CASE STUDIES IN EMERGENCY ELECTION LITIGATION

Federal Judicial Center 7/5/2023 1

Ballot-Petition Signature Requirements 

in Oregon During a Pandemic 

People Not Politicians Oregon v. Clarno 

(Michael J. McShane, D. Or. 6:20-cv-1053) 

A district judge granted relief to proponents of an initiative with respect to the number of ballot-petition signatures required and the 

deadline for submission. But the Supreme Court stayed the injunction. The court of appeals determined that the stay made resolution 

of the case in time for the election impractical. 

Subject: Ballot measures. Topics: Getting on the ballot; ballot 

measure; Covid-19; laches. 

After an evidentiary hearing, a district judge concluded that an infectious 

pandemic had prevented the qualification of a ballot initiative, so he granted 

an injunction relaxing the ballot-petition signature requirements. But the 

Supreme Court stayed the injunction, and the court of appeals concluded 

that the stay essentially mooted the case. Relief was denied a pro se plaintiff 

seeking relief on behalf of an organization supporting another initiative, because pro se parties cannot represent organizations and he had not shown 

diligent attempts to meet the signature requirements. 

A Stayed Injunction 

In light of social distancing made necessary by the global Covid-19 infectious 

pandemic, proponents of a November 2020 ballot initiative and other organizations filed on June 30 in the District of Oregon a federal complaint against 

Oregon’s secretary of state seeking relief from a ballot-petition signature requirement and a July 2 deadline.1

 With their complaint, the plaintiffs filed a 

motion for a temporary restraining order, requesting an expedited hearing 

and relief on or before July 2.2

On July 1, the court assigned the case to Judge Michael J. McShane.3

 Following communication with the parties, Judge McShane set the case for telephonic oral argument on July 9, with contact information to be provided to 

the parties by email.4

 Oral argument was reset for July 10 on July 7 at the re1. Complaint, People Not Politicians Or. v. Clarno, No. 6:20-cv-1053 (D. Or. June 30, 

2020), D.E. 1; see People Not Politicians Or. v. Clarno, 472 F. Supp. 3d 890, 893 (D. Or. 

2020). 

2. Temporary-Restraining-Order Motion, People Not Politicians Or., No. 6:20-cv-1053 

(D. Or. June 30, 2020), D.E. 2; see People Not Politicians Or., 472 F. Supp. 3d at 893. 

3. Order, People Not Politicians Or., No. 6:20-cv-1053 (D. Or. July 1, 2020), D.E. 7. 

For this report, Tim Reagan interviewed Judge McShane and his law clerks Brooks Kern 

and David Svelund by telephone on September 30, 2020. 

4. Docket Sheet, People Not Politicians Or., No. 6:20-cv-1053 (D. Or. June 30, 2020) 

[hereinafter People Not Politicians Or. Docket Sheet] (D.E. 12). 
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2 Federal Judicial Center 7/5/2023 

quest of the parties.5 On July 9, Judge McShane set videoconference as the 

medium of the July 10 oral argument.6

Also on July 9, another organization and its executive director, who opposed the initiative, moved to intervene in the case.7

 Judge McShane permitted amicus participation.8

At the Friday, July 10 proceeding—an evidentiary hearing—Judge 

McShane presided via video, robed in an empty courtroom.9

 Among other 

things, the screen in the courtroom was bigger than the judge’s screens elsewhere, making for better viewing of the attorneys and the witnesses.10 Members of the public, including news media and persons affiliated with the parties, could listen to the hearing.11 Judge McShane did not rely exclusively on 

the attorneys’ questioning of witnesses; he questioned them himself as well, 

so that he would be sure to get the information he needed to rule.12 A major 

fact question was how diligent the plaintiffs had been in seeking signatures.13

The video technology improvements made necessary by the pandemic 

facilitated moving the case forward quickly, because it made it less necessary 

for attorneys and witnesses to travel to Eugene.14 The law clerk assisting 

Judge McShane with this case was working from home; he and the judge 

could communicate with each other during the proceeding.15

Judge McShane orally granted the plaintiffs a preliminary injunction, ordering the secretary to either certify the initiative for the ballot or lower the 

signature threshold by half and extend the deadline to August 17.16 An opinion followed on Monday.17 “The Court . . . finds that Plaintiffs submitted 

considerable evidence reflecting that but for the pandemic-related restrictions, they would have gathered the required signatures by the July 2 

deadline.”18 The secretary was given until 5:00 p.m. on July 13 to select between the alternative remedies.19

5. Id. (D.E. 13). 

6. Id. (D.E. 14). 

7. Intervention Motion, id. (July 9, 2020), D.E. 17. 

8. People Not Politicians Or. Docket Sheet, supra note 4 (minutes, D.E. 22); Transcript at 

21, 50, People Not Politicians Or., No. 6:20-cv-1053 (D. Or. July 10, 2020, filed Sept. 18, 

2020), D.E. 35 [hereinafter People Not Politicians Or. Transcript]. 

9. Interview with Hon. Michael J. McShane and his law clerks Brooks Kern and David 

Svelund, September 30, 2020. 

10. Id. 

11. Id. 

12. Id.; People Not Politicians Or. Transcript, supra note 8. 

13. Interview with Hon. Michael J. McShane and his law clerks Brooks Kern and David 

Svelund, September 30, 2020.

