Case 5:20-cv-05070-PKH Document 2 Filed 04/22/20 Page 1 of 22 PageID #: 3

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

BONNIE HEATHER MILLER, ROBERT WILLIAM ALLEN, ADELLA DOZIER GRAY, and ARKANSAS VOTERS FIRST,

Plaintiffs,
v.
JOHN THURSTON, in his official capacity as Secretary of State of Arkansas,

Case No. 5:20-cv-05070-PKH Hon. Paul K. Holmes, III

Defendant.

COMPLAINT Plaintiffs Bonnie Heather Miller, Robert William Allen, Adella Dozier Gray, and Arkansas Voters First (collectively, “Plaintiffs”), for their Complaint against Defendant John Thurston, in his official capacity as Arkansas Secretary of State (“Defendant”), state and allege as follows:
INTRODUCTION 1. Arkansas’s requirements to place a constitutional amendment on the ballot, onerous under the best of circumstances, have become impossible to satisfy in light of the COVID-19 pandemic and the restrictions imposed to address it. That is especially so because they require close in-person contact between canvassers, voters, and notaries public—the type of contact that is now impermissible and ill-advised due to COVID-19. As a result, the combination of the required in-person procedures, the large number of signatures required for an initiative, and the deadline for submitting those signatures, results in an impossibly severe burden that effectively freezes access to the November ballot. Plaintiffs seek relief in this Court to alleviate the

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unconstitutional burden these requirements impose on their rights under the First and Fourteenth Amendment as applied to them during the COVID-19 pandemic.
2. Plaintiffs bring this as-applied challenge to certain Arkansas statutory and constitutional requirements that apply to petitions for proposed amendments to the Arkansas Constitution. Plaintiffs began the process for gathering signatures for the petition for the “Arkansas Citizens’ Redistricting Commission Amendment” to the Arkansas Constitution (the “Proposed Amendment”), until the COVID-19 pandemic halted their efforts. Plaintiffs seek to place the Proposed Amendment before Arkansas voters in the November 3, 2020 general election. Plaintiff Arkansas Voters First (“AVF”) has made considerable effort and has invested significant funds to place the Proposed Amendment on the ballot. AVF, its members, and the individual Plaintiffs would have made significant progress in gathering petition signatures or signing the petition in question in March and April were it not for the COVID-19 pandemic and the restrictions imposed to address it.
3. The Arkansas Constitution and state statutes establish requirements governing signature-gathering for constitutional amendments, including: a required total number of signatures, a geographic distribution of the signers among Arkansas counties, a requirement that signatures be personally witnessed by the petition canvasser, a requirement that the petition canvasser sign an affidavit in the presence of a notary, deadlines for the submission of signatures to the Secretary of State, and requirements that the signatures be wet rather than electronic.
4. The COVID-19 pandemic makes it impossible for Plaintiffs to meet these requirements to get the Proposed Amendment on the ballot. In response to continuing advisories by the World Health Organization, Centers for Disease Control, the President of the United States, the Governor of Arkansas, and the Arkansas Secretary of Health, including orders and warnings
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to avoid gatherings of ten people or more or entering within six feet of another person who is not a member of one’s household, nearly every public gathering in Arkansas has been voluntarily canceled or banned by government order, including weddings, festivals, parades, concerts, sporting events, and conferences. The State has shut down gyms, indoor entertainment venues, and restaurants, and has closed public K-12 schools for the rest of the year. In addition, public and private universities and colleges have been closed, and students sent home. Although the Governor has set May 4, 2020 as the date that he hopes he is able to remove some restrictions, he has admitted that the state is “still on the upswing in” cases and the state’s “testing capacity needs to increase.” Thus, there is no immediate end in sight for these closures and the “social distancing” guidance remains in place indefinitely. Further, even if the Governor achieves his goal, it is not clear when the general public will return to their normal routines that would make signature gathering possible.
5. Close, in-person interactions are necessary to any effort to gather wet signatures for an amendment to be placed on the ballot. However, given the severe restrictions on the ability to physically interact with others, Plaintiffs cannot comply with Arkansas’s formal constitutional and statutory signature requirements. Given the current circumstances, Arkansas’s requirements unduly burden Plaintiffs’ fundamental First and Fourteenth Amendment rights under the U.S. Constitution.
PARTIES 6. Plaintiff Bonnie Heather Miller is a resident and eligible, registered voter in the State of Arkansas who wants to serve as a canvasser for the Proposed Amendment as well as to recruit others to do the same.
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7. Plaintiff Robert William Allen is a resident and eligible, registered voter in the State of Arkansas who wants to sign the petition in support of the Proposed Amendment. Due to health concerns, Dr. Allen is unable to comply with the Arkansas petition requirements for a constitutional amendment while adhering to guidance issued by the CDC, Arkansas Department of Health, and his doctor’s orders.
8. Plaintiff Adella Dozier Gray is a resident and eligible, registered voter in the State of Arkansas who wants to sign the petition in support of the Proposed Amendment. Ms. Gray resides in Butterfield Trail Village, a continuing care retirement community, and thus is unable to comply with the Arkansas petition requirements for a constitutional amendment in light of the COVID-19 pandemic.
9. Plaintiff Arkansas Voters First (“AVF”) is an Arkansas ballot question committee responsible for the organization of the signature-gathering effort to certify the Proposed Amendment to the November 3, 2020 general election ballot, and to support its passage by Arkansas voters.
10. Defendant John Thurston is the Arkansas Secretary of State and the chief elections officer in the State of Arkansas, and is charged under the Arkansas Constitution with receiving filed petitions and determining the sufficiency of signatures.
JURISDICTION AND VENUE 11. Plaintiffs bring this action under 42 U.S.C. §§ 1983 and 1988 to redress the deprivation, under color of state law, of rights secured by the U.S. Constitution. 12. This Court has original jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1343 because the matters in controversy arise under the Constitution and laws of the United States.
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13. This Court has personal jurisdiction over Defendant, Secretary of State, who is sued in his official capacity only.
14. Venue is proper in this district under 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to the claim have occurred in this district. Plaintiffs Miller and Gray reside in this district and wished to collect or sign petition signatures in this district, and Plaintiff AVF placed an organizer in this district (in Fayetteville), and took steps to open an office to coordinate signature collection in this district.
15. This Court has authority to enter declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202 and Rule 65 of the Federal Rules of Civil Procedure.
FACTUAL ALLEGATIONS Arkansas Voters First Has Worked Diligently to Place the Proposed Amendment on the
November 3, 2020 General Election Ballot 16. Plaintiffs are proponents of the Proposed Amendment to Arkansas’s Constitution, which is designed to ensure that electoral districts are drawn in an open, transparent, and fair process. 17. On March 10, 2020, AVF filed its “Statement of Organization” with the Arkansas Ethics Commission and officially became a ballot question committee as defined in Ark. Code. Ann. § 7-9-402(2)(A) and (B). 18. On March 4, 2020, Plaintiff AVF entered into contracts with a petition circulation firm. The terms of the contract stipulated that the firm would assist in circulating the Proposed Amendment and AVF has, thus far, paid the firm $210,076. The firm made initial offers to staff, conducted background checks, and opened offices across the state. 19. AVF has also used resources to hire consultants, seek legal advice, print campaign materials, and conduct public opinion polling.
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20. In late 2019, AVF began developing a broad network of volunteer petition canvassers, who anticipated gathering signatures over the permissible period.
21. On March 16, 2020, AVF filed the Proposed Amendment with the Secretary of State’s office. This submission contained the full text, ballot title, and popular name for the Proposed Amendment.
22. On March 16, the Secretary of State returned to AVF a file-marked copy of the Proposed Amendment and AVF was allowed to begin collecting signatures in support of the Proposed Amendment.
23. On March 5, 2020, AVF launched its petition drive and had canvassers in the field within a week. Shortly thereafter, and after collecting fewer than 100 signatures, AVF was forced to suspend its campaign due to the ongoing COVID-19 pandemic.
24. As discussed infra, by this point—March 11, 2020—the Governor had already issued an executive order declaring a state of emergency, the first of many measures the State would take to restrict movement to mitigate the effects of the pandemic.
25. Redistricting in Arkansas will occur in 2021, following the decennial census. Thus, in order to reform the redistricting process before new maps are drawn, the Proposed Amendment must be on the November 3, 2020 ballot.
The Signature Gathering Process in Arkansas 26. Arkansas’s initiative and referendum provision is “self-executing . . . but laws may be enacted to facilitate its operation.” See Ark. Const. art. 5, § 1. 27. Thus, AVF has to abide by several requirements under Arkansas law that presume in-person signature gathering:
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a. AVF has to gather a number of petition signatures equal to at least 10% of the total votes cast for the office of governor in the last gubernatorial election. See Ark. Const. art. 5, § 1.
b. AVF also has to collect signatures from “at least fifteen counties of the State . .. bearing the signature of not less than one-half of the designated percentage of the electors” of the county. Id.
c. The person who collects the signatures—known as the canvasser—must sign an affidavit stating “that all signatures appearing on the petition part were made in the presence of the canvasser.” Ark. Ann. Code § 7-9-108(b).
d. The canvasser has to sign this affidavit in the presence of a Notary Public. See Ark. Ann. Code §§ 7-9-108, 7-9-109.
e. Petition signatures may not be electronically collected. See Ark. Ann. Code §§ 7-9-103(a)(1)(A), 7-9-104(c)(1).
28. Based on the number of votes cast for the office of governor in the last gubernatorial election, AVF must submit the signatures of at least 89,151 qualified Arkansas voters to Defendant.
29. Initiative petitions must be filed with the Secretary of State “not less than four months before the election.” See Ark. Const. art. 5, § 1. The deadline to submit signatures for a constitutional amendment for the November general election ballot in Arkansas is July 3, 2020.
30. If the Defendant determines that AVF has submitted an insufficient number of signatures, but at least 75% of the required signatures (66,864 in 2020) are valid, Arkansas law requires him to inform AVF of the deficiency and permit at least 30 days from the date of the
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notification to gather the additional needed signatures or provide proof of the validity of the submitted signatures. See Ark. Const. art. 5, § 1.
31. An independent candidate for a United States Senate or statewide office must collect the signatures of only three percent of qualified electors of the state based on the total number of votes cast statewide for governor in the most recent gubernatorial election, but in no event is the candidate required to gather more than 10,000 signatures. Ark. Ann. Code. § 7-7-103.
32. A petition seeking a referendum to overturn a legislative act must collect the signatures of only six percent of qualified electors of the state based on the total number of votes cast statewide for governor in the most recent gubernatorial election. Ark. Const. art. 5, §1.
33. A petition seeking a statutory change must collect the signatures of eight percent of qualified electors of the state based on the total number of votes cast statewide for governor in the most recent gubernatorial election. Ark. Const. art. 5, § 1.
34. If supplemental signatures are filed, the Defendant is to determine the sufficiency of the additional signatures within 30 days of filing the supplemental petitions. Ark. Ann. Code. § 7-9-111(d)(3).
The Coronavirus Pandemic Has Spread Throughout the United States and Arkansas 35. The United States and Arkansas are in a declared state of emergency as a result of a worldwide pandemic caused by a novel coronavirus. The respiratory disease caused by the virus, COVID-19, is highly contagious and can result in serious illness and death. 36. Beginning in January 2020, health experts and federal, state, and local government officials released an escalating series of warnings and emergency advisories, emphasizing the importance of protective measures including “social distancing,” defined as maintaining physical space from affected or potentially affected persons.
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37. On January 30, 2020, the World Health Organization (“WHO”) declared that the novel coronavirus constitutes a Public Health Emergency of International Concern. On January 31, President Donald Trump suspended entry into the United States by all foreign nationals who had traveled to China in the past 14 days. On February 24, 2020, President Trump asked Congress to allocate $1.25 billion for a coronavirus response.
38. On February 25, 2020, the Director of the National Center for Immunization and Respiratory Diseases at the Centers for Disease Control and Prevention (“CDC”) announced that “[d]isruption to everyday life may be severe” as a result of the virus. Regarding the spread, the Director stated that “[i]t’s not so much a question of if this will happen anymore but rather more of a question exactly when this will happen,” and called upon the American public to “work with us to prepare[.]”
39. On February 26, 2020, CDC officials stated that “[n]on-pharmaceutical interventions or NPIs will be the most important tools in our response to this virus,” and that such NPIs included “social distancing measures.”
40. On February 27, 2020, the CDC issued further guidance recommending that affected local communities practice “social distancing” measures, including reducing the frequency of large gatherings and limiting the number of attendees.
41. On March 11, 2020, Arkansas Governor Asa Hutchinson issued an Executive Order declaring a State of Emergency and ordered the “Arkansas Department of Health to take action to prevent the spread of COVID-19.”
42. On that same day, the Director-General of the WHO declared COVID-19 to be a global pandemic.
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43. On March 12, 2020, the CDC updated its coronavirus-related guidance to reflect recommendations to consider cancelling or postponing mass gatherings, and noting that personto-person spread of the virus happens most frequently within a distance of six feet.
44. On March 13, 2020, President Trump declared a national emergency retroactive to March 1, 2020.
45. On that same day, Governor Hutchinson amended his previous Executive Order noting that “[c]itizens of this state have been advised to take precautions to prevent the spread of COVID-19, including the advisement to minimize person to person contact, [and to] avoid large gatherings.”
46. On March 15, 2020, the CDC advised that no gatherings of fifty or more people occur over the next eight weeks, including weddings, festivals, parades, concerts, sporting events, and conferences. On March 16, 2020, President Trump advised citizens to avoid groups of more than 10.
47. On March 26, 2020, Arkansas Secretary of Health Nathaniel Smith issued a directive prohibiting gatherings of more than 10 people in any confined indoor or outdoor space (including community, civic, public, leisure, commercial, or sporting events, concerts, conferences, conventions, fundraisers, parades, fairs, and festivals) until further notice.
48. This directive does not apply to “gatherings of ten (10) or more people in unenclosed, outdoor spaces such as parks, trails, athletic fields and courts, parking lots, golf courses, and driving ranges where social distancing of at least six (6) feet can be easily achieved.”1 It also does not apply to “businesses, manufacturers, construction companies, places of worship,
 1https://www.healthy.arkansas.gov/images/uploads/pdf/Gatherings_Directive_FINAL_3.26.20.p df.
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the Arkansas General Assembly, municipal or county governing bodies, or the judiciary; however these entities are advised to limit person-to-person contact and maintain appropriate social distancing of at least six (6) feet to prevent the spread of this virus.” Id.
49. On March 26, 2020, Governor Hutchinson amended the March 11, 2020 Executive Order to re-state the ongoing state of emergency and to prohibit social gatherings using the same language as the Secretary of Health’s March 26, 2020 directive.2 The Executive Order stated that “citizens of the state have been advised to take precautions to prevent the spread of COVID-19, including the advisement to minimize person-to-person contact, avoid large gatherings, and to stay home if they feel ill.” Id.
50. The March 26, 2020 Executive Order also stated that “Pursuant to Ark. Code Ann. § 20-7-101, violation of a directive from the Secretary of Health during this public health emergency is a misdemeanor offense, and upon conviction thereof is punishable by a fine of not less than one hundred dollars ($100) nor more than five hundred dollars ($500) or by imprisonment not exceeding one (1) month, or both.” Id.
51. These orders do not contain any exceptions for petition canvassers, volunteers, or campaigns working to gather signatures.
52. Additionally, public facilities across Arkansas have closed and multiple events have been cancelled through at least August 2020. For example, the Little Rock Convention and Visitors Bureau has reported that more than 50 events – at an economic impact of $7.4 million – have been canceled. The 50 canceled events were expected to draw 45,000 attendees. The Central Arkansas Library System, which is the largest public Arkansas library system, is now closed indefinitely. In 2015, the library system averaged over 160,000 visits per month.  2 https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-10._.pdf.
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53. Public and private colleges and universities throughout Arkansas closed, enacted online instruction measures in lieu of in-person classes, and sent their students away from campus for the remainder of the semester. The University of Arkansas, which is the largest university in the state, announced that on-campus housing would close beginning April 3, 2020.
54. Local governments have responded as well. The City of Fayetteville has asked residents to only visit parks or trails at times when they are unlikely to encounter others, asked residents to maintain a distance of six feet from each other, has posted signs demonstrating what six feet looks like, and has encouraged residents to actually “give more than six feet if you can – the more space between you and others, the better.”3 The Mayor of Fayetteville suspended the Fayetteville Farmers’ Market on March 30, 2020 because it “draws a sizeable crowd of people of all age groups, who come into close contact with each other for hours at a time – and those are all the things we must avoid to slow community spread of this COVID-19 pandemic.”4
55. On April 4, 2020, Governor Hutchinson amended the Emergency declaration reiterating his previous declarations but also requiring that the entities that remain open must “[l]imit the number of people who can enter into the facility at any one time to ensure that people in the facility can easily maintain a minimum six-foot distance from one another.”5
56. On April 6, 2020, Governor Hutchinson ordered public schools to remain closed for the rest of the school year and on March 19, 2020, he closed all gyms, restaurants, and indoor entertainment venues.

 3 See City of Fayetteville, COVID-19 (Coronavirus Updates & Information,
https://www.fayetteville-ar.gov/3883/Coronavirus-Updates (last visited April 21, 2020).

4 Id.

5

See

Governor

Hutchinson

Executive

https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-13._.pdf

Order

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57. Courts have also worked to limit in person contact. This Court, for example, issued Administrative Orders 2020-1 and 2020-4. These orders continued all criminal and civil trials, provided for video conference hearings, cancelled naturalization ceremonies, increased screening for access to the courthouse, and encouraged the public to “use online Court resources or contact the Court by telephone.”
58. On April 3, 2020, the Arkansas Supreme Court extended its suspension of in-person proceedings through May 1, 2020, and noted that the suspension could be extended.
59. As a result of the public health crisis presented by the coronavirus, expert warnings and advisories, news coverage, recommendations from public officials, and public health measures, numerous public gatherings in Arkansas have been cancelled or postponed. Numerous categories of businesses and other public accommodations have closed or shifted to remote operation only, and are likely to remain in this state for an unknown period of time. As a result, public encounters have been drastically reduced.
The Pandemic Has Made the Signature-Gathering Process under Arkansas Law Unduly Burdensome
60. The COVID-19 pandemic makes in-person signature gathering impossible. 61. In normal times, collecting signatures in-person is both time and labor intensive. Collectively, canvassers must make hundreds of thousands of interpersonal contacts with the general public. 62. Canvassers rely heavily on public events, large gatherings, and public buildings such as sporting events, festivals, parades, public libraries, and concerts in order to meet people to ask to sign. 63. Canvassers also depend on meeting eligible voters in front of businesses and retail locations such as restaurants, movie theaters, amusement parks, and office buildings. These
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establishments also allow canvassers to make contact with large numbers of signatories and are vital to the signature collection process.
64. Door-to-door collections are also impossible during this pandemic. In light of public warnings and orders recommending social distancing, many individuals, both canvassers and the individuals they solicit, simply cannot risk close contact with others.
65. Indeed, merely exchanging pens and petition papers back-and-forth between the canvassers and the voters creates a risk of transmission.
66. Plaintiff Allen reasonably fears that contact with an unknown canvasser will present an undue risk of exposure and potentially adverse health effects.
67. Plaintiff Gray’s continuing care retirement facility is taking every measure possible to prevent the spread of COVID-19 in her community by restricting access to the campus by anyone from the outside. Plaintiff Gray cannot meet with a canvasser to witness her signature.
68. Thus, Plaintiffs Allen and Gray will be unable to sign a petition in support of the Proposed Amendment in a manner that is consistent with both the formal requirements of Arkansas law related to the ballot initiative process and the orders issued by the CDC, Governor Hutchinson, and Secretary Smith.
69. Plaintiff Miller reasonably fears that she cannot successfully or safely recruit or mobilize individuals who otherwise would have been willing to become a canvasser, as doing so will potentially expose both herself and others to serious illness.
70. Thus, Plaintiff Miller will be unable to collect signatures for the Proposed Amendment petition and unable to recruit or mobilize others in a manner consistent with both the formal requirements of Arkansas law related to the ballot initiative process and the orders issued by the CDC, Governor Hutchinson and Secretary Smith.
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71. As a result of these circumstances, Plaintiff AVF will be unable to collect the required 89,151 signatures prior to the July 3, 2020 filing deadline, or meet the other formal requirements of Arkansas constitutional and statutory law discussed above, absent relief from this Court.
72. Specifically: a. The social distancing efforts, event cancellations, and the closure of public accommodations will prevent Plaintiffs from obtaining 89,151 wet signatures before the filing deadline as required by Arkansas law. b. The impermissibility of obtaining proxy or electronic signatures under Arkansas law, the requirement that canvassers witness all signatures, and the necessity that the canvassers swear before a Notary Public, will further prevent Plaintiffs from obtaining the required number of signatures as a result of current events.
The Coronavirus Pandemic is Expected to Continue for an Indefinite Period of Time. Thus, it will be Impossible for Plaintiffs to Meet the Deadline
73. COVID-19 continues to spread in Arkansas and it is not clear when the pandemic will end.
74. As of April 22, 2020, the Arkansas Department of Health reports that 2,262 positive cases of the virus have been confirmed by testing in Arkansas. Forty-three Arkansans have died as a result of this virus. In the United States, there have been 825,306 cases and 45,075 deaths.6
75. On March 29, 2020, President Trump announced that federal social distancing guidelines would remain in place through at least April 30, 2020.
 6 https://adem.maps.arcgis.com/apps/opsdashboard/index.html#/f533ac8a8b6040e 5896b05b47b17a647.
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76. The uncertainty surrounding when the pandemic will abate has made signature gathering impossible. Arkansas Has Already Recognized That The Pandemic Requires Changes To Previous Voting
Rules 77. On March 20, 2020, Governor Hutchinson issued an Executive Order suspending provisions of the Arkansas code that limited the availability of absentee ballots to certain excuses “so that all eligible qualified electors” could vote absentee in the March 31, 2020 primary and provided additional time for voters to request absentee ballots.7 78. On March 30, 2020, Governor Hutchinson issued an Executive Order that allows for electronic notary services and removed the requirement that a notary has to witness a signature in person.8 On April 9, 2020, the Governor expanded the scope of documents that the order applied to.9 79. Jurisdictions across the country have responded to the pandemic by changing the processes, rules, and procedures for elections and petitions to make essential adjustments to meet these extraordinary circumstances. 80. For example, Ohio postponed their 2020 primary election until April 28, 2020. Additionally, Ohio will conduct the election almost exclusively by mail and vote centers will only be open for people with disabilities to vote in person.

