Bonnie Heather Miller; Robert William Allen; Adella Dozier Gray; Arkansas Voters First v. John Thurston, in his official capacity as Secretary of State of Arkansas

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-2095
___________________________
Bonnie Heather Miller; Robert William Allen; Adella Dozier Gray; Arkansas Voters
First
lllllllllllllllllllllPlaintiffs - Appellees
v.
John Thurston, in his official capacity as Secretary of State of Arkansas
lllllllllllllllllllllDefendant - Appellant
------------------------------
Honest Elections Project; State of Ohio; State of Alabama; State of Alaska; State of
Arizona; State of Indiana; State of Kentucky; State of Nebraska; State of North
Dakota; State of Texas; State of Oklahoma; State of South Dakota; Arkansas State
Chamber of Commerce
lllllllllllllllllllllAmici on Behalf of Appellant
____________
Appeal from United States District Court
for the Western District of Arkansas - Fayetteville
____________
Submitted: July 8, 2020
Filed: July 23, 2020
____________
Before GRUENDER, WOLLMAN, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
The plaintiffs sued to enjoin the Arkansas Secretary of State from enforcing
Arkansas’s initiative petition rules requiring in-person contact between petition
circulators, petition signers, and notaries. As applied to them, the plaintiffs claimed,
these requirements violate their First Amendment rights. The district court granted a
permanent injunction, and Arkansas appealed. After Arkansas moved to stay the
district court’s judgment pending appeal, we consolidated the motion with our
consideration of the merits and ordered expedited briefing and oral argument. With
both now ripe for decision, we reverse the district court’s judgment and deny the
motion to stay as moot.
I. Background
The Arkansas Constitution allows “legal voters” to “propose a constitutional
amendment by initiative petition.” Ark. Const. art. 5, § 1. Arkansas Voters First
(“AVF”), a registered Arkansas ballot question committee, is sponsoring a ballot
initiative to amend the Arkansas Constitution’s redistricting provisions. With the goal
of having this initiative placed on the upcoming general election ballot, AVF launched
its campaign and began circulating a petition in March 2020, during the COVID–19
pandemic. Now, in light of the pandemic, AVF and the other plaintiffs claim they
cannot comply with Arkansas’s in-person petition circulation and notarization rules.
Both the Arkansas Constitution and the Arkansas Code require petition
circulators or “canvassers” to attach to the petition an affidavit affirming compliance
with various procedural rules, including that all the petition signatures were made in
the presence of the canvasser. Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-108. This
affidavit, the Arkansas Supreme Court has clarified, must also be notarized in person.
See Roberts v. Priest, 975 S.W.2d 850, 855 (Ark. 1998). Plaintiffs claim they cannot
comply with these two in-person requirements during the COVID–19 pandemic.
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Robert Allen is a registered voter in Arkansas undergoing chemotherapy to treat
his stage IV bladder cancer. With the exception of medical appointments, Allen’s
doctors advised him to stay home and limit in-person contact to his wife and healthcare
workers. Adella Gray is a registered voter living in an Arkansas retirement community
with over 400 other residents, all of whom, including Gray, are particularly vulnerable
to COVID–19 because of their age. Both Allen and Gray want to sign AVF’s initiative
petition but claim they cannot comply with Arkansas’s in-person signature requirement
without putting their health and the health of others at serious risk. This, they claim,
prevents an AVF canvasser, like Bonnie Miller, from safely soliciting their signatures.
And while Miller is not particularly vulnerable to the virus like Allen and Gray, she
also claims she cannot comply with Arkansas’s in-person notarization requirement
without risking both her health and the health of the notary. So AVF, Miller, Allen,
and Gray sued to enjoin Arkansas’s Secretary of State from enforcing the in-person
signature requirement and the in-person notarization requirement. They claimed
enforcement of these requirements during the COVID–19 pandemic would
impermissibly burden their First Amendment rights to express their position on a
political matter.
