Sixth Circuit Rejects Claim Covid-19 Requires Easing of Ballot Initiative Rules

Two constitutional rights plus one outside catalyst do not equal one constitutional wrong.

|The Volokh Conspiracy |

Today the U.S. Court of Appeals for the Sixth Circuit rejected a challenge to Ohio's laws governing the placement of initiatives on the ballot. The plaintiffs argued that the relevant ballot access provisions imposed an unconstitutional burden in light of the Covid-19 pandemic. The panel, consisting of Judges Sutton, McKeague and Nalbandian, disagreed.

The court's per curiam opinion in Thompson v. Dewine summarizes the case:

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,—S. Ct. —-, 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

From later in the opinion:

we note that the Federal Constitution gives states, not federal courts, "the ability to choose among many permissible options when designing elections." Id. We don't "lightly tamper" with that authority. Id. Instead, the power to adapt or modify state law to changing conditions—especially during a pandemic—rests with state officials and the citizens of the state.

So while federal courts can sometimes enjoin unconstitutional state laws, we can't engage in "a plenary re-writing of the State's ballot-access provisions." Esshaki, 813 F. App'x at 172. Instead, "[t]he Constitution grants States broad power to prescribe the 'Times, Places and Manner of holding Elections for Senators and Representatives,' which power is matched by state control over the election process for state offices." Clingman v. Beaver, 544 U.S. 581, 586 (2005) (citations omitted).

We don't have the power to tell states how they should run their elections. If we find a state ballot-access requirement unconstitutional, we can enjoin its enforcement. See, e.g., Esshaki, 813 F. App'x at 172. But otherwise, "state and local authorities have primary responsibility for curing constitutional violations." Hutto v. Finney, 437 U.S. 678, 687 n.9 (1978); Esshaki, 813 F. App'x at 172 (holding that it "was not justified" for a district court to extend the deadline to file signed petitions and order the state to accept electronic signatures).

So when the district court here ordered Ohio to accept electronically signed and witnessed petitions and extended the deadline for submitting petitions, it overstepped its bounds. It effectively rewrote Ohio's constitution and statutes and "intrude[d] into the proper sphere of the States." Missouri v. Jenkins, 515 U.S. 70, 131 (1995) (Thomas, J., concurring); see Thompson, 959 F.3d at 812 ("[T]he district court exceeded its authority by rewriting Ohio law with its injunction."). Federal courts don't have this authority.

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  1. “we note that the Federal Constitution gives states, not federal courts, “the ability to choose among many permissible options when designing elections.” Id. We don’t “lightly tamper” with that authority.”

    Except when it’s Republicans asking us to. Bush v. Gore.

    1. LOL

      So so mad still after 20 years.

      1. I walk past the World Trade Center in my daily life, so you’re correct, still mad. And it’s not a laughing matter.

        1. Get help then.

          Gore would not have prevented 9/11.

          1. You don’t know that. I’m not saying you’re definitely wrong, but Gore would have hired a different national security team and they may have discovered it in time to prevent it. It’s hard to prove or disprove an historical counter factual.

            1. How would a different Secy of State, NSA, Defense Secy., CIA director etc. discovered a criminal plot?

              They aren’t law enforcement and don’t investigate. They just run departments and advise the president.

              No presidential policy or focus could have possibly made a difference.

              1. Gore would not have dismantled the terrorism unit which he and Clinton put into place.

                He would not have blown off daily security briefings, like the one that said “bin Laden determined to strike in US”.

                He would not have sacked vital Arabic interpreters because they were gay.

                1. You sure about that? Or that it would have made a difference even if he did/didn’t do all 3?

                  Look, in some cases, historically speaking, we can say if Pickett’s charge succeeded, the South probably would have still lost the war. Even the remotest fathom of intellectual honesty means it’s pretty tough, if not impossible, to say Gore in office would have made a single difference.

                  The terrorists seemed pretty determined, and the 9/11 commission report had plenty of blame to spread around. And shouldn’t your boy Bill Clinton done more, if you’re going to make these alternate timeline scenarios.

                  1. It is ridiculous to blame Clinton for something that happened eight months after he left office, for an Administration whose sole motivation seemed to be to undo everything he did.

