Ninth Circuit Refuses to Change Election Laws in the Middle of a Crisis

May 8, 2020
By Timothy Sandefur

A panel of federal appellate court judges this week refused to issue an order requiring Arizona officials to allow petition gatherers to accept online “signatures” in contravention of state law.

In the federal lawsuit, several initiative campaigns claimed that the shutdowns caused by the coronavirus pandemic had made it too hard to gather the signatures necessary to place their initiatives on the ballot, and therefore that laws requiring in-person signatures violated the federal Constitution. But as we argued in friend of the court briefs before the trial court and the Ninth Circuit Court of Appeals, this difficulty is not good reason for disregarding the state’s rules governing the initiative process.

In particular, Arizona’s so-called Voter Protection Act makes it prohibitively difficult to repeal or amend initiatives once they’re adopted—even if they contain important mistakes that nobody noticed during the campaign. Unlike elections for candidates—who can be recalled or voted out of office if voters are dissatisfied with their performance—elections for initiatives are often one-way streets. And that’s good reason for the state to require scrupulous compliance with the procedures for placing an initiative on the ballot.

The trial court dismissed the case, and the campaigns appealed to the Ninth Circuit, asking the judges to issue a temporary order allowing them to proceed with electronic signatures right away, and then decide the legal questions later. Of course, such an order would have essentially decided the case, given the fact that the election is approaching so rapidly. We joined the Arizona Attorney General in urging the court to deny that request, which it did on Tuesday.

Meanwhile, a similar lawsuit is still pending in the Arizona Supreme Court, where we filed this brief, making similar arguments. Electronic signature gathering might or might not be a good idea, but that question should be decided after an open and fair debate in public—it shouldn’t be decided in court in the middle of a once-in-a-century emergency. Changing the rules for elections in the midst of a crisis is never a good idea. Instead, emergencies are times when we should take care to follow the rules that have already been set down in our state’s fundamental law.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.