Case: 21-3514 Document: 27-2 Filed: 07/28/2021 Page: 1
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`RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 21a0170p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`No. 21-3514
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`CHAD THOMPSON; WILLIAM T. SCHMITT; DON
`KEENEY,
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`Plaintiffs-Appellants,
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`v.
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`RICHARD MICHAEL DEWINE, in his official capacity as
`the Governor of Ohio; STEPHANIE B. MCCLOUD, in her
`official capacity as Director of Ohio Department of
`Health; FRANK LAROSE, in his official capacity as
`Ohio Secretary of State,
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`Defendants-Appellees.
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`Appeal from the United States District Court
`for the Southern District of Ohio at Columbus.
`No. 2:20-cv-02129—Edmund A. Sargus, Jr., District Judge.
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`Decided and Filed: July 28, 2021
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`Before: SUTTON, Chief Judge; McKEAGUE, and NALBANDIAN, Circuit Judges.
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`_________________
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`COUNSEL
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`ON BRIEF: Mark R. Brown, CAPITAL UNIVERSITY LAW SCHOOL, Columbus, Ohio, for
`Appellants. Benjamin M. Flowers, ZACHERY P. KELLER, OFFICE OF THE OHIO
`ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
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`_________________
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`OPINION
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`_________________
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`PER CURIAM. This is the third time we have seen this case. Plaintiffs are three
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`Ohioans who, during the 2020 election, tried to get initiatives to decriminalize marijuana on local
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`Case: 21-3514 Document: 27-2 Filed: 07/28/2021 Page: 2
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`No. 21-3514
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`Thompson, et al. v. DeWine, et al.
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`Page 2
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`ballots. To do so, they had to comply with Ohio’s ballot-access laws. Those laws impose
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`various requirements on an initiative’s proponents, including submitting a petition with a
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`minimum number of ink signatures witnessed by the petition’s circulator.
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`Plaintiffs say the laws, as applied during the COVID-19 pandemic, made it too difficult
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`for them to get any of their initiatives on 2020 ballots. So they sued for declaratory and
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`injunctive relief. But plaintiffs tied their requests for relief exclusively to the November 2020
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`election. That election has come and gone—and with it the prospect that plaintiffs can get any of
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`the relief they asked for. This case is thus moot. We AFFIRM the district court’s dismissal of
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`plaintiffs’ complaint.
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`I.
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` We need not restate the facts at length. See Thompson v. DeWine, 461 F. Supp. 3d 712
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`(S.D. Ohio), stayed, 959 F.3d 804 (6th Cir.) (Thompson I), rev’d, 976 F.3d 610 (6th Cir. 2020)
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`(Thompson II). The short of it is this: Plaintiffs are three Ohio voters. They regularly circulate
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`petitions to get initiatives on local and statewide ballots. For the 2020 election cycle, plaintiffs
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`hoped to place initiatives on municipal ballots to decriminalize marijuana.
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`Before an initiative finds its way onto a local ballot, its proponents must circulate a
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`petition. Ohio Rev. Code Ann. § 731.28. The petition must get signatures from at least ten
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`percent of the number of electors who voted for governor in the municipality’s previous election.
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`Id. And those signatures must be original and in ink, and the petition’s circulator must witness
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`them. Id. § 3501.38. Once a petition has enough qualifying signatures, the circulator must
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`submit it to the Secretary of State at least 110 days before the election. Id. § 731.28.
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`Soon after plaintiffs filed proposed initiatives for November 2020 ballots, Ohio declared
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`a state of emergency because of COVID-19 and ordered Ohioans to stay at home. As a result,
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`plaintiffs found it harder than usual to gather signatures for their initiative petitions. So they
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`sued Governor Mike DeWine and other state officials for declaratory and injunctive relief. They
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`allege that, because the pandemic and emergency orders made signature gathering difficult,
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`“Ohio’s ballot-access requirements for popular measures proposed for Ohio’s November 3, 2020
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`election violate” the First and Fourteenth Amendments. (R. 1, Compl. at 16–17, PID 16–17.)
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`Case: 21-3514 Document: 27-2 Filed: 07/28/2021 Page: 3
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`No. 21-3514
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`Thompson, et al. v. DeWine, et al.
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`Page 3
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`And they asked the district court to “immediately place” their initiatives “on local November 3,
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`2020 election ballots without the need for supporting signatures.” (Id. at 18, PID 18.) If that
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`failed, they also asked the court to reduce the number of signatures they needed to qualify for the
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`ballot, extend the deadline for submitting petitions, and order the state to develop a way for
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`voters to sign petitions electronically.
