Gaëtan Gerville-Réache, Warner Norcross + Judd.

COVID-19 has tested the bounds of political power and constitutional law like nothing else, and that trial is on full display in the U.S. Court of Appeals for the Sixth Circuit. The court recently entered two contrasting state-election-law decisions in Esshaki v. Whitmer and Thompson v. DeWine, each addressing both the state's power to burden access to the ballots in the name of public health and safety and the federal judiciary's power to intervene.

In Esshaki, the court agreed with the federal district court's holding that the Michigan governor's emergency stay-at-home order unduly restricted ballot access in violation of the First Amendment. In DeWine, the court held that Ohio's electoral regulations, in the context of the COVID-19 pandemic, were not unduly restrictive. In both cases, however, the Sixth Circuit disagreed with the district courts' attempt to refashion the regulations, holding that was the states' job, not the federal judiciary's.

The plaintiffs in Esshaki were potential political candidates seeking to place their names on Michigan ballots for certain state and national offices in the August primaries. Existing election laws required them to obtain a certain number of valid signatures by April 21. On March 23, Michigan's governor issued a "stay-at-home" order requiring individuals in the state to stay home and generally suspending "in-person activities that are not necessary to sustain or protect life." This provision prevented the potential candidates from obtaining the signatures they needed to satisfy the ballot access requirements. The stay-at-home order included a number of exceptions, but none of them permitted potential candidates to collect signatures.

The plaintiffs in DeWine sought to amend Ohio's constitution and enact laws and municipal ordinances by initiative and referendum. Here again, the existing election laws required them to obtain a certain number of signatures, which must "be written in ink" and witnessed by the circulator of the petition, to place their proposals on the ballot. The plaintiffs did not directly challenge the Ohio governor's emergency order "restricting Ohioans' daily lives to slow the spread of a highly infectious disease." Rather, they claimed that COVID-19 and the governor's stay-at-home orders "made it impossibly difficult to meet the state's preexisting requirements for initiatives to secure a place on the November ballot—violating their First Amendment rights." So, the question was not whether Ohio's stay-at-home orders unduly restricted ballot access, but "whether the COVID-19 pandemic and Ohio's stay-at-home orders increased the burden that Ohio's ballot-initiative regulations placed on plaintiffs' First Amendment rights."

Applying the Anderson-Burdick test, the U.S. District Court for the Eastern District of Michigan determined the state's strict enforcement of the ballot-access provisions combined with the stay-at-home orders imposed a severe burden on the plaintiffs' ballot access, such that strict scrutiny applied. Assuming the state's interest was compelling, the district court held in Esshaki that the ballot-access provisions were not narrowly tailored to the present circumstances and were unconstitutional as applied. The U.S. District Court for the Southern District of Ohio similarly ruled against Ohio's ballot-initiative requirements in DeWine, enjoining enforcement of the ink-signature requirement, the witness requirement and the submission deadlines.

On review, the U.S. Court of Appeals for the Sixth Circuit agreed with the core of the Eastern District of Michigan's order in Esshaki, but completely disagreed with the Southern District of Ohio's ruling in DeWine. Michigan made no exceptions to the ballot-access provisions in light of the COVID-19 pandemic or stay home order, which remained in place through the deadline for petition submission.

Ohio's stay-at-home orders, on the other hand, exempted conduct protected by the First Amendment from their restrictions—they did not apply to gatherings for First Amendment protected speech or to petition or referendum circulators. Those orders did not increase the burdens on ballot access. Additionally, Ohio's stay-at-home orders were rescinded five weeks before the deadline for petition submission. Consequently, the Sixth Circuit held the preexisting regulations placed only an intermediate burden on ballot access that was outweighed by the state's compelling interests in preventing fraud, ensuring sufficient time to verify signatures and providing initiative proponents adequate time to challenge any adverse decision in court.

In both cases, the Sixth Circuit roundly criticized the district courts for rewriting election laws with their injunctions. The Eastern District of Michigan had ordered the state to reduce the number of signatures required by 50%, extend the signature-filing deadline to May 8 and allow signatures to be collected by email. The Southern District of Ohio ordered similar adjustments, requiring Ohio to extend its filing deadline to July 31 and accept electronically signed petitions.

In a split decision, the Esshaki panel stayed that part of the Eastern District of Michigan's order directing the state on how to adjust its election laws. It instructed Michigan to select its own adjustments to its election laws to render them constitutional and look to the district court's proposed adjustments as an example of what would satisfy the constitutional standard. "[T]he point is not that the [district court's] adjustments were right or wrong (or too much or too little), but that the federal court cannot impose such specific manner-of-election requirements on a State without breaching the express delegation of authority in the Constitution."

After deciding to stay the Southern District of Ohio's order, the DeWine panel went out of its way to chastise the Southern District of Ohio for not heeding its order in Esshaki, which had already rebuked the Eastern District of Michigan for creating new law, rather than leaving those legislative choices to the state.

Only Judge Jane Stranch dissented from this view. Pointing to the Supreme Court's recent decision in Republican National Committee v. Democratic National Committee, 140 S. Ct. 1205 (2020), she contended the question is only whether the evidence supports the challenged signature requirement in the district court's injunction and whether it improperly alters "rules on the eve of an election." She did not believe the district court lacked authority to reduce the signature threshold, which she pointed out was the only aspect of the injunction that the state had asked the Sixth Circuit to stay. "We should not .,, stay the district court's remedy based on the erroneous premise that the court lacked authority to reduce the signature threshold," she wrote.

Stranch's dissent raises an interesting question about how far a district court can go in fashioning a remedy and whether such limitations are constitutional or merely prudential in nature. The U.S. Supreme Court's ruling certainly suggests election rules can be changed under certain circumstances. So, there is something to Stranch's dissent.

But neither of the Sixth Circuit cases she cites actually addresses an order like the Eastern District of Michigan's, which purported to change election law state-wide. The orders in those prior cases either imposed a specific remedy for a specific plaintiff—requiring a candidate's name be placed on the ballot if certain conditions were met—or imposed obligations on the state, such as purchasing voting devices that assured full privacy to blind voters. It would also be a stretch to say the Supreme Court has directly addressed this issue in RNC v. DNC.

The Esshaki majority did not respond to Stranch's dissent. If it had, it would probably have said the real issue is not whether district courts can order affirmative relief—aa Stranch framed it—but whether it can or should dictate a particular rule change when any number of other adjustments are potentially available to the state to bring its election law into constitutional compliance. As the DeWine panel put it, "the broader point is that the federal Constitution provides states—federal judges—the ability to choose among many permissible options when designing elections."

The practical problem with that position is that a state could adjust its rules over and over again and still not come to a constitutionally acceptable solution if it has no boundaries established by the court. When a problematic ballot access provision must be struck down, leaving an election-law vacuum for the state to fill may not be an adequate or appropriate remedy when the days to an election are counting down.

Perhaps there is an intermediate position that should be considered. The court could order the minimum adjustments it deems necessary, with an opportunity for revision of its order if the state proposes a different constitutionally adequate solution. his would preserve the state's prerogative to choose among several available constitutional ballot-access provisions, while also still preserving the court's power to provide adequate and equitable relief.

Gaëtan Gerville-Réache is a partner in the law firm Warner Norcross + Judd who concentrates his practice in appellate law.