orders did indeed impose social-distancing requirements, they also required maintaining a six-foot distance only “as much as reasonably possible.” March 22 Order ¶1, online at https://tinyurl.com/y8urb7mn (emphasis added). If someone practicing a permitted activity (like signature gathering) briefly pierced the six-foot halo (to hand over a pen, perhaps), the piercing was necessary and therefore permitted. In any event, circulators could collect signatures while properly distancing. See above 25–26.
Three other points about South Bay are worth mentioning. First, the fiveJustice majority did not issue an opinion explaining its decision. Thompson quotes liberally from the Chief Justice’s concurrence, which no one else joined. Second, even if the concurrence had commanded a majority, it addressed the clarity of a church’s entitlement to relief under the Religion Clauses—it had nothing to do with the Free Speech Clause, which is the clause at issue here. Third, the Chief Justice’s concurrence supports the State, not Thompson. The Chief Justice stressed that “[o]ur Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’” South Bay, slip op.2 (quoting Jacobson v. Massachusetts, 197 U. S. 11, 38 (1905)). In other words, the judiciary should not generally second-guess State officials’ judgments as to when and how to calibrate responses to a health emergency. Here, Ohio chose not to amend its signature-gathering laws, even as its legislature deliberated and
37

adopted other electoral changes. The Chief Justice’s opinion counsels against pandemic-motivated judicial tinkering with Ohio law.
Thompson also relies heavily on the Sixth Circuit’s unpublished decision in Esshaki v. Whitmer, No. 20-1336, 2020 U.S. App. LEXIS 14376 (6th Cir., May 5, 2020). Of course, unpublished circuit decisions are not binding even in the circuit courts, let alone this Court. Regardless, the Sixth Circuit correctly distinguished this case from Esshaki in its opinion below. In Esshaki, Michigan had abruptly criminalized the collection of signatures through its incredibly strict stay-at-home orders, all in “the last month before the deadline.” Appx.8. It was “the combination of” Michigan’s ballot-access provisions with its stricter stay-at-home restrictions that led the Sixth Circuit to find a severe burden. Esshaki, 2020 U.S. App. LEXIS 14376 at *3 (emphasis added). That combination is lacking here, since Ohio always exempted signature gathering from its pandemic restrictions, and expressly so since April 30. On top of those distinctions, Ohio also began lifting its already-morelenient stay-at-home restrictions long before Thompson’s July 16 deadline.
Thompson also relies heavily on a forthcoming article by popular commentator Rick Hasen. See Richard L. Hasen, Direct Democracy Denied: The Right to Initiative in a Pandemic, U. Chic. L. Rev. Online (2020) (reproduced in Thompson’s Appendix beginning at App.217). The reliance is misplaced. First, the article focuses on how the author believes the law should be, not the law’s actual state. It openly welcomes courts putting a “thumb on the scale favoring” election litigants in pandemic litigation. App.218. And it sets aside the Court’s “controversial decision”
38

in Republican National Committee v. Democratic National Committee. Appx.218. Academic work of that nature deserves no special weight here. See Kansas v. Nebraska, 574 U.S. 445, 476 (2015) (Scalia, J., concurring in part and dissenting in part).
Anyway, the article, which is still in draft form, misstates basic facts. For example, the article says the Sixth Circuit found the burden in this case to be “minor,” App.226, when in fact the Sixth Circuit in this case said the burden was “intermediate,” App.10. That is a significant error: whereas minor burdens are subject to an exceedingly deferential form of review approximating rational-basis review, intermediate burdens are subjected to Anderson-Burdick balancing. See Schmitt, 933 F.3d at 639. The article also errs by suggesting that the en banc Tenth Circuit, in Walker, did not consider the First Amendment’s application to a law governing the mechanics of a state-initiative process. Appx.226 n.56. In fact, the challenged law involved a provision in Utah’s constitution that imposed a procedural requirement (in the form of a supermajority-vote requirement) on certain initiatives. Walker, 450 F.3d at 1085.
Regardless, the article still helps show why the Court should deny Thompson’s application here. It notes that, “[f]or the most part, courts have been unsympathetic to the claims of ballot measure proponents.” Appx.221. And it acknowledges the “host of difficult problems,” including concerns of federalism and separation of powers, that these types of cases raise, including the intrusiveness of courtmandated relief. Appx.225. These observations reflect that, even assuming room
39

for disagreement, the Sixth Circuit’s decision to stay the District Court’s injunction
was not demonstrably wrong.
CONCLUSION The Court should deny the application for emergency relief.
Respectfully submitted,
DAVE YOST Ohio Attorney General /s/ Benjamin M. Flowers BENJAMIN M. FLOWERS* Solicitor General
*Counsel of Record MICHAEL J. HENDERSHOT Chief Deputy Solicitor General ZACHERY P. KELLER SHAMS H. HIRJI Deputy Solicitors General 30 East Broad Street, 17th Floor Columbus, Ohio 43215 614-466-8980 614-466-5087, fax benjamin.flowers@ohioattorneygeneral.gov
Counsel for Respondents Ohio Governor Mike DeWine; Lance Himes, Director of the Ohio Department of Health; and Ohio Secretary of State Frank LaRose
40

 
 In The Supreme Court of the United States
No. 19A1054
CHAD THOMPSON; WILLIAM T. SCHMITT; DON KEENEY,
Plaintiffs - Appellees - Applicants
v.
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 - Respondents
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, Proposed Intervenors - Appellees
OHIOANS FOR RAISING THE WAGE; ANTHONY CALDWELL; JAMES E. HAYES; DAVID G. LATANICK; PIERRETTE M. TALLEY,
Proposed Intervenors - Appellees
Application to the Honorable Sonia Sotomayor Associate Justice of the United States Circuit Justice for the Sixth Circuit

APPLICANTS' REPLY

Oliver B. Hall CENTER FOR COMPETITIVE DEMOCRACY P.O. Box 21090 Washington, D.C. 20009 (202) 248-9294 oliverhall@competitivedemocracy.org

Mark R. Brown 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu Counsel of Record Attorneys for Applicants

TABLE OF CONTENTS Page
Table of Authorities ...................................................................................................... ii Reasons to Vacate Stay ............................................................................................... 1 I. The Panel's Factual Assumptions About And Understandings Of Ohio's Orders And The COVID-19 Crisis Are Clearly Erroneous. ..................................................... 1 A. The Crisis Continues. .............................................................................................. 1 B. Ohio Has Not Re-Opened. ....................................................................................... 2 II. The District Court Did Not Order Any Affirmative Relief for Applicants. ........... 6 III. Applicants Did Not Have Months to Collect Signatures Before COVID-19. ....... 7 IV. Ohio's Claim That Applicants' Activity Was Not Protected By The First Amendment Proves That it Could Not Have Been Exempted By a "First Amendment" Exemption. ............................................................................................. 8 V. Applicants Must Collect Hundreds and Thousands of Signatures in Several Different Cities Across Ohio. ........................................................................................ 9 VI. The Panel's Logic Threatens Signature Collection Efforts Across the Country. 10 A. The Seventh Circuit Rejects Thompson. .............................................................. 11 B. Thompson's Impact in Ohio, the Sixth Circuit and Elsewhere. .......................... 13 Conclusion .................................................................................................................... 19 Certificate of Service ................................................................................................... 20 Appendix
i

TABLE OF AUTHORITIES

Cases

Page

Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020) ................................. 15

Bond v. Dunlap, 1:20cv-216 (D. Me., filed June 19, 2020) ........................................ 10

Duncan v. LaRose, No. 2:20-cv-2295 (S.D. Ohio, June 4, 2020) ............................... 13

Esshaki v. Whitmer, __ Fed. App'x __, 2020 WL 2185553 (6th Cir., May 5, 2020) ................................................................................................ 18

Fair Maps Nevada v. Cegavske, 2020 WL 2798018 (D. Nev., May 29, 2020) .......... 18

Gottlieb v. Lamont, 2020 WL 3046205 (D. Conn., June 8, 2020) ............................. 17

Hawkins v. DeWine, No. 2:20-cv-2781 (S.D. Ohio, filed May 29, 2020) ................... 13

Jacobson v. Massachusetts, 197 U.S. 11 (1905) ........................................................ 15

Libertarian Party of Illinois v. Pritzker, slip op., No. 20-1961 (7th Cir., June 21, 2020) ............................................................................................................................ 12

Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687 (N.D. Ill., Apr. 23, 2020), appeal pending, No. 20-1961 (7th Cir., filed June 6, 2020) ................................. 11, 12

Maryland Green Party v Hogan, 1:20cv-1253 (D. Md., June 19, 2020) .................... 10

SawariMedia, LLC v. Whitmer, 2020 WL 3097266 (W.D. Mich., June 11, 2020) ........................................................................... 14, 15, 16

Sinner v. Jaeger, 2020 WL 3244143 (D.N.D., June 15, 2020) ................................... 16

