                               RECOMMENDED FOR PUBLICATION
                               Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                      File Name: 20a0238p.06

                   UNITED STATES COURT OF APPEALS
                                  FOR THE SIXTH CIRCUIT



 HOWARD HAWKINS; DARIO HUNTER; JOSEPH R.                    ┐
 DEMARE; BECCA CALHOUN; NATHANIEL LANE; BRETT               │
 JOSEPH; ANITA RIOS,                                        │
                           Plaintiffs-Appellants,           │
                                                             >        No. 20-3717
                                                            │
        v.                                                  │
                                                            │
                                                            │
 MIKE DEWINE; FRANK LAROSE; AMY ACTON,                      │
                           Defendants-Appellees.            │
                                                            ┘

                         Appeal from the United States District Court
                        for the Southern District of Ohio at Columbus.
                    No. 2:20-cv-02781—James L. Graham, District Judge.

                                    Argued: July 27, 2020

                              Decided and Filed: August 3, 2020

             Before: COLE, Chief Judge; SILER and STRANCH, Circuit Judges.
                                  _________________

                                           COUNSEL

ARGUED: Robert J. Fitrakis, FITRAKIS & GADELL-NEWTON, LLC, Columbus, Ohio, for
Appellants. Benjamin M. Flowers, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellees. ON BRIEF: Robert J. Fitrakis, FITRAKIS & GADELL-
NEWTON, LLC, Columbus, Ohio, for Appellants. Benjamin M. Flowers, OFFICE OF THE
OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
                                     _________________

                                            OPINION
                                     _________________

       COLE, Chief Judge. In response to the COVID-19 pandemic, the State of Ohio issued a
series of orders restricting in-person gatherings. But it left unchanged its ballot-access laws,
 No. 20-3717                         Hawkins, et al. v. DeWine, et al.                     Page 2


which require candidates and minor political parties hoping to be listed on November’s ballot to
show that they have a modicum of community support by collecting petition signatures from
Ohio voters. The law requires that the signatures be collected in person, a task which has
become more difficult in the era of social distancing. This case presents us with the question
whether the State’s ballot-access requirements, as applied, have become unconstitutionally
burdensome in light of the orders restricting in-person gatherings. Binding precedent compels us
to conclude that they are not. We therefore affirm the district court.

                                        I. BACKGROUND

       A.      Ohio’s Ballot-Access Laws

       Two of the plaintiffs in this case—Howard “Howie” Hawkins and Dario Hunter—seek to
qualify to run as independent candidates for President of the United States in the November 2020
election. To do so, Ohio law requires them to file with the Ohio Secretary of State a nominating
petition with no fewer than 5,000 signatures of qualified Ohio electors by August 5, 2020. See
Ohio Rev. Code § 3513.257. The signatures must be signed in ink next to the voter’s name.
Ohio Rev. Code §§ 3501.011(A), 3501.38(B). Each individual circulating petitions for an
independent candidate must also sign a statement stating that they witnessed the signature. Ohio
Rev. Code § 3501.38(E). The upshot of these two requirements is that each signature must be
collected and witnessed in person.

       Another set of plaintiffs—Joseph R. DeMare, Nathaniel Lane, Brett Joseph, Becca
Calhoun, and Anita Rios—seek to gather signatures for two purposes: to nominate candidates for
the November 2020 election and to form the Green Party as a minor political party under Ohio
law. To attain that status, the Green Party must file a party formation petition with the Ohio
Secretary of State by June 30, 2020. See Ohio Rev. Code § 3517.012(A). The petition must
include signatures from registered voters equal in number to at least one percent of the total vote
in the 2018 Ohio gubernatorial election. See Ohio Rev. Code § 3517.01(A)(1)(b)(i). As with the
individual candidate petitions, those signatures must be collected in person. Ohio Rev. Code
§ 3517.012; see also Ohio Rev. Code § 3513.257.
 No. 20-3717                       Hawkins, et al. v. DeWine, et al.                         Page 3


        Plaintiffs allege that their signature collection efforts were ongoing until the beginning of
the pandemic. But the Complaint contains no allegations as to how many signatures had been
collected before their efforts halted or whether any efforts to collect signatures have continued
since the pandemic’s onset.

