CYNTHIA BROWN; CARLOS BUFORD; JENNY SUE ROWE v. DAVID YOST, in his official capacity as Ohio Attorney General
No. 24-3354
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
May 29, 2024
RECOMMENDED FOR PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b). File Name: 24a0123p.06.
Before: MOORE, BUSH, and MATHIS, Circuit Judges.
COUNSEL
ON BRIEF: Mark R. Brown, CAPITAL UNIVERSITY, Columbus, Ohio, Oliver Hall, CENTER FOR COMPETITIVE DEMOCRACY, Washington, D.C., for Appellants. T. Elliot Gaiser, Katie Rose Talley, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court in which MATHIS, J., joined. BUSH, J. (pp. 31–47), delivered a separate dissenting opinion.
OPINION
KAREN NELSON MOORE, Circuit Judge. To get a proposed constitutional amendment on the Ohio ballot, petitioners must submit their amendment, a summary of their amendment, and one thousand qualified supporting signatures to the Ohio Attorney General. The Ohio Attorney General must then determine if the summary is a fair and truthful statement of the proposed amendment and, if so, certify the summary. Only once the Attorney General certifies the summary may petitioners begin collecting the approximately 400,000 signatures necessary to put the proposed amendment on the ballot.
Plaintiffs-Appellants (“Plaintiffs”) are Ohio voters who, together, seek to amend the Ohio Constitution through a ballot initiative. Pursuant to Ohio law, Plaintiffs drafted their amendment and summary, collected their one thousand qualified supporting signatures, and filed it with the Ohio Attorney General, David Yost. On at least six occasions, Yost declined to certify Plaintiffs’ summary. After Yost‘s most recent decision denying certification, Plaintiffs turned to the Supreme Court of Ohio for review. When the state supreme court declined to grant expedited review, Plaintiffs filed a complaint in federal district court seeking injunctive relief. In their complaint, Plaintiffs alleged that Yost‘s enforcement of
I. BACKGROUND
A. Ohio‘s Ballot Access Scheme
The Constitution of the State of Ohio reserves to the people the power “to propose amendments to the constitution and to adopt or reject [such amendments] at the polls.”
Ohio law requires that citizens take several steps before they can place a proposed constitutional amendment on the ballot. The individuals proposing the amendment (“petitioners”) must first form a committee to “represent them in all matters relating to [their] petitions.”
Only after the Attorney General files the proposed amendment, summary, and certification with the Secretary of State may petitioners create an “Initiative Petition” and begin collecting signatures in support of the petition. See
Once petitioners collect the requisite signatures, they must file those signatures with the Secretary of State.
B. Judicial Review of the Attorney General‘s Certification Decision
Under
The Supreme Court of Ohio‘s rules of practice recognize “the necessity of a prompt disposition of an original action relating to a pending election.” Ohio S. Ct. R. Prac. 12.08(A)(1). On that basis, the rules of practice provide for expedited review of election cases “if the action is filed within ninety days prior to the election.”
As explained above, to get a citizen-initiated constitutional amendment on an Ohio ballot, petitioners must (1) form a committee, (2) draft an amendment and summary of the amendment, and collect one thousand supporting signatures. Once the amendment and summary are drafted and a thousand signatures are collected, petitioners must have (3) their summary certified by the Attorney General, (4) their amendment approved by the Ohio ballot board, and (5) their summary and amendment sent by the Attorney General to the Secretary of State. See supra Part I, Section A. Only after accomplishing those first five steps may petitioners begin (6) collecting signatures from at least ten percent of voters in prior gubernatorial elections. If petitioners collect the requisite signatures, they must (7) file the petition and signatures with the Secretary of State. The Secretary of State then (8) passes the petition to the Ohio ballot board for approval before, the Secretary of State, finally, (9) shall place the proposed amendment on the ballot at the next general election occurring
Petitioners must necessarily complete the petitioning process—the first seven steps listed above—by 125 days before an election to get their proposed amendment on the ballot. See
C. Plaintiffs’ Citizen-Initiated Constitutional Amendment
Plaintiffs are Ohio voters and members of an initiative petition committee who, together, seek to amend the Ohio Constitution. See R. 1 (Compl. ¶ 2) (Page ID #1–2). Following the mandates of Ohio law, as detailed above, Plaintiffs drafted a proposed citizen-initiated constitutional amendment, provided a summary of the proposed amendment, and collected 1,000 qualified signatures in its support. See
Yost‘s March 14, 2024 rejection was nothing new to Plaintiffs. In February 2023, for example, Plaintiffs filed an earlier version of the “Protecting Ohioans’ Constitutional Rights” amendment, summary, and qualifying signatures. See D. 19 (Appellee Br. at 11); R. 1 (Compl. ¶ 34) (Page ID #9). Yost declined to certify that earlier summary for failure to be fair and truthful. See D. 19 (Appellee Br. at 11). Prior to March 2024, Plaintiffs submitted their proposed amendment, summary, and a new one thousand qualifying signatures at least six times. See
On March 20, 2024, rather than rewriting and collecting a new one thousand signatures, Plaintiffs filed a mandamus action under
On March 27, 2024, while their mandamus action was still pending before the state supreme court, Plaintiffs filed a complaint seeking declaratory relief, a preliminary injunction, and a temporary restraining order against Yost in federal district court. See R. 1 (Compl. ¶ 61) (Page ID #12). In their complaint, Plaintiffs made both facial and as-applied challenges to
The district court denied Plaintiffs’ motion for a preliminary injunction and a temporary restraining order. R. 21 (D. Ct. Op.). The district court first found that neither the Eleventh Amendment nor principles of abstention barred Plaintiffs’ claims.
Plaintiffs filed a timely notice of appeal and a motion for injunction pending appeal in the district court. R. 23 (Notice of Appeal); R. 24 (Mot. for Inj. Pending Appeal). The district court denied the motion for injunction pending appeal. See R. 26 (D. Ct. Order at 2) (Page ID #251). Plaintiffs additionally moved this court for an injunction pending appeal or, in the alternative, expedited briefing. See D. 5 (Mot. for Inj. Pending Appeal). On May 2, 2024, we ordered expedited briefing and reserved judgment on Plaintiffs’ motion for an injunction pending appeal. See D. 16 (Expedited Briefing Order).