South Bay United Pentecostal Church v. Gavin, 590 U.S. __, No. 19A1044 (May 29, 2020) ............................................................................... 14, 15

Thompson v. DeWine, 959 F.3d 804 (6th Cir. 2020) ..........................................passim

Statutes and Codes Columbus (Ohio) City Code, § 902.02 ........................................................................... 5 Ohio Revised Code § 731.32 .......................................................................................... 7
ii

Executive Rules and Orders Director's Order that Rescinds and Modifies Portions of the Stay Safe Ohio Order, May 20, 2020 .................................................................................................................. 2 Ohio Department of Health Director's Order Re: Director's Updated and Revised Order for Business Guidance and Social Distancing, May 29, 2020 ........................... 3
Miscellaneous Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, June 20, 2020 ... 1 DeWine warns ‘risk is up’ as Ohio continues reopening process: 'This is a high-risk operation', 10tv.com, May 8, 2020 ................................................. 6 Ohio Coronavirus Map and Case Count, N.Y Times, June 20, 2020........................... 1 Richard H. Pildes, The Constitutional Emergency Powers of Federal Courts, SSRN, June 17, 2020 ................................................................................................... 19 Richard L. Hasen, Direct Democracy Denied: The Right to Initiative in a Pandemic, 2020 U. CHIC. L. REV. ONLINE 1, 6 (May 27, 2020) ......................................... 4, 10, 18 Justin Levitt, The list of COVID-19 election cases, ElectionLawBlog, June 11, 2020 ............................................................................... 10 Randy Ludlow, Coronavirus in Ohio: Gov. Mike DeWine warns virus remains 'a dangerous risk' even as state reopens, Columbus Dispatch, May 12, 2020 ........... 1, 6
iii

Reasons to Vacate Stay I. The Panel's Factual Assumptions About And Understandings Of Ohio's
Orders And The COVID-19 Crisis Are Clearly Erroneous. A. The Crisis Continues. According to the New York Times, "[m]ore than 2,253,100 people in the United States have been infected with the coronavirus and at least 119,500 have died." Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, June 20, 2020.1 "There have been at least 44,262 cases of coronavirus in Ohio, according to a New York Times database. As of Saturday afternoon [June 20, 2020], at least 2,697 people had died." Ohio Coronavirus Map and Case Count, N.Y Times, June 20, 2020.2 The New York Times data reports that Ohio saw more COVID-19 cases on June 18, 2020 (700 cases) and June 19, 2020 (609 cases) than it had seen since May 29, 2020, when it reported 651 cases. Id. (interactive chart). As Governor DeWine warned when he began relaxing Ohio's emergency orders, Ohio remains at a "dangerous risk." See Randy Ludlow, Coronavirus in Ohio: Gov. Mike DeWine warns virus remains 'a dangerous risk' even as state reopens, Columbus Dispatch, May 12, 2020.3
1 https://www.nytimes.com/interactive/2020/us/coronavirus-uscases.html?auth=link-dismiss-google1tap. 2 https://www.nytimes.com/interactive/2020/us/ohio-coronavirus-cases.html. 3 https://www.dispatch.com/news/20200512/coronavirus-in-ohio-gov-mike-dewinewarns-virus-remains-rsquoa-dangerous-riskrsquo-even-as-state-reopens.
1

B. Ohio Has Not Re-Opened. Disregarding these realities in both its argument to the Sixth Circuit and here, Ohio continues to insist that all is well; it has "re-opened." Respondents erroneously represent to this Court, for example, that "[n]early all [emergency orders] have been eased or eliminated as the State 'reopens.'" Respondents' Opposition to Emergency Application to Vacate the Sixth Circuit's Stay (hereinafter "Response"), at 6. This false claim unfortunately convinced the Sixth Circuit: "Ohio is beginning to lift their stay-at-home restrictions. On May 20, the Ohio Department of Health rescinded its stay-at-home order." Thompson v. DeWine, 959 F.3d 804, 810 (6th Cir. 2020). The May 20, 2020 Order referenced, however, did no such thing. The May 20, 2020 Order, brief as it is, stated without elaboration only that a single prior requirement that people "stay at home or at their place of residence" was lifted. See Director's Order that Rescinds and Modifies Portions of the Stay Safe Ohio Order, May 20, 2020.4 Whether this was just another litigation tactic like the April 30, 2020 Order is unclear, but one thing is plain: the May 20, 2020 order did not mention Ohio's many prohibitions on "gatherings" or requirements that people maintain safe six foot distances. These restrictions were included in several prior orders and are the crux of the signature circulation problem. They remained in place even after the May 20 order, and are still the law in Ohio to this day. Indeed, on May 29, 2020 -- three days after the Sixth Circuit stayed the District Court's preliminary injunction and the litigation in this case seemed to be
4 https://coronavirus.ohio.gov/static/publicorders/Stay-Safe-Partial-Rescission.pdf.
2

at an end -- Ohio extended its emergency bans on gatherings and distancing requirements until July 1, 2020. See Ohio Department of Health Director's Order Re: Director's Updated and Revised Order for Business Guidance and Social Distancing, May 29, 2020.5
Like the many emergency orders before it, the new May 29, 2020 order allows some businesses to remain open or re-open in limited fashions (including requiring social distancing),6 continues to absolutely prohibit "[a]ll public and private gatherings of greater than 10 people occurring outside a single household and connected property … except for the limited purposes permitted by Orders of the Director of Health," and requires physical distancing in all gatherings that are allowed. The only "gathering" exceptions are for (1) weddings (with limitations) and funerals, (2) "religious facilities, entities and groups and religious gatherings," (3) "First Amendment protected speech," (4) since its April 30, 2020 order was released "petition or referendum circulators," and (5) "activity by the Media."
Further, the May 29, 2020 order reiterated that all "indoor family entertainment businesses and venues" are to remain closed until at least July 1, 2020. This is important, because "entertainment venues" includes "auditoriums,
5 https://coronavirus.ohio.gov/static/publicorders/revised-business-guidance-sd.pdf. 6 Even for those businesses that have now been allowed to re-open, and even for those persons allowed under the gatherings exceptions to venture out, they must continue to practice social distancing under the terms of the May 29, 2020 order. "Social Distancing," according to the May 29, 2020 order, "includes maintaining at least six-foot social distancing from other individuals, washing hands with soap and water for at least twenty seconds … or using hand santizer, covering coughs or sneezes …, regularly cleaning high-touch surfaces, and not shaking hands."
3

stadiums, [and] arenas," where signature collection is common, efficient and productive. Closing these places means there are no sporting events, concerts, rallies, or celebrations that make mass signature collection possible.
On top of those closings, Ohio's emergency orders, including its May 29, 2020 orders, expressly prohibit inside and outside "parades, fairs, [and] festivals." This prohibition, coupled with the other gathering bans, necessarily spells the end to meaningful in-person signature collection in Ohio. It is simply impossible to collect thousands of signatures over a limited length of time without doing so at big events. Door-to-door solicitation is helpful, but collecting thousands upon thousands of signatures in a matter of a few weeks requires a high encounter rate, one that can only be achieved where there are lots of people. Lots of people gathered together in Ohio is illegal and dangerous.
In sum, for at least five weeks in Ohio circulators risked arrest and prosecution for violating any one of Ohio's many emergency orders. Beginning on April 30, 2020, Ohio allowed circulators to collect signatures, but continued to impose distancing requirements on everyone and prohibit gatherings of ten or more people, including "parades, fairs, and festivals." All arenas, auditoriums, and stadiums remained closed and will remain closed until at least July 1, 2020. There can be no denying that the audience once available to circulators simply no longer exists in Ohio, and will not exist for some time to come.
In spite of all this and "without evidence," Richard L. Hasen, Direct Democracy Denied: The Right to Initiative in a Pandemic, 2020 U. CHIC. L. REV.
4

