Filed Date: June 30, 2020
Closed Date: June 10, 2021
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This case is about the constitutionality of Oregon’s signature requirements for ballot initiatives during the COVID-19 pandemic. The plaintiffs, five Oregon nonprofit organizations and one Oregon resident who was the chief petitioner for the ballot initiative, proposed to amend the Oregon Constitution in 2019 and started gathering the required signatures needed to get the proposal on the ballot for the November 2020 general election. The plaintiffs, represented by private counsel, filed their complaint on June 30, 2020, in the U.S. District Court for the District of Oregon, against the Secretary of State of Oregon. The plaintiffs sued under 28 U.S.C. § 1983, arguing that the state constitution’s signature requirement, as applied during the pandemic and the related public health executive orders, imposed severe burdens on their First and Fourteenth Amendment rights by making it nearly impossible to obtain a spot on the ballot for their initiative. The plaintiffs requested an extension to the signature deadline of July 2, 2020, and a lowered signature requirement, in addition to a declaration that the application of the signature requirement was unconstitutional as applied to the plaintiff’s specific initiative. The case was assigned to Judge Michael J. McShane.
On the same day that they filed their complaint, the plaintiffs moved for a temporary restraining order requesting the court to enjoin the signature requirement and deadlines for the plaintiffs’ ballot initiative. In a July 2 scheduling order, Judge McShane stated that the court would treat the motion for a temporary restraining order as a motion for a preliminary injunction. On July 10, the court granted the motion for a preliminary injunction during a video motion hearing. 472 F. Supp. 3d 890. The court gave the defendant until July 13 to either allow the plaintiffs’ initiative on the ballot or to lower the required signature threshold from 149,360 to 58,789 and extend the deadline from July 2 to August 17 for signatures.
The court stated that, based on Ninth Circuit precedent, restrictions on the ballot initiative process will burden core political speech if: (1) the regulations restrict one-on-one communication between petition circulators and voters; or (2) the regulations make it less likely that proponents can obtain the necessary signatures to place the initiative on the ballot. The court found that the Governor’s executive orders, which were issued to limit the spread of COVID-19, prevented any one-on-one contact between petition circulators and Oregon voters. The court also found that the defendant’s refusal to make reasonable accommodations during the pandemic made it less likely for the plaintiffs to get enough signatures to place their initiative on the ballot.
After establishing that the state’s restrictions on the ballot initiative process, as applied during the pandemic, burdened core political speech, the court then had to decide which form of review to use for analyzing the defendant’s conduct. The court stated that it applies strict scrutiny when: (1) the proponents of the initiative have been reasonably diligent as compared to other initiative proponents; and (2) when the restrictions significantly inhibit the proponents’ ability to place an initiative on the ballot. The court found that the plaintiffs in the present case had submitted sufficient evidence reflecting that they would have gathered the required signatures prior to the July 2 deadline if not for the COVID-19 restrictions. The court also noted that the plaintiffs had managed to gather 60,000 signatures while adhering to the Governor’s orders. Based on these facts, the court found that the plaintiffs had acted with reasonable diligence in their attempt to meet the ballot requirements. The court also found that the pandemic-related restrictions had significantly inhibited the plaintiffs’ ability to place their initiative on the ballot. Based on the conclusions that the restrictions on the ballot initiative here burdened core political speech and that strict scrutiny would be applied, the court concluded that the plaintiffs were likely to succeed on the merits of their claim.
The court also found that, in absence of the requested preliminary relief, the plaintiffs would suffer irreparable harm because their initiative would not appear on the November 2020 ballot. The court then analyzed the balance of the equities, noting that First Amendment rights outweigh concerns about election administration. The court also concluded that the public interest leaned in favor of granting the preliminary injunction because it would protect the plaintiffs’ constitutional rights. Since the plaintiffs had established a likelihood of success on the merits of their claim, a likelihood of irreparable harm in absence of the requested relief, and that the balance of the equities and public interest leaned in their favor, the court granted the preliminary injunction.
