Just two days after a federal district court’s preliminary injunction allowed use of e-signatures to satisfy some Ohio election requirements, the Ohio Attorney General has taken the unusual step of asking the en banc Sixth Circuit to overturn or stay the injunction. And the Sixth Circuit responded with equal if not greater alacrity, calling within hours for short-fuse opposition briefing.

Ohio groups advocating minimum-wage, voting-rights, and marijuana ballot initiatives for the fall election asked the Southern District of Ohio to allow electronic signatures to satisfy voting-law requirements. Public-health concerns surrounding coronavirus transmission, they argued, made traditional pen-and-paper signatures untenable. The Ohio Constitution, however, requires signatures in ink, and the state has raised concerns regarding fraud.

The district court held that the First Amendment, under current circumstances, entitles the advocacy groups to use electronic signatures and requires Ohio to extend the signature-collection deadline by a month to July 31. The court declined, however, to reduce the number of signatures required or to simply place the initiatives on the ballot directly. This decision follows hot on the heels of the Sixth Circuit’s May decision in Esshaki v. Whitmer, 2020 WL 2185553 (May 5, 2020), a split order, which addressed the First Amendment’s applicability to state election signature requirements and deadlines.

The Ohio AG’s appeal is notable for its speed (filed less than two days after the district court order) and its target (straight to en-banc review). The government also requested an administrative stay and stay pending appeal. Four hours later, the court asked the plaintiffs to respond to the en banc petition in a week. Happy drafting!

Following the initial surge of covid-related litigation over shutdown orders and religious gatherings, Ohio’s election appeal is part of a next wave of pandemic litigation worth watching. The case is Thompson v. DeWine, No. 20-3526.