Today the Sixth Circuit issued a published order in Thompson v. DeWine, the First Amendment voting rights case that we blogged about on Friday. The per curiam order by a three-judge panel granted the Ohio Attorney General’s request for a stay pending appeal of the district court’s injunction (and denied as moot the state’s request for an administrative stay).
Focusing principally on the likelihood of success on the merits, the court weighed the burdens imposed by Ohio’s constitutional requirements for ballot initiatives against the state interests those requirements are meant to serve, taking into consideration the extent to which those interests make it necessary to burden the plaintiffs’ rights (the Anderson-Burdick framework). The court concluded that Ohio’s requirements—including that a ballot initiative’s petitioners must sign in ink, not electronically—passed muster under that standard, notwithstanding the COVID-19 pandemic. It distinguished its unpublished order in Esshaki v. Whitmer, 2020 U.S. App. LEXIS 14376 (6th Cir. May 5, 2020), from earlier this month on the grounds that Ohio’s stay-at-home order specifically exempted First Amendment-protected activity and that Ohio was beginning to lift its stay-at-home order, several weeks before the deadline for submission of a ballot-initiative petition.
Several aspects of the decision are noteworthy, beyond the substance. First, the court acted extremely quickly, issuing a twelve-page order staying the district court’s injunction just five days after the initiation of the appeal. Second, the order was issued by a three-judge panel, notwithstanding the state’s request for initial review en banc. Third, the panel decided to publish the per curiam order, unlike the unpublished order issued earlier this month in Esshaki. Finally, the last section of today’s per curiam order consists of five paragraphs that warn district courts not to “rewrite” state election procedures. Our post from Friday flagging this litigation said that it was “part of a next wave of pandemic litigation worth watching,” and while that no doubt remains true, this panel, at least, would appear intent on flattening the curve of that wave.