ONLINE 1, 10 (May 27, 2020) (cited with permission),7 the motions Panel below
"[d]ismiss[ed] the realities of how the pandemic had essentially ended successful
petitioning activity" in Ohio. Id. at 9. "[W]e cannot hold private citizens’ decisions
to stay home for their own safety against the State," the Panel said. Thompson v.
DeWine, 959 F.3d at 810. "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." Id. at 811.
Even if half of the circulation time previously allowed by Ohio was lost to the
pandemic, the Panel surmised, "the five-week period from Ohio’s rescinding of its
order until the deadline" affords them more than enough time. Id. at 810. Further,
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.
Id.8 The Panel's armchair quarterbacking may be quaint, but it is hardly realistic.
It reflects a clearly erroneous understanding of how massive signature collection
efforts work, and how difficult it is to gather signatures even in ordinary times. It
7 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3608472.
8 It is not at all obvious how circulators could accomplish this latter technique suggested (without evidence) by the Sixth Circuit. Most cities in Ohio prohibit placing obstructions, such as card tables, on sidewalks and streets. See, e.g., Columbus (Ohio) City Code, § 902.02. Collecting signatures thus cannot proceed like a check-out line at a grocery store, where papers can be left on tables with sanitized pens for willing voters who queue up in six foot intervals waiting to sign.
5

can hardly be squared with Governor DeWine's own public life-and-death warnings, both before and after Ohio's gradual re-opening began. See Ludlow, supra,; DeWine warns ‘risk is up’ as Ohio continues reopening process: 'This is a high-risk operation', 10tv.com, May 8, 2020.9
Albert Schweitzer once said that "All true living is face to face." That wisdom is now ancient history in Ohio and across the United States. Courts remain closed, schools are closed, businesses are closed, sports stadia are empty, baseball is on hold, parades, festivals, fairs and other gatherings of more than ten people are illegal. People must remain six feet apart. True living as Albert Schweitzer experienced it will not return for some time. Neither will face-to-face signature collection. The Sixth Circuit's factual finding to the contrary is clearly erroneous. II. The District Court Did Not Order Any Affirmative Relief for Applicants.
Respondents make much of the District Court's orders setting aside the deadline for the state-wide initiatives and directing Defendants to consider allowing remotely collected signatures for state-wide initiatives. See Response at 1, 29-32. They conveniently fail to mention, however, that none of this affirmative relief applied to Applicants. None of it applied to Ohio's distinct local initiative process, which is distinct and is all Applicants challenged. The only relief afforded Applicants was a negative injunction prohibiting enforcement of the July 16, 2020
9 https://www.10tv.com/article/dewine-warns-risk-ohio-continues-reopening-processhigh-risk-operation-2020-may.
6

deadline and Ohio's in-person signature requirement. Solutions beyond that were left completely to the State.
Respondents also incorrectly claim that "Thompson submitted no evidence at all." Response at 9. Applicant-Thompson submitted a Verified Complaint, which is not only testimonial but was not contested. The parties, moreover, stipulated to all the facts needed to support a negative injunction, which is all Applicants received. Defendants, meanwhile, were repeatedly invited by the Court to submit evidence in rebuttal, but they chose not to. Instead, they stipulated to all the facts that were necessary to support the District Court's negative injunction for Applicants.
III. Applicants Did Not Have Months to Collect Signatures Before COVID-19.
Respondents erroneously assert that Applicants had "months" to collect signatures before COVID-19. Response at 1. This is not true. Ohio law prohibits those circulating local initiatives from doing so before initially filing their proposed ordinances with local officials. See Ohio Rev. Code § 731.32. Applicants in the present case, as stipulated by the parties, filed the relevant initiatives with local officials on February 27, 2020. See Stipulated Facts, R.35, at PAGEID # 469. That means they could begin collecting signatures that were due by July 16, 2020 no sooner than late in the day on February 27, 2020. COVID-19 and Ohio's emergency orders effectively closed the State no later than March 22, 2020 (and effectively much sooner). Ohio did not purportedly even "allow" circulators to begin collecting again until April 30, 2020 (after this litigation commenced).
7

Thus, even assuming that circulation was possible beginning on May 1, 2020, Applicants lost at least five weeks of circulation time, had at most three weeks before COVID-19 hit to collect signatures, and in total would have had roughly 18 weeks to collect signatures in the absence of COVID-19. Far from having "months" to circulate at their leisure as Respondents claim, Applicants had only 18 weeks assuming there was no pandemic, lost at least five weeks to Ohio's closure, lost much more than that because of COVID-19, and continue to suffer the effects of COVID-19 moving forward. As Courts and Elections Officials across the country have recognized, collecting thousands of signatures face-to-face is simply not possible under the current circumstances.
IV. Ohio's Claim That Applicants' Activity Was Not Protected By The First Amendment Proves That it Could Not Have Been Exempted By a "First Amendment" Exemption. Respondents principal argument is that this Court should let the Sixth
Circuit's stay stand because the Applicants' circulation does "not implicate the Free Speech Clause at all." Response at 2 (emphasis original). Given this claim, they have necessarily admitted that Ohio's "First Amendment protected speech" exception, which proved so "vitally" important to the Sixth Circuit, could not have protected Applicants' circulation efforts before April 30, 2020. Respondents have necessarily conceded that the Sixth Circuit's conclusion is premised on a mistaken reading of Ohio's orders and constitutional law. This, all by itself, justifies setting aside the stay.
8

That Respondents later attempt to back-track and claim that "Ohio's stay-athome orders always exempted First Amendment activity, including signature gathering," Response at 3 (emphasis original), is simply inexplicable. How could circulation not be protected by the First Amendment at all, as Respondents emphasize to defeat this Court's involvement, yet be protected as First Amendment activity for purposes of Ohio's "First Amendment protected speech" exception? Respondents' argument is duplicitous at best and curious to say the least.
V. Applicants Must Collect Hundreds and Thousands of Signatures in Several Different Cities Across Ohio. Respondents argue that Applicants bear little burden because they have few
signatures to collect. Response at 23-24. This is not true. The cherry-picked villages that Respondents point to are small, but many of the Cities Applicants target are quite large. In Akron, for example, where Applicants filed before February 27, 2020, see Stipulated Facts, R.35, at PAGEID # 469, the population approaches 200,000. Id. Ohio law, modified by the Akron City Charter, requires that Applicants collect signatures from registered voters totaling no less than 7% of the number of votes cast in Akron during the last gubernatorial election. This translates into several thousand required signatures, just for Akron alone. Respondents even concede that this number likely approaches 10,000 signatures just for this single City. Response at 24. Putting all of the Villages and Cities together that Applicants target, the total number swells to thousands upon thousands in disparate locations across the State.
9

VI. The Panel's Logic Threatens Signature Collection Efforts Across the Country. Challenges to States' strict in-person signature collection requirements for
candidates and initiatives continue to be filed in Ohio, States within the Sixth Circuit, and across the country. The list of 100+ pending COVID-19 related cases reported by Professor Levitt, see Justin Levitt, The list of COVID-19 election cases, ElectionLawBlog, June 11, 2020,10 gets bigger every day. See, e.g., Bond v. Dunlap, 1:20cv-216 (D. Me., filed June 19, 2020) (challenge by independent candidate in Maine who needs 4000 signatures); Maryland Green Party v Hogan, 1:20cv-1253 (D. Md., June 19, 2020) (announcing settlement agreement reached between board of elections and party requiring 5,000 signatures instead of usual 10,000).
The Sixth Circuit's published decision in Thompson v. DeWine, 959 F.3d 804, reflects a United States Court of Appeals' first stab at the ballot access/COVID-19 dilemma. Unfortunately, the Sixth Circuit's stab is so flawed, "deeply problematic," Hasen, supra, at 6, and "dismissive of the rights of direct democracy," id. at 2, that it "portends bad things to come" in States across the country. Id. (footnote omitted).
If correct and followed by other Courts -- and that now appears to be happening -- Thompson threatens ballot access across the United States. Its faulty "COVID-19 is not that bad" logic has hamstrung the frontline jurists needed to properly conduct the required fact-finding on a case-by-case basis. Perhaps even more worrisome for the COVID-19 future, the Sixth Circuit's holding encourages
10 https://electionlawblog.org/?p=111962. 10

citizens to ignore content-neutral emergency restrictions based on their purported "First Amendment protected" rights.
If the Sixth Circuit's stay (and the logic behind it) stands, it risks quickly setting a misguided precedent for the rest of the United States during this continuing time of crisis. States will begin building into their emergency orders vague First Amendment exemptions that can only spell future difficulties, Courts will begin un-remembering the terrible burdens COVID-19 has placed on and continues to cause its people, and democracy will suffer a serious blow. The reality is, as numerous Courts before Thompson recognized, there is simply no way that circulators can collect the necessary signatures in-person and up close with pen and paper during a killing pandemic. This reality is not going to change in the foreseeable future even as States begin relaxing restrictions. Like it or not, COVID19 marks a sea change in America's experiment with popular democracy.
In terms of Thompson's dual propositions that (1) COVID-19 was never that serious in the first place and (2) federal courts are not constitutionally equipped to address its ramifications, post-Thompson precedents have thus far produced mixed results.
A. The Seventh Circuit Rejects Thompson. In Illinois the State Elections Board, emboldened by Thompson, belatedly attempted to use it to unravel a month-old order directing it to relax signature collection requirements because of COVID-19. See Libertarian Party of Illinois v. Pritzker, 2020 WL 1951687 (N.D. Ill., Apr. 23, 2020), appeal pending, No. 20-1961
11