       B.      Ohio’s Response to COVID-19

       As COVID-19 spread across the country, Ohio began issuing orders aimed at restricting
person-to-person contact. On March 12, 2020, the State prohibited mass gatherings of 100 or
more people. March 12 Order at ¶ 2, available at https://bit.ly/308nCso. A March 17 order
further limited gatherings to 50 people.            March 17 Order at ¶ 5, available at
https://bit.ly/3hLCjrz. Then, on March 22, the State issued an order requiring Ohioans to stay at
home. March 22 Order at ¶ 1, available at https://bit.ly/3hMb7ZH. Each of these orders
contained an explicit exception for conduct protected by the First Amendment. March 12 Order
at ¶ 7; March 17 Order at ¶ 5; March 22 Order at ¶ 12(g). On April 30, as the stay-at-home order
eased, Ohio issued an order that continued to prohibit most “public and private gatherings” of
people, but made explicit that excepted First Amendment protected speech included, among
other things, “petition and referendum circulators.” April 30 Order at ¶ 4, available at
https://bit.ly/309GgAl.

       C.      Procedural History

       Plaintiffs argue that these orders transform the ballot-access laws—which they agree are
constitutional in normal times—into unconstitutional burdens on their First Amendment and
Fourteenth Amendment rights. They seek either to enjoin enforcement of the ballot-access laws
as applied to them, or to obtain a court order placing Hawkins and Hunter on the November 2020
Presidential ballot and that would form the Green Party as a minor political party in the State of
Ohio. The district court granted the State’s motion to dismiss, denied Plaintiffs’ motion for
preliminary injunction, and entered judgment in favor of the State. Plaintiffs now appeal.
 No. 20-3717                        Hawkins, et al. v. DeWine, et al.                        Page 4


                                          II. ANALYSIS

       A.      The Anderson-Burdick Framework

       “Common sense, as well as constitutional law, compels the conclusion that government
must play an active role in structuring elections; ‘as a practical matter, there must be a substantial
regulation of elections if they are to be fair and honest and if some sort of order, rather than
chaos, is to accompany the democratic processes.’” Burdick v. Takushi, 504 U.S. 428, 433
(1992) (quoting Storer v. Brown, 415 U.S. 724, 730 (1974)). But this regulatory power is
accompanied by significant risk, as laws that structure elections “inevitably affect[]—at least to
some degree—the individual’s right to vote and his right to associate with others for political
ends.” Anderson v. Celebrezze, 460 U.S. 780, 788 (1983). To determine whether a state election
law unduly burdens these crucial constitutional rights, we:

       must weigh ‘the character and magnitude of the asserted injury to the rights
       protected by the First and Fourteenth Amendments that the plaintiff seeks to
       vindicate’ against ‘the precise interests put forward by the State as justifications
       for the burden imposed by its rule,’ taking into consideration ‘the extent to which
       those interests make it necessary to burden the plaintiff’s rights.’

Burdick, 504 U.S. at 434 (quoting Anderson, 460 U.S. at 789)). This balancing test is referred to
as the Anderson-Burdick framework.

       Under the Anderson-Burdick framework, we first “determine the burden the State’s
regulation imposes on the plaintiffs’ First Amendment rights.” Thompson v. DeWine, 959 F.3d
804, 808 (6th Cir. 2020) (order) (per curiam). “[W]hen those rights are subjected to ‘severe’
restrictions,” the regulation is subject to strict scrutiny and “must be ‘narrowly drawn to advance
a state interest of compelling importance.’” Burdick, 504 U.S. at 434 (quoting Norman v. Reed,
502 U.S. 279, 289 (1992)).         But when those rights are subjected only to “reasonable,
nondiscriminatory restrictions,” the regulation is subject to rational-basis review because “the
State’s important regulatory interests are generally sufficient to justify” the restriction.       Id.
(quoting Anderson, 460 U.S. at 788). “For cases between these extremes, we weigh the burden
imposed by the State’s regulation against ‘the precise interests put forward by the State as
justifications for the burden imposed by its rule, taking into consideration the extent to which
 No. 20-3717                            Hawkins, et al. v. DeWine, et al.                             Page 5


those interests make it necessary to burden the plaintiff’s rights.” Thompson, 959 F.3d at 808
(quoting Burdick, 504 U.S. at 434 (internal quotation marks omitted)).

