Voting from home

Petitions, ballot initiatives, and referendums have often served as tools for voters who feel unheard by legislators to take democracy into their own hands. A voter-driven ballot initiative in 2018 enshrined unborn children’s right to life in the Alabama Constitution, for example.

But the coronavirus pandemic has made gathering signatures for petitions dangerous and, in many cases, prohibited. As of Friday, 18 statewide petition drives have suspended signature gathering, five states have revised ballot procedures, and plaintiffs have filed four lawsuits to suspend or change requirements or deadlines, according to Ballotpedia.

Chicago attorney John Mauck, a constitutional law specialist who represents a group of Illinois voters, said the pandemic has invigorated a movement across the country to allow electronic signatures for ballot initiatives and voting. Some states, like New Jersey and Arizona, already allow online signature gathering. Others, like West Virginia, have gone further, allowing military members or citizens overseas to vote online.

The voters whom Mauck represents were in the process of gathering signatures for a ballot initiative related to local government before stay-at-home orders shuttered their efforts. Now they have sued to demand the state of Illinois allow people to sign petitions electronically, cut in half the 363,813 signatures required to put an initiative on the ballot, and extend the submission deadline for petitions from May 3 to Aug. 3.

Proponents of online voting and signature gathering view it as an expansion of self-government.

“To some extent, this movement is pitting the interests of entrenched governmental officials, be they Republican or Democrat, against the interest of the people in self-government,” Mauck said.

But others say moving elections and petitions online could have serious downsides. The myriad security vulnerabilities of the internet could undermine voter confidence in the electoral process, Stanford computer science professor David Dill said in a 2016 interview. Dill, whose Verified Voting Foundation mounted a successful public awareness campaign against touchscreen voting machines in the early 2000s, said, “Online voting is such a dangerous idea that computer scientists and security experts are nearly unanimous in opposition to it.”

A 2018 Pew Research poll of Americans found that more Republicans had security concerns about online voting than Democrats. But lawmakers from both parties have expressed skepticism. In a hearing last year, Sen. Ron Wyden, D-Ore., dismissed the idea: “I believe that’s about the worst thing you can do in terms of election security in America, short of putting American ballot boxes on a Moscow street.”

With the rise of the internet and the power of social media, the question of online voting was already on the horizon, but the pandemic may push it front and center much sooner.

Challenging lockdowns

After an unprecedented online hearing on Saturday, the Kansas Supreme Court struck down a resolution attempting to overrule part of the state’s stay-at-home order as it applies to churches. But the court sidestepped the religious liberty issues. Instead, it found that the seven-person Legislative Coordinating Council—a bipartisan group tasked with taking action when the legislature is not in session—exceeded its authority by attempting to block Democratic Gov. Laura Kelly’s executive action.

Republican members of the Legislative Coordinating Council argued the order targeted churches, which were subject to a 10-person limit that didn’t apply to restaurants as long as they maintained social distance. That issue, said conservative Justice Caleb Stegall in a concurring opinion, “must wait to another day for resolution.”

Most courts have upheld emergency stay-at-home orders over First Amendment challenges. But on Saturday, a federal judge in Kentucky struck down part of Louisville’s gathering ban. U.S. District Judge Justin Walker issued a temporary restraining order against Mayor Greg Fischer’s directive preventing On Fire Christian Center from holding a drive-in Easter service following social distancing guidelines. Walker called the order “stunning” and “beyond all reason.”

The judge gave an impassioned appeal for religious liberty: “For the men and women of On Fire, Christ’s sacrifice isn’t about the logic of this world. Nor is their Easter Sunday celebration. The reason they will be there for each other and their Lord is the reason they believe He was and is there for us.”

President Donald Trump recently nominated Walker for the influential U.S. Court of Appeals for the District of Columbia Circuit. —S.W.

Not over ’til it’s over

Masterpiece Cakeshop baker Jack Phillips was back in court on Thursday over his cakes—again. Attorney Autumn Scardina filed a lawsuit in Denver in June 2019 seeking $100,000 in damages after the Lakewood, Colo., baker declined to design a cake celebrating a gender transition—even after the state already dismissed a case over the same incident.

Alliance Defending Freedom attorney Jake Warner, who represents Phillips, said the hearing focused on the fairness of subjecting the baker to a second lawsuit after Scardina failed to appeal the state’s dismissal of the earlier case on the same facts. Warner expects a decision later this month.

Two years ago, the U.S. Supreme Court ruled in favor of Phillips over a similar issue, finding that members of the Colorado Human Rights Commission showed hostility toward his Christian beliefs when deciding a case about a custom cake Phillips declined to create for a same-sex wedding. —S.W.

Supreme Court dial-up

For the first time in its history, the U.S. Supreme Court will hear cases by telephone. After a two-month break, oral arguments will resume in May with a live audio feed for the news media, the court announced on Monday. Ten cases are on the new docket, including two sets of twin cases about religious liberty.

In Our Lady of Guadalupe School v. Morrissey-Berru and St. James School v. Biel, the court will rule on whether church schools or the government decide who teaches religion classes. In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania and Trump v. Pennsylvania, the justices will consider whether the nuns can keep a religious exemption from the contraceptive and abortifacient mandate in the Affordable Care Act. —S.W.