(7th Cir., filed June 6, 2020). On June 9, 2020, repeatedly citing Thompson, it asked the Seventh Circuit to reinstate the State's June 22, 2020 deadline, remove candidates from the ballot, and undo the District Court's order allowing remote signature collection. See Appellants' Brief, No. 20-1061, Doc. No. 13 (7th Cir., filed June 15, 2020).
The Seventh Circuit, after two rounds of briefing, on June 21, 2020, denied the Illinois State Board of Elections Request. See Libertarian Party of Illinois v. Pritzker, slip op., No. 20-1961, Order, Doc. No. 23 (7th Cir., June 21, 2020) (Attachment 1). The Seventh Circuit noted the Board's argument under Thompson that a Federal Court is not "in the best position to determine the necessary election modifications that will balance the rights of candidates to access the ballots," id. at page 5, but rejected it. "[N]owhere in its motions papers does [the Board] explain what, if any, changes it would make to the statutory petition requirements to ensure that independent candidates are not excluded from the ballot. Nor does it acknowledge the serious safety concerns and substantial limitations on public gatherings that animated the parties’ initial agreement and persist despite some loosening of restrictions in recent weeks." Id. It accordingly refused the Board's request for a stay.
Had it followed Thompson, of course, the Seventh Circuit would have granted the stay. Ohio, after all, also failed to explain in Thompson what changes it would make to accommodate candidates and initiatives. The District Court instructed it to, but the Sixth Circuit stayed even this aspect of the lower Court's order. Like
12

Illinois, Ohio failed to acknowledge "the serious safety concerns and substantial limitations on public gatherings" that continue to exist, yet that did not matter to a Sixth Circuit Panel that agreed with Ohio's new-found sentiments.
The Seventh Circuit's decision reflects a common problem in this spate of COVID-19 election litigation. Those States that want to help do so quickly and voluntarily. Those that don't, like Illinois, Ohio and Michigan (discussed below), steadfastly refuse any measure of cooperation. When this happens, and it is happening frequently, Courts must be able to take action to correct constitutional deficiencies. They cannot be handicapped in the fashion mandated by the Sixth Circuit in Thompson.
B. Thompson's Impact In Ohio, the Sixth Circuit and Elsewhere. In Duncan v. LaRose, No. 2:20-cv-2295 (S.D. Ohio, June 4, 2020), the District Court on June 4, 2020 denied preliminary relief to a perennial independent presidential candidate in Ohio who needs to collect 5000 signatures: "While Thompson involves initiative petitions as opposed to Plaintiff’s desire to be placed on the presidential ballot, the Court sees no basis to distinguish this case from the reasoning in Thompson." Doc. No. 16, at PAGEID # 81. This same result appears pre-ordained in Hawkins v. DeWine, No. 2:20-cv2781 (S.D. Ohio, filed May 29, 2020), where the Green Party's presidential candidate in Ohio also needs to collect thousands of signatures before August 5, 2020. Ohio moved to dismiss the Green Party's challenge under Thompson on June 12, 2020, see Motion to Dismiss, No. 20-2781, Doc. No. 11, and the Green Party
13

would seem to have little hope of avoiding the same fate as Duncan should Thompson's stay remain in place.
Demonstrating the inherent flaw in the Thompson Panel's "vitally important" "First Amendment exception" logic -- reasoning that simply cannot be squared with this Court's refusal to grant a stay in South Bay United Pentecostal Church v. Gavin, 590 U.S. __, No. 19A1044 (May 29, 2020) -- the Court in SawariMedia, LLC v. Whitmer, 2020 WL 3097266 (W.D. Mich., June 11, 2020), went to lengths to avoid it. Notwithstanding Thompson, and despite Michigan's also having a formal "First Amendment exception" built into its emergency orders (contrary to what the Thompson Panel erroneously said), the SawariMedia Court preliminarily enjoined "strict application of Michigan’s signature requirement and filing deadline for ballot initiatives." Id. at *15. Michigan, like Ohio, had included a First Amendment exemption to its COVID-19 stay-at-home orders.
Though the Court recognized that in Thompson these First Amendment exemptions proved "'vitally important' to the Sixth Circuit’s determination that Ohio’s stay-at-home orders did not impose a severe burden on the plaintiffs’ First Amendment rights," SawariMedia, 2020 WL 3097266 at * 8, it found Michigan's exemption sufficiently different. "In sharp contrast" to Ohio's First Amendment exemptions, the Court observed that Michigan's stay-at-home orders' "Constitutional Exemption Language" left it "far from clear that that language permitted citizens to gather petition signatures." Id. "The Constitutional Exemption Language provided that the restrictions imposed by the Governor did not 'abridge
14

protections guaranteed by the state or federal constitution under these emergency circumstances.'" Id. (emphasis original and footnote omitted).
"But that begs the difficult question: how do 'these emergency circumstances' impact constitutional protections?," the Court observed. Id. "Do citizens have a First Amendment right to gather signatures in public at the height of a raging COVID-19 pandemic that threatens the health and, indeed, the lives of millions of Americans?" Id. Of course, this Court in South Bay United Pentecostal Church, 590 U.S. __, No. 19A1044, made clear they do not.
For its part, the District Court in SawariMedia, 2020 WL 3097266, at *8, concluded that because Michigan's First Amendment exemption included the phrase "under these emergency circumstances," it was less clear than Ohio's "First Amendment protected speech" exemption, which did not include this language. It could not therefore be held against the circulators who could not have understood it.11 It is quite doubtful, of course, that there exists any meaningful difference at all between the Michigan and Ohio First Amendment exceptions. This further impeaches the Sixth Circuit's reasoning that Ohio's exception was "vitally important" since it allowed Ohio circulators all along to gather signatures. The people who were and are expected to follow emergency orders during times of crisis could not have understood this. 11 The Court also noted that "[t]here are no obvious answers to the questions posed above. But there is at least some authority for the proposition that liberties that citizens enjoy under the Constitution may be subject to at least some otherwise impermissible restraints during a public health crisis." Id. at * 8 n.18 (citing Jacobson v. Massachusetts, 197 U.S. 11 (1905); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913, 925 (6th Cir. 2020)).
15

In terms of relief, the SawariMedia Court was left by Thompson with only authority to ask that Michigan (just as the District Court had done in Thompson) propose a remedy. Michigan did so on June 15, 2020, four days after the Court's emergency order, but refused to adjust either its numerical requirements or its inperson requirement for collecting signatures. See State Defendants Notice of Proposed Remedy, No. 20-11246, Doc. No. 18, at PAGEID # 260.
It instead offered what can only be described as meaningless relief, that is, to "toll § 472a’s application to Plaintiffs’ petition for a period of 69 days extending from March 24, 2020, the day after the first Stay-Home Order issued, to June 1, 2020, the day restrictions on gatherings of groups of persons not residing in the same household were significantly reduced." Id. at 261. How this would provide assistance was not explained, nor is it evident since June 1, 2020 has already passed. The Court on June 16, 2020 rejected the State's proposal as "contraven[ing] the terms of the Court’s injunction." Status Conference Order, No. 20-11246, Doc. No. 22, at PAGEID # 289. The State was given another opportunity, with another conference scheduled for June 22, 2020. Id.
Thompson's infection has spread outside Ohio and the Sixth Circuit. In Sinner v. Jaeger, 2020 WL 3244143, *4 (D.N.D., June 15, 2020), for example, the Court refused emergency relief from North Dakota's signature collection requirement, specifically relying on Thompson: "None of the Governor's executive orders even tangentially prohibited signature collection." (Citing Thompson, 959 F.3d at 809-10). In doing so it paraphrased Thompson as "determining [that] similar
16

Ohio in-person signature requirements created less than a severe burden where pandemic restrictions did not limit First Amendment activity." Sinner, 2020 WL 3244143, at *4.
Quoting Thompson, 959 F.3d at 810, for its proposition that “just because procuring signatures is now harder ... doesn't mean that Plaintiffs are excluded from the ballot,” the Court concluded that "[a]lthough the precautions NDVF has chosen to implement increase the burden on canvassers, garnering the requisite number of signatures is far from impossible." Sinner, 2020 WL 3244143, at *6 (quoting Thompson, 959 F.3d at 810) (emphasis in original). It then added, again quoting Thompson, 959 F.3d at 810, "[t]he Court 'cannot hold private citizens' decisions to stay home for their own safety against the State.'” Sinner, 2020 WL 3244143, at *7 (quoting Thompson, 959 F.3d at 810).
In Gottlieb v. Lamont, 2020 WL 3046205, *6 (D. Conn., June 8, 2020), the Court denied relief to candidates in Connecticut, again relying on Thompson. That the State had been locked down by COVID-19 and governmental stay-at-home orders for weeks on end was deemed ancient history since the "[t]he Governor began to ease the 'Stay at Home' restrictions on May 20, 2020," and "[p]etitions could also be circulated in person consistent with social distancing restrictions." (Citing Thomas v. DeWine, 959 F.3d 804). It paraphrased Thompson as "declining to find a severe burden on plaintiffs’ rights when Ohio had begun to lift its stay-at-home restrictions by the time the petitioning period began." Gottlieb, 2020 WL 3046205, at *6.
17