II. ANALYSIS
Plaintiffs seek injunctive relief enjoining Yost from enforcing
A. Standard of Review
In considering a motion for a preliminary injunction, a court must weigh four factors: “(1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury absent the injunction; (3) whether the injunction would cause substantial harm to others; and (4) whether the public interest would be served by the issuance of an injunction.” Bays v. City of Fairborn, 668 F.3d 814, 818–19 (6th Cir. 2012). These “considerations are ‘factors to be balanced, not prerequisites that must be met.” Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 542 (6th Cir. 2007) (quoting Jones v. City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003)). That said, in First Amendment cases, like this one, “the crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of success on the merits.” Daunt v. Benson, 956 F.3d 396, 406 (6th Cir. 2020) (quoting Bays, 668 F.3d at 819).
We review a district court‘s decision to deny a preliminary injunction—and its weighing of the above four factors—for an “abuse of discretion, subjecting factual findings to clear-error review and examining legal conclusions de novo.” Id. Both standing and Eleventh Amendment immunity are legal conclusions that we review de novo. See Mosley v. Kohl‘s Dep‘t Stores, Inc., 942 F.3d 752, 756 (6th Cir. 2019); Block v. Canepa, 74 F.4th 400, 407 (6th Cir. 2023).
B. Likelihood of Success on the Merits
1. Standing
The district court found that Plaintiffs did not have a strong likelihood of success on the merits because Plaintiffs were not “substantially likely to establish standing.” R. 21 (D. Ct. Op. at 10) (Page ID #212). The district court specifically found that Plaintiffs’ injury was not fairly traceable to Yost‘s actions.
A plaintiff has standing if (1) they “suffered an ‘injury in fact’ that is ‘concrete and particularized’ and ‘actual or imminent, not conjectural or hypothetical”; (2) their “injury is ‘fairly traceable to the challenged action of the defendant‘; and (3) it is likely ‘that the injury will be redressed by a favorable decision.” Mosley, 942 F.3d at 756 (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)). Contrary to the district court‘s analysis, Plaintiffs have standing here.
It is undisputed that Plaintiffs suffer an “injury in fact.” See D. 19 (Appellee Br. at 18–20) (arguing against standing only on redressability and traceability grounds); D. 18 (Appellant Br. at 29). Plaintiffs allege that their First and Fourteenth Amendment right to political speech is burdened by Yost‘s enforcement of
Plaintiffs’ injury would also likely be redressed by a favorable decision. As noted above, Plaintiffs are asking this court to enjoin the enforcement of
Yost argues that “[i]t is ... impossible for this Court to provide effective relief to [Plaintiffs] by ordering the Attorney General to do anything with respect to [their] ballot initiative,” because control over that initiative “now lies exclusively in the hands of the Supreme Court of Ohio and [Plaintiffs] themselves.” D. 19 (Appellee Br. at 18). This court, Yost asserts, accordingly, “cannot redress [Plaintiffs‘] alleged injuries through the relief sought.”
Yost, not the Supreme Court of Ohio, is responsible for enforcing that statutory provision. See
Plaintiffs’ injury is also fairly traceable to Yost. To establish traceability, “there must be a causal connection between the injury and the conduct complained of—the injury has to be ‘fairly . . . trace[able] to the challenged action of the defendant, and not . . . th[e] result [of] the independent action of some third party not before the court.” Lujan, 504 U.S. at 560 (alterations in original) (quoting Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 41–42 (1976)). “Beyond that threshold, however, the plaintiff‘s burden of alleging that their injury is fairly traceable to the defendant‘s challenged conduct is relatively modest. Any harm flowing from the defendant‘s conduct, even indirectly, is said to be fairly traceable.” Grow Mich., LLC v. LT Lender, LLC, 50 F.4th 587, 592 (6th Cir. 2022) (quotation omitted).
As noted above, when a petitioner “seeks to propose a . . . constitutional amendment by initiative,” they must “submit the proposed . . . constitutional amendment and a summary of it to the attorney general for examination.”
