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Mer R ..: State of Michigan Summons Case No
Mer R ..: State of Michigan Summons Case No
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Plaintiff's attorney, bar no., address, and telephone no.
Kurtis T. Wilder (P37017)
Joseph E. Richotte (P70902
lffi SEP 2 4 2020 ~
Steven R. Eatherly (P8 l l 80)
150 W. Jefferson, Suite 100, Detroit, Ml 48226 COURT OF CLAIMS
(313) 22-7000
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Civil Case
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STATE OF MICHIGAN
IN THE COURT OF CLAIMS
"Republican Committees") file this Verified Complaint for Declaratory Relief against the
INTRODUCTION
election laws, specifically: (I) the prohibition against strangers possessing and delivering absent
voter ("AV") ballots ("harvesting ban"), MCL 168.932(f), and (2) the deadline for AV ballots to be
counted when the polls close at 8 p.m. on election day ("ballot receipt deadline"), MCL 168.764a,
168.720, are enforceable both facially and as generally applied to the November general election.
2. The Republican Committees acknowledge that the Court enjoined the harvesting
ban and ballot receipt deadline as generally applied to the general election in Michigan Alliance
for Retired Americans v Benson, No. 2020-000108-MM (the "9-18-20 Order") (Ex. 1). The
Organizations & Others for Education About Parochiaid v State, 321 Mich App 456(2017), which
interpreted the Court of Claims jurisdictional statute, MCL 600.6419, and held that the Court lacks
subject-matter jurisdiction over claims against intervening private parties. The Republican
Committees believe that the Council of Organizations ruling was wrongly decided, but in any
event, it is not applicable here as the Republican Committees bring this original action against
State Defendants.
3. The Republican Committees have exhausted their direct appeal to overturn Council
of Organizations, and thus have exhausted their attempt to intervene as defendants in Michigan
Alliance, to protect their interests, as well as the interests of their voters, candidates and members.
4. After the Court enjoined the harvesting ban and ballot receipt deadline, the
Secretary of State and the Attorney General have publicly announced their intention not to enforce
the challenged laws for the general election on the basis of voters and local clerks "need[ing]
certainty."
5. With no parties defending the ertjoined laws, the Republican Committees seek
declaratory relief that the harvesting ban and ballot receipt deadline are enforceable both facially
and as generally applied to the general election. 1
JURISDICTION
On September 21, 2020, the Legislature filed a renewed motion to intervene for purposes
of appeal, in which counsel for State Defendants concurred. The Court ordered the parties to file
responses to the Legislature's motion by September 28. Regardless of the Court's ruling on the
Legislature's motion, the Republican Committees are entitled to seek declaratory relief in the
present action to protect their interests, as well as the interests of their voters, candidates and
members.
2
6. The Court has exclusive, original subject-matter jurisdiction over this action
8. The Court has the authority to enter a declaratory judgment under MCR 2.605.
PARTIES
USC 30101. It manages the Republican Pmiy's business at the national level, supports Republican
candidates for public office at all levels, coordinates fundraising and election strategy, and
11. Plaintiff Michigan Republican Party is a recognized major political party, see MCL
168.16, that works to promote Republican values and to assist Republican candidates in obtaining
12. Republican Committees have "direct" and "significant" interests in the continued
enforcement of state laws governing ballot-receipt deadlines, postage requirements, and ballot-
harvesting, as those laws are designed to serve "the integrity of [the] election process," Eu v San
Fran Cty Democratic Cent Comm, 489 US 214, 231 (1989), and the "orderly administration" of
elections, Crawford v Marion Cty Election Bd, 553 US 181, 196 (2008). Federal courts "routinely"
find that political parties have interests in litigation regarding elections and election procedures.
See Issa v Newsom, 20-01044; 2020 WL 3074351, at *3 (ED Cal, June 10, 2020). That is ce1iainly
true where, as here, "changes in voting procedures could affect candidates running as Republicans
and voters who [are] members of the ... Republican Party." Ohio Democratic Party v Blackwell,
No. 04-1055; 2005 WL 8162665, *2 (SD Ohio, Aug. 26, 2005); see id. (under such circumstances,
"there [was] no dispute that the Ohio Republican Party had an interest in the subject matter of this
case").
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13. Plaintiffs have interests-their own and those of their members-in the rules
chief election officer of the state" with "supervisory control over local election officials in the
performance of their duties under the provisions of' the Michigan Election Law. M CL 168 .21. The
Secretary of State is responsible for "[a]dvis[ing] and direct[ing] local election officials as to the
proper methods of conducting elections" and providing to each precinct "specific instructions on
assisting voters in casting their ballots." MCL 168.3 l(l)(b)-(c). The Secretary of State, personally
and through the conduct of her employees, officers, agents, and servants, acted under color of State
15. Defendant Attorney General, an office currently held by Dana Nessel, is Michigan's
top law enforcement official and is responsible, along with other prosecuting attorneys, for
prosecuting the laws of Michigan. MCL 168.940. The Attorney General, personally and through
the conduct of her employees, officers, agents, and servants, acted under color of State law at all
COUNT!
DECLARATORY JUDGMENT
16. In Michigan Alliance, the plaintiffs sued the Secretary of State and Attorney
General to enjoin enforcement of Michigan's harvesting ban and ballot receipt deadline for the
by Council of Organizations where the court reasoned that the Court of Claims does not have
jurisdiction to allow private parties to intervene as defendants, even in actions "against the state."
321 Mich App at 467-68. The Republican Committees argued that Council of Organizations was
2
The Michigan Alliance plaintiffs also challenged Michigan law that requires voters who
return their AV ballots by mail to provide their own postage, MCL 168.764a(a), which is not at
issue here.
4
wrongly decided as applied in that case. Nothing in the Court of Claims' jurisdictional statute-or
any other statute relating to the Court of Claims-bars the intervention of nongovernmental parties
as defendants. And denying intervention to the Republican Committees precluded them from
defending their interests in a proceeding in which those interests were irreparably harmed,
18. The Court, bound by Council of Organizations, denied the Republican Committees'
motion and held that Council of Organizations "precludes [the Republican Committees] from
intervening as defendants in this matter" (the "7-14-2020 Order"). The Court further found that
their interests were adequately represented. Finally, the Court sua sponte granted the Republican
19. The Republican Committees filed an emergency application for leave to appeal
with the Court of Appeals. Shortly after, the Republican Committees filed with the Supreme Court
an emergency bypass application for leave to appeal before decision by the Court of Appeals. The
Court of Appeals denied the Republican Committees' application on the basis that the Court is
bound by Council of Organizations (the "8-18-2020 Order"). Then, the Supreme Court denied the
Republican Committees' emergency application not persuaded that the question presented should
be reviewed (the "8-28-2020 Order"). The Republican Committees filed a timely motion for
20. On September 18, 2020, within 50 days until the general election, the Court found
that the harvesting ban and ballot receipt deadline are unconstitutional as generally applied to the
November 2020 general election in light of the COVID-19 pandemic, and enjoined these election
21. First, the Court enjoined the harvesting ban for the general election from 5:00 p.m.
on Friday, October 30, 2020, until the close of the polls on Tuesday, November 3, 2020, without
any restrictions on who may solicit and return AV ballots from Michigan voters.
22. Second, the Court enjoined the ballot receipt deadline to allow all AV ballots
postmarked by November 2, 2020 (the day before election day) and received by November 17,
5
2020 (the deadline for certifying election results)-14 days after the general election, see MCL
23. These rulings in Michigan Alliance are both legally and factually erroneous.
24. The Secretary of State and the Attorney General have publicly announced that they
will neither appeal these rulings nor enforce the harvesting ban and ballot receipt deadline-
harvesting ban and ballot receipt deadline are enforceable both facially and as generally applied to
26. "In a case of actual controversy within its jurisdiction, a Michigan court of record
may declare the rights and other legal relations of an interested party seeking a declaratory
judgment, whether or not other relief is or could be sought or granted." MCR 2.605(A)(l ).
27. There is an actual controversy and present controversy between the parties.
28. The Republican Committees' claim for declaratory relief became ripe following the
enforce the long-standing harvesting ban and ballot receipt deadline before the general election.
30. The harvesting ban and ballot receipt deadline are constitutional both facially and
as generally applied to the general election for the arguments set forth in Republican Committees'
brief as amici curiae in Michigan Alliance, which are incorporated herein. (Ex. 3).
31. The harvesting ban is constitutional and not preempted by federal law. The
Legislature has the constitutional authority to enact laws to preserve the purity of elections, to
3
LeBlanc, Michigan clerks must accept late ballots ff mailed by Nov. 2,judge rules, Detroit
News (Sept. 18, 2020), https://perma.cc/7M6G-HKEZ (Ex. 2) ("Attorney General Dana Nessel's
office said it will not appeal [Judge] Stephens' decision, nor a separate voting decision issued
Thursday in federal court. 'With the November election quickly approaching, voters and local
clerks need certainty-and these decisions provide that,' said Ryan Jarvi, a spokesman for Nessel.
'Therefore, we do not intend to appeal, but rather will use this time to educate and inform voters
of their rights."').
6
guard against abuses of the elective franchise, and to provide for a system of voter registration and
absentee voting. See 1963 Const, a1i 2, § 4(2). The State's important regulatory interests are
sufficient to justify the reasonable, nondiscriminatory restrictions under the harvesting ban,
undue influence, voter fraud, ballot tampering, and voter intimidation. The harvesting ban
preserves the integrity of absentee voting by increasing the likelihood that a voter will entrust his
or her AV ballot with someone who is both familiarly trustworthy and legally accountable.
33. Fmiher, on September 17, 2020-the day before the Court's injunctions m
Michigan Alliance-a federal court denied a similar challenge to Michigan's prohibition that
strangers cannot solicit and return AV ballot applications from Michigan voters. Priorities USA v
Nessel, No. 19-13341 (ED Mich, Sept. 17, 2020) (Ex. 4). 4 There, the court found that the plaintiffs'
First Amendment, void-for-vagueness, and federal preemption under the Section 208 of the Voting
Rights Act, 52 USC 10508, arguments were unlikely to succeed on the merits. The court ultimately
denied the plaintiffs' motion for a preliminary injunction relating to Michigan's AV ballot
application harvesting law. The federal court's persuasive ruling should apply equally to harvesting
AV ballots.
34. The ballot receipt deadline is also constitutional. The Michigan Court of Appeals
recently held that the ballot receipt deadline is a "policy decision," which "does not effectively
preclude a voter from completing the process of voting by absentee ballot during the 40 days before
the election." League of Women Voters of Mich v Secretary of State, -Mich App-; 2020 WL
3980216, at *8-9 (2020). As-applied challenges should be rejected for the substantive reasons
35. COVID-19 does not nullify the Legislature's obligation to set a deadline "for the
submission of the completed ballot to election officials" and the ballot receipt deadline "does not
4
The Court may consider federal authority when interpreting Michigan's constitutional
protections. See Thomas M Cooley Law Sch v Doe I, 300 Mich App 245, 256 (2013).
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effectively preclude a voter from completing the process of voting by absentee ballot during the
40 days before the election." Id. at *9. These are election policy decisions best left to the
Legislature. See State Farm v Old Republic Ins Co, 466 Mich 142, 149 (2002) ("It is not the role
of the judiciary to second-guess the wisdom of a legislative policy choice; our constitutional
caused by COVID-19, states have an even greater interest in avoiding judicial interference with
the laws and processes which have long been in place to protect the integrity of elections.
36. The Republican Committees are forced to bring the present action because Council
Alliance in which those interests were iITeparably harmed, constituting a violation of due process.
37. State Defendants further refuse to enforce the harvesting ban and ballot receipt
deadline for the general election. See, e.g., League of Women VcJters, -Mich-; No. 161671
38. State Defendants' failure to enforce the ballot receipt deadline represents a failure
to adequately represent the Republican Committees' interests, despite the Court's ruling to the
contrary in its 7-14-2020 Order in Michigan Alliance, completely depriving the Republican
Committees of the opportunity to be heard and violating their right to due process.
39. The failure to enforce the harvesting laws and ballot receipt deadline unfairly
impacts the Republican Committees, their candidates, their voters, and their own institutional
FEC, 414 F3d 76, 85 (DC Cir, 2005). The Republican Committees and their candidates will face
"a broader range of competitive tactics than [state] law would otherwise allow." Id. at 86. The
injunction "fundamentally alter[s] the environment in which [they] defend their concrete interests
(e.g .... winning reelection)." Id. The Republican Committees will need to divert substantial
resources to comply with the Court's injunction in Michigan Alliance, which they have not had
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the Republican Committees, their candidates, and their voters have suffered and will continue to
40. The Republican Committees have already expended resources on voter education
and mailers that have been rendered incorrect by the failure to enforce the harvesting laws and
ballot receipt deadline. Absent intervention by this Court, those expenditures will be wasted and
the Republican Committees will be forced to spend additional resources to reeducate voters and
41. The Republican Committees acknowledge that, absent a stay or reversal by the
Court of Appeals or the Supreme Court, this Court's 9-18-2020 Order in Michigan Alliance,
finding the harvesting ban and ballot receipt deadline unconstitutional as generally applied to the
general election, prevents State Defendants from enforcing these enjoined laws. But with State
Defendants refusing to further defend these laws and the Republican Committees being blocked
Committees have been left with no judicial avenue in which to seek protection of their substantial
42. The Republican Committees therefore seek a judicial declaration that the harvesting
ban and ballot receipt deadline are enforceable both facially and as generally applied to the
November 2020 general election.
WHEREFORE, the Republican Committees respectfully ask the Court to grant the
following relief:
A. A declaratory judgment that the harvesting ban and ballot receipt deadline are
enforceable both facially and as generally applied to the general election as set forth in this Verified
Complaint;
B. Award the Republican Committees their reasonable attorneys' fees, costs, and
expenses under any applicable law;
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C. Any other such further relief to which the Republican Committees may be entitled
as a matter of law or equity, or which the Court determines to be just and proper.
Respectfully submitted,
10
STATE OF MICHIGAN
COURT OF CLAIMS
Plaintiffs,
Defendants.
- - - - - - - - - - - - -I
Pending before the Court is plaintiffs' request for preliminary injunctive relief on three
issues: restrictions on ballot assistance, the requirement that voters affix postage to their mailed
absentee ballots, and the limitation that only ballots received by 8 p.m. Election Day be tallied.
Plaintiff's have argued that due to current circumstances including the impact of the novel
Coronavirus these election procedures are unconstitutional. For reasons articulated later in this
I. This court enjoins MCL 168.932(f) in this election from 5:00 p.m. Friday October 30, 2020
until the close of the polls on November 3, 2020, in so far as it limits the class of persons
who may render an absent voter assistance. As a result, a voter casting an absent voter
ballot in the November 2020 general election may select any individual the voter chooses
to render assistance in returning an absent voter ballot, but only for the limited time period
when assistance from the clerk is not required, i.e., between 5:0 I p.m. on the Friday before
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2. Enforcement of the ballot receipt deadlines in MCL 168.759b and MCL 168.764a as they
relate to the date and time by which absentee ballots must be received by the clerk in order
to be tallied, is enjoined for this election only. All ballots postmarked no later than one
day before election day, i.e., November 2, 2020, and received by the deadline for certifying
election results, are eligible to be counted in the same manner as all provisional ballots
3. Finally, plaintiffs have not met the burden of demonstrating a substantial likelihood of
success on their challenge to the requirement that absentee voters supply their own return
I. BACKGROUND
Plaintiffs' request for injunctive relief concerns three provisions of Michigan Election Law
that pertain to absent voter ballots: (I) a ballot receipt deadline; (2) a limitation on who can help a
voter return an absent voter ballot; and (3) a requirement that absentee voters supply their own
return postage. Plaintiffs presented both facial and as applied arguments. This Court held a
hearing on plaintiff's initial request for injunctive reliefon July 8, 2020. No witnesses were called.
Prior to the release of this Court's ruling on that motion the Court of Appeals issued its opinion in
League o,f Women Voters o,fMich v Sec'y o,f State (League o,f Women Voters I),_ Mich App_,
_; _ NW2d _ (2020) (Docket Nos. 350938; 351073). That case concerned, as written,
constitutional challenges to several statutory provisions at issue in this case. The August primary
was held. Plaintiffs filed a renewed prayer for injunctive relief following supplemental briefing
and documentary evidence regarding the August 2020 primary election, and this Court held a
hearing on plaintiffs' request for relief on September 3, 2020. Plaintiffs presented witness
testimony at the hearing to supplement their various affidavits and documentary evidence.
Counsel for defendants did not challenge the documentary evidence at the hearing and conceded
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that the affidavits and documentary evidence provide an evidentiary record from which this Court
can make findings for purposes of resolving plaintiffs' request for injunctive relief.
With respect to that documentary evidence, the unrefuted affidavits and documents compel
the conclusion that, in light of delays attributable to the COVID-19 pandemic, mail delivery has
become significantly compromised, and the risk for disenfranchisement when a voter returns an
absent voter ballot by mail is very real. Plaintiffs have produced documentary evidence that there
have been significant mail delays since the onset of the pandemic, particularly in Detroit, despite
a decrease in the volume of mail being processed during the same time. Furthermore, plaintiffs'
documentary evidence revealed that, due to "major operational changes" with the Postal Service-
such as elimination of overtime hours-mail delivery could be slowed down even further,
particularly with what figures to be an event that increases strain on the system, such as a large
increase in mail volume associated with mailing absentee ballots in advance of the November 2020
general election. For these and similar reasons, the Secretary of State issued public warnings to
voters the week before the August 2020 primary and urged voters to not use the United States
Postal Service to return absent voter ballots, given the risk that completed ballots would not arrive
in time to be counted.
Plaintiffs presented affidavit evidence that many voters were in fact deprived of having
their absent voter ballot tallied in the Augusts primary. Plaintiffs presented unrefuted evidence
that thousands of voters' absentee ballots were not counted due to having been received after
Election Day in the most recent August 2020 primary election. Affidavits and testimony detailed
that despite voters requesting absent ballots weeks in advance of the primary, their actual ballot
arrived as late as Election Day. The late receipt made it vi11ually impossible to return the ballot
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by mail in time to be counted. Furthermore, plaintiffs have produced evidence of instances where
voters' completed ballots were sent well in advance of the receipt deadline for the August 2020
primary election, but where the ballots were not counted because, as a result of mail delays, they
were not received on time. In one instance, a ballot that was destined for the clerk's office in
Wyandotte, Michigan, was routed out of state, to Illinois, before being delivered (late) to its
intended address in Michigan. These ballots were just some of the over 6,400 otherwise valid
ballots that were rejected for having been received after the election day receipt deadline.