                    The 9/11 commission was a whitewash. Clinton gave them all the documents they asked for, and willingly testified under oath, while Bush/Cheney fought it tooth and nail, and would only testify for half an hour, not under oath, and with Cheney next to Bush to hold his hand.

                2. None of those things would have made a single bit of difference.

                  1. “Tomorrow is zero hour.”

                    An email intercepted on Sept. 10, 2001, from a known al Qaeda operative.

                    In Arabic, and not translated until two weeks later because the translator had been sacked because he was gay.

          2. Gore would not have started an Iraq war that killed more Americans than 9/11.

            1. Go back to reading your Jack Chick comics.

              1. What are you arguing? That Gore would have started an Iraq war, or that the Iraq war that Bush started did not kill more Americans than 9/11? Or is this just a pathetically misaimed insult?

                I don’t think it’s certain a Gore presidency would have prevented 9/11, but the odds would have been better and certainly other bad things that originated in the Bush administration would not have happened.

        2. Are you mad at Saudi Arabia?

    2. SCOTUS ruled that Florida had to follow Florida law, count votes as prescribed by Florida law, and certify a result based upon such count, again, per Florida law.
      A statewide vote for determining electors required that if a recount were to occur, then such recount must be every county, and not just a few counties selectively.
      In the end, no matter how the many media commissioned ballot assessments were performed, Bush still had the majority. Electors to Bush, presidency to Bush.
      Gore did not concede because he changed his mind about being president, he conceded because he had not won the election.

      1. You should change your nom de plume to Gaslight.

      2. In the end, no matter how the many media commissioned ballot assessments were performed, Bush still had the majority. Electors to Bush, presidency to Bush.

        One rag counted 6 or 7 different ways, and Bush won all but 2. In any case, you’re not allowed to change the counting rules after an election to make your guy win, no matter how much you look sternly into the camera and solemnly declare “All votes…should be counted.”

        Gore should have won, because of the Pat Buchanan issue, where a (Democrat-controlled) county had printed hole punch ballots and wayyy to many statistically voted for Pat, mis-punching a confusing ballot. But “changing that” or even a re-election is a massive abuse by the powerful.

        1. I don’t think the so-called “butterfly ballot” was a conspiracy, just poor design.

          For those that didn’t live through the recount, there was a punch hole ballot that had the candidates names listed in an approved order, but the punch-holes were arranged such a way that, if you didn’t have your reading glasses, or you were not paying attention, etc. one could accidentally vote for Buchanan over Gore, who were right next to each other. I am sure an internet search will reveal images.

          The county in question was full of old Jews and such who were not, let’s put it this way, normal Buchanan voters. Some statistical wonks were able to show that by a statistically significant amount, compared to exactly what I forgot, that the votes for Buchanan rather than Gore.

          Still, it’s the votes that count. If the statistics or polls did, then Hillary would be cackling her way to replacing RBG right about now.

        2. Gore should also have won because far more than enough votes for Gore were discarded because the voters both voted for him and wrote him in. No good, said Florida, and threw those away. Not that hard to tell who those voters wanted, though, was it?

          1. Exactly right.

            When these “overbites” are included, Gore won, by any standard.

            1. I’d like to see a source on that, because where I work in elections, if a voter had written in Micky Mouse, but has also filled in the circle for Mikey Mouse, it’s counted as a vote for Micky Mouse.

                1. Weren’t the overvotes tossed in accordance with FL law? I believe the CJ of the Florida SC addressed that question specifically in his opinion.

                  It is 2020. The election has been over for 20 years now.


                    It is left up to the various counties. In the counties where Gore was seeking a recount, there were a lot more “overvotes” for Gore than for Bush.

                    1. Maybe. But the problem was not really write in voting, but double hole punching, where it appeared to some that a sharp object had been punched through stacks of ballots for Gore, negating ballots that had previously had Bush punched, but not those that had had Gore punched.

      3. It is not for a federal court to instruct a state Supreme Court on how to construe that state’s law. You’ve heard of federalism haven’t you?

        1. You’ve heard of the 14th amendment, haven’t you?

          1. Taylor v Beckham, 1900.

            This is why Nixon didn’t contest the 1960 results in Texas and Illinois. He knew federal courts didn’t have jurisdiction.

