Sixth Circuit: Covid-19 Restrictions Don’t Affect Ballot-Access Requirements

Marcia McCoy drops her ballot into a box outside the Cuyahoga County Board of Elections in Cleveland, Ohio, on April 28, as the first major test of an almost completely vote-by-mail election during a pandemic unfolded. (AP Photo/Tony Dejak)

CINCINNATI (CN) — Candidates petitioning for placement on the November 2020 ballot in Ohio must collect signatures in person, regardless of Covid-19 restrictions, the Sixth Circuit ruled Monday.

Despite statewide orders from Republican Governor Mike DeWine imposing restrictions on in-person gatherings, the appeals court ruled the physical signature requirements of Ohio’s ballot-access laws have not become “unconstitutionally burdensome.”

The decision echoes a ruling handed down earlier this year in Thompson v. DeWine, a Sixth Circuit case dealing with the same restrictions as they related to those seeking to place local initiatives on the 2020 ballot.

Howard Hawkins and Dario Hunter, two independent candidates who hope to run for president in the 2020 election, filed the current suit in May against DeWine, Ohio Secretary of State Frank LaRose and former Director of the Ohio Department of Health Amy Acton.

Along with members of the Green Party hoping to establish themselves as a minority party in the Buckeye State, Hawkins and Hunter claim the Covid-19 pandemic has upended their ability to collect physical signatures.

Ohio election laws require an ink signature next to a voter’s name, as well as a witness signature provided by the petition circulator.

Senior U.S. District Judge James Graham, an appointee of Ronald Reagan, dismissed the suit at the end of June, and the Sixth Circuit heard arguments for potentially reviving it on July 27.

Graham told the candidates in his dismissal that the Covid-19 restrictions, all of which were passed with First Amendment protected speech exceptions, “impose no significant burden on plaintiffs’ signature-gathering rights.”

The candidates argued Governor DeWine’s April 30 “stay-at-home” order is unconstitutionally vague because of social-distancing requirements that “overshadowed” the free speech exemption baked into the order, but Graham was unconvinced.

“The First Amendment exemption,” he said, “is not confined to circulators. It applies to all individuals, electors included. If electors should wish to sign a petition, they may. The state is not prohibiting the First Amendment speech of electors.”

A three-judge panel of the federal appeals court agreed.

“We recently answered this precise question as applied to plaintiffs seeking to place local initiatives and constitutional amendments on the November ballot,” Chief U.S. Circuit Judge R. Guy Cole Jr. wrote in a terse, six-page opinion Monday. “We determined that Ohio’s ballot-access laws — in conjunction with the state’s Covid-19 orders — placed only an ‘intermediate’ burden on the plaintiffs’ access to the ballot.”

Citing that earlier ruling, Cole added, “Plaintiffs’ attempt to distinguish Thompson is unavailing. They argue that the Thompson court ‘did not consider’ whether the exceptions protecting First Amendment activity in the March 12, 17, and 22 orders are unconstitutionally vague. But the orders explicitly exempt First Amendment protected speech, and it is well-established that the act of collecting signatures for ballot access falls under that ambit.

“There is therefore no reason for us to depart from Thompson’s conclusion that the burden imposed on plaintiffs by Ohio’s ballot-access statutes — in light of the state’s response to the pandemic — is an intermediate one.”

Cole went on to say that Ohio’s justifications for ink signatures — including preventing “overcrowded ballots” and decreasing the odds of fraudulent signatures — pass constitutional muster and are legitimate, which the independent candidates did not dispute.

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