The general counsel for the United States Postal Service acknowledged that the law in this
state, namely the ballot receipt deadline, posed a significant risk of disenfranchisement because of
current mail processing. Given the documented increase in absent ballot requests, the risks of
disenfranchisement are projected to rise with respect to the November 2020 general election.
The risks of disenfranchisement are even greater when the Court considers the
immunocompromised and/or who live alone and are without ready access to someone who can
help return an absent voter ballot under MCL 168.932([). While city and township clerks are
required to assist voters, upon request, the requirement to provide assistance ends at 5 :00 p.m. on
the Friday before election day. See MCL 168.764a; MCL 168.764b (4). The cutoff time for
rendering assistance has a particularly harsh effect in light of the mail delays noted above, i.e., if
an absent voter ballot is received after the 5:00 p.m. assistance cutoff deadline, the voter is not
One of the issues in this case concerns evidence-or lack thereof-of voter fraud and
threats to election integrity associated with absent voter ballots. Plaintiffs produced largely
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unrefuted expert testimony and documentary materials from Dr. Michael C. Herron, who
concluded that literature on voter fraud consistently concluded that incidences of fraud were
"rare." In addition, he concluded that there was "no evidence of significant voter fraud in
[Michigan] associated with absentee voting and voter assistance." Nor were there significant
incidences of fraud reported with the May 2020 election, in which nearly all ballots were cast by
With the approval of Proposal 3 in 2018, this state's electorate enshrined in the Michigan
Constitution the right "to vote an absent voter ballot without giving a reason, during the forty (40)
days before an election, and the right to choose whether the absent voter ballot is applied for,
received and submitted in person or by mail." Const 1963, art 2, § 4. Provisions of the Michigan
Election Law, which pre-date the approval of Proposal 3, require that, in order to be valid, an
absent voter ballot must be returned to the clerk before polls close at 8:00 p.m. on election day.
MCL I 68. 759b; MCL 168. 764a. See also Lantz v Sout~field City Clerk, 245 Mich App 621; 628
NW2d 583 (200 I). "An absent voter ballot received by the clerk or assistant of the clerk after the
close of the polls on election day will not be counted." See MCL 168.764a. Absent voter ballots
may be returned by either: (a) depositing the ballot (with postage) in the United States Mail or
another public postal service or common carrier; or (b) delivering the absent voter ballot to the
office of the clerk, the clerk, or to an authorized assistant of the clerk. Id. See also
MCL I 68.932(f).
Plaintiffs argue that the ballot receipt deadline is constitutionally infirm for a number of
reasons. They argue that absent voter ballots should be counted if they are postmarked before or
on, but received after, election day. In support, plaintiffs note that provisional ballots are counted
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after election day, see MCL 168.523a; MCL 168.813, and that a board of county canvassers is not
required to certify its election results until I 4 days after election day, see MCL I 68.822(2).
The next point of contention in this case concerns what has been referred to as the "voter
assistance ban." In essence, the voter assistance ban restricts the pool of individuals who can
render assistance to a voter who chooses to return an absent voter ballot. MCL I 68.932(t) contains
a list of those who can return, solicit to return, or agree to return an absent voter ballot to the
[I] a person whose job it is to handle mail before, during, or after being transported
by a public postal service, express mail service, parcel post service, or common
carrier, but only during the normal course of his or her employment;
[3] a member of the immediate family [IJ of the absent voter including father-in-
law, mother-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law,
grandparent, or grandchild; or
A violation of the restrictions regarding the return of absent voter ballots constitutes a felony. See
MCL 168.932.
Plaintiffs argue that the voter assistance ban runs afoul of a number of provisions of this
state's constitution. Alternatively, they argue that the ban is contrary to the federal Voting Rights
Act and that the ban is thus preempted by the federal statute.
1
The term "immediate family" is further defined in MCL 168.2(/) to mean "individual's father,
mother, son, daughter, brother, sister, and spouse and a relative of any degree residing in the same
household as that individual."
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C. POSTAGE REQUIREMENT
As it concerns the return of absent voter ballots, plaintiffs point out that MCL 168.764a
requires voters to supply their own postage if they wish to return their absentee ballots by mail.
See MCL 168. 764a. Plaintiffs, who refer to this as the "postage requirement," contend that the
statute imposes an unnecessary monetary cost on voting at a time when many voters in this state
are suffering from the economic effects of COVID-19. Plaintiffs ask the Court to enjoin the
postage requirement, which would effectively require the state to supply return postage for those
who wish to submit their absent voter ballots by mail. Plaintiffs argue that the postage requirement
contained in MCL 168. 764a is constitutionally infirm because it adds additional burdens to the
self-executing right to return an absent voter ballot by mail contained in Const 1963, art 2, § 4.
They also argue that the postage requirement imposes an unconstitutional burden on the right to
This matter is before the Court on plaintiffs request for preliminary injunctive relief. A
preliminary injunction is an extraordinary form of equitable relief "that has the objective of
maintaining the status quo pending a final hearing concerning the parties' rights." Slis v State,
Mich App_,_; __ NW2d _ (2020) (Docket Nos. 35 I 211; 351212), slip op at 12. In weighing
(1) whether the applicant has demonstrated that irreparable harm will occur without
the issuance of an injunction; (2) whether the applicant is likely to prevail on the
merits; (3) whether the harm to the applicant absent an injunction outweighs the
harm an injunction would cause to the adverse party; and (4) whether the public
interest will be harmed if a preliminary injunction is issued. [Id.]
The proponent of preliminary injunctive relief bears the burden of demonstrating the necessity of
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A. LIKELIHOOD OF SUCCESS ON THE MERITS
evaluation of plaintiffs' ability to succeed on the merits of their challenges must begin with the
presumption that the challenged statutes are constitutional, as well as with the notion that the Court
must construe a statute as constitutional unless its unconstitutionality is clearly apparent. Council
of Orgs & Others.for Ed About Parochiaid v State, 326 Mich App I 24, 139; 931 NW2d 65 (2018).
"The power to declare a statute unconstitutional must be exercised with extreme caution [,]" and
this Court must indulge every reasonable presumption in favor of the validity of the challenged
statutes. Id. "[l]t is only when invalidity appears so clearly as to leave no room for reasonable
doubt that [a statute] violates some provision of the Constitution that a court will refuse to sustain
its validity." Id. at 139-140 (citation and quotation marks omitted). See also League o.l Women
Voters of .Mich v Sec ~v <~/'State (League o.l Women Voters I),_ Mich App_,_;_ NW2d _
(2020) (Docket Nos. 350938; 351073), slip op at 10. Based on the arguments presented and the
repeated references to the ongoing COVID-19 pandemic, plaintiffs are raising facial and as-applied
action." Bonner v City of Brighton, 495 Mich 209, 223 n 27; 848 NW2d 380(2014) (citation and
quotation marks omitted). "The practical effect of holding a statute unconstitutional 'as applied'
is to prevent its future application in a similar context, but not to render it utterly inoperative." In
re F01:feiture o./'2000 GMC Denali & Contents, 316 Mich App 562,569; 892 NW2d 388 (2016)
Plaintiffs also assert facial challenges to the statutes. A party asserting a facial challenge
is confronted with a difficult task, as she "must establish that no set of circumstances exists under
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which [the challenged provision] would be valid .... " Bonner, 495 Mich at 223. The Court of
Appeals recently issued a published decision that conclusively resolves plaintiffs' facial challenge
to the ballot receipt deadline. See League of Women Voters of Mich v Secy of State (League of
Women Voters JI), _ Mich App _; _ NW2d _ (2020) (Docket No. 353654) (opinion by
SAWYER, J.). As a result, plaintiffs are unable to demonstrate any likelihood of success on the
merits of their facial challenge to the ballot receipt deadline, and no additional discussion of the
issue is warranted in this opinion and order. The Court also concludes that plaintiffs are unlikely
to succeed on the merits of their facial challenge to the voter assistance ban and to the postage
requirement. The bulk of this Court's discussion will focus on the as-applied challenges as a result.
Plaintiffs argue that the ballot receipt deadline is unconstitutional as-applied in light of the
ongoing COVID-19 pandemic. On this point, the Court agrees, and finds that the case, based on
the unrefuted evidence presented, is distinguishable from League of Women Voters JI and that the
holding in that case does not dictate the outcome here. Thus, the Court is not concluding that
plaintiffs will succeed in their attempts to invalidate the ballot receipt deadline in toto; rather, the
Court's holding is that, as applied to plaintiffs under the facts and evidence presented in this case,
the ballot receipt deadline violates plaintiffs' constitutional rights guaranteed by art 2, § 4.
Plaintiffs correctly note that the right to vote by absent voter ballot is self-executing, and
that the right to vote by absent voter ballot, like all rights enshrined in art 2, § 4, "shall be liberally
construed in favor of voters' rights in order to effectuate its purposes." Const 1963, art 2, § 4(1 ).
not curtail the rights reserve or exceed the limitations specified" in a self-executing constitutional
provision. League of Women Voters I, _ Mich App at_, slip op at 11. The Legislature has a
-9-
constitutional obligation to implement this state's election laws and to "enact laws to regulate the
time, place and manner of all nominations and elections, to preserve the purity of elections, to
preserve the secrecy of the ballot, to guard against abuses of the elective franchise, and to provide
for a system of voter registration and absentee voting." Art 2, § 4. Legislation enacted pursuant
to this constitutional mandate may not, however, "create unnecessary burdens which tend to
restrict the constitutional rights" enshrined in art 2, § 4. See League of Women Voters I,_ Mich
In light of the unrefuted documentary evidence concerning the effects of the pandemic and
mail delays, the Court concludes that the statutory ballot receipt deadline is, as applied, an
impermissible restriction on the self-executing right to vote by absent voter ballot and to choose
to return such a ballot by mail. See id. at 11 (explaining that legislation supplementary to a self-
executing constitutional provision must "further" the exercise of the self-executing right and must
"make it more available"). The evidence in this case stands uncontroverted and establishes that
the mail system is currently fraught with delays and uncertainty in light of the COVfD-19
pandemic. Notably, the United States Office of the Inspector General released a report that
specifically identified Michigan as a state with statutes placing voters at a "high risk" of
provided information regarding the significance, and prevalence, of mail delays in this state. These
risks are not merely hypothetical, because over 6,400 otherwise valid absent voter ballots were
rejected in the August 2020 primary election because they were received after the statutory
deadline. The number of ballots rejected, as pointed out by plaintiffs' documentary evidence,
increased, as did the rate at which absent voter ballots were rejected. The evidence supports a
-I 0-
finding of fact that under the current circumstances, enforcement of the deadline for ballot receipt
has led, and is likely to lead, to significant instances of failure to count absent ballots.
Indeed, the evidence demonstrates that, under the present circumstances, a voter's right to
cast an absent voter ballot by mail in the 40 days before the November 2020 general election is
severely restricted, and at times outright eliminated. Even for those voters who are fortunate
enough to receive their absent voter ballots in advance of the election, mail delays and the COVID-
19 pandemic stack the deck against successfully casting an absent voter ballot by mail in a timely
manner. For those with underlying health risks and who prefer not to cast a vote in person,
returning the ballot by mail is the only realistic option. Where the current state of affairs has
riddled that option with uncertainty after uncertainty, the Court concludes that the 8:00 p.m. ballot
receipt deadline unnecessarily curtails the self-executing right to vote by absent voter ballot and
to return that ballot by mail. See League of Women Voters I,_ Mich App at_, slip op at 12,
(rejecting as unconstitutional a statute that "is both unnecessary for effective administration of'' a
Stated otherwise, a ballot receipt deadline might very well operate as a permissible
restriction on the right to cast an absent voter ballot when there is some modicum of certainty that
the (normally reliable) United States Postal Service will be able to: (I) deliver the voter's ballot to
the voter before the election and in time for the voter to act on the ballot; and (2) deliver a
completed ballot by the statutory deadline, should the voter place the completed ballot in the mail
at a reasonable time. Here, unfortunately, that critical element of certainty is missing, and voters
know neither whether their ballot will be received (by them) on time or delivered to the clerk's
office on time. As a result, applying the strict, 8:00 p.m. ballot receipt deadline on absent voter
-11-
ballots imposes too great a restriction for the upcoming general election. Some flexibility must be
built into the deadline in order to account for the significant inability of mail to arrive on what
would typically be a reliable, predictable schedule. That flexibility will be outlined in § II. C. of
this opinion.
In so concluding, the Court agrees with plaintiffs that the unrefuted factual record in this
case, as well as the as-applied nature of the challenge before the Court, distinguishes this matter
from League c?f Women Voters II and that the holding in that case does not bind the Court on the
issue presented here. Most notably, the lead opinion in League of Women Voters II discounted
many of the risks of ballots arriving exceptionally late as "extreme, and undoubtedly rare" and
concluded that delayed mail was simply one of the risks that the voter must assume when he or
she decides to return an absent voter ballot. See League of Women Voters II, _ Mich App at_,
slip op at 10 (opinion by SA WYER, J .). Here, however, the uncontroverted data presented by
plaintiffs convinces the Court that the incidences in which ballots are not received in time-either
by the voter or by the pertinent clerk's office-cannot be cast aside as "rare." As acknowledged
by League of Women Voters II, voters "certainly possess" the right to choose to submit an absent
voter ballot by mail. Id. at 9. The evidence presented in this case reveals that the pandemic's
effect on the mail system has outright removed, or effectively removed, the right to choose to
submit an absent voter ballot by mail. Thus, the facts of this case show that a voter cannot remove
the risks associated with mail delivery by, as characterized by the League c~f Women Voters II,
simply acting "sooner when they choose to mail in their ballot," nor can the facts and
circumstances of this case be dismissed by characterizing mail issues as merely affecting "how
and when" the choice to vote by mail is made. Cf. id. Instead, the facts of this case show that the
choice to return a ballot by mail has been effectively removed from the voter. That is, unlike non-
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pandemic instances where it can generally be assumed that mail will arrive and that it will arrive
on time, a voter cannot simply choose to act sooner and avoid the effects of mail delays,
particularly when those delays are of such a magnitude that they remove the choice altogether.
Delayed mail is not the only risk involved during the pandemic. The health risks of COVID-19,
which have been well-documented and which need not bear repeating here, also weigh on voters.
For many, that risk presented by the pandemic is simply too great. Nor is it one that should be
encountered, given that the Constitution guarantees the right to return the absent voter ballot by
mail. Thus, on the unrefuted evidence presented in this case, the Court concludes that the League
of Women Voters 11 decision does not control the as-applied challenge presented to the Court in
their assertion that the ballot receipt deadline contained in MCL 168. 759b is unconstitutional as
the statutory voter assistance ban. Article 2, § 4 grants voters the right to return an absent voter
ballot in-person, should they choose to do so. MCL l 68.932(f) contains a limited list of individuals
who can assist a voter in returning an absent voter ballot. In general, and at a time without COVID-
19, the limited list of individuals who are eligible to provide assistance would likely not rise to the
level of an unnecessary burden tending to restrict the self-executing constitutional right to vote by
absent voter ballot. However, the record in this case convinces the Court that plaintiffs have a
strong likelihood of succeeding on their claim that the list of individuals enumerated in
-13-
MCL I 68.932(f), under the narrow circumstance noted in this opinion, cannot pass constitutional
muster.
Pertinent to this issue, MCL l 68.932(f) provides that voters casting an absent voter ballot
may choose from "immediate family" members or another person residing in the voter's household
to return an absent voter ballot. Plaintiffs' documentary evidence points out that many home-
bound individuals live alone and have no family members living nearby. Perhaps in recognition
of the same, the statute contains a fail-safe option for such individuals, as MCL 168.932(1) permits
a clerk or assistant of the clerk to help an absent voter return an absentee ballot. This fail-safe
option ends, however, at 5:00 p.m. on the Friday before the Election, and the clerk is not required
to provide assistance after that time. See MCL 168. 764b. Thus, in the days leading up to the
election, and at a time when assistance might be most needed, the absent voter is most in danger
Again, in ordinary times, the statute likely poses no constitutional issue. These are not,
however, ordinary times. As noted, there are documented instances in this case of absentee voters
who received their absent voter ballot shortly before the August 2020 election, despite a timely
request for such a ballot. As noted, a voter is only guaranteed to receive help from the clerk if the
voter makes a request before 5:00 p.m. on the Friday before Election Day. The very real risk of
receiving an absent voter ballot in an untimely fashion increases the risk that voters who are
otherwise without a statutorily enumerated person to help return their ballot will not be able to take
advantage of the fail-safe option of receiving assistance from the clerk. One can think of residents
in an assisted living facility, the access to which has been extremely limited during the pandemic,
who might fall into this category. Additionally, prospective absentee voters who simply wish to
-14-
take their time in weighing which candidates to vote for run the risk of missing out on the clerk-
supplied assistance. Such individuals might be hesitant, or unable, to receive assistance from
family members or household members due to health concerns associated with the COVID-19
pandemic. Or the health risks inherent with COVID-19 might prevent such a voter from returning
a ballot in-person. Therefore, and under the current circumstances, the Court is convinced that the
time deadline imposed on the fail-safe option of seeking assistance from the clerk risks leaving too
many voters without the opportunity of receiving assistance in returning their ballots. Under the
facts of this case, and as applied, MCL 168.932(f)'s voter assistance ban creates an unnecessary
Accordingly, and under the facts presented, the Court agrees plaintiffs have demonstrated
a substantial likelihood of success on the merits of their assertion that MCL 168.932(1) unduly
restricts the right guaranteed by art 2, § 4, but only during the time between 5:01 p.m. on the Friday
before the election and Election Day. It is during this timeframe when the statute's fail-safe option
is unavailable and during which the voter might find himself or herself in most need of assistance.
Where no justification has been given for ending the fail-safe option in the days before the election,
the Court concludes plaintiffs have a substantial likelihood of succeeding on the merits of their
claim that the restrictions in MCL 168.932(1) are both unnecessary for the administration of
absentee voting and restrictive of the self-executing right contained in art 2, § 4 under the present
circumstances. See League of Women Voters I,_ Mich App at_, slip op at 12 (declaring as
be discussed in§ II. C. of this opinion, this constitutional violation will be remedied by permitting,
but only during the specified timeframe, an absentee voter to seek assistance from a third party of
their choosing.
-I 5-
Plaintiffs' likelihood of success on this matter is not affected by the amici's concerns about
election integrity. The documentary evidence in this case reveals that the incidences of voter fraud
and absentee ballot fraud are minimal and that the fears of the same are largely exaggerated.
