Michigan's Signature Requirement for 2020 Ballot Access Remains Suspended
An injunction preventing Michigan's governor and secretary of state from enforcing ballot-access signature requirements will remain in place, for now, thanks to a Sixth Circuit panel.
A group of activists, led by 25-year-old Amani Sawari, filed for the injunction earlier this summer when Michigan's stay-at-home order prevented them from collecting the signatures needed for their referendum.
The group proposes a criminal justice reform initiative, which they hope to get on the ballot for Michigan's 2020 general election. However, the state requires such referendums to collect at least 347,047 signatures first.
Sixth Circuit Relies on Anderson-Burdick Framework
The Sixth Circuit held that the signature requirement was too restrictive under the circumstances, citing the Supreme Court's decisions in Anderson v. Celebrezze (1983) and Burdick v. Takushi (1992).
The Anderson-Burdick framework provides two different tests, based on whether the election law at issue "severely" burdens First Amendment rights. Electoral laws that impose a severe burden trigger strict scrutiny analysis. The rule must be narrowly tailored to a compelling government interest, a high hurdle that most state election laws cannot clear.
If an election rule is found to be only a modest burden, Anderson-Burdick instead requires a balancing test that generally favors states.
Michigan's Lockdown More Restrictive Than Ohio
The global pandemic has led to many election law challenges this year, including another signature requirement dispute reviewed by the Sixth Circuit in May. In that case, the court actually sided with the governor of Ohio - upholding signature requirements for ballot access.
However, the panel noted that the case out of Michigan is different. First, Michigan's government-mandated lockdown was longer than Ohio's, lasting from March 23 to June 1. And second, Ohio's stay-at-home order included exemptions for First Amendment activities.
For now, government officials in Michigan will not be able to enforce signature requirements for access to the 2020 ballot. But, Governor Gretchen Whitmer's office has already requested en banc review of the issue, so it's likely we haven't seen the last of this case.
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