Sixth Circuit Stamps Out COVID-19 Lawsuit Over Ohio Marijuana Ballot Initiatives

Last week, an appellate panel affirmed the findings of a Columbus, Ohio federal court after determining that claims brought by three voters were moot. The case concerned their efforts to place initiatives on Ohio municipal ballots to decriminalize marijuana and the frustration they encountered while trying to gather the requisite number of signatures amidst the COVID-19 pandemic.

The opinion explained that the plaintiffs filed proposed initiatives for November 2020 ballots shortly before Ohio declared a state of emergency and ordered Ohioans to stay at home. The orders, the plaintiffs alleged, made it impossible to obtain ink signatures witnessed by the petition’s proponent.

In turn, they sued the governor for declaratory and injunctive relief, arguing that Ohio’s ballot-access laws as applied to ‘‘measures proposed for local November 3, 2020 elections in Ohio,’” were unconstitutional. The district court enjoined the ink and witness requirements and directed the state to accept online initiatives.

Ohio appealed and the Sixth Circuit stayed the injunction then reversed it. Subsequently, the voters unsuccessfully petitioned the Supreme Court for review.

Most recently, the lower court, based on the Sixth Circuit’s earlier findings, dismissed the case on the merits after finding it moot. In last week’s opinion, the appellate court agreed that the U.S. Constitution’s case and controversy requirement barred the action.

The case was moot, the opinion said, because the requested relief was tied to the November 2020 election, which, in the court’s words “has come and gone.” “Without a time machine, we cannot go back and place plaintiffs’ initiatives on the 2020 ballot,” the judges explained.

The court further held that the “capable-of-repetition-yet-evading-review” exception to mootness did not apply. The plaintiffs failed to sustain the two-part test, the court held, because of the second requirement of a reasonable expectation that the plaintiffs would be twice subject to the same action.

The court wrote that due to advancements in COVID-19 treatment and vaccination, the pandemic will not likely pose a serious threat during the next election cycle. The judges also batted down newly raised arguments that signatures collected from March to July 2020 could have been used to qualify initiatives for the November 2, 2021 ballot. Finally, the court rejected the plaintiffs’ argument that another pandemic could hamper signature-gathering efforts. “This speculation does not get the job done,” the opinion said.

The panel concluded by empathizing with the voters, stating that though the requested relief is impossible to grant, “[w]e appreciate the difficulties the virus posed to plaintiffs’ efforts to gather signatures for their initiatives.”

The appellants are represented by Capital University Law School and Ohio by the Office of the Ohio Attorney General.