In partnership with the outstanding teams at the Northwestern Supreme Court Practicum and Sidley Austin LLP, and with CCD Advisory Board member Mark Brown as lead counsel, CCD has filed this petition for certiorari seeking Supreme Court review of the Sixth Circuit Court of Appeals' decision in Thompson v. DeWine, which held that Ohio's strict enforcement of its in-person petitioning requirements during the Covid-19 pandemic did not violate the First Amendment rights of citizens who seek to place initiatives on the ballot.
Although the Supreme Court rarely grants petitions for review, the odds that this petition will be granted are significantly better. As the petition states, "Recently, Chief Justice Roberts confirmed that 'the Court is reasonably likely to grant certiorari to resolve [this split] on an important issue of election administration.'” Little v. Reclaim Idaho, 140 S. Ct. 2616, 2616 (2020) (Roberts, C.J., concurring).
The "split" refers to the conflicting decisions that courts of appeals have entered in cases concerning First Amendment protection for citizens who seek to place initiatives on state ballots. Some circuits hold that the First Amendment protects such activity and requires courts to apply "strict scrutiny" to laws that burden citizens' right to place initiatives on the ballot; some circuits hold that the First Amendment applies, but that courts should apply a more deferential level of review; and some circuits hold that the First Amendment does not apply at all. Such a split is one of the most important factors the Supreme Court considers when deciding whether to grant a petition for review.
In Thompson, the District Court granted the plaintiffs a preliminary injunction, finding that Ohio's strict enforcement of its in-person petitioning requirements during the Covid-19 pandemic violated the plaintiffs' First Amendment rights. The Sixth Circuit, however, stayed the injunction and ultimately reversed the District Court's decision. It held that the First Amendment applies, but that Ohio's strict enforcement of its petitioning laws during the pandemic did not violate the plaintiffs' First Amendment rights -- notwithstanding the fact that it was effectively illegal to obtain petition signatures during much of the petitioning period due to Ohio's shutdown orders, and that it was and continues to be unsafe to do so due to the ongoing pandemic.
We are grateful for the exceptional work our pro bono partners at the Northwestern Supreme Court Practicum, Sidley Austin LLP and lead counsel Mark Brown did to prepare this case.