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`The district court enjoined the ink and witness requirements, extended the deadline for
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`submitting petitions, and ordered the state to accept electronic signatures. Thompson, 461 F.
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`Supp. 3d at 739–40. We stayed that injunction, Thompson I, 959 F.3d at 804, and then reversed
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`it, Thompson II, 976 F.3d at 614. After plaintiffs unsuccessfully sought review in the Supreme
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`Court, defendants moved to dismiss plaintiffs’ complaint, claiming it was moot and barred by the
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`Eleventh Amendment. The district court, relying on our opinions in Thompson I and II,
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`dismissed the case on its merits after holding that it was not moot. Plaintiffs appeal, and we
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`review the decision de novo. See, e.g., Keys v. Humana, Inc., 684 F.3d 605, 608 (6th Cir. 2012).
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`II.
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`Under Article III of the Federal Constitution, we can only decide “Cases” or
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`“Controversies.” U.S. Const. art. III, § 2. So we adjudicate “only genuine disputes between
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`adverse parties, where the relief requested would have a real impact on the legal interests of
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`those parties.” Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 584 (6th Cir. 2006). Thus,
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`“[i]f ‘the issues presented are no longer live or the parties lack a legally cognizable interest in the
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`outcome,’ then the case is moot and the court has no jurisdiction.” Id. (quoting Los Angeles
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`County v. Davis, 440 U.S. 625, 631 (1979)).
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`A.
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`This case is moot. Plaintiffs request two types of relief, injunctive and declaratory. But
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`unlike many election cases, plaintiffs do not challenge Ohio’s ballot-access laws standing alone.
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`See Common Sense Party v. Padilla, 834 F. App’x 335, 336 (9th Cir. 2021) (COVID-related
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`challenge to a ballot-access law was moot because plaintiff did not challenge “the
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`constitutionality of the provision itself or its constitutionality as applied to [plaintiff] outside this
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`context”); cf. Storer v. Brown, 415 U.S. 724, 727 (1974).
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`Case: 21-3514 Document: 27-2 Filed: 07/28/2021 Page: 4
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`No. 21-3514
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`Thompson, et al. v. DeWine, et al.
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`Page 4
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`Instead, plaintiffs tie all their requested relief to the November 2020 election, COVID-19,
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`and Ohio’s stay-at-home orders. See Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th 548,
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`560 (6th Cir. 2021) (case was moot when plaintiff’s injury and motion for a preliminary
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`injunction were “inextricably tied to the COVID-19 pandemic, a once-in-a-century crisis”).
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`Plaintiffs’ complaint was one to “declare unconstitutional, enjoin and/or modify” Ohio’s ballot-
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`access laws so that their initiatives could be included “on Ohio’s November 3, 2020 general
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`election ballot.” (R. 1, Compl. at 1, PID 1.) Why? Because “the current public health
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`emergency caused by COVID-19 and defendant DeWine’s and defendant Acton’s emergency
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`orders effectively shutting down the State” made it hard for them to gather signatures. (Id.) So
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`they asked the court to “immediately place” their initiatives “on local November 3, 2020 election
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`ballots.” (Id. at 18, PID 18.) And in case they didn’t get that relief, plaintiffs also asked the
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`court to enjoin enforcement of Ohio’s ballot-access laws and to unilaterally modify them—but
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`again, only “for Ohio’s November 3, 2020 general election,” and only because COVID-19 and
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`Ohio’s stay-at-home orders made signature gathering too difficult. (Id. at 14, PID 14, 18–19,
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`PID 18–19.)
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`Without a time machine, we cannot go back and place plaintiffs’ initiatives on the 2020
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`ballot. So plaintiffs’ first request for injunctive relief is moot. See Lawrence v. Blackwell,
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`430 F.3d 368, 371 (6th Cir. 2005); Ariz. Green Party v. Reagan, 838 F.3d 983, 987 (9th Cir.
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`2016) (“The 2014 election has come and gone, so we cannot devise a remedy that will put the
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`Green Party on the ballot for that election cycle.”). And plaintiffs’ alternative requests for an
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`injunction, which they tied specifically to the 2020 election, also became moot when the election
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`passed. Memphis A. Philip Randolph Inst. v. Hargett, 2 F.4th at 560; Operation King’s Dream
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`v. Connerly, 501 F.3d 584, 591 (6th Cir. 2007); Padilla, 834 F. App’x at 336 (noting in a
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`COVID-19 election case that “the occurrence of an election moots relief sought with respect to
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`that election cycle”).