Moreover, there is little evidence to suggest that fraud would increase with a larger pool of persons
eligible to assist absentee voters. Nor, for that matter, is there a compelling case to be made on
this record that a voter's neighbor, who otherwise would not be able to help her return a ballot,
would be more likely to induce fraud than an individual who is approved to render assistance by
MCL I 68.932(J), such as a voter's brother-in-law. Furthermore, as plaintiffs point out, the
remaining provisions of MCL 168.932 already prohibit interference with the absentee voting
process and are much more tailored to that purpose than the voter assistance ban. The fraud-
fighting role of the voter assistance ban is debatable, at best. As explained in League of Women
Voters of Mich I, _ Mich App at_, slip op at 11, legislation supplementary to a self-executing
constitutional provision such as art 2, § 4 "must be in harmony with the spirit of the Constitution,
and its object to further the exercise of constitutional right and make it more available, and such
law must not curtail the rights reserved or exceed the limitations specified." (Citation and
quotation marks omitted; emphasis added). Under the circumstances and timeframe identified in
this case, the voter assistance ban curtails the self-executing rights set forth in art 2, § 4 in a way
While plaintiffs have demonstrated the requisite likelihood of success on the two
aforementioned challenges, the Court finds that they are unlikely to succeed on their challenge to
the postage requirement contained in MCL 168. 764a. Judge Sawyer's opinion in League of
Women Voters concluded that "requiring absentee voters to pay for return postage docs not impose
-16-
a severe restriction on the right to vote." League of Women Voters 11, Mich App at_, slip op
The above analysis convinces the Court that plaintiff is unlikely to succeed on either of its
constitutional challenges to the postage requirement in this case. Unlike their as-applied challenge
to the ballot receipt deadline, plaintiffs' documentary evidence concerning the postage requirement
does not compel a different result than was reached in League of Women Voters JI. Indeed, as
noted by the League of Women Voters II opinion, the burden imposed is only slight, and it is not
of the ilk that would curtail the self-executing rights established in art 2, § 4. The documentary
evidence presented thus far does not convince the Court that the burden is anything other than
what it was described in League of Women Voters II. Nor is the Court convinced that plaintiffs
have any likelihood of succeeding under the Anderson-Burdick2 framework. See In re Request.for
Advisory Opinion, 479 Mich at 22. As a result, the Court need not address the remaining factors
for injunctive relief in order to conclude that preliminary injunctive relief is not warranted with
2
See Anderson v Celebrezze, 460 US 780, 788-789; 103 S Ct 1564; 75 L Ed 2d 547 (1992), and
Burdick v Takushi, 504 US 428; 112 S Ct 2059; 119 L Ed 2d 245 (1992).
-17-
B. REMAINING FACTORS FOR INJUNCTIVE RELIEF
As it concerns the remaining factors for injunctive relief, the Court will focus only on the
two issues where plaintiff has established a substantial likelihood of success on the merits-the
as-applied challenges to the ballot receipt deadline and to the voter assistance ban.
Turning first to irreparable harm, the Court concludes that this "indispensable" factor
weighs in favor of granting injunctive relief. See Pontiac Fire Fighters Union Local 376, 482
Mich 1, 9; 753 NW2d 595 (2008). That is, given the record evidence detailing an increase in the
number and percentage of absent voter ballots that have been rejected solely for being received
after the statutory deadline and in light of the other evidence of record, plaintiffs are able to
demonstrate a "particularized showing of irreparable harm," arising from the denial of the right to
vote by absent voter ballot as guaranteed by art 2, § 4, rather than a mere apprehension of future
injury. See id. See also Garner v Mich State Univ, 186 Mich App 750, 764; 462 NW2d 832 (1990)
(explaining that the loss of a constitutional right "constitutes an irreparable harm which cannot be
Balancing the harms and the public interest weigh in favor of injunctive relief as well.
Undoubtedly, the public is benefited from preserving and furthering the right to vote. The Court
finds that the relief granted in this opinion can be accomplished without imposing a meaningful
inconvenience to the state. Allowing third parties to assist voters during the narrow window of
time granted by this opinion does not, on the record before this Court, undermine or affect the
state's interest in preserving election integrity. So long as they are postmarked at the appropriate
time-the same does not impose a significant burden on the state. The state already has a
mechanism in place to do this very thing with respect to overseas and military voters. See
MCL 168. 759a(l 6). Election results need not be certified until 14 days after the election. See
-18-
MCL 168.822. Hence, so long as ballots are properly postmarked-see discussion in § If. C. of
this opinion-the state can count eligible ballots received up until the 14-day certification deadline
The Court is not convinced that defendants' concerns about the timing of injunctive relief,
and its proximity to the November 2020 election, weigh against granting the requested injunctions.
As the Court noted in its previous order, it is cognizant of the warning in New Democratic
Coalition v Austin, 41 Mich App 343, 356-357; 200 NW2d 749 (1972), about administrative
difficulties and the need to allow election officials time to comply with the mechanics of election-
related changes. However, the Court concludes that, unlike in New Democratic Coalition, the
relief granted here would not "seriously strain the election machinery [or] endanger the election
that, as an election looms closer, the risk that a court order will sow confusion before an election
grows). Here, injunctive relief regarding the voter assistance ban does not require the state to do
anything differently. Injunctive relief requiring officials to accept ballots that are postmarked in
time, but received later, merely requires the state to resort to a process that is already employed in
certain circumstances. Furthermore, officials will have nearly 50 days after the issuance of this
opinion and order to prepare for an election. Defendants' briefing has even conceded that the
Secretary of State "believes that there is sufficient time to draft guidance to local election officials
that would adequately instruct officials with respect to reviewing postmarks for timeliness and
resolving any disputes, as well as providing for a specific timeline for transmitting results to the
boards of county canvassers." As a result, the Court concludes there is sufficient time to implement
the remedy afforded by this opinion in a manner that will not affect the smooth operation of the
-] 9-
C. REMEDY FOR CONSTITUTIONAL VIOLATIONS
For the reasons stated above, plaintiffs are entitled to injunctive relief on their claims that,
as applied, the ballot receipt deadline and the voter assistance ban unnecessarily burden and restrict
their self-executing constitutional right to vote by absent voter ballot. Those constitutional
violations can be remedied by enjoining the enforcement of the statutes at issue as follows.
As it concerns the ballot receipt deadline, the Court's analysis is informed by the nature of
the right guaranteed by art 2, § 4( I )(g), which grants the right to vote an absent voter ballot "during
the forty (40) days before an election .... " (Emphasis added). Hence, so long as an absent voter
ballot is postmarked before election day-in the case of the upcoming general election the latest
available date would be November 2, 2020-it is eligible to be counted. See League of Women
Voters 11, Mich App at_, slip op at 11 n 19 (opinion by SA WYER, J.) (noting that the right
guaranteed by art 2, § 4( I )(g) is the right to vote by absent voter ballot in the 40-day period before
an election). Consistent with MCL 168.822, the timely postmarked ballot must be received by the
clerk's office no later than 14 days after the election has occurred, so as not to interfere with the
board of county canvassers' duty to certify election results by the fourteenth day after the election.
Additionally, the Court draws on the ability of the Secretary of State to extend the ballot receipt
deadline for uniformed services voters and overseas voters under MCL 168. 759a( 16) as support
Therefore, and for the avoidance of doubt, an absent voter ballot that is postmarked by no
later than November 2, 2020, and received within 14 days after the election, is eligible to be
counted.
-20-
As it concerns the voter assistance ban, MCL l 68.932(f) is unconstitutional as applied to
only a narrow time frame: the time between 5:0 I p.m. on the Friday before the election and Election
Day, i.e., when the clerk or an assistant is not required to assist a voter who wishes to cast an absent
voter ballot. During this timeframe, and only during this timeframe, a voter may select any third
party of his or her choosing to render assistance in returning an absent voter ballot. Any penalties
and prohibitions that would otherwise apply to the mere act of helping a voter return an absent
voter ballot,3 including those found in MCL 168.932 and MCL 168.935, will be enjoined from
Therefore, and for the avoidance of doubt, the injunctive relief granted with respect to the
voter assistance ban runs from 5:01 p.m. on Friday, October 30, 2020, through the close of polls,
III. CONCLUSION
This is not a final order and it does not resolve the last pending claim or close the case.
3
The relief granted by this opinion does not prevent the operation of penalties for fraud or other
acts prohibited by this state's election law. Rather, the grant of injunctive relief applies only to
allow voters to select a third party of their choosing during the narrow timeframe identified herein.
-21-
9/18/2020 Michigan clerks must accept late ballots if mailed by Nov. 2, judge rules
e s
MICHIGAN
The preliminary injunction, which applies only to the Nov. 3 election, comes about a month
and a half after the Michigan Supreme Court declined to hear an appeal from the League of
Women Voters challenging the law.
Judge Cynthia Stephens noted the separate case from the Michigan Alliance for Retired
Americans included a renewed motion after the August primary, from which they provided
evidence that showed "in light of delays attributable to the COVID-19 pandemic, mail
delivery has become significantly compromised, and the risk for disenfranchisement when a
voter returns an absent voter ballot by mail is very real."
"Plaintiffs presented affidavit evidence that many voters were in fact deprived of having their
absent voter ballot tallied in the August primary," wrote Stephens, noting more than 6,400
valid ballots were rejected because they were received after the Aug. 4 primary.
"...Affidavits and testimony detailed that despite voters requesting absentee ballots weeks in
advance of the primary, their actual ballot arrived as late as Election Day," wrote Stephens,
an appointee of Democratic former Gov. Jennifer Granholm
Attorney General Dana Nessel's office said it will not appeal Stephens' decision, nor a
separate voting decision issued Thursday in federal court.
"With the November election quickly approaching, voters and local clerks need certainty -
and these decisions provide that," said Ryan ,Jarvi, a spokesman for Nessel. "Therefore, we
do not intend to appeal, but rather will use this time to educate and inform voters of their
rights.
https ://www.detroitnews.com/s tory /news/local/michig an/2 02 0/09/ 18/m ichig an-clerks-must-accept-late-ballots-if-ma iled-n ov-2-judge-rules/3492245001 / 1/3
9/18/2020 Michigan clerks must accept late ballots if mailed by Nov. 2, judge rules
Secretary of State tTocelyn Benson, who is the subject of the suit, had asked the Legislature to
change state law to allow clerks to count late ballots so long as they are postmarked before
Election Day. She encouraged voters on Friday to get their ballots in early regardless of the
new extension.
"We still want voters to make a plan to vote now, and not wait until the last minute if they
want to vote by mail," Benson said.
Serial litigant Robert Davis said he plans to file an emergency appeal as a voter who is
"adversely affected" by the possibility that late ballots would still be counted.
The decision was celebrated by the retirement associations that had pushed for the changes.
Seniors can "rest easier" by voting without putting their health at risk, they said.
"This ruling means that we can be confident that any mail delays will not keep our votes from
being counted," said Dick Long, president of the Michigan Alliance for Retired Americans.
Stephens also granted a request for a preliminary injunction that would allow absentee
voters to select anyone of their choosing to assist them in delivering their ballot between 5
p.m. Oct. 30 and Nov. ~-3, when help from the clerk's office may be unavailable.
Michigan law prohibits absentee voters from enlisting help in returning their ballot by
anyone other than a mail-handler, clerk or assistant to the clerk, a person living in the
household or a member of the immediate family.
"The court is convinced that the time deadline imposed on the fail-safe option of seeking
assistance from the clerk risks leaving too many voters without the opportunity of receiving
assistance in returning their ballots," Stephens wrote.
Stephens denied a request for a preliminary injunction on the requirement that absentee
voters supply their own postage.
The ruling comes the day after a federal judge blocked a Michigan law that prevented groups
from transporting voters to polling locations while also upholding a separate law that
prevented "ballot harvesting," or gathering completed absentee ballots from voters.
The Priorities USA super political action committee filed the lawsuit almost a year
ago challenging Michigan's laws banning those activities. The group, which described itself as
a "nonprofit, voter-centric progressive advocacy and service organization," has filed several
suits against the state over the last year over Michigan's voting laws.
9/18/2020 Michigan clerks must accept late ballots if mailed by Nov. 2. judge rules
In enjoining the state's law on vehicle transport, U.S. District Judge Stephanie Dawkins ruled
Wednesday that "it is unclear how paying for a taxi or Uber is any more likely to influence a
voter than offering to transport them by way of a volunteer driver in a non-profit
corporation's minivan."
Additionally, Dawkins said, "Congress implemented a statutory scheme and gave citizens the
right to spend money on transporting voters to the polls."
Stephens also ruled "the state's interests in preventing fraud and abuse in the absentee ballot
application process and maintaining public confidence in the absentee voting process are
sufficiently important interests and are substantially related to the limitations and burdens"
placed on soliciting or requesting the collection or delivery of ballots under state law.
"Given the lack of evidence that any voters have been affected by the limits on their choice of
assistance, there is no basis for the court to conclude that Michigan's law stands as an
obstacle," Dawkins said.
https ://www. d etroitn ews. com/story /news/loca I/mi ch ig a n/20 20/09/ 18/michig a n-cle rks-m ust-a ccept-I ate-ba llots-if-mai led-nov-2-j ud g e-rules/3492245001 / 3/3
ST ATE OF MICHIGAN
COURT OF CLAIMS
2
TABLE OF CONTENTS
INTRODUCTION ........................................................................................................................... 1
ARGUMENT .................................................................................................................................. 1
I. Plaintiffs lack standing to challenge these Michigan election laws .................................... 1
II. Plaintiffs' constitutional challenges to these Michigan election laws fail
as a ,natter of law ............................................................................................................... 3
A. The harvesting ban is constitutional and not preempted by federal
law ..................................................................................................................... 4
I. The harvest ban does not infringe on the right to vote absentee ................................... .4
2. The harvesting ban does not violate Michigan's Equal Protection Clause .................... 5
3. The harvesting ban does not unconstitutionally infringe on political speech or
asse1nbly rights .................................................................................................................. 10
4. Michigan's harvesting ban is not conflict-preempted by the federal Voting Rights Act
........................................................................................................................................... 14
B. The ballot receipt deadline is constitutional .......................................................... 16
1. LWV controls against Plaintiffs' facial and as-applied challenges to the ballot receipt
deadline .............................................................................................................................. 16
2. The ballot receipt deadline does not violate Michigan's Due Process Clause ............. 17
III. New Democratic Coalition or Purcell bar Plaintiffs' as applied
challenges to the general election .................................................................................... 19
CONCLUSION ............................................................................................................................. 20
INDEX OF AUTHORITIES
Cases
ACORN v Blanco,
No. 2:06-cv-61 l (ED La, Apr. 21, 2006) ................................................................................. 17
Bethea v Deal,
2016WL6123241 (SDGa,Oct.19,2016) .............................................................................. 19
Bonner v Brighton,
495 Mich 209 (2014) ............................................................................................................ 3, 18
Burdick v Takushi,
504 us 428 (1992) ..................................................................................................... 5, 6, 13, 17
Cady v Detroit,
289 Mich 499 ( 1939) .................................................................................................................. 9
II
Crawford v Marion Cty Election Bd,
553 us 181 (2008) ....................................................................................................... 1, 7, 8, 16
Crookston v Johnson,
841 F3d 398 (CA 6, 2016) ........................................................................................................ l9
DNC v Reagan,
329 FSupp3d 824 (D Ariz, 2018) ............................................................................................. 12
Dunn v Blumstein,
405 us 330 (1972) ···································································································· ................. 5
NEOCH v Husted,
837 F3d 612 (CA 6, 2016) .......................................................................................................... 7
Ill
OCA-Greater Houston v Texas,
867 F3d 604 (CA5, 20 l 7) ......................................................................................................... 15
People v Kowalski,
489 Mich 488 (2011) .................................................................................................................. 5
People v Pinkney,
No. 282144, 2009 WL 2032030 (2009) ..................................................................................... 9
Purcell v Gonzalez,
549 US I (2006) ......................................................................................................... 3, 7, 14, 19
Qualkinbush v Skubisz,
826 NE2d 1181 (Ill App Ct 2004) .............................................................................................. 8
Reynolds v Sims,
377 us 533 (1964) .................................................................................................................... 19
Ryan v Brunswick,
454 Mich 20 ( 1997) .................................................................................................................. 14
Schmitt v LaRose,
933 F3d 628 (CA 6, 2019) ........................................................................................................ 13
Shays v FEC,
414 F3d 76 (DC Cir, 2005) ....................................................................................................... 20
iv
Texas v Johnson,
49 I US 397 ( 1989) ................................................................................................................... I 0
Statutes
V
Other Authorities
Morley, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks,
67 En1ory LJ 545 (20 l 8) ........................................................................................................... 17
Rules
Constitutional Provisions
VI
ST ATEMENT OF INTEREST AS AMICI CURIAE
ln the July 14, 2020 Order, the Court granted the Republican National Committee and
Michigan Republican Party (Amici) opportunity to participate in this case as amici curiae. In
denying their application for leave to appeal, the Michigan Court of Appeals stated that Amici
retain their status as amici curiae in the Court of Claims. (August 18, 2020 Order).
vii
CHALLENGED ELECTION LAWS
I. Harvesting Ban
After a registered eleetor has reeeived and completed an absent voter (AV) ballot, the
marked ballot must be returned to the local clerk. The options for returning an AV ballot are
(a) Place the necessary postage upon the return envelope and deposit it in the
United States mail or with another public postal service, express mail service,
parcel post serviee, or common carrier.
(b) Deliver the envelope personally to the office of the clerk, to the clerk, or to
an authorized assistant of the cleric
(c) In either (a) or (b), a member of the immediate famiJyl 1l of the voter ... or
a person residing in the voter's household may mail or deliver a ballot to the clerk
for the voter.
(d) You may request by telephone that the clerk who issued the ballot provide
assistance in returning the ballot. The clerk is required to provide assistance if you
are unable to return your absent voter ballot as specified in (a), (b), or (c) above, if
it is before 5 p.m. on the Friday immediately preceding the election, and if you are
asking the clerk to pickup the absent voter ballot within the jurisdictional limits of
the city, township, or village in which you are registered. Your absent voter ballot
will then be picked up by the clerk or an election assistant sent by the cleric ...
Step 6. The ballot must reach the clerk or an authorized assistant of the clerk
before the close of the polls on election day. An absent voter ballot received by
the clerk or assistant of the clerk after the close of the polls on election day will
not be counted. [MCL 168.764a), MCL 168.764b(4)-(5).]