 7 https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-08._.pdf

8

See

Governor

Hutchinson

Executive

Order

https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-14._.pdf (accessed April

17, 2020)

9

See

Governor

Hutchinson

Executive

https://governor.arkansas.gov/images/uploads/executiveOrders/EO_20-14._.pdf

Order

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81. On March 25, 2020, a Virginia state court granted a preliminary injunction and ordered a reduction in the number of signatures needed for candidates to enter Virginia’s primary election from 10,000 to 3,000. The court found that “the circumstances as they exist in the Commonwealth of Virginia and across the United States are not normal right now,” and that the regulations requiring the signatures were not narrowly tailored because they “do[] not provide for emergency circumstances, like those that currently exist.”10
82. On April 17, 2020, the Massachusetts Supreme Judicial Court, Massachusetts’ highest court, ordered three forms of relief for candidates seeking access to the ballot: first a reduction in the signature requirements by 50%, second an extension of the deadlines for filing of signatures, and third, a requirement that the Secretary of State accept electronic rather than wet-ink original signatures. The court agreed with petitioners that “these extraordinary times of a declared state of emergency arising from the COVID-19 pandemic create an undue burden on prospective candidate’s constitutional right to seek elective office.”11
83. On April 20, 2020, a federal court in Michigan granted a motion for preliminary injunction reducing the state signature requirement for a candidate to Michigan’s Eleventh Congressional District after finding that “the State’s actions in the form of enforcing both the Stay-at-Home Order and the statutory ballot-access requirements operate in tandem to impose a severe burden” on the Plaintiff.12
 10See Order, Faulkner v. Virginia Dep’t of Elections, Va. Cir. No. CL 20-1456 (Mar. 25, 2020), available at https://www.virginiamercury.com/wp-content/uploads/2020/03/3-25-2020-Faulknerv.-Virginia-Department-of-Elections-CL-20-1456-Prel....pdf (accessed April 17, 2020). 11 https://www.mass.gov/files/documents/2020/04/17/12931.pdf 12 Order Granting Motion for Preliminary Injunction, Esshaki v. Whitmer, 2:20-cv-10831, ECF No. 23, at 4 (Apr. 20, 2020).
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CAUSE OF ACTION COUNT I – UNDUE BURDEN ON BALLOT ACCESS AND RIGHTS TO FREEDOM OF
SPEECH AND ASSOCIATION UNDER THE FIRST AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION
84. Plaintiffs repeat and reallege paragraphs 1 through 83 above. 85. Plaintiffs’ rights to petition, speech, and association are protected by the First and Fourteenth Amendments to the United States Constitution. The circulation of petitions, including the petition for the Proposed Amendment, is “‘core political speech,’ for which First Amendment protection is ‘at its zenith.’” Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 186 (1999) (quoting Meyer v. Grant, 486 U.S. 414, 422 (1988)). 86. Arkansas’ petition signature requirements, in combination with federal and state guidance and orders prohibiting certain gatherings and promoting social distancing due to COVID-19, preclude Plaintiffs’ ability to gain access to the ballot and organize in support of the Proposed Amendment, in violation of Plaintiffs’ rights under the First and Fourteenth Amendments. 87. When analyzing the constitutionality of petition requirements, a Court “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 which those interests make it necessary to burden the plaintiff’s rights.’” Burdick v. Takushi, 504 U.S. 428, 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983)). “Regulations imposing severe burdens must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review . . . .” Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).
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88. Under these circumstances, the burden on Plaintiffs’ core constitutional rights is severe, operating to freeze the political status quo and effectively exclude the Proposed Amendment from the ballot. Thus, the challenged Arkansas’ statutory and constitutional requirements applying to petitions are subject to strict scrutiny.
89. The petition signature requirements from which Plaintiffs seek relief cannot survive strict scrutiny, as they are not narrowly tailored to serve a compelling governmental interest.
90. Even if the challenged requirements, in light of the COVID-19 pandemic, are characterized as less than a severe burden, they still are not sufficiently justified under any level of scrutiny or balancing.
91. Defendant has no cognizable interest in effectively barring the Proposed Amendment from the ballot. As applied in the current emergency circumstances due to the COVID-19 pandemic, the requirements of Ark. Const. Art. 5, § 1 Ark. Ann. Code § 7-9-108(b), Ark. Ann. Code § 7-9-109, Ark. Ann. Code § 7-9-103(a)(1)(A), Ark. Ann. Code § 7-9-104(c)(1), Ark. Ann. Code § 7-9-111(d)(3), Ark. Ann. Code § 7-9-126(c)(1), and Ark. Ann. Code § 7-9126(c)(3) are not narrowly tailored to serve a compelling, or even legitimate, state interest, nor are they sufficiently important to justify the burdens on Plaintiffs’ First and Fourteenth Amendment rights under any level of review under the current pandemic circumstances.
92. Absent injunctive relief, Plaintiffs will suffer irreparable harm. Plaintiffs have no adequate remedy at law.
PRAYER FOR RELIEF WHEREFORE, the Plaintiffs respectfully request that the Court enter an order:
1. Declaring that, in the extraordinary situation presented by the coronavirus epidemic, the requirements of Arkansas law as described herein and as applied to
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Plaintiffs in their efforts to place the Proposed Amendment on the November 3, 2020 general election ballot, violate Plaintiffs’ First and Fourteenth Amendment rights under the United States Constitution. 2. For the November 3, 2020 general election, enjoining Defendant and his agents from enforcing: a. The requirement of Ark. Const. Art. 5, § 1 that the petition for the Proposed
Amendment contains signatures of electors equal to at least ten percent of the total vote cast for the office of governor in the most recent gubernatorial election. b. The requirement that the SOS not accept a petition for filing that does not purport to contain the minimum number of signatures as required in Ark. Const. Art. 5, § 1. c. The requirement of Ark. Ann. Code. § 7-9-108(b) that each petitioner sign the petition in the presence of the canvasser.13 d. The requirement of Ark. Ann. Code. §§ 7-9-108(b), 7-9-109 that each canvasser sign an affidavit in the presence of a Notary Public, swearing that each petitioner signed the petition in the presence of the canvasser. e. The deadline of Ark. Const. Art. 5, § 1 to submit all required signatures to the Secretary of State’s office not less than four months before the election at which the petition would be voted on.
 13 Arkansas defines a petitioner as “a person who signs an initiative or referendum petition ordering a vote on a measure.” See Ark. Ann. Code. § 7-9-101(8).
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f. The requirements of Ark. Ann. Code § 7-9-126(c)(1) that invalidates signatures that are “not an original signature.”
g. The requirement of Ark. Ann. Code § 7-9-126(c)(3) that invalidates signatures that are illegible.
h. And any other provision of Arkansas law necessary to effectuate the relief sought herein.
3. Order that the Secretary of State is required to accept a petition with the requisite number of electronic signatures. See Ark. Ann. Code §§ 7-9-103(a)(1)(A), 7-9104(c)(1).
4. Order that, to appear on the November 3, 2020 ballot, the petition for the Proposed Amendment discussed above, must have been signed by six percent of the qualified electors of the state, based on the total number of votes cast statewide for Governor in 2018, amounting to 53,492 signatures.
5. Order that the deadline for Plaintiff AVF to submit signatures be extended to September 3, 2020.
6. Order that the Secretary of State shall ascertain and declare the sufficiency or insufficiency of additional signatures within 14 days of the filing of supplemental petitions. See Ark. Ann. Code § 7-9-111(d)(3).
7. Award attorney’s fees and costs associated with this litigation; and 8. Provide any additional relief the Court deems just, proper, and appropriate.
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Dated: April 22, 2020
Ruth Greenwood* Campaign Legal Center 125 Cambridgepark Drive Cambridge, MA 02140 rgreenwood@campaignlegal.org (202) 560-0590
Annabelle E. Harless* Campaign Legal Center 55 W. Monroe St., Ste. 1925 Chicago, IL 60603 (312) 312-2885 aharless@campaignlegal.org

Respectfully submitted,
/s/ David Couch
David A. Couch 1501 North University Ave Suite 228 Little Rock, AR 72207 (501) 661-1300 arhog@icloud.com
Robert Weiner* Mark P. Gaber* Christopher Lamar* Campaign Legal Center 1101 14th Street NW, Suite 400 Washington, DC 20005 rweiner@campaignlegal.org mgaber@campaignlega.org clamar@campaignlegal.org (202) 736-2200
Attorneys for the Plaintiff
* Pro Hac Vice motions forthcoming

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UNITED STATES DISTRICT COURT WESTERN DISTRICT OF ARKANSAS
FAYETTEVILLE DIVISION

BONNIE HEATHER MILLER; ROBERT WILLIAM ALLEN; ADELLA DOZIER GRAY; and ARKANSAS VOTERS FIRST

PLAINTIFFS

v.

No. 5:20-CV-05070

JOHN THURSTON, in his official capacity as Secretary of State of Arkansas

DEFENDANT

OPINION AND ORDER

The worldwide COVID-19 pandemic, and the social distancing that is the current best tool

to prevent uncontrolled spread of that virus among the population, give rise to the circumstances

motivating this lawsuit. Article 5, Section 1 of the Arkansas Constitution reserves to the people

of Arkansas the power to propose by initiative petition state constitutional amendments that may

be placed on the ballot for a given regular election, provided that at least four months before the

election those petitions receive signed support from a number of registered Arkansas voters

equaling at least ten percent of registered voters, a number determined by the votes cast in the

preceding gubernatorial election. Legislation supplementing this constitutional provision requires

that signatures must be accompanied by the handwritten printed name, address, and birthdate of

the petitioner, as well as the date of signing. Ark. Code Ann. § 7-9-103(a)(1).

Plaintiff Bonnie Heather Miller alleges she is a registered Arkansas voter who wants to

canvass for an initiative petition to amend the Arkansas Constitution.1 Plaintiffs Robert William

1 Plaintiffs’ initiative petition seeks to amend the Arkansas constitution in advance of postcensus decennial redistricting to require that federal and state redistricting be accomplished on a nonpartisan, non-gerrymandered basis by a commission of Arkansas registered voters who have not recently been in elected or appointed federal or state office, been registered lobbyists or officers of a political party, been employees of registered lobbyists, political parties, political campaign
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Allen and Adella Dozier Gray allege they are registered Arkansas voters who want to sign the same initiative petition. Plaintiff Arkansas Voters First (“AVF”) alleges it is the sponsor responsible for the organization and submission of the initiative petition. These Plaintiffs argue that medical and legal guidance and restrictions issued by the Centers for Disease Control, the State of Arkansas, treating medical personnel, and continuing care retirement facilities make it unduly burdensome for them to exercise their First Amendment rights, as incorporated against the State of Arkansas by the Fourteenth Amendment, while also complying with the State’s initiative petition requirements. Plaintiffs have sued Defendant John Thurston in his official capacity as Secretary of State for the State of Arkansas to enjoin him from enforcing those requirements that Plaintiffs argue violate their constitutional rights.
Before the Court is Plaintiffs’ motion (Doc. 5) for a preliminary injunction and brief (Doc. 7) in support. The Secretary of State filed a response (Doc. 31) in opposition, and Plaintiffs filed a reply (Doc. 32). At the Court’s request, the parties also filed a joint statement of stipulated facts (Doc. 33) that they agree apply to the Court’s decision on the motion for a preliminary injunction. Plaintiffs separately filed a statement of facts (Doc. 34) to which the Secretary of State did not stipulate. In order to expedite the hearing on the motion for preliminary injunction, the Court did not require a response to this statement of facts and informed the parties that these facts would not be deemed admitted on the basis of any decision by the Secretary of State not to respond. On May 19, 2020, the Court held a remote hearing (Doc. 39) using Zoom videoconferencing software. Prior to the hearing, the Court inquired whether either side believed additional factual
committees, or political action committees, or been closely related by blood or marriage to anyone who has been. See “The Arkansas Citizens’ Redistricting Commission Amendment,” available at https://arvotersfirst.org/ (select “Amendment Language” hyperlink at top of page [PDF]) (last accessed May 24, 2020).
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development was necessary for resolution of the motion for a preliminary injunction, and each side indicated that only legal argument would be made.
Plaintiffs ask in their motion that the Court temporarily enjoin the Secretary of State from enforcing the State’s initiative petition requirements by allowing Plaintiffs “to gather signatures electronically, to ease in-person witnessing and notarization requirements, and to lower the required number of signatures and extend the deadline for submission of signatures.” (Doc. 7, p. 2). Plaintiffs propose terms for a preliminary injunction that they believe would allow them to exercise their First Amendment rights while they wait for final resolution on the merits in this Court. Plaintiffs ask that the Court require the Secretary of State to accept an initiative petition filed with the supporting signatures of six percent of registered voters, rather than ten; filed by September 3, 2020, rather than July 3, 2020; supported by electronic signatures made outside the presence of a canvasser, rather than by in-person handwritten “wet” signatures; and without the need for canvassers to make an in-person affidavit in support of the petition.
The Secretary of State argues that Plaintiffs lack standing to challenge the State’s initiative petition requirements and that the State’s initiative petition requirements do not substantially restrict political discussion, and so do not infringe on Plaintiffs’ First Amendment rights.
The motion for a preliminary injunction will be GRANTED IN PART as stated herein. I. Standing
Before reaching the question of whether a preliminary injunction should issue and what it should enjoin, the Court must briefly address the Secretary of State’s argument that Plaintiffs lack standing to challenge the State’s initiative petition requirements. Standing is a threshold jurisdictional issue in federal courts, and “an essential and unchanging part of the case-orcontroversy requirement of Article III.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). If
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Plaintiffs lack standing, the Court cannot proceed. “A plaintiff invoking the jurisdiction of the court must demonstrate standing to sue by showing that she has suffered an injury in fact that is fairly traceable to the defendant’s conduct and that is likely to be redressed by the relief she seeks.” In re SuperValu, Inc., 870 F.3d 763, 768 (8th Cir. 2017). Standing typically requires plaintiffs at a minimum to have taken steps to attempt to satisfy required preconditions or follow certain procedures. Bernbeck v. Gale, 829 F.3d 643, 648 (8th Cir. 2016). “A plaintiff’s burden to establish standing depends on the stage of litigation, and ‘at the pleading stage, general factual allegations may suffice, for on a motion to dismiss we presume that general allegations embrace those specific facts that are necessary to support the claim.’” Wieland v. U.S. Dep’t of Health & Human Servs., 793 F.3d 949, 954 (8th Cir. 2015) (quoting Lujan, 504 U.S. at 561).
Plaintiffs have alleged a concrete, particularized, and imminent injury in fact. Continued application of the State’s initiative petition requirements to Plaintiffs’ initiative petition during a pandemic and despite State guidance and law that make complying with those initiative petition requirements inadvisable and impracticable substantially burdens Plaintiffs’ First Amendment rights. The injury alleged is not merely speculative or hypothetical. Plaintiff AVF has filed its proposed amendment with the Secretary of State and received a file-marked copy, allowing it to begin collecting signatures. Plaintiffs Miller, Allen, and Gray allege they are aware of this particular initiative petition and want to circulate and support it so that they and others may vote on the initiative at issue during this November’s regular election, but they cannot do so in the presence of another person. The injury alleged is fairly traceable to the State, in that State initiative petition requirements prevent Plaintiffs from effectively circulating or signing the initiative petition while also complying with the social distancing encouraged, and in some cases required, by the State. Finally, because the Secretary of State is the official responsible for determining
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whether Plaintiffs’ initiative petition complies with the initiative petition requirements, enjoining him from continued application of the requirements Plaintiffs argue are unconstitutional is likely to redress the injuries they have identified. At the pleading stage of a lawsuit, this is certainly enough. Plaintiffs have standing to challenge the initiative petition requirements. II. Preliminary Injunctive Relief
Plaintiffs ask the Court to enter a preliminary injunction against the Secretary of State that would allow Plaintiffs to sign initiative petitions or gather signatures on initiative petitions during the pendency of this lawsuit in a manner enabling Plaintiffs to maintain social distancing practices intended to keep them and others safe during the COVID-19 pandemic, and that would require the Secretary of State to accept those signatures as qualifying signatures on initiative petitions.
“[W]hether a preliminary injunction should issue involves consideration of (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; (3) the probability that movant will succeed on the merits; and (4) the public interest.” Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). As movants, Plaintiffs bear the burden of showing the Dataphase factors weigh in their favor before an injunction can issue. Watkins, Inc. v. Lewis, 346 F.3d 841, 844 (8th Cir. 2003). “When a plaintiff has shown a likely violation of his or her First Amendment rights, the other requirements for obtaining a preliminary injunction are generally deemed to have been satisfied.” Minn. Citizens Concerned for Life v. Swanson, 692 F.3d 864, 870 (8th Cir. 2012) (quoting Phelps-Roper v. Troutman, 662 F.3d 485, 488 (8th Cir. 2011) (per curiam)). An order granting a preliminary injunction “must: (A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.” Fed. R. Civ. P. 65(d)(1).
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A. Dataphase Factors 1. Likelihood of Success on the Merits
Where a party seeks a preliminary injunction against “government action based on presumptively reasoned democratic processes,” the party must show that it is likely to prevail on the merits. Planned Parenthood Minn., N. Dak., S. Dak. v. Rounds, 530 F.3d 724, 732–33 (8th Cir. 2008) (explaining differences in application of Dataphase factors to preliminary injunctions involving government and private action). The merits of this lawsuit will be determined by application of the Anderson/Burdick test, which requires the Court to “weigh the ‘character and magnitude’ of the burden the State’s rule imposes on [First and Fourteenth 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) (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Anderson v. Celebrezze, 460 U.S. 780, 789 (1983))). “Regulations imposing severe burdens on plaintiffs’ rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s ‘important regulatory interests’ will usually be enough to justify ‘reasonable, nondiscriminatory restrictions.’” Id.; see also Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616 (8th Cir. 2001) (applying Anderson/Burdick test to petition circulation regulations); Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997) (“Absent some showing that the initiative process substantially restricts political discussion . . . Meyer[‘s heightened standard of review] is inapplicable.”) (quoting Biddulph v. Mortham, 89 F.3d 1491, 1498 (11th Cir. 1996)); Bernbeck v. Moore, 126 F.3d 1114, 1116 (applying strict scrutiny where the effect of the statutes at issue was “a restriction of the people’s constitutional right to express core political speech”).
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Plaintiffs challenge the application to their initiative petition of several different Arkansas requirements. Plaintiffs have made a sufficient showing that the in-person signing and sworn affidavit requirements (as well as any additional requirements necessarily contingent upon these requirements) substantially restrict political discussion. For those requirements, the Secretary of State has thus far failed to provide evidence or argument that would allow him at the merits stage to meet his burden under the heightened scrutiny the Court must apply, and so Plaintiffs have shown they are likely to succeed on the merits. Plaintiffs have not yet shown at this stage that the other requirements substantially restrict political discussion, however, and so have failed to trigger any heightened scrutiny of those requirements. Though Plaintiffs ultimately may succeed on the merits with respect to these requirements, because they have not yet demonstrated a likelihood of success, the Secretary of State will not be preliminarily enjoined. The Court is mindful that “likely” success on the merits does not mean “certain” success on the merits. None of these findings is final, and continued litigation may result in a different resolution to this lawsuit.
a. Number of Signatures Binding precedent in this Circuit all but compels a finding that the number of signatures Arkansas requires for an initiative to be placed on the ballot does not substantially restrict political discussion. See Dobrovolny, 126 F.3d at 1113. To be clear, the COVID-19 pandemic and the social distancing measures the State has deployed in response have unquestionably limited Plaintiffs’ ability to discuss, sign, or submit initiative petitions in sufficient number to obtain placement on the ballot. But although a provision makes it difficult “to plan [an] initiative campaign and efficiently allocate . . . resources, the difficulty of the process alone is insufficient to implicate the First Amendment, as long as the communication of ideas associated with the circulation of petitions is not affected.” Id. That appears to be the case with respect to the number
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of signatures required. This requirement does not prevent a canvasser from communicating to a potential supporter, nor does it prevent that potential supporter from communicating his or her actual support by becoming a petitioner and signing the initiative petition. As a result, this requirement is likely to be subject to the lowest level of review when the merits of this lawsuit are resolved, and the State likely will be found to have a reasonable, nondiscriminatory basis for the requirement—ensuring sufficiently broad support of an initiative petition by registered voters to justify its placement on the regular election ballot.
Plaintiffs have not met their burden at the preliminary injunction stage to show they are likely to succeed on the merits of this claim, and the first Dataphase factor precludes entry of a preliminary injunction requiring the Secretary of State to accept fewer signatures than required by the Arkansas constitution.
b. Deadline A signature-supported initiative petition must be filed with the Secretary of State no less than four months before the regular election. The parties identify no State-imposed limit on how far in advance of an election a canvasser may begin collecting signatures. The deadline requirement in many respects is indistinguishable from the number of signatures requirement. It does not restrict the manner in which ideas and political positions and support or opposition to both are communicated. Like the number of signatures requirement, Plaintiffs have not convinced the Court that this initiative petition requirement imposes a substantial or severe burden on Plaintiffs’ core political speech. The passage of the deadline does not require the speech to end, but only requires that supporters of an initiative petition have submitted the initiative petition with sufficient support by that date to have it placed before voters at the regular election. The parties have identified no reason why a canvasser could not continue to collect signatures on an initiative
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petition, or why a petitioner who had not yet done so could not sign the initiative petition, in anticipation of the possible need for the post-deadline “cure” period. Accord McDaniel v. Spencer, 457 S.W.3d 641, 652–53 (Ark. 2015) (holding unconstitutional a provision that restricted canvassers from circulating initiative petitions and obtaining signatures during the period between filing the initiative petition with the Secretary of State and receiving a sufficiency determination from him or her). The initial filing deadline simply marks a point by which, in some cases, Plaintiffs’ speech will no longer be effective to get an initiative before the voters in a particular election cycle.
To the extent the deadline can fairly be said to burden speech in light of the pandemic and attendant circumstances, Plaintiffs still have not convinced the Court that they are likely to prevail on the merits of this issue. That is, they have not yet persuaded the Court that the burden imposed by the deadline on their speech is severe enough to trigger the most strict scrutiny, and so even if some intermediate level of scrutiny applies to the State’s present deadline requirement, Plaintiffs have not yet shown that the deadline will fail when that scrutiny is turned upon it. The format of speech at issue by its nature requires some deadline. Arkansas holds its regular election on one day. That day is preceded by a short period of early voting. Prior to election day and early voting, ballots must be finalized and distributed to the various counties, and to voters who have requested an absentee ballot. Before ballots are finalized and distributed, some initiative petitions with only a small number of disqualified signatures may have a period to cure that deficiency. Prior to that, the Secretary of State must have a short period to review petitioner signatures on an initiative petition to determine their sufficiency.
In short, even if a heightened level of scrutiny will apply at merits resolution, the State likely will be able to show at least a substantial or important governmental interest in some
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deadline early enough to allow the pre-election process to play out. Based on the evidence on this motion, the Court cannot find that the present deadline restricts speech more than necessary to further the State’s interest. Cf. United States v. O’Brien, 391 U.S. 367, 376–77 (1968) (setting out test for intermediate scrutiny of law that regulates conduct and incidentally burdens speech). At best, Plaintiffs have shown a “fair chance” of success, but when State action is to be enjoined, a greater showing is necessary. Planned Parenthood Minn., N.D., S.D., 530 F.3d at 731–32.
Plaintiffs have not met their burden at the preliminary injunction stage to show they are likely to succeed on the merits of this claim, and the first Dataphase factor precludes entry of a preliminary injunction requiring the Secretary of State to accept initiative petitions submitted after the current deadline.
c. In-Person, Handwritten “Wet” Signatures and Sworn Affidavits
The State’s initiative petition framework requires that petitioners must handwrite their personal identifying information (printed name, address, and date of birth), the date of signing, and their signatures onto initiative petition signature pages in the presence of a canvasser. These original “wet” signature pages must be provided to the Secretary of State affixed to the initiative petition, and when the signed initiative petition is filed with the Secretary of State, it must be accompanied by an affidavit from the canvasser, sworn and signed in the presence of a notary public, that all signatures were made in the canvasser’s presence by petitioners believed to be genuine registered voters.
Unlike the number and deadline requirements, these requirements directly affect the method or manner of speech engaged in by petitioners and canvassers and restrict the ways in which they can communicate with one another and petition the State. Especially in light of a pandemic that necessitates social distancing between people to prevent its spread, and so precludes
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in-person contact and communication, these collective requirements substantially and severely burden Plaintiffs’ core political speech. On the merits, the Court must review these requirements with strict scrutiny, which will require the Secretary of State to demonstrate both that the State has a compelling interest and that the requirements are narrowly tailored to reasonably achieve that interest. Bernbeck v. Moore, 126 F.3d at 1116.
Though the Secretary of State suggests in briefing that the State has a compelling interest “in preventing fraud and maintaining the integrity of” the initiative petition process (Doc. 31, p. 27), he primarily focuses his opposition to this motion on arguing that no Plaintiff’s speech is burdened, and therefore no heightened review applies, rather than on providing evidence or argument that would demonstrate that the State’s interest is compelling or its requirements narrowly tailored. Because the Secretary of State has put no supporting evidence of a compelling interest or narrow tailoring into the record, and has offered only limited justification for the State’s initiative petition requirements, the Court’s determination of whether Plaintiffs are likely to succeed on the merits is guided in large part by justifications and limitations that are the subject of other cases.
There is no evidence before the Court of fraud during previous initiative petitions. Furthermore, “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 v. Grant, 486 U.S. 414, 427 (1988). Because of the caution with which this Court proceeds in preliminarily enjoining State action, however, it will assume for purposes of this motion that the State’s identified interests will be sufficiently supported at the merits stage that those interests can be found to be “compelling.” The Secretary of State likely can show that the handwritten “wet” signature page requirement is narrowly tailored to achieve the State’s interest (or at least, the question will be close enough that
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Plaintiffs have demonstrated only a fair chance of success), but the in-person requirements likely will not be found to be narrowly tailored to achieve the State’s interests.
i. Handwritten “Wet” Signature Pages The State requires handwritten signatures on initiative petitions to achieve its interest in preventing fraud and maintaining the integrity of the initiative petition process. To verify “whether the petitioner is a legal voter, as is necessary for that person’s signature to count toward the required total,” McDaniel, 457 S.W.3d at 652, the State requires the signature to be accompanied by the petitioner’s printed name, address, birth date, and the date of signing. Ark. Code Ann. § 79-103. These requirements substantially burden Plaintiffs’ rights to engage in core political speech by limiting the manner in which petitioners may register their support for an initiative petition to handwriting. However, the Secretary of State has a duty to verify that petitioners are registered voters and that petitioners’ signatures are genuine, and it is likely that these interests will be found to be compelling, or at least sufficiently weighty to justify some burden on a petitioner’s speech. Furthermore, requiring a petitioner to affix his or her handwritten signature and identifying information to an initiative petition (at least at this stage of litigation and in the absence of further factual development and legal argument), standing alone, seems to be a burden narrowly tailored to reasonably achieve the State’s interest, even in light of the pandemic. It is not that electronic signatures cannot similarly be determined to be genuine. In fact, electronic signatures are commonplace and accepted for all manner of official business, and not only by the State, but by this Court. Counsel for Plaintiffs and the Secretary of State electronically signed the briefing on this very motion, and the Court has electronically signed this opinion and order. The Court has many protections in place to ensure that attorneys’ electronic signatures
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(which are made by typing “/s/” followed by the signer’s printed name) are genuine however, and these protections range from email notification to all parties when an electronically signed document is filed or entered to password protection on the various accounts used to file or enter electronically signed documents.
Plaintiffs suggest that requiring the Secretary of State to accept an electronic signature made using the DocuSign service and accompanied by a scanned image of the petitioner’s Stateissued photo identification would allow the Secretary of State to verify that electronic signatures are genuine.2 Plaintiffs have not demonstrated that electronic signatures created on a touchscreen or with a mouse or trackpad would be of sufficient quality to allow the Secretary of State to carry out his duty to determine whether a signature “is obviously not that of the purported petitioner” or “is illegible.” Ark. Code Ann. § 7-9-126(c). The Court is hesitant to approve a process through preliminary injunction that might result in a greater number of signatures being disqualified than is typical. Rather than helping matters, the proposed addition of a photo identification to the initiative petition process makes it more burdensome. Initiative petitions signed by the general public generally require neither the level of account security required by the DocuSign process nor the provision of photo identification to verify identification of the petitioner—and if they did, it seems plausible that those requirements would have a chilling effect that might severely burden petitioners’ speech. Providing the type of information (e.g., gender, physical appearance, race,
2 DocuSign would allow a person to provide his or her typeface personal identifying information, and to make his or her “handwritten” signature with a finger or stylus on a touchscreen, or using a mouse or trackpad, and then for that information to be transmitted to AVF. DocuSign would also allow the petitioner to include an uploaded image of his or her State-issued photo identification to be associated with that information. AVF would then print that information out on initiative petition signature pages to be filed with the Secretary of State. To sign using DocuSign, a petitioner would have to have an email address and provide that to DocuSign for security and signature confirmation purposes.
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organ donation preferences, and other medical information) appearing on State-issued photo identification with an initiative petition would enable the Secretary of State, and anyone with access to the signed initiative petition, to easily associate personal information that is not necessary to verify that the petitioner is a registered voter with a non-anonymous statement of the petitioner’s political views.
Doubtless the State could amend its initiative petition framework to also accept some sort of electronic signature as genuine, so long as less-burdensome alternatives were available, but because the steps necessary to create and verify an electronic signature supported by photo identification seem more onerous than simply requiring a petitioner to manually write his or her information and signature on a piece of paper, it is indicative that the wet signature page burden is at least more narrowly-tailored than Plaintiffs’ proposed alternative.
Because Plaintiffs have not proposed a more narrowly-tailored alternative than handwritten “wet” signature pages, they have at best demonstrated only a fair chance of success on the merits of their claim that requiring handwritten signature pages is overly-restrictive, and the first Dataphase factor precludes entry of a preliminary injunction requiring the Secretary of State to accept electronically-created signatures.
ii. In-Person Signatures and Sworn Affidavits The State requires that a petitioner sign an initiative petition in the presence of a canvasser and that the canvasser sign and swear in the presence of a notary to his or her affidavit attesting to the genuine and compliant nature of the signatures on his or her initiative petition. Both of these “in-person” requirements and the notarization requirement impose severe burdens on Plaintiffs’ core political speech, especially in light of the State-recognized need for social distancing during this pandemic. Assuming the prevention of fraud during the initiative process is a compelling
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interest, these requirements are not narrowly tailored to reasonably achieve that interest. With respect to any interest the State claims in having a canvasser’s affidavit signed and
sworn in the presence of a notary, the State elsewhere recognizes that less burdensome alternatives are equally effective at achieving the State’s interest in preventing fraud. The unsworn declaration of a foreign declarant who “declare[s] under penalty of perjury under the law of Arkansas” that a declaration is true and correct has the same legal effect under most Arkansas law as any declaration sworn before a notary. See Ark. Code Ann. §§ 16-2-201–16-2-208. It is not clear why a domestic unsworn declaration should be any less effective than a foreign one, and whatever deterrent effect swearing in the presence of another may have on fraud, there is slim likelihood that the threat of criminal prosecution for committing perjury is less effective at eliciting truthful statements. The requirement that an affidavit be signed and sworn before a notary, in person or otherwise, is not narrowly tailored.
With respect to having a petitioner sign a petition in the presence of a canvasser, and having a canvasser swear or declare under penalty of perjury to the Secretary of State that the signature was made in his or her presence, the State’s interest in preventing fraud is similarly protected in less burdensome fashion by other State law. Arkansas has criminalized petition fraud. See Ark. Code Ann. § 5-55-601 (making petition fraud a Class D felony, punishable by up to six years in prison and a fine of $10,000); § 7-9-103 (making knowing falsification on an initiative petition a Class A misdemeanor punishable by up to one year in jail and a fine of $2,500, and mandating that any official charged with verifying signatures for a statewide petition who “has reasonable grounds to believe” that a signature is forged “report the suspected forgery and basis for suspecting forgery” to the Arkansas State Police). Petitioners may not knowingly sign any name other than their own to an initiative petition, sign any initiative petition more than once, or sign an initiative petition
15