        B.       The Burden Imposed

        Plaintiffs do not argue that the state’s application of the ballot-access requirements to
them is unconstitutional because it is unduly burdensome to require in-person signature
collection during the COVID-19 pandemic. We therefore do not address that difficult question
here. Rather, they argue that it is the state’s response to the pandemic—specifically, the March
12, March 17, and March 22 Orders—that render the ballot-access laws unconstitutional as
applied to them. And though the April 30 Order explicitly exempted “petition and referendum
circulators” from the restrictions, April 30 Order at ¶ 4, available at https://bit.ly/309GgAl,
Plaintiffs argue that that exemption was “overshadowed” by the order’s requirement that
Ohioans continue to socially-distance. (Appellant Br. at p. 21). The question, then, is how to
classify the burden imposed on Plaintiffs by Ohio’s ballot-access laws in the period between
March 12 and the deadline for petition submission.

        We recently answered this precise question as applied to plaintiffs seeking to place local
initiatives and constitutional amendments on the November ballot. We determined that Ohio’s
ballot-access laws—in conjunction with the State’s COVID-19 orders—placed only an
“intermediate” burden the on plaintiffs’ access to the ballot. Compare Thompson, 959 F.3d at
809–11 with Esshaki v. Whitmer, No. 20-1336, 2020 WL 2185553, at *1 (6th Cir. May 5, 2020)
(order).

        Plaintiffs’ attempt to distinguish Thompson is unavailing. They argue that the Thompson
court “did not consider” whether the exceptions protecting First Amendment activity in the
March 12, 17, and 22 orders are unconstitutionally vague.1 (Appellant Br. at 19; see also
Appellant R. Br. at p. 7). But the orders explicitly exempt First Amendment protected speech,
and it is well-established that the act of collecting signatures for ballot access falls under that

        1The   notion that the Thompson court “did not consider” whether the language was vague is—at best—
tendentious. An argument identical to the ones Plaintiffs make here was briefed in Thompson. (No. 20-3526,
Thompson v. DeWine, Dkt. No. 21, Appellee Br. at p. 12–13; No. 20-3526, Thompson v. DeWine, Dkt. No. 26,
Appellant Br. at p. 9). So the court had the opportunity to consider it—it just appears not to have credited it.
 No. 20-3717                        Hawkins, et al. v. DeWine, et al.                       Page 6


ambit. Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 194 (1999) (describing
petition circulation as “core political speech”); Meyer v. Grant, 486 U.S. 414, 421–22, 425
(1988) (noting that First Amendment protection is “at its zenith” when it comes to petition
circulation). There is therefore no reason for us to depart from Thompson’s conclusion that the
burden imposed on Plaintiffs by Ohio’s ballot-access statutes—in light of the state’s response to
the pandemic—is an intermediate one.

       C.      The State’s Justification for the Restrictions

       Having classified the burden as intermediate, “[a]t the second step of Anderson-Burdick
we consider the State’s justifications for the restrictions.” Schmitt v. LaRose, 933 F.3d 628, 641
(6th Cir. 2019). The State offers several justifications for enforcing the ballot-access laws. First,
requiring a modicum of support for ballot access furthers the State’s substantial interest in fair
and orderly elections by avoiding “overcrowded ballots.” See id. (quoting Jolivette v. Husted,
694 F.3d 760, 769 (6th Cir. 2012)). Second, the in-person signature requirements further the
State’s interest in verifying the authenticity of the signatures, thereby “decreas[ing] the odds that
fraud will corrupt Ohio’s election process.” (Appellee Br. at p. 36). Third, the State argues that
enforcement of the deadlines for submitting petitions ensures that election officials have time to
verify the signatures, that any necessary judicial review can proceed, and that ballots can be
printed in time to send to military and overseas voters. Plaintiffs do not meaningfully dispute
these interests, which—as we observed in Thompson—are legitimate. 959 F.3d at 811.

       D.      The Constitutional Validity of the Restrictions

       “At the third step of Anderson-Burdick we assess whether the State’s restrictions are
constitutionally valid given the strength of its proffered interests.” Schmitt, 933 F.3d at 641.
Under Thompson, election administration interests identical to those Ohio proffers here
“outweigh the intermediate burden those regulations place on Plaintiffs.” 959 F.3d at 811.
Plaintiffs therefore do not state a claim upon which we can grant relief. Fed. R. Civ. P. 12(b)(6).

                                       III. CONCLUSION

       We affirm the district court’s order dismissing this case.