The district court preliminarily enjoined Arkansas’s Secretary of State from
enforcing the in-person signature and notarization requirements. Applying strict
scrutiny, the district court concluded enforcement of these two requirements during the
pandemic would likely violate the plaintiffs’ First Amendment rights to free
expression. Even though the plaintiffs asserted only an as-applied challenge, the
district court clarified that the injunction applied to not just the plaintiffs in this case
or AVF’s initiative petition specifically, but to any initiative petition filed with the
Arkansas Secretary of State. The district court then prescribed the use of modified
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Arkansas statutory form documents which, in the district court’s view, solved the
alleged First Amendment problem.1
Following the preliminary-injunction ruling, both parties informed the district
court that no additional evidence would be presented in the case. So the district court
converted the preliminary injunction into a permanent injunction and entered
judgment. Arkansas appealed and quickly moved for a temporary administrative stay,
a stay of the judgment pending appeal, and expedited review of the merits. We granted
the motion for a temporary administrative stay, consolidated the motion for a stay
pending appeal with the merits of the case, and ordered expedited briefing.
The pending motion and appeal are now ripe for review, and we have
jurisdiction under 28 U.S.C. § 1291.
1While we do not need to rule on Arkansas’s challenge to the scope of the
injunctive relief granted by the district court, we note it appears the district court may
have taken a step too far in fashioning the injunctive relief. District courts have
discretion to fashion injunctive relief, but “that discretion is not unlimited.” Coca-
Cola Co. v. Purdy, 382 F.3d 774, 790 (8th Cir. 2004). Here, we believe it was
improper for the district court to take the additional step of prescribing modified
statutory forms which, in its view, solved Arkansas’s First Amendment problem. See
Republican Party of Ark. v. Faulkner Cty., 49 F.3d 1289, 1301 (8th Cir. 1995)
(“Cognizant of our role as a federal court, we do not purport to advise Arkansas on the
best means of rendering constitutional its election code: that decision rests with the
sound judgment of the Arkansas legislature.”).
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II. Analysis
A. Standing
Before considering whether a stay is warranted or whether a permanent
injunction was appropriate, we must conclude this case presents a live2 Article III case
or controversy. See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). Arkansas
argues it does not because the plaintiffs lack standing. See id. We review whether
standing exists de novo. Dalton v. NPC Int’l, Inc., 932 F.3d 693, 695 (8th Cir. 2019).
Each plaintiff must establish standing for each form of relief sought. Town of
Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017). The plaintiffs here seek
injunctive relief.
To seek injunctive relief, a plaintiff must show that he is under threat of
suffering ‘injury in fact’ that is concrete and particularized; the threat
2Since the filing of this appeal, AVF has submitted its initiative petition to the
Arkansas Secretary of State. To qualify for placement on the November 3, 2020,
general election ballot, AVF’s petition must include at least 89,151 signatures from
eligible voters. And at oral argument, Arkansas informed us that the petition included
90,000 to 100,000 unverified signatures. But in a Rule 28(j) letter dated July 14,
Arkansas informed us that its Secretary of State declared the petition “insufficient”
because AVF failed to certify that each of its paid canvassers passed a criminal
background check. See Ark. Code Ann. § 7-9-601(b)(3). Yet because any registered
voter, including the individual plaintiffs, may challenge the Secretary’s declaration in
Arkansas state court and because the district court’s injunction applies to all petitions
— and not just AVF’s petition — Arkansas maintains this case is not moot. Indeed,
in their July 21 response to the Rule 28(j) letter, the plaintiffs informed us that they are
challenging the Secretary’s declaration in the Arkansas Supreme Court. Like
Arkansas, they also believe this case is not moot. All things considered, we agree that
the Secretary’s insufficiency declaration does not moot this case. See generally
Missourians for Fiscal Accountability v. Klahr, 830 F.3d 789, 795–96 (8th Cir. 2016).
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must be actual and imminent, not conjectural or hypothetical; it must be
fairly traceable to the challenged action of the defendant; and it must be
likely that a favorable judicial decision will prevent or redress the injury.
Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009). The injury-in-fact
component requires “a plaintiff [to] show that he or she suffered ‘an invasion of a
legally protected interest.’” Spokeo, 136 S. Ct. at 1548 (quoting Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992)). And “although federal standing ‘often turns
on the nature and source of the claim asserted,’ it ‘in no way depends on the merits of
the [claim].’” ASARCO Inc. v. Kadish, 490 U.S. 605, 624 (1989) (alteration in
original) (quoting Warth v. Seldin, 422 U.S. 490, 500 (1975)). Rather, “we must
‘assume that on the merits the plaintiffs would be successful in their claims.’” Am.
Farm Bureau Fed’n v. EPA, 836 F.3d 963, 968 (8th Cir. 2016) (quoting Muir v. Navy
Fed. Credit Union, 529 F.3d 1100, 1106 (D.C. Cir. 2008)).
Arkansas first argues a judgment in the plaintiffs’ favor will not prevent or
redress their injury “[b]ecause of how they pled this case.” As explained above, the
Arkansas Constitution requires petition signers to sign an initiative petition in the
presence of the canvasser and that the canvasser attach a notarized affidavit to each
part of the petition affirming compliance with petitioning rules. Ark. Const. art. 5, § 1;
Roberts, 975 S.W.2d at 855. And section 7-9-108 of the Arkansas Code reiterates
these rules. The plaintiffs’ complaint, Arkansas says, challenged the statutory
requirements but not the constitutional requirements. Thus, a favorable judgment
cannot prevent or redress the plaintiffs’ injury. This argument is misplaced.
In several paragraphs in their complaint, the plaintiffs challenge the in-person
petitioning rules provided in Arkansas’s Constitution. Compl. ¶¶ 2, 3, 5, 71, 88, 91
(claiming “the requirements of Ark. Const. Art. 5, § 1” are unconstitutional under the
First and Fourteenth Amendments). Regardless, Article III standing is not a technical
code pleading requirement. See Spokeo, 136 S. Ct. at 1547. At the pleading stage,
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plaintiffs must “‘allege facts demonstrating’ each element” of standing. Id. (emphasis
added) (quoting Warth, 422 U.S. at 518); see also Iowa League of Cities v. EPA, 711
F.3d 844, 869 (8th Cir. 2013) (stating “at the pleading stage a petitioner can move
forward with general factual allegations of injury”) (internal quotation marks omitted).
At later stages, plaintiffs’ burden is to show standing by a preponderance of the
evidence. Iowa League of Cities, 711 F.3d at 870.
Arkansas cites a district court case from the Ninth Circuit to support its
argument. See Arizonans for Fair Elections v. Hobbs, No. CV-20 00658-PHX-DWL,
__ F. Supp. 3d __, 2020 WL 1905747, at *4 (D. Ariz. Apr. 17, 2020). Unlike the
plaintiffs in this case, the plaintiffs in Hobbs conceded they were challenging certain
Arizona statutory requirements but were not challenging the same requirements in
Arizona’s Constitution. Id. They argued that once they successfully challenged the
statutory requirements in federal court, Arizona state courts would not strictly enforce
the same constitutional requirements. Id. The District of Arizona found this position
speculative and, on redressability grounds, dismissed the case for lack of standing. Id.
at *4–5; see Lujan, 504 U.S. at 561 (explaining it must be more than speculative that
a favorable judgment will redress the injury). Because the plaintiffs in this case do
challenge Arkansas’s statutory and constitutional in-person petitioning rules, Hobbs
lends no support.
Next, Arkansas contends the plaintiffs’ injuries “are not traceable to any state
action.” To be clear, Arkansas does not argue any plaintiff lacks an injury in fact, only
that no plaintiff has proved their injury is traceable to Arkansas’s actions. As
Arkansas sees it, the COVID–19 pandemic and AVF’s own dilatory action — waiting
until March to start its campaign — caused the plaintiffs’ injuries. We disagree.