On July 13, the defendant filed a notice in response to the court’s order granting the preliminary injunction. In the notice, the defendant objected to the court’s ruling and its order that the defendant select among remedies as inappropriate and inconsistent with the U.S. Constitution. The defendant declined to place the plaintiff’s initiative on the ballot without the submission of the required signatures under the Oregon Constitution. On the same day, the court issued a minute order adopting the plaintiffs’ requested remedy of a 58,789-signature requirement. On July 15, the defendant appealed the granting of the preliminary injunction to the Ninth Circuit (USCA Case Number 20-35630) and filed a motion in the appellate court to stay the district court’s order pending appeal. On July 23, the Ninth Circuit denied the motion, with Circuit Judge Callahan dissenting. On July 30, the defendant submitted an application for a stay to Justice Kagan. The application was granted by the Supreme Court on August 11 and the district court’s order granting the preliminary injunction was therefore stayed pending the appeal in the Ninth Circuit. 141 S.Ct. 206. Justices Ginsburg and Sotomayor would have denied the application for a stay.
On September 1, 2020, the Ninth Circuit issued a memorandum remanding the case to the district court with instructions. 826 Fed. App’x. 581. The court first pointed out that, since the Supreme Court had stayed the injunction and the deadline to place the initiative on the November 2020 ballot was September 3, the case was likely moot as to the 2020 election cycle. The court found that, since the parties had not had an opportunity to brief regarding the possibility of the same controversy recurring in the lead up to the November 2022 election, the district court would be better positioned to decide whether or not to exercise jurisdiction over the likely moot case. Circuit Judge Nelson filed a dissenting opinion, stating that he would vacate the district court’s order and remand with instructions to dismiss the action.
Back in the district court, little action was taken on the case until the plaintiffs moved for summary judgment on February 24, 2021. The defendant then moved to dismiss the case for lack of subject matter jurisdiction on March 3, arguing that the plaintiff’s claims are either moot or barred by the Eleventh Amendment. The court stayed discovery, pursuant to a joint motion by the parties, pending resolution of the defendant’s motion to dismiss.
On June 10, 2021, the court granted the defendant’s motion to dismiss. The court analyzed whether the plaintiffs’ claim, which was moot as to the 2020 election cycle, fell within the “capable of repetition, yet evading review” exception to the requirement that a case or controversy must be live for federal courts to exercise jurisdiction under Article III of the U.S. Constitution. The court stated that the “capable of repetition” exception only applies where (1) the duration of the challenged action is too short to allow full litigation before it ceases, and (2) there is a reasonable expectation that a plaintiff will face it again. The court found that the idea that the circumstances leading to the plaintiffs’ lawsuit would recur in 2022 was highly speculative. The court noted that, based on Oregon’s vaccination numbers, it was likely that most of the health and safety restrictions would be lifted by the 2022 election. The court also pointed out that the plaintiffs would be in a different position in the 2022 election than they were in the 2020 election, since they would have more time to adjust their signature-collecting methods and would have a better understanding of how to adjust to the pandemic. Since the court declined to find that there was a reasonable expectation that the plaintiffs would face the challenged action again, the “capable of repetition” exception did not apply and the court dismissed the case for lack of jurisdiction. The case is now closed.
Summary Authors
Nicholas Gillan (12/23/2021)
For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/17312014/parties/people-not-politicians-oregon-v-clarno/
Callahan, Consuelo Maria (California)
Elzinga, Stephen (Oregon)
Beatty-Walters, Christina L. (Oregon)
Anderson-Dana, Lydia (Oregon)
Berman, Steven C. (Oregon)
See docket on RECAP: https://www.courtlistener.com/docket/17312014/people-not-politicians-oregon-v-clarno/
Last updated June 11, 2025, 9:02 a.m.