1
Michigan election law defines "immediate family" as "an individual's father, mother, son,
daughter, brother, sister, and spouse and a relative of any degree residing in the same household
as that individual." MCL 168.2(1). Section 932(f) further provides that "immediate family"
includes a voter's "father-in-law, mother-in-law, brother-in-law, sister-in-law, son-in-law,
daughter-in-law, grandparent, or grandchild." MCL l 68.932(f).
viii
These are the expressly authorized delivery options to be used by a voter and accepted by a clerk
for the return of an AV ballot. MCL 168. 764b(l ). 2 lf a voter's ballot is returned to the clerk's
office in an unauthorized manner, the ballot will not be "invalidated solely because the delivery
to the clerk was not in compliance" with the statutes, MCL l 68.764b(7), but rather, the ballot
The AV ballot instructions include a "warning" that "the following actions are violations
(4) For a person other than those Iisted in these instructions to return, offer to
return, agree to return, or solicit to return an absent voter ballot to the clerk.
(5) For a person other than the absent voter; a person listed in these
instructions; or a person whose job it is to handle mail ... to be in possession of a
voted or unvoted absent voter ballot. [MCL 168.764a.]
A similar warning and language appear on the return envelope for an AV ballot. MCL l 68. 761.
Section 932(f) makes the violation of these statutes a felony, punishable "by a fine not exceeding
$1,000, a term of imprisonment not exceeding five years, or both." MCL 168.932(f), 168.935.
Michigan's ballot receipt deadline provides that AV ballots "must reach the clerk or an
authorized assistant of the clerk before the close of the polls on election day. An absent voter
ballot received by the clerk or assistant of the clerk after the close of the polls on election day
will not be counted." MCL 168.764a. The polls close at 8:00 p.rn. on election day. MCL
168.720.
2
There are narrow statutory exceptions to the AV ballot return process, such as for military and
overseas voters (MCL 168.759a), people who need an "emergency" AV ballot (MCL 168.7596),
and for voters who wish to register and vote in a jurisdiction within 14 days of an election (MCL
168.761).
ix
INTRODUCTION
before the November general election. Michigan, like most if not every state, has in place long-
standing rules to promote and preserve order and integrity in its elections. Plaintiffs challenge
long-standing Michigan election laws that(]) prohibit strangers from possessing and delivering
AV ballots ("harvesting ban"), and (2) sets the deadline for AV ballots to be counted when the
polls close at 8 p.m. on election day ("ballot receipt deadline"). Because AV ballots remove the
act of voting from the controlled confines of the polling place, absent ballots are more
susceptible to voter intimidation, fraud, and organizational mistakes. The harvesting ban
implements commonsense rules that prophylactically aim to curb "voter fraud" and ballot
tampering, to prevent undue influence in voting, and to "safeguard[] voter confidence" in the
State's elections. Crav.fordv Marion Cty Election Ed, 553 US 181, 191-200 (2008). And, as the
Michigan Court of Appeals recently held, the ballot receipt deadline is a "policy decision,"
which "does not effectively preclude a voter from completing the process of voting by absentee
ballot during the 40 days before the election." League <~l Women Voters of Mich v Secretary of
State,_ Mich App_; 2020 WL 3980216, at *8-9 (2020) ("LWV"). During these trying times
of disruption caused by COVID-19, states have an even greater interest in avoiding judicial
interference with the laws and processes which have long been in place to protect the integrity of
safeguards as-applied in the last 60 clays before the general election would significantly diminish
electoral legitimacy, especially when all eyes are on Michigan this November.
ARGUMENT
Standing is the legal term used to denote the existence of a party's interest in the outcome
of the litigation; an interest that will assure sincere and vigorous advocacy." Allstate Ins Co v
Hayes, 442 Mich 56, 68 (1993). Under Michigan law, "a litigant has standing whenever there is a
legal cause of action." Lansing Sch Ed Ass 'n v Lansing Bd of Ed, 487 Mich 349, 372 (2010). "A
plaintiff must asse1t his own legal rights and interests and cannot rest his claim to relief on the
legal rights or interests of third parties." Fieger v Comm 'r of Ins, 174 Mich App 467, 4 71 ( 1988).
Where a cause of action has not been provided by law, a plaintiff must have "a special injury or
right, or substantial interest, that will be detrimentally affected in a manner different from the
citizenry at large .... " LSEA, 487 Mich at 372. In sum, a plaintiff may have standing if either (l)
the plaintiff has a special right that will be detrimentally affected in a manner distinct from the
citizenry at large, or (2) when the Legislature has intended to confer standing on the litigant
under a particular statutory scheme. League of Women Voters of Mich v Secretary o_f' State,_
Mich App_; 2020 WL 423319, at *5 (2020). Plaintiffs cannot point to any statutory scheme
conferring standing. Therefore, Plaintiffs must demonstrate a special right, distinct from all
Here, the individual plaintiffs fail to establish a special right distinct from the citizenry at
large. Each individual plaintiff alleges the same injury: that he is "concerned about potential
slowdowns" with mail delivery, "worried that his ballot will not be counted" if not received by
the ballot receipt deadline, and "would be more confident that his ballot would be counted"
without the ballot receipt deadline. Am. Campi. 24-26. This alleged interest is no different than
the interest of any other elector who chooses to vote absentee in the general election in
Michigan. Similarly, the Plaintiff organizations cannot establish representational standing in the
interest of their members when those members do not have standing as individual plaintiffs. See
UAW v Central Mich Univ Trustees, 295 Mich App 486, 496 n 15 (2012).
Plaintiffs Alliance and APRI lack organizational standing. Alliance alleges that it has
been injured because the challenged provisions "frustrate [its] mission," it will be "required to
devote time and divert resources" to educate its members, and educating its members "will
reduce the time and resources" to educate on public policy issues. Am. Comp!. 19. Alliance's
"organizational interest in a problem." Sierra Club v Morton, 405 US 727, 739 (1972). And
2
Alliance is neither a political party nor a campaign and thus cannot manufacture diversion-of--
resources standing by making volitional expenditures. See Clapper v Amnesty Int 'l, 568 US 398,
416 (2013). Plaintiff APR! does not allege any "special right," only that it would like to
"facilitate absentee voting by ... collecting and returning ballots for its members." Am. Comp!.
8. Possible future action cannot amount to a "special right" necessary for standing. For these
reasons, Plaintiffs lack standing and the Amended Complaint should be dismissed on that basis
alone.
II. Plaintiffs' constitutional challenges to these Michigan election laws fail as a matter
of law.
Plaintiffs challenge the constitutionality of long-standing Michigan election laws. "A
the burden of proving that a statute is unconstitutional rests with the party challenging it." In re
Request fbr Advisory Opinion Regarding Constitutionality of 2005 PA 71, 479 Mich I, 11
(2007). Plaintiffs bring both facial and as-applied constitutional challenges. "A facial challenge
is a claim that the law is invalid in toto-and therefore incapable of any valid application." Id. at
11 & n 20. "A party challenging the facial constitutionality of a [statute] faces an extremely
rigorous standard." Bonner v Brighton, 495 Mich 209, 223 (2014). A plaintiff "must establish
that no set of circumstances exists under which the act would be valid" and "[t]he fact that the ...
act might operate unconstitutionally under some conceivable set of circumstances is insufficient"
to render the act invalid. Council of Orgs & Others .fbr Ed About Parochiaid, Inc v Governor,
455 Mich 557, 568 (1997). Indeed, "if any state of facts reasonably can be conceived that would
sustain [a legislative act], the existence of the state of facts at the time the law was enacted must
be assumed." Id.
Plaintiffs' as-applied challenges raise the question whether the challenged laws became
unconstitutional after COVID-19 and specifically as-applied to the general election. An as-
applied challenge alleges "a present infi_·ingement or denial of a specific right or of a particular
injury in process of actual execution" of government action. Bonner, 495 Mich at 223 n 27. "The
3
practical effect of holding a statute unconstitutional 'as applied' is to prevent its future
application in a similar context, but not to render it utterly inoperative." In re Fo,:feiture of 2000
GMC Denali & Contents, 316 Mich App 562, 569-70 (2016). Plaintiffs' constitutional claims,
1. The harvest ban docs not infringe on the right to vote absentee.
Plaintiffs allege that the harvesting ban unduly burdens Michigan's constitutional right to
vote absentee. Am. Com pl. 114. After Proposal 3 passed in November 20 I 8, the Michigan
Constitution was amended to allow for no excuse absentee voting. Const 1963, art 2, § 4(l)(g)
provides: "[t]he right, once registered, to vote an absent voter ballot without giving a reason,
during the forty (40) days before an election, and the right to choose whether the absent voter
ballot is applied for, received and submitted in person or by mail." There is no dispute that this
provision. Wolverine Go(f' Club v Secretary of State, 384 Mich 461, 466 (1971). Statutes that
supplement a self-executing provision may be desirable, "by way of providing a more specific
and convenient remedy and facilitating the carrying into effect or executing of the rights secured,
making every step definite, and safeguarding the same so as to prevent abuses." Pro,note the
added).
Plaintiffs argue that the State effectively cannot place any restrictions on absentee voting.
The Legislature, however, has the constitutional authority to enact laws to preserve the purity of
elections, to guard against abuses of the elective franchise, and to provide for a system of voter
registration and absentee voting. See 1963 Const, art 2, § 4(2). It is axiomatic that "every
provision [in the constitution] must be interpreted in the light of the document as a whole, and no
provision should be construed to nullify or impair another." Lapeer Co Clerk v Lapeer Circuit
4
Court, 469 Mich 146, 156 (2003). "Th[e] equal right to vote is not absolute; the States have the
power to impose voter qualifications, and to regulate access to the franchise in other ways."
Promote the Vote, at *9 (quoting Dunn v Blumstein, 405 US 330, 336 (1972)).
protect the right to vote absentee from fraud and corruption and preserve the purity of elections,
represents a common sense restriction in limiting the individuals permitted to deliver someone's
AV ballot, and provides reasonable safeguards from potential abuses of voters exercising their
Further, the harvesting ban does not unduly burden the right of registered Michigan
voters to vote absentee or GOTV efforts. Section 4(g) expressly provides voters the option to
return their absentee ballots either "in person or by mail." (emphasis added). "Or" is "a
489 Mich 488, 499 n 11 (2011 ). "[Michigan voters] may personally deliver the ballot in person
to the city or township clerk, they may have an immediate family member deliver the ballot, or
request the local clerk to pick up the ballot." LWV, at *10 (citing MCR 168.764a). In sum, the
harvesting ban does not unduly burden the right to vote absentee.
2. The harvesting ban does not violate Michigan's Equal Protection Clause.
Plaintiffs allege that the harvesting ban imposes an undue burden on the right to vote
absentee or in person in violation of Michigan's Equal Protection Clause. Am. Comp!. 123. "To
the degree the provisions are congruous," courts construe "Michigan's equal protection provision
to be coextensive with the Equal Protection Clause of the federal constitution." In re Request for
Advisory Opinion regarding 2005 PA 71, 4 79 Mich at 11. Equal protection applies when a state
either classifies voters in disparate ways or places undue restrictions on the right to vote.
protection challenges to election laws under the Michigan Constitution. In re Request for
Advisory Opinion regarding 2005 PA 71, 479 Mich at 35. First, the court must consider the
5
character and magnitude of the asserted injury to the rights protected by the Constitution that the
plaintiffs seek to vindicate. Ohio Dem Party v Husted, 834 F3d 620, 626-27 (CA 6, 2016).
Second, the court must identify and evaluate the precise interests put forward by the State as
justifications for the burden imposed by its rule. Id. Finally, the court must determine the
legitimacy and strength of each of those interests and consider the extent to which those interests
survive only if "narrowly drawn to advance a state interest of compelling importance." Id. at 627.
On the other hand, "minimally burdensome and nondiscriminatory" regulations are subject to a
"less-searching examination closer to rational basis" and "the State's important regulatory
interests are generally sufficient to justify the restrictions." Ohio Council 8 Am Fed'n (~/'State v
Husted, 814 F3d 329, 335 (CA 6, 2016). Regulations falling somewhere in between-i.e.,
analysis, "weighing the burden on the plaintiffs against the state's asse1ted interest and chosen
means of pursuing it." Green Party v Hargett, 767 F3d 533, 546 (CA 6, 2014).
absentee. Plaintiffs bear a "heavy constitutional burden" to demonstrate that a state's minimally
burdensome law is unconstitutional. See Burdick, 504 US at 434; Ohio Councd, 814 F3d at 338.
For not unduly burdensome regulations, the Anderson-Burdick framework does not require a
state to prove "the sufficiency of the evidence." Ohio Dem Party, 834 F3d at 632. The harvesting
ban "applies evenhandedly to every registered voter in the state of Michigan without making
distinctions with regard to any class or characteristic." In re Request for Advisory Opinion
Michigan election law provides numerous ways for Michigan voters to return his or her
AV ballot: (l) delivering it in person to the clerk or drop-box, (2) sending it by mail or other
common carrier, (3) having an "immediate family" member deliver it to the clerk, (4) having an
unrelated person who resides with the voter deliver it to the clerk, or (5) calling the clerk's office
6
to arrange for the ballot to be picked up from the voter. MCL I 68. 764a, l 68. 7646. Because of
these many avenues provided to a Michigan voter in returning an AV ballot, the harvesting ban
Second, Michigan has important regulatory interests in preventing voter fraud and
preserving the integrity of its elections justifying the minimal restrictions of the harvesting ban.
justification's sufficiency as a "legislative fact" and defers to the findings of the Legislature so
long as its findings are reasonable. Ohio Dem Party, 834 F3d at 632. State Defendants need not
The Legislature has a constitutional duty to enact "laws to regulate the time, place and
manner of all ... elections, to preserve the purity of elections, to preserve the secrecy of the
ballot, to guard against abuses of the elective franchise, and to provide for a system of voter
registration and absentee voting." Const 1963, art 2, § 4(2). Under art. 2, § 4, the Legislature also
has been specifically commanded by citizens of Michigan to "preserve the purity of elections"
and "to guard against abuses of the elective franchise." In re Request fbr Advisory Opinion
Regarding 2005 PA 71, 4 79 Mich at 17. These election provisions have been a part of
Michigan's Constitution for almost as long as Michigan has been a state. Id.
The State has compelling interests in both preserving the integrity of its election and
preventing fraud in the absentee voting process. It is indisputable that states have a "compelling
interest in preserving the integrity of its election process." Purcell v Gonzalez, 549 US 1, 4
(2006). "Confidence in the integrity of our electoral processes is essential to the functioning of
our participatory democracy." Id. "While the most effective method of preventing election fraud
may well be debatable, the propriety of doing so is perfectly clear." Crav.:fi:;rd, 553 US at 196.
And Crawford identified "fraudulent voting" that was "perpetrated using absentee ballots." 553
US at 195-96.
7
The State's regulatory interests are sufficient to justify these reasonable,
its absentee voting process. These interests are not only legitimate, they are compelling. John
Doe No I v Reed, 56 I US 186, 197 (20 l 0) ("The State's interest in preserving the integrity of the
electoral process is undoubtedly important."); Citizens for Tax Reform v Deters, 518 F3d 375,
387 (CA 6, 2008) ("[E]liminating election fraud is certainly a compelling state interest[.]").
influence, voter fraud, ballot tampering, and voter intimidation. The harvesting ban preserves the
integrity of absentee voting by increasing the likelihood that a voter will entrust his or her ballot
The State's interest in protecting its elections against fraud is particularly acute in the
context of absentee voting. Numerous courts and commentators have recognized the legitimacy
of states' concerns about voter fraud-and especially in the context of absentee voting. See
Crawford, 553 US at 195-96 (explaining history of in-person and absentee fraud "demonstrate[s]
that not only is the risk of voter fraud real but that it could affect the outcome of a close
challenging Michigan's photo ID law, "the opposing Attorney General argue[d] that the statute
does nothing to address or prevent fraudulent absentee voting, 'where fraud is known to exist.'");
Gr[flin, 385 F3d at 1130-31 ("Voting fraud is a serious problem in U.S. elections generally ...
and it is facilitated by absentee voting."); Veasey v Abbott, 830 F3d 216, 256 (CA 5, 2016) ("The
district court credited expert testimony showing mail-in ballot fraud is a significant threat-
unlike in-person voter fraud."); Qualkinbush v Skubisz, 826 NE2d 118 I, 1197 (Ill App Ct 2004)
("It is evident that the integrity of a vote is even more susceptible to influence and manipulation
3
Khan & Carson, Comprehensive Database of U.S. Voter Fraud Uncovers No Evidence That
Photo JD ls Needed, https://bit.lv/3gLbqTv (accessed Sept. 2, 2020) (study of election crimes
from 2000-2012 finding that more fraud crimes involved absentee ballots than any other
categories).
8
The statutory history of Section 932(f) supports the State's compelling interest in
preventing voter fraud. "[T]he Legislature enacted MCL I 68.932(f) to ensure the integrity of the
absentee voting process. Before the enactment of MCL l 68.932(f), any registered voter could
return the AV ballot of an absentee voter if a family member or person residing with the absentee
voter was not available, and this led to abuse by campaign workers who were eager to 'assist'
absentee voters." People v Pinkney, No. 282144, 2009 WL 2032030, at * 11 (2009) (citing House
If any doubt remained that the harvesting ban is sensible, the ban on ballot harvesting is
"[a]bsentee ballots remain the largest source of potential voter fraud .... States therefore should
reduce the risks of fraud and abuse in absentee voting by prohibiting 'third-party' organizations,
candidates, and political party activists from handling absentee ballots." (Ex. A, Carter-Baker
Commission Report, 46 (Sept. 2005)). In short, the compelling rationale for prohibiting
interested third-parties from harvesting absent ballots in Michigan is consistent with the
Plaintiffs argue that the State's compelling interest in preserving purity of elections "falls
flat" because according to them the harvesting ban violates the Michigan Constitution. See Pis'
8/17/20 Brief at 13. This argument puts the cart before the horse. Plaintiffs' assumption that the
challenged provisions are unconstitutional violates the long-standing canon of construction that
statutes are presumed constitutional. See Cady v Detroit, 289 Mich 499, 505 ( 1939).
Moreover, the State has a compelling public health interest related to COVID-19.
