Sinner v. Jaeger

467 F.Supp.3d 774

Elizabeth Jane SINNER, Whitney Oxendahl, Carol Sawicki, Lois Altenburg, and North Dakota Voters First, Plaintiffs,

v.Alvin JAEGER, in his official capacity as Secretary of State of North Dakota, Defendant.

Case No. 3:20-cv-00076

United States District Court, D. North Dakota, Eastern Division.

Signed June 15, 2020

Timothy W. Billion, Robins Kaplan LLP, Sioux Falls, SD, Timothy Q. Purdon, Robins Kaplan LLP, Bismarck, ND, Annabelle Harless, Pro Hac Vice, Campaign Legal Center, Chicago, IL, Mark Gaber, Robert Weiner, Pro Hac Vice, Simone Tyler Leeper, 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.

David R. Phillips, ND Office of the Attorney General, Matthew A. Sagsveen, Attorney General's Office, Bismarck, ND, for Defendant.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

Peter D. Welte, Chief Judge

In 1914, the people of North Dakota attained direct power to amend their state constitution. Doc. No. 17-2. Prerequisite to placing an amendment before the electorate, that constitution has mandated—for 106 years running—the collection of physical signatures from a threshold contingent of eligible voters. See id. Stressing the impact of the COVID-19 pandemic, the Plaintiffs now seek an exemption from that requirement to secure a spot for a proposed amendment on the November 3, 2020 general election ballot.

Before the Court is the Plaintiffs’ motion for preliminary injunction filed on May 7, 2020. Doc. No. 4. On May 20, 2020, Defendant Alvin Jaeger (the "Secretary") responded in opposition to the motion. Doc. No. 17. The Plaintiffs filed a reply brief on May 22, 2020. On June 4, 2020, the Court held a hearing on the motion. Doc. No. 30. For the reasons below, the motion is denied.

I. BACKGROUND

The Plaintiffs challenge several North Dakota constitutional and statutory provisions pertaining to the initiated amendment process that collectively require: (1) petition signers to provide wet signatures; (2) petition circulators to personally witness each signature; and (3) petition circulators to swear before a notary public that they witnessed the signatures on each petition. See N.D. Const. art. III, § 3 ; N.D. Cent. Code § 16.1-01-09(2). The Plaintiffs also request an order directing the Secretary to accept electronic signatures for their petition. Summaries of the initiated constitutional amendment process and North Dakota's response to the COVID-19 pandemic are followed by an introduction of the parties and the procedural history.

A. Initiated Constitutional Amendment Process

Article III of the North Dakota constitution affirms that "the people reserve the power ... to propose and adopt constitutional amendments by the initiative." N.D. Const. art. 3, § 1 ; accord id. § 9. The "article is self-executing and all of its provisions are mandatory." Id. Additional "[l]aws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair" the people's initiative power. Id.

At a basic level, constitutional amendment proponents must collect signatures from four percent of the state's population at the last federal decennial census. Id. § 9. Currently, that equates to 26,904 signatures. Doc. No. 17-6, p. 5. The deadline to submit petition signatures to the Secretary is "not less than [120] days before the statewide election at which the measure is to be voted upon." N.D. Const. art. 3, § 5. The cutoff for the upcoming general election is July 6, 2020. Doc. No. 17-6, p. 7.

The initiated measure process commences with the formation of a sponsoring committee comprised of at least 25 eligible voters. N.D. Const. art. 3, § 2. The sponsoring committee submits a proposed petition to the Secretary for preliminary "approval as to form." Id. When a proposed petition is received, the Secretary is tasked with preparing "a short and concise statement that fairly represents the measure." N.D. Cent. Code § 16.1-01-09(1). That statement is referred to as the petition title. Id. The Secretary's draft petition title is transmitted to the attorney general for ultimate approval or disapproval. Id. In total, the initial petition review can take no less than five and no more than seven business days. Id. The Secretary then returns the proposed petition to the sponsoring committee with a memorandum outlining corrections, if needed. Doc. No. 17-1, p. 3. Upon submission of a revised petition, the Secretary conveys a letter to the sponsoring committee approving the petition for circulation. Id. Measure proponents may circulate a petition for a maximum of one year following approval. N.D. Cent. Code § 16.1-01-09(7).