“Traceability requires proof of causation,” a showing that “the injury resulted from the
actions of the defendant ‘and not . . . [from] the independent action of some third party
not before the court.’” Oti Kaga, Inc. v. S.D. Housing Dev. Auth., 342 F.3d 871, 878
(8th Cir. 2003) (alterations in original) (emphasis added) (quoting Lujan, 504 U.S. at
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560). Absent enforcement of the challenged in-person petitioning rules, the plaintiffs’
asserted injuries disappear. The plaintiffs’ asserted injuries are not the result of their
own or some third party’s independent action. Nor are they caused solely by the
COVID-19 pandemic. Rather, the plaintiffs have adequately shown their asserted
injuries are fairly traceable to Arkansas’s action, i.e., enforcement of its initiative
petition rules requiring in-person signatures and in-person notarization.
Neither of Arkansas’s arguments demonstrate any plaintiff lacks Article III
standing. And, assuming the plaintiffs will succeed on the merits, we are otherwise
satisfied they have standing. See Am. Farm Bureau Fed’n, 836 F.3d at 968.
B. Permanent Injunction
We review the grant of a permanent injunction for abuse of discretion. Oglala
Sioux Tribe v. C & W Enters., Inc., 542 F.3d 224, 229 (8th Cir. 2008). A district court
abuses its discretion by resting its decision on clearly erroneous factual findings or an
erroneous legal conclusion.3 Id.
“A permanent injunction requires the moving party to show actual success on
the merits.” Id. If actual success is found, courts must then consider three factors to
determine whether a permanent injunction is warranted: “(1) the threat of irreparable
harm to the moving party; (2) the balance of harms with any injury an injunction might
inflict on other parties; and (3) the public interest.” Id.
Here, the district court’s merits determination rests on the erroneous legal
conclusion that the in-person signature and notarization requirements are subject to
strict scrutiny. Analyzed under the appropriate standards, we conclude neither
3Arkansas does not argue the district court made any clearly erroneous factual
findings, likely because the parties submitted this case largely on undisputed facts.
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requirement violates the First Amendment. And because actual success on the merits
is essential to the plaintiffs’ permanent injunctive relief, our analysis goes no further
than the merits. See id. at 233.4
The plaintiffs challenge the enforcement of two Arkansas initiative petition
rules, as applied to them. The first requires individuals who wish to sign an initiative
petition to sign in the presence of a canvasser. Ark. Const. art. 5, § 1; Ark. Code Ann.
§ 7-9-108. The second requires the canvasser who collected the signatures to attach
to each part of the petition a notarized affidavit affirming compliance with Arkansas’s
petition rules. Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-108. The canvasser must
be present before the notary. Roberts, 975 S.W.2d at 855. In light of the COVID–19
pandemic, the plaintiffs argue, enforcing the in-person aspect of these initiative petition
rules impermissibly burdens their First Amendment rights to express their views on a
political matter — Arkansas’s constitutional redistricting provisions.
To analyze this claim, the district court applied what is known as the
Anderson/Burdick framework. Under this framework, courts first “weigh the
‘character and magnitude’ of the burden the State’s rule imposes on [First
Amendment] rights against the interests the State contends justify that burden, and
4Our analysis of whether a stay is warranted overlaps almost completely with our
analysis of whether a permanent injunction was merited. Compare Brady v. Nat’l
Football League, 640 F.3d 785, 789 (8th Cir. 2011) (delineating the “four factors” we
consider “in determining whether to issue a stay”), with Lowry ex rel. Crow v. Watson
Chapel Sch. Dist., 540 F.3d 752, 762 (8th Cir. 2008) (delineating the four factors we
consider when reviewing the district court’s issuance of a permanent injunction). Most
importantly, both require an assessment of the merits, albeit under slightly different
legal and evidentiary standards. Compare Brady, 640 F.3d at 789 (requiring the court
to consider whether the stay movant has shown a strong likelihood of success on the
merits), with Lowry, 540 F.3d at 762 (requiring the permanent-injunction movant to
prove actual success on the merits). And since the permanent-injunction standard is
more demanding, our stay analysis is subsumed by our permanent-injunction analysis.