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when not legally entitled to do so. Canvassers, sponsors, and sponsors’ agents may not sign any
name other than their own, solicit signatures from unqualified petitioners, pay anyone to sign the
initiative petition, knowingly misrepresent the purpose and effect of the initiative petition in order
to induce a petitioner to sign, or file petitions supported by signatures they know to be false. The
requirement that signatures be made in person is overly burdensome in light of these criminal laws
that accomplish the same result of preventing fraud and maintaining integrity of the process
without the need for personal contact, and so the in-person requirements likely will not be found
to be narrowly tailored.
In finding that these criminal provisions are likely adequate to address the State’s interest
in preventing fraud and maintaining the integrity of the initiative petition process, and finding in-
person signatures and affidavits likely to be unnecessarily restrictive, this Court is guided by the
unanimous Supreme Court decision in Meyer:
Other provisions of the Colorado statute deal expressly with the potential danger that circulators might be tempted to pad their signatures with false signatures. It is a crime to forge a signature on a petition, Colo. Rev. Stat. § 1-13-106 (1980), to make false or misleading statements relating to a petition, Colo. Rev. Stat. § 1-40119 (Supp. 1987), or to pay someone to sign a petition, Colo. Rev. Stat. § 1-40-110 (1980). Further, the top of each page of the petition must bear a statement printed in red ink warning potential signatories that it is a felony to forge a signature on a petition or to sign the petition when not qualified to vote and admonishing signatories not to sign the petition unless they have read and understand the proposed initiative. 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 v. Grant, 486 U.S. 414, 426–27 (1988). There is no reason appearing in the record that an
initiative petition in Arkansas similarly advising petitioners of the acts that constitute petition fraud
and effectively admonishing them not to sign unless they have been provided with all necessary
petition materials would not similarly be adequate to the task of achieving the State’s interests.
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iii. Dependent Requirements Given the likely unconstitutional nature of the in-person signature and sworn affidavit requirements, other requirements dependent upon them similarly cannot pass constitutional muster. For example, Arkansas requires that signatures be obtained only on pages affixed to an initiative petition part that ultimately will be filed with the Secretary of State. Ark. Code Ann. §§ 7-9-104, 7-9-108. Because it is over burdensome to require petitioners and canvassers to sign in person, there is similarly no reason to disallow canvassers from distributing an exact copy of the initiative petition materials that would have been circulated in person, along with a signature page, to individual petitioners by means alternative to in-person delivery. Canvassers could then collect the handwritten signature pages received from those separate petitioners (or small groups of petitioners, as might occur if a family of registered voters were to sign the initiative petition) and consolidate those signature pages as attachments to the appropriate petition part that will be submitted to the Secretary of State (provided the canvassers doing so make an unsworn declaration under penalty of perjury that the signatures were obtained from petitioners who before signing had received, been shown, or otherwise had access to a copy of the initiative petition materials identical to what the canvasser would have provided them if the signature had been obtained in person, and that the copy was provided to petitioners in the same place or manner as the signature page on which the petitioners signed their support). That is, if petitioners obtain signature pages from an Internet webpage, a copy of the petition materials would need to have been made available on the same webpage. If petitioners obtain signature pages by mail, a copy of the petition materials would need to be included in the same mailing. If petitioners obtain signature pages printed in a periodical, a copy of the petition materials would need to be printed in the same periodical. If petitioners obtain signature pages from a community bulletin board, a copy of the petition materials
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would need to be posted on the same bulletin board. Plaintiffs are likely to prevail on the merits of their claim that State requirements dependent
upon in-person distribution of initiative petitions and collection of petitioners’ signatures are not narrowly tailored.
2. Remaining Dataphase factors A plaintiff who shows he or she is likely to prevail on the merits of a First Amendment claim generally is presumed to satisfy the remaining Dataphase factors. Minn. Citizens Concerned for Life, 692 F.3d at 870. A plaintiff who has not made this showing against the government, conversely, is not entitled to a preliminary injunction no matter the outcome of an analysis of the remaining Dataphase factors. Planned Parenthood Minn., N.D., S.D., 530 F.3d at 731–32. Therefore, an analysis of those factors is unnecessary for the Court to determine whether to issue a preliminary injunction. An identification of some of the circumstances that would otherwise inform those factors may serve to properly tailor the preliminary injunctive relief the Court will grant, however. The Secretary of State argues that any preliminary injunction is against the public interest, relying on precedent to the effect that injunctions against State law cause irreparable injury to the State and its people. When that State’s law itself is the cause of irreparable injury to the people of the State by unconstitutionally encroaching on their right to engage in core political speech, an injunction against enforcement of that law cannot fairly be said to cause irreparable injury to those people. However, a preliminary injunction that requires the State to depart too drastically from its present framework of requiring handwritten signature pages on an initiative petition might tip the balance of harms so much that the purpose of preliminary injunctive relief is frustrated. The Court hesitates to upend a framework democratically enacted by the people, and must strive to
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preliminarily enjoin only those requirements that Plaintiffs have shown are likely unconstitutional, rather than use the injunctive process to impose a framework that appears preferable.
If analyzed in depth, the harms faced by each party would weigh in favor of injunctive relief. The harm faced by the Secretary of State is the possibility that he might place before the voters on the regular election ballot an initiative petition that, when the merits of this suit are resolved, would not have met each technical requirement for placement on the ballot. This is really no harm at all, as rejection by the voters has the same effect as a decision by the Secretary of State not to place the initiative on the ballot, and approval by the voters of an initiative placed on the ballot after “substantial compliance” with State law accords with Arkansas’s liberal construction of the right of its people to place initiatives on the ballot by petition. Fletcher v. Bryant, 422 S.W.2d 698, 700 (Ark. 1968). The harm faced by Plaintiffs, meanwhile, is that they will be deprived of their right to engage in core political speech that might persuade voters to change the laws under which we live.
Though Plaintiffs move for preliminary injunctive relief only for themselves, requiring the Secretary of State to abandon overbroad requirements when reviewing Plaintiffs’ initiative petition, while allowing the Secretary of State to apply those likely unconstitutional requirements to any other initiative petitions circulating, is certainly against the public interest. It creates an appearance that this Court is engaging in its own form of viewpoint discrimination and protecting Plaintiffs’ First Amendment rights because of agreement with the content of the core political speech Plaintiffs are communicating, rather than because Plaintiffs are engaging in core political speech. Furthermore, the State has no greater or lesser interest with respect to other initiative petitions presently circulating, and applying the same procedures required by this injunction to all filed initiative petitions will work no hardship on the Secretary of State. Finally, though
19

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speculative at the moment, it is conceivable that the individual Plaintiffs in this action might wish to register their support for another circulating petition, and requiring a separate lawsuit just to piecemeal extend an injunction works against all sound principles of judicial efficiency. Accordingly, though Plaintiffs’ challenge is to the initiative petition requirements as applied to them, the Court’s injunction will require the Secretary of State to refrain from applying the likely unconstitutional in-person signature and sworn affidavit requirements to any initiative petition filed with him until the preliminary injunction is dissolved.
These considerations in mind, the Court turns to the matter of the injunctive relief that should issue.
B. Injunctive Relief The process by which the Court exercises its discretion when preliminarily enjoining injurious conduct is set out in Federal Rule of Civil Procedure 65. The Court must state the reasons why a preliminary injunction is issuing (as has been done above), must state the terms of the injunction with specificity, and must describe the acts restrained or required with reasonable detail. Fed. R. Civ. P. 65(d). The purpose of preliminary injunctive relief is to preserve the status quo and prevent the identified irreparable harm until the merits of a dispute can be resolved, and “a party moving for a preliminary injunction must necessarily establish a relationship between the injury claimed in the party’s motion and the conduct asserted in the complaint.” Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994). “The status quo is the last uncontested status which preceded the pending controversy.” Westinghouse Elec. Corp. v. Free Sewing Mach. Co., 256 F.2d 806, 808 (7th Cir. 1958) (cited with approval by Minn. Mining & Mfg. Co. v. Meter ex rel. NLRB., 385 F.2d 265, 273 (8th Cir. 1967)). Preliminary injunctions “must be narrowly tailored to remedy only the specific
20

Case 5:20-cv-05070-PKH Document 41 Filed 05/25/20 Page 21 of 25 PageID #: 448
harms shown by the plaintiffs, rather than to enjoin all possible breaches of the law.” St. Louis Effort for AIDS v. Huff, 782 F.3d 1016, 1022–23 (8th Cir. 2015) (quoting Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004) (per curiam)). In exercising its discretion to enter a preliminary injunction, the Court possesses flexibility to “mould each decree to the necessities of the particular case” and “should pay particular regard for the public consequences in employing the extraordinary remedy of injunction.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). Because issuing a preliminary injunction is an exercise of discretion, the Court need not act mechanically but can choose to act within the range of permissible options. See Novus Franchising, Inc. v. Dawson, 725 F.3d 885, 895–96 (8th Cir. 2013).
In the Court’s view, Plaintiffs’ proposal that the Secretary of State should be required to accept petitions electronically signed using DocuSign and supported by photo identification is not appropriate for preliminary injunctive relief. It may be that facts and argument on the ultimate merits of this case demonstrate that requiring the Secretary of State to accept electronic signatures via DocuSign (or in some other fashion) is appropriate, but in light of the narrow tailoring, balance of harms, and public interest concerns the Court raises above in its Dataphase analysis, that relief will not issue as part of the preliminary injunction in this case. An analysis of handwritten personal information and signatures has long been the process used by the Secretary of State to determine that an initiative has actual support from a substantial number of actual registered voters. Plaintiffs have not shown here that the qualitative differences in verifying handwritten signature pages and verifying electronic signature pages made through DocuSign are so insignificant that requiring the Secretary of State to accept the latter would maintain the status quo and would not tip the balance of harm in the Secretary of State’s favor. Instead, the status quo of handwritten signature pages will remain.
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As noted above, however, when the merits of this suit are resolved, numerous requirements surrounding both the in-person witnessing of handwritten personal information and signatures and the in-person swearing before a notary to an affidavit likely will be found overly burdensome and not narrowly tailored to reasonably achieve whatever compelling interest the State may actually have. No real hardship will fall on the Secretary of State if he must review the typical number of handwritten signatures, though spread across substantially more pages than is typical, or must accept an unsworn declaration made under penalty of perjury, rather than a sworn affidavit, that canvassers have not committed petition fraud and believe the submitted signatures are genuine and belong to registered voters. The injunctive relief the Court will grant against the Secretary of State with respect to these additional requirements is guided in large part by those same provisions described in the unanimous decision in Meyer that lead this Court to find that the State’s requirements are not narrowly tailored restrictions on speech.
The Court has reviewed the initiative petition signature page attached as an exhibit (Doc. 7-21) to Plaintiffs’ motion. That signature page appears to follow the suggested form. See Ark. Code Ann. § 7-9-104; Arkansas Secretary of State John Thurston, 2020 INITIATIVES AND REFERENDA HANDBOOK (Rev. Jan. 2020) at 63 (available at https://www.sos.arkansas.gov/ uploads/2019-2020_I__R_Handbook_-_Jan_2020.pdf) (last accessed May 24, 2020). It includes a paragraph at the top addressed to the Secretary of State from petitioners, a section at the bottom left where a canvasser makes his or her sworn affidavit, and a section at the bottom right where a notary public affixes his or her own certifying information. The Secretary of State may continue to accept signatures in support of initiative petitions that are obtained and verified under the State’s present framework.
Until this preliminary injunction is dissolved, or superseded by a permanent injunction, the
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Secretary of State must also accept as compliant with Arkansas law any petitioner signatures and
signature pages in support of an initiative petition that were not circulated and signed in the
presence of a canvasser and any canvasser affidavits that, if unsworn, are declarations made under
penalty of perjury, so long as all other requirements that do not conflict with this Court’s order are
sufficiently met and:
• For those signature pages bearing signatures that were not made by petitioners in the
presence of a canvasser, the paragraph at the top of the signature page is replaced with a paragraph
that substantially follows the form of the paragraph in Ark. Code Ann. § 7-9-104, and also
includes:
(1) a statement from the petitioner that states that the popular name, ballot title, and text of
the initiative were made available to him or her for review prior to signing;
(2) a statement from the petitioner that demonstrates that he or she understands what acts
on his or her part might constitute petition fraud; and
(3) a statement from the petitioner that if he or she received assistance due to disability in
filling out personal information, the person assisting has signed in the margin,
such as the following paragraph (with blanks filled in appropriately):
To the Honorable John Thurston, Secretary of State of the State of Arkansas: We, the undersigned registered voters of the State of Arkansas, respectfully propose the following amendment to the Constitution of the State, and by this, our petition, order that the same be submitted to the people of said state, to the end that the same may be adopted, enacted, or rejected by the vote of the registered voters of said state at the regular general election to be held on the 3rd day of November, 2020, and each of us for himself or herself says:
I have personally signed this petition; I am a registered voter of the State of Arkansas, and my printed name, date of birth, residence, city or town of residence, and date of signing this petition are correctly written after my signature.
23

Case 5:20-cv-05070-PKH Document 41 Filed 05/25/20 Page 24 of 25 PageID #: 451

The popular name, ballot title, and text of the initiative were made available to me for review before I signed this petition.

I understand that it is a crime to sign a name other than my own to this petition, to sign a petition in support of this initiative more than one time, or to sign this petition when I am not legally entitled to do so. If due to disability I required assistance writing my printed name, date of birth, residence, city or town of residence, county of residence, or date of signing, the person who assisted me has signed and printed his or her own name in the margin of the petition next to my signature line.

The popular name is title is

and the ballot .

and;

• For those signature pages that are not signed and sworn by the canvasser before a notary

public, the affidavit section for the canvasser instead reads:

Canvasser’s Unsworn Declaration Under Penalty of Perjury

I,

, declare under penalty of

perjury under the law of Arkansas that to the best of my knowledge

and belief, each of the foregoing persons signed his or her own name

to this sheet of the petition, each signature is genuine, and each

signer is a registered voter of the State of Arkansas, in the County

listed. To the best of my knowledge, this signature sheet was

provided to each signer in a manner that also provided to him or her

an exact copy of the popular name, ballot title, and text of the

initiative. I am familiar with the acts by canvassers and sponsors

that are criminalized under Ark. Code Ann. § 5-55-601 and Ark.

Code Ann. § 7-9-103, and have committed none of those acts. My

current residence address is correctly stated below.

Signature

Current Residence

Indicate one:( ) Paid Canvasser ( ) Volunteer/Unpaid Canvasser

In all cases where the Secretary of State reasonably believes his duties are ambiguous or otherwise

not sufficiently clear because of the interplay of the injunctive relief ordered herein, the Court’s

findings on the likely unconstitutional nature of the in-person signing and sworn affidavit

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requirements of Arkansas law, and the unenjoined requirements of Arkansas law, he should interpret the law and this injunction in a way that causes him not to reject initiative petition signatures, signature pages, or petition parts because they were not signed in the presence of the canvasser or because the canvasser’s unsworn declaration was not sworn in the presence of a notary.
If, whether due to oversight, misunderstanding, inartful drafting, or for some other reason, the terms of this injunctive relief contain some substantive error that a party believes will prevent compliance with the Court’s order or otherwise will require the Secretary of State or some other person or entity to do or not do some act that is contrary to the Court’s findings, that party must notify the Court immediately.
The parties are encouraged to confer and agree on any additional or supplemental terms they believe may be necessary to give effect to the Court’s findings, and if they are in agreement as to those terms but require a Court order to implement them, should so inform the Court as soon as practicable. III. Conclusion
IT IS THEREFORE ORDERED that Plaintiffs’ motion for preliminary injunction (Doc. 5) is GRANTED IN PART as stated herein.
IT IS FURTHER ORDERED that the parties confer on a proposed schedule to expedite final resolution of this lawsuit and to communicate that proposal to the Court by May 28, 2020.
IT IS SO ORDERED this 25th day of May, 2020.
/s/P. K. Holmes, ΙΙΙ
P.K. HOLMES, III U.S. DISTRICT JUDGE
25

 
 UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
No: 20-2095 Bonnie Heather Miller, et al.
Appellees v. John Thurston, in his official capacity as Secretary of State of Arkansas
Appellant -----------------------------Honest Elections Project, et al.
Amici on Behalf of Appellant(s)
______________________________________________________________________________ Appeal from U.S. District Court for the Western District of Arkansas - Fayetteville (5:20-cv-05070-PKH)
______________________________________________________________________________ ORDER
The motion for an administrative stay is granted. The motion for stay is consolidated with the merits of the case. The motion to grant an expedited briefing is granted. Appellant’s brief is due June 17, 2020; Appellees’ brief is due June 22, 2020, and the Appellant’s reply brief is due June 25, 2020.
June 15, 2020
Order Entered at the Direction of the Court: Clerk, U.S. Court of Appeals, Eighth Circuit. ____________________________________
/s/ Michael E. Gans

 
 No. 20-2095
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
BONNIE HEATHER MILLER; ROBERT WILLIAM ALLEN; ADELLA DOZIER GRAY; and ARKANSAS VOTERS FIRST, Plaintiffs-Appellees, v.
JOHN THURSTON, in his official capacity as Arkansas Secretary of State, Defendant-Appellant.
On Appeal from the United States District Court for the Western District of Arkansas
No. 5:20-CV-05070 PKH (Hon. P.K. Holmes, III)
Appellant’s Brief
LESLIE RUTLEDGE Arkansas Attorney General
NICHOLAS J. BRONNI Arkansas Solicitor General
VINCENT M. WAGNER Deputy Solicitor General
MICHAEL A. CANTRELL Assistant Solicitor General
OFFICE OF THE ARKANSAS ATTORNEY GENERAL
323 Center Street, Suite 200 Little Rock, Arkansas 72201 (501) 682-6302 nicholas.bronni@arkansasag.gov
Appellate Case: 20-2095 Page: 1 Date Filed: 06/18/2020 Entry ID: 4925024

SUMMARY OF THE CASE AND STATEMENT REGARDING ORAL ARGUMENT
The district court below unilaterally rewrote the rules governing Arkansas’s initiative process. Arkansas’s Constitution governs that process, and for a century, it has required initiative petitions be signed in a canvasser’s presence and that a canvasser attest to that fact by affidavit. Those antifraud measures are also set forth in corresponding statutory provisions. The district court enjoined those statutory provisions on the grounds that COVID-19 had made petitioning more difficult and rendered them unduly burdensome under the First Amendment.
But contrary to the district court’s approach, COVID-19 “has not given unelected federal judges a roving commission to rewrite state election codes.” Tex. Democratic Party v. Abbott, No. 20-50407, — F.3d —, 2020 WL 2982937, at *1 (5th Cir. June 4, 2020) (cleaned up). Rather, applying the same rules that always apply, Plaintiffs’ challenge fails because they lack standing, the antifraud provisions do not implicate the First Amendment, and, in any event, the enjoined provisions are constitutional. Nor did the district court have the authority to secondguess Arkansas’s elected officials’ decisions about how to balance electoral integrity and public health, or to dictate how Arkansas conducts its elections. This Court should therefore reverse the district court’s decision and dismiss this case.
Given the urgent nature of this matter, Defendant-Appellant Arkansas Secretary of State John Thurston does not believe oral argument is necessary.

