Vote stickers are seen at a satellite election office at Temple University’s Liacouras Center, Tuesday, Sept. 29, 2020, in Philadelphia. AP Photo/Matt Slocum

The state of Ohio currently requires that people wishing to get an initiative put on a ballot need to collect signatures of support.

But many say the coronavirus has made that exponentially more difficult.

Three plaintiffs have brought a lawsuit against the state calling for in-person signature alternatives for ballot propositions. 

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Ohioans who want to get an initiative on the ballot in the state are required to collect signatures in support of their initiative in person. But that’s been nearly impossible this year because of the coronavirus pandemic. In the days leading up to the election, a group of Ohio voters has been waging a legal battle with the state, alleging that its refusal to adjust ballot access requirements in light of the pandemic is a violation of voters’ First and 14th Amendment rights. It’s an issue that’s sprung up across the country in other states this year, too. 

A lawsuit addressing the issue, Thompson v. DeWine, was filed in April by three Ohio-registered voters and a petition circulator, all of whom regularly circulate petitions to have initiatives placed on local election ballots throughout the state. The local initiative, in this case, is the proposal of a “sensible marijuana ordinance,” which, if voted for, would “lower the misdemeanor for marijuana offenses to the lowest penalty allowed by state law in whatever municipality it is adopted,” according to the ballot language Don Keeney, one of the three plaintiffs shared. 

“This issue was really important for us to get on this year’s ballot because people can’t afford to get penalized with possession of marijuana charges. People are having enough of a hard time dealing with life right now during the pandemic,” Keeney said.

“We knew immediately that we would not be able to get the minimum number signatures we needed this year,” he added. Keeney and the other voters who joined the suit were only able to get their initiative on the ballot for four of the seventy municipalities in Ohio they had originally set out to achieve. 

In March, Governor Mike DeWine issued the first coronavirus-related executive orders. That’s when Keeney and the other petitioners decided to sue the state in the hopes of getting their initiative on the ballot, extending the deadline, or at the very least, updating Ohio’s ballot access requirements to accommodate the burdens imposed by coronavirus.

In addition to highlighting the difficulties of gathering signatures amid the pandemic, the plaintiffs argued it would be “impossible” to meet Ohio’s July 15 deadline of providing the signed petition to local boards of election. Keeney says the state should have done more to accommodate the process of signature gathering during the pandemic.

“Just because we are in the middle of a pandemic, that doesn’t mean we lose our constitutional rights,” Keeney said. 

Ohio’s ‘archaic’ ballot system hasn’t been changed in more than a hundred years

“In state legislatures that are controlled by one party, the initiative process is an important and especially relevant outlet for people who are in the political minority,” Mark Brown, one of the attorneys representing the plaintiffs in Thompson v. DeWine, told Business Insider. “Ohio’s ballot access system is ‘archaic’ and overly burdensome,” he continued, noting that the system hadn’t been updated in more than a hundred years.

Ohio election law with regards to ballot access has largely remained unchanged since its implementation in 1912. The law defines a person’s signature as nothing other than a person’s “wet, written, cursive-style legal mark written in that person’s own hand,” meaning any other form of signature (electronic or mailed-in) is considered invalid. Ohio also has strict rules around the validity of signatures. For example, if someone signs a petition with a name that does not match their license or signature that doesn’t match their DMV license, their signature is not counted. 

“We usually have to get double the number of signatures that we need just because of the pushback we expect from county clerks and the board of elections every year,” Keeney explained.

Keeny believes the signature requirement puts an undue burden on petitioners, but the state argued in response to the lawsuit that it does not have an obligation to “dismantle Ohio’s entire ballot access system” to include an initiative on the ballot, or update the system to accept electronic signatures or extend the deadline.

Oliver Hall, an attorney representing the plaintiffs from the Center for Competitive Democracy, believes the state’s rejection of responsibility is actually a violation of the plaintiff’s constitutional rights. 

“I really can’t think of a more severe burden on protected first amendment activity than an executive order from the governor of a state preventing you from engaging in that activity,” Hall said.

The state says that in their defense, Governor Mike DeWine and the Ohio Department of Health exempted First Amendment-protected activities from their health orders, so “Plaintiffs have been, and continue to be, free to speak whenever, wherever, however, and to whomever they like in support of their positions and to seek signatures for their petitions.”

The petitioners and their counsel say that the First Amendment exemption didn’t account for the health risks that still exist in meeting with voters in person. 

“Consider what the actual transaction involves,” Hall explained. “You have to approach a stranger on the street or sidewalk at one of these public events and they have to be willing to stop, talk to and possibly touch the pen and clipboard you are using — notwithstanding the fact that they have been cautioned by public officials from the national government and state and local governments to maintain a social distance from everyone else.” 

Keeney added, “It would look bad for us to risk people’s health going door to door when we are trying to do something that helps the community. Everybody is at home right now and if we had been able to do something like petition electronically, it would not only save money, it would be safer.”

Neither the Ohio Department of Health nor the office of Governor Mike DeWine responded to Business Insider’s requests for comment.

Other states have relaxed signature requirements for ballots

Many other states, including South Dakota, Michigan, Massachusetts, and California, have amended their ballot access laws in light of the pandemic. Some have extended signature deadlines or temporarily allowed the collection of electronic signatures.  

Richard Winger, an election law expert and the Editor of Ball Access News says Ohio has a long tradition of being “utterly hostile” to ballot access issues since the early 1900s. All of the cases challenging Ohio’s ballot access requirements in 2020 failed, and besides Illinois, Ohio is the only state that has lost in the US Supreme Court on ballot access more than once.

The parties on the plaintiff side of Thompson v. DeWine are “reviewing their options” as far as appealing the Sixth Circuit’s stay to the Supreme Court. 

“This isn’t just about getting a marijuana decriminalization initiative on the ballot. We are fighting for better access to local ballots across the state. The state and the board of elections need to start working with us more,” Keeney added.

The court granted a preliminary injunction on May 19, which was stayed by the Sixth Circuit on May 26. The U.S. Supreme Court denied the plaintiff’s application to vacate the stay on June 25. The case is ongoing.

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