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consider the extent to which the State’s concerns make the burden necessary.”
Timmons v. Twin Cities Area New Party, 520 U.S. 351, 358 (1997) (quoting Burdick
v. Takushi, 504 U.S. 428, 434 (1992)). If the rule imposes “severe burdens on the
plaintiffs’ rights,” it must be “narrowly tailored and advance a compelling state
interest.” Id. “Lesser burdens, however, trigger less exacting review, and a State’s
‘important regulatory interests’ will usually be enough to justify ‘reasonable,
nondiscriminatory restrictions.’” Id. (quoting Burdick, 504 U.S. at 434).
Arkansas argues the district court committed legal error by applying the
Anderson/Burdick framework. In Arkansas’s view, the two challenged initiative
petition requirements do not even implicate the First Amendment. If this were true, the
plaintiffs’ claims would fail as a matter of law. See Dobrovolny v. Moore, 126 F.3d
1111, 1113 (8th Cir. 1997). In the alternative, Arkansas argues that if the challenged
initiative petition requirements are subject to First Amendment scrutiny, the district
court erred by concluding they impose a severe burden on the plaintiffs’ First
Amendment rights, triggering strict scrutiny. We take these arguments in order.
1. Implication of the First Amendment
“[T]he right to a state initiative process is not a right guaranteed by the United
States Constitution, but is a right created by state law.” Id. And states have
“considerable leeway to protect the integrity and reliability of the initiative process.”
Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 191 (1999). Still,
certain rules and requirements related to the process may nevertheless implicate the
Federal Constitution, including the First Amendment. See Meyer v. Grant, 486 U.S.
414, 428 (1988) (finding Colorado’s statutory ban on paid petition circulators
unconstitutional under the First Amendment); see also Buckley, 525 U.S. at 192–97
(finding Colorado’s requirement that initiative petition circulators be registered voters
unconstitutional); Initiative & Referendum Inst. v. Jaeger, 241 F.3d 614, 616 (8th Cir.
2001) (recognizing states’ “considerable leeway” to ensure integrity and reliability in
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the initiative process is limited by the First Amendment, which “requires vigilance ‘to
guard against undue hinderances to political conversations and the exchange of ideas’”)
(quoting Buckley, 525 U.S. at 191–92).
In Dobrovolny, we distinguished between initiative petition laws that only make
the process “difficult” and those that affect “the communication of ideas associated
with the circulation of petitions.” 126 F.3d at 1113. The latter implicate the First
Amendment. See id. Supreme Court precedent, as well as our own, illustrates this
distinction. In Meyer, Colorado’s statutory ban on paid petition circulators implicated
the First Amendment because it limited “the number of voices who will convey
appellees’ message,” “the hours they can speak,” and “the size of the audience they can
reach.” 486 U.S. at 422–23. Similarly, in Buckley, the Court subjected Colorado’s
requirement that petition circulators be registered voters to First Amendment scrutiny
because it “drastically reduce[d] the number of persons, both volunteer and paid,
available to circulate petitions.” 525 U.S. at 193. In Jaeger, we applied First
Amendment scrutiny to North Dakota’s requirement that petition circulators be state
residents and its ban on per-signature commission payments to petition circulators.