Appellate Case: 20-2095 Page: 2

i
Date Filed: 06/18/2020 Entry ID: 4925024

TABLE OF CONTENTS
Summary of the Case and Statement Regarding Oral Argument .............................. i Table of Contents ...................................................................................................... ii Table of Authorities ................................................................................................. iv Statement of Jurisdiction............................................................................................1 Statement of the Issue Presented................................................................................2 Statement of the Case.................................................................................................3
A. Constitutional and Statutory Framework ..................................................3 B. Factual and Procedural Background..........................................................6 C. Decision Below .........................................................................................9 D. Stay Proceedings .....................................................................................11 Summary of the Argument.......................................................................................12 Argument..................................................................................................................13 I. Standard of Review........................................................................................13 II. Plaintiffs’ claim fails on the merits................................................................16 A. Plaintiffs lack standing. ...........................................................................16
1. Pleading failures render Plaintiffs’ alleged injuries not redressable. ........................................................................................17
2. Plaintiffs’ alleged injuries are not traceable to any state action. ................................................................................................19
B. The district court applied an incorrect, heightened legal standard. ...................................................................................................21 1. Regulations of legislative mechanics do not implicate the First Amendment. ........................................................................22 2. Regardless, the First Amendment does not require Arkansas to create exigent-circumstances exemptions to its laws. ..............................................................................................27 3. Under the correct legal standard, the challenged requirements are constitutional. ........................................................30

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C. Even under the district court’s incorrect standard, Plaintiffs’ claim must fail. ........................................................................................31
1. The challenged requirements do not severely burden Plaintiffs and are justified by Arkansas’s important regulatory interests. ...........................................................................32
2. The challenged requirements would survive heightened scrutiny. .............................................................................................39
III. None of the other factors support the district court’s injunction...................44
IV. The district court exceeded its authority by rewriting Arkansas election law. ...................................................................................................46
Conclusion ...............................................................................................................48
Certificate of Compliance ........................................................................................49
Certificate of Service ...............................................................................................50

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Date Filed: 06/18/2020 Entry ID: 4925024

TABLE OF AUTHORITIES
Cases Abbott v. Perez,
138 S. Ct. 2305 (2018)........................................................................................45
Am. Party of Tex. v. White, 415 U.S. 767 (1974)............................................................................................33
Anderson v. Celebrezze, 460 U.S. 780 (1983)............................................................................................22
Order, Arizonans for Fair Elections v. Hobbs, No. 20-15719 (9th Cir. May 5, 2020), ECF#37 .................................................18
Arizonans for Fair Elections v. Hobbs, — F. Supp. 3d. —, 2020 WL 1905747 (D. Ariz. Apr. 17, 2020) ......... 17, 18, 45
Bernbeck v. Gale, 829 F.3d 643 (8th Cir. 2016) ................................................................. 15, 16, 19
Buckley v. Am. Const’l Law Found., Inc., 525 U.S. 182 (1999)............................................................................................27
Burdick v. Takushi, 504 U.S. 428 (1992)............................................................................... 22, 33, 40
Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828 (3d Cir. 1995) .................................................................................45
Clapper v. Amnesty Int’l USA, 568 U.S. 398 (2013)............................................................................................20
Crawford v. Marion Cty. Election Bd., 553 U.S. 181 (2008)................................................................... 32, 34, 36, 37, 40
Order, Democratic Nat’l Comm. v. Bostelmann, No. 20-1539 (7th Cir. Apr. 3, 2020), ECF#30....................................................41
Democratic Nat’l Comm. v. Bostelmann, No. 20-CV-249, 2020 WL 1638374 (W.D. Wis. Apr. 2, 2020).........................41
Dobrovolny v. Moore, 126 F.3d 1111 (8th Cir. 1997) .................................................................... passim
Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616 (8th Cir. 2002) (en banc) ..............................................................15

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iv
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Doe v. Reed, 561 U.S. 186 (2010)............................................................................... 23, 26, 43
Families Achieving Indep. & Respect v. Neb. Dep’t of Social Servs., 111 F.3d 1408 (8th Cir. 1997) (en banc) ............................................................15
Fletcher v. Bryant, 422 S.W.2d 698 (Ark. 1968) ..............................................................................45
Green Party of Ark. v. Martin, 649 F.3d 675 (8th Cir. 2011) ................................................................. 28, 33, 38
Greer v. St. Louis Reg’l Med. Ctr., 258 F.3d 843 (8th Cir. 2001) ................................................................................1
Hoyle v. Priest, 265 F.3d 699 (8th Cir. 2001) ........................................................... 31, 33, 38, 39
In re Rutledge, 956 F.3d 1018 (8th Cir. 2020) ..................................................................... 14, 30
Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614 (8th Cir. 2001) ....................................................................... 27, 33
Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (en banc) ............................................. 24, 25, 26
Johnson v. Leonard, 929 F.3d 569 (8th Cir. 2019) ................................................................................1
Jones v. Markiewicz-Qualkinbush, 892 F.3d 935 (7th Cir. 2018) ..............................................................................31
Libertarian Party of N.D. v. Jaeger, 659 F.3d 687 (8th Cir. 2011) ................................................................. 28, 40, 45
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992)............................................................................................21
Marijuana Policy Project v. United States, 304 F.3d 82 (D.C. Cir. 2002) ....................................................................... 25, 26
Marston v. Lewis, 410 U.S. 679 (1973)............................................................................................46
Meyer v. Grant, 486 U.S. 414 (1988)............................................................................................27

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Munro v. Socialist Workers Party, 479 U.S. 189 (1986)............................................................................................40
Oglala Sioux Tribe v. C&W Enters., Inc., 542 F.3d 224 (8th Cir. 2008) ................................................................. 13, 14, 44
Ohio Democratic Party v. Husted, 834 F.3d 620 (6th Cir. 2016) ..............................................................................15
Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724 (8th Cir. 2008) (en banc) ..............................................................14
Porter v. McCuen, 839 S.W.2d 521 (Ark. 1992) ..........................................................................5, 45
Purcell v. Gonzalez, 549 U.S. 1 (2006) (per curiam)...........................................................................39
Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020)................................................................................. 41, 46
Republican Party of Ark. v. Faulkner Cty., 49 F.3d 1289 (8th Cir. 1995) ..............................................................................47
Roberts v. Priest, 975 S.W.2d 850 (Ark. 1998) ................................................................................4
Rucho v. Common Cause, 139 S. Ct. 2484 (2019)........................................................................................29
Salt Lake Tribune Publ’g Co. v. AT&T Corp., 320 F.3d 1081 (10th Cir. 2003) ..........................................................................44
Second City Music, Inc. v. City of Chi., 333 F.3d 846 (7th Cir. 2003) ..............................................................................44
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)..............................................................................................19
Sturdy v. Hall, 143 S.W.2d 547 (Ark. 1940) ..........................................................................5, 42
Summers v. Earth Island Inst., 555 U.S. 488 (2009)............................................................................... 16, 19, 21

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Tex. Democratic Party v. Abbott, No. 20-50407, — F.3d —, 2020 WL 2982937 (5th Cir. June 4, 2020) ................................... i, 14, 29, 30, 47
Thompson v. Dewine, 959 F.3d 804 (6th Cir. 2020) ...................................................................... passim
Tripp v. Scholz, 872 F.3d 857 (7th Cir. 2017) ....................................................................... 34, 42
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008)..................................................................... 2, 32, 33, 38, 39
Wellwood v. Johnson, 172 F.3d 1007 (8th Cir. 1999) ............................................................... 23, 25, 34
Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955)............................................................................................31
Wilson v. City of Bel-Nor, 924 F.3d 995 (8th Cir. 2019) ..............................................................................15
Constitutional Provisions U.S. Const. art. I, sec. 4 ...........................................................................................30
Ark. Const. art. 5, sec. 1 ................................................................................................. passim art. 8, sec. 4 ........................................................................................................ 19 amend. 7................................................................................................................3
Ariz. Const. art. 4, pt. 1, sec. 1.................................................................................17
Statutes 28 U.S.C.
1291 ....................................................................................................................... 1 1331 ....................................................................................................................... 1 1343 ....................................................................................................................... 1
Ark. Code Ann. 7-2-101 ..........................................................................................19
Ark. Code Ann. 7-9104 ......................................................................................................................... 5 106 ......................................................................................................................... 5 107 ......................................................................................................................... 6
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108...................................................................................................................5, 17 109...................................................................................................................5, 17 111 ......................................................................................................................... 4 402 ......................................................................................................................... 5 404 ......................................................................................................................... 5 601 ......................................................................................................................... 5 Ark. Code Ann. 16-2-206 ........................................................................................41 2013 Ark. Acts S.J.R. 16, 89th Gen. Assembly, Reg. Sess. (approved by voters Nov. 4, 2014) (amending Ark. Const. art. 5, sec. 1).............................................4 Other Authorities Arkansas 2020 Statewide Ballot Issues and COVID-19, U. of Ark. Extension Serv.....................................................................................7 Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. Pa. L. Rev. 313 (2007) ......................38 Nyssa Kruse, Arkansas to move to Phase 2 of reopening Monday, governor says; new cases at 288, Ark. Democrat-Gazette (June 10, 2020, 3:23 PM) ...............37 Richard H. Pildes, The Constitutional Emergency Powers of Federal Courts (June 12, 2020) .............................................................................................................29 Tom Sissom, Thousands protest peacefully in Fayetteville, Ark. Democrat-Gazette (June 2, 2020, 11:27 PM)....................................................................................38
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STATEMENT OF JURISDICTION On May 25, 2020, the district court preliminarily enjoined portions of Arkansas law governing the mechanics of the process for enacting legislation and constitutional amendments through ballot initiatives. ADD1-25. On May 29, the district court converted its preliminary injunction into a permanent injunction, ADD26-27, and entered final judgment, ADD28-31. Arkansas filed a timely notice of appeal on June 1. APPX86. The district court had jurisdiction under 28 U.S.C. 1331 and 1343. This Court has jurisdiction over the district court’s final judgment, 28 U.S.C. 1291, which additionally confers jurisdiction over “all of the previous rulings and orders that led up to and served as a predicate for that final judgment,” Greer v. St. Louis Reg’l Med. Ctr., 258 F.3d 843, 846 (8th Cir. 2001); see Johnson v. Leonard, 929 F.3d 569, 575 (8th Cir. 2019).

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STATEMENT OF THE ISSUE PRESENTED
1. Did the district court err by rewriting certain antifraud provisions regulat-
ing the mechanics of legislation by ballot initiative in Arkansas?
Apposite Authority: Ark. Const. art. 5, sec. 1; Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008); Dobrovolny v. Moore, 126 F.3d 1111 (8th Cir. 1997); Thompson v. DeWine, 959 F.3d 804 (6th Cir. 2020).

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STATEMENT OF THE CASE A. Constitutional and Statutory Framework In their constitution, “the people” of Arkansas “reserve[d] to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly.” Ark. Const. art. 5, sec. 1. This case concerns that power and Arkansas’s centuryold requirements for placing constitutional amendments on the ballot. Since 1920, to place a constitutional amendment on the ballot, the Arkansas Constitution has required proponents to collect signatures equal to 10% of the “total number of votes cast of the office of Governor in the last preceding general election.” Id.; see Ark. Const. amend. 7 (approved by voters Nov. 2, 1920) (amending Ark. Const. art. 5, sec. 1).1 Those signatures must come from a geographically diverse cross-section of the State. See Ark. Const. art. 5, sec. 1 (requiring signatures from at least 15 different counties). And proponents must file them with the Secretary of State “not less than four months before the election.” Id. For the November 2020 general election, proponents must file 89,151 valid signatures by July 3, 2020. APPX49-50.

1 For the text of Amendment 7, see Proposed Amendment no. 13, 42d Gen. Assembly, Reg. Sess., 1919 Gen. Acts 481-89 (approved at Nov. 2, 1920 election as Ark. Const. amend. 7), available from HeinOnline at https://bit.ly/37whPiG.

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But that is not the only opportunity to meet the signature requirement. Instead, proponents who submit valid signatures equal to 75% of the requirement and meet a geographic-distribution requirement get an extra 30 days to collect additional signatures. See Ark. Const. art. 5, sec. 1; Ark. Code Ann. 7-9-111(d); see also 2013 Ark. Acts S.J.R. 16, 89th Gen. Assembly, Reg. Sess. (approved by voters Nov. 4, 2014) (amending art. 5, sec. 1 to impose 75% signature threshold). That so-called “cure period” commences when the Secretary notifies the proponents of an amendment that they qualified for additional time. See Ark. Const. art. 5, sec. 1. Thus, as relevant here, if Plaintiffs submit 75% of the required signatures by July 3 and meet the geographic-distribution requirement, they will have an additional 30 days to petition this summer.
Also since 1920, the Arkansas Constitution has imposed detailed requirements for collecting signatures, and two of those requirements are relevant here. First, the Arkansas Constitution imposes an in-person signature requirement mandating that signatures be “made in the presence of” the canvasser. Id. Second, its affidavit requirement provides that “each part of any petition shall have attached thereto the affidavit of” the canvasser attesting to, among other things, compliance with the in-person requirement. Id. That affidavit must also be notarized. See Roberts v. Priest, 975 S.W.2d 850, 853, 855 (Ark. 1998); Porter v. McCuen, 839

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S.W.2d 521, 522 (Ark. 1992). Both requirements prophylactically police and prevent fraud at the outset of the collection process. See Sturdy v. Hall, 143 S.W.2d 547, 551 (Ark. 1940) (describing canvasser’s role as “the sole election officer, in whose presence the citizen exercises his right to sign the petition”).
Statutes also govern the collection process, but as relevant here, the statutory provisions simply “facilitate [the] operation” of the constitutional requirements. Ark. Const. art. 5, sec. 1. For example, one statutory provision echoes the in-person and affidavit requirements. See Ark. Code Ann. 7-9-108(b). And others provide additional procedural details. See, e.g., id. 7-9-104(a) (form for initiative petition); id. 7-9-109(a) (same, canvasser’s affidavit); see also id. 7-9-106 (describing necessary attachments); id. 7-9-601(a)(2), (b) (describing training and backgroundcheck requirements for paid canvassers).
The petitioning process is typically run by a “ballot question committee.” A ballot question committee “makes expenditures for the purpose of expressly advocating the qualification, disqualification, passage, or defeat of any ballot question.” Id. 7-9-402(2)(A). A handful of simple filing requirements govern the formation of ballot question committees. They must file “a statement of organization” within five days of receiving or spending more than $500. Id. 7-9-404(a)(1)(A). And they must file a draft of their initiative petition with the Secretary of State’s office

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before they begin circulating their petitions. Id. 7-9-107(d). Within these parameters, a ballot question committee may fundraise, campaign, and collect signatures as far in advance of an election as it wishes.
B. Factual and Procedural Background Plaintiffs are a ballot question committee and individuals who support that committee’s efforts to place a constitutional amendment concerning redistricting on Arkansas’s 2020 general election ballot. APPX3-4. They claim that COVID19 has burdened their ability to legislate by initiative. See ADD1-2. While Plaintiffs have long been interested in redistricting issues and been organizing to place an initiative on Arkansas’s 2020 election ballot, they did not begin collecting signatures until less than four months before the July 3 submission deadline. For example, Bonnie Heather Miller, one of the individual plaintiffs and the chairperson of the plaintiff ballot question committee, testified below that she has “been passionate about redistricting reform for many years.” APPX43. Similarly, the plaintiff ballot question committee’s director testified that he “began looking into the prospects of a ballot initiative supporting independent redistricting” more than a year ago “in May 2019.” APPX27. And by “late 2019,” Plaintiffs had “beg[u]n developing a broad network of volunteer petition canvassers.” APPX6.

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Yet Plaintiffs did not file paperwork to begin circulating petitions until March 16, 2020, less than four months before the deadline to submit petitions. APPX6. By then, as Plaintiffs acknowledged below, COVID-19 had already begun to affect life in Arkansas and around the Nation. See APPX8-10. By contrast, other ballot question committees began the process as early as March 2019.2 As a result, those other ballot question committees had nearly a year to collect signatures before COVID-19 struck. And that means that whatever COVID-19’s effect, Plaintiffs’ own delay at least exacerbated—perhaps even solely caused—their alleged injuries.
To avoid the consequences of not beginning the process earlier, Plaintiffs sued to enjoin the statutory framework governing signature collection. See APPX19-21. But they sought to enjoin only Arkansas’s statutory in-person and affidavit requirements. APPX20. They failed to challenge relevant constitutional provisions imposing those same requirements.
At bottom, Plaintiffs’ lawsuits rests on an assertion that “[t]he COVID-19 pandemic makes in-person signature gathering impossible.” APPX13. Yet they do

2 See Arkansas 2020 Statewide Ballot Issues and COVID-19, U. of Ark. Extension Serv. (accessed June 16, 2020), https://bit.ly/2YdbPbE (containing links to draft petitions submitted to the Secretary’s office); see also APPX48-49 (relying on this website).

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not allege that Arkansas—or its officials—did anything that restricted signature gathering.
Nor could they. Arkansas did not impose any stay-at-home orders or do anything else that restricted signature gathering. For instance, although Arkansas Governor Asa Hutchinson declared a state of emergency on March 11, 2020, that declaration did not restrict Arkansans’ ability to travel outside their homes. APPX32-33. Likewise, even Governor Hutchinson’s later March 26 order limiting gatherings in “confined” spaces “outside a single household or living unit” to ten or fewer people did not impose the same kind of broad-based restrictions that became common elsewhere. APPX35-36. Then, on May 5, shortly after Plaintiffs filed this lawsuit, Governor Hutchinson issued an executive order that began relaxing what few targeted restrictions—like those on gyms, barbershops, and dine-in service at restaurants—the State had imposed. See Executive Order 20-25 (accessed June 17, 2020), https://bit.ly/37Fjmmy. And just this week, on June 15, Arkansas entered “Phase 2” of its reopening plan, which relaxed those restrictions even more. See Ark. Dep’t of Health Directives & Orders, Ark. Dep’t of Health (effective June 15, 2020; accessed June 17, 2020), https://bit.ly/37G09AZ.
Plaintiffs consequently cannot point to any pandemic-response measure that allegedly restricted their ability to petition. Far from it, Plaintiffs’ complaint merely alleges that “the COVID-19 pandemic makes in-person signature gathering

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impossible.” APPX13 (emphasis added). And they asked the district court to amend Arkansas law on that basis alone.
C. Decision Below After a hearing during which the parties presented only argument, the district court acceded to Plaintiffs’ requests. In a preliminary injunction order—that it converted to a permanent injunction days later, ADD26-27—the district court held that Arkansas’s statutory in-person and affidavit requirements were unconstitutional and blocked their enforcement. ADD10-16. In their place, the district court imposed a requirement that canvassers execute an unsworn declaration of its own design. See ADD22-25; see also ADD28-30. The district court first found that Plaintiffs had standing to challenge the relevant provisions despite their failure to allege that those provisions—or anything Arkansas had done in response to COVID-19—restricted their signature-collection efforts. ADD3-5. It compounded that error by applying an incorrect legal standard. See ADD6. To start, it ignored this Court’s precedent holding that laws that merely govern the mechanics of the initiative process—like those challenged here—do not implicate the First Amendment and do not have to withstand exacting scrutiny. See ADD11. Instead, to find a First Amendment violation, the district court relied