In Fair Maps Nevada v. Cegavske, 2020 WL 2798018, *13 (D. Nev., May 29, 2020), the Court ordered relief for circulators because Nevada had no built-in First Amendment exemption: "That makes this case distinguishable from Thompson [6th Cir.], where Ohio's equivalent orders included a specific carve-out for protected First Amendment activity." Still, the Court looked to Thompson in terms of the precise relief, observing that "the mandatory injunction that Plaintiffs seek here— affirmatively ordering the Secretary to do things—is untenable because 'federal courts have no authority to dictate to the States precisely how they should conduct their elections.'” (quoting Esshaki v. Whitmer, __ Fed. App'x __, 2020 WL 2185553 (6th Cir., May 5, 2020); Thompson, 959 F.3d at 812).
As Professor Hasen has explained, this approach is wrongheaded; It "has put a thumb on the scale favoring the state, denigrating the right to petition along the way, and minimizing the real costs that the pandemic has placed on democratic petitioning activity." Hasen, supra, at 11. "Most importantly, the Sixth Circuit decision sends a disturbing signal about how some courts may approach burdens on fundamental voting rights questions during the pandemic." Id. (footnote omitted).
The Supreme Court needs to step in now to set a more reasoned example for the lower federal Courts that are being asked to deal with this problem. As recently stated by Professor Pildes, "the best overarching framework for understanding the actions of many federal courts across the county, particularly the district courts, is that federal courts -- like many other other governmental institutions -are indeed exercising exceptional emergency powers when it comes to voting and
18

the virus." Richard H. Pildes, The Constitutional Emergency Powers of Federal Courts, page 9, SSRN, June 17, 2020.12 District Courts should be allowed to do their jobs based on real evidence, not armchair assumptions like those drawn by the Sixth Circuit. The Sixth Circuit's stay should be vacated.
Dealing later with the COVID-19 crisis and the lower Courts' various approaches to it is not a viable option. Deadlines loom. Cases are pending. Action is needed. The Thompson Court's rationale, if followed, risks infecting more Americans. It forces people into the streets and requires that they go door-to-door. Not once or twice or even dozens of times, but thousands of time.
Conclusion
The Sixth Circuit motion Panel's stay should be vacated.

Oliver B. Hall CENTER FOR COMPETITIVE DEMOCRACY P.O. Box 21090 Washington, D.C. 20009 (202) 248-9294 oliverhall@competitivedemocracy.org

Respectfully submitted,
/s/ Mark R. Brown
Mark R. Brown 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu Counsel of Record Attorneys for PlaintiffsAppellees-Applicants

12 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3629356. 19

Certificate of Service I certify that this Application was e-mailed pursuant to a service of process agreement entered into by all parties to: Benjamin Flowers, Ohio Solicitor General, Counsel of Record for Respondents, at benjamin.flowers@ohioattorneygeneral.gov, Freda Levenson, Counsel of Record for Proposed Intervenors-Appellees-Ohioans for Secure and Fair Elections, et al., at flevenson@ohioaclu.org, and Donald J. McTigue, Counsel of Record for Proposed Intervenors-Appellees-Ohioans for Raising the Wage, et al., at dmctigue@electionlawgroup.com, this 22nd day of June 2020.
/s/ Mark R. Brown Mark R. Brown
20

In The Supreme Court of the United States
No. 19A1054
CHAD THOMPSON; WILLIAM T. SCHMITT; DON KEENEY,
Plaintiffs - Appellees - Applicants
v.
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 - Respondents
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, Proposed Intervenors - Appellees
OHIOANS FOR RAISING THE WAGE; ANTHONY CALDWELL; JAMES E. HAYES; DAVID G. LATANICK; PIERRETTE M. TALLEY,
Proposed Intervenors - Appellees
Application to the Honorable Sonia Sotomayor Associate Justice of the United States Circuit Justice for the Sixth Circuit

APPLICANTS' REPLY APPENDIX

Oliver B. Hall CENTER FOR COMPETITIVE DEMOCRACY P.O. Box 21090 Washington, D.C. 20009 (202) 248-9294 oliverhall@competitivedemocracy.org

Mark R. Brown 303 East Broad Street Columbus, OH 43215 (614) 236-6590 (614) 236-6956 (fax) mbrown@law.capital.edu Counsel of Record Attorneys for Applicants

Case: 20-1961 Document: 23

Filed: 06/21/2020 Pages: 5

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604
June 21, 2020

By the Court

No. 20-1961

LIBERTARIAN PARTY OF ILLINOIS, et al.,
Plaintiffs-Appellees,

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division.

v.

No. 20-cv-2112

WILLIAM J. CADIGAN, individual member of the Illinois State Board of Elections, et al.,
Defendants-Appellants.

Rebecca R. Pallmeyer, Chief Judge.

O R D E R
Appellants, individual members of the Illinois State Board of Elections (the “Board”), ask this court to stay enforcement of the district court’s preliminary injunction. We deny the motion because the Board has not shown that it would be irreparably harmed by injunctive relief that it initially agreed to and because staying the preliminary injunction at this late date would result in clear harm to the plaintiffs who have relied on its terms.

On April 3, 2020, the Libertarian Party of Illinois, the Illinois Green Party, and several individuals who wish to run for state or federal office in the November 2020 election or vote or gather signatures for independent candidates, sought injunctive relief in the district court. They sought to enjoin or modify Illinois’s signature collection requirements for independent and third-party candidates in light of the public health emergency caused by the novel coronavirus COVID-19 and Governor Pritzker’s

Case: 20-1961 Document: 23

Filed: 06/21/2020 Pages: 5

No. 20-1961

Page 2

emergency executive orders that effectively shut down the state. In its briefing, the Board agreed that some relief was warranted due to the pandemic. It proposed delaying the filing deadline by two weeks until July 6, 2020, and reducing the signature requirement first to 50% and later to 33% of the number required by the Illinois Election Code. After several hearings with the district court’s emergency judge, the parties reached agreement and submitted a proposed order, apparently drafted by the Board.

The district court noted that a court considering a challenge to state election laws must carefully balance “‘the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate’ against ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff's rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). The district court said it did not need to devote significant attention to constitutional questions, however, because the parties “proposed an order that grants appropriate relief in these unprecedented circumstances.” Opinion and Order at 7-8. The district court found that the combination of restrictions on public gatherings imposed by Governor Pritzker’s shelter-at-home order, which started at nearly the same time as the window for gathering signatures, and the in-person signature requirements in the Illinois Election Code was “a nearly insurmountable hurdle for new party and independent candidates attempting to have their names placed on the general election ballot.” Id. at 7. The district court concluded that the parties’ agreed order would ameliorate plaintiffs’ difficulty meeting the signature requirement while accommodating the state’s interest in ensuring that only parties with measurable public support will gain access to the 2020 general election ballot. The district court adopted the parties’ proposed order as the preliminary injunction. Entered on April 23, 2020, the preliminary injunction addressed four main points:

(1) Plaintiff political parties are permitted to nominate candidates without petitions in any race in which they had nominated a candidate in either 2016 or 2018, and the three individual candidates are permitted to appear on the ballot for any office they qualified for in 2016 or 2018 without a petition;

(2) New political party and independent candidates not subject to item (1) are required to file nomination petitions signed by not less than 10% of the statutory minimum number required;

Case: 20-1961 Document: 23

Filed: 06/21/2020 Pages: 5

No. 20-1961

Page 3

(3) Petition signers are permitted to affix their signatures to a petition electronically, by using a computer mouse, a stylus, or their finger; and

(4) The statutory petition filing deadline is moved from June 22, 2020, to August 7, 2020.

Despite agreeing to each of these terms, the Board filed a motion to reconsider on May 8. It argued that after consulting with local election officials, it believed the later filing deadline would impact its ability to conduct an accurate and orderly election. It asked the district court to amend its preliminary injunction order and direct the Board to establish appropriate ballot access requirements for independent and new political party candidates. Alternatively, the Board asked the court to move the deadline for candidate nomination and petition filings from August 7 to July 6 and set the minimum petition signature threshold at 25% of the statutory minimum. On May 15, after a hearing, the district court granted the motion in part; it moved the deadline for candidate nomination and petition filings to July 20, but denied the motion to reconsider in all other respects.

The Board then waited until June 6, a Saturday, to file its notice of appeal. On June 9 it asked this court to stay the preliminary injunction order, as modified on May 15, and to drastically expedite briefing. Although Federal Rule of Appellate Procedure 8(a)(1) says a “party must ordinarily move first in the district court” before seeking a stay pending appeal, the Board did not do so. It argues that moving first in the district court would be impractical, see FED. R. APP. P. 8(a)(2)(A)(i), because the district court already denied its request to be allowed to establish appropriate ballot access requirements.

When deciding whether to enter a stay, this court must consider four factors: “(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).

