Thompson v. DeWine

• Decision Date: 26 May 2020
• Docket Number: No. 20-3526,20-3526
• Citation: 959 F.3d 804
• Parties: Chad THOMPSON; William T. Schmitt ; Don Keeney, Plaintiffs-Appellees, v. Richard Michael DEWINE, in his official capacity as the Governor of Ohio; Amy Acton, in her official capacity as Director of Ohio Department of Health; Frank LaRose, in his official capacity as Ohio Secretary of State, Defendants-Appellants, Ohioans for Secure and Fair Elections; Darlene L. English; Laura A. Gold; Isabel C. Robertson; Ebony Speakes-Hall; Paul Moke; Andre Washington ; Scott A. Campbell ; Susan Zeigler; Hasan Kwame Jeffries; Ohioans for Raising the Wage; Anthony Caldwell; James E. Hayes; David G. Latanick; Pierrette M. Talley, Intervenors-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

959 F.3d 804

Chad THOMPSON; William T. Schmitt ; Don Keeney, Plaintiffs-Appellees,

v.Richard Michael DEWINE, in his official capacity as the Governor of Ohio; Amy Acton, in her official capacity as Director of Ohio Department of Health; Frank LaRose, in his official capacity as Ohio Secretary of State, Defendants-Appellants,Ohioans for Secure and Fair Elections; Darlene L. English; Laura A. Gold; Isabel C. Robertson; Ebony Speakes-Hall; Paul Moke; Andre Washington ; Scott A. Campbell ; Susan Zeigler; Hasan Kwame Jeffries; Ohioans for Raising the Wage; Anthony Caldwell; James E. Hayes; David G. Latanick; Pierrette M. Talley, Intervenors-Appellees.

No. 20-3526

United States Court of Appeals, Sixth Circuit.

Decided and Filed: May 26, 2020

ON MOTION: Benjamin M. Flowers, Michael J. Hendershot, Stephen P. Carney, Shams H. Hirji, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. ON RESPONSE: Mark R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus, Ohio, for Plaintiffs-Appellees. Donald J. McTigue, Derek Clinger, MCTIGUE & COLOMBO LLC, Columbus, Ohio, for Intervenors-Appellees.

Before: SUTTON, McKEAGUE, and NALBANDIAN, Circuit Judges.

ORDER

PER CURIAM.

By all accounts, Ohio's public officials have admirably managed the problems presented by the unprecedented COVID-19 pandemic. This includes restricting Ohioans’ daily lives to slow the spread of a highly infectious disease. Nearly every other state and the federal government have done the same. And these are the types of actions and judgments that elected officials are supposed to take and make in times of crisis. But these restrictions have not gone unchallenged. See, e.g. , Maryville Baptist Church, Inc. v. Beshear , 957 F.3d 610 (6th Cir. 2020) (per curiam); Adams & Boyle, P.C. v. Slatery , 956 F.3d 913 (6th Cir. 2020). Our Constitution, of course, governs during both good and challenging times. Unlike those cases, however, the Plaintiffs and Intervenors here do not challenge the State's restrictions per se. Rather, they allege that COVID-19 and the State's stay-at-home orders have made it impossibly difficult for them to meet the State's preexisting requirements for initiatives to secure a place on the November ballot—violating their First Amendment rights. So they challenge Ohio's application of its general election and ballot-initiative laws to them.

Ohio's officials have not been unbending in their administration of the State's election laws. Indeed, they postponed the Ohio primary election, originally scheduled during the height of the pandemic. That exercise of judgment is not before us. Rather, Plaintiffs challenge the Ohio officials’ decision not to further modify state election law in the context of this case. The district court agreed with Plaintiffs and granted a preliminary injunction, finding that, as applied, certain provisions of the Ohio Constitution and Ohio Code violate the First Amendment. Defendants now ask for a stay of that injunction to preserve the status quo pending appeal.

The people of Ohio vested their sovereign legislative power in the General Assembly. Ohio Const. art. II, § 1. But they also retained the power to amend the State Constitution, enact laws, and enact municipal ordinances by initiative and referendum. Id. art. II, §§ 1a, 1b, 1f. The Ohio Constitution and the Ohio Code establish the process for proposing an initiative to the State's electors and impose many requirements for ballot access. Relevant here, a petition to put an initiative before Ohio's electors for referendum must include signatures from ten percent of the applicable jurisdiction's electors that voted in the last gubernatorial election, each signature must "be written in ink," and the initiative's circulator must witness each signature. Id. art. II, § 1g; see id . art. II, § 1a; Ohio Rev. Code Ann. § 731.28. And the initiative's proponents must submit these signatures to the Secretary of State 125 days before the election for a constitutional amendment and 110 days before the election for a municipal ordinance. Ohio Const. art. II, § 1a ; Ohio Rev. Code Ann. § 731.28.

