Thompson v. DeWine

976 F.3d 610

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

v.Richard Michael DEWINE, in his capacity as the Governor of Ohio; Lance Himes, in his official capacity as the Interim Director of the Ohio Department of Health; Frank LaRose, in his official capacity as Ohio Secretary of State, Defendants-Appellants.

No. 20-3526

United States Court of Appeals, Sixth Circuit.

Decided and Filed: September 16, 2020^*

ON BRIEF: Benjamin M. Flowers, Michael J. Hendershot, Stephen P. Carney, Shams H. Hirji, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. Mark R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus, Ohio, Oliver B. Hall, CENTER FOR COMPETITIVE DEMOCRACY, Washington, D.C., Jeffrey T. Green, SIDLEY AUSTIN LLP, Washington, D.C., Naomi A. Igra, Stephen Chang, Jennifer H. Lee, Tyler Wolfe, SIDLEY AUSTIN LLP, San Francisco, California, for Plaintiffs-Appellees. Anne Marie Sferra, Christopher N. Slagle, Bryan M. Smeenk, BRICKER & ECKLER LLP, Columbus, Ohio, Paul A. Zevnik, MORGAN, LEWIS & BOCKIUS LLP, Washington, D.C., for Amici Curiae.

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

PER CURIAM.

The COVID-19 pandemic has upended life in many ways. In response to the unfolding public health crisis, states across the country imposed various orders in hopes of containing the virus. Ohio, for its part, asked its citizens to stay at home and restricted the size of gatherings.

This case, which we've seen before, involves the intersection of COVID-19, the state's responses to that pandemic, and some of Ohio's conditions that must be met before a ballot initiative can get on the ballot for Election Day. See Thompson v. DeWine , 959 F.3d 804, 806 (6th Cir.) (per curiam), mot. to vacate stay denied , ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, No. 19A1054, 2020 WL 3456705 (2020).

Plaintiffs say that Ohio's ballot initiative conditions are unconstitutional as applied during this pandemic and request that the federal courts relax them, at least for the time being. Plaintiffs’ challenge is a curious one. There is no question that Ohio's ballot initiative conditions are, standing alone, constitutional, there is no question that Ohio is not responsible for COVID-19, and Plaintiffs are not challenging Ohio's restrictions on public gatherings and the like, which Ohio imposed to address the pandemic—so we assume those are constitutional as well. And yet, Plaintiffs contend that when you put all of this together, in effect, two constitutional rights plus one outside catalyst make one constitutional wrong. The district court agreed and granted a preliminary injunction. We stayed that order because we disagreed. And now, because we still disagree, we reverse the district court's grant of a preliminary injunction.

I.

To get an initiative on a municipal ballot, Ohio requires the ballot's proponents to gather signatures totaling at least ten percent of the number of electors who voted for governor in the municipality's previous election. Ohio Rev. Code Ann. § 731.28. The signatures must be original and affixed in ink, and the petition's circulator must witness them. Id. § 3501.38. And the initiative's proponents must submit these signatures to the Ohio Secretary of State at least 110 days before the election.¹ Id. § 731.28.

Plaintiffs here are three Ohioans hoping to get initiatives on local ballots to decriminalize marijuana.² They argue that Ohio's ballot initiative requirements, as applied during the COVID-19 pandemic and given Ohio's stay-at-home orders and other pandemic restrictions, violate the First and Fourteenth Amendments. So they asked the district court to enjoin Ohio from enforcing the ballot initiative requirements. The district court agreed, at least in part. It granted plaintiffs’ request for a preliminary injunction, enjoining Ohio from enforcing some of its ballot access requirements. And it ordered Ohio to accept electronically signed and witnessed petitions, extended the deadline for petition submission, and told Ohio to come up with a system that would "reduce the burden on ballot access."³ Thompson v. DeWine , 461 F.Supp.3d 712, No. 2:20-CV-2129 (S.D. Ohio 2020) (quotation omitted).

Ohio asked us to stay the district court's injunction while its appeal was pending. We did. Thompson , 959 F.3d at 813. We reasoned that Ohio's compelling interests in preventing fraud and ensuring a fair and orderly signature verification process outweighed the intermediate burden the requirements imposed on plaintiffs’ First and Fourteenth Amendment rights. Id. at 811. Now, we review whether a preliminary injunction was warranted in the first place. For reasons we'll discuss below, we don't think it was. We thus reverse the district court's grant of a preliminary injunction.