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`Plaintiffs’ request for declaratory relief is likewise moot. To determine whether a request
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`for declaratory relief is moot, we ask “whether the facts alleged, under all the circumstances,
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`show that there is a substantial controversy, between parties having adverse legal interests,
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`of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Preiser v.
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`Case: 21-3514 Document: 27-2 Filed: 07/28/2021 Page: 5
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`No. 21-3514
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`Thompson, et al. v. DeWine, et al.
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`Page 5
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`Newkirk, 422 U.S. 395, 402 (1975) (emphasis altered) (quoting Md. Cas. Co. v. Pac. Coal & Oil
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`Co., 312 U.S. 270, 273 (1941)).
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`No such controversy exists for plaintiffs’ declaratory relief claim. Like their demands for
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`injunctive relief, plaintiffs tie their declaratory relief request specifically to the 2020 election.
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`They ask the court to declare that Ohio’s ballot-access laws—as applied to “measures proposed
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`for local November 3, 2020 elections in Ohio”—violate the Constitution “in light of the current
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`public health emergency caused by the COVID-19 pandemic and the executive orders requiring
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`that Ohio citizens stay at home and shelter in place.” (R. 1, Compl. at 19, PID 19.) But those
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`orders are no longer in place, and the election is over. (See Rescinded Public Health Orders,
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`OHIO DEP’T OF HEALTH, https://coronavirus.ohio.gov/wps/portal/gov/covid-19/resources/public-
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`health-orders/public-health-orders-rescinded (last accessed July 23, 2021, 9:45 AM)). So no
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`“substantial controversy” of “immediacy and reality” exists. See Preiser, 422 U.S. at 402; see
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`also 28 U.S.C. § 2201 (requiring “a case of actual controversy” before a court can issue
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`declaratory relief).
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`Plaintiffs sought specific relief. They challenged Ohio’s ballot-access laws as applied to
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`the unique circumstances existing during the 2020 election. But because of intervening events—
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`the passing of the election and the rescission of Ohio’s stay-at-home orders and emergency
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`declaration—we cannot give plaintiffs what they ask for. Chafin v. Chafin, 568 U.S. 165, 172
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`(2013) (noting that a case is moot when the court cannot “grant any effectual relief”); Maryville
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`Baptist Church, Inc. v. Beshear, 977 F.3d 561, 564 (6th Cir. 2020). Thus, “in view of the limited
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`nature of the relief sought, we think the case is moot because the . . . election is over.”
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`Brockington v. Rhodes, 396 U.S. 41, 43 (1969).
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`B.
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`The capable-of-repetition-yet-evading-review exception to mootness does not apply here.
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`See Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007). Plaintiffs point
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`out that they are trying to get initiatives on the ballot for local 2021 elections. And because
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`COVID-19 persists, the threat that Ohio will again implement stay-at-home orders keeps this
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`case alive.
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`Case: 21-3514 Document: 27-2 Filed: 07/28/2021 Page: 6
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`No. 21-3514
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`Thompson, et al. v. DeWine, et al.
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`Page 6
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`The capable-of-repetition exception features regularly in election disputes. See In re
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`2016 Primary Election, 836 F.3d 584, 588 (6th Cir. 2016). To be capable of repetition but
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`evading review, a dispute must satisfy a two-pronged test. First, the challenged action must be
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`too short in duration for the parties to fully litigate it before it becomes moot. And second, there
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`must be “a reasonable expectation that the same complaining party will be subject to the same
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`action again.” Wis. Right to Life, 551 U.S. at 462 (quoting Spencer v. Kemna, 523 U.S. 1, 17
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`(1998)). We can assume the first prong is met here, as it commonly is in election cases. See
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`Lawrence, 430 F.3d at 371.
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`But plaintiffs falter on the second prong. To be sure, we relax our inquiry at this step for
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`election cases. See Memphis A. Philip Randolph Inst., 2 F.4th at 560. So plaintiffs need not
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`show that the same controversy will recur “down to the last detail.” Wis. Right to Life, 551 U.S.