Yost argues that Plaintiffs’ ““alleged harm—an inability to get on the November 2024 ballot is not traceable to the Attorney General because there are multiple intervening steps to get onto the ballot that are controlled by other actors not before the Court.” D. 19 (Appellee Br. at 19). Yost‘s traceability argument again misconstrues Plaintiffs’ alleged injury and the remedies they seek. Plaintiffs allege that they are injured by an “unconstitutional obstacle” that blocks access to the Ohio ballot and prohibits them from advocating for and speaking on their proposed amendment in the way they wish; Plaintiffs seek an injunction enjoining the enforcement of that obstacle. D. 18 (Appellant Br. at 42, 44); see also D. 20 (Appellant Reply Br. at 18). In contrast to what Yost would have this court believe,
As our sibling circuit has explained, “it appears to be standard operating procedure for plaintiffs to bring these types of suits against the officials who administer the state election system, which here includes the” Attorney General. Const. Party of Pa. v. Aichele, 757 F.3d 347, 367 (3d Cir. 2014). In ballot-access cases, it is always true that petitioners might ultimately fail to get enough signatures—or in election cases, enough votes—to accomplish their ultimate goal. That a petitioner might not ultimately get on the ballot, however, does not mean that an unconstitutional barrier to their speech advocating for a ballot initiative is not fairly traceable to the executive official enforcing that barrier. See id. at 366–67. The harm caused by the enforcement of a statute is fairly traceable to the executive officer doing the enforcing. See, e.g., Russell v. Lundergan-Grimes, 784 F.3d 1037, 1049–50 (6th Cir. 2015); Young Conservatives of Tex. Found. v. Smatresk, 73 F.4th 304, 310 (5th Cir. 2023) (holding that “harm is directly traceable to the UNT officials[] wrongfully enforcing” the provision); Jacobson v. Fla. Sec‘y of State, 974 F.3d 1236, 1255 (11th Cir. 2020) (explaining that harm is fairly traceable and the court “may enjoin executive officials from taking steps to enforce a statute . . . when the officials who enforce the challenged statute are properly made parties to a suit” (quotation omitted)); Italian Colors Rest. v. Becerra, 878 F.3d 1165, 1174 (9th Cir. 2018) (holding that the plaintiff‘s injury was fairly traceable to the state attorney general who enforces the law). Here, the alleged injury caused by the enforcement of
2. Eleventh Amendment
Sovereign immunity, as embodied in the Eleventh Amendment, generally
Yost argues that Plaintiffs’ requested relief is retrospective in nature—a request “to undo the Attorney General‘s prior certification denial”—and therefore outside the Ex parte Young exception and barred by the Eleventh Amendment. D. 19 (Appellee Br. at 21). Plaintiffs, however, repeatedly affirm that they “do not seek to reverse Yost‘s decision.” D. 18 (Appellant Br. at 44); see also D. 15 (Appellant Reply Br. Mot. Pending App. at 6). Plaintiffs instead allege that Yost‘s ongoing enforcement of
Two cases inform our inquiry into whether Plaintiffs allege an ongoing violation of federal law. In League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 475 (6th Cir. 2008), plaintiffs alleged that “Ohio‘s election machinery unconstitutionally denies or burdens Ohioans’ right to vote based on where they live in violation of the Equal Protection Clause.” Id. State-official defendants in that case, however, argued that the plaintiffs failed to allege ongoing constitutional violations because any alleged violations already occurred during a previous election and the plaintiffs showed no “reasonable basis to believe the violations will occur in the future.” Id. at 474–75. The defendants thus argued that the Ex parte Young exception did not apply. Id. We held that the state-official defendants were not protected by sovereign immunity. Id. at 475. We explained that, though the initial allegedly harmful actions may have already occurred, id. at 466–69, plausible allegations that the “problems [were] chronic and [would] continue absent injunctive relief,” demonstrated ongoing constitutional harm, id. at 475. Likewise, in Boler, a group of plaintiffs sought an injunction directing a
Here, Plaintiffs’ alleged constitutional injury, like the injuries in League of Women Voters and Boler, is ongoing. Plaintiffs plausibly allege that their inability to speak and advocate for their proposed constitutional amendment in the way they wish is a continuing harm. See D. 20 (Appellant Reply Br. at 5) (arguing “that past actions [are] causing ongoing constitutional injuries“). That this alleged constitutional injury began with past action—here, Yost‘s previous multiple failures to certify the summaries to their proposed constitutional amendment—does not undermine the continuing constitutional violation and harmful effects. Like in League of Women Voters, Plaintiffs faced this constitutional harm in a past election, see D. 19 (Appellee Br. at 11) (noting that Plaintiffs submitted summaries—and Yost rejected those summaries during this and the prior election cycle), face it in the current election cycle, see id., and plausibly allege that the constitutional “problems are chronic and will continue absent injunctive relief,” League of Women Voters, 548 F.3d at 475.
Plaintiffs not only allege an ongoing violation of federal law; they also seek “relief properly characterized as prospective.” Boler, 865 F.3d at 412 (quoting Dubuc, 342 F.3d at 616). As described in detail above, see supra Part II, Section B.1, Plaintiffs seek injunctive relief preventing Yost from enforcing
3. Constitutionality of Ohio Revised Code § 3519.01
Because Plaintiffs have shown that they likely have standing to bring their claims and are likely not barred by sovereign immunity, we next turn to the merits of their claims. As an initial matter, we must first clarify the legal tests that apply to Plaintiffs’ First Amendment challenge. Recently, this court outlined the categories of First Amendment claims that a plaintiff may make in the election-administration context. See Lichtenstein v. Hargett, 83 F.4th 575, 583 (6th Cir. 2023) (identifying Grant, Anderson-Burdick, and United States v. O‘Brien for election-related claims). In Lichtenstein, we explained that laws that target political speech fall under Grant, laws that target political association or voting fall under Anderson-Burdick, and laws that target expressive conduct fall under O‘Brien. Id. at 583, 589–90, 594. Here, both parties blend the Grant and Anderson-Burdick tests into a hybrid analysis. Neither party‘s briefing—before this court or before the district court—however, is a model of clarity. We therefore begin by disentangling the relevant legal context. Because neither party invokes O‘Brien as the relevant test, we focus on Grant and Anderson-Burdick.
Typically, when determining whether a state election law violates a plaintiff‘s rights under the First and Fourteenth Amendments, we apply the framework set forth by the Supreme Court in Anderson v. Celebrezze, 460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S. 428 (1992).6 The Anderson-Burdick framework requires us to weigh the “character and magnitude of the asserted injury” against the “precise interests put forward by the State as justifications for the burden imposed by its rule.” Anderson, 460 U.S. at 789. The level of scrutiny we apply is determined by the magnitude of the burden. If the burden is severe, the regulation will be upheld only if it is “narrowly drawn to advance a state interest of compelling importance.” Burdick, 504 U.S. at 434 (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)). If the regulations are minimally burdensome, the state‘s regulatory interests will likely justify “reasonable, nondiscriminatory restrictions.” Anderson, 460 U.S. at 788. Many regulations fall somewhere between these two extremes. When a regulation imposes an intermediate burden, “courts engage in a flexible analysis, weighing the burden on the plaintiffs against the state‘s asserted interest and chosen means of pursuing it.” Green Party of Tenn. v. Hargett, 767 F.3d 533, 546 (6th Cir. 2014).
