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.
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