Note — This post arrives (along with many more) thanks to Zach Young, a Cincinnati native and rising 2L at Stanford Law School, where he studies as a Knight-Hennessy Scholar. He will be contributing to the Sixth Circuit Appellate Blog regularly this summer.
Election and pandemic—2020’s strange bedfellows—continue to keep judicial chambers busy.
Another virus-adjacent development occurred on July 2 when the Sixth Circuit declined to stay a court-ordered injunction. That injunction, issued by Judge Matthew Leitman (EDMI), had suspended Michigan’s signature requirement for ballot initiatives. Without a stay from the Sixth Circuit, the ball is now in Governor Whitmer’s court to formulate a less burdensome pathway onto the November ballot.
The case was brought by a group of activists, led by 25-year-old Amani Sawari’s eponymous Sawari Media, who support a criminal-justice ballot initiative. They failed to meet Michigan’s May 26 deadline to collect the minimum 347,047 signatures required for a referendum. Hence, they took state leaders to court, arguing that the signature threshold posed an undue burden to First Amendment associational rights in light of Michigan’s months-long stay-at-home order.
Judge Leitman agreed, enjoining Gov. Whitmer’s administration—namely her, Secretary of State Jocelyn Benson, and elections chief Jonathan Brater—from enforcing the signature requirement. The district court also rejected the state leaders’ proposed remedy of a 40-day extension. State leaders appealed for an emergency stay.
Now, the Sixth Circuit has answered that the injunction will stand–at least for now.
The legal dispute turns on the Supreme Court’s Anderson-Burdick framework for evaluating ballot-access laws under the First and Fourteenth Amendments. Certainly, the Court has reasoned, state law limits are needed to protect orderly elections from devolving into a polling-place free-for-all. Yet in Anderson v. Celebrezze (1983), the Court held that these limits had gone too far in the case of an early Ohio filing deadline for independent candidates seeking the U.S. presidency. Nine years later, in Burdick v. Takushi (1992), the Court upheld a Hawaii ban on write-in voting.
The Anderson-Burdick precedent distinguished between electoral laws that “severely” burden First Amendment rights and those whose burdens are more modest. A holding of the former triggers strict scrutiny, almost always leading courts to strike down the law. A holding of the latter, on the other hand, prompts a state-favored balancing test, in which the character and magnitude of First Amendment injuries are weighed against state regulatory interests.
Sawari Media succeeded in persuading the Sixth Circuit (at least at the emergency-stay stage) that obtaining nearly 350,000 signatures represents a “severe” burden in the context of government-mandated lockdowns. The organization achieved this outcome despite the Sixth Circuit’s tack in Thompson v. DeWine, a May 26 case where the court sided with Ohio’s governor in upholding signature requirements. (The Ohio plaintiffs then sought an emergency stay at the Supreme Court, which denied certiorari on June 25.)
The SawariMedia court distinguished the Thompson ruling, noting that Michigan imposed a firmer and longer-lasting lockdown, without Ohio-style exemptions for First Amendment activity.
More ink may yet be spilled on the case. Gov. Whitmer’s administration has requested en banc review of whether Anderson-Burdick ought to apply to signature requirements for ballot initiatives. The court’s July 2 decision gave no leaning as to how it might rule on that question, which remains pending.