The Board argues that it is likely to succeed on the merits of its appeal because the district court exceeded its authority when it dictated how Illinois must conduct its elections. We are mindful that the Constitution grants states “broad power” to conduct elections. Art. I, § 4, cl. 1; see Clingman v. Beaver, 544 U.S. 581, 586 (2005). As relevant to this case, however, a state’s broad power also encompasses the ability to agree to the terms of a preliminary injunction. The Board also argues that its recent receipt of

Case: 20-1961 Document: 23

Filed: 06/21/2020 Pages: 5

No. 20-1961

Page 4

nominating petitions from twelve Republican and Democratic candidates shows that the statutory ballot access requirements do not categorically exclude third-party candidates from the ballot. But this is the type of new evidence that should have been presented to the district court in the first instance.

Despite the Board’s initial agreement to the injunction, the possibility that it would suffer irreparable injury absent a stay gave us pause. We ordered a supplemental expedited submission from the Board so it could explain with precision and with references to supporting evidence what irreparable harm it believes will result absent a stay, and directed the appellees to respond. In its supplemental submission, the Board provides more details about specific election deadlines, particularly that Illinois is required by statute to transmit requested absentee ballots to military and overseas voters at least 45 days before the election. See 52 U.S.C. § 20302(a)(8). The Board submitted two consent decrees entered after Illinois election officials failed to meet this deadline in 2010 and 2013, and argues that the terms of the preliminary injunction significantly increase the risk of another adverse action by the Justice Department.

We find the Board’s arguments and evidence insufficient to demonstrate that it will suffer irreparable harm absent a stay. After independent candidates submit their petitions, currently due on July 20, voters have five days to object to a candidate’s nomination papers and the Board must then hold a hearing. The Board says it has historically taken as long as five weeks to resolve voter objections, and relies on a declaration by Steve Sandvoss, the Board’s Executive Director. But neither Sandvoss nor the Board provide specific examples or evidence to support this assertion. The Board also relies on declarations from two Illinois county election officials. These officials said that, based on their personal knowledge and professional experience, the lower signature threshold will lead to an increased number of non-viable candidates and petition objections and it is unlikely that all candidate objections will be resolved in time for timely printing of ballots, thus impeding their ability to meet the deadline for transmitting ballots to military and overseas voters by the September 18 statutory deadline. Notably, the three declarations were prepared in support of the Board’s motion for reconsideration when the petition deadline was August 7, two weeks later than the deadline the Board seeks to stay, and are based on the officials’ experiences with elections unaffected by a global pandemic. Further, the Board was aware of the September 18 deadline for mailing military and overseas ballots when it agreed to the terms of the preliminary injunction and there is no evidence that Illinois’s previous difficulty meeting the deadline was the result of later petition deadlines. And as the appellees point out in their supplemental submission, at least 37 states have candidate

Case: 20-1961 Document: 23

Filed: 06/21/2020 Pages: 5

No. 20-1961

Page 5

filing deadlines later than Illinois’s current July 20 deadline, and routinely comply with the deadline for mailing military and overseas ballots. We conclude that none of the evidence submitted by the Board shows that the July 20 filing deadline or the reduced signature requirement is likely to impede election officials’ ability to meet the deadline for transmitting ballots to military or overseas voters.

In contrast, the appellees have provided evidence showing that they would be significantly injured if we stayed the preliminary injunction. First, the injunction eliminated the petition requirement for Green Party and Libertarian Party candidates in any race in which the party had nominated a candidate in 2016 or 2018. As a result, those candidates have not gathered signatures and would be unable to do so by the statutory petition deadline. Second, other independent candidates are in the process of collecting a lower number of petition signatures in reliance on the preliminary injunction. Five of these candidates prepared declarations saying they would be excluded from the ballot if they were required to collect a larger number of signatures as a result of current restrictions on public gatherings and voters’ reasonable apprehension about close contact. These difficulties are furthered by the lack of adequate notice from the state.

The Board asserts in its motion for stay that it, “not the federal court, is in the best position to determine the necessary election modifications that will balance the rights of candidates to access the ballots with the public interest in limiting the field of candidates to avoid ballot confusion.” But nowhere in its motions papers does it explain what, if any, changes it would make to the statutory petition requirements to ensure that independent candidates are not excluded from the ballot. Nor does it acknowledge the serious safety concerns and substantial limitations on public gatherings that animated the parties’ initial agreement and persist despite some loosening of restrictions in recent weeks. The Board has not made a strong showing that it is likely to succeed on the merits of its appeal, given its initial agreement to the terms of the preliminary injunction. It has also failed to show that the balance of harms favors a stay. Accordingly, the motion for stay is DENIED.

In light of this ruling and the approaching petition deadline, the parties shall file by July 6, 2020, statements of position addressing whether further briefing or oral argument are necessary.

 
 (ORDER LIST: 591 U.S.)

THURSDAY, JUNE 25, 2020

19A1054

ORDER IN PENDING CASE 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.

 
 Case: 2:20-cv-2129 As of: 07/07/2020 04:08 PM EDT 1 of 11
U.S. District Court Southern District of Ohio (Columbus) CIVIL DOCKET FOR CASE #: 2:20−cv−02129−EAS−CMV

APPEAL

Thompson et al v DeWine et al Assigned to: Judge Edmund A. Sargus Referred to: Magistrate Judge Chelsey M. Vascura Demand: $0 Case in other court: Sixth Circuit Court of Appeals, 20−03526 Cause: 28:1331 Fed. Question
Plaintiff

Date Filed: 04/27/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Chad Thompson

represented by Mark R Brown 303 East Broad Columbus, OH 43215 614−236−6590 Fax: 614−236−6956 Email: markrbrown59@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Oliver B Hall CENTER FOR COMPETITIVE DEMOCRACY P.O. Box 21090 Washington, DC 20009 (202) 248−9294 Email: oliverhall@competitivedemocracy.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff William T. Schmitt

represented by Mark R Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Oliver B Hall (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Don Keeney

represented by Mark R Brown (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Oliver B Hall (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Ohioans for Raising the Wage

represented by Donald Joseph McTigue McTigue & McGinnis LLC 545 E. Town Street Columbus, OH 43215

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Intervenor Plaintiff Anthony Caldwell
Intervenor Plaintiff James E. Hayes
Intervenor Plaintiff David G Latanick
Intervenor Plaintiff Pierrette M. Talley

614−263−7000 Fax: 614−263−7078 Email: dmctigue@electionlawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek S. Clinger McTigue McGinnis & Colombo LLC 545 E. Town Street Columbus, OH 43215 614−263−7000 Fax: 614−263−7078 Email: dclinger@electionlawgroup.com ATTORNEY TO BE NOTICED
represented by Donald Joseph McTigue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek S. Clinger (See above for address) ATTORNEY TO BE NOTICED
represented by Donald Joseph McTigue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek S. Clinger (See above for address) ATTORNEY TO BE NOTICED
represented by Donald Joseph McTigue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek S. Clinger (See above for address) ATTORNEY TO BE NOTICED
represented by Donald Joseph McTigue (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Derek S. Clinger (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Richard Mike DeWine

represented by Julie M Pfeiffer Ohio Attorney General's Office Constitutional Offices Section

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Defendant Amy Acton in her official capacity as Director of Ohio Department of Health
Defendant Frank LaRose in his official capacity as Ohio Secretary of State
Intervenor Ohioans for Secure and Fair Elections

30 E. Broad Street, 16th Floor Columbus, OH 43215 614−466−2872 Fax: 614−728−7592 Email: Julie.Pfeiffer@ohioattorneygeneral.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Allan Walton Office of the Ohio Attorney General 30 E. Broad Street 16th Street Columbus, OH 43215 614−466−2872 Fax: 866−239−0078 Email: michael.walton@ohioattorneygeneral.gov ATTORNEY TO BE NOTICED
represented by Julie M Pfeiffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Allan Walton (See above for address) ATTORNEY TO BE NOTICED
represented by Julie M Pfeiffer (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael Allan Walton (See above for address) ATTORNEY TO BE NOTICED
represented by Freda J Levenson ACLU of OHIO 4506 Chester Avenue Cleveland, OH 44103 614/586−1959 Fax: 216−472−2210 Email: flevenson@acluohio.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−549−2693 Fax: 212−549−2675 Email: dho@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey American Civil Liberties Union of Ohio Foundation

Case: 2:20-cv-2129 As of: 07/07/2020 04:08 PM EDT 4 of 11

Intervenor Darlene L English
Intervenor Laura A Gold

1108 City Park Avenue Suite 203 Columbus, OH 43206 (614) 586−1972 Fax: (614) 586−1974 Email: dcarey@acluohio.org ATTORNEY TO BE NOTICED
Elizabeth Bonham ACLU of Ohio 4506 Chester Avenue Cleveland, OH 44103 216−472−2220 Fax: 216−472−2210 Email: ebonham@acluohio.org ATTORNEY TO BE NOTICED
Tiffany Alora Thomas American Civil Liberties Union Foundation 125 Broad Street 18th Floor New York, NY 10004 212−519−7866 Fax: 212−549−2654 Email: athomas@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Tiffany Alora Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey