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on precedent scrutinizing restrictions on candidate ballot access and political discussion surrounding initiatives. See ADD6, 14-18.
It then misapplied the Anderson/Burdick undue-burden framework that was developed to resolve those claims and declared sans citation to any relevant authority that the challenged “requirement[s] impose severe burdens on Plaintiffs’ core political speech, especially in light of the State-recognized need for social distancing.” ADD14. Ignoring Arkansas’s interest in prophylactic requirements designed to prevent fraud, the district court then held that the challenged provisions were not narrowly tailored since fraud is a crime. ADD14-16.
Finally, having relied on an erroneous legal standard to justify rewriting the statutory requirements that Plaintiffs challenged, the district court went on to enjoin “other requirements dependent upon them” that Plaintiffs had not challenged. ADD17. And not content to stop there, the district court made its injunction universal—despite acknowledging that “Plaintiffs move[d] for preliminary injunctive relief only for themselves.” ADD19.
Days later, the district court denied Arkansas’s motion to dismiss, converted its preliminary injunction into a permanent injunction, and entered final judgment. ADD26-30.
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D. Stay Proceedings Arkansas thereafter asked the district court to stay its order pending this Court’s review. Arkansas’s motion highlighted the district court’s failure to analyze whether Plaintiffs’ claim triggers First Amendment scrutiny and discussed the Sixth Circuit’s recent decision staying a nearly identical injunction. See Thompson v. DeWine, 959 F.3d 804, 812-13 (6th Cir. 2020). The district court declined to address either argument. See APPX91-92, 95. Indeed, rather than explain why this Court would likely disagree with Thompson, the district court simply labeled that case as “Contra” authority. APPX95. Arkansas then asked this Court to stay the district court’s injunction pending appeal, to administratively stay the district court’s order pending resolution of Arkansas’s stay motion, and to expedite this appeal. On June 15, this Court granted Arkansas’s motion for a temporary administrative stay, expedited this appeal, and consolidated the stay motion with the merits briefing. This Court should now reverse the district court’s order. Applying those principles, this Court should reverse the district court’s judgment.
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SUMMARY OF THE ARGUMENT The district court should not have rewritten the challenged antifraud provisions, and in so doing, it erred as a matter of law and exceeded its authority. This Court should reverse that decision, vacate the injunction, and dismiss this case. The district court’s injunction rests on four legal errors. First, despite Plaintiffs’ failure to show that their alleged injuries are redressable by a federal court or traceable to any action by Arkansas, the district court nonetheless concluded that they have standing to bring this lawsuit. Second, the district court applied a heightened legal standard based on its legally erroneous view that Arkansas’s antifraud requirements trigger First Amendment scrutiny. Reviewed under the correct legal standard, these requirements easily pass constitutional muster. Third, even under the district court’s incorrect standard, Arkansas’s antifraud requirements are constitutional. Purporting to apply the so-called Anderson/Burdick framework, the district court incorrectly held that the requirements severely burden Plaintiffs and are not narrowly tailored. Fourth, in issuing its injunction, the district court failed to consider the self-inflicted nature of Plaintiffs’ alleged harm or the public’s interest in seeing Arkansas’s law enforced and avoiding chaos on the eve of an election. Each of those errors independently warrants reversal. Further, reversal is also warranted because the district court lacked the authority to unilaterally rewrite Arkansas law and enjoin provisions that Plaintiffs did
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not even challenge. Indeed, by any standard, the district court overreached when it literally rewrote the forms that petition canvassers must distribute this election cycle.
ARGUMENT For many independent reasons, Plaintiffs have not shown “actual success on the merits.” Oglala Sioux Tribe v. C&W Enters., Inc., 542 F.3d 224, 229 (8th Cir. 2008). This Court should therefore reverse the district court’s judgment and remand with instructions to vacate the injunction and dismiss this lawsuit—without even reaching the other injunction factors. See id. Even so, consideration of those other factors would only underscore the need for reversal. Indeed, aside from the underlying legal errors, the district court’s injunction violates the principle that federal courts should not rewrite state election laws on the eve of an election and risk undermining public confidence in the electoral process. I. Standard of Review To be entitled to a permanent injunction, Plaintiffs needed “to show actual success on the merits.” Oglala Sioux Tribe, 542 F.3d at 229 (emphasis added). Only if Plaintiffs have actually succeeded on the merits does this Court go on to consider the other injunction factors: “the threat of irreparable harm” to Plaintiffs; the balance between that threat and the harm an injunction will inflict upon Arkan-
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sas and its citizens; and “the public interest.” Id. In this way, the permanent-injunction standard resembles the “more rigorous” standard that applies where parties seek to preliminarily enjoin “a duly enacted state statute.” Planned Parenthood Minn., N.D., S.D. v. Rounds, 530 F.3d 724, 732-33 (8th Cir. 2008) (en banc). Requiring a rigorous showing of success on the merits ensures that Arkansas’s “presumptively reasonable democratic processes” are thwarted “only after an appropriately deferential analysis.” Id. at 733.
Moreover, a deferential approach is even more warranted here because Plaintiffs have essentially challenged Arkansas’s decisions about how to best balance electoral integrity and public health. Indeed, as this Court recently warned, federal courts must not “usurp[] the functions of the state government by secondguessing the State’s policy choices in responding to the COVID-19 pandemic.” In re Rutledge, 956 F.3d 1018, 1031 (8th Cir. 2020). After all, it is not unelected judges who bear primary responsibility for Americans’ health and safety. Instead, the “‘Constitution principally entrusts “[t]he safety and the health of the people” to the politically accountable officials of the States “to guard and protect.”’” Tex. Democratic Party, 2020 WL 2982937, at *1 (quoting S. Bay United Pentecostal Church v. Newsom, No. 19A1044, 2020 WL 2813056, at *1 (U.S. May 29, 2020) (Roberts, C.J., concurring), and Jacobson v. Massachusetts, 197 U.S. 11, 38 (1905)).
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When reviewing an order granting a permanent injunction, this Court of course reviews de novo the district court’s legal conclusions. Doe v. Pulaski Cty. Special Sch. Dist., 306 F.3d 616, 621 (8th Cir. 2002) (en banc). So this Court reviews de novo each of the key questions in this case: whether Plaintiffs have standing, Bernbeck v. Gale, 829 F.3d 643, 646 (8th Cir. 2016); whether their claim implicates the First Amendment, Pulaski Cty. Special Sch. Dist., 306 F.3d at 621; whether the challenged requirements impose a severe burden, Ohio Democratic Party v. Husted, 834 F.3d 620, 628 (6th Cir. 2016); and whether the challenged requirements are narrowly tailored to a compelling interest, Wilson v. City of BelNor, 924 F.3d 995, 999 (8th Cir. 2019).
This Court’s review of any factual findings by the district court “is unique in the context of a First Amendment claim.” Pulaski Cty. Special Sch. Dist., 306 F.3d at 621. It “make[s] a ‘fresh examination’ of those facts that are crucial to the First Amendment inquiry.” Id. (quoting Families Achieving Indep. & Respect v. Neb. Dep’t of Social Servs., 111 F.3d 1408, 1411 (8th Cir. 1997) (en banc)). It must “conduct an independent examination of the record as a whole, without deference to the trial court.” Families Achieving Indep. & Respect, 111 F.3d at 1411 (emphasis added) (quoting Hurley v. Irish-Am. Gay, Lesbian, & Bisexual Grp. of Boston, 515 U.S. 557, 567 (1995)).
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II. Plaintiffs’ claim fails on the merits. The district court’s order suffers from multiple legal flaws—any one of
which would require reversal and all of which added together compel reversal. Applying the correct legal standards, Plaintiffs’ claim fails on the merits as a matter of law and must be dismissed.
A. Plaintiffs lack standing. As a threshold matter, the district court erroneously ruled that Plaintiffs have standing to bring their claim. See ADD3-5. First, it is not possible for “a favorable judicial decision [to] prevent or redress the injury” that they allege. Bernbeck, 829 F.3d at 646 (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)). Plaintiffs have challenged only the statutory provisions effecting the in-person and affidavit requirements, not the constitutional provisions themselves. Second, their alleged injuries are not “fairly traceable to the challenged action of the defendant,” or any other Arkansas official. Id. By delaying the start of their signature collection, Plaintiffs inflicted injury upon themselves. And most importantly, Plaintiffs cannot show traceability because any difficulties they have faced in collecting signatures are—by their own admission—due to COVID-19 and not any of Arkansas’s targeted pandemic response measures. Plaintiffs do not have standing, and the district court was required to dismiss their complaint.
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1. Pleading failures render Plaintiffs’ alleged injuries not redressable.
Because of how they pled this case, Plaintiffs cannot obtain redress. Plaintiffs asked the district court to “enjoin[] Defendant and his agents from enforcing” only the statutory requirements that “each petitioner sign the petition in the presence of the canvasser” and “each canvasser sign an affidavit in the presence of a Notary Public.” APPX20 (citing Ark. Code Ann. 7-9-108(b), 7-9-109). As discussed above, those statutory requirements merely reflect underlying constitutional requirements. See Ark. Const. art. 5, sec. 1. But Plaintiffs did not challenge the constitutional requirements. See APPX20-21. Hence, the district court’s judgment cannot reach the unchallenged, constitutional in-person and affidavit requirements.
In a case out of Arizona, the Ninth Circuit recently held the plaintiffs lacked standing for their similar failure to plead a redressable claim. See Arizonans for Fair Elections v. Hobbs, No. CV-20-00658-PHX-DWL, — F. Supp. 3d. —, 2020 WL 1905747 (D. Ariz. Apr. 17, 2020), appeal dismissed, Order, No. 20-15719 (9th Cir. May 19, 2020), ECF#40. The Hobbs plaintiffs claimed that COVID-19 rendered Arizona’s similar requirements unconstitutional. See id. at *1-2; see also Ariz. Const. art. 4, pt. 1, sec. 1(9) (initiative petitions must be “signed in the presence of the affiant”). The district court denied those plaintiffs’ motion for a temporary restraining order. As one reason for that denial, the court concluded the plain-
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tiffs lacked standing because they challenged Arizona’s statutory provisions governing signature collection but not its constitutional provisions “that, by and large, impose[d] the same requirements.” 2020 WL 1905747, at *4. Agreeing with that conclusion, the Ninth Circuit denied the plaintiffs’ motion for an injunction pending appeal: “Appellants, having failed to challenge the Arizona constitutional requirement of in-person signatures, cannot get the redress from the court they now seek by only challenging the statute at issue.” Order, No. 20-15719 (9th Cir. May 5, 2020), ECF#37 at 1-2.
Plaintiffs here face the same redressability barrier. They challenged the Arkansas Constitution’s required number of signatures and accompanying deadlines. See APPX20. Those provisions fall within a single subsection of Article 5, Section 1, entitled “Initiative.” But the constitutional in-person and affidavit requirements are in an entirely different subsection (“Verification”) following the second of two headings (“THE PETITION”) in Article 5, Section 1. Plaintiffs may have included a vague catchall reference to “any other provision of Arkansas law necessary to effectuate the relief sought.” APPX21. Such boilerplate does not amount to pleading a claim based on each of the nearly two dozen subsections—nearly 2,000 words of detailed regulations—in Article 5, Section 1. Plaintiffs’ failure to challenge the constitutional in-person and affidavit requirements means their claim is not redressable.
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2. Plaintiffs’ alleged injuries are not traceable to any state action. Besides their failure to plead a redressable injury, Plaintiffs lack standing for another reason: Their alleged injury is not “fairly traceable to the challenged action of the defendant.” Bernbeck, 829 F.3d at 646 (quoting Summers, 555 U.S. at 493). In other words, they have not pleaded “causation—a fairly traceable connection between the plaintiff’s injury and the complained-of conduct of the defendant.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998). Put in terms of this case, Plaintiffs have not shown that the alleged burdens on their First Amendment rights were “caused by private or official violation of law.” Summers, 555 U.S. at 492 (emphasis added). For starters, Plaintiffs caused their own alleged injury. Over a year before the deadline to submit signed initiative petitions for the 2020 general election, Plaintiffs “began looking into the prospects of a ballot initiative supporting independent redistricting.” APPX27. In fact, the plaintiff ballot committee’s chairperson (who is herself an individual plaintiff) has “been passionate about redistricting reform for many years.” APPX43. And Plaintiffs admit they understood the stakes of placing their initiative on the 2020 ballot; after all, redistricting only happens once every decade. See APPX45 (acknowledging effect of failure to place initiative on 2020 ballot); see also Ark. Const. art. 8, sec. 4; Ark. Code Ann. 7-2-101. Yet despite Plaintiffs’ apparently longstanding interest in a redistricting initiative,
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and despite the singularly high stakes of their signature drive, they didn’t file the paperwork just to begin collecting signatures until March 16, 2020. APPX6.
Three-and-a-half months before the July 3 deadline and after COVID-19 had begun to reshape American life, Plaintiffs had barely even started the petitioning process. Other ballot-question committees began the process much earlier. Nothing required Plaintiffs’ delay. Their own choices caused their injuries, and such “self-inflicted injuries are not fairly traceable to the Government’s purported activities.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 418 (2013).
Plaintiffs have also failed to show traceability for another reason. They have not even alleged—let alone proven—that any Arkansas official’s COVID-19 response interfered with their ability to legislate by initiative. Nor could Plaintiffs ever make such a showing. Unlike other States, Arkansas never imposed a pandemic response measure broadly prohibiting travel outside the home or workplace. For instance, while Governor Hutchinson declared a state of emergency on March 11, 2020, that order did not restrict Arkansans’ ability to travel outside their homes. See APPX32-33. Nor did a later March 26 order limiting gatherings in “confined” spaces impose the kind of restrictions that became commonplace elsewhere. APPX35-36.
Indeed, Arkansas’s more targeted pandemic response stands in stark contrast with restrictions imposed elsewhere that dramatically curtailed canvassers’ ability
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to collect signatures. See, e.g., Thompson, 959 F.3d at 809 (“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.”). And it means that whatever burdens Plaintiffs claim to have faced, those burdens were not “caused by private or official violation of law.” Summers, 555 U.S. at 492. Rather, they were caused by “a disease beyond the control of the State.” Thompson, 959 F.3d at 810.
Plaintiffs, moreover, effectively concede as much. In fact, their complaint ultimately rests on allegations that signature collection has become more difficult because fearing COVID-19 transmission, Arkansans will be less likely to sign their petition. See APPX13-15. But Arkansas did not cause that situation, and the district court was not entitled to “hold private citizens’ decisions to stay home” or decline to sign a petition “for their own safety against the State.” Thompson, 959 F.3d at 810. Because Plaintiffs’ claim “depends on the unfettered choices made by independent actors not before the courts,” they failed to demonstrate an “essential element[] of standing” and the district court should have dismissed their claim. Lujan v. Defs. of Wildlife, 504 U.S. 555, 562 (1992) (quotation marks omitted).
B. The district court applied an incorrect, heightened legal standard. Without analyzing the distinction between ballot-initiative regulations that implicate the First Amendment and those that do not, the district court applied the
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Anderson/Burdick framework to Plaintiffs’ claim. See ADD6 (citing Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992)). Neither this Court nor the Supreme Court has ever held that First Amendment scrutiny applies to state laws—like the in-person or affidavit requirements—that merely regulate the mechanics of legislating by initiative. And even if Plaintiffs’ claim implicates the First Amendment, Anderson/Burdick does not empower courts to exempt Plaintiffs from otherwise constitutional requirements based on individualized or exigent circumstances.
1. Regulations of legislative mechanics do not implicate the First Amendment.
The First Amendment does not concern itself with the mechanics of initiated legislation. As Ohio put it in a brief for itself and ten other amici States supporting Arkansas’s stay motion in this case, “no one thinks the constitutional provisions that govern the process by which legislation is made” by Congress or state legislatures “implicate the First Amendment.” Br. of Ohio et al. 2. And for the same reason, First Amendment scrutiny does not apply to laws, like those at issue here, that govern only the mechanics of legislating by initiative. See id. 8-12.
Plaintiffs do not dispute that “the right to a state initiative process is not a right guaranteed by the United States Constitution.” Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997). Because this “mechanism[] of direct democracy [is] not compelled by the Federal Constitution,” the Supreme Court has left it “up
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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). Insofar as Plaintiffs have a federal constitutional claim, therefore, it must be derivative of some other right. They look to the First Amendment. See APPX18-19.
Not all initiative regulations, however, “implicate the First Amendment.” Dobrovolny, 126 F.3d at 1113. Only an initiative regulation concerning “the expression of a political view implicates a First Amendment right.” Doe, 561 U.S. at 195. As this Court has said, a law triggers the First Amendment only when it regulates “the communication of ideas associated with the circulation of petitions.” Dobrovolny, 126 F.3d at 1113 (emphasis added). If it does not regulate the communication of ideas, then it does not trigger the First Amendment. See Wellwood v. Johnson, 172 F.3d 1007, 1009 (8th Cir. 1999) (“[T]he statutes involved in this case in no way burden the ability of supporters . . . to make their views heard.”). To borrow again from Ohio’s brief, the First Amendment guarantees Plaintiffs “the right to engage in political speech during an initiative campaign or circulation drive” but “does not include the freedom to ignore rules governing the mechanics of the initiative process.” Br. of Ohio et al. 5-6.
The in-person and affidavit requirements do not “implicate the First Amendment” because they do not impact “the communication of ideas associated with the
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circulation of petitions.” Dobrovolny, 126 F.3d at 1113. Both challenged requirements relate only to the form of the petition (“each part of any petition shall have attached thereto the affidavit of the person circulating the same, that all signatures thereon were made in the presence of the affiant”) and are indifferent to the ideas communicated on the petition or by its supporters and opponents. Ark. Const., art. 5, sec. 1. Plaintiffs claim that these requirements, in the COVID-19 context, “have made it difficult” to place an initiative on the ballot for the 2020 general election. Dobrovolny, 126 F.3d at 1113; see APPX13-15. But this Court was clear in Dobrovolny that “the difficulty of the process alone is insufficient to implicate the First Amendment, as long as the communication of ideas associated with the circulation of petitions is not affected.” 126 F.3d at 1113. The district court ignored that holding. See ADD6.
Moreover, this Court isn’t alone in holding that laws like the antifraud provisions at issue here do not trigger First Amendment scrutiny. The Tenth Circuit sitting en banc, for instance, has held that “[a]lthough the First Amendment protects political speech incident to an initiative campaign, it does not protect the right to make law, by initiative or otherwise.” Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1099 (10th Cir. 2006) (en banc) (McConnell, J.). There, Utah law contained a “supermajority requirement” for initiatives regarding a specific topic, “wildlife.” Id. at 1098. The plaintiffs in that case made a similar argument to
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Plaintiffs here—that Utah had “burden[ed] ‘core political speech’ by making it more difficult to secure passage of a wildlife initiative.” Id. at 1099. The Tenth Circuit disagreed and rejected the argument that First Amendment scrutiny applies anytime a state regulates initiative petitioning. Id. at 1099-1100.
Instead, citing this Court’s decision in Wellwood, the Tenth Circuit distinguished “laws that regulate or restrict the communicative conduct of persons advocating a position in a referendum” from other “laws that determine the process by which legislation is enacted.” Id. at 1100; see Wellwood, 172 F.3d at 1009 (upholding increased signature threshold for initiatives on certain subjects and not others because requirement “in no way burden[s] the ability of supporters . . . to make their views heard”). Because Utah’s supermajority requirement did not “regulate[] the process of advocacy itself,” it did not trigger First Amendment scrutiny. Walker, 450 F.3d at 1099. So, too, with the requirements challenged here. Requiring proponents of a ballot initiative to abide by certain formal requirements for their petitions merely “determine[s] the process by which legislation is enacted.” Id. at 1100.
The D.C. Circuit “ha[s] drawn the same distinction.” Id. It rejected a First Amendment challenge to a content-based limitation on the District of Columbia’s initiative process prohibiting initiatives that would reduce marijuana penalties. Marijuana Policy Project v. United States, 304 F.3d 82, 84-85 (D.C. Cir. 2002). In
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so holding, that court explained the challenged content limitation “restricts no speech; to the contrary, medical marijuana advocates remain free to lobby, petition, or engage in other First Amendment-protected activities to reduce marijuana penalties.” Id. at 85. The court found no precedent “establishing that limits on legislative authority—as opposed to limits on legislative advocacy—violate the First Amendment.” Id. “This is not surprising,” it continued, “for although the First Amendment protects public debate about legislation, it confers no right to legislate on a particular subject.” Id. Likewise, because the requirements challenged here do not concern advocacy related to the initiative process, no heightened First Amendment scrutiny applies.
Moreover, underscoring the point, when the Supreme Court or this Court has applied First Amendment scrutiny to ballot-initiative laws, it has always been in response to laws that “specifically regulated the process of advocacy itself” whether by “dictat[ing] who could speak . . . or how to go about speaking.” Walker, 450 F.3d at 1099. For example, in Doe v. Reed, the Supreme Court held that a law that “compelled disclosure of signatory information on referendum petitions . . . . implicate[d] a First Amendment right” not because it regulated the mechanics of the initiative process but because it regulated “the expression of a political view.” 561 U.S. at 194-95. The same was true of laws prohibiting payments to canvassers,
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Meyer v. Grant, 486 U.S. 414, 416 (1988), or requiring that canvassers be registered voters and wear name tags, and that initiative proponents report paid canvassers’ names and addresses to the State, Buckley v. Am. Const’l Law Found., Inc., 525 U.S. 182, 186 (1999). And consistent with those principles, this Court applied First Amendment scrutiny to a requirement that canvassers be in-state residents and a prohibition on “per signature” payments, although it ultimately upheld those provisions. Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 615 (8th Cir. 2001).
The district court refused to grapple with the distinction between legislation and public debate about legislation. But that distinction is critical and resolves this case. Because Arkansans act as legislators through the initiative process, rules governing the mechanics of that process are rules governing the legislative process and do not trigger First Amendment scrutiny. The district court erred as a matter of law in concluding otherwise.
2. Regardless, the First Amendment does not require Arkansas to create exigent-circumstances exemptions to its laws.
Plaintiffs do not bring a traditional Anderson/Burdick claim. They make no claim, for instance, that in the absence of COVID-19 the challenged requirements would be unconstitutional. See APPX19 (claiming only that they have become unconstitutional “due to the COVID-19 pandemic”). Nor do they really claim that
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Arkansas has done anything to burden their signature-collection efforts. For example, although Plaintiffs vaguely allege that an undefined “combination” of “federal and state guidance and orders” somehow “preclude[d]” them from petitioning, APPX18, they never point to any state action impairing collection. That’s not surprising. As already discussed, Arkansas never imposed a stay-at-home order or any other COVID-19 response measure that restricted signature collection.
What Plaintiffs seek, then, is an exemption from Arkansas’s otherwise valid ballot-initiative regulations on account of COVID-19. But Anderson/Burdick was designed to test the constitutionality as a general matter of a ballot-access law, not to answer the question whether the Constitution entitles a given candidate or initiative proponent to an exigent-circumstances exemption from an otherwise constitutional law. See Libertarian Party of N.D. v. Jaeger, 659 F.3d 687, 693 (8th Cir. 2011); Green Party of Ark. v. Martin, 649 F.3d 675, 680 (8th Cir. 2011). Indeed, Plaintiffs have yet to cite a single decision that used the Anderson/Burdick framework to create an exigent-circumstances exemption.3
3 Though it is unsupported by case law, Plaintiffs’ claim that they are entitled to an exigent-circumstances exemption from otherwise constitutional ballot-access laws isn’t unique. At least two other currently pending district court cases in this Circuit present the same issue. See Whitfield v. Thurston, No. 4:20-CV-00466-KGB (E.D. Ark. bench trial held May 27, 2020); Sinner v. Jaeger, No. 3:20-CV-00076-PDWARS (D.N.D. preliminary injunction denied June 15, 2020), ECF#32. And a leading election-law scholar has described a nationwide trend of district courts concluding “that laws which are completely constitutional under normal circumstances
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This Court should reject Plaintiffs’ novel theory, not least because it attributes to the State burdens beyond its control. Cf. Thompson, 959 F.3d at 810 (“First Amendment violations require state action.”); Tex. Democratic Party, 2020 WL 2982937, at *19 (Ho, J., concurring) (“[E]xpanding access to mail-in voting to redress personal hardship—as opposed to state action—is a policy matter for the Legislature, not the courts.” (citation omitted)). There is also no principled way to determine, under the First Amendment, which exigencies warrant exemptions. Consider, for instance, a hypothetical ballot question committee that stores its signed petitions in its lawyer’s office. If a pipe bursts and destroys 15% of the signed petitions shortly before the deadline, would that exigency entitle the committee to a 15% reduction in the State’s signature requirement? The Constitution does not provide any meaningful standards for resolving such questions, thus rendering them nonjusticiable. See Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019) (holding that electoral questions are nonjusticiable where courts “lack judicially discoverable and manageable standards for resolving them” (quotation marks and brackets omitted)).
