People Not Politicians Or. v. Clarno

472 F.Supp.3d 890

PEOPLE NOT POLITICIANS OREGON, et al., Plaintiffs,

v.Beverly CLARNO, in her official capacity as the Secretary of State of Oregon, et al., Defendants.

Civ. No. 6:20-cv-01053-MC

United States District Court, D. Oregon.

Signed June 13, 2020

Filed July 13, 2020

Stephen Elzinga, Salem, OR, for Plaintiffs.

Christina L. Beatty-Walters, Brian Simmonds Marshall, Oregon Department of Justice, Portland, OR, Benjamin Gutman, Oregon Department of Justice, Salem, OR, for Defendants.

OPINION AND ORDER

MCSHANE, Judge:

INTRODUCTION

Plaintiffs are a group of organizations petitioning to place an initiative on the November 2020 ballot that would alter Oregon's redistricting process. But before a constitutional amendment is presented to the voters, petitioners must gather the requisite number of signatures from Oregon voters at least four months before the election. Plaintiffs argue that these requirements are unconstitutional as applied during the ongoing coronavirus pandemic and related government regulations that limit social interaction. Defendant Beverly Clarno, Oregon's Secretary of State, counters that the initiative requirements are constitutional and that pandemic-related regulations do not alter their constitutionality. Plaintiffs seek a preliminary injunction that would both lower the required signature threshold and postpone the deadline for when signatures must be filed.

The Court heard oral argument on Plaintiffs' motion and granted the requested preliminary injunction. ECF No. 22. Defendant was given until July 13, 2020, at 5:00 p.m. P.S.T. to decide to either allow Plaintiffs initiative on the ballot as presented, or lower the required signature threshold to 58,789 and extend the submission deadline to August 17, 2020. This written order provides more detail behind the Court's decision and, as stated on the record, controls.

BACKGROUND

As noted, Plaintiffs are a coalition of government reform organizations seeking to place an initiative before Oregon voters on the November 2020 ballot that would amend the state constitution to create an independent redistricting commission. Plaintiffs propose a commission that would diverge from the current redistricting scheme, a process routinely criticized on the grounds that it allows the political party in power to gerrymander districts into a remarkable jigsaw puzzle that best suits the party's needs by disproportionately impacting the voting power of certain communities.¹ See Rucho v. Common Cause , ––– U.S. ––––, 139 S. Ct. 2484, 2512, 204 L.Ed.2d 931 (2019) (Kagan, J., dissenting) ("At its most extreme ... the practice [of partisan gerrymandering] amounts to ‘rigging elections.’ " (quoting Vieth v. Jubelirer , 541 U.S. 267, 317, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (Kennedy, J., concurring in judgment))). To qualify their initiative for the November ballot, Plaintiffs had to submit a certain number of signatures by July 2, 2020.

As described in the Secretary of State's Initiative and Referendum Manual, "the initiative and referendum process is a method of direct democracy that allows people to propose laws or amendments to the Constitution or to adopt or reject a bill passed by the legislature." OREGON ELECTIONS DIVISION , STATE INITIATIVE AND REFERENDUM MANUAL 3 (" INITIATIVE MANUAL ") (2020), https://sos.oregon.gov/elections/Documents/stateIR.pdf. In many ways, this form of direct democracy was a model for other states when Oregon voters passed the initiative and referendum process in 1902, creating what become known as "The Oregon System." See generally David Schuman, The Origin of State Constitutional Direct Democracy: William Simon U'ren and "The Oregon System," 67 TEMP. L. REV. 947 (1994). Since that time, Oregonians have been active participants in a democratic process that touches every aspect of life within our state: women's suffrage, prohibition, compulsory education, hunting, environmental protections, the death penalty, LGBTQ+ rights and discrimination, marijuana legalization, taxation, voter recall, eight-hour work day, freight rates, wages, women jurors, suffrage and housing rights for people of color, jury trials, victim rights, gambling, tobacco, timber, health and safety, transportation, daylight savings time, compulsory retirement for judges, housing, nuclear power, and physician assisted suicide. Indeed, much what makes Oregon unique, for better or for worse, is its robust relationship with direct democracy.

