Sixth Circuit, in Troubling Decision, Reverses District Court Decision Requiring Ohio to Accept Electronic Signatures for Initiative Petitions

You can find the per curiam opinion of the three-judge panel here.

This opinion is troubling, and fits into a larger pattern of the court not protecting direct democracy during the pandemic. Indeed, I have this forthcoming piece in the University of Chicago Law Review on how most courts have not protected direct democracy in the pandemic; the trial court decision in this case (Thompson v. DeWine) was my counterexample.

Second, the panel decision seems dismissive of the argument (accepted by an earlier Sixth Circuit panel in the Esshaki case) that Anderson-Burdick balancing requires a greater thumb on the scale favoring voting rights in the pandemic era. It sees the burdens as much less great and therefore the scrutiny applied to such laws even during a pandemic much less rigorous. On this general issue of voting rights during a pandemic, see my draft article, Three Pathologies of American Voting Rights Illuminated by the COVID-19 Pandemic, and How to Treat and Cure Them.

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