241 F.3d at 616–18.
The law at issue in Dobrovolny, however, was different. As interpreted by the
Nebraska Supreme Court, Article III, § 2 of the Nebraska Constitution set the number
of petition signatures needed to get an initiative on the ballot equal to 10% of registered
voters in Nebraska, measured on the date initiative petitions must be submitted to the
Secretary of State. Dobrovolny, 126 F.3d at 1112. This was problematic for the
petition organizers because they had no advance notice of the number of signatures
needed to qualify an initiative for the ballot. Id. Distinguishing Nebraska’s initiative
petition law from the unconstitutional Colorado law at issue in Meyer, we recognized
that the Nebraska law, though burdensome, “in no way restricted [the] ability to
circulate petitions or otherwise engage in political speech.” Id. True, we said, the
Nebraska law “may have made it difficult for appellants to plan their initiative
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campaign and efficiently allocate their resources,” but “the difficulty of the process
alone is insufficient to implicate the First Amendment.” Id. at 1113. There must be
some affect on “the communication of ideas associated with the circulation of
petitions.” Id. Nebraska’s law had no such effect. Id.; see also Hoyle v. Priest, 265
F.3d 699, 703–04 (8th Cir. 2001) (finding an Arkansas law which required counting
only registered-voter petition signatures did not implicate the First Amendment);
Wellwood v. Johnson, 172 F.3d 1007, 1008 (8th Cir. 1999) (concluding Arkansas laws
increasing the number of signatures needed for initiatives “to decide whether to change
a county from ‘wet’ to ‘dry,’ or vice versa” did not implicate the First Amendment).
Turning to the two challenged initiative petition laws in this case, neither poses
a First Amendment problem on its face. As applied, however, the in-person signature
requirement affects the communication of ideas associated with the circulation of
AVF’s petition. Specifically, it burdens Allen’s and Gray’s ability to express their
position on a political matter by signing AVF’s initiative petition. See John Doe No.
1 v. Reed, 561 U.S. 186, 195–96 (2010) (explaining “[a]n individual expresses a view
on a political matter when he signs a petition under Washington’s referendum
procedure” and that “the expression of a political view implicates a First Amendment
right”); see also Nev. Comm’n on Ethics v. Carrigan, 564 U.S. 117, 128 (2011)
(explaining the Court in Reed “held . . . that a citizen’s signing of a petition” is “core
political speech”) (internal quotation marks omitted). It also affects the number of
people a canvasser like Miller can solicit. See Meyer, 486 U.S. at 422–23 (finding
First Amendment implicated where the challenged law limited “the size of the audience
[canvassers] [could] reach”); see also Buckley, 525 U.S. at 186 (reiterating that
“[p]etition circulation . . . is core political speech”) (internal quotation marks omitted).
Thus, we find no error in subjecting Arkansas’s in-person signature requirement to
First Amendment scrutiny. As applied to the plaintiffs, that requirement burdens their
ability to engage in core political speech.
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As it did in its standing arguments, Arkansas reiterates that the plaintiffs’ ability
to sign and circulate the initiative petition is burdened by the COVID–19 pandemic,
not by any state action. This is not accurate. Enforcement of the in-person signature
requirement is necessary to cause the plaintiffs’ First Amendment injury. And by
blaming the pandemic, Arkansas has not changed the fact that enforcing its in-person
signature requirement under current circumstances burdens the plaintiffs’ ability to
engage in core political speech. Calzone v. Summers, 942 F.3d 415, 420 (8th Cir.
2019) (en banc) (explaining an as-applied challenge requires the court to “examine the
constitutionality of the law in light of ‘the particular facts of [the plaintiff’s] case’”)
(quoting Phelps-Roper v. Ricketts, 867 F.3d 883, 896 (8th Cir. 2017)).
As to the in-person notarization requirement, however, we fail to see how its
enforcement affects the communication of ideas associated with the circulation of
AVF’s petition. During the notarization process, neither the canvasser nor the notary
are engaged in any exchange or communication of ideas. Or at least the plaintiffs have
not shown they are. Although the requirement may make it more difficult to verify the
signatures on the petition during a pandemic, this is not enough to implicate the First
Amendment. See Dobrovolny, 126 F.3d at 1113. There must be some effect on the
communication of ideas associated with petition circulation, and the plaintiffs have not
shown the in-person notarization requirement has that effect. It is therefore not subject
to First Amendment scrutiny, even as applied or enforced here. The district court erred
in concluding otherwise.
2. Applicable Level of Scrutiny
Having determined the in-person signature requirement implicates the First
Amendment, we now address the level of scrutiny to which it should be subjected.
“Generally, laws that burden political speech are subject to strict scrutiny.”