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`at 463. In other words, “[t]o be capable of repetition, ‘the chain of potential events does not have
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`to be air-tight or even probable.’” Memphis A. Philip Randolph Inst., 2 F.4th at 560 (quoting
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`Barry v. Lyon, 834 F.3d 706, 716 (6th Cir. 2016)). Still, “a mere physical or theoretical
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`possibility” that the events prompting the suit will come back is not enough. Murphy v. Hunt,
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`455 U.S. 478, 482 (1982). So a case “is not capable of repetition if it is based on a unique
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`factual situation.” Memphis A. Philip Randolph Inst., 2 F.4th at 560; see also Libertarian Party
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`of Ohio, 462 F.3d at 584.
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`If any case is “based on a unique factual situation,” this one is. See Memphis A. Philip
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`Randolph Inst., 2 F.4th at 560. As pled, plaintiffs’ claims “are inextricably tied to the COVID-
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`19 pandemic.” Id. A once-in-a-lifetime global pandemic prompted unprecedented stay-at-home
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`orders right as election machinery was gearing up. The pandemic dissuaded the public from
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`going outdoors, interacting with strangers, and gathering in groups—the situations plaintiffs say
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`they rely on to solicit signatures. But the situation today differs markedly from a year ago.
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`“Fortunately, because of advancements in COVID-19 vaccinations and treatment since this case
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`began, the COVID-19 pandemic is unlikely to pose a serious threat during the next election
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`cycle.” Id. And so “[t]here is not a reasonable expectation” that plaintiffs “will face the same
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`burdens” that they did in 2020. Id.
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`Case: 21-3514 Document: 27-2 Filed: 07/28/2021 Page: 7
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`No. 21-3514
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`Thompson, et al. v. DeWine, et al.
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`Page 7
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`Plaintiffs insist that “[t]here is not only a likelihood of recurrence, there is recurrence
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`here.” (Appellant Br. at 38.) They say COVID-19 remains a “full blown crisis” hampering their
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`efforts to gather signatures for 2021 initiatives. (Id.) But we recently rejected a similar
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`argument in another election case, citing advancements in the COVID-19 vaccine and treatment.
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`See Memphis A. Randolph Institute, 2 F.4th at 560–61; see also People Not Politicians Or. v.
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`Fagan, No. 6:20-cv-01053-MC, 2021 WL 2386118, at *3 (D. Or. June 10, 2021).
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`Plaintiffs also insist that Ohio’s COVID restrictions not only hampered their ability to
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`gather signatures for the 2020 election but also carried over to the 2021 election. Plaintiffs claim
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`that they could have used “[s]ignatures collected between March and July of 2020 . . . to qualify
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`initiatives for the November 2, 2021 ballot.” (Appellant Br. at 40.) Even if that’s true, this is the
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`first time plaintiffs are saying so. See Operation King’s Dream, 501 F.3d at 592 (“Because the
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`Plaintiffs present this argument for the first time on appeal, we decline to address it.”). All
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`along, plaintiffs have claimed Ohio violated their constitutional rights as it relates to the
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`November 2020 election and the emergency surrounding it. “Plaintiffs’ decision on appeal to
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`alter the relief sought and transform the cause of action further underscores that their appeal is
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`moot.” Id.
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`Finally, plaintiffs fall back on their fear that a future pandemic could wreak similar havoc
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`on elections. This speculation does not get the job done. See Speer v. City of Oregon, 847 F.2d
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`310, 311–12 n.3
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`(6th Cir. 1988)
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`(“Plaintiff cannot avoid mootness by engaging
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`in speculation that at some point in the future she may move and then return and seek to run for
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`City Council and again be subjected to the residency requirement.”); People Not Politicians,
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`2021 WL 2386118, at *3 (rejecting a COVID election challenge as moot in part because
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`plaintiffs’ argument “that the circumstances that led to Plaintiffs’ as-applied challenge following
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`the 2020 election cycle ‘could recur’ is highly speculative”). Because of the specific relief
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`sought and the unique harm alleged, this is not a case when “the controversy” prompting the
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`lawsuit “almost invariably will recur with respect to some future” ballot initiatives. See
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`Lawrence, 430 F.3d at 372; see also Libertarian Party of Mich. v. Johnson, 714 F.3d 929, 932
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`(6th Cir. 2013).
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`Case: 21-3514 Document: 27-2 Filed: 07/28/2021 Page: 8
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`No. 21-3514
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`Thompson, et al. v. DeWine, et al.
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`Page 8
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`Ohioans had to make sacrifices as the state responded to COVID-19. We appreciate the
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`III.
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`difficulties the virus posed to plaintiffs’ efforts to gather signatures for their initiatives. But the
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`event for which plaintiffs sought relief has passed. So their claims are now moot. We affirm the
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`district court’s dismissal of their complaint.
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