Miller v. Thurston

• Decision Date: 25 May 2020
• Docket Number: No. 5:20-CV-05070,5:20-CV-05070
• Citation: 462 F.Supp.3d 930
• Parties: 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, Defendant
• Court: U.S. District Court — Western District of Arkansas

462 F.Supp.3d 930

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, Defendant

No. 5:20-CV-05070

United States District Court, W.D. Arkansas, Fayetteville Division.

Signed May 25, 2020

Annabelle Harless, Pro Hac Vice, Campaign Legal Center, Chicago, IL, David A. Couch, David A. Couch, PLLC, Little Rock, AR, Mark Gaber, Pro Hac Vice, Robert Weiner, Pro Hac Vice, Christopher Lamar, Pro Hac Vice, Campaign Legal Center, Washington, DC, Ruth M. Greenwood, Pro Hac Vice, Campaign Legal Center, Cambridge, MA, for Plaintiffs.

William C. Bird, III, Michael A. Cantrell, Vincent M. Wagner, Office of the Arkansas Attorney General, Little Rock, AR, for Defendant.

OPINION AND ORDER

P.K. HOLMES, III, U.S. DISTRICT JUDGE

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 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 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-or-controversy requirement of Article III." Lujan v. Defs. of Wildlife , 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). If 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, 112 S.Ct. 2130 ).

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 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...