In addition to the traditional Anderson-Burdick analysis, if an election law impacts—directly or indirectly—“core political speech,” then that law may be challenged under Grant, Buckley v. Am. Const. L. Found., 525 U.S. 182 (1999), and their progeny. See Lichtenstein, 83 F.4th at 584–86. For such a law, strict scrutiny is triggered. Id. at 585–86 (explaining that “speech through petition circulators[ ]’ . . . garner[s] the First Amendment‘s highest protections” (quoting Grant, 486 U.S. at 422, 424)); see also Schmitt v. LaRose, 933 F.3d 628, 645 (6th Cir. 2019) (Bush, J., concurring in part) (explaining that a state statute that is “directed toward the challengers’ ability to advocate for their initiative” is subject to “strict scrutiny review under the Supreme Court‘s precedent in” Grant).
In some instances, a claim may cross over the clear boundaries outlined in Lichtenstein, 83 F.4th at 583. For example, in several earlier challenges to initiative procedures, we have considered the burden on “core political speech,” as defined in Grant, within the first step of the Anderson-Burdick test. See Citizens for Tax Reform v. Deters, 518 F.3d 375, 380–87 (6th Cir. 2008) (considering the “character and magnitude” of the state‘s law allowing only per-time payment of petition circulators under Anderson-Burdick and
With this background, we first address the character and magnitude of the injury, and then we weigh the injury against the state‘s interests under the applicable level of scrutiny. Although Plaintiffs’ challenge is both facial and as-applied, we focus on the as-applied challenge because it is dispositive.
a. Character and Magnitude of Plaintiffs’ Asserted Injury
Our first step under the Anderson-Burdick framework is to determine the character and magnitude of Plaintiffs’ injury. When determining the character and magnitude of Plaintiffs’ injury, we must consider “the combined effect of the applicable election regulations,” and not measure the effect of each statute in isolation. Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 586 (6th Cir. 2006); accord Libertarian Party of Ky. v. Grimes, 835 F.3d 570, 575 (6th Cir. 2016) (“In some circumstances, the combined effect of ballot-access restrictions can pose a severe burden.” (quotations omitted)). States have the “power to ban initiatives”; however, if initiatives are allowed under state law, states do not have “the power to limit discussion of political issues raised in initiative petitions.” Grant, 486 U.S. at 425; see also Taxpayers United for Assessment Cuts v. Austin, 994 F.2d 291, 295 (6th Cir. 1993) (“[W]e conclude that although the Constitution does not require a state to create an initiative procedure, if it creates such a procedure, the
The Supreme Court has further explained that “[t]he circulation of an initiative petition” necessarily “involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” Grant, 486 U.S. at 421. Characterizing this as “core political speech,” the Court has held that restrictions on initiative proponents’ ability to advocate for a petition to obtain signatures are “wholly at odds with the guarantees of the First Amendment.” Id. at 421-22, 428; Am. Const. L. Found., 525 U.S. at 199. This is because “the First Amendment reflects a ‘profound national commitment’ to the principle that ‘debate on public issues should be uninhibited, robust, and wide-open.” Boos v. Barry, 485 U.S. 312, 318 (1988) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964)); see also Hughes v. Region VII Area Agency on Aging, 542 F.3d 169, 185 (6th Cir. 2008) (“Speech advocating a campaign to affect government policy is the essence of protected, political speech.”).
Although “[s]tates allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process,” Am. Const. L. Found., 525 U.S. at 191, speech related to “[p]etition circulation . . . is ‘core political speech” subject to heightened protections “because it involves ‘interactive communication concerning political change,” id. at 186 (quoting Grant, 486 U.S. at 422); see also Hawkins, 968 F.3d at 607 (“[I]t is well-established that the act of collecting signatures for ballot access falls under [the First Amendment‘s protections].“). In this context, “[t]he First Amendment protects [plaintiffs‘] right not only to advocate their cause but also to select what they believe to be the most effective means for so doing.” Grant, 486 U.S. at 424.9 “First Amendment protection for such interact[ive communication] . . . is ‘at its zenith.” Am. Const. L. Found., 525 U.S. at 187 (quoting Grant, 486 U.S. at 425).
In Grant, the Court found that the appellees” “core political speech” was impacted by the state‘s “refusal to permit appellees to pay petition circulators.” 486 U.S. at 422. That prohibition “restrict[ed] political expression” because the law “limit[ed] the number of voices who [would] convey appellees’ message and the hours they [could] speak,” and thereby “limit[ed] the size of the audience they [could] reach.” Id. at 422–23. Likewise, the Court determined that the state law burdened the appellees’ “core political speech” because the law “ma[de] it less likely that appellees w[ould] garner the number of signatures necessary to place the matter on the ballot,” such that the appellees were unable to
The Supreme Court has thus identified at least two ways that restrictions on “core political speech” impose a severe burden: (1) by restricting one-on-one communication between petition circulators and potential signatories, and (2) by making it less likely that initiative proponents will be able to garner the necessary signatures to be placed on the ballot “thus limiting their ability to make the matter the focus of statewide discussion.” Grant, 486 U.S. at 422-23; cf. Taxpayers United, 994 F.3d at 297 (explaining that the Michigan law at issue, unlike Grant, did “not restrict the means that the plaintiffs can use to advocate their proposal” and that the “result would be different if, as in Grant, the plaintiffs were challenging a restriction on their ability to communicate with other voters about proposed legislation“). Both burdens are implicated in this case.