Given the COVID-19 pandemic, three individuals and two organizations, who are obtaining signatures in support of initiatives to amend the Ohio Constitution and propose municipal ordinances, challenged these requirements, as-applied to them. They claim Ohio's ballot-initiative requirements violate their First and Fourteenth Amendment rights and moved to enjoin the State from enforcing these requirements against them. The district court granted their motion in part, enjoining enforcement of the ink signature requirement, the witness requirement, and the submission deadlines, and denied their motion in part, upholding the number of signatures requirement. The court also directed Defendants to "update the Court by 12:00 pm on Tuesday, May 26, 2020 regarding adjustments to the enjoined requirements so as to reduce the burden on ballot access" as well as ordered them to "accept electronically-signed and witnessed petitions from [the organizational plaintiffs] collected through the on-line signature collection plans set forth in their briefing" and to "accept petitions from [the organizational plaintiffs] that are submitted to the Secretary of State by July 31, 2020[.]"¹ (R. 44, Op. & Order at PageID # 675–76.) And the court ordered Defendants and the organizational plaintiffs to "meet and confer regarding any technical or security issues to the on-line signature collection plans" and "submit their findings to the Court by 12:00 pm on Tuesday, May 26, 2020." (Id .) Defendants now move for an administrative stay and for a stay pending appeal.

"[I]nterlocutory orders of the district courts of the United States ... granting, continuing, modifying, refusing or dissolving injunctions" are immediately appealable. 28 U.S.C. § 1292(a)(1). And the district court has already denied Defendants’ motion for a stay pending appeal in that court. So we have jurisdiction and Defendants’ motion is ripe for our review.

A movant must establish four factors to obtain a stay pending appeal: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009). When evaluating these factors for an alleged constitutional violation, "the likelihood of success on the merits often will be the determinative factor." Obama for Am. v. Husted , 697 F.3d 423, 436 (6th Cir. 2012) ; see also Bays v. City of Fairborn , 668 F.3d 814, 819 (6th Cir. 2012) ("In First Amendment cases, however, the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits. This is so because ... the issues of the public interest and harm to the respective parties largely depend on the constitutionality of the state action."

(internal quotation marks and alteration omitted)). So we turn first to that.

I.

"[A]lthough the Constitution does not require a state to create an initiative procedure, if it creates such a procedure, the state cannot place restrictions on its use that violate the federal Constitution[.]" Taxpayers United for Assessment Cuts v. Austin , 994 F.2d 291, 295 (6th Cir. 1993) ; see also John Doe No. 1 v. Reed , 561 U.S. 186, 212, 130 S.Ct. 2811, 177 L.Ed.2d 493 (2010) (Sotomayor, J., concurring) ("[I]nitiatives and referenda ... are not compelled by the Federal Constitution. It is instead up to the people of each State, acting in their sovereign capacity, to decide whether and how to permit legislation by popular action."). As Defendants concede, our precedent dictates that we evaluate First Amendment challenges to nondiscriminatory, content-neutral ballot initiative requirements under the Anderson - Burdick framework.² Schmitt v. LaRose , 933 F.3d 628, 639 (6th Cir. 2019) ; Comm. to Impose Term Limits on the Ohio Supreme Court & to Preclude Special Legal Status for Members & Emps. of the Ohio Gen. Assembly v. Ohio Ballot Bd. , 885 F.3d 443, 448 (6th Cir. 2018). First, we determine the burden the State's regulation imposes on the plaintiffs’ First Amendment rights. When States impose "reasonable nondiscriminatory restrictions[,]" courts apply rational basis review and " ‘the State's important regulatory interests are generally sufficient to justify’ the restrictions." Burdick v. Takushi , 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Anderson v. Celebrezze , 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547, (1983) ). But when States impose severe restrictions, such as exclusion or virtual exclusion from the ballot, strict scrutiny applies. Id. at 434, 112 S.Ct. 2059 ; Schmitt , 933 F.3d at 639 ("The hallmark of a severe burden is exclusion or virtual exclusion from the ballot."). For cases between these extremes, we weigh the burden imposed by the State's regulation against " ‘the precise interests put forward by the State as justifications for the burden imposed by its rule,’ taking into consideration ‘the extent to which those interests make it necessary to burden the plaintiff's rights.’ " Burdick , 504 U.S. at 434, 112 S.Ct. 2059 (quoting Anderson , 460 U.S. at 789, 103 S.Ct. 1564 ).

We have regularly upheld ballot access regulations like those at issue. See Schmitt , 933 F.3d at 641–42 (upholding Ohio's provision of only mandamus review for challenges to a Board of Elections’ ruling over compliance with ballot initiative requirements against a First Amendment challenge); Ohio Ballot Bd. , 885 F.3d at 448 (upholding Ohio's single-subject requirement for ballot initiatives against a First Amendment challenge); Taxpayers United , 994 F.2d at 296–97 (upholding Michigan's number-of-signatures requirement for ballot initiatives against a First...