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Intervenor Isabel C Robertson
Intervenor Ebony Speakes−Hall
Intervenor Paul Moke

(See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Tiffany Alora Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Tiffany Alora Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Tiffany Alora Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address)

Case: 2:20-cv-2129 As of: 07/07/2020 04:08 PM EDT 6 of 11

Intervenor Andre Washington
Intervenor Scott A Campbell

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Tiffany Alora Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Tiffany Alora Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED

Case: 2:20-cv-2129 As of: 07/07/2020 04:08 PM EDT 7 of 11

Intervenor Susan G Ziegler
Intervenor Hasan Kwame Jeffries

Tiffany Alora Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Tiffany Alora Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Freda J Levenson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Dale E. Ho (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David J. Carey (See above for address) ATTORNEY TO BE NOTICED
Elizabeth Bonham (See above for address) ATTORNEY TO BE NOTICED
Tiffany Alora Thomas (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Date Filed 04/27/2020
04/27/2020

# Docket Text
1 COMPLAINT against All Plaintiffs ( Filing fee $ 400 paid − receipt number: 0648−7441064), filed by Chad Thompson. [ELECTION ISSUE(S) CITED] (Brown, Mark) (Entered: 04/27/2020)
2 REQUEST for Issuance of Summons. (Attachments: # 1 Summons Form, # 2 Summons Form) (Brown, Mark) (Entered: 04/27/2020)

Case: 2:20-cv-2129 As of: 07/07/2020 04:08 PM EDT 8 of 11

04/27/2020 04/27/2020 04/28/2020 04/28/2020 04/28/2020 04/28/2020 04/28/2020 04/28/2020 04/28/2020 04/28/2020 04/30/2020
04/30/2020
04/30/2020
05/01/2020 05/01/2020

3 NOTICE by Plaintiff Chad Thompson re 1 Complaint Civil Cover Sheet (Brown, Mark) (Entered: 04/27/2020)
4 MOTION for Temporary Restraining Order by Plaintiffs Don Keeney, William T. Schmitt, Chad Thompson. [ELECTION ISSUE(S) CITED] (Attachments: # 1 Appendix Memorandum of Law In Support of TRO) (Brown, Mark) (Entered: 04/27/2020)
5 NOTICE of Hearing: Rule 65.1 Telephone Conference set for 4/28/2020 at 10:30 AM via Teleconference before Judge Edmund A. Sargus. (cmw) (Entered: 04/28/2020)
6 NOTICE of Appearance by Julie M Pfeiffer for Defendants Amy Acton, Richard Mike DeWine, Frank LaRose (Pfeiffer, Julie) (Entered: 04/28/2020)
7 NOTICE of Appearance by Michael Allan Walton for Defendants Amy Acton, Richard Mike DeWine, Frank LaRose (Walton, Michael) (Entered: 04/28/2020)
8 Summons Issued as to Amy Acton, Richard Mike DeWine, and Frank LaRose. (daf) (Entered: 04/28/2020)
9 Minute Entry for proceedings held before Judge Edmund A. Sargus: Rule 65.1 Telephone Conference held on 4/28/2020. The next telephone conference is scheduled for 5/8/2020 at 10:00 a.m. (Court Reporter: Darla Coulter) (cmw) (Entered: 04/28/2020)
10 NOTICE of Hearing: Telephone Status Conference set for 5/8/2020 at 10:00 AM via Teleconference before Judge Edmund A. Sargus. (cmw) (Entered: 04/28/2020)
11 SUMMONS Returned Executed as to Defendants Amy Acton, Richard Mike DeWine, Frank LaRose. All Defendants. (Attachments: # 1 Appendix Acton Summons, # 2 Appendix LaRose) (Brown, Mark) (Entered: 04/28/2020)
12 ORDER − Memorializing the Rule 65.1 Telephone Conference held 4/28/2020. Signed by Judge Edmund A. Sargus on 4/28/2020. (cmw) (Entered: 04/28/2020)
13 MOTION to Intervene by Intervenor Parties Ohioans for Secure and Fair Elections, Darlene L English, Laura A Gold, Isabel C Robertson, Ebony Speakes−Hall, Andre Washington, Scott A Campbell, Susan G Ziegler, Hasan Kwame Jeffries, Paul Moke. (Attachments: # 1 Exhibit A − Declaration of Antonia Dippold−Webb, # 2 Exhibit B − Mar. 27 Letter from Defendant's office to OSFE's campaign manager) (Levenson, Freda) (Entered: 04/30/2020)
14 COMPLAINT IN INTERVENTION FOR TEMPORARY RESTRAINING ORDER, PRELIMINARY AND PERMANENT INJUNCTIVE RELIEF against Amy Acton, Richard Mike DeWine, Frank LaRose, filed by Laura A Gold, Darlene L English, Ohioans for Secure and Fair Elections, Isabel C Robertson, Scott A Campbell, Ebony Speakes−Hall, Susan G Ziegler, Andre Washington, Hasan Kwame Jeffries, Paul Moke. (Attachments: # 1 Exhibit A − Declaration of Dr. Reingold, # 2 Exhibit B − Declaration of Antonia Dippold−Webb) (Levenson, Freda) (Entered: 04/30/2020)
15 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by Intervenor Parties Scott A Campbell, Darlene L English, Laura A Gold, Hasan Kwame Jeffries, Ohioans for Secure and Fair Elections, Isabel C Robertson, Ebony Speakes−Hall, Andre Washington, Susan G Ziegler, Defendant Paul Moke. (Attachments: # 1 Exhibit Correspondence between Secretary of State's office and OSFE Campaign Director, # 2 Exhibit B − Declaration of Antonia Dippold−Webb, # 3 Exhibit C − Declaration of Susan Zeigler, # 4 Exhibit D− Declaration of Scott Campbell, # 5 Exhibit E −Declaration of Paul Moke, # 6 Exhibit F − Declaration of Andre Washington, # 7 Exhibit G −Declaration of Dr. Reingold, # 8 Exhibit H − Virginia Order) (Levenson, Freda) (Entered: 04/30/2020)
16 NOTICE by Plaintiff Chad Thompson re 4 MOTION for Temporary Restraining Order Supplemental Authority (Brown, Mark) (Entered: 05/01/2020)
17 MOTION to Intervene by Intervenor Plaintiffs Ohioans for Raising the Wage, Anthony Caldwell, James E. Hayes, David G Latanick, Pierrette M. Talley. (Attachments: # 1 Exhibit Proposed Intervenors' Complaint, # 2 Exhibit Proposed Intervenors' Motion for TRO and Preliminary Injunction) (McTigue, Donald) (Entered: 05/01/2020)

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05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020 05/01/2020
05/01/2020
05/01/2020
05/04/2020 05/04/2020 05/04/2020
05/04/2020 05/05/2020
05/05/2020 05/06/2020