Under
Once certified, the petitioners have until 125 days before the election to gather approximately 400,000 signatures; in this case, Plaintiffs’ deadline is July 3, 2024. The summary of the proposed amendment plays an important role in how Plaintiffs will speak about the amendment while gathering signatures because the summary is required to be placed on the petition. See
cause but also to select what they believe to be the most effective means for so doing.” 486 U.S. at 424 (emphasis added). Here, too, the statute burdens Plaintiffs’ choice of speech when advocating on behalf of the proposed amendment. The dissent makes no effort to explain how
Yost‘s enforcement of
Because the enforcement of Ohio‘s statute requires Plaintiffs to change their summary without any review of Yost‘s decision making, it operates as a “restriction on [Plaintiffs‘] ability to communicate with other voters about proposed legislation.” Taxpayers United, 994 F.3d at 297. This is particularly true in light of the facts of this case—the impending July 3 deadline, the state supreme court‘s denial of expedited review, and Plaintiffs’ multiple attempts to comply with Yost‘s rejections. Unlike in Lichtenstein, where “nothing in [the state law] in any way restrict[ed] the Plaintiffs’ actual oral or written speech about the ‘benefits’ of absentee voting,” 83 F.4th at 586,
Likewise, the second concern from Grant—that Plaintiffs will be less able to garner the necessary signatures to be placed on the ballot “thus limiting their ability to make the matter the focus of statewide discussion,” 486 U.S. at 423—is also present here. Without timely review,
In light of this, the district court abused its discretion when it found—relying primarily on Schmitt—that
b. Balancing the State‘s Interests
Having determined that
The state‘s asserted interests here are “voter education, fraud deterrence, and the integrity of the initiative process and election.” D. 19 (Appellee Br. at 35). We agree that these interests are compelling. See Susan B. Anthony List v. Driehaus, 814 F.3d 466, 473 (6th Cir. 2016) (explaining that a state‘s “interest[] in preserving the integrity of its elections, protecting ‘voters from confusion and undue influence,’ and ‘ensuring that an individual‘s right to vote is not undermined by fraud in the election process’ are compelling” interests (quoting Burson v. Freeman, 504 U.S. 191, 199 (1992))).
Yost must also “demonstrate that there was no less restrictive means by which [the state] could achieve its important interest[s],” Lawrence v. Blackwell, 430 F.3d 368, 375 (6th Cir. 2005), and that the law “is necessary . . . in order to meet [the state‘s] concerns,” Grant, 486 U.S. at 426. In Yost‘s view,
Yost‘s argument turns Ohio‘s law on its head. Rather than provide limited discretion to the Attorney General, in this case Yost has issued multiple denials—six based on the fair-and-truthful determination—without any review by an administrative body or court. See D. 19 (Appellee Br. at 11). And, although Yost is correct that
Likewise,
Accordingly, Yost has not shown that
C. Balance of the Remaining Injunction Factors
Because Plaintiffs have demonstrated a likelihood of success on their constitutional claim, “there is ‘no issue as to the existence of the remaining preliminary injunction factors.‘” ACLU Fund of Mich. v. Livingston County, 796 F.3d 636, 649 (6th Cir. 2015) (quoting Miller v. City of Cincinnati, 622 F.3d 524, 540 (6th Cir. 2010)); see also ACLU of Ky. v. McCreary County, 354 F.3d 438, 462 (6th Cir. 2003) (explaining that when “Plaintiffs have demonstrated a likelihood of succeeding on the merits of their [First Amendment] claim, the other three preliminary factors follow in favor of granting the injunction” (citing Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998))). We will, nonetheless, briefly consider each factor in turn.
The second factor to be considered when analyzing a motion for a preliminary injunction is “whether the movant would suffer irreparable injury absent the injunction.” Bays, 668 F.3d at 818-19. “As we have explained, ‘even minimal infringement upon First Amendment values constitutes
The final two factors are “whether the injunction would cause substantial harm to others,” and “whether the public interest would be served by the issuance of an injunction.” Bays, 668 F.3d at 819. We have previously held that there can be “no cognizable harm” caused by “stopping unconstitutional conduct, so ‘it is always in the public interest to prevent violation of a party‘s constitutional rights.‘” Vitolo v. Guzman, 999 F.3d 353, 360 (6th Cir. 2021) (quoting Deja Vu of Nashville, Inc. v. Metro. Gov‘t of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir. 2001)). Likewise, when a “plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere [in] its enjoinment.” Bays, 668 F.3d at 825 (quoting Deja Vu of Nashville, 274 F.3d at 400). Yost‘s argument that enjoining his enforcement of
D. Remedy
With each of the injunctive-relief factors weighing in Plaintiffs’ favor, we reverse the district court and grant Plaintiffs’ request for preliminary injunctive relief, enjoining Yost from enforcing
This case reaches us under extraordinary circumstances. Injunctive relief of restrictions on core political speech in the ballot-initiative process is appropriate where, like here, (1) the Attorney General has rejected Plaintiffs’ summary on multiple occasions over a long period—it is not a situation of petitioners delaying submission or otherwise self-inflicting this ongoing harm; (2) the 125-day deadline is
We now turn to Yost‘s policy-related arguments against granting Plaintiffs’ requested relief. Yost invokes a laundry list of worst-case-scenario outcomes of this court granting an injunction in this case. See D. 19 (Appellee Br. at 32-33). But none of these outcomes are likely to occur. First, Yost suggests that Plaintiffs’ “novel theory” would “preclude most of [Ohio‘s] ballot-initiative safeguards,” such as the single-subject review by the ballot board and the Secretary of State‘s signature review.
Nothing in this opinion conflicts with this settled law because, as those cases make clear, those other provisions are a step removed from core political speech. See Taxpayers United, 994 F.3d at 297 (“Our result would be different if, as in [Grant], the plaintiffs were challenging a restriction on their ability to communicate with other voters about proposed legislation . . . .“); Comm. to Impose Term Limits, 885 F.3d at 446 (agreeing with the Supreme Court of Ohio‘s determination that the single-subject rule does not regulate core political speech). Put differently, because this case involves “core political speech,” it triggers strict scrutiny based on the Grant and American Constitutional Law Foundation line of cases, as opposed to analysis only under the traditional Anderson-Burdick balancing. See Lichtenstein, 83 F.4th at 583-94.
Next, Yost contends that other ballot-initiative proponents will “invoke equal protection principles to extend” this court‘s ruling to other ballot-initiative petitions, “regardless of the ballot confusion, misinformation, or incomprehensibility that would result.” D. 19 (Appellee Br. at 32-33). But, again, there is no reason to believe that this would occur. As with any as-applied constitutional challenge, each case presents unique factual circumstances that would be addressed based on the litigants before a particular court.