Plaintiffs' requested relief would potentially increase the number of total strangers coming to
voters' homes (and hundreds of others), soliciting their ballots face-to-face with no social
distancing restrictions, and delivering these ballots. Such interpersonal interactions negate the
supposed safety which Plaintiffs assert will generate increased absentee voting in the first place,
posing a serious threat to the additional spreading of COVID-19 by individuals who may be
difficult or impossible to contact trace. Finally, when Plaintiffs seek to harvest ballots from the
9
elderly and communities with less access to healthcare-populations most at risk from the
disease, the intersection of public health and election policy decisions are best left to the
Legislature. Therefore, the harvesting ban does not violate Michigan's Equal Protection Clause.
specifically broadly engaging in voter turnout efforts. Am. Comp!. 143. 4 The Michigan
Constitution provides "[ e ]very person may freely speak, write, express and publish his views on
all subjects, being responsible for the abuse of such right; and no law shall be enacted to restrain
or abridge the liberty of speech or of the press." Const 1963, art 1, § 5. The Court may consider
federal authority when interpreting the extent of Michigan's free speech protections. Thomas M
Plaintiffs have the burden to prove that the First Amendment applies. Clark v Cmtyfor
Creative Non-Violence, 468 US 288, 293 n 5 (1984). Amici contend that the First Amendment is
not applicable as the harvesting ban does not affect political speech or associational rights. While
the First Amendment protects speech as well as certain kinds of conduct, only conduct that is
"inherently expressive" is entitled to First Amendment protection. See Rwm,feld v Forum fbr
Academic & Inst Rights, 547 US 47, 66 (2006). To determine whether conduct is protected,
courts look to (I) whether the conduct shows an "intent to convey a particular message" and (2)
whether "the likelihood was great that the message would be understood by those who viewed
it." Texas v Johnson, 491 US 397, 404 (1989). Conduct does not become speech for purposes of
the First Amendment merely because the person engaging in the conduct intends to express an
idea. See Rwn.~jeld, 547 US at 66 (holding that conduct regulated by the challenged law, which
4
Plaintiffs fail to demonstrate how the harvesting ban implicates their constitutional right to
peaceably assemble. See Am. Compl. 138-45. A litigant "may not merely announce his position
and leave it to this Court to discover and rationalize the basis for his claims, nor may he give
only cursory treatment with little or no citation of supporting authority." Bronson Methodist
Hosp v Mich Assigned Claims Facility, 298 Mich App 192, 199 (2012).
10
denied federal funding to universities that prohibited military recruiting on campus, was not
The Supreme Court has long held that non-expressive conduct does not acquire First
Amendment protection whenever it is combined with another activity that involves protected
speech. Clark, 468 US at 297-98 (emphasizing that camping does not become speech protected
Rwn.~feld, 54 7 US at 66 ("If combining speech and conduct were enough to create expressive
conduct, a regulated party could always transform conduct into 'speech' simply by talking about
it."); United States v O'Brien, 391 US 367, 376 (1968) ("We cannot accept the view that an
apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in
The harvesting ban regulates the mechanics of the absentee voting process. It does not
regulate an elector's ability to vote by AV ballot, nor does it regulate any individual or
organization's right to engage in political speech. Plaintiffs err in their contention that the
harvesting ban inhibits their protected political speech under the broad umbrella of "political
expression" when interacting with Michigan voters. Am. Comp!. 142. That the act by a voter in
returning his or her AV ballot may be preceded by or lead to a political conversation does not
transform (nonprotected) conduct into (protected) speech under the First Amendment. See Clark,
468 US at 297-98; Rwn.~feld, 547 US at 66; O'Brien, 391 US at 376. In sum, the harvesting ban
entwined with protected speech. See Voting.for America v Steen, 732 F3d 382, 389-90 (CA 5,
2013) ( emphasizing that provisions regulating Texas's volunteer deputy registrars were not
intertwined with voter registration efforts). Stated differently, the Court can easily distinguish the
prohibited, nonprotected conduct (e.g., limits on who may possess or transport absentee ballots)
from otherwise protected speech by Plaintiffs or voters. At least one court has followed the Fifth
11
about collecting a voter's completed early ballot and delivering it to the proper place." DNC v
Reagan, 329 FSupp3d 824,851 (D Ariz, 2018), rev'd and remanded on other grounds sub 110111.
DNC v Hobbs, 948 F3d 989 (CA 9, 2020) (en bane), cert petition pending. The same conclusion
should follow the possession and deliverance of AV ballots, which have no expressive activity,
Plaintiffs' reliance on Meyer, Buckley, and Hargett for applying exacting scrutiny is in
error. ln Meyer v Grant, the Court held that the circulation of a petition to amend the Colorado
Constitution by ballot initiative involved political speech, and Colorado's prohibition against the
use of paid circulators violated the First Amendment. 486 US 414,425,428 (1988). The Court in
Buckley v American Constitutional Law Found, extended }.;feyer in holding that other Colorado
requirement that circulators be registered voters. 525 US 182 (1999). Both Courts held that
initiative petitions are protected speech of the petition circulators. Meyer, 486 US 414 at 421-22;
Buckley, 525 US at 192. The challenged restrictions in both cases were found to "limi[t] the
number of voices who will convey [the initiative proponents'] message" and, consequently, cut
down "the size of the audience [proponents] can reach." Buckley, 525 US at I 94-95 ( quoting
Meyer, 486 US at 422). Finally, the Courts held that Colorado had failed to justify these
restrictions on the circulators' speech. Meyer, 486 US at 425-28; Buckley, 525 US at 196-97.
In League of Women Voters v Hargett, 400 FSupp3d 706 (MD Tenn, 2019), plaintiff
organizations challenged Tennessee election laws restricting voter registration drives. The court
recognized that "encouraging others to register to vote" is "pure speech" and organizing others in
The harvesting ban is factually and legally distinguishable from Meyer, Buckley, and
Hargett. The results in Meyer and Buckley were contingent on the Court's finding that petition
involves both the expression of a desire for political change and a discussion of the merits of the
proposed change." Meyer, 486 US at 422. The act of possessing or delivering an AV ballot, on
12
the other hand is a non-discretionary, content-neutral act that does not of necessity involve the
expression of any political view or the discussion of any political view. [f the AV ballot itself
were speech, it would be the speech of the voter, not the speech of the third-pai1y returning the
ballot. Delivering a voter's AV ballot on their behalf contains no inherently political expression
The harvesting ban further does not discriminate against any particular point of view. The
ban applies equally to Plaintiffs and the MRP and RNC-despite their opposing political
viewpoints. Amici are often adverse to Plaintiffs in the political process, and are among the
entities directly regulated by the challenged provisions. Therefore, strict scrutiny is not
applicable as the harvesting ban restricts only the mechanisms of voting, value-neutral conduct
This case is akin to Schmitt v La Rose, 933 F3d 628 (CA 6, 2019), which rejected First
Amendment exacting scrutiny. The plaintiffs in Schmitt relied on Meyer and Buckley to
challenge Ohio's system of reviewing ballot initiatives. The Sixth Circuit rejected their argument
and applied Anderson-Burdick, finding that the challenged laws "regulate the process by which
initiative legislation is put before the electorate, which has, at most, a second-order effect on
protected speech." Id. at 638. Here, the process of returning AV ballots, if anything, has only a
"second-order effect on protected speech." Thus, any heightened scrutiny is not applicable as the
harvesting ban restricts only voting mechanisms, value-neutral conduct that cannot be construed
Even if the Court concludes that the harvesting ban is subject to exacting scrutiny, the
challenged law passes constitutional muster. Exacting scrutiny "requires a 'substantial relation'
between the [challenged law] and a 'sufficiently important' governmental interest." Citizens
United v FEC, 558 US 310, 366-67 (20 I 0). To withstand this scrutiny, "the strength of the
governmental interest must reflect the seriousness of the actual burden on First Amendment
13
The Supreme Court's ruling in John Doe No I v Reed, 56 I US 186 (20 I 0) is instructive.
There the Court held that disclosure requirements of Washington's Public Records Act were
sufficiently related to the state's interest in protecting the integrity of the electoral process to
satisfy exacting scrutiny. The speakers, whose First Amendment rights were at issue, were those
signing referendum petitions. Id. at 194-95. An individual expresses a view on a political matter
when he signs a petition under Washington's referendum procedure. But the Court held that the
State's interest of preserving the integrity of the electoral process by combating fraud was
sufficiently important to satisfy exacting scrutiny. Id. at I 97. "The State's interest is particularly
strong with respect to efforts to root out fraud, which not only may produce fraudulent outcomes,
but has a systemic effect as well: It 'drives honest citizens out of the democratic process and
The harvesting ban is narrowly tailored to "help[] prevent certain types of ... fraud
otherwise difficult to detect" such as might occur if a bad actor were to bully or fraudulently
entice a voter into giving the bad actor the voter's AV ballot only for the bad actor to destroy or
fail to deliver the AV ballot. 5 Reed, 561 US at 198. The harvesting ban thus docs not
208 of the Voting Rights Act (VRA), 52 US 10508. Am. Compl. 149. "Conflict preemption acts
to preempt state law to the extent that it is in direct conflict with federal law or with the purposes
and objectives of Congress." Ryan v Brunswick, 454 Mich 20, 28 ( 1997). Section 208 has limited
application. It states in full: "[a]ny voter who requires assistance to vote by reason <~l blindness,
disability, or inability to read or write may be given assistance by a person of the voter's choice,
5
For example, an illegal ballot harvesting scheme by a political operative working for a
Republican candidate forced a redo of the 20 I 8 midterm race for North Carolina's 9th
Congressional District. Snead, North Carobna Electfon Fraud Should Be a Wake-Up Call for the
Lefi, DAILY SIGNAL (March 5,2019), https://dailvsism.al/3211OXBX.
14
other than the voter's employer or agent of that employer or officer or agent of the voter's
Plaintiffs' VRA preemption claim fails as a matter of law. See Bates v Dow Agrosciences
LLC, 544 US 431, 449 (2005) (recognizing that preemption is disfavored in areas traditionally
regulated by the state). ln passing Section 208, Congress explained that it would preempt state
election laws "only to the extent that they unduly burden the right recognized in [Section 208],
with that determination being a practical one dependent upon the facts." S. REP. NO. 97-417, at
63 ( 1982). Plaintiffs, however, have not presented facts sufficient to show that Section 208
preempts the harvesting ban. Indeed, Plaintiffs have not presented evidence of any Michigan
voters covered under Section 208 who have been unable to vote or to use their assistants of
choice because of the harvesting ban. This record stands in stark contrast to the records presented
in the cases that Plaintiffs cite in support of their claims. For example, in OCA-Greater Houston
v Texas, 867 F3d 604 (CA5, 2017), one of the plaintiffs was an English-limited voter who had
been unable to complete her ballot due to the challenged state law limiting those eligible to assist
as an interpreter. 867 F3d at 615. Similarly, in United States v Berks Cnty, 250 FSupp2d 525,
530 (ED Penn, 2003), the Government presented specific evidence of English-limited voters
denied the right to use a voting assistant of choice by poll workers. Without any evidence of the
sort adduced here, it is impossible to determine whether the harvesting ban imposes any burden
whatsoever on the rights of voters covered under Section 208 of the VRA.
Furthermore, it is not clear that the harvesting ban conflicts with § 208 protections for
covered voters. The VRA defines "voting" in pertinent as "all action necessary to make a vote
effective in any primary, special, or general election." 52 USC 103 I0(c)(l). This definition
encompasses a broad range of activities that precede, include, and follow the physical act of
reading, marking, and casting a ballot. See QC/I-Greater Houston, 867 F3d at 615. But Section
208's legislative history focuses on election-day assistance and in-person voting-not absent
ballot voting. See, eg, Senate Report 62 ("Certain discrete groups of citizens are unable to
exercise their rights to vote without obtaining assistance in voting including aid within the voting
15
booth."). It is logical that the legislative history of the VRA would not consider the actions
"necessary to make a vote effective" under the VRA to include absentee voting, since there is no
broad constitutional or federal statutory right to vote by absent ballot, which at the time of its
imperative." Crcrnford, 553 US at 209 (Scalia, J., concurring); see also McDonald, 394 US at
807-08.
For these reasons, the harvesting ban is constitutional and not preempted by federal law,
facial challenges in reliance on the self-executing right to vote absentee and Michigan's Equal
Protection Clause in LWV. MCR 7.2 l 5(C)(2). Plaintiffs' as-applied challenges should similarly
be rejected for the substantive reasons articulated in the majority and concurring opinions in
LWV. COVID-19 does not nullify the Legislature's obligation to set a deadline "for the
submission of the completed ballot to election officials" and the ballot receipt deadline "does not
effectively preclude a voter from completing the process of voting by absentee ballot during the
40 days before the election." Id. at *9. These are election policy decisions best left to the
Legislature. See State Farm v Old Republic Ins Co, 466 Mich 142, 149 (2002) ("It is not the role
of the judiciary to second-guess the wisdom of a legislative policy choice; our constitutional
6
Amici acknowledge that State Defendants did not move for summary disposition regarding
Plaintiffs' ballot receipt deadline claims, but request that the Court consider Amici's defense of
the challenged law. State Defendants' failure to defend the ballot receipt deadline represents a
failure to adequately represent Amici's interests, despite the Court's ruling to the contrary (July
14, 2020 Order), potentially depriving Amici of the opportunity to be heard and violating their
right to clue process.
16
especially pertinent given that proposed legislation is currently before the Legislature regarding
The Court must consider how COYID-19 affects both sides of the balance-interests of
the State and the individual. COYID-19 has complicated many public activities, including
voting. But "States" also "have important interests ... in the wake of election emergencies": they
must "focus their resources on recovering from the emergency, ensuring the accuracy of voter
registrations they have received, relocating polling places as needed, ensuring adequate staffing
for the voting period, and otherwise minimizing the likelihood of errors or delays in voting."
Morley, Election Emergencies: Voting in the Wake of Natural Disasters and Terrorist Attacks,
67 Emory LJ 545, 593 (2018). As emergencies complicate the exercise of individuals' voting
rights, they also enhance the State's interest in maintaining orderly, inexpensive processes that
help restore "some sort of order, rather than chaos" to the democratic process. Burdick v Takushi,
504 US 428, 433 (1992). An "election emergency" should thus "seldom warrant" any "large-
scale" changes to election laws by courts. Morley, 67 Emory LJ at 593; ACORN v Blanco, No.
2:06-cv-6 I l (ED La, Apr. 2 I, 2006) (denying request "to extend the deadline for counting
absentee ballots received by mail" in New Orleans in the wake of Hurricane Katrina). In fact, the
Director of the National Institute of Allergy and Infectious Diseases, Dr. Anthony Fauci, has
stated that he sees "no reason" Americans should avoid voting in-person as long as social
distancing guidelines are followed. 8 Whether to delay the election deadline is a large-scale
change to Michigan election law, which should be best-left to the Legislature. LWV controls
against Plaintiffs' facial and as-applied challenges to the ballot receipt deadline.
2. The ballot receipt deadline does not violate Michigan's Due Process
Clause.
7
HB5987 would allow for AV ballots received within 48 hours of election day to be counted;
and SB 757 would allow clerks to start processing AV ballots earlier.
8
McArdle, Fauci: 'No Reason' Americans Can't Vote In-Person as Long as Precautions Are
Taken, YAHOO NEWS (Aug. 14, 2020), https://vhoo.it/3lvYis0.
17
Plaintiffs allege that the ballot receipt deadline violates Michigan's Due Process Clause,
Am. Comp!. 137, which provides that "[n]o person shall . . . be deprived of life, liberty or
property, without due process of law." Const 1963, art 1, § 17. The clause is only violated if
there has been a deprivation of life, liberty, or property. Bonner, 495 Mich at 225-26. "If there is
no such deprivation, no process is 'due' and thus no harm has occurred." Bauserman v
Unemployment Ins Agency, 503 Mich 169, 186 (2019). Plaintiffs have not been deprived any
liberty interest relating to the general election. For that reason alone, Plaintiffs' due process
Additionally, Plaintiffs due process claim independently fails because the State has not
deprived Plaintiffs of their right to vote absentee. Plaintiffs complain about alleged delayed
deliveries in the USPS and COVID-19-these are all external factors outside of the State's
agency and thus the State has not deprived Plaintiffs of anything. Moreover, the fact that one or
several individuals may have experienced delays in receiving absent ballot applications or
mailing absentee ballots is not proof that the system is broken.9 Finally, absent voters have up to
40 days to submit their absentee ballots in person or by mail; similar to a litigant harboring error
as an appellate parachute, an elector's individual decision to wait to the last moment to apply for
and mail their absentee ballots should not be considered an as-applied constitutional deficiency
of the ballot receipt deadline should the ballot not be timely delivered.
Plaintiffs further argue that a voter "hav[ing] no idea whether their ballots will be counted
reveals a fundamental breakdown in the voting process that undermines the fundamental fairness
of the electoral system." Pl. 7/2 I /20 Brief 13. But th is is true anytime a voter submits an absentee
ballot through the USPS or by common courier. The voter trusts that her absentee ballot will be
received and counted; the State has no responsibility or influence to guarantee the performance
of the USPS. Moreover, all registered voters can track their ballot online by looking up their
9 See Wilkinson, Will Postal Service botch election in ~Michigan? It's unlikely, experts say.,
BRIDGE (Aug. 28, 2020), https://bit.lv/2()IE39v (discussing expert study performed in Michigan
showing that local mail traveling within a community, which is typical for absentee ballots, was
for the most part timely delivered).
18
information on the Michigan Voter Information Center website. See also MCL 168.764c ("[T]he
clerk of that city or township shall utilize the ballot tracker program and allow voters to track
For these reasons, the ballot receipt deadline is constitutional, and Plaintiffs' facial and
III. New Democratic Coalition or Purcell bar Plaintiffs' as applied challenges to the
general election.
With the general election less than 60 days away, the Court's August 8, 2020 Order
stated that it was mindful of the warning in New Democratic Coahtion v Austin, stating:
We take judicial notice of the fact that elections require the existence of a
reasonable amount of time for election officials to comply with the mechanics and
complexities of our election laws. The state has a compelling interest in the
orderly process of elections. Court can reasonably endeavor to avoid
unnecessarily precipitate changes that would result in immense administrative
difficulties for election officials. In this case to grant the relief requested by the
plaintiffs would seriously strain the election machinery and endanger the election
process. [New Democratic Coalition v Austin, 41 Mich App 343, 356-57 (1972).]