II.

This case comes to us on appeal from an order granting an injunction. So we have jurisdiction under 28 U.S.C. § 1292. We review a district court's grant of a preliminary injunction for abuse of discretion, "subjecting factual findings to clear-error review and examining legal conclusions de novo." Daunt v. Benson , 956 F.3d 396, 406 (6th Cir. 2020).

"A plaintiff 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. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). When we evaluate 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) (quoting Jones v. Caruso, 569 F.3d 258, 265 (6th Cir. 2009) ). So we start there.

A.

If this all sounds familiar, that's because it is. In staying the district court's preliminary injunction, we went through the factors above and concluded that Plaintiffs aren't likely to succeed on the merits. Thompson , 959 F.3d at 811. We still think so.

The First Amendment doesn't guarantee the right to an initiative. Taxpayers United for Assessment Cuts v. Austin , 994 F.2d 291, 295 (6th Cir. 1993). But once the people of a state, in their sovereign authority, decide to allow initiatives, "the state may not place restrictions on the exercise of the initiative that unduly burden First Amendment rights." Id.

"[W]e evaluate First Amendment challenges to nondiscriminatory, content-neutral ballot initiative requirements under the Anderson- Burdick framework."⁴ Thompson , 959 F.3d at 808 ; see Burdick v. Takushi , 504 U.S. 428, 434, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) ; Anderson v. Celebrezze , 460 U.S. 780, 788, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983). Under that framework, the level of scrutiny we apply to "state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights." Burdick , 504 U.S. at 434, 112 S.Ct. 2059. When the burden is severe, the state must narrowly draw the regulation to serve an "interest of compelling importance." Id. (quotation omitted). But when the law imposes "reasonable, nondiscriminatory restrictions," we subject it to rational-basis review. Id. (quotation omitted).

There's one more layer to Anderson - Burdick . A challenged law imposes an intermediate burden when the burden is somewhere between severe on the one hand and reasonable and nondiscriminatory on the other. Kishore v. Whitmer , 972 F.3d 745, 748–49, No. 20-1661 (6th Cir. 2020). When the burden is intermediate, we weigh it against "the precise interests put forward by the State as justifications for the burden imposed by its rule." Anderson, 460 U.S. at 789, 103 S.Ct. 1564 ; see also Thompson , 959 F.3d at 808. In doing so, we consider "the extent to which those interests make it necessary to burden the plaintiff's rights." Thompson , 959 F.3d at 808 (quoting Burdick , 504 U.S. at 434, 112 S.Ct. 2059 ). It's this level of scrutiny that we apply to Ohio's laws here.⁵

1. The Burden

We see no reason to depart from our previous holding that Ohio's ballot-access restrictions impose, at most, only an intermediate burden on plaintiffs’ First Amendment rights, even during COVID-19.⁶ Id. at 810–811. If anything, the interim between our stay order and now has reinforced our holding. The federal circuit tide has turned against Plaintiffs. The Eighth Circuit, for instance, held that Arkansas's "in-person signature requirement, while implicating the First Amendment, imposes less-than-severe burdens on the plaintiffs’ rights and survives the applicable lesser scrutiny." Miller v. Thurston , 967 F.3d 727, 741 (8th Cir. 2020) ; see also Libertarian Party of Pa. v. Governor of Pa. , 813 F. App'x 834, 835 (3d Cir. 2020) (mem.) (holding that Pennsylvania's ballot-access law, which includes a signature requirement, "survives intermediate scrutiny because it serves the Commonwealth's legitimate and sufficiently important interests in ‘avoiding ballot clustering, ensuring viable candidates, and the orderly and efficient administration of elections.’ "). And in Morgan v. White , the Seventh Circuit said that if Illinois wanted to just skip referenda for the year, "there is no federal problem": "Illinois may decide for itself whether a pandemic is a good time to be soliciting signatures on the streets in order to add referenda to a ballot." 964 F.3d 649, 652 (7th Cir. 2020).

And in addition, the Supreme Court stayed two injunctions against state enforcement of ballot access restrictions. Little v. Reclaim Idaho , ––– U.S. ––––, 140 S. Ct. 2616, ––– L.Ed.2d ––––, No. 20A18, 2020 WL 4360897 (2020) ; Clarno v. People Not Politicians , ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, No. 20A21, 2020 WL 4589742 (2020). And the Court left our previous ruling in place. Thompson , ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2020 WL 3456705 (2020).

Even without those developments, P...