Finally, Yost invokes federalism principles to argue that this court‘s decision would force federal and state courts to expedite their review of all ballot-initiative certification decisions.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district court‘s order and GRANT Plaintiffs’ motion for preliminary injunctive relief, enjoining Yost‘s ability to enforce
DISSENT
JOHN K. BUSH, Circuit Judge, dissenting. Plaintiffs seek to amend the Ohio Constitution. They have a big problem, though. According to the Ohio Attorney General, Plaintiffs have not provided a fair and truthful statement that summarizes the amendment, as Ohio law requires. In the case before us, Plaintiffs do not challenge the Attorney General‘s determination that their summary was improper.1 Rather, Plaintiffs bring First Amendment challenges to the Ohio laws that give the Attorney General the authority to review and reject constitutional amendment summaries and that provide for Ohio Supreme Court review of the Attorney General‘s determinations. But after Plaintiffs filed the case before us—indeed, after we had granted expedited review of their appeal—Plaintiffs dismissed their appeal to the Ohio Supreme Court of the Attorney General‘s decision. To recite those facts is to create an issue spotter highly adverse to Plaintiffs. For a multitude of reasons, we should affirm the district court‘s order denying preliminary injunctive relief to Plaintiffs. They lack standing, their claims are barred by Ohio‘s sovereign immunity, and their as-applied challenge is moot. Even if Plaintiffs had overcome those jurisdictional hurdles, a preliminary injunction would not be warranted because they are unlikely to succeed on the substantive constitutional merits. I therefore respectfully dissent.
I.
A. Ohio‘s Ballot Initiative Process
Ohio law establishes a multi-step process for placing a citizen-initiated constitutional
If the proposed summary is determined to be fair and truthful, the Attorney General must certify the petition and submit it to the Ohio Ballot Board for approval.
If, however, the Attorney General declines to certify the petition, “[a]ny person who is aggrieved by [the decision] may challenge the certification or failure to certify of the attorney general in the [Ohio] supreme court.”
B. Plaintiffs’ Proposed Amendment and Ohio Procedural History
Plaintiffs seek to place their proposed amendment, “Protecting Ohioans’ Constitutional Rights,” on the ballot for the upcoming general election. Compl., R. 1, PageID 6-7. Because the election is scheduled for November 5, 2024, Plaintiffs must file their petition with supporting signatures by July 3, 2024.
The proposed amendment creates a private cause of action against state “government actor[s]” who “cause any person to be subjected to deprivation of any [state] constitutional right.”
Plaintiffs have sought certification of their proposed amendment from the Attorney General several times before, but their efforts have proved unsuccessful thus far. Most recently, they submitted a petition with their proposed amendment, summary,
Plaintiffs sought review of Yost‘s decision before the Ohio Supreme Court on March 20, 2024. They sought a writ of mandamus directing Yost to certify their summary, and they claimed that the First Amendment demands “expedited and de novo review” of the certification decision. State ex rel. Brown v. Yost, No. 2024-0409, Compl., R. 1, ¶ 159. They also filed a motion to expedite proceedings, arguing that “if Ohio‘s certification-process did not require de novo . . . expedited timely review in [the state supreme court], it would place a ‘severe’ burden on [Plaintiffs‘] First Amendment rights.” Id., Mot. for Expedited Review, R. 2, p. 3. The Attorney General opposed the motion, and the Ohio Supreme Court, without comment, denied Plaintiffs’ request for expedited review. Yost filed a motion to dismiss the petition in April 2024, and Plaintiffs opposed the motion.
C. Federal Procedural History
Seven days after filing their mandamus action in state court, Plaintiffs filed a complaint for declaratory relief, a preliminary injunction, and a temporary restaining order in federal district court. They claim that the ballot initiative process outlined in
Plaintiffs moved for a temporary restraining order and preliminary injunction on the same day they filed their complaint. The district court denied the motion on April 25, 2024. It found that Plaintiffs’ claims are not barred by the Eleventh Amendment because they seek expedited review of Yost‘s decision in state court. Such relief, the district court determined, was prospective relief that “is not based on the alleged incorrectness of a past decision, but on prospectively addressing a violation of their Asserted First Amendment right.” Order on Mot. for Prelim. Inj., R. 21, PageID 207. The district court also found that abstention principles do not bar Plaintiffs’ federal action because their First Amendment claims can be resolved independently from any state law issue in the case, and because this action is not parallel to Plaintiffs’ action before the state supreme court. However, the district court denied the motion based on Plaintiffs’ lack of standing, explaining that Plaintiffs failed to establish that their injury—that is, being denied expedited review before the Ohio Supreme Court—is fairly traceable to Yost, or that ordering Yost to certify their petition would redress their alleged First Amendment harm.
The district court also found that Plaintiffs’ claims were not likely to succeed on the substantive constitutional merits.
After the district court denied Plaintiffs’ motion for injunctive relief, and while Yost‘s motion to dismiss their mandamus action was still pending before the Ohio Supreme Court, Plaintiffs moved to voluntarily dismiss their state-court case. The dismissal came after we had agreed to hear Plaintiffs’ appeal on an expedited basis. Thus, Plaintiffs have placed all of their eggs in the federal-court basket even though their proposed amendment is entirely a matter of state law. Indeed, they do not currently have a petition being considered for certification by Yost or under review by the Ohio Supreme Court. These circumstances create a host of reasons, discussed below, why Plaintiffs are unlikely to succeed on the merits and why the district court therefore properly denied the preliminary injunction.
II.
Plaintiffs lack the requisite standing under Article III to bring their claims. “Article III . . . is every bit as important in its circumscription of the judicial power of the United States as in its granting of that power.” Valley Forge Christian Coll. v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 476 (1982). And “[n]o principle is more fundamental to the judiciary‘s proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (internal quotation marks omitted); see
Standing consists of three elements. Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-560 (1992). The plaintiff must establish that he or she “(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016) (citing Lujan, 504 U.S. at 560). “If the plaintiff does not claim to have suffered an injury that the defendant caused and the court can remedy, there is no case or controversy for the federal court to resolve.” TransUnion, 594 U.S. at 423 (cleaned up). Here, as explained below, Plaintiffs falter on all three standing requirements.
A.