For the signature gathering process itself, North Dakota law provides, "Every qualified elector signing a petition shall do so in the presence of the individual circulating the petition." Id. § 16.1-01-09(2). The statute does not permit electronic petition signatures. See id. Guidance for initiated measure proponents issued by the Secretary additionally states that "a petition must remain in the physical possession of [a] qualified North Dakota circulator and all signatures obtained must be witnessed by the same.... Circulators should be near and in control of petitions as they are being signed." Doc. No. 17-6, p. 6. Signatures on an unattended petition are subject to disqualification. See id. After collecting signatures, petition circulators must swear "that the electors who have signed the petition did so in their presence" by executing an affidavit before a notary public.¹ N.D. Const. art. 3, § 3.

Once the requisite number of signatures is obtained, the sponsoring committee submits the petition to the Secretary for final approval. Doc. No. 17-1, p. 4. The Secretary engages in a detailed verification process that includes mailing postcards to random petition signatories and conducting follow-up phone calls. Doc. No. 17-15, pp. 2-4. The signature review process may not exceed 35 days. N.D. Cent. Code § 16.1-01-10. In the past, the Secretary has uncovered fraudulent activity when reviewing physical petition signatures. Doc. No. 17-1, p. 5. Unlawfully signing or circulating an initiative petition is a criminal offense. N.D. Cent. Code § 16.1-01-12. Following review, if the Secretary determines the signature threshold is met, he notifies the sponsoring committee that the measure will appear on the ballot. Doc. No. 17-1, p. 5.

B. Response to the COVID-19 Pandemic

On March 13, 2020, Governor Doug Burgum declared a state of emergency in response to the COVID-19 pandemic. Doc. No. 5-2. A host of executive orders ensued that mandated the closure or restricted operation of businesses, schools, government offices, entertainment venues, and recreational and sports arenas. See Doc. Nos. 5-3, 5-5, 5-7 to 5-10. The Governor also suspended visitation to nursing homes and other long-term care facilities. Doc. No. 5-13. Another order modified voting procedures for the June 9, 2020 primary election by waiving the usual in-person polling place requirement and encouraging counties to shift to an entirely vote-by-mail election. Doc. No. 5-6.

Unlike some states, however, North Dakota never implemented a so-called stay-at-home order. And since May 1, 2020, the Governor has revoked nearly all the previously imposed pandemic-related restrictions.² See Doc. Nos. 5-15, 17-19, 29-1. Replacing the waning legal prohibitions, North Dakota has issued comprehensive guidelines based on risk level that urge citizens and businesses to adopt physical distancing, sanitization, and mask-wearing protocols to prevent the spread of COVID-19. See ND Smart Restart Protocols, N.D. Response, https://ndresponse.gov/covid-19-resources/covid-19-business-and-employer-resources/nd-smart-restart/nd-smart-restart-protocols (last visited June 12, 2020). On May 29, 2020, the Governor downgraded the state's risk level from "moderate" to "low." See id. At that risk level, the recommendations call for restaurants and bars to limit occupancy to 75% of capacity and for large events not to exceed 500 people. Id. at 11-12. Vulnerable individuals are encouraged to "[u]se caution; avoid large crowds when communities have resurgence of cases." Id. at 12. To date, North Dakota has reported 3,016 total confirmed COVID-19 cases and 74 resulting deaths. See Coronavirus Cases, N.D. Dep't of Health, https://www.health.nd.gov/diseases-conditions/coronavirus/north-dakota-coronavirus-cases (last visited June 12, 2020).

C. Introduction of Parties

The Plaintiffs are one organization and four individuals that support placing a proposed constitutional amendment on the November 3, 2020 general election ballot. Among other objectives, the proposed amendment aims to create a nonpartisan legislative redistricting process. Doc. No. 1, ¶ 3. Redistricting occurs once every ten years during the legislative session immediately following a federal census. See id. ¶ 6. North Dakota's next legislative redistricting is slated to take place during the 2021 legislative session. See id. In practical effect, if the Plaintiffs’ proposed amendment is voted on subsequent to the 2020 general election, any change in the redistricting process could not be implemented until after the 2030 census. Id.

North Dakota Voters First ("NDVF") is a 501(c)(4) organization that acts as the proposed amendment's sponsoring committee. Doc. No. 5-1, p. 2. NDVF submitted a proposed petition for initial approval on March 6, 2020. Doc. No. 17-9. The Secretary returned the petition along with the petition title and corrections on March 17, 2020. Doc. No. 17-10. On April 29, 2020, NDVF submitted a revised petition, which the Secretary approved for circulation the next day. Doc. No. 17-11.

From May 26, 2020 to May 30, 2020, NDVF conducted a pilot project for in-person signature collection in Fargo. Doc. No. 28. The pilot project incorporated enhanced precautions for the protection of canvassers and the public. Id....