14. Id. 

15. Id. 

16. People Not Politicians Or. Transcript, supra note 8, at 120–21; People Not Politicians 

Or. v. Clarno, 472 F. Supp. 3d 890, 893, 900 (D. Or. 2020); People Not Politicians Or. Docket 

Sheet, supra note 4 (minutes, D.E. 22). 

17. People Not Politicians Or., 472 F. Supp. 3d 890. 

18. Id. at 898. 

19. Id. at 900. 
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Federal Judicial Center 7/5/2023 3

The secretary declined to merely certify the initiative for the ballot: “Given that decision the Secretary understands that the Court’s Opinion and Order directs the Secretary to deem Initiative Petition 57 qualified for the ballot 

if its chief petitioners submit 58,789 valid signatures by August 17, 2020.”20

The parties reported on July 30 that the revised signature threshold was 

met.21

The court of appeals expedited an appeal22 and, over a dissent, declined 

to stay Judge McShane’s injunction.23 The Supreme Court, however, did stay 

the injunction.24

The court of appeals observed on September 1, 

The practical effect of the stay is that even if we affirm the district court’s injunction, the Supreme Court is not likely to lift the stay until after the September 3, 2020 deadline to place the initiative on the November 2020 ballot, 

likely rendering this action moot as to this election cycle.25

Over a dissent, the court remanded the case to the district court to determine whether the controversy was capable of repetition yet evading review.26 In 2021, Judge McShane determined that because of vaccinations and 

experience with the pandemic, future ballot-petition challenges would be different, so the case was moot.27

A Denied Injunction 

On July 20, 2020, Judge McShane denied relief to a pro se plaintiff supporting a different initiative.28 The June 30 complaint was brought by the plaintiff 

“in his official capacity” as head of an organization seeking to get an initiative 

on the ballot.29 A motion for a temporary restraining order or a preliminary 

20. Notice, People Not Politicians Or. v. Clarno, No. 6:20-cv-1053 (D. Or. July 13, 2020), 

D.E. 24. 

21. Status Report, id. (July 30, 2020), D.E. 30. 

22. Order, People Not Politicians Or. v. Clarno, No. 20-35630 (9th Cir. July 22, 2020), 

D.E. 13. 

23. Order, id. (July 23, 2020), D.E. 14; see Hillary Borrud, Court Rejects Bid by Rosenblum 

to Halt Signature Gathering, Oregonian, July 24, 2020, at A6. 

24. Clarno v. People Not Politicians, 591 U.S. ___, 141 S. Ct. 206 (2020); see Robert 

Barnes, Court Halts Election Order Tied to Virus, Wash. Post, Aug. 12, 2020, at A4; Adam 

Liptak, Supreme Court Won’t Allow Oregon to Ease Procedure for Referendum Voting, N.Y. 

Times, Aug. 12, 2020, at A23. 

25. People Not Politicians Or. v. Clarno, 826 F. App’x 581, 582 (9th Cir. 2020); see Hillary Borrud, Proposed Ballot Measure to Take Politics Out of Redistricting Will Not Go to Voters, Oregonian, Sept. 4, 2020, at A2. 

26. People Not Politicians Or., 826 F. App’x at 583. 

27. Opinion, People Not Politicians Or. v. Clarno, No. 6:20-cv-1053 (D. Or. June 10, 

2021), D.E. 53, 2021 WL 2386118. 

28. Opinion, McCarter v. Brown, No. 6:20-cv-1048 (D. Or. July 20, 2020), D.E. 33 [hereinafter McCarter Opinion], 2020 WL 4059698; see Maxine Bernstein, Judge Says Petition by 

Move Oregon’s Border Was Not “Reasonably Diligent,” Oregonian, July 22, 2020, at A4. 

29. Complaint, McCarter, No. 6:20-cv-1048 (D. Or. June 30, 2020), D.E. 1; see Carisa 

Cegavske, Man Hoping to Establish “Greater Idaho” Files Suit, Oregonian, July 18, 2020, at 

A3. 
Ballot-Petition Signature Requirements in Oregon During a Pandemic 

4 Federal Judicial Center 7/5/2023 

injunction followed six days later.30 Judge McShane gave the plaintiff permission to file electronically two days after that.31

On the one hand, the relief sought appeared to relate to an organization 

rather than to the plaintiff.32 On the other hand, “because Plaintiff has not 

demonstrated reasonable diligence in collecting the required signatures, he 

fails to demonstrate any likelihood of success on the merits of his claims.”33

Following a second motion for a temporary restraining order or a preliminary injunction,34 Judge McShane dismissed the case for failure to show 

representation of the organization by an attorney.35

30. Injunction Motion, McCarter, No. 6:20-cv-1048 (D. Or. July 6, 2020), D.E. 7. 

31. Order, id. (July 8, 2020), D.E. 9. 

32. McCarter Opinion, supra note 28, at 1. 

33. Id. at 1. 

34. Second Injunction Motion, McCarter, No. 6:20-cv-1048 (D. Or. July 22, 2020), D.E. 

35; see Bill Bradshaw, Border-Move Petition Tries Again in Court, Wallowa Cty. Chieftain, 

July 29, 2020, at A3. 

35. Amended Judgment, McCarter, No. 6:20-cv-1048 (D. Or. Sept. 17, 2020), D.E. 48; 

Judgment, id. (Sept. 7, 2020), D.E. 47.