First, the asserted injury. The parties here do not argue whether Plaintiffs suffered an injury in fact. Notwithstanding, we have “an independent obligation to assure that standing exists, regardless of whether it is challenged by any of the parties.” Summers v. Earth Island Inst., 555 U.S. 488, 499 (2009). So, we must assess whether Plaintiffs have alleged “an invasion of a legally protected interest” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical.” Lujan, 504 U.S. at 560. When seeking declaratory and injunctive relief, as Plaintiffs do here, “a pre-enforcement challenge may be made before the actual completion of an injury in fact.” Grendell v. Ohio Sup. Ct., 252 F.3d 828, 832 (6th Cir. 2001). However, Plaintiffs “must show actual present harm or a significant possibility of future harm in order to demonstrate the need for pre-enforcement review.”
Plaintiffs’ alleged harm is the burden placed on their First and Fourteenth Amendment right to political speech. They say this is the result of an unconstitutional combination: Yost‘s enforcement of
Put differently, Plaintiffs do not challenge Yost‘s role as gatekeeper as to the fairness and truthfulness of their summary—they instead challenge his exercise of the gatekeeping function without timely, de novo judicial review. In other words, the lack of timely, de novo judicial review is what creates a First Amendment issue for an otherwise constitutional election mechanics rule. We explained in Schmitt v. LaRose that the Ohio Supreme Court‘s mandamus review of election decisions is “essentially” de novo judicial review. 933 F.3d 628, 639-640 (6th Cir. 2019); see also Beiersdorfer v. LaRose, No. 20-3557, 2021 WL 3702211, at *7 (6th Cir. Aug. 20, 2021). Plaintiffs here filed a complaint for a writ of mandamus with the Ohio Supreme Court after Yost declined to certify their summary—so they got their de novo review. And they acknowledged in the federal case that they are not challenging the merits of Yost‘s decision. See supra n.1. Their argument before us therefore now depends on whether the state court‘s review was untimely. Indeed, in the district court, their complaint focuses largely on the fact that Ohio law and the Ohio Supreme Court‘s own procedural rules do not require expedited review of their complaint for a writ of mandamus. They focus on timeliness before us, too, arguing that being unable to seek mandamus is not enough; instead, they assert that they have a right to seek redress for their alleged harm before the November election.
These assertions are not enough to allege an injury that supports Article III standing. Although Plaintiffs submitted a summary of their constitutional proposal multiple times to Yost, and faced rejection each time, they challenged his decision in the Ohio Supreme Court only once. Now that they have withdrawn their complaint for a writ of mandamus from the Ohio Supreme Court, there is no “actual present harm” caused by untimely judicial review, because there is nothing for the Ohio Supreme Court to review. Nat‘l Rifle Assoc. of Am., 132 F.3d at 279. Moreover, while Plaintiffs’ previous efforts to get their summary certified supports an inference that they will file another constitutional proposal in the future, given that they have only asked for judicial review once, they have not demonstrated a “significant possibility” that they will experience their alleged harm in the future.
The majority characterizes Plaintiffs’ injury as their “inability to advocate for and speak about the proposed amendment how they wish.” Majority at 12. But Plaintiffs do not allege that Yost has done anything to deny them their ability to “advocate for and speak about the proposed amendment” other than that Yost did not approve Plaintiffs’ summary and they have not received timely state-court review of Yost‘s decision. Plaintiffs do not allege, for example, that they have been prevented from advocating in the news media, through social media, and in person for voters to support the proposed amendment. Also, contrary to what the majority implies, see Majority at 27 n.9, Plaintiffs’ complaint in federal court is not about suppression of the content of the summary: Plaintiffs do not argue before us that Yost made an incorrect determination that their summary was untruthful and unfair. See supra n.1. Rather, Plaintiffs’ claims before us are based on the alleged injury that they
B.
Second, traceability. Even if Plaintiffs had alleged a sufficient injury in fact, that injury is not fairly traceable to Yost‘s conduct that is the basis of their complaint. As explained, Plaintiffs’ asserted injury turns entirely on the lack of timely judicial review. They say that their injury is fairly traceable to Yost because he enforces the statute that fails to provide for expedited judicial review, and because the Ohio Supreme Court‘s procedural rules do not provide for expedited judicial review.
Yet the Ohio legislature could not have statutorily required the Ohio Supreme Court to decide Plaintiffs’ challenge on any particular schedule. Just as Article III of the United States Constitution vests the judicial power in the federal courts, so too does
Plaintiffs’ injury is therefore not fairly traceable to Yost‘s enforcement of
C.
Finally, redressability: “To determine whether an injury is redressable, a court will consider the relationship between the judicial relief requested and the injury suffered.” California v. Texas, 593 U.S. 659, 671 (2021) (cleaned up). The injury allegedly suffered by Plaintiffs is a burden on their First Amendment right to political speech, coupled with the lack of timely judicial review. Plaintiffs ask the court to fix this purported injury by preventing Yost from enforcing
First, because the Ohio Supreme Court is alone responsible for the schedule on which Plaintiffs’ petition is reviewed, enjoining
D.
Plaintiffs therefore fail to satisfy any of the three requirements of standing. They have no cognizable Article III injury. Their harm is based on the absence of timely Ohio Supreme Court review of the Attorney General‘s decision; yet, having dismissed their appeal to the Ohio Supreme Court, Plaintiffs’ “injury” from an untimely decision from that court no longer exists and the unavailability of review from that court is now entirely of their own making.
Even if their appeal were still pending in the Ohio Supreme Court, their asserted injury would not be redressed by the relief they seek from us. Assuming the state-court appeal were still pending, no matter what relief the district court granted, it could not have ordered the Ohio Supreme Court directly or indirectly through the Attorney General to expedite the state court appeal. For similar reasons, the alleged injury is not fairly traceable to any constitutional violation by the Attorney General.
III.