become unconstitutional under the conditions of the pandemic.” Richard H. Pildes, The Constitutional Emergency Powers of Federal Courts 3 (June 12, 2020), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3629356. This case is an opportunity to definitively resolve this “dramatic” and “controversial” assertion by district courts of generalized “emergency powers.” Id. at 6.
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Indeed, embracing Plaintiffs’ exigent-circumstances theory would mean that anytime something unusual occurs, federal courts would suddenly enjoy a “roving commission to rewrite state election codes.” Tex. Democratic Party, 2020 WL 2982937, at *1. That ignores the fact that the Constitution vests States with primary authority to regulate elections, particularly regarding legislation by initiative. See U.S. Const. art. I, sec. 4. And even in the present circumstances, Plaintiffs ignore the fact that elected officials—not federal courts—are best situated to respond to the facts on the ground and determine how best to balance safety and publichealth concerns. See In re Rutledge, 956 F.3d at 1027; see also Thompson, 959 F.3d at 812 (“The broader point is that the federal Constitution provides States— not federal judges—the ability to choose among many permissible options when designing elections.”). Therefore, Plaintiffs’ Anderson/Burdick claim fails before it even begins.
3. Under the correct legal standard, the challenged requirements are constitutional.
The upshot of the analysis above is that neither the in-person nor affidavit requirements trigger First Amendment scrutiny. Rather, because the right to initiate legislation by petition is “created by state law,” the challenged provisions are at most subject to rational-basis review. Dobrovolny, 126 F.3d at 1113; see Jones v.
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Markiewicz-Qualkinbush, 892 F.3d 935, 938 (7th Cir. 2018) (Easterbrook, J.) (applying rational-basis review to initiative-process regulation that did not implicate First Amendment).
Both provisions easily survive that standard. Arkansas has a “paramount” interest in “the integrity of its initiative process.” Hoyle v. Priest, 265 F.3d 699, 704 (8th Cir. 2001). Requiring petitioners to sign an initiative petition in the presence of a canvasser and requiring canvassers to attest to that fact before a notary protects the process’s integrity, not least by making it difficult for those signing and canvassers alike to use assumed names when engaging in the initiative process. That is enough to prove the challenged requirements constitutional. See Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 488 (1955) (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.”).
C. Even under the district court’s incorrect standard, Plaintiffs’ claim must fail.
For the reasons just discussed, the district court’s uncritical choice to apply the Anderson/Burdick framework was reversible legal error from the get-go. Along with that error, the district court committed other reversible errors at each of the two key junctures in the Anderson/Burdick analysis: first, that the challenged requirements severely burden Plaintiffs; and second, that the requirements are not
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narrowly tailored to Arkansas’s compelling interests. Either error additionally suffices to reverse the judgment below.
1. The challenged requirements do not severely burden Plaintiffs and are justified by Arkansas’s important regulatory interests.
The district court invalidated the challenged provisions because it believed that they are not narrowly tailored to Arkansas’s indisputably compelling interest in keeping fraud out of each step in the process of legislating by initiative. See ADD14-16. But under a proper application of Anderson/Burdick, the district court should never have reached the question of tailoring. To the contrary, Plaintiffs needed to present “evidence” sufficient to “quantify . . . the magnitude of the burden” on them. Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 200 (2008) (op. of Stevens, J.). And their failure to present any evidence that the State—as opposed to a pandemic—severely burdened their petitioning efforts means that Arkansas’s important regulatory interests suffice to justify the challenged requirements. Plaintiffs’ claim thus fails.
a. The Constitution vests States with a “broad power” to operate elections. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451 (2008). And elections are ultimately about picking winners and losers, not creating a forum for self-expression about candidates or issues; “[a]ttributing to elections a more generalized expressive function would undermine the ability of States to operate
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elections fairly and efficiently.” Burdick, 504 U.S. at 438. As a result, the Supreme Court has made clear that strict scrutiny does not apply to election regulations, including ballot-access regulations. Id. at 432.
Courts instead apply a sliding-scale analysis. To “discern the level of scrutiny required,” courts “analyze the burdens imposed” by a regulation. Martin, 649 F.3d at 681. Where it “imposes only modest burdens, . . . the State’s important regulatory interests” in managing “election procedures” suffice to justify it. Wash. State Grange, 552 U.S. at 452 (quotation marks omitted). Alternatively, a more exacting standard—requiring a compelling interest and tailoring—applies to severely burdensome requirements. See Martin, 649 F.3d at 680. Hence, Arkansas “need[ed] not assert a compelling interest” because Plaintiffs did not first establish that Arkansas rather than the pandemic itself had burdened their constitutional rights at all—let alone severely. Wash. State Grange, 552 U.S. at 458.
b. Plaintiffs effectively concede their claim would fail but for the pandemic. See, e.g., APPX19 (seeking injunction only “[a]s applied in the current emergency circumstances due to the COVID-19 pandemic”). That’s not surprising. The Supreme Court and this Court have long upheld similar regulations. See Am. Party of Tex. v. White, 415 U.S. 767, 787 (1974) (notarization requirement); Hoyle, 265 F.3d at 703-04 (signers must be registered voters); Jaeger, 241 F.3d at 618 (can-
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vassers must be state residents; no commission payments to canvassers); Wellwood, 172 F.3d at 1008-09 (content-based signature threshold); Dobrovolny, 126 F.3d at 1112 (signature threshold of 10% of registered voters on date petition submitted); see also Tripp v. Scholz, 872 F.3d 857, 869 (7th Cir. 2017) (“[A]lthough Illinois’s notarization requirement certainly imposes some logistical burden on plaintiffs’ ballot access rights, it cannot be fairly characterized as ‘severe.’”).
Yet instead of requiring Plaintiffs to put on evidence quantifying the alleged burdens Arkansas has imposed, see Crawford, 553 U.S. at 200 (op. of Stevens, J.), the district court’s burdensomeness analysis rested primarily on a single assertion. It simply announced that the challenged “requirement[s] impose severe burdens on Plaintiffs’ core political speech, especially in light of the State-recognized need for social distancing during this pandemic.” ADD14. At most, the district court suggested that the desire to reduce viral transmission through social distancing “affect[s] the method or manner of speech engaged in by petitioners and canvassers.” ADD10. True as that may be, it did not identify any action by Arkansas or its elected officials that precluded Plaintiffs from circulating their petitions. See ADD10-11. Nor did it cite any case suggesting that regulations like those challenged here are severely burdensome based on factors beyond a State’s control. See ADD14-16.
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Contrary to the district court’s conclusory assertion, COVID-19 does not simply render otherwise valid antifraud provisions severely burdensome. Rather, only state actions that “exclude[] or virtually exclude[]” Plaintiffs’ “initiatives from the ballot” are severely burdensome. Thompson, 959 F.3d at 809; see also id. at 810 (“[W]e must remember, First Amendment violations require state action.”). COVID-19 certainly doesn’t meet that standard. Indeed, as the Sixth Circuit recently held in rejecting the same argument that the district court adopted here, “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.” Id. at 810. And that makes sense since to hold otherwise would effectively penalize the State for COVID-19 and private responses to the pandemic. See id. Yet that is exactly what the district court did here when it announced a severe burden because the “pandemic . . . necessitates social distancing” and “precludes in-person contact and communication.” ADD10-11 (emphasis added).
Plaintiffs haven’t done any better. Like the district court, they have never pointed to any official action that “changed the status quo on the activities Plaintiffs could engage in to procure signatures.” Thompson, 959 F.3d at 809. For instance, because Arkansas did not impose any stay-at-home orders, unlike plaintiffs in other cases, they cannot show that Arkansas “abruptly prohibited the plaintiffs from procuring signatures during the last month before the deadline, leaving them
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with only the signatures that they had gathered to that point.” Id. Indeed, even if fewer people were out-and-about, Plaintiffs could have “advertise[d] their initiatives within the bounds of our current situation” and collected signatures “through social or traditional media inviting interested electors to contact them and bring the petition to the electors’ homes to sign.” Id. at 810. And particularly relevant here, “Plaintiffs could [have] br[ought] their petitions to the public by speaking with electors and witnessing the signatures from a safe distance, and sterilizing writing instruments between signatures.” Id.
Thus, 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 expected. Id.; see APPX2-3, 13-15, 18-19. And as Thompson concluded, that is not a severe burden. See Thompson, 959 F.3d at 80911.
Nor do any unique burdens faced by the individual plaintiffs change the analysis. See APPX3-4. The Supreme Court’s “precedents refute the view that individual impacts are relevant to determining the severity of the burden [a law] imposes.” Crawford, 553 U.S. at 205 (Scalia, J., concurring in the judgment).4 What Plaintiffs view as the challenged provisions’ “several light and heavy burdens are
4 Although labeled a concurrence, Justice Scalia’s Crawford opinion garnered the same number of votes as Justices Stevens’s opinion. See 553 U.S. at 184, 204.
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no more than the different impacts of the single burden that the law uniformly imposes on all [initiative proponents].” Id. The Supreme Court has never “consider[ed] the peculiar circumstances of individual voters or candidates”—or in this case, ballot-initiative proponents—when “grappl[ing] with the magnitude of burdens.” Id. at 206. That is why the Sixth Circuit refused to “hold private citizens’ decisions to stay home for their own safety against the State.” Thompson, 959 F.3d at 810. Plaintiffs’ individualized choices about how best to protect themselves from COVID-19 does not invalidate Arkansas’s modest regulations of the mechanics of initiated legislation.
Finally, even if Plaintiffs had put on evidence that the State somehow restricted their ability to collect signatures at one time, that is certainly not the case now. As was also true in Thompson, Arkansas’s decision to begin lifting its pandemic-response measures well in advance of Plaintiffs’ July 3 submission deadline fatally “undermines Plaintiffs’ argument that the State has” imposed a severe burden and “excluded them from the ballot.” Id.; see Executive Order 20-25 (May 5 order relaxing some restrictions). Indeed, even after the district court’s order, Arkansas has continued to relax its pandemic response measures, including those that briefly limited gatherings outside the home. See Nyssa Kruse, Arkansas to move to Phase 2 of reopening Monday, governor says; new cases at 288, Ark. DemocratGazette (June 10, 2020, 3:23 PM), https://bit.ly/3ebvPkd. And the events of the
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past two weeks where hundreds—perhaps thousands—have gathered across Arkansas to protest underscore just how little burden Plaintiffs bore. See Tom Sissom, Thousands protest peacefully in Fayetteville, Ark. Democrat-Gazette (June 2, 2020, 11:27 PM), https://bit.ly/3ecWwoO. Thus, “[c]onsidering all opportunities Plaintiffs had, and still have, to exercise their rights,” Plaintiffs’ burden is not severe. Thompson, 959 F.3d at 810.
c. Because Plaintiffs have not demonstrated a severe burden, Arkansas “need not assert a compelling interest.” Martin, 649 F.3d at 685 (quoting Wash. State Grange, 552 U.S. at 458). Instead, Arkansas’s “important regulatory interests” in managing “election procedures” are sufficient to sustain the challenged provisions. Wash. State Grange, 552 U.S. at 452 (quotation marks omitted); see Christopher S. Elmendorf, Structuring Judicial Review of Electoral Mechanics: Explanations and Opportunities, 156 U. Pa. L. Rev. 313, 331 (2007) (explaining that review “in nonsevere-burden cases,” like here, is “something like rational basis review”). The challenged provisions clearly “protect the state’s initiative process from abuse,” and Arkansas unquestionably has a “paramount” interest in “protecting the integrity of its initiative process.” Hoyle, 265 F.3d at 704; see Thompson, 959 F.3d at 811 (holding that Ohio’s “compelling and well-established interests in administering its ballot initiative regulations” justified the requirements in that case).
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2. The challenged requirements would survive heightened scrutiny.
Although Arkansas need not show any compelling interest to which the challenged requirements are narrowly tailored, see Wash. State Grange, 552 U.S. at 458, the district court also committed legal error in its tailoring analysis, see ADD15-16. This is yet another reason for this Court to reverse.
“A State indisputably has a compelling interest in preserving the integrity of its election process.” Purcell v. Gonzalez, 549 U.S. 1, 4 (2006) (per curiam) (citation omitted); see Hoyle, 265 F.3d at 704 (making similar statement specifically regarding initiative process). The district court thus had to acknowledge Arkansas’s compelling interest in maintaining the integrity of the initiative process and preventing fraud. ADD11. Yet it concluded Arkansas’s century-old antifraud provisions were not narrowly tailored because it believed there were “less burdensome alternatives” that are “equally effective at achieving the State’s interest.” ADD15.
To reach that conclusion, the district court held Arkansas to an improper evidentiary standard. See ADD11. While Plaintiffs needed to present evidence quantifying their alleged burdens, Arkansas faced no such evidentiary hurdle in establishing its compelling interest. See Amicus Br. of Honest Elections Project in Supp. of Stay Mot. (Honest Elections Br.) 8-10 (collecting citations for this proposition). That is because States “should be permitted to respond to potential deficiencies in the electoral process with foresight rather than reactively.” Munro v.
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Socialist Workers Party, 479 U.S. 189, 195 (1986). So although the lead Crawford opinion found “no evidence of extensive fraud in U.S. elections or of multiple voting,” it acknowledged that “both occur” and “could affect the outcome of a close election.” 553 U.S. at 194 (quoting Building Confidence in U.S. Elections sec. 2.5 (Sept. 2005)). To “inspire public confidence” in the electoral system, States like Arkansas can prophylactically enact “safeguards” that “deter or detect fraud or [that] confirm the identity of voters.” Id. (quoting Building Confidence in U.S. Elections sec. 2.5).
The district court’s application of an improper evidentiary standard led it to incorrectly—and all too quickly—assume that Arkansas could have adopted less burdensome antifraud requirements. See ADD15-16. But this Court has long held that even when Anderson/Burdick heightened scrutiny applies, the fit need not be perfect but depends on the interest. See Libertarian Party of N.D., 659 F.3d at 694-95 (making clear this is an “undue burden” test rather than traditional strict scrutiny); id. at 698 (“the mere identification of a less burdensome alternative is not dispositive in election cases”); see also Burdick, 504 U.S. at 432 (rejecting “the erroneous assumption that a law that imposes any burden upon the right to vote must be subject to strict scrutiny”).
Regarding the affidavit requirement, the district court found that requirement was not sufficiently tailored because Arkansas allows certain unsworn declarations
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to take the place of a notarized statement. ADD15. Its reasoning on this point resembles the district court’s reasoning in Democratic Nat’l Committee v. Bostelmann. The court there enjoined Wisconsin’s witness requirement for absentee ballots as applied to the “immunocompromised or elderly.” No. 20-CV-249, 2020 WL 1638374, at *20 (W.D. Wis. Apr. 2, 2020). It thought the burdens on them were “not overcome by the state’s general anti-fraud goals.” Id. The Seventh Circuit disagreed. It stayed that district court’s order, holding that it “did not give adequate consideration to the state’s interests.” Order, Democratic Nat’l Comm. v. Bostelmann, No. 20-1539 (7th Cir. Apr. 3, 2020), ECF#30 at 3, add’l relief granted on other grounds sub nom. Republican Nat’l Comm. v. Democratic Nat’l Comm., 140 S. Ct. 1205 (2020).
That is equally true here. Like the Wisconsin district court, the court below improperly discounted Arkansas’s interest in preserving its electoral processes through the affidavit requirement. It makes no difference that Arkansas allows unsworn declarations executed in a foreign country as a substitute for a notarized affidavit in certain circumstances. See ADD15. People “physically located outside the geographic boundaries of the United States,” Ark. Code Ann. 16-2-206, often find it difficult to locate notaries. In recognition of that difficulty, Arkansas relaxes its notarization requirement for declarations executed abroad. That accommodation does not render the affidavit requirement not narrowly tailored.
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The district court’s contrary conclusion ignored key differences between a notarized affidavit and an unsworn declaration that make affidavits more useful in fraud deterrence. See Tripp, 872 F.3d at 866-70. Unlike affidavits, an unsworn declaration “could still be submitted without pain of an identification check, and thus provide less of a chance for law enforcement authorities to trace down the true origin of fraud.” Id. at 870 (quotation marks omitted). The district court incorrectly concluded that the affidavit requirement was not narrowly tailored to Arkansas’s compelling antifraud interest.
Regarding the in-person requirement, the district court held that it was not sufficiently tailored because fraud is a crime. See ADD15-16. But a petition-fraud prosecution is necessarily an after-the-fact endeavor and hardly an adequate substitute for the in-person requirement. The district court ignored Arkansas’s compelling interest in having the canvasser serve as “the sole election officer, in whose presence the citizen exercises his right to sign the petition.” Sturdy, 143 S.W.2d at 551. In contrast to a fraud prosecution—which depends on any number of factors and might not occur until well after the fraud has succeeded—the in-person requirement prophylactically addresses the potential for petition fraud by deputizing canvassers to monitor who signs their petitions.
Criminal penalties for perjury or petition fraud do not address threats to election integrity posed by persons who, due to negligence or recklessness, lack the
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mens rea necessary to prove criminal intent. “The State’s interest is particularly strong with respect to efforts to root out fraud,” but it also “extends to efforts to ferret out invalid signatures caused not by fraud but by simple mistake, such as duplicate signatures or signatures of individuals who are not registered to vote in the State.” Doe, 561 U.S. at 197-98. The district court’s analysis ignored this dimension of the State’s interest in preserving the integrity of the initiative process.
Lastly, the district court’s undervaluation of Arkansas’s compelling interests in preventing fraud and otherwise preserving the integrity of the initiative process led it to also undervalue the requirements that signature pages must contain the canvasser’s affidavit and be affixed to the initiative—provisions Plaintiffs did not even challenge. ADD17-18. As the district court noted, its injunction enables signature pages to be individually received by mail, the internet, magazines, and community bulletin boards, ADD17—appreciably compounding prospects that an individual who signs a petition may not fully understand the initiative process or the significance of signing a petition.
The canvasser and a notary are in the best position to ensure that invalid signatures do not make their way onto the petitions on the front end of the process. The district court’s injunction removes these safeguards from the signature-collection process. As a result, this Court should reverse.
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III. None of the other factors support the district court’s injunction. Because Plaintiffs’ claim fails on the merits, this Court need not consider
whether the district court also erred in applying the remaining injunction factors. Oglala Sioux Tribe, 542 F.3d at 229. But the district court’s misapplications of those other factors too would warrant reversal.
To start, the district court’s reliance on the supposed harm that Plaintiffs would face absent an injunction ignores the fact that their alleged harm is entirely self-inflicted. Had they not chosen to delay starting their petition drive until a few months before the July 3 deadline—sitting idly by while COVID-19 began to reshape American life—Plaintiffs could already have hit the Arkansas Constitution’s signature threshold. Moreover, had Plaintiffs engaged in any of the signature collection strategies discussed by the Sixth Circuit in Thompson, there is little doubt they would either have already collected—or would be on the verge of collecting—sufficient signatures.
Hence, Plaintiffs’ alleged difficulty in complying with Arkansas law is of their own making. And such “self-inflicted wounds are not irreparable injury.” Second City Music, Inc. v. City of Chi., 333 F.3d 846, 850 (7th Cir. 2003); accord Salt Lake Tribune Publ’g Co. v. AT&T Corp., 320 F.3d 1081, 1106 (10th Cir. 2003); Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 839 (3d
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Cir. 1995). The district court erred as a matter of law in concluding otherwise. That is reason enough to reverse the judgment.
Next, the district court erroneously failed to consider the harm its injunction would inflict upon Arkansas and its citizens. Nor did the district court consider the public’s interest in seeing election laws consistently enforced—even during a pandemic. Instead, the district court simply refused to consider those factors and simply declared that there “is really no harm at all” from including non-compliant initiatives since voters will ultimately decide whether an amendment is approved. See ADD19. That approach unequivocally conflicts with the Supreme Court’s repeated conclusion that a State’s “inability to enforce its duly enacted plans clearly inflicts irreparable harm on the State.” Abbott v. Perez, 138 S. Ct. 2305, 2324 n.17 (2018); see Thompson, 959 F.3d at 812.5
Nor did the district court consider that its injunction would threaten Arkansas’s ability to “ensure elections are fair, honest, and orderly.” Libertarian Party of N.D., 659 F.3d at 693. Indeed, though “the November election itself may be
5 To the extent the district court suggested its harms analysis was consistent with Arkansas’s law on “‘substantial compliance,’” ADD19 (quoting Fletcher v. Bryant, 422 S.W.2d 698, 700 (Ark. 1968)), its claim is unsupported. See Porter, 839 S.W.2d at 522-23 (holding “where the signatures are gathered in areas and places while the canvasser is neither physically [n]or proximately present,” even “substantial compliance is lacking”); see also Arizonans for Fair Elections, 2020 WL 1905747, at *5 (citing Porter and explaining that “it is difficult to see how noncompliance with the physical-presence requirement could be disregarded”).
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months away,” other “important, interim deadlines that affect Plaintiffs, other ballot initiative proponents, and the State are imminent.” Thompson, 959 F.3d at 813. And changing just one “procedure now will have inevitable, other consequences.” Id.; cf. Marston v. Lewis, 410 U.S. 679, 680 (1973) (“States have valid and sufficient interests in providing for some period of time—prior to an election—in order to prepare adequate voter records and protect its electoral processes from possible frauds.”). Thus, the district court erred as a matter of law when it failed to account for the Supreme Court’s repeated admonishment that lower courts should avoid sowing chaos by “chang[ing] state election rules as elections approach.” Thompson, 959 F.3d at 813 (citing Republican Nat’l Comm., 140 S. Ct. at 1207). That failure too requires reversal. IV. The district court exceeded its authority by rewriting Arkansas election
law. The district court literally rewrote Arkansas’s initiative statutes, specifying new language that is to appear on petition signature pages and compelling Arkansas to accept unsworn canvasser declarations and signature pages not signed in the canvasser’s presence. ADD22-24; ADD28-30. In so doing, it clearly exceeded its authority since “federal courts have no authority to dictate to the States precisely how they should conduct their elections.” Thompson, 959 F.3d at 812 (quoting Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553 (6th Cir. May 5, 2020) (unpub.)); accord Republican Party of Ark. v. Faulkner Cty., 49 F.3d 1289, 1301 (8th
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Cir. 1995) (“Cognizant of our role as a federal court, we do not purport to advise Arkansas on the best means of rendering constitutional its election code: that decision rests with the sound judgment of the Arkansas legislature.”). And COVID-19 did not alter that principle. See Tex. Democratic Party, 2020 WL 2982937, at *1; Thompson, 959 F.3d at 812.
Further, the injunction here was even more problematic because it barred the enforcement of laws that Plaintiffs did not even challenge and with respect to nonparties. For instance, the district court effectively enjoined the enforcement of state constitutional provisions that Plaintiffs did not challenge. See ADD28-30. Not to mention Arkansas’s requirements that signature pages contain a canvasser’s affidavit and be affixed to the initiative—which the district court enjoined despite Plaintiffs’ failure to challenge them. See ADD17-18. And even though it expressly acknowledged that “Plaintiffs move[d] for preliminary injunctive relief only for themselves,” the district court made its injunction universal. ADD19-20.
Thus, even if Plaintiffs could prevail on the merits (and they certainly cannot), reversal would still be required because the district court’s final order exceeded its authority.
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CONCLUSION For these reasons, this Court should reverse the district court’s judgment and remand the case to the district court with instructions to dissolve its permanent injunction and dismiss Plaintiffs’ claim.
Respectfully submitted, LESLIE RUTLEDGE
Arkansas Attorney General NICHOLAS J. BRONNI
Arkansas Solicitor General VINCENT M. WAGNER
Deputy Solicitor General MICHAEL A. CANTRELL
Assistant Solicitor General OFFICE OF THE ARKANSAS
ATTORNEY GENERAL 323 Center Street, Suite 200 Little Rock, Arkansas 72201 (501) 682-6302 nicholas.bronni@arkansasag.gov
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CERTIFICATE OF COMPLIANCE I certify that this brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 10,221 words, excluding the parts exempted by Fed. R. App. P. 32(f). I also certify that this brief complies with the requirements of Fed. R. App. P. 32(a)(5)-(6) and 8th Cir. R. 28A(c) because it has been prepared in 14-point Times New Roman, a proportionally spaced typeface, using Microsoft Word. I further certify that this PDF file was scanned for viruses, and no viruses were found on the file.
/s/ Nicholas J. Bronni Nicholas J. Bronni
Appellate Case: 20-2095 Page: 58 Date Filed: 06/18/2020 Entry ID: 4925024