Specifically, courts must consider that injunctions "can themselves result in voter confusion and
consequent incentive to remain away from the polls." Purcell, 549 US at 5. "As an election
draws closer, that risk will increase." Id. at 4. There is "inadequate time to resolve factual
disputes and legal disputes .... " Crookston v.Johnson, 841 F3d 398,398 (CA 6, 2016). Because
Michigan's general election is ongoing and its "election machinery is already in progress," the
State's already powerful interests become insurmountable. Reynolds v Sims, 377 US 533, 585
(1964). The "disruption to the electoral process" and the "impair[ment] [to] the State's ability
guarantee the integrity of its elections" increase "exponentially" when laws are enjoined at this
late stage. Bethea v Deal, 2016 WL 6 I 23241, at *3 (SD Ga, Oct. 19, 2016); Ariz Dem Party v
Plaintiffs' requested relief will result in administrative difficulties and voter confusion. At
this stage, registered Michigan voters have already begun applying for AV ballots for the general
19
election on August 20, 2020 (75 days before general election). MCL I 68. 759(2). On September
19, county clerks must begin delivering AV ballots for the general election to local clerks, MCL
168. 714. 10 Local clerks are required to immediately mail AV ballots upon receipt of an
application. MCL 168.76 I (I). Also, on September 19, delivery of AV ballots to the military and
those living overseas must begin for the general election. MCL 168.759a. If the harvesting ban
and ballot receipt deadline are declared unconstitutional, then the Secretary would need to re-
print these AV ballots with the revised instructions, and possibly spoil AV ballots that had
Plaintiffs' requested relief at this late stage of the general election would negatively
impact Amici, their candidates, their voters, and their own institutional interests by
fundamentally changing the "structur[ e] of this competitive environment." Shays v FEC, 414 F3d
76, 85 (DC Cir, 2005). If Plaintiffs prevail and enforcement oftbe statutes is enjoined, Amici and
their candidates will face "a broader range of competitive tactics than [state] law would
otherwise allow." Id. at 86. An injunction in favor of Plaintiffs would "fundamentally alter the
environment in which [they] defend their concrete interests (e.g .... winning reelection)." Id.
CONCLUSION
In sum, Amici respectfully urge the Court to grant the State Defendants' motion for
summary disposition.
Respectfully submitted,
10
Secretary of State, 2020: Mich;gan Election Dates, https:/lbit.lv/32GKnDV (accessed Sept. 2,
2020).
20
PROOF OF SERVICE
STEVEN EATHERLY, being first duly sworn, deposes and says that on the 2 nd day of
September, 2020, he served a copy of a Republican National Committee and Michigan Republican
Party's Brief as Amici Curiae in Support of Defendants' 8/31/20 Motion for Summary Disposition
and this Proof of Service in the above-entitled matter upon via email:
ORGANIZED BY
Center for Democracy and Election Management
American University
SUPPORTED BY
Carnegie Corporntion of New York
The Ford Foundation
John S. and James L. l,night Foundation
OrnirJyar Networl1
RESEARCH BY
Electionline.org/Tt1e Pew Charitable Trusts
s. In1p1~oving Bal lot Integrity
Because the integrity of the ballor is a hallmark of democracy, it is imperative chat dection
officials guaramee eligible volers the opportunity to vote, but only once, and wbulate
ballots in an ,iccur,He and fair manner.
In addition rn the federal investigations, st,uc attorneys general and local prosecucors handle
cases of election fraud. Other cases arc never pursued because of the difficulr.y in obtaining
sufficicm evidence for prosecution or becatm: of the low priority given to election fraud
cases. One district auorncy, for example, explained that he did not pursue allcgarions of
fraudulent voter rcgistrarion because that is a vicrirnlcss and nonviolent crime.'''
Election fraud umally attracts public ancmion and co1m:s under investigation only in close
elections. Courts may only overturn an election result if there is proof that the number of
irregular or fraudulent votes exceeded the margin of victory. When there is a widt: margin,
the losing candidate rarely presses for an investigation. fraud in any degree and in any
circumswncc is subversive co the electoral process. The best way co maimain haJlot integrity
i, to invc,tigatc all credible allegations of election fraud and otherwise prcvcm fraud before
it can affecl an election.
Investigation and prosecution of election fraud should include r.hosc acts commiued by
inclividuaJs, including election officials, poll workers, volumecrs, challengers or other
nonvor.crs associated wilh the administration of elcctious, and not just fraud by votcrs.
r--·-
1 Recommendations on Investigation and Prosecution of Election Fraud
5.1.l In July of evcn-nurnbcn::cl years 1 the U.S. Department of Justice slioulcl issue a
1-cpo1-t on its investi~Jations of election fraud. This report should specify the numbers ot
allegations rnadf\ mat1rrs investigatrd, cases prnsccutcci, and indivicluals convicted for
various crimr•,. Erich state's r1tton1cy ~iene1·al and each local prnsccutor- should
,·1111ilar 1·cport.
5.1.2 The U.S, Deparl1m,nt of Jw,tice's Office o1 Public Jntc9rity should i11cn:;ase its to
i11vcstigatc and pro,,ecutc eleclion-related fraud.
l;;;;;;=============_,;;;;;;;;;;;;;_ _ _-_---·--·----·
5.1.3 In additio11 to lhc penalties set by the Volin9 Rights Acl 1 it shouid be a fod1:1·ai felony
for any individuai, group of individuals, 01· 01·ganization lo enga9e in any act of
vioience 1 prnpel'ly clost1·uction ( of man: than $500 vztlue l, or thrnate11ed act of violence
that is intended to deny ,my individual his 01· lier lztwful 1·ight to vote 01· to participate
in a federal c:cction.
5.1.4 To deter systemic eHorls 1.o clocoivo or intimidate voters 1 the Cornrnission recornrnends
ferieral legislation to prnhibit any individual or group from deliberately prnviding tho
public with incom:ct infonnation about election prncedures for the purpose of
p1·evr11tinq voters from going to the pol ls.
Nern-citizens have registered to vote in several recent elections. Following a disputed 19'.)(i
congressional election in California, che Comminee on House Oversight found 784 invalid
votes from individuals who had registered illeg~Jly. In 2000, random checks by the
Honolulu city clerk's office frnwd about 200 registered vocers who had admincd they were
not U.S. citizens.' In 2004, at least .3'5 foreign citizens applied for or received voter cards
i11 Harris County, Tcxa.s, and non-citizens were found on the voter registration lists in
/vfaryland as wc:11.''
The growth or "d1ird-party" (unofficial) voler rcgistralion drives in rect:m dc.:ctions has led
w a rise in reports of voter registration fra11d. While media a1te11rinn foc11sed nn reports of
fraudulent vmer n:gistra1ions with the names of cartoon characters and dead people.
officials in l O stales invcsugatcd accusations of voter registration fraud stemming frorn
elections in 20011. and between October 2002 and July 2005, the U.S. prosccur.ed 19
people charged with voter rcgisc ration fraud.''' ivlany of these were submitted by third-parry
organizations. often hy individuals who were paid by the piece co register voters.
States should consider new legislation ro minimize fraud in voter registration, particularly
to prevent ahusc by chird .. p::my organizations rhat pay f<,r voter registration by the piece.
Such legislation might dir,:ct election offices to check the identity of individuals registered
through third-party voter registration drives and co track the voter registra1ion forrm.
J-iAVA requires citizens who register by mail lO vote in a state for the first time lO provide
__________________ ,
----,------~- -·-
an ID when Lhey register or when they vote. Some states have inccrpn:ted this requirement
ro apply only ro voter registration forms s<.:nt m election offices by mail, not to forms
ddivtred by Lhird-party organizaLions. A~ a n.'SLUt, neither the identity nor the actual
existence of applicants is verified. All citizens who register to vote with a mail-in form,
whether rhar form is acrually scm by mail or is instead hand-delivered, should comply with
Hi\VJ\'s requirements or with stricter scare requirements on voter ID, hy providing proof of
identity either with their registration application or when
they appear ar the polling station on Election Day. In this
way, election offices will be obliged to veril), the identity
of every citizen who registers to vote, whether or not the
registration occurs in person.
5.2.2 All states should co11siclrr passing lrgi,lation that a.tte111pts to minimize the fraud that
has resulted from "payment by the piece" to anyone ·111 exchange for their efforts in
vote,· 1·egistration, absentee hailol 1 or· signature collection.
5.2.3 Stcttc$ ~houid not take act'I011s that cl'lscou1·age legal voter 1·egistration or get-out-the-
vote activities or assistance 1 inclucling assistance to voters who are not 1·equired to vote
in person under federal law.
DANA NESSEL,
Defendant.
- - - - - - - - - - -I
I. PROCEDURAL HISTORY
Michigan and the other governing transportation to polling places. (ECF No. I).
On January 27, 2020, plaintiffs filed an amended complaint, adding two additional
Institute (DAPRI). (ECF No. 17). Defendant Nessel filed a motion to dismiss the
amended complaint on February 10, 2020. (ECF No. 27). After oral argument, the
Attorney General's motion to dismiss was granted in part and denied in part. (ECF
No. 59). The court also heard and granted motions to intervene in this matter by
the Michigan Republican Party and the Republican National Committee (the
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1572 Page 2 of 54
Plaintiffs filed the instant motion for preliminary injunction to which the
Attorney General responded. (ECF Nos. 22, 30). Upon their entry into the case,
the court also permitted the Intervenors to file responses to the motion for
preliminary injunction, which they did on June 5, 2020. (ECF Nos. 68, 70).
Plaintiffs filed replies to all response briefs. (ECF Nos. 41, 73). The court held a
hearing via video on July 14, 2020, pursuant to notice. (ECF No. 74).
For the reasons the follow, the court DENIES plaintiffs' motion for
preliminary injunction with respect the Absentee Ballot Law and GRANTS the
Americans by persuading and mobilizing citizens around issues and elections that
affect their lives." Id. It engages in activities to "educate, mobilize, and turn out
towards those objectives in upcoming Michigan state and federal elections. Id.
2
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1573 Page 3 of 54
number of campuses nationwide." (ECF No. 17, PageID.93, ,r 8). Rise asserts that
"efforts to empower and mobilize students as participants in the political process ...
are critical to Rise's mission because building political power within the student
student organizers who are paid to organize their campuses around voter education
and turnout activities. Rise plans to continue this program through the 2020
election. Id. at 9. This effort has included and will continue to include engaging
mission to continue to fight for Human Equality and Economic Justice and to seek
structural changes through the American democratic process." (ECF No. 17,
DAPRI's members have "provided rides" to and from the polls for community
3
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1574 Page 4 of 54
members on election day; the organization intends to continue this practice and to
expand this work in future elections. Id. at ,r 16. DAPRI acknowledges that
Proposal 3, which passed in 2018, makes absentee voting available to all and says
that it would like to educate voters about the opportunity to vote absentee. (ECF
"Absentee Ballot Organizing Ban" (hereinafter the "Absentee Ballot Law") (Mich.
Comp. Laws§ 168.759(4), (5), (8)) (see ECF No. 17, PageID107-l 12, ir,r 48-55)
and its "Voter Transportation Ban" (hereinafter the "Voter Transportation Law")
(Mich. Comp. Laws§ 168.93l(l)(f)) (see ECF No. l 7 PageID.101-107, ,rif 33-47).
Specifically, they contend that the Absentee Ballot Law is (1) unconstitutionally
vague and overbroad under the First and Fourteenth Amendments (Count I); (2)
violative of their Speech and Association rights under the First and Fomieenth
Amendments (Count II); and (3) preempted by Section 208 of the Voting Rights
Act of 1965 (Count IV). Similarly, they assert that the Voter Transportation Law
is (I) unconstitutionally vague and overbroad under the First and Fourteenth
Amendments (Count V); (2) violative of their Speech and Association rights under
the First and Fourteenth Amendments (Count VI); and (3) preempted by Section
208 of the Voting Rights Act of 1965 (Count VIII). (ECF No. 17). The court
4
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1575 Page 5 of 54
previously dismissed plaintiffs' claims that the laws place an undue burden on the
fundamental right to vote (Counts III and VII). (ECF No. 59).
application and submit that application to the voter's local clerk in order to receive
an absentee voter ("AV") ballot. For both primaries and regular elections, an
elector may apply for an AV ballot at any time during the 75 days leading up to the
primary or election until 8 p.m. on the day of the primary or election. Mich.
Comp. Laws § 168.759(1 )-(2). In either case, "the elector shall apply in person or
by mail with the clerk" of the township or city in which the elector is registered.
in substantially the following form." The statute then provides the body of the
form and includes a general "warning" and a "certificate" portion for "a registered
6
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1577 Page 7 of 54
Id.
Under§ 759(6), the application form must include the following instructions
to the applicant:
Consistent with these statutes, § 759(8) provides that"[ a] person who is not
authorized in this act and who both distributes absent voter ballot applications to
absent voters and returns those absent voter ballot applications to a clerk or
§ 168.759(8). Section 931 also provides for penalties associated with distributing
and returning AV ballot applications. See Mich. Comp. Laws §§ 168.931 (l)(b )(iv)
and (l)(n).
Based on these provisions, there are two ways to apply for an absentee voter
ballot: ( 1) a written request signed by the voter, and (2) on an absentee voter ballot
application form provided for that purpose and signed by the voter. In either case,
the voter applies by returning his or her preferred mechanism a written request or
form application - to the voter's local clerk in person or by mail. Mich. Comp.
Laws§§ 168.759(1), (2), (6). For several years, the Secretary of State has also
instructed Clerks to accept applications sent by facsimile and email. Voters who
8
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1579 Page 9 of 54
cannot turn in their application in person, cannot mail their application or return it
in the voter's household deliver their application, or may request another registered
voter to return the application on their behalf. Mich. Comp. Laws §§ 168.759(4),
(5), (6). In short, only persons authorized by law, i.e. those described in§ 759(4),
may return a signed application for an absentee voter ballot to a local clerk. Mich.
Plaintiffs assert that the restrictions contained in the Absentee Ballot Law
inhibit their ability to organize around absentee voting. DAPRI encourages voters
to vote absentee when they work far away from home and getting to the polls on
election day would be prohibitively time consuming. (ECF No. 22-5, Hunter Deel.
,r 16). And both DAPRI and Rise have a programmatic focus of encouraging
college students to vote absentee. (ECF No. 22-5, Hunter Deel. ,r 16; ECF No. 22-
6, Lubin Deel. ,r,r 3, 24, 26). Rise encourages absentee voting because
convenience is a significant factor in youth voting. (ECF No. 22-6, Lubin Deel.
,r,r 22, 24; ECF No. 22-7, Palmer Deel. ,r 19). Plaintiffs have found that between
voting in person on election day is decidedly difficult for college students. (ECF
No. 22-6, Lubin Deel. ,r,r 20, 22-23; ECF No. 22-7, Palmer Deel. ,r 19 (study
showed 40+ percent of young voters who did not vote in 2016 cited being too
9
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1580 Page 10 of 54
busy)). DAPRI also encourages college students who are registered to vote at
home but attend college in another part of Michigan to vote absentee, for example
a student in Detroit who is registered to vote in the Upper Peninsula. (ECF No. 22-
voting numbers to surge in the presidential primary and expect the same in the
2020 general election, the first federal elections in which no-excuse absentee
voting will be available to all Michigan voters. See Ashley Schafer, City preps for
uptick of absentee voters, Midland Daily News, Nov. 22, 2019; Jackie Smith,
election, Port Huron Times Herald, Dec. 10, 2019. Yet, plaintiffs maintain that the
Absentee Ballot Law unduly limits the ability of organizations like theirs to
persuade and encourage Michigan voters to apply for absentee ballots and makes it
***
(f) A person shall not hire a motor vehicle or other
conveyance or cause the same to be done, for conveying
voters, other than voters physically unable to walk, to an
election.
IO
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1581 Page 11 of 54
Thus, under this provision, a person cannot pay for the transportation of a voter to
the polls unless the voter is physically unable to walk. This language has existed
in some form since 1895, see 1895 P.A. 35, and has been a part of Michigan's
modern election law since it was reenacted in 1954 P.A. 116. It was amended by
1982 P.A. 201 to replace the term "carriage" with the current term "motor
vehicle."
workers, make it to the polls. (ECF No. 22-5, Hunter Deel. ,r,r 8-9; ECF No. 22-6,
Lubin Deel. ,r 23; ECF 22-7, Palmer Deel. ,r 19 (study showed that 29 percent of all
young voters and 38 percent of young voters of color cited lack of transportation as
a factor in why they did not vote)). Advocacy organizations like plaintiffs provide
rides to the polls as a central part of their organizing efforts. (ECF No. 22-5,
Hunter Deel. ,r,r 6-11; ECF No. 22-6, Lubin Deel. ,r 24; ECF No. 22-8, Ufot Deel.
,r,r 3-11 ). The Voter Transportation Law limits options for any organization
organizing tactic for political and advocacy organizations like plaintiffs, as it helps
traditionally underrepresented at the polls build their political power. (ECF No.
11
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1582 Page 12 of 54
22-5, Hunter Deel. ,r,r 5-6; ECF No. 22-6, Lubin Deel. ,r,r 3, 12, 18; ECF No. 22-8,
Ufot Deel. ,r,r 3-11). Hence, plaintiffs seek to enjoin enforcement of the referenced
statutes.
IV. ANALYSIS
factors: ( 1) whether plaintiffs have a strong likelihood of success on the merits; (2)
whether plaintiff has shown that irreparable injury will occur without an
injunction; (3) whether issuance of the injunction would cause substantial harm to
others; and (4) whether the public interest would be served by issuance of the
injunction. See Tumblebus Inc. v. Cranmer, 399 F.3d 754, 760 (6th Cir. 2005).
often the predominant consideration. Gonzales v. National Bd. of Med. Exam 'rs,
225 F.3d 620,625 (6th Cir. 2000) ("[A] finding that there is simply no likelihood
the burden is a heavy one because injunctive relief is "an extraordinary remedy
which should be granted only if the movant carries his or her burden of proving
Cnty. Gov 't, 305 F.3d 566, 573 (6th Cir. 2002). Indeed, the "proof required for the
12
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1583 Page 13 of 54
plaintiff to obtain a preliminary injunction is much more stringent than the proof
729, 739 (6th Cir. 2000); see also McNeilly v. Land, 684 F.3d 611, 615 (6th Cir.
2012) ("The proof required for the plaintiff to obtain a preliminary injunction is
much more stringent than the proof required to survive a summary judgment
balanced, not prerequisites that must be met." Hamad v. Woodcrest Condo. Ass 'n,
328 F.3d 224, 230 (6th Cir. 2003) (quoting Michigan Bell Telephone Co. v. Engler,
257 F.3d 587,592 (6th Cir. 2001)). A plaintiff must always, however, show
Inc. v. Michigan Brick, Inc., 679 F.2d 100, 104 (6th Cir. 1982).
Amendment, provides that 'Congress shall make no law ... abridging the freedom
of speech."' Virginia v. Black, 538 U.S. 343,358 (2003). The First Amendment
of its message, its ideas, its subject matter, or its content."' United States v.