Plaintiffs’ claims also are barred by the sovereign immunity of Ohio. The “Eleventh Amendment bars suits against a state or its agencies in federal court.” Brent v. Wayne Cnty. Dep‘t of Hum. Servs., 901 F.3d 656, 681 (6th Cir. 2018). But under the Ex parte Young exception to sovereign immunity, a private party may “seek prospective injunctive relief against state officials in their official capacity before those officials violate the plaintiff‘s federal constitutional or statutory rights.” Skatemore, Inc. v. Whitmer, 40 F.4th 727, 733 (6th Cir. 2022). The Attorney General argues that Plaintiffs’ claims are barred by sovereign immunity because they seek retroactive relief. I agree that the claims are barred by sovereign immunity, but for a different reason. See Barachkov v. Davis, 580 F. App‘x 288, 299 (6th Cir. 2014) (“A state may waive its immunity through its litigation conduct; but the touchstone of waiver doctrine is intent—the state‘s litigation conduct must clearly indicate the state‘s intent to waive its immunity.“). In my view, because the alleged constitutional violation turns on whether Plaintiffs are afforded timely judicial review, and that is a matter decided solely by the Ohio Supreme Court, prospective injunctive relief against Yost would do nothing to remedy the alleged constitutional violation. Instead, for the reasons detailed above, it seems that Plaintiffs are trying to attach to Yost claims that they would like to bring, but cannot, against the Ohio Supreme
IV.
Another jurisdictional hurdle Plaintiffs do not overcome is mootness. Plaintiffs have dismissed their complaint requesting a writ of mandamus to force Yost to certify their summary before the Ohio Supreme Court. They have not filed another proposal for a constitutional amendment or sought additional judicial review of their last-denied certification. Because their challenge turns on the timeliness of judicial review and they currently have nothing before the Ohio courts to review, their as-applied challenge to
The majority excuses Plaintiffs’ dismissal of their state-court appeal because, according to the majority, “timely state court review is functionally unavailable to Plaintiffs under the circumstances of this case.” Majority at 30 n.10. The majority, however, cites no evidence in support of this conclusion. In any event, Plaintiffs have an obligation, if they want their challenge seeking timely review from Ohio Supreme Court to remain a live controversy, to at least keep the opportunity for such review pending before that court.
V.
Even were it appropriate to address the substantive constitutional merits of Plaintiffs’ claims, they are not likely to succeed. In my view, content neutral and non-viewpoint discriminatory statutes regulating state election mechanics—like the scheme set forth by
For now, though, “our precedent dictates that we evaluate First Amendment challenges to nondiscriminatory, content-neutral ballot initiative requirements under the Anderson-Burdick framework.” Thompson v. Dewine, 959 F.3d 804, 808 (6th Cir. 2020); see id. at 808 n.2 (while recognizing that “this court has often questioned whether Anderson-Burdick applies to anything besides generally applicable restrictions on the right to vote,” applying that framework “until this court sitting en banc takes up the question of Anderson-Burdick‘s reach“).
Before applying Anderson-Burdick, a word on why Meyer v. Grant, 486 U.S. 414 (1988) does not apply. Under Grant, we assess government limitations on “core political speech” under strict scrutiny. 486 U.S. 414, 420 (1988) (subjecting “a limitation on political expression subject to exacting scrutiny“); see Lichtenstein v. Hargett, 83 F.4th 575, 586 (6th Cir. 2023) (explaining that Grant‘s “exacting scrutiny” test “applied standards that today go by ‘strict scrutiny.‘“). Grant concluded that a state law prohibiting payment to petition circulators gathering signatures for ballot initiatives implicated core political speech because the regulated activity involved “interactive communication concerning political change.” Grant, 486 U.S. at 422; accord Buckley v. Am. Const. L. Found., Inc., 525 U.S. 182, 186 (1999). By making it a felony to pay petition circulators, the state (1) limited “the number of voices who will convey” the message and “the size of the audience they can reach,” and (2) restricted the initiative advocates’ “ability to make the matter the focus of statewide discussion.” Grant, 486 U.S. at 422-23; see also Citizens for Tax Reform v. Deters, 518 F.3d 375, 380 (6th Cir. 2008) (applying Grant to an Ohio statute which prohibited compensating petition circulators for each signature they obtained).
But Grant does not factually fit challenges to election mechanics. Schmitt, 933 F.3d at 644 (Bush, J., concurring). Grant focuses on regulations affecting who makes the political speech, whereas Schmitt focuses on regulations affecting how political speech is reviewed. That distinction renders Grant inapposite, because Plaintiffs center their challenge to
Because this case does not trigger Grant‘s default strict scrutiny test, Anderson-Burdick would set the level of scrutiny based on the scale of the burden imposed on Plaintiffs’ rights by the regulation. Kishore, 972 F.3d at 749. Intermediate scrutiny applies here, as Schmitt makes clear. There, as here, the regulator “wield[ed] the discretionary authority to decline to certify initiatives, and the burden thus [fell] on the aggrieved proponent to obtain mandamus relief in order to vindicate his or her interest.” Schmitt, 933 F.3d at 641. We determined that it was “reasonable to conclude that the cost of obtaining legal counsel and seeking a writ of mandamus disincentivize[d] some ballot proponents from seeking to overturn the [regulator‘s] decision, thereby limiting ballot access,” so rational basis review could not apply.
Under Anderson-Burdick and Schmitt,
Applying intermediate scrutiny,
And how Ohio chose to pursue these interests does not unduly burden Plaintiffs.
Because
VI.
Plaintiffs brought a targeted First Amendment complaint in federal court. They contended that a state election procedure violated their rights because they had not yet received review in the Ohio Supreme Court of the Attorney General‘s determination that the summary of their proposed constitutional amendment was not fair and truthful. After the district court denied a preliminary injunction, we granted expedited review. At that point Plaintiffs made the strategic decision to dismiss their appeal to the Ohio Supreme Court. Whatever jurisdictional basis that Plaintiffs might have argued for the federal case collapsed with their decision to dismiss their state-court appeal. In addition to the jurisdictional challenges, Plaintiffs’ claims are likely to fail on the constitutional merits.
For the foregoing reasons, the district court properly denied the preliminary injunction. I therefore respectfully dissent.