Missourians for Fiscal Accountability v. Klahr, 892 F.3d 944, 949 (8th Cir. 2018)
(cleaned up). But we have not always applied strict scrutiny to initiative petition laws
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that implicate the First Amendment. In Jaeger, for example, without referencing the
Anderson/Burdick framework by name, we applied its “sliding standard of review” to
two North Dakota initiative petition laws. 241 F.3d at 616 (“Severe burdens on speech
trigger an exacting standard in which regulations must be narrowly tailored to serve a
compelling state interest, whereas lesser burdens receive a lower level of review.”). In
keeping with this precedent, we will apply the same sliding standard here. See Mader
v. United States, 654 F.3d 794, 800 (8th Cir. 2011) (en banc) (“It is a cardinal rule in
our circuit that one panel is bound by the decision of a prior panel.”) (quoting Owsley
v. Luebbers, 281 F.3d 687, 690 (8th Cir. 2002)).
To determine the appropriate level of scrutiny, we “weigh the ‘character and
magnitude’ of the burden the State’s rule imposes on [First Amendment] rights against
the interest the State contends justify that burden, and consider the extent to which the
State’s concerns make the burden necessary.” Timmons, 520 U.S. at 358 (quoting
Burdick, 504 U.S. at 434). If Arkansas’s in-person signature requirement severely
burdens the plaintiffs’ ability to engage in political speech, strict scrutiny applies. See
id.; see also Jaeger, 241 F.3d at 616. Otherwise, lesser scrutiny applies. Jaeger, 241
F.3d at 616. To be severe, the burden must “go beyond the merely inconvenient.”
Crawford v. Marion Cty. Election Bd., 553 U.S. 181, 205 (2008) (Scalia, J.,
concurring in the judgment) (citing Storer v. Brown, 415 U.S. 724, 728–29 (1974)).
The district court erred when it concluded Arkansas’s in-person signature
requirement imposed a severe burden. The plaintiffs argue enforcement of this
requirement bars them from signing or circulating AVF’s initiative petition. But this
is not necessarily true. In fact, the Arkansas Code provides accommodations
specifically for individuals who require assistance signing an initiative petition. Ark.
Code Ann. § 7-9-103(a)(1)(B). “If a person signing a petition requires assistance due
to a disability, another person may print the petitioner’s name, address, birth date, and
the date of signing on the petition. The assisting individual must then sign and print
his or her name in the margin of the petition.” McDaniel v. Spencer, 457 S.W.3d 641,
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650–51 (Ark. 2015) (cleaned up) (citing Ark. Code Ann. § 7-9-103(a)(1)(B)(i), (ii)).
And a “disability” for purposes of § 7-9-103(a)(1)(B) “is any condition that would not
allow a petitioner to write the required information on the petition without assistance.”
Id. at 651 (emphasis added). Neither party accounts for this accommodation. Yet, it
appears such an accommodation assuages the burden on the plaintiffs’ ability to engage
in core political speech by signing or circulating AVF’s initiative petition. Allen and
Gray could communicate with an AVF canvasser, like Miller, using a phone or
computer, and section 7-9-103(a)(1)(B) would, in theory, permit another person to sign
the petition for them while they observe, in person, through a window from the safety
of their homes.
Even absent section 7-9-103(a)(1)(B), however, one can imagine relatively
simple ways for individuals like Allen and Gray to safely comply with the in-person
signature requirement during the COVID–19 pandemic. As Arkansas illustrates in its
brief, for example, AVF can advertise its petition using traditional and social media
and bring the sterilized petition to Allen’s and Gray’s homes where it can be safely
transferred with little to no contact. No doubt, the in-person signature requirement
imposes real burdens. We are just not persuaded it imposes severe burdens. Strict
scrutiny is therefore not applicable.
