This article below by Greene Espel attorney Virginia McCalmont first appeared on Law.com on October 22, 2020.

The COVID-19 pandemic has disrupted many aspects of Americans’ lives, but as Election Day draws ever nearer, one issue that is receiving increasing attention is the effect the pandemic could have on voter participation, and thus on candidates and initiatives up and down the 8th Circuit Spotlight ballot. In late July, the Eighth Circuit joined a growing list of courts around the country that have addressed whether the pandemic requires the relaxation of certain election laws to reduce person-to-person contact.

In Miller v. Thurston, 967 F.3d 727 (8th Cir. 2020), voters, canvassers, and the non-profit organization Arkansas Voters First sought to add an initiative petition to the Arkansas ballot that would amend the state’s constitution to require that redistricting be completed by a Citizens’ Redistricting Commission comprised of registered voters who aren’t elected officials or lobbyists. Under Arkansas law, the process for adding an initiative petition to a ballot requires the signatures of at least 10 percent of Arkansas voters. Arkansas law further requires that canvassers attach to the petition signatures they collect an affidavit affirming that various procedural requirements have been met, including that all petition signatures were made in the presence of the canvasser. The canvasser’s affidavit must itself be notarized in person. In Miller v. Thurston, the plaintiffs—including supporters of the initiative with health concerns that make face-to-face communication with canvassers medically inadvisable—challenged these requirements (among others) as unduly burdening their First Amendment rights in the new reality wrought by the COVID-19 pandemic.

At plaintiffs’ request, the district court entered a preliminary injunction suspending Arkansas’s in-person signature and notarization requirements. Miller v. Thurston, — F. Supp. 3d –, 2020 WL 2617312 (May 25, 2020). The district court reasoned that “these requirements directly affect the method or manner of speech engaged in by petitioners and canvassers and restrict the ways in which they can communicate with one another and petition the State.” Id. at *5. As a result, the district court held that Arkansas’s requirements as applied during the COVID-19 pandemic unduly burdened plaintiffs’ First Amendment rights.

The Eighth Circuit reversed. Writing for a panel comprised of Judges Gruender, Wollman, and Grasz, Judge Grasz first addressed a number of procedural challenges, including whether the plaintiffs had standing to challenge Arkansas’s petition requirements and whether the case had been mooted by post-ruling developments. The court concluded that all of these requirements were met. Most notably, the Eighth Circuit rejected the State of Arkansas’ argument that plaintiffs lacked standing because their alleged injuries “are not traceable to any state action.” 967 F.3d at 735. In other words, Arkansas reasoned that plaintiffs’ injuries—the enhanced difficulty of satisfying Arkansas’s in-person petition requirements during a period of widespread social distancing—were attributable to COVID-19, not to Arkansas. But the Eighth Circuit disagreed, noting that the plaintiffs’ alleged injuries were caused by Arkansas’s decision to enforce its in-person petition requirements during a pandemic. As a result, plaintiffs’ allegations sufficiently demonstrated that they had Article III standing.

Turning to the merits, the Eighth Circuit next considered whether the in-person signature and notarization requirements unduly burdened plaintiffs’ First Amendment rights. Unlike the district court, which had decided that both the in-person signature requirement and the in-person notarization requirement implicated plaintiffs’ First Amendment rights, the Eighth Circuit distinguished between the two requirements. More specifically, the Eighth Circuit decided that the requirement that each petition signature be collected in the presence of a canvasser implicated First-Amendment-protected speech, because it “burdens [voters’] ability to express their position on a political matter by signing AVF’s initiative petition.” Id. at 738. In contrast, the Eighth Circuit held that the requirement that a canvasser’s affidavit certifying compliance with Arkansas’s procedural requirements be notarized in person did not implicate First Amendment speech, reasoning that “[d]uring the notarization process, neither the canvasser nor the notary are engaged in any exchange or communication of ideas.” Id. That latter ruling was sufficient to warrant reversal of the district court’s order enjoining the in-person notarization requirement.

But because the Eighth Circuit agreed with the district court that the in-person signature-collection requirement implicates “core political speech,” the court then analyzed the district court’s determination that the in-person signature requirement unduly burdened the plaintiffs’ First Amendment rights. As a preliminary matter, the Eighth Circuit concluded that the district court had erred by deciding that the in-person signature requirement was subject to the strict scrutiny reserved for “severe” burdens on political speech, noting that Arkansas law provides “accommodations specifically for individuals who require assistance signing an initiative petition.” Id. at 739. But even if accommodations weren’t available, the Eighth Circuit reasoned that “relatively simple” workarounds exist for individuals like the plaintiff voters who want to sign the initiative petition but avoid in-person contact with a canvasser, such as signing a “sterilized petition” from behind a window. Id. at 740-41. Given these workarounds, the Eighth Circuit concluded that Arkansas’s petition requirements were subject to a lesser level of scrutiny than that applied by the district court. Moreover, the Eighth Circuit held that Arkansas had satisfied its burden of showing that the in-person signature requirement is “reasonable, nondiscriminatory, and furthers an important regulatory interest,” namely “protect[ing] the integrity of its initiative petition process.” Id. at 740. As a result, the court reversed the district court’s judgment and grant of injunctive relief.

The Eighth Circuit’s decision in Miller v. Thurston is consistent with U.S. Supreme Court decisions before and since that have addressed COVID-19’s impact on assorted election requirements. Notably, in the six cases that have reached the Supreme Court on the question of pandemic-related voting procedures, the Supreme Court has sided with the course of action advanced by state election officials every single time. Most often, that has meant that the Supreme Court, like the Eighth Circuit, has rejected challenges by voters and nonprofits intended to loosen electoral requirements in light of the realities of the ongoing pandemic. But in the middle of August the Supreme Court declined to stay a pandemic-related voter-relief effort agreed to by election officials in Rhode Island. See Republican Nat’l Comm. v. Common Cause RI, No. 20A28, — S. Ct. — (Aug. 13, 2020). Time will tell if this trend continues as November approaches and the pandemic continues.

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