The COVID-19 pandemic has disrupted many aspects of Americans’ lives, but as Election Day draws ever nearer, one issue that is receiving increasing attention is the effect the pandemic could have on voter participation, and thus on candidates and initiatives up and down the ballot. In late July, the Eighth Circuit joined a growing list of courts around the country that have addressed whether the pandemic requires the relaxation of certain election laws to reduce person-to-person contact.
In Miller v. Thurston, 967 F.3d 727 (8th Cir. 2020), voters, canvassers, and the non-profit organization Arkansas Voters First sought to add an initiative petition to the Arkansas ballot that would amend the state’s constitution to require that redistricting be completed by a Citizens’ Redistricting Commission comprised of registered voters who aren’t elected officials or lobbyists. Under Arkansas law, the process for adding an initiative petition to a ballot requires the signatures of at least 10 percent of Arkansas voters. Arkansas law further requires that canvassers attach to the petition signatures they collect an affidavit affirming that various procedural requirements have been met, including that all petition signatures were made in the presence of the canvasser. The canvasser’s affidavit must itself be notarized in person. In Miller v. Thurston, the plaintiffs—including supporters of the initiative with health concerns that make face-to-face communication with canvassers medically inadvisable—challenged these requirements (among others) as unduly burdening their First Amendment rights in the new reality wrought by the COVID-19 pandemic.
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