CERTIFICATE OF SERVICE I certify that on June 18, 2020, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system, which shall send notification of such filing to any CM/ECF participants.
/s/ Nicholas J. Bronni Nicholas J. Bronni
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 United States Court of Appeals
For the Eighth Circuit ___________________________
No. 20-2095 ___________________________
Bonnie Heather Miller; Robert William Allen; Adella Dozier Gray; Arkansas Voters First
lllllllllllllllllllllPlaintiffs - Appellees
v.
John Thurston, in his official capacity as Secretary of State of Arkansas
lllllllllllllllllllllDefendant - Appellant
------------------------------
Honest Elections Project; State of Ohio; State of Alabama; State of Alaska; State of Arizona; State of Indiana; State of Kentucky; State of Nebraska; State of North
Dakota; State of Texas; State of Oklahoma; State of South Dakota; Arkansas State Chamber of Commerce
lllllllllllllllllllllAmici on Behalf of Appellant ____________
Appeal from United States District Court for the Western District of Arkansas - Fayetteville
____________
Submitted: July 8, 2020 Filed: July 23, 2020 ____________
Before GRUENDER, WOLLMAN, and GRASZ, Circuit Judges. ____________

GRASZ, Circuit Judge.
The plaintiffs sued to enjoin the Arkansas Secretary of State from enforcing Arkansas’s initiative petition rules requiring in-person contact between petition circulators, petition signers, and notaries. As applied to them, the plaintiffs claimed, these requirements violate their First Amendment rights. The district court granted a permanent injunction, and Arkansas appealed. After Arkansas moved to stay the district court’s judgment pending appeal, we consolidated the motion with our consideration of the merits and ordered expedited briefing and oral argument. With both now ripe for decision, we reverse the district court’s judgment and deny the motion to stay as moot.
I. Background
The Arkansas Constitution allows “legal voters” to “propose a constitutional amendment by initiative petition.” Ark. Const. art. 5, § 1. Arkansas Voters First (“AVF”), a registered Arkansas ballot question committee, is sponsoring a ballot initiative to amend the Arkansas Constitution’s redistricting provisions. With the goal of having this initiative placed on the upcoming general election ballot, AVF launched its campaign and began circulating a petition in March 2020, during the COVID–19 pandemic. Now, in light of the pandemic, AVF and the other plaintiffs claim they cannot comply with Arkansas’s in-person petition circulation and notarization rules.
Both the Arkansas Constitution and the Arkansas Code require petition circulators or “canvassers” to attach to the petition an affidavit affirming compliance with various procedural rules, including that all the petition signatures were made in the presence of the canvasser. Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-108. This affidavit, the Arkansas Supreme Court has clarified, must also be notarized in person. See Roberts v. Priest, 975 S.W.2d 850, 855 (Ark. 1998). Plaintiffs claim they cannot comply with these two in-person requirements during the COVID–19 pandemic.
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Robert Allen is a registered voter in Arkansas undergoing chemotherapy to treat his stage IV bladder cancer. With the exception of medical appointments, Allen’s doctors advised him to stay home and limit in-person contact to his wife and healthcare workers. Adella Gray is a registered voter living in an Arkansas retirement community with over 400 other residents, all of whom, including Gray, are particularly vulnerable to COVID–19 because of their age. Both Allen and Gray want to sign AVF’s initiative petition but claim they cannot comply with Arkansas’s in-person signature requirement without putting their health and the health of others at serious risk. This, they claim, prevents an AVF canvasser, like Bonnie Miller, from safely soliciting their signatures. And while Miller is not particularly vulnerable to the virus like Allen and Gray, she also claims she cannot comply with Arkansas’s in-person notarization requirement without risking both her health and the health of the notary. So AVF, Miller, Allen, and Gray sued to enjoin Arkansas’s Secretary of State from enforcing the in-person signature requirement and the in-person notarization requirement. They claimed enforcement of these requirements during the COVID–19 pandemic would impermissibly burden their First Amendment rights to express their position on a political matter.
The district court preliminarily enjoined Arkansas’s Secretary of State from enforcing the in-person signature and notarization requirements. Applying strict scrutiny, the district court concluded enforcement of these two requirements during the pandemic would likely violate the plaintiffs’ First Amendment rights to free expression. Even though the plaintiffs asserted only an as-applied challenge, the district court clarified that the injunction applied to not just the plaintiffs in this case or AVF’s initiative petition specifically, but to any initiative petition filed with the Arkansas Secretary of State. The district court then prescribed the use of modified
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Arkansas statutory form documents which, in the district court’s view, solved the alleged First Amendment problem.1
Following the preliminary-injunction ruling, both parties informed the district court that no additional evidence would be presented in the case. So the district court converted the preliminary injunction into a permanent injunction and entered judgment. Arkansas appealed and quickly moved for a temporary administrative stay, a stay of the judgment pending appeal, and expedited review of the merits. We granted the motion for a temporary administrative stay, consolidated the motion for a stay pending appeal with the merits of the case, and ordered expedited briefing.
The pending motion and appeal are now ripe for review, and we have jurisdiction under 28 U.S.C. § 1291.
1While we do not need to rule on Arkansas’s challenge to the scope of the injunctive relief granted by the district court, we note it appears the district court may have taken a step too far in fashioning the injunctive relief. District courts have discretion to fashion injunctive relief, but “that discretion is not unlimited.” CocaCola Co. v. Purdy, 382 F.3d 774, 790 (8th Cir. 2004). Here, we believe it was improper for the district court to take the additional step of prescribing modified statutory forms which, in its view, solved Arkansas’s First Amendment problem. See Republican Party of Ark. v. Faulkner Cty., 49 F.3d 1289, 1301 (8th Cir. 1995) (“Cognizant of our role as a federal court, we do not purport to advise Arkansas on the best means of rendering constitutional its election code: that decision rests with the sound judgment of the Arkansas legislature.”).
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II. Analysis
A. Standing
Before considering whether a stay is warranted or whether a permanent injunction was appropriate, we must conclude this case presents a live2 Article III case or controversy. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Arkansas argues it does not because the plaintiffs lack standing. See id. We review whether standing exists de novo. Dalton v. NPC Int’l, Inc., 932 F.3d 693, 695 (8th Cir. 2019).
Each plaintiff must establish standing for each form of relief sought. Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017). The plaintiffs here seek injunctive relief.
To seek injunctive relief, a plaintiff must show that he is under threat of suffering ‘injury in fact’ that is concrete and particularized; the threat
2Since the filing of this appeal, AVF has submitted its initiative petition to the Arkansas Secretary of State. To qualify for placement on the November 3, 2020, general election ballot, AVF’s petition must include at least 89,151 signatures from eligible voters. And at oral argument, Arkansas informed us that the petition included 90,000 to 100,000 unverified signatures. But in a Rule 28(j) letter dated July 14, Arkansas informed us that its Secretary of State declared the petition “insufficient” because AVF failed to certify that each of its paid canvassers passed a criminal background check. See Ark. Code Ann. § 7-9-601(b)(3). Yet because any registered voter, including the individual plaintiffs, may challenge the Secretary’s declaration in Arkansas state court and because the district court’s injunction applies to all petitions — and not just AVF’s petition — Arkansas maintains this case is not moot. Indeed, in their July 21 response to the Rule 28(j) letter, the plaintiffs informed us that they are challenging the Secretary’s declaration in the Arkansas Supreme Court. Like Arkansas, they also believe this case is not moot. All things considered, we agree that the Secretary’s insufficiency declaration does not moot this case. See generally Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 795–96 (8th Cir. 2016).
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must be actual and imminent, not conjectural or hypothetical; it must be fairly traceable to the challenged action of the defendant; and it must be likely that a favorable judicial decision will prevent or redress the injury.
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). The injury-in-fact component requires “a plaintiff [to] show that he or she suffered ‘an invasion of a legally protected interest.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). And “although federal standing ‘often turns on the nature and source of the claim asserted,’ it ‘in no way depends on the merits of the [claim].’” ASARCO Inc. v. Kadish, 490 U.S. 605, 624 (1989) (alteration in original) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). Rather, “we must ‘assume that on the merits the plaintiffs would be successful in their claims.’” Am. Farm Bureau Fed’n v. EPA, 836 F.3d 963, 968 (8th Cir. 2016) (quoting Muir v. Navy Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir. 2008)).
Arkansas first argues a judgment in the plaintiffs’ favor will not prevent or redress their injury “[b]ecause of how they pled this case.” As explained above, the Arkansas Constitution requires petition signers to sign an initiative petition in the presence of the canvasser and that the canvasser attach a notarized affidavit to each part of the petition affirming compliance with petitioning rules. Ark. Const. art. 5, § 1; Roberts, 975 S.W.2d at 855. And section 7-9-108 of the Arkansas Code reiterates these rules. The plaintiffs’ complaint, Arkansas says, challenged the statutory requirements but not the constitutional requirements. Thus, a favorable judgment cannot prevent or redress the plaintiffs’ injury. This argument is misplaced.
In several paragraphs in their complaint, the plaintiffs challenge the in-person petitioning rules provided in Arkansas’s Constitution. Compl. ¶¶ 2, 3, 5, 71, 88, 91 (claiming “the requirements of Ark. Const. Art. 5, § 1” are unconstitutional under the First and Fourteenth Amendments). Regardless, Article III standing is not a technical code pleading requirement. See Spokeo, 136 S. Ct. at 1547. At the pleading stage,
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plaintiffs must “‘allege facts demonstrating’ each element” of standing. Id. (emphasis added) (quoting Warth, 422 U.S. at 518); see also Iowa League of Cities v. EPA, 711 F.3d 844, 869 (8th Cir. 2013) (stating “at the pleading stage a petitioner can move forward with general factual allegations of injury”) (internal quotation marks omitted). At later stages, plaintiffs’ burden is to show standing by a preponderance of the evidence. Iowa League of Cities, 711 F.3d at 870.
Arkansas cites a district court case from the Ninth Circuit to support its argument. See Arizonans for Fair Elections v. Hobbs, No. CV-20 00658-PHX-DWL, __ F. Supp. 3d __, 2020 WL 1905747, at *4 (D. Ariz. Apr. 17, 2020). Unlike the plaintiffs in this case, the plaintiffs in Hobbs conceded they were challenging certain Arizona statutory requirements but were not challenging the same requirements in Arizona’s Constitution. Id. They argued that once they successfully challenged the statutory requirements in federal court, Arizona state courts would not strictly enforce the same constitutional requirements. Id. The District of Arizona found this position speculative and, on redressability grounds, dismissed the case for lack of standing. Id. at *4–5; see Lujan, 504 U.S. at 561 (explaining it must be more than speculative that a favorable judgment will redress the injury). Because the plaintiffs in this case do challenge Arkansas’s statutory and constitutional in-person petitioning rules, Hobbs lends no support.
Next, Arkansas contends the plaintiffs’ injuries “are not traceable to any state action.” To be clear, Arkansas does not argue any plaintiff lacks an injury in fact, only that no plaintiff has proved their injury is traceable to Arkansas’s actions. As Arkansas sees it, the COVID–19 pandemic and AVF’s own dilatory action — waiting until March to start its campaign — caused the plaintiffs’ injuries. We disagree. “Traceability requires proof of causation,” a showing that “the injury resulted from the actions of the defendant ‘and not . . . [from] the independent action of some third party not before the court.’” Oti Kaga, Inc. v. S.D. Housing Dev. Auth., 342 F.3d 871, 878 (8th Cir. 2003) (alterations in original) (emphasis added) (quoting Lujan, 504 U.S. at
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560). Absent enforcement of the challenged in-person petitioning rules, the plaintiffs’ asserted injuries disappear. The plaintiffs’ asserted injuries are not the result of their own or some third party’s independent action. Nor are they caused solely by the COVID-19 pandemic. Rather, the plaintiffs have adequately shown their asserted injuries are fairly traceable to Arkansas’s action, i.e., enforcement of its initiative petition rules requiring in-person signatures and in-person notarization.
Neither of Arkansas’s arguments demonstrate any plaintiff lacks Article III standing. And, assuming the plaintiffs will succeed on the merits, we are otherwise satisfied they have standing. See Am. Farm Bureau Fed’n, 836 F.3d at 968.
B. Permanent Injunction
We review the grant of a permanent injunction for abuse of discretion. Oglala Sioux Tribe v. C & W Enters., Inc., 542 F.3d 224, 229 (8th Cir. 2008). A district court abuses its discretion by resting its decision on clearly erroneous factual findings or an erroneous legal conclusion.3 Id.
“A permanent injunction requires the moving party to show actual success on the merits.” Id. If actual success is found, courts must then consider three factors to determine whether a permanent injunction is warranted: “(1) the threat of irreparable harm to the moving party; (2) the balance of harms with any injury an injunction might inflict on other parties; and (3) the public interest.” Id.
Here, the district court’s merits determination rests on the erroneous legal conclusion that the in-person signature and notarization requirements are subject to strict scrutiny. Analyzed under the appropriate standards, we conclude neither
3Arkansas does not argue the district court made any clearly erroneous factual findings, likely because the parties submitted this case largely on undisputed facts.
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requirement violates the First Amendment. And because actual success on the merits is essential to the plaintiffs’ permanent injunctive relief, our analysis goes no further than the merits. See id. at 233.4
The plaintiffs challenge the enforcement of two Arkansas initiative petition rules, as applied to them. The first requires individuals who wish to sign an initiative petition to sign in the presence of a canvasser. Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-108. The second requires the canvasser who collected the signatures to attach to each part of the petition a notarized affidavit affirming compliance with Arkansas’s petition rules. Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-108. The canvasser must be present before the notary. Roberts, 975 S.W.2d at 855. In light of the COVID–19 pandemic, the plaintiffs argue, enforcing the in-person aspect of these initiative petition rules impermissibly burdens their First Amendment rights to express their views on a political matter — Arkansas’s constitutional redistricting provisions.
To analyze this claim, the district court applied what is known as the Anderson/Burdick framework. Under this framework, courts first “weigh the ‘character and magnitude’ of the burden the State’s rule imposes on [First Amendment] rights against the interests the State contends justify that burden, and
4Our analysis of whether a stay is warranted overlaps almost completely with our analysis of whether a permanent injunction was merited. Compare Brady v. Nat’l Football League, 640 F.3d 785, 789 (8th Cir. 2011) (delineating the “four factors” we consider “in determining whether to issue a stay”), with Lowry ex rel. Crow v. Watson Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008) (delineating the four factors we consider when reviewing the district court’s issuance of a permanent injunction). Most importantly, both require an assessment of the merits, albeit under slightly different legal and evidentiary standards. Compare Brady, 640 F.3d at 789 (requiring the court to consider whether the stay movant has shown a strong likelihood of success on the merits), with Lowry, 540 F.3d at 762 (requiring the permanent-injunction movant to prove actual success on the merits). And since the permanent-injunction standard is more demanding, our stay analysis is subsumed by our permanent-injunction analysis.
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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) (quoting Burdick v. Takushi, 504 U.S. 428, 434 (1992)). If the rule imposes “severe burdens on the plaintiffs’ rights,” it must be “narrowly tailored and advance a compelling state interest.” Id. “Lesser burdens, however, trigger less exacting review, and a State’s ‘important regulatory interests’ will usually be enough to justify ‘reasonable, nondiscriminatory restrictions.’” Id. (quoting Burdick, 504 U.S. at 434).
Arkansas argues the district court committed legal error by applying the Anderson/Burdick framework. In Arkansas’s view, the two challenged initiative petition requirements do not even implicate the First Amendment. If this were true, the plaintiffs’ claims would fail as a matter of law. See Dobrovolny v. Moore, 126 F.3d 1111, 1113 (8th Cir. 1997). In the alternative, Arkansas argues that if the challenged initiative petition requirements are subject to First Amendment scrutiny, the district court erred by concluding they impose a severe burden on the plaintiffs’ First Amendment rights, triggering strict scrutiny. We take these arguments in order.
1. Implication of the First Amendment
“[T]he right to a state initiative process is not a right guaranteed by the United States Constitution, but is a right created by state law.” Id. And states have “considerable leeway to protect the integrity and reliability of the initiative process.” Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 191 (1999). Still, certain rules and requirements related to the process may nevertheless implicate the Federal Constitution, including the First Amendment. See Meyer v. Grant, 486 U.S. 414, 428 (1988) (finding Colorado’s statutory ban on paid petition circulators unconstitutional under the First Amendment); see also Buckley, 525 U.S. at 192–97 (finding Colorado’s requirement that initiative petition circulators be registered voters unconstitutional); Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616 (8th Cir. 2001) (recognizing states’ “considerable leeway” to ensure integrity and reliability in
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the initiative process is limited by the First Amendment, which “requires vigilance ‘to guard against undue hinderances to political conversations and the exchange of ideas’”) (quoting Buckley, 525 U.S. at 191–92).
In Dobrovolny, we distinguished between initiative petition laws that only make the process “difficult” and those that affect “the communication of ideas associated with the circulation of petitions.” 126 F.3d at 1113. The latter implicate the First Amendment. See id. Supreme Court precedent, as well as our own, illustrates this distinction. In Meyer, Colorado’s statutory ban on paid petition circulators implicated the First Amendment because it limited “the number of voices who will convey appellees’ message,” “the hours they can speak,” and “the size of the audience they can reach.” 486 U.S. at 422–23. Similarly, in Buckley, the Court subjected Colorado’s requirement that petition circulators be registered voters to First Amendment scrutiny because it “drastically reduce[d] the number of persons, both volunteer and paid, available to circulate petitions.” 525 U.S. at 193. In Jaeger, we applied First Amendment scrutiny to North Dakota’s requirement that petition circulators be state residents and its ban on per-signature commission payments to petition circulators. 241 F.3d at 616–18.
The law at issue in Dobrovolny, however, was different. As interpreted by the Nebraska Supreme Court, Article III, § 2 of the Nebraska Constitution set the number of petition signatures needed to get an initiative on the ballot equal to 10% of registered voters in Nebraska, measured on the date initiative petitions must be submitted to the Secretary of State. Dobrovolny, 126 F.3d at 1112. This was problematic for the petition organizers because they had no advance notice of the number of signatures needed to qualify an initiative for the ballot. Id. Distinguishing Nebraska’s initiative petition law from the unconstitutional Colorado law at issue in Meyer, we recognized that the Nebraska law, though burdensome, “in no way restricted [the] ability to circulate petitions or otherwise engage in political speech.” Id. True, we said, the Nebraska law “may have made it difficult for appellants to plan their initiative
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campaign and efficiently allocate their resources,” but “the difficulty of the process alone is insufficient to implicate the First Amendment.” Id. at 1113. There must be some affect on “the communication of ideas associated with the circulation of petitions.” Id. Nebraska’s law had no such effect. Id.; see also Hoyle v. Priest, 265 F.3d 699, 703–04 (8th Cir. 2001) (finding an Arkansas law which required counting only registered-voter petition signatures did not implicate the First Amendment); Wellwood v. Johnson, 172 F.3d 1007, 1008 (8th Cir. 1999) (concluding Arkansas laws increasing the number of signatures needed for initiatives “to decide whether to change a county from ‘wet’ to ‘dry,’ or vice versa” did not implicate the First Amendment).
Turning to the two challenged initiative petition laws in this case, neither poses a First Amendment problem on its face. As applied, however, the in-person signature requirement affects the communication of ideas associated with the circulation of AVF’s petition. Specifically, it burdens Allen’s and Gray’s ability to express their position on a political matter by signing AVF’s initiative petition. See John Doe No. 1 v. Reed, 561 U.S. 186, 195–96 (2010) (explaining “[a]n individual expresses a view on a political matter when he signs a petition under Washington’s referendum procedure” and that “the expression of a political view implicates a First Amendment right”); see also Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 128 (2011) (explaining the Court in Reed “held . . . that a citizen’s signing of a petition” is “core political speech”) (internal quotation marks omitted). It also affects the number of people a canvasser like Miller can solicit. See Meyer, 486 U.S. at 422–23 (finding First Amendment implicated where the challenged law limited “the size of the audience [canvassers] [could] reach”); see also Buckley, 525 U.S. at 186 (reiterating that “[p]etition circulation . . . is core political speech”) (internal quotation marks omitted). Thus, we find no error in subjecting Arkansas’s in-person signature requirement to First Amendment scrutiny. As applied to the plaintiffs, that requirement burdens their ability to engage in core political speech.
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As it did in its standing arguments, Arkansas reiterates that the plaintiffs’ ability to sign and circulate the initiative petition is burdened by the COVID–19 pandemic, not by any state action. This is not accurate. Enforcement of the in-person signature requirement is necessary to cause the plaintiffs’ First Amendment injury. And by blaming the pandemic, Arkansas has not changed the fact that enforcing its in-person signature requirement under current circumstances burdens the plaintiffs’ ability to engage in core political speech. Calzone v. Summers, 942 F.3d 415, 420 (8th Cir. 2019) (en banc) (explaining an as-applied challenge requires the court to “examine the constitutionality of the law in light of ‘the particular facts of [the plaintiff’s] case’”) (quoting Phelps-Roper v. Ricketts, 867 F.3d 883, 896 (8th Cir. 2017)).
As to the in-person notarization requirement, however, we fail to see how its enforcement affects the communication of ideas associated with the circulation of AVF’s petition. During the notarization process, neither the canvasser nor the notary are engaged in any exchange or communication of ideas. Or at least the plaintiffs have not shown they are. Although the requirement may make it more difficult to verify the signatures on the petition during a pandemic, this is not enough to implicate the First Amendment. See Dobrovolny, 126 F.3d at 1113. There must be some effect on the communication of ideas associated with petition circulation, and the plaintiffs have not shown the in-person notarization requirement has that effect. It is therefore not subject to First Amendment scrutiny, even as applied or enforced here. The district court erred in concluding otherwise.
2. Applicable Level of Scrutiny
Having determined the in-person signature requirement implicates the First Amendment, we now address the level of scrutiny to which it should be subjected. “Generally, laws that burden political speech are subject to strict scrutiny.” Missourians for Fiscal Accountability v. Klahr, 892 F.3d 944, 949 (8th Cir. 2018) (cleaned up). But we have not always applied strict scrutiny to initiative petition laws
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that implicate the First Amendment. In Jaeger, for example, without referencing the Anderson/Burdick framework by name, we applied its “sliding standard of review” to two North Dakota initiative petition laws. 241 F.3d at 616 (“Severe burdens on speech trigger an exacting standard in which regulations must be narrowly tailored to serve a compelling state interest, whereas lesser burdens receive a lower level of review.”). In keeping with this precedent, we will apply the same sliding standard here. See Mader v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“It is a cardinal rule in our circuit that one panel is bound by the decision of a prior panel.”) (quoting Owsley v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002)).
To determine the appropriate level of scrutiny, we “weigh the ‘character and magnitude’ of the burden the State’s rule imposes on [First Amendment] rights against the interest the State contends justify that burden, and consider the extent to which the State’s concerns make the burden necessary.” Timmons, 520 U.S. at 358 (quoting Burdick, 504 U.S. at 434). If Arkansas’s in-person signature requirement severely burdens the plaintiffs’ ability to engage in political speech, strict scrutiny applies. See id.; see also Jaeger, 241 F.3d at 616. Otherwise, lesser scrutiny applies. Jaeger, 241 F.3d at 616. To be severe, the burden must “go beyond the merely inconvenient.” Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J., concurring in the judgment) (citing Storer v. Brown, 415 U.S. 724, 728–29 (1974)).
The district court erred when it concluded Arkansas’s in-person signature requirement imposed a severe burden. The plaintiffs argue enforcement of this requirement bars them from signing or circulating AVF’s initiative petition. But this is not necessarily true. In fact, the Arkansas Code provides accommodations specifically for individuals who require assistance signing an initiative petition. Ark. Code Ann. § 7-9-103(a)(1)(B). “If a person signing a petition requires assistance due to a disability, another person may print the petitioner’s name, address, birth date, and the date of signing on the petition. The assisting individual must then sign and print his or her name in the margin of the petition.” McDaniel v. Spencer, 457 S.W.3d 641,
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650–51 (Ark. 2015) (cleaned up) (citing Ark. Code Ann. § 7-9-103(a)(1)(B)(i), (ii)). And a “disability” for purposes of § 7-9-103(a)(1)(B) “is any condition that would not allow a petitioner to write the required information on the petition without assistance.” Id. at 651 (emphasis added). Neither party accounts for this accommodation. Yet, it appears such an accommodation assuages the burden on the plaintiffs’ ability to engage in core political speech by signing or circulating AVF’s initiative petition. Allen and Gray could communicate with an AVF canvasser, like Miller, using a phone or computer, and section 7-9-103(a)(1)(B) would, in theory, permit another person to sign the petition for them while they observe, in person, through a window from the safety of their homes.
Even absent section 7-9-103(a)(1)(B), however, one can imagine relatively simple ways for individuals like Allen and Gray to safely comply with the in-person signature requirement during the COVID–19 pandemic. As Arkansas illustrates in its brief, for example, AVF can advertise its petition using traditional and social media and bring the sterilized petition to Allen’s and Gray’s homes where it can be safely transferred with little to no contact. No doubt, the in-person signature requirement imposes real burdens. We are just not persuaded it imposes severe burdens. Strict scrutiny is therefore not applicable.
Because the burdens are less than severe, we review Arkansas’s in-person signature requirement to ensure it is reasonable, nondiscriminatory, and furthers an important regulatory interest. Timmons, 520 U.S. at 358. Starting with the regulatory interest, Arkansas says the in-person signature requirement protects the integrity of its initiative petition process. The plaintiffs argue this interest is not so significant here because “the risk of fraud or corruption . . . is more remote at the petition stage than at the time of balloting.” Meyer, 486 U.S. at 427. We disagree for two reasons. First, we have characterized a state’s interest in protecting the integrity of its initiative processes as “paramount.” Hoyle, 265 F.3d at 704. Second, like the State of Washington in Reed, Arkansas maintains its interest in integrity is not limited to just
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fraud and corruption. See Reed, 561 U.S. at 198. Its interest includes preventing mistakes as well, like duplicate signatures and signatures from ineligible voters. See id. And Arkansas’s initiative petition laws require in-person canvassers to protect against these concerns. See Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-108. Thus, we cannot say Arkansas lacks an important interest here.
Still, the plaintiffs argue, Arkansas did not present enough evidence to justify its asserted regulatory interest. But states are not required to present “elaborate, empirical verification of the weightiness of [their] asserted justifications.” Timmons, 520 U.S. at 364. They can “respond to potential deficiencies in the electoral process with foresight . . ., provided that the response is reasonable and does not significantly impinge on constitutionally protected rights.” Id. (quoting Munro v. Socialist Workers Party, 479 U.S. 189, 195–96 (1986)); see also Green Party of Ark. v. Martin, 649 F.3d 675, 686 (8th Cir. 2011) (“Arkansas need not allow itself to be harmed by such ills before enacting appropriate measures to prevent harm.”). Under this standard, Arkansas sufficiently demonstrated its in-person signature requirement advances an important interest — protecting the integrity of Arkansas’s initiative process. And this is not to mention the fact that Arkansas has encountered fraud in the initiative process before, meaning its interest is legitimate as well as important. See Hoyle, 265 F.3d at 702 (recognizing an Arkansas special master’s finding of fraudulent initiative petition signatures); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (explaining courts must “determine the legitimacy” of a state’s interest).
To pass constitutional scrutiny, then, the in-person signature requirement must be reasonable and nondiscriminatory. As mentioned above, this requirement is designed to have in-person canvassers ferret out fraud and mistake by ensuring, at a minimum, only one signature per person and that signatures come from eligible voters. See Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-108. So at least in this regard, it is reasonable and nondiscriminatory.
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In fairness, the plaintiffs do not argue this requirement is discriminatory. Nor do they challenge the reasonableness of requiring in-person signatures to prevent fraud and mistake in normal circumstances. They do, however, argue it is unreasonable to enforce the in-person signature requirement against them during the COVID–19 pandemic. We are not convinced. Under Arkansas law, it appears Allen and Gray can still sign AVF’s initiative petition in the presence of a canvasser from the safety of their own homes or other safe location. See Ark. Code Ann. § 7-9-103(a)(1)(B). With the assistance of another person, this can be done while Allen and Gray observe through a window or from a safe distance. This possibility, along with other possibilities irrespective of section 7-9-103(a)(1)(B), makes enforcement reasonable. See Jaeger, 241 F.3d at 617 (illustrating various ways in which non-resident canvassers could still participate in the petition circulation process).
III. Conclusion
The district court’s decision to grant permanent injunctive relief rests on the conclusion that Arkansas’s in-person signature and notarization requirements are subject to strict scrutiny. They are not. The in-person notarization requirement does not implicate the First Amendment. And the in-person signature requirement, while implicating the First Amendment, imposes less-than-severe burdens on the plaintiffs’ rights and survives the applicable lesser scrutiny. As a result, the plaintiffs’ First Amendment claims fail on the merits.
The district court’s judgment and grant of permanent injunctive relief are therefore reversed. Arkansas’s pending, consolidated motion for a stay of the district court’s judgment pending appeal is denied as moot.
______________________________
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 11/24/2020
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U. S. District Court Western District of Arkansas (Fayetteville) CIVIL DOCKET FOR CASE #: 5:20-cv-05070-PKH