Because the burdens are less than severe, we review Arkansas’s in-person
signature requirement to ensure it is reasonable, nondiscriminatory, and furthers an
important regulatory interest. Timmons, 520 U.S. at 358. Starting with the regulatory
interest, Arkansas says the in-person signature requirement protects the integrity of its
initiative petition process. The plaintiffs argue this interest is not so significant here
because “the risk of fraud or corruption . . . is more remote at the petition stage than
at the time of balloting.” Meyer, 486 U.S. at 427. We disagree for two reasons. First,
we have characterized a state’s interest in protecting the integrity of its initiative
processes as “paramount.” Hoyle, 265 F.3d at 704. Second, like the State of
Washington in Reed, Arkansas maintains its interest in integrity is not limited to just
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fraud and corruption. See Reed, 561 U.S. at 198. Its interest includes preventing
mistakes as well, like duplicate signatures and signatures from ineligible voters. See
id. And Arkansas’s initiative petition laws require in-person canvassers to protect
against these concerns. See Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-108. Thus,
we cannot say Arkansas lacks an important interest here.
Still, the plaintiffs argue, Arkansas did not present enough evidence to justify its
asserted regulatory interest. But states are not required to present “elaborate, empirical
verification of the weightiness of [their] asserted justifications.” Timmons, 520 U.S.
at 364. They can “respond to potential deficiencies in the electoral process with
foresight . . ., provided that the response is reasonable and does not significantly
impinge on constitutionally protected rights.” Id. (quoting Munro v. Socialist Workers
Party, 479 U.S. 189, 195–96 (1986)); see also Green Party of Ark. v. Martin, 649
F.3d 675, 686 (8th Cir. 2011) (“Arkansas need not allow itself to be harmed by such
ills before enacting appropriate measures to prevent harm.”). Under this standard,
Arkansas sufficiently demonstrated its in-person signature requirement advances an
important interest — protecting the integrity of Arkansas’s initiative process. And this
is not to mention the fact that Arkansas has encountered fraud in the initiative process
before, meaning its interest is legitimate as well as important. See Hoyle, 265 F.3d at
702 (recognizing an Arkansas special master’s finding of fraudulent initiative petition
signatures); Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (explaining courts
must “determine the legitimacy” of a state’s interest).
To pass constitutional scrutiny, then, the in-person signature requirement must
be reasonable and nondiscriminatory. As mentioned above, this requirement is
designed to have in-person canvassers ferret out fraud and mistake by ensuring, at a
minimum, only one signature per person and that signatures come from eligible voters.
See Ark. Const. art. 5, § 1; Ark. Code Ann. § 7-9-108. So at least in this regard, it is
reasonable and nondiscriminatory.
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In fairness, the plaintiffs do not argue this requirement is discriminatory. Nor
do they challenge the reasonableness of requiring in-person signatures to prevent fraud
and mistake in normal circumstances. They do, however, argue it is unreasonable to
enforce the in-person signature requirement against them during the COVID–19
pandemic. We are not convinced. Under Arkansas law, it appears Allen and Gray can
still sign AVF’s initiative petition in the presence of a canvasser from the safety of their
own homes or other safe location. See Ark. Code Ann. § 7-9-103(a)(1)(B). With the
assistance of another person, this can be done while Allen and Gray observe through
a window or from a safe distance. This possibility, along with other possibilities
irrespective of section 7-9-103(a)(1)(B), makes enforcement reasonable. See Jaeger,
241 F.3d at 617 (illustrating various ways in which non-resident canvassers could still
participate in the petition circulation process).
III. Conclusion
The district court’s decision to grant permanent injunctive relief rests on the
conclusion that Arkansas’s in-person signature and notarization requirements are
subject to strict scrutiny. They are not. The in-person notarization requirement does
not implicate the First Amendment. And the in-person signature requirement, while
implicating the First Amendment, imposes less-than-severe burdens on the plaintiffs’
rights and survives the applicable lesser scrutiny. As a result, the plaintiffs’ First
Amendment claims fail on the merits.
The district court’s judgment and grant of permanent injunctive relief are
therefore reversed. Arkansas’s pending, consolidated motion for a stay of the district
court’s judgment pending appeal is denied as moot.
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