13
Case 4:19-cv-13341-SDD-RSW ECF No. 79 filed 09/17/20 PagelD.1584 Page 14 of 54
Stevens, 559 U.S. 460, 468 (2010) (quoting Ashcroft v. American Civil Liberties
Union, 535 U.S. 564, 573 (2002)). Plaintiffs contend the requirement that only
Amendment because it prohibits only ce1iain persons -- individuals who are not
Mich. Comp. Laws§ 168.759(4), (5). According to plaintiffs, this solicitation ban
explained in Project Veritas v. Ohio Election Comm 'n, 418 F.Supp.3d 232,245
(S.D. Ohio 2019), "the Supreme Court and the Sixth Circuit have considered facial
challenges under the First Amendment that ... were not overbreadth challenges;
otherwise restricted protected activity." See R.A. V v. City of St. Paul, Minn., 505
speech based on content and declining to consider overbroad argument); John Doe
No. 1 v. Reed, 56 l U.S. 186 (20 I 0) (applying First Amendment "exacting scrutiny"
14
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petitions); Susan B. Anthony List v. Driehaus, 814 F.3d 466 (6th Cir.2016)
(applying strict scrutiny to facial challenge of Ohio false statement laws as content-
based restrictions); Schmitt v. LaRose, 933 F.3d 628 (6th Cir. 2019) (holding
accordingly, the Court will determine if the challenged provisions of the Absentee
Dismiss the Amended Complaint ECF No. 59), the court concluded that exacting
scrutiny applied to this inquiry. Ultimately, the court found the rationale in League
of Women Voters v. Hargett, 400 F.Supp.3d 706 (M.D. Tenn. 2019) persuasive.
Hargett concluded that encouraging others to register to vote is "pure speech" and
This court concluded that unlike cases involving the mere administrative process or
the mechanics of the electoral process, the Absentee Ballot Law, as interpreted by
plaintiffs and as set forth in the amended complaint, involves the regulation of
15
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political speech. This court found little difference between discussions of whether
to register to vote and discussions of whether to vote absentee. (ECF No. 59).
The Intervenors have brought forward several cases that call into question
this aspect of the court's earlier decision and seek to distinguish the present
circumstances from Hargett. Like Hargett, none of the cases the Intervenors cite
are precedential, but the court will, nonetheless, give them due consideration. In
American Ass 'n of People With Disabilities v. Herrera, 580 F.Supp.2d 1195, 1203
(D. N.M. 2008), the plaintiff challenged a regulatory scheme that restricts third-
parties wishing to engage in third-party voter registration in the following ways: (i)
or individual may receive; (iii) requiring that third-party registration agents return
completed registration forms to the county clerk or Secretary of State within forty-
eight hours; and (iv) applying criminal and civil penalties for parties who do not
comply with third-party registration laws. The Herrera court opined however, that
none of the challenged restrictions concerned or affected the content of any speech
court observed that the New Mexico statute did not "mandate any particular speech
or statement or information" and did not preclude any speech. Indeed, the state
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conceded that the third-party registration agent could intentionally lie, deceive or
provide fraudulent information and the law would not penalize that agent in any
way. Yet, the statutory scheme at issue in Herrera is plainly distinguishable from
§ 759, which prohibits a large sector of Michigan electors and all non-Michigan
Next, the lntervenors point to Voting/or America, Inc. v. Steen, 732 F.3d
from serving as VD Rs, (2) the provision forbidding VD Rs of one county from
serving in another county; (3) the compensation provision; (4) the photocopying
applications via US mail requiring personal delivery instead. The Fifth Circuit
observed that some voter registration activities involve speech - including urging
citizens to register, distributing voter registration forms, helping voters fill out
forms, and asking for information to verify the registrations were processed
successfully. Id. at 389. But the court concluded that the challenged provisions
17
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could easily be separated from the speech aspects of voter registration activities.
completed voter registration forms to a county office. Thus, the court concluded
that the challenged provisions were not based on speech. Unlike the organization
in Steen, no members of plaintiffs here can assist with or return absentee ballot
applications even if they are Michigan electors unless they are asked to do so
because they are prohibited from asking to do so, an act which necessarily involves
because those cases involved laws that regulated "the process of advocacy itself,
dictating who could speak (only unpaid circulators and registered voters) or how to
go about speaking (with name badges and subsequent detailed reports)." Id. at
390. In contrast, the Absentee Ballot Law plainly regulates who can speak (only
Michigan electors or family or household members of the applicant) and what they
may say.
575 F.Supp.2d 1298 (S.D. Fla. 2008), in which the plaintiffs challenged certain
1
Meyer v. Grant, 486 U.S. 414 (1988) and Buckley v. American Constitutional Law
Foundation, Inc., 525 U.S. 182 (1999).
18
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certain deadlines and reporting requirements that could result in fines for those
who failed to comply. In Browning, the plaintiffs claimed that certain aspects of
their political speech and association rights. Notably, the court acknowledged that
activity." Id. at 1321. Yet, the challenged provisions ofthe statutory scheme,
unlike those in Meyer and Schaumburg, "did not place any direct restrictions or
Id. In contrast, § 759 does place restrictions on who may participate in certain
aspects of voter registrations drives -- only Michigan electors who are also family
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ballot applications. In Browning, the court was able to separate the speech aspects
of the voter registration drive - any person or organization can use any method to
solicit new voters and distribute applications - from the regulated handling of the
voter registration applications after they have been collected from the applicants.
Finally, the Intervenors cite Democratic Nat 'l Comm. v. Reagan, 329
F.Supp.3d 824, 851 (D. Ariz.2018), rev'd and remanded on other grounds sub
nom. Democratic Nat'! Comm. v. Hobbs, 948 F.3d 989 (9th Cir. 2020) (en bane),
cert. petition pending, in which the plaintiffs challenged a law prohibiting third-
party collection of early ballots. The court found that the law only minimally
burdened the voters' voting rights and associational rights. While the court
discussed the free speech aspects of Steen, supra, it did not address, nor did the
plaintiffs assert, any burden on free speech. Accordingly, this case is largely
inapposite.
In sh01i, none of the cases cited cause the court to reverse its earlier
to this law, as explained in Hargett. The court remains convinced that there is little
20
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register to vote absentee. Indeed, under the current circumstances in this state and
throughout the nation - where a global pandemic causes many Michigan voters,
particularly those with certain underlying medical conditions, to question the safety
of voting in person - discussions about whether and how to vote absentee are
both on the part of applicant and on the part of the third-party organizations
seeking to assist voters with this process. Hargett, at 724 (quoting Buckley v.
American Constitutional Lmv Foundation, Inc., 525 U.S. 182, 195 (1999)).
However, whether the court applies exacting scrutiny or a rational basis standard of
review, on the record before the court and as discussed in detail below, the
governmental interest. Citizens United v. FEC, 558 U.S. 310, 340 (20 I 0). And,
"the strength of the governmental interest must reflect the seriousness of the actual
burden on First Amendment rights." John Doe #1 v. Reed, 561 U.S. 186, 196
(2010).
Plaintiffs maintain that the registration requirement for those who would
government interest. They compare the registration requirement to the law struck
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down by the Supreme Court in Buckley, which allowed only registered voters to
Id. at 193-194. There, the record showed that there were 400,000 voting eligible
persons who were not registered to vote. Id. at 193. The Supreme Court therefore
reduces the number of persons, both volunteer and paid, available to circulate
petitions." Id. at 193. Plaintiffs say there are at least 750,000 persons who are
eligible to vote but are not registered to vote residing in Michigan. (ECF No. 22-7,
requirement drastically reduces the number of persons who can return AV ballot
applications and should suffer the same fate as the registration requirement struck
ballot application cannot survive exacting scrutiny for the same reasons. Plaintiffs
argue that the solicitation ban burdens their ability to persuade Michigan voters to
vote by absentee ballot, similar to the law struck down in Nat'l Ass 'nfor
Defendant and the Intervenors contend that the State has compelling
interests in both preserving the integrity of elections and preventing fraud in the
22
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method of preventing election fraud may well be debatable, the propriety of doing
so is perfectly clear." Crawford v. Marion Cnty. Election Bd., 553 U.S. 181, 196
(2008). In John Doe No. 1 v. Reed, 561 U.S. 186 (2010), the Supreme Court held
related to the state's interest in protecting the integrity of the electoral process to
satisfy exacting scrutiny. The speakers whose First Amendment rights were at
issue, were those who signed referendum petitions, which is expressive conduct
under the First Amendment. Id. at 194-95. They sought to prohibit the state from
state's public records act. But the Court held that the state's interest in preserving
the integrity of the electoral process by combating fraud was sufficiently important
to satisfy exacting scrutiny. Id. at 197. "The State's interest is particularly strong
with respect to efforts to root out fraud, which not only may produce fraudulent
outcomes, but has a systemic effect as well: It 'drives honest citizens out of the
democratic process and breeds distrust of our government."' Id. (quoting Purcell
23
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Importantly, in Reed, the Court found that the threat of fraud was not merely
cases of fraud across the country to support their point. Id. at 198. Similarly, here
the Intervenors have cited cases from across the country in which courts have
acknowledged that the absentee ballot process is susceptible to fraud, along with
other supp01iing evidence. See Crawford, 553 U.S. at 195-96 (explaining history
of in-person and absentee fraud "demonstrate[ s] that not only is the risk of voter
fraud real but that it could affect the outcome of a close election"); Griffin v.
Roupas, 385 F.3d 1128, 1130-31 (7th Cir. 2004) ("Voting fraud is a serious
(citing John C. Fortier & Norman J. Ornstein, Symposium: The Absentee Ballot
and the Secret Ballot: Challenges.for Election Reform, 36 U. Mich. J.L. & Reform
483 (2003))); Qualkinbush v. Skubisz, 826 N.E.2d 1181, 1197 (Ill. App. Ct. 2004)
("It is evident that the integrity of a vote is even more susceptible to influence and
from 2000-2012 finding that more fraud crimes involved absentee ballots than any
other categories); Veasey v. Abbott, 830 F.3d 216,256 (5th Cir. 2016) ("The
24
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district court credited expert testimony showing mail-in ballot fraud is a significant
with the absentee voting process, including making it a felony to forge a signature
reduce fraud or abuse in the application process on the front end, as opposed to
simply punishing it after it occurs. The Absentee Ballot Law is designed with
fraud prevention as its aim and it utilizes well-recognized means in doing so. As
absentee ballot applications and limiting those who are permitted to transport the
carelessness." (ECF No. 68, PageID.1174). In this vein, the Browning court
2
In acknowledging the findings contained in the authorities cited by the intervenors
about the greater susceptibility to fraud in the absentee voter context, the court does not find or
suggest that there has been any showing of a greater incidence of fraud in the absentee voting
process in Michigan.
3
At least one report, the Carter-Baker Commission report which was put together by a
group headed by former president Jimmy Carter and former Secretary of State James Baker,
states that "[a]bsentee ballots remain the largest source of potential voter fraud .... States
25
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The Legislature also makes the point that, "only allowing registered electors
to transport absentee ballot applications, Section 759 ensures that the person is a
civic-minded individual, whose information is already on record with the state, and
Similarly, by requiring that the voter "request" assistance from anyone other than a
elector is someone the voter trusts. The court is convinced that these checks are
and faith in the absentee-voting system. Crawford v. Marion Cty. Election Bd.,
553 U.S. at 197 ("[P]ublic confidence in the integrity of the electoral process has
democratic process."); (ECF No. 70-5, the Carter-Baker Commission report) (The
The burden imposed on plaintiffs is that they may not engage in speech
(§ 759(5)) that would facilitate the collection and return of signed absentee ballot
therefore should reduce the risks of fraud and abuse in absentee voting by prohibiting 'third-
party' organizations, candidates, and political party activists from handling absentee ballots."
(ECF No. 70-5, Ex. 4, Building Confidence in U.S. Elections: Report of the Commission on
Federal Election Reform, p. 46 (Sept. 2005)). While the report specifically refers to the handling
of ballots by third-party organizations, it logically follows that precluding such organizations
from handling absentee voter applications may also limit the opportunities for fraud and abuse in
the application process.
26
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applications from Michigan voters, which they are otherwise banned from
possessing(§ 759(4)) and banned from returning to the clerk(§ 759(8)). Because
through use and facilitation of the absentee ballot process, this restriction is not
slight. However, plaintiffs can still educate the public about registering to vote
absentee and answer questions about this process. Moreover, nothing in the law
restricts plaintiffs from providing a pool of electors that can return the ballots for
for voters to return their requests for an application or their applications to the local
clerk: (I) in person, (2) by US mail or some other mail service, (3) email, (4) fax,
which includes in-laws and grandchildren, (6) through in-person, mail, or other
delivery by a person residing in the same household, and (7) if none of those
methods are available, through in-person, mail, or other delivery "by any registered
and the Intervenors. The court finds that the state and intervenors have presented
adequate evidence to demonstrate that the state's interests in preventing fraud and
abuse in the absentee ballot application process and maintaining public confidence
27
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in the absentee voting process are sufficiently important interests and are
substantially related to the limitations and burdens set forth in § 759. As such, the
court concludes that plaintiffs are unlikely to success on their First Amendment
Plaintiffs also complain that it is not clear from the face of the statute
whether soliciting includes passive conduct that induces a voter to entrust her
absentee ballot application to a third party and offers of assistance that do not
plaintiffs' claim. First, § 759( 4) provides that a person must not possess an
absentee voter ballot application unless they are a "registered elector requested by
the applicant to return the application." Subsection § 759(5) requires the registered
elector to certify that he or she is delivering the absentee voter ballot application at
the request of the applicant, that he or she "did not solicit or request to return the
application," and that he or she did not "influence[] the application." Subsection
§ 759(8) provides that "[a] person who is not authorized in this act and who both
distributes absent voter ballot applications to absent voters and returns absent voter
Defendant maintains that the conduct being prohibited is plain and clear.
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Defendant asserts that the words "solicit" and "request" are not ambiguous or
vague and are readily understood in their ordinary and common meaning. Simply
put, according to defendant, the statute prohibits a person from asking to return an
"[B]asic principles of due process set an outer limit for how vague a
command." Hargett, at 727 (citing Platt v. Bd. o.f Comm 'rs on Grievances &
Discipline of Ohio Supreme Court, 894 F.3d 235,251 (6th Cir. 2018)).
Colorado, 530 U.S. 703, 732 (2000)). "'[A] more stringent vagueness test should
apply' to laws abridging the freedom of speech .... " Id. (quoting Vil!. ofHoffman
Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499 (1982)). That
standard can be "relaxed somewhat" if the law at issue "imposes civil rather than
Ho.ffinan Estates, 455 U.S. at 499). Federal courts must construe challenged state
Tenn. v. Hargett, 700 F.3d 816, 825 (6th Cir. 2012). The Sixth Circuit has stated
29
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that a statute will be struck down as facially vague only if the plaintiff has
"demonstrate[ d] that the law is impermissibly vague in all of its applications." Id.
prohibited conduct, the statute's failure to define the term will not render the
statute void for vagueness." United States v. Hollern, 366 Fed. Appx. 609,612
(6th Cir.2010). Stated differently, where the challenged language "is commonly
used in both legal and common parlance," it often will be "sufficiently clear so that
Union Twp. Bd. of Trustees, 411 F.3d 777, 798 (6th Cir. 2005) (en bane).
language, the solicitation ban should be read in context with the ban on third-party
words of a statute must be read in their context and with a view to their place in the
overall statutory scheme." Nat'! Ass'n of Home Builders v. Defs. ofWildl(fe, 551
U.S. 644, 666 (2007). Where a statutory term is undefined, courts give it its
ordinary meaning. United States v. Wright, 774 F.3d 1085, 1088 (6th Cir. 2014).
The Sixth Circuit recently defined "solicit" as "to make petition to ... especially:
to approach with a request or plea (as in selling or begging)." Platt, 894 F.3d at
250 (quoting O'Toole v. O'Connor, 2016 WL 4394135, at *16 (S.D. Ohio Aug. 18,
30
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(2016)).
of signed absentee ballot applications. The state does not want anyone outside of
the enumerated persons of trust to possess, collect, or return any signed absentee
ballot applications. To protect this interest, the Legislature banned such persons
from soliciting or requesting to return such applications, thus reducing the danger
plaintiffs suggest that they do understand what is prohibited by§ 759. For
example, in Guy Cecil's affidavit, he says that but for the Absentee Ballot Law,
(ECF No. 22-4, il 12). Mr. Cecil acknowledges that they cannot do so because the
Absentee Ballot Law criminalizes these activities. Id. Similarly, Maxwell Lubin
from Rise, but for the Absentee Ballot Law, would also deploy volunteers to assist
and offer to assist voters in submitting absentee ballot applications. (ECF No. 22-
understood by a person of ordinary intelligence. That is, a person must not solicit
31
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or request to do that which would place signed absentee ballot applications in his
or her possession for collection or return. Accordingly, the court concludes that
plaintiffs are unlikely to succeed on the merits of their claim that the Absentee
Plaintiffs maintain that the§ 759 of the Absentee Ballot Law is preempted
52 U.S.C. § 10508. The VRA defines the terms "vote" and "voting" to include:
applying for an absentee ballot. OCA-Greater Houston v. Texas, 867 F.3d 604,
615 (5th Cir. 2017) (Interpreting the VRA and stating that '"[t]o vote,' therefore,
plainly contemplates more than the mechanical act of filling out the ballot sheet. It
includes steps in the voting process before entering the ballot box, 'registration,'
32
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and it includes steps in the voting process after leaving the ballot box, 'having such
ballot counted properly.' Indeed, the definition lists 'casting a ballot' as only one
States Constitution, U.S. Const., Art. VI,~ 2, and is based on the premise that
when state law conflicts or interferes with federal law, state law must give way.
CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 662-64 (1993); Cipollone v.
Liggett Group, Inc., 505 U.S. 504, 515-16 (1992). Federalism concerns counsel
that state law should not be found preempted unless that is "the clear and manifest
purpose of Congress." Rice v. Santa Fe Elevator Corp., 331 U.S. 218,230 (1947).