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Miller et al v. Thurston Assigned to: Honorable P. K. Holmes III Case in other court: 8th Circuit Court of Appeals, 20-02095 Cause: 42:1983 Civil Rights Act

Date Filed: 04/22/2020 Date Terminated: 05/29/2020 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Plaintiff Bonnie Heather Miller

represented by Annabelle Harless Campaign Legal Center 55 W. Monroe St Suite 1925 Chicago, IL 60603 312-312-2885 Email: aharless@campaignlegal.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David A. Couch David A. Couch, PLLC 1501 N. University Ave. Suite 228 Little Rock, AR 72207 501-661-1300 Fax: 877-460-5674 Email: arhog@me.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Gaber Campaign Legal Center 1101 14th Street NW Suite 400 Washington, DC 20005 202-736-2200 Email: mgaber@campaignlegalcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.arwd.uscourts.gov/cgi-bin/DktRpt.pl?115613589610247-L_1_0-1

Robert Weiner Campaign Legal Center
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1101 14th St., NW Ste. 400 Washington, DC 20005 202-736-2200 Email: RWeiner@campaignlegalcenter.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lamar 1101 14th Street NW Suite 400 Washington, DC 20005 850-294-6423 Email: clamar@campaignlegalcenter.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Robert William Allen

Ruth M. Greenwood Campaign Legal Center 125 Cambridgepark Drive Suite 301 Cambridge, MA 02140 202-560-0590 Email: rgreenwood@campaignlegal.org PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Annabelle Harless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David A. Couch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Weiner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

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Christopher Lamar (See above for address)
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PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Adella Dozier Gray

Ruth M. Greenwood (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Annabelle Harless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David A. Couch (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Mark Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Weiner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Christopher Lamar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Arkansas Voters First

Ruth M. Greenwood (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Annabelle Harless (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

https://ecf.arwd.uscourts.gov/cgi-bin/DktRpt.pl?115613589610247-L_1_0-1

Mark Gaber (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
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V. Defendant John Thurston in his ofﬁcial capacity as Secretary of State of Arkansas

Western District of Arkansas
Robert Weiner (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Lamar (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Ruth M. Greenwood (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
David A. Couch (See above for address) ATTORNEY TO BE NOTICED
represented by William C. Bird , III Ofﬁce of the Arkansas Attorney General 323 Center Street, Suite 200 Little Rock, AR 72201 (501) 682-1317 Fax: (501) 682-2591 Email: william.bird@arkansasag.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael A. Cantrell Arkansas Attorney General's Ofﬁce 323 Center Street Suite 200 Little Rock, AR 72201 (501) 682-2401 Fax: (501) 682-2591 Email: Michael.Cantrell@ArkansasAG.gov ATTORNEY TO BE NOTICED
Vincent M. Wagner Arkansas Attorney General 323 Center Street Suite 200 Little Rock, AR 72201 501-682-8090 Email: vincent.wagner@arkansasag.gov ATTORNEY TO BE NOTICED

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# Docket Text

Western District of Arkansas

1 CIVIL COVER SHEET for case initiated by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. Please proceed with ﬁling your case initiating document(s).

If the case initiating documents are not ﬁled by Close of Business the next business day your case may be terminated. (tg) (Entered: 04/22/2020)
2 COMPLAINT against John Thurston ( Filing fee $ 400 receipt number AARWDC2126620), ﬁled by Bonnie Heather Miller, Robert William Allen, Arkansas Voters First, Adella Dozier Gray.(Couch, David) (Entered: 04/22/2020)
3 THE DOCUMENT IS RESTRICTED TO COURT USERS.

Summons Requested as to John Thurston for service of the following document: 2 Complaint. (Couch, David) (Entered: 04/22/2020)
4 Magistrate Notice/Consent Form (tg) (Entered: 04/22/2020)
5 MOTION for Preliminary Injunction by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Couch, David) (Entered: 04/22/2020)
***PLEASE DISREGARD FILING FEE PAID*** CLERK'S NOTICE REGARDING FILING FEE. The following document was received and ﬁled without the appropriate ﬁling fee: 2 Complaint.

You MUST pay the ﬁling fee of $ 400.00 or ﬁle a motion to proceed In Forma Pauperis, if appropriate, within 2 business days.

If the proper fees or motion are not received for case initiating documents, your case may be subject to dismissal.

Present your payment to the appropriate Divisional Ofﬁce or Pay Online, using the Civil -> Other Documents -> Filing Fee Submitted event. Filing Fee due by 4/24/2020 (tg) Modiﬁed on 4/22/2020 (tg). (Entered: 04/22/2020)
6 THE DOCUMENT IS RESTRICTED TO COURT USERS AND CASE PARTICIPANTS.

Summons Issued as to John Thurston and returned to attorney or plaintiff for service.

YOU MUST PRINT THIS ISSUED SUMMONS, WHICH IS THE MAIN DOCUMENT. PAPER COPIES WILL NOT BE MAILED.

(tg) (tg). (Entered: 04/22/2020)
7 MEMORANDUM BRIEF in Support of 5 MOTION for Preliminary Injunction by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Attachments: # 1 Exhibit 1: Kincaid Declaration, # 2 Exhibit 2: E.O. 20-03, # 3 Exhibit 3: E.O. 20-05, # 4 Exhibit 4: E.O. 20-08, # 5 Exhibit 5: E.O. 20-09, # 6 Exhibit 6: E.O. 20-10, # 7 Exhibit 7: Little Rock Curfew Order, # 8 Exhibit 8: Little Rock Declaration, # 9 Exhibit 9: E.O. 20-12, # 10 Exhibit 10: E.O. 20-14, # 11 Exhibit 11: E.O. 20-15, # 12 Exhibit 12: E.O. 20-13, # 13 Exhibit 13: W.D. Ark. Admin. Order 2020-1, # 14 Exhibit 14: W.D. Ark. Admin. Order 2020-3, # 15 Exhibit 15: Ark. Sup. Ct. Order, # 16 Exhibit 16: W.D. Ark. Admin. Order 2020-4, # 17 Exhibit 17: Miller Declaration, # 18 Exhibit 18: Gray Declaration, # 19 Exhibit 19: Allen Declaration, #

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20 Exhibit 20: Esshaki v. Whitmer Decision, # 21 Exhibit 21: AVF Petition Filed with Sec'y of State)(Couch, David) (Entered: 04/22/2020)

04/22/2020

8 MOTION for Attorney Ruth Merewyn Greenwood to Appear Pro Hac Vice (PHV Application fee paid $ 100; receipt number AARWDC-2126768) by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Greenwood, Ruth) (Entered: 04/22/2020)

04/22/2020

9 TEXT ONLY ORDER granting 8 Motion to Appear Pro Hac Vice. Ruth Merewyn Greenwood is directed to immediately register for Pro Hac Vice ﬁler access through PACER and enter her appearance in this matter. Signed by Honorable P. K. Holmes III on April 22, 2020. (jas) (Entered: 04/22/2020)

04/22/2020 04/22/2020 04/22/2020 04/23/2020 04/23/2020

10 MOTION for Attorney Mark P. Gaber to Appear Pro Hac Vice (PHV Application fee paid $ 100; receipt number AARWDC-2126833) by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Gaber, Mark) (Entered: 04/22/2020)
11 MOTION for Attorney Annabelle E. Harless to Appear Pro Hac Vice (PHV Application fee paid $ 100; receipt number AARWDC-2126846) by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Harless, Annabelle) (Entered: 04/22/2020)
12 Corporate Disclosure Statement by Arkansas Voters First. (Couch, David) (Entered: 04/22/2020)
13 TEXT ONLY ORDER granting 10 Motion to Appear Pro Hac Vice. Mark P. Gaber is directed to immediately register for Pro Hac Vice ﬁler access through PACER and enter his appearance in this matter. Signed by Honorable P. K. Holmes III on April 23, 2020. (jas) (Entered: 04/23/2020)
14 TEXT ONLY ORDER granting 11 Motion to Appear Pro Hac Vice. Annabelle E. Harless is directed to immediately register for Pro Hac Vice ﬁler access through PACER and enter her appearance in this matter. Signed by Honorable P. K. Holmes III on April 23, 2020. (jas) (Entered: 04/23/2020)

04/23/2020

15 MOTION for Attorney Christopher Lamar to Appear Pro Hac Vice (PHV Application fee paid $ 100; receipt number AARWDC-2127364) by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Lamar, Christopher) (Entered: 04/23/2020)

04/23/2020

16 NOTICE of Appearance by Ruth M. Greenwood on behalf of All Plaintiffs. (Greenwood, Ruth) (Entered: 04/23/2020)

04/23/2020

17 TEXT ONLY ORDER granting 15 Motion to Appear Pro Hac Vice. Christopher Lamar is directed to immediately register for Pro Hac Vice ﬁler access through PACER and enter his appearance in this matter. Signed by Honorable P. K. Holmes III on April 23, 2020. (jas) (Entered: 04/23/2020)

04/23/2020

18 NOTICE of Appearance by Mark Gaber on behalf of Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Gaber, Mark) (Entered: 04/23/2020)

04/23/2020

19 NOTICE of Appearance by Annabelle Harless on behalf of All Plaintiffs. (Harless, Annabelle) (Entered: 04/23/2020)

04/23/2020

20 MOTION Leave to Effect Service by Electronic Mail by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Couch, David) (Entered: 04/23/2020)

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21 MEMORANDUM BRIEF in Support of 20 MOTION Leave to Effect Service by Electronic Mail by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Attachments: # 1 Exhibit 1: Afﬁdavit of Service and Email Accepting Service)(Couch, David) (Entered: 04/23/2020)
22 TEXT ONLY ORDER granting 20 motion to effect service by electronic mail. Signed by Honorable P. K. Holmes III on April 24, 2020. (rab) (Entered: 04/24/2020)
23 MOTION for Attorney Robert N. Weiner to Appear Pro Hac Vice (PHV Application fee paid $ 100; receipt number AARWDC-2128191) by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Weiner, Robert) (Entered: 04/24/2020)
24 TEXT ONLY ORDER granting 23 Motion to Appear Pro Hac Vice. Robert N. Weiner is directed to immediately register for Pro Hac Vice ﬁler access through PACER and enter his appearance in this matter. Signed by Honorable P. K. Holmes III on April 24, 2020. (jas) (Entered: 04/24/2020)
25 SUMMONS Returned Executed by Bonnie Heather Miller, Robert William Allen, Arkansas Voters First, Adella Dozier Gray. John Thurston served on 4/23/2020, answer due 5/14/2020. (Couch, David) (Entered: 04/24/2020)
26 NOTICE of Appearance by Robert Weiner on behalf of All Plaintiffs. (Weiner, Robert) (Entered: 04/24/2020)
27 MOTION to Expedite Brieﬁng on Motion for Preliminary Injunction by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Greenwood, Ruth) (Entered: 04/24/2020)
28 MEMORANDUM BRIEF in Support of 27 MOTION to Expedite Brieﬁng on Motion for Preliminary Injunction by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Greenwood, Ruth) (Entered: 04/24/2020)
29 NOTICE of Appearance by Christopher Lamar on behalf of All Plaintiffs. (Lamar, Christopher) (Entered: 04/24/2020)
TEXT ONLY ORDER granting in part and denying in part 27 Motion to Expedite Brieﬁng. Following a conference call with Plaintiffs' counsel David Couch and attorneys Gary Sullivan from the ofﬁce of the Arkansas Secretary of State and William Bird from the ofﬁce of the Arkansas Attorney General, the following agreed brieﬁng deadlines are entered.

Any response to the pending 5 motion for preliminary injunction must be ﬁled by May 4, 2020. A reply to that response is permitted, and must be ﬁled by May 6, 2020. The Court will reserve the setting of any hearing until brieﬁng is complete. Signed by Honorable P. K. Holmes III on April 24, 2020. (rab) (Entered: 04/24/2020)

04/27/2020

30 NOTICE of Appearance by William C. Bird, III on behalf of John Thurston. (Bird, William) (Entered: 04/27/2020)

05/04/2020

31 RESPONSE IN OPPOSITION TO Motion re 5 MOTION for Preliminary Injunction ﬁled by John Thurston. (Attachments: # 1 Exhibit Order - Bambenek v. White)(Bird, William) (Entered: 05/04/2020)

05/06/2020 32

REPLY to Response to Motion re 5 MOTION for Preliminary Injunction ﬁled by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Attachments: # 1 Exhibit Exhibit 1 - Second Declaration of Brett Kincaid, dated May 6, 2020, # 2 Exhibit Exhibit 2 - Letter from Secretary of State to Nate Steel dated July 25, 2018 setting cure period for casino ballot initiative on August 24, 2018, # 3

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Exhibit Exhibit 3 - Letter from Secretary of State to David Couch dated July 30, 2018 setting cure period for minimum wage ballot initiative on August 29, 2018, # 4 Exhibit Exhibit 4 - Letter from Secretary of State to David Couch dated July 28, 2016 setting cure period for medical marijuana initiative on August 29, 2016, # 5 Exhibit Exhibit 5 Participating Addendum adding Arkansas to Utah Cloud Solutions contract with Carahsoft Technology Corporation dated December 20, 2019)(Greenwood, Ruth) (Entered: 05/06/2020)

05/11/2020

33 STIPULATION re 5 MOTION for Preliminary Injunction by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Greenwood, Ruth) (Entered: 05/11/2020)

05/11/2020

34 STATEMENT OF FACTS in support of 5 MOTION for Preliminary Injunction by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Greenwood, Ruth) (Entered: 05/11/2020)

05/12/2020

35 MOTION to Dismiss for Failure to State a Claim by John Thurston. (Bird, William) (Entered: 05/12/2020)

05/12/2020

36 MEMORANDUM BRIEF in Support of 35 MOTION to Dismiss for Failure to State a Claim by John Thurston. (Bird, William) (Entered: 05/12/2020)

05/15/2020

37 TEXT ONLY ORDER Setting Hearing on 5 MOTION for Preliminary Injunction: Motion Hearing set for 5/19/2020 at 10:30 AM before Honorable P. K. Holmes III. This hearing will be accessible via video conference ONLY. Access to the courthouse will not be allowed. Any nonparty desiring access to the hearing should contact chambers at PKHinfo@arwd.uscourts.gov. Signed by Honorable P. K. Holmes III on May 15, 2020. (rab) (Entered: 05/15/2020)

05/18/2020

38 NOTICE of Appearance by Michael A. Cantrell on behalf of All Defendants. (Cantrell, Michael) (Entered: 05/18/2020)

05/19/2020

39 Minute Entry for proceedings held before Honorable P. K. Holmes III: Motion Hearing held on 5/19/2020 re 5 MOTION for Preliminary Injunction ﬁled by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Rick Congdon-Court Reporter) (jas) (Entered: 05/19/2020)

05/20/2020 40 NOTICE by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller (Notice of Supplemental Authority) (Attachments: # 1 Exhibit 1: Thompson v. DeWine Opinion and Order Granting Preliminary Injunction)(Gaber, Mark) (Entered: 05/20/2020)

05/25/2020 41 OPINION AND ORDER granting in part 5 Motion for Preliminary Injunction, as set forth. The parties are ordered to confer on a proposed schedule to expedite ﬁnal resolution of this lawsuit and communicate that proposal to the Court by May 28, 2020. Signed by Honorable P. K. Holmes III on May 25, 2020. (jas) (Entered: 05/25/2020)

05/26/2020

42 RESPONSE IN OPPOSITION TO Motion re 35 MOTION to Dismiss for Failure to State a Claim ﬁled by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Lamar, Christopher) (Entered: 05/26/2020)

05/29/2020

43 NOTICE by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller Joint Request for Entry of Judgment (Greenwood, Ruth) (Entered: 05/29/2020)

05/29/2020

44 ORDER DENYING AS MOOT 35 Motion to Dismiss for Failure to State a Claim; and IT IS ORDERED that the preliminary injunction entered by this Court will be made permanent by judgment entered separately. (See Order for speciﬁcs). Signed by Honorable P. K. Holmes III on May 29, 2020. (lgd) (Entered: 05/29/2020)

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45 JUDGMENT pursuant to the opinion and order 41 entered on May 25, 2020, and the order entered the same day; IT IS HEREBY ADJUDGED that Plaintiffs should have permanent injunctive relief on their First and Fourteenth Amendment claims (See Judgment for speciﬁcs). Signed by Honorable P. K. Holmes III on May 29, 2020. (lgd) (Entered: 05/29/2020)
46 NOTICE of Appearance by Vincent M. Wagner on behalf of John Thurston. (Wagner, Vincent) (Entered: 06/01/2020)
47 NOTICE OF APPEAL as to 45 Judgment, 41 Order on Motion for Preliminary Injunction, 44 Order on Motion to Dismiss for Failure to State a Claim, by John Thurston. Filing fee $ 505, receipt number AARWDC-2152250. (Wagner, Vincent) (Entered: 06/01/2020)
48 MOTION to Stay Pending Appeal by John Thurston. (Bird, William) (Entered: 06/01/2020)
49 MEMORANDUM BRIEF in Support of 48 MOTION to Stay Pending Appeal by John Thurston. (Bird, William) (Entered: 06/01/2020)
50 NOA SUPPLEMENT FORM re 47 Notice of Appeal (atty) ﬁled by John Thurston. (src) (Entered: 06/02/2020)
51 USCA Scheduling Order as to 47 Notice of Appeal (atty) ﬁled by John Thurston. Case Appealed to 8th Circuit Court of Appeals Case Number 20-2095. (Attachments: # 1 USCA Cover Letter)(tg) (Entered: 06/02/2020)
52 OPINION AND ORDER denying 48 Motion to Stay ﬁled by John Thurston. Signed by Honorable P. K. Holmes III on June 2, 2020. (tg) (Entered: 06/02/2020)
53 NOTICE OF FILING OFFICIAL TRANSCRIPT of hearing held on 05-19-2020, before Judge P.K. Holmes, III. Court Reporter/Transcriber: Rick Congdon, RMR, FCRR, Telephone number 479-652-0146. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber. After the Release of Transcript Restriction deadline, it, or a redacted transcript, may be obtained through the Court Reporter/Transcriber or PACER A Notice of Intent to Request Redaction of the Transcript MUST be ﬁled within 7 calendar days of the ﬁling of the transcript and served manually on the court reporter/transcriber. Redaction Request due 7/2/2020. Redacted Transcript Deadline set for 7/13/2020. Release of Transcript Restriction set for 9/9/2020. (rlc) (Entered: 06/11/2020)
54 Unopposed MOTION to Defer Attorneys' Fees Brieﬁng by Robert William Allen, Arkansas Voters First, Adella Dozier Gray, Bonnie Heather Miller. (Greenwood, Ruth) (Entered: 06/18/2020)
55 TEXT ONLY ORDER granting 54 motion to defer brieﬁng on attorney's fees until resolution of the pending appeal. Signed by Honorable P. K. Holmes III on June 18, 2020. (rab) (Entered: 06/18/2020)
56 TRANSMITTAL SHEET re 47 Notice of Appeal (atty) ﬁled by John Thurston to 8USCA. (tg) (Entered: 06/30/2020)
57 MANDATE of USCA Reversing district court decision as to 47 Notice of Appeal (atty) ﬁled by John Thurston (Attachments: # 1 USCA Opinion, # 2 USCA Judgment)(src) (Entered: 08/18/2020)

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