Direct Democracy Denied: The Right to Initiative in a Pandemic

University of Chicago Law Review Online (2020 Forthcoming)

UC Irvine School of Law Research Paper No. 2020-45

12 Pages Posted: 26 May 2020 Last revised: 3 Jun 2020

See all articles by Richard L. Hasen

Richard L. Hasen

University of California, Irvine School of Law

Date Written: May 22, 2020

Abstract

Putting aside the Supreme Court’s controversial decision in Republican National Committee v. Democratic National Committee, the case over extending the date for receipt of absentee ballots in the April 2020 Wisconsin primary, courts so far have done a fairly good job protecting voting rights during the COVID-19 pandemic. From easing candidate and party signature requirements for ballot access, to temporarily eliminating witness or notarization requirements for casting an absentee ballot, to interpreting the excuse provisions in for-cause absentee ballot laws to cover voters without coronavirus immunity who fear voting in person, courts have recognized that election laws that ordinarily do not burden voters can become burdensome in a pandemic. Courts have interpreted such laws to avoid disenfranchisement, and sometimes temporarily suspended or altered them.

That welcome thumb on the scale favoring voters, however, has not extended uniformly to claims for the easing of signature gathering rules by ballot measure proponents. In four cases I examine, courts have rejected the demands of initiative proponents to ease requirements to qualify a measure for the ballot, such as allowing electronic instead of “wet” (in person) signatures, and easing witness requirements, total number of signatures required, or geographic requirements for signature collection. In just one case, Thompson v. DeWine, a federal district court ordered Ohio to alter its procedures for qualifying proposed measures for the ballot, including allowing the acceptance of electronic signatures. The decision, however, was put on hold by the Sixth Circuit in a stay order that was very dismissive of the rights of direct democracy and that portends bad things to come.

In this short analysis, I argue that some of the reasons courts and states have offered against easing ballot measure qualification requirements during a pandemic are weak, and that the district court in Thompson was right to see that normal ballot qualification rules can impose a severe First Amendment burden on direct democracy proponents under pandemic conditions. The problem, as illustrated by the Thompson case, is fashioning appropriate relief consistent with principles of federalism and separation of powers. It is difficult to craft a remedy would put the plaintiffs in the position they would have been in had there been no pandemic and that does not usurp the state’s general role in enforcing its election rules or undermine sound principles of election administration and fairness.

Keywords: voting rights, right to vote, ballot measures, initiatives, COVID-19

Suggested Citation

Hasen, Richard L., Direct Democracy Denied: The Right to Initiative in a Pandemic (May 22, 2020). University of Chicago Law Review Online (2020 Forthcoming), UC Irvine School of Law Research Paper No. 2020-45, Available at SSRN: https://ssrn.com/abstract=3608472 or http://dx.doi.org/10.2139/ssrn.3608472

Richard L. Hasen (Contact Author)

University of California, Irvine School of Law ( email )

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