  2. Hopefully the circuit courts covering PA, NC, WI and MN will overrule those judges who made up new election rules at the last minute that favored one party.

    1. By “favored one party” you mean “let votes be counted.”

      1. No, he means changed the rules to let the Dems submit extra votes if they are losing.

        1. Bob,

          It’s the GOP, not the Democrats, who are trying to screw up the election.

          That’s the plain truth. If you have evidence otherwise let’ see it, otherwise stop repeating whatever comes out of Trump’s mouth.

          1. “That’s the plain truth.”

            LOL No its not.

            Stop spewing Democratic talking points.

            1. My thought on this, is that the only hope we have to avoid 2000 again, is that Trump wins by a large enough margin (2-3%), that it’s too much of a political game to push Biden over the top. The mail in votes coming in, you see, have to be roughly the same vote % for Biden or Trump. If they all come in Biden, or 80% Biden, it’s to obvious and it can’t be done.

              1. The mail in votes coming in, you see, have to be roughly the same vote % for Biden or Trump.

                mad_kalak, that really looks like intentional disinformation. Applications for mail-in ballots have come lopsidedly from registered Democrats over registered Republicans. Trump himself has been encouraging his voters to vote in person, not by mail in. Do you have some reason, other than to encourage election disruption, to say what you said?

                1. No, it’s not. I said “roughly”. It’s basically how they “call” a state or district for one candidate over another. For a hypothetical example: 80% or more of a state’s counties have reported their totals. The remaining 20%, even if the votes went entirely to candidate X, that would not be enough to change the lead candidate Y has over candidate X in the total vote count.

                  And since it’s statistically improbable, outside of a few counties as this has happened (likely due to fraud) for ALL the votes to come in for candidate X over Y, we can safely “call” the state for candidate Y.

                  If the mail in ballots, trickling in over the course of weeks, from across the whole state all show Biden over Trump, or a statistically skewed ratio for Biden over Trump, then we know something fishy is going on. Likewise for Trump over Biden.

                  I think we may dodge the bullet on this mess, due to early voting. The lines are out the door at my local polling place near where I work. Both parties early vote at roughly the same rate.

                  1. We knew something fishy was going on, but Franken still became senator, and the Democrats continue to block any investigation.

        2. Submitting extra votes implies they weren’t valid votes, and that’s not the case. Those rulings extended the time for people to vote, and made it easier for people to vote. The issue was making it easier for people who were entitled to vote to do so, not creating fraudulent votes.

          1. They remove safeguards. Fraudulent votes are encouraged.

            1. How does extending voting hours remove safeguards? Or encourage fraudulent voting?

              1. Because it is selective. There is a state mandated cutoff, that everyone knows in advance. Everyone knows when tey have to have their constituents to the polls. But if late voting is selectively allowed the losing side can look at how it is doing everywhere else, and if it would lose, then go door to door driving enough of its constituents to the polls to overcome the edge that the other party is being reported to have. The key is that only selective precincts are allowed to utilize state or district wide vote totals to go back and pick up more votes.

                1. All right, then make it universal rather than selective. All precincts get extra hours.

  3. You need X number of signatures on your petition to get your initiative on the ballot, but you must stay at home and can’t contact other people.

    Yep. No undue burden there.

    1. More precisely, “not enough of a burden to make it the Court’s job to fix instead of the Legislature’s.”

    2. And just how long has Ohio’s legislature done nothing about it?

      It is not a federal court’s job to take the place of the Ohio legislature. If the Ohio legislature passed an unconstitutional law, that’s prime meat for a federal court. But if the Ohio legislature does nothing and leaves the existing presumptively-constitutional process in place, that not unconstitutional.

  4. Here’s a broader question: Is there a constitutional right to even have ballot initiatives? I don’t think there is. So I’m not sure I see a right to make it easier to do something there’s no right to in the first place.

    1. “Is there a constitutional right to even have ballot initiatives”

      Almost half of states don’t have them, so I suspect there isn’t such a right :-).

  5. We don’t have the power to tell states how they should run their elections.

    Isn’t this the essence of federalism?

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