Direct democracy, of course, requires the participation of the electorate. Before a constitutional initiative can be placed on the ballot, its advocates must obtain and submit to the Secretary of State the signatures of voters who support the initiative four months before a general election in a number equal to eight percent of ballots cast in the most recent governor's race. Or. Const. art. IV § 1 (2)(c). But even before obtaining the required number of signatures to qualify for the ballot, petitioners must first file the petition with the Secretary of State with the language of the proposed amendment, submit at least 1,000 valid sponsorship signatures, receive a certified ballot title, and receive approval from Oregon's Election Division for the cover and signature sheet to be used when gathering signatures. Decl. of Summer S. Davis ("Davis Decl.") ¶ 4, ECF No. 16. This process may begin at the end of the last election cycle. Id. Once a petitioner meets these requirements, the Election Division will approve their initiative for circulation. INITIATIVE MANUAL 5.

Plaintiffs filed their initiative with the Secretary of State in November 2019. Davis Decl. ¶ 12, Ex. B. Plaintiffs met all other requirements and the Attorney General then issued a ballot title a month later. Id. As soon as the ballot title was issued, Becca Uherbelau, amici here, appealed the Attorney General's ballot title. Id. The Oregon Supreme Court rejected this challenge and Plaintiffs initiative was approved for circulation.

By the time Plaintiffs could begin collecting signatures, a global pandemic had begun, upending all aspects of life. As of July 12, 2020, coronavirus has infected over 12.8 million people and killed over 560,000. Coronavirus Resource Center , JOHNS HOPKINS UNIV. & MED. , https://coronavirus.jhu.edu/ (last visited July 12, 2020 at 8:38 pm). On March 8, Oregon Governor Kate Brown declared a state of emergency, currently in effect until September 4. Executive Order 20-30 (June 30, 2020), https://www.oregon.gov/gov/Document/executive_orders/eo_20-30.pdf. Fifteen days after declaring a State of Emergency, Governor Brown mandated social distancing and banned all social gatherings "if a distance of at least six feet between individuals cannot be maintained." Executive Order 20-12 (March 23, 2020), https://www.oregon.gov/gov/Documents/executive_orders/eo_20-12.pdf. While Executive Order 20-12 was eventually replaced by later Executive Orders and certain counties could partially reopen, Oregonians still had to maintain physical distance from each other. Executive Order 20-25 (May 14, 2020), https://www.oregon.gov/gov/Documents/executive_orders/eo_20-25.pdf; Executive Order 20-27 (June 5, 2020), https://www.oregon.gov/gov/Documents/executive_orders/eo_20-27.pdf.

Despite the state's requirements to maintain social distancing, Plaintiffs began attempting to collect the necessary 149,360 signatures by the July 2, 2020 deadline. Quickly realizing that traditional methods of in-person signature gathering were no longer available, Plaintiffs instead tried alternative methods that would not violate the Governor's Executive Orders. This included mailing out over 500,000 packets with the petition inside, to be mailed back after signing, and providing a link to voters where the petition could be printed out, signed, and returned. Decl. of C. Norman Turrill ¶ 25, ECF No. 5. Unsurprisingly, these methods produced a response rate far less than in-person solicitation. Id. Plaintiffs have informed the Court that they have collected 64,172 unverified signatures, well short of the required 149,360.

STANDARD OF LAW

A party seeking a preliminary injunction "must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest." Winter v. Natural Res. Defense Council, Inc. , 555 U.S. 7, 129 S. Ct. 365, 374, 172 L.Ed.2d 249 (2008). The mere possibility of irreparable harm is not enough. Rather, the plaintiff must establish that this harm is likely. Alliance for the Wild Rockies v. Cottrell , 632 F.3d 1127, 1131 (9th Cir. 2011). The standards for issuing a temporary restraining order are like those required for a preliminary injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co. , 887 F. Supp. 1320, 1323 (N.D. Ca. 1995).

ANALYSIS

"A plaintiff seeking a preliminary injunction must establish that: 1) it is likely to succeed on the merits; 2) it is likely to suffer irreparable harm in the absence of preliminary relief; 3) the balance of equities tips in its favor; and 4) an injunction is in the public interest." Reclaim Idaho v. Little , No. 1:20-CV-00268-BLW, 2020 WL 3490216, at *5 (D. Idaho June 26, 2020) (citing Winter , 555 U.S. at 20, 129 S.Ct. 365 ). The Court analyzes the Winter factors in turn.

I. Likelihood of Success on the Merits

Plaintiffs bring an as-applied challenge to Oregon's initiative requirements. They argue that the effect of COVID-19 and the Governor's Executive Orders in response to slowing the spread of the virus has created a situation in which they cannot comply with the deadlines and requirements of the initiative process. The public forums at which they reasonably anticipated gathering signatures have for the most part disappeared; in part through the safety measures taken by the Governor and in part from the very real fear people have of the pandemic around them. As a result, t...