On August 7, the Sixth Circuit issued an opinion in Schmitt v LaRose, 19-3196. This is the case that challenged the ability of county election boards to reject local initiatives, if the election board feels the initiative would be unconstitutional if it were passed by the voters. The U.S. District Court had ruled that letting non-judicial bodies reject an initiative based on its content is an unconstitutional prior restraint on free speech. But the Sixth Circuit wrote that the First Amendment’s restriction on prior restraint of speech does not apply to initiatives.

UPDATE: see this news story.

The case arose in Ohio, when a local initiative concerning marijuana decriminalization had enough valid signatures, but the county board of elections rejected it based on its content. Ohio law says that when a local initiative is removed based on its content, the proponents can request a writ of mandamus from a state court, and try to get back on the ballot. The initiative proponents had argued that the mandamus procedure is insufficient, but the Sixth Circuit felt it is an adequate remedy.

The opinion is by Judge Helen N. White, a Bush Jr. appointee (although originally Clinton had tried to appoint her). It is also signed by Judge Eric L. Clay, a Clinton appointee; and John K. Bush, a Trump appointee. Judge Bush wrote separately to take an even stronger position in favor of the county election board defendants.