18 NOTICE of Appearance by Donald Joseph McTigue for Intervenor Plaintiffs Anthony Caldwell, James E. Hayes, David G Latanick, Ohioans for Raising the Wage, Pierrette M. Talley (McTigue, Donald) (Entered: 05/01/2020)
19 Corporate Disclosure Statement by Intervenor Plaintiffs Anthony Caldwell, James E. Hayes, David G Latanick, Ohioans for Raising the Wage, Pierrette M. Talley. (McTigue, Donald) (Entered: 05/01/2020)
20 RESPONSE to Motion re 13 MOTION to Intervene , 17 MOTION to Intervene No Opposition filed by Plaintiffs Don Keeney, William T. Schmitt, Chad Thompson. (Brown, Mark) (Entered: 05/01/2020)
21 NOTICE of Hearing: Telephone Status Conference set for 5/1/2020 at 02:00 PM via Teleconference before Judge Edmund A. Sargus. (cmw) (Entered: 05/01/2020)
22 Minute Entry for proceedings held before Judge Edmund A. Sargus and Magistrate Judge Chelsey M. Vascura: Telephone Status Conference held on 5/1/2020. (Court Reporter: Darla Coulter) (cmw) (Entered: 05/01/2020)
23 NOTICE of Hearing: Telephone Status Conference set for 5/6/2020 at 11:00 AM in Teleconference before Judge Edmund A. Sargus and Magistrate Judge Chelsey M. Vascura. (cmw) (Entered: 05/01/2020)
24 ORDER Memorializing Telephone Status Conference held on 5/1/2020. Signed by Judge Edmund A. Sargus on 5/1/2020. (cmw) (Entered: 05/01/2020)
25 Corporate Disclosure Statement by Intervenor Parties Scott A Campbell, Darlene L English, Laura A Gold, Hasan Kwame Jeffries, Paul Moke, Ohioans for Secure and Fair Elections, Isabel C Robertson, Ebony Speakes−Hall, Andre Washington, Susan G Ziegler. (Levenson, Freda) (Entered: 05/01/2020)
26 NOTICE of Appearance by Elizabeth Bonham for Intervenor Parties Scott A Campbell, Darlene L English, Laura A Gold, Hasan Kwame Jeffries, Paul Moke, Ohioans for Secure and Fair Elections, Isabel C Robertson, Ebony Speakes−Hall, Andre Washington, Susan G Ziegler (Bonham, Elizabeth) (Entered: 05/01/2020)
27 NOTICE of Appearance by David J. Carey for Intervenor Parties Scott A Campbell, Darlene L English, Laura A Gold, Hasan Kwame Jeffries, Paul Moke, Ohioans for Secure and Fair Elections, Isabel C Robertson, Ebony Speakes−Hall, Andre Washington, Susan G Ziegler (Carey, David) (Entered: 05/01/2020)
28 ORDER Amending EC No. 24 Order Memorializing Telephone Conference. Signed by Judge Edmund A. Sargus on 5/4/2020. (cmw) (Entered: 05/04/2020)
29 ORDER granting 13 Motion to Intervene and granting 17 Motion to Intervene. Signed by Judge Edmund A. Sargus on 5/4/2020. (cmw) (Entered: 05/04/2020)
30 MOTION to Amend/Correct Declaration by Intervenor Plaintiffs Anthony Caldwell, James E. Hayes, David G Latanick, Ohioans for Raising the Wage, Pierrette M. Talley. (Attachments: # 1 Exhibit Corrected Declaration) (McTigue, Donald) (Entered: 05/04/2020)
31 ORDER granting 30 Motion to Amend/Correct. Signed by Judge Edmund A. Sargus on 5/4/2020. (cmw) (Entered: 05/04/2020)
32 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $400 paid, receipt number 0648−7452327) of Dale Ho and Alora Thomas by Intervenor Parties Scott A Campbell, Darlene L English, Laura A Gold, Hasan Kwame Jeffries, Paul Moke, Ohioans for Secure and Fair Elections, Isabel C Robertson, Ebony Speakes−Hall, Andre Washington, Susan G Ziegler. (Attachments: # 1 Thomas Certificate of Good Standing, # 2 Ho Certificate of Good Standing) (Levenson, Freda) (Entered: 05/05/2020)
33 MOTION for Leave to Appear Pro Hac Vice (Filing fee of $200 paid, receipt number 0648−7452970) of Oliver Hall by Plaintiffs Don Keeney, William T. Schmitt, Chad Thompson. (Brown, Mark) (Entered: 05/05/2020)
34 NOTICE by Plaintiff Chad Thompson re 4 MOTION for Temporary Restraining Order Supplemental Authority (Attachments: # 1 Appendix Esshaki v. Whitmer (6th Cir.

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05/06/2020 05/06/2020 05/06/2020 05/07/2020 05/11/2020 05/12/2020
05/12/2020 05/13/2020 05/14/2020 05/14/2020
05/19/2020 05/20/2020 05/20/2020 05/21/2020 05/21/2020

2020)) (Brown, Mark) (Entered: 05/06/2020)
35 STIPULATION by All Parties by Plaintiffs Don Keeney, William T. Schmitt, Chad Thompson. (Attachments: # 1 Exhibit Windham Initiative, # 2 Exhibit Jacksonville Initiative, # 3 Exhibit Trimble Initiative, # 4 Exhibit Glouster Initiative, # 5 Exhibit Maumee Initiative, # 6 Exhibit Akron Initiative) (Brown, Mark) (Entered: 05/06/2020)
36 Order memorializing the Telephone Conference on 5/6/2020 before Judge Edmund A. Sargus, Jr. Signed by Judge Edmund A. Sargus, Jr. 5/6/2020 (Court Reporter Darla Coulter.) (cmw) (Entered: 05/06/2020)
NOTATION ORDER: The Motions for Admissions Pro Hac Vice of Oliver B Hall, Dale Edwin Ho, and Tiffany Alora Thomas are GRANTED . By Magistrate Judge Chelsey M. Vascura on 5/6/2020. (daf) (Entered: 05/06/2020)
37 ORDER − The Telephone Status Conferenece set for May 8, 2020 VACATED. Signed by Judge Edmund A. Sargus on 5/7/2020. (cmw) (Entered: 05/07/2020)
38 MOTION to Exceed Page Limitations for Memorandum in Opposition to Plaintiffs' Motion for Temporary Restraining Order/Preliminary Injunction by Defendants Amy Acton, Richard Mike DeWine, Frank LaRose. (Pfeiffer, Julie) (Entered: 05/11/2020)
39 NOTATION ORDER − Southern District of Ohio Local Civil Rule 7.2(a)(3) does not, as Defendants suggest, impose a twenty−page limit on briefing. Accordingly, Defendants may, without leave of Court, file a brief that exceeds twenty pages, and Defendants Motion to Exceed Page Limitations (ECF No. 38 ) is DENIED AS MOOT. By Magistrate Judge Chelsey M. Vascura on 5/12/2020. (agm) (Entered: 05/12/2020)
40 RESPONSE in Opposition re 4 MOTION for Temporary Restraining Order , 15 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Defendants Amy Acton, Richard Mike DeWine, Frank LaRose. (Attachments: # 1 Exhibit A, Aaffidavit of A.M. Grandjean) (Pfeiffer, Julie) (Entered: 05/12/2020)
41 REPLY to Response to Motion re 4 MOTION for Temporary Restraining Order filed by Plaintiffs Don Keeney, William T. Schmitt, Chad Thompson. (Attachments: # 1 Exhibit Frequently Asked Questions) (Brown, Mark) (Entered: 05/13/2020)
42 REPLY to Response to Motion re 17 MOTION to Intervene and MOTION for Temporary Restraining Order and Preliminary Injunction filed by Intervenor Plaintiffs Anthony Caldwell, James E. Hayes, David G Latanick, Ohioans for Raising the Wage, Pierrette M. Talley. (McTigue, Donald) (Entered: 05/14/2020)
43 REPLY to Response to Motion re 15 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction filed by Intervenor Parties Scott A Campbell, Darlene L English, Laura A Gold, Hasan Kwame Jeffries, Paul Moke, Ohioans for Secure and Fair Elections, Isabel C Robertson, Ebony Speakes−Hall, Andre Washington, Susan G Ziegler. (Levenson, Freda) (Entered: 05/14/2020)
44 OPINION AND ORDER Granting in Part and Denying in Part [4, 15, 17−2] Motions for Preliminary Injunction. Signed by Judge Edmund A. Sargus on 5/19/2020. (cmw) (Entered: 05/19/2020)
45 NOTICE OF APPEAL re 44 Order on Motion for Preliminary Injunction (Filing fee has been paid, receipt number 0648−7473689) by Defendants Amy Acton, Richard Mike DeWine, Frank LaRose. (Pfeiffer, Julie) (Entered: 05/20/2020)
46 MOTION to Stay re 44 Order on Motion for Preliminary Injunction by Defendants Amy Acton, Richard Mike DeWine, Frank LaRose. (Pfeiffer, Julie) (Entered: 05/20/2020)
47 RESPONSE in Opposition re 46 MOTION to Stay re 44 Order on Motion for Preliminary Injunction filed by Plaintiffs Don Keeney, William T. Schmitt, Chad Thompson. (Brown, Mark) (Entered: 05/21/2020)
48 RESPONSE in Opposition re 46 MOTION to Stay re 44 Order on Motion for Preliminary Injunction filed by Intervenor Plaintiffs Anthony Caldwell, James E. Hayes, David G Latanick, Ohioans for Raising the Wage, Pierrette M. Talley. (McTigue, Donald) (Entered: 05/21/2020)

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05/21/2020
05/22/2020 05/22/2020 05/26/2020

49 RESPONSE in Opposition re 46 MOTION to Stay re 44 Order on Motion for Preliminary Injunction filed by Intervenor Parties Scott A Campbell, Darlene L English, Laura A Gold, Hasan Kwame Jeffries, Paul Moke, Ohioans for Secure and Fair Elections, Isabel C Robertson, Ebony Speakes−Hall, Andre Washington, Susan G Ziegler. (Levenson, Freda) (Entered: 05/21/2020)
50 OPINION AND ORDER Denying 46 Motion to Stay. Signed by Judge Edmund A. Sargus on 5/22/2020.(cmw) (Entered: 05/22/2020)
51 USCA Case Number 20−3526 for 45 Notice of Appeal filed by Amy Acton, Richard Mike DeWine, Frank LaRose. (pb) (Entered: 05/22/2020)
52 ORDER of USCA as to 45 Notice of Appeal: The Sixth Circuit GRANTS Defendants' motion for a stay pending appeal and DISMISS as moot their motion for an administrative stay. Note: No Mandate details noted. (er) (Entered: 06/03/2020)