However, "clear and manifest" does not necessarily mean "express," and
"Congress's intent to preempt can be implied from the structure and purpose of a
statute even if it is not unambiguously stated in the text." Teper v. Miller, 82 F.3d
989, 993 (11th Cir. 1996) (citing Jones v. Rath Packing Co., 430 U.S. 5 I 9, 523-25
(1977)). As explained in Teper, the Supreme Court has identified three categories
which its enactments pre-empt state law," English v. General Elec. Co., 496 U.S.
federal law touches on a field implicating such a dominant federal interest, that an
intent for federal law to occupy the field exclusively may be inferred; and (3)
33
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"conflict," where state and federal law actually conflict, so that it is impossible for
Congress," Hines v. Davidowitz, 312 U.S. 52, 67 ( 1941 ). Preemption of any type
Plaintiffs point out that in its report recommending that this protection be
added to the Voting Rights Act, the Senate Judiciary Committee noted that state
restrictions that "deny the assistance at some stages of the voting process during
which assistance was needed" would violate§ 208. S. Rep. No. 97-417, at 63
(1982). In recommending that§ 208 be added to the Voting Rights Act, the Senate
Judiciary Committee recognized that voters who do not speak English and voters
with disabilities "run the risk that they will be discriminated against at the polls
and that their right to vote in State and Federal elections will not be protected." S.
Rep. No. 97-417, at 62 (1982). To limit that risk, those voters "must be permitted
because Michigan's law prohibits voters who need help returning their absentee
ballot applications from receiving assistance from the person of their choice.
family members, or household members, and not any of the hundreds of thousands
34
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of other Michigan residents who may be none of these things. Further, an absentee
voter may not receive assistance with their application from a third party if that
third party has offered to help. See OCA-Greater Houston v. Texas, 867 F.3d 604
(5th Cir. 2017) (Section 208 preempted a Texas law restricting who may provide
Penmylvania, 277 F.Supp.2d 570, 580 (E.D. Pa. 2003) (county election law
violated § 208).
no preemption. Gade v. Nat 'l Solid Wastes Mgmt Ass 'n, 505 U.S. 88, 98 (1992)
(Conflict preemption occurs where compliance with both a federal and state
According to the Legislature, nothing in § 208 prevents the state from reasonably
When federal preemption is alleged, the analysis starts with "the assumption
that the historic police powers of the States were not to be superseded by the
35
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Federal Act unless that was the clear and manifest purpose of Congress." Cmty.
Refugee & Immigration Servs. v. Registrar, Ohio Bureau of Motor Vehicles, 334
F.R.D. 493, 509 (S.D. Ohio 2020) (quoting City of Columbus v. Ours Garage and
Wrecker Service, Inc., 536 U.S. 424, 438 (2002) (quoting Medtronic, Inc. v. Lohr,
331 U.S. 218,230 (1947), Congress may preempt a state law by enacting its own
specific laws. Cmty. Refugee & Immigration Serv., 334 F.R.D. at 509 (citing
Arizona v. US., 567 U.S. 387, 399 (2012); Crosby v. National Foreign Trade
Council, 530 U.S. 363, 372 (2000)). When interpreting a statute, the starting point
is the language of the statute itself. Wilson v. Sa/elite Grp., Inc., 930 F.3d 429,
433-34 (6th Cir. 2019) (citing Hale v. Johnson, 845 F.3d 224,227 (6th Cir. 2016)).
"Where the statute's language is clear and unambiguous and the statutory
framework is coherent and consistent, 'the sole function of the courts is to enforce
it according to its terms."' Id. (quoting United States v. Ron Pair Enters., Inc., 489
U.S. 235,241 (1989)). But "we must take care not to interpret the language [of a
statute] in a vacuum; instead, we must look to the 'structure, history, and purpose'
of the statutory scheme." Id. (quoting Abramski v. United States, 573 U.S. 169,
179 (2014)).
36
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Section 208 provides that certain specified voters i.e. those needing
assistance by a person of the voter's choice ... " (Emphasis added). Section 208
does not say that a voter is entitled to assistance from the person of his or her
choice or any person of his or her choice. In other words, the statute employs the
indefinite article "a" which by its very term is non-specific and non-limiting, as
opposed to the definite article "the," which by its terms is specific and limiting.
indefinite article as "[t]he word a or an used in English to refer to a person ... not
identified or specified," and defining definite article as "the word the used in
language choice must be given meaning and here, where it has declined to use a
definite article, its language suggests that some state law limitations on the identity
§ 208, Congress explained that it would preempt state election laws "only to the
extent that they unduly burden the right recognized in [Section 208], with that
37
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determination being a practical one dependent upon the facts." S. REP. NO. 97-
417, at 63 (1982); see also Ray v. Texas, 2008 WL 3457021 (E.D. Tex. Aug. 7,
2008) ("The legislative history [of§ 208] evidences an intent to allow the voter to
choose a person whom the voter trusts to provide assistance. It does not preclude
all efforts by the State to regulate elections by limiting the available choices to
forward with evidence that any voters have been denied the person of their choice
to assist them in the absentee ballot application process, let alone voters belonging
to the class of individuals identified in § 208 (i.e. those requiring assistance due to
blindness, disability, or inability to read or write). Thus, they have not made a
low income voters, elderly voters, student voters, disabled voters, and voters for
whom English is their second language. (ECF 22-4, Affidavit of G. Cecil, "I am
concerned that the ... Absentee Ballot Organizing Ban will depress the vote among
Michigan, including low income and student voters and voters who are disabled.");
educate individuals throughout our community about their ability to apply to vote
via absentee ballot in upcoming elections and (b) provide assistance with those
38
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populations in our community, and we have members who speak those languages.
individuals about the absentee ballot application process in their own language, as
well as offer assistance with filling out and returning the absentee ballot
the-vote activities such as ... absentee ballot organizing are critically important
organizing tools for our student organizers and volunteers."). Though plaintiffs'
evidence ably demonstrates that they plan to target at least two categories of voters
covered by § 208, disabled voters and voters who may face language barriers, they
offer no examples of instances in which such voters have been deprived of voting
assistance. The omission is notable in that for other cases challenging limits on
who may assist with ballots, the challengers provided evidence of individual voters
who were denied necessary assistance in the voting process. For example, in OCA-
Greater Houston v. Texas, one of the plaintiffs was an English-limited voter who
had been unable to complete her ballot due to the challenged state law limiting
those eligible to assist as an interpreter. 867 F.3d at 615. And, in United States v.
Berks Cnty., 250 F.Supp.2d 525, 530 (E.D. Pa. 2003), the government presented
assistant of choice by poll workers. Given the lack of evidence that any voters
have been affected by the limits on their choice of assistance, there is no basis for
39
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the court to conclude that Michigan's law stands as an obstacle to the objects of
§ 208. Accordingly, the court finds that plaintiffs have not shown a likelihood of
federal law. More particularly, they argue that the Voter Transportation Law
candidates and as such, the law conflicts with federal regulations expressly
The Legislature contends that the Voter Transportation Law does not limit
argument ignores FECA's carve out for state statutes that protect against voting
related fraud and other abuses. According to the Legislature, because the Voter
Transpo1iation Law protects against quid pro quo and voter fraud, it falls within
the carve out set forth in 11 C.F.R. § 108.7. The Republican Party further asserts
that the FECA preemption provisions have been narrowly construed by the courts
and that plaintiffs do not point to any cases providing that FECA preempts state
40
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criminal laws targeting election fraud. The Republican Party also argues that
FECA regulations do not conflict with the Voter Transportation Law because the
says the Republican Party, nothing in the Voter Transportation Law prohibits
state law, the court must 'juxtapose the state and federal laws, demonstrate their
respective scopes, and evaluate the extent to which they are in tension."
Mich. Comp. Laws § 168.931 ( 1)(f). While there is no Michigan case interpreting
the Voter Transportation Law in this context, as discussed above, a universal rule
of statutory construction is that "the courts must presume that a legislature says in
a statute what it means and means in a statute what it says there." Connecticut Nat.
Bank v. Germain, 503 U.S. 249, 253 (1992). "When the words of a statute are
unambiguous, then, this first canon is also the last: 'judicial inquiry is complete."'
41
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The Michigan Election Law does not define "person." But Mich. Comp.
Laws § 8.31 provides that "[t]he word 'person' may extend and be applied to
bodies politic and corporate, as well as to individuals." See also Mich. Comp.
Laws § 8.3a ("All words and phrases shall be construed and understood according
to the common and approved usage of the language[.]"). Similarly, the act does
not define the term "hire." Albeit in an unpublished decision, the Michigan Court
of Appeals has interpreted the term in another context to mean "'to engage the
services of for wages or other payment,' or 'to engage the temporary use of at a set
price.'" Tech & Crystal, Inc v. Volkswagen ofAm, Inc., 2008 WL 2357643, at *3
(Mich. Ct. App., June 10, 2008) (quoting Random House Webster's College
Dictionary (1997)). The Act defines "[e]lection" to mean "an election or primary
election at which the electors of this state or of a subdivision of this state choose or
lawfully submitted to them." Mich. Comp. Laws § l 68.2(g). The court finds the
nutshell, no person (including a corporation) may pay wages or make any other
payment to another to transport voters to the polls, unless the person so transported
transportation for voters who can walk through means that do not involve payment
42
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to the person doing the transp01iing. Now, the court must examine the scope and
that "[t]he provisions of this Act, and of rules prescribed under this Act, supersede
and preempt any provisions of state law with respect to election to Federal office."
Teper, 82 F.3d at 994 (quoting 2 U.S.C. § 453). The current version§ 453
replaced a prior provision that included a savings clause, expressly preserving state
laws, except where compliance with state law would result in a violation of FECA
Campaign Act of 1971, Pub.L. No. 92-225, 1972 U.S.C.C.A.N. (86 Stat.) 23
93-443, 1974 U.S.C.C.A.N. (88 Stat.) 1469)). The House Committee that drafted
the current provision intended "to make certain that the Federal law is construed to
occupy the field with respect to elections to Federal office and that the Federal law
will be the sole authority under which such elections will be regulated." Id.
(quoting H.R. Rep. No. 1239, 93d Cong., 2d Sess. 10 (1974)). "When Congress ...
congressional intent to pre-empt state laws from the substantive provisions' of the
43
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legislation." Cipollone, 505 U.S. at 517, 112 S.Ct. at 2618 (citations omitted).
The interpretive regulation, 11 C.F.R. § 108.7, sets forth the statute's preemptive
scope in accordance with the statute's plain language and its legislative history:
(c) The Act does not supersede State laws which provide
for the-
See Bunning v. Com. OfKy., 42 F.3d 1009, 1012 (6th Cir. 1994).
44
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do not expressly advocate the election or defeat of any clearly identified candidate
restricted class and the general public. 11 C.F .R. § 114.4( d)(l ). Disbursements for
such voter registration and get-out-the-vote efforts are not expenditures, 4 if the
corporation does not make any communication expressly advocating the election
or defeat of any clearly identified candidate or paiiy as part of the voter registration
registered with or who intend to register with the party favored by the corporation,
the information and other assistance with registration, including transportation, are
made available without regard to the voter's political preference, the individuals
conducting the drives are not paid on the basis of the number of individuals
4
"The terms contribution and expenditure shall include any direct or indirect payment,
distribution, loan, advance, deposit, or gift of money, or any services, or anything of value
(except a loan of money by a State bank, a federally chartered depository institution (including a
national bank) or a depository institution whose deposits and accounts are insured by the Federal
Deposit Insurance Corporation or the National Credit Union Administration, if such loan is made
in accordance with 11 CFR I 00.82(a) through (d)) to any candidate, political party or committee,
organization, or any other person in connection with any election to any of the offices referred to
in 11 CFR 114.2 (a) or (b) as applicable." 11 C.F.R. § 114.1 (a)(l ).
45
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registration and get-out-the-vote drives. First it could offer the type described in
purpose of FECA. Or presumably, it could offer drives that are partisan and do
advocate for certain candidates or political parties, in which case, the expenses
organization paying for the communication and stating that the communication
§§ 109 .11, 110. 11. In either case, the FECA regulations expressly permit
as pati of their get-out-the-vote efforts. And to the extent that providing such
Law, which bars all spending on transportation to the polls, except for that made
on behalf of those unable to walk to the polls. See Teper, 82 F.3d at 995 ("[I]t is
46
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the effect of the state law that matters in determining preemption, not its intent or
purpose. Under the Supremacy Clause, state law that in effect substantially
federal law, must yield, no matter how admirable or unrelated the purpose of that
law.").
The question now becomes whether the Voter Transportation Law falls
within one of the areas excepted from preemption; 11 C.F.R. § 108.7(c)(4) excepts
from preemption state laws that prohibit false registration, voting fraud, theft of
ballots, and similar offenses. In order to wedge the Voter Transportation Law into
this category as defendant and intervenors suggest, the court must read language
into the statute which is no longer there. As the parties explain, in its previous
form, the Voter Transportation Law expressly prohibited paying for transportation
to the polls as a quid pro quo for a vote. As originally enacted, the Voter
47
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Yet, the Legislature later expressly removed all language relating to paying for
voter fraud or similar offenses. While the Voter Transportation Law is contained
Law, not all prohibited conduct found in this section is designed to prevent voter
place. See also, § 168.931 (I )(h) ("A person shall not willfully fail to perform a
duty imposed upon that person by this act, or disobey a lawful instruction or order
about prohibiting vote-buying and vote-influencing. See e.g.,§ 168.93 l(l)(d) ("A
employee of the person for the purpose of influencing the employee's vote at an
religious society shall not for the purpose of influencing a voter at an election,
48
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defendant and the Intervenors want the court to read an anti-fraud purpose into
how paying for a taxi or Uber is any more likely to influence a voter than offering
purpose of fraud prevention on the idea that spending on rides for particular
candidates or parties leads to fraud is inconsistent with federal law. Thus, the court
finds the Voter Transpo1iation Law unlikely to fall into this exception to
preemption.
As set forth above, the lntervenors also argue that FECA's preemptive scope
is to be narrowly construed and that state criminal statutes are generally not
statutes of general application versus those cases involving statutes directly bearing
Campaign Committee, Inc., 712 F.3d 185 (5th Cir. 2013) focused on this
distinction. In Janvey, the court examined whether the Texas Uniform Fraudulent
49
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Transfer Act (TUFTA) was preempted by FECA. In Janvey, the receiver of assets
contributions that had been made to various political committees under TUFTA.
The political committees contended that TUFTA was preempted by FECA. The
court concluded that TUFTA was a general state statute that "happens to apply to
federal political committees in the instant case." Id. at 200. See also Stern v. Gen.
Electric Co., 924 F.2d 472 (2d Cir. 1991) (holding that§ 453 does not preempt a
including not wasting corporate assets, and explaining that "the narrow wording of
[§ 453] suggests that Congress did not intend to preempt state regulation with
Comm 'rs, 733 F.2d 543 (8th Cir. 1984) (holding that§ 453 did not preempt a state
law prohibiting officers or employees of the Kansas City Police Department from
making any political contribution); Friends ofPhil Gramm v. Ams. for Phil Gramm
in '84, 587 F.Supp. 769 (E.D. Va. 1984) (holding that§ 453 did not preempt a state
purposes). These cases stand in contrast to those finding preemption of state law
that regulated elections or campaign finance. See Teper v. Miller, 82 F.3d 989
(11th Cir. 1996) (state law effectively prohibiting Georgia legislators from
accepting donations for a federal campaign while the state General Assembly was
50
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in session); Bunning v. Ky., 42 F.3d 1008 (6th Cir. 1994) (state law authorizing
Heaney, 995 F.2d 872 (8th Cir. 1993) (state law establishing system under which
exchange for state funding for their campaigns). In the court's view, the Voter
falls in the latter category of cases where preemption by PECA is generally found.
To establish irreparable harm, plaintiffs must show that, unless their motion
is granted, they will suffer actual and imminent harm rather than harm that is
speculative or unsubstantiated. Abney v. Amgen, Inc., 443 F.3d 540, 552 (6th Cir.
2006). The court's role on a preliminary injunction motion is to assess not whether
extraordinary remedy that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief." Mazurek v. Armstrong, 520 U.S. 968, 972
51
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possibility of some remote future injury. Los Angeles v. Lyons, 461 U.S. 95
or impaired." Obama/or Am. v. Husted, 697 F.3d 423,436 (6th Cir. 2012). In
particular, a "restriction on the fundamental right to vote," id., or the "loss of First
constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976).
Here, because the court has concluded that plaintiffs are unlikely to succeed
constitutional rights are threatened or impaired by this law. Thus, irreparable harm
is unlikely. The Intervenors argue that plaintiffs cannot show irreparable harm in
PageID.164 ), when the Secretary of State plans to send every registered voter an
AV ballot application in Michigan before the primary and general elections. (ECF
70-4, Ex. 3 ). Equally important, nothing in the Absentee Ballot Law precludes
plaintiffs from engaging in such education efforts. Rather, the law only precludes
Accordingly, the court finds that irreparable harm to plaintiffs by not issuing the
52
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would cause harm to the State. "[A]ny time a State is enjoined by a court from
irreparable injury." Maryland v. King, 567 U.S. 1301 (2012) (Roberts, CJ. in
chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin W Fox Co., 434 U.S.
disputed. Eu v. San Francisco Cnty. Democratic Cent. Comm., 489 U.S. 214, 231
(1989); Crawford, 553 U.S. at 194-97. Accordingly, the court finds that the
balance of harms and the public interest weigh against issuing a preliminary
In contrast, the court has concluded that plaintiffs are likely to succeed on
the merits of their claim that the Voter Transportation Law is preempted by FECA.
voters to the polls and to spend money to do so, which is contrary to federal
statutory scheme and gave citizens the right to spend money on transporting voters
to the polls. The November election is nearly upon us and any particular election
only occurs once. The restriction on plaintiffs' ability to organize and spend
money on transporting voters to the polls for this election cannot be remedied
53
STATE OF MICHIGAN
Plaintiffs,
HON.
V.
u.s.c. § 30101(14).
6. A critical part of the RNC's mission is to support Republican candidates at all
levels-local, state, and national-in elections throughout the country, including in Michigan.
7. In the 2020 election, the Republican Committees will be supporting a full slate of
candidates for local, state, and national offices, up to and including the Office of President. As
part of this effort, the Republican Committees engage in get-out-the-vote ("GOTV"), Election
Day Operations ("EDO") and voter education efforts to encourage and enable their voters to cast
$600,000, this election cycle developing and executing GOTV and EDO plans involving the
education of voters and volunteers on Michigan's voting procedures, including Michigan's ballot
receipt deadline and Michigan's statutory restrictions on third-party handling or return of ballots.
restrictions on third-party handling or return of ballots are not enforced by Defendants, some
portion of the funds and resources already expended by the Republican Committees on GOTV
and EDO will be rendered obsolete, resulting in waste. The Republican Committees will further
be forced to expend substantial time and resources to develop and execute alternative GOTV and
EDO strategies and will likely be forced to spend additional time and resources to re-educate
I declare under penalty of perjury that the foregoing is true and correct.