Michigan Election Lawsuit
Michigan Election Lawsuit
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Plaintiffs, Ruth Johnson, Terri Lynn Land, and Marian Sheridan, allege
and state as follows:
by fourteen days, in conflict both with State statute and the very regulations the
Secretary has promulgated to implement it (which acknowledge the 8:00 p.m.
result in widespread and severe vote dilution, will (at a minimum) create sub-
stantial uncertainty and delay over Michigan’s ability to certify its results, and
casts in substantial doubt whether the United States Congress will even accept
the results of the popular vote in Michigan, even though it was clearly the Mich-
igan Legislature’s intent to satisfy a statutory safe harbor binding Congress to
the popular vote. Plaintiffs, registered voters in Michigan and certified electors,
will be irreparably harmed in all of these ways and respectfully request that the
Court declare the Secretary’s policy unlawful and enjoin it.
JURISDICTION AND VENUE
4. This action arises under the United States Constitution, 42 U.S.C.
§ 1983, and the doctrine recognized in Ex Parte Young, 209 U.S. 123 (1908). Ju-
risdiction is proper under 28 U.S.C. § 1331 because the plaintiffs’ claims arise
under the United States Constitution.
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PARTIES
6. Plaintiff Ruth Johnson is a resident of Oakland County, Michigan,
and a registered Michigan voter. Senator Johnson served as the Secretary of
State of Michigan from 2011 to 2019, and currently represents the 14th District
of Michigan in the Michigan Senate.
7. Plaintiff Terri Lynn Land is a resident of Kent County, Michigan,
and a registered Michigan voter. Ms. Land served as the Secretary of State of
Michigan from 2003 to 2011, and is currently a candidate for the Wayne State
University Board of Governors. Ms. Land has also been certified pursuant to
Mich. Comp. Laws § 168.42 as a nominee of the Republican Party to be an elec-
tor for the State of Michigan in the 2020 presidential election
8. Plaintiff Marian Sheridan is a resident of Oakland County, Michi-
gan, and a registered Michigan voter. Ms. Sheridan has also been certified pur-
rules…for the conduct of elections and registrations in accordance with the laws
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of this state” and “[a]dvise[s] and direct[s] local election officials as to the proper
methods of conducting elections.” Mich. Comp. Laws § 168.31. The Secretary
is also responsible for “prescrib[ing] the procedures for election audits that in-
clude reviewing the documents, ballots, and procedures used during an elec-
tion…” Id. § 168.31a (2). The Secretary has acted under color of state law at all
times relevant to this action.
FACTUAL ALLEGATIONS
A. Federal Law Establishes an Election Day and Prohibits Voting
After Election Day
10. The executive power of the United States is vested in the President.
11. The Constitution establishes state and federal roles for the promul-
gation of the law governing presidential elections.
12. The states’ role is governed by Article II, § 1, cl. 2, which provides
that “[e]ach State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole Number of Senators and Rep-
resentatives to which the State may be entitled in the Congress.”
13. The term “Legislature” in this provision means what it says. The
legislature of each state, not its executive actors or courts, has authority to define
the “Manner” of choosing electors. See, e.g., McPherson v. Blacker, 146 U.S. 1, 25
(1892).
14. The role of Congress is governed by Article II, § 1, cl. 4, which pro-
vides that “Congress may determine the Time of chusing the Electors, and the
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Day on which they shall give their Votes; which Day shall be the same through-
out the United States.”
15. Congress has acted under this authority to set the time of choosing
electors, which is now accomplished in all states by some form of popular vote.
16. Various statutes, taken together, “mandate[] holding all elections
for Congress and the Presidency on a single day throughout the Union.” Foster
v. Love, 522 U.S. 67, 70 (1997). This “immediate act of the people of America”
protects the selection of the President from “cabal, intrigue, and corruption.”
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20. This statute necessarily forbids states from holding votes for the
presidency after November 3. Another statute provides: “Whenever any State
has held an election for the purpose of choosing electors, and has failed to make
a choice on the day prescribed by law, the electors may be appointed on a sub-
sequent day in such a manner as the legislature of such State may direct.” 3
U.S.C. § 2.
21. This statute only applies if a state has held an election and failed “to
make a choice on the day prescribed by law….” It does not authorize states to
allow voting in that election on days after the Tuesday after the first Monday in
November.
22. Congress also set the time for electors appointed in each state to
meet and vote: “The electors of President and Vice President of each State shall
meet and give their votes on the first Monday after the second Wednesday in
December next following their appointment at such place in each State as the
legislature of such State shall direct.” 3 U.S.C. § 7.
23. As applied in the year 2020, the date for electors to meet and vote is
December 14.
24. A state that fails to comply with these acts of Congress forfeits its
votes in the Electoral College.
25. Congress also provided a statutory safe harbor to allow states to pro-
vide a binding determination of its electors’ vote. 3 U.S.C. § 5.
26. To qualify for the safe harbor, a state must have “provided, by laws
enacted prior to the day fixed for the appointment of electors” a means of
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places be interspersed through the population to ensure that “not more than 1
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polling place is provided for all qualified and registered electors residing” in each
election precinct. Id.
34. Voters who vote in person on Election Day must be in line at the
polling place before 8:00 p.m. on voting day, when the polls close. “On the day
of any election, the polls shall be opened at 7 o’clock in the forenoon, and shall
be continuously open until 8 o’clock in the afternoon and no longer. Every qual-
ified elector present and in line at the polls at the hour prescribed for the closing
thereof shall be allowed to vote.” Mich. Comp. Laws § 168.720. In-person vot-
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38. The law requires that any ballot received on Election Day “must be
returned to the clerk in time to be delivered to the polls prior to 8 p.m. on election
day.” Mich. Comp. Laws § 168.759b. In this way, the law enacted by the Mich-
igan Legislature does not permit the counting of votes contained in absentee
ballots received after the 8:00 p.m. deadline.1
tee ballots must be returned to the clerk by 8:00 p.m. on Election Day.” Election
Officials’ Manual, Chapter 6, at 7 (last updated November 2019).2 The
1
Michigan law provides a limited exception for overseas absentee voters to
whom absentee voter ballots were not timely transmitted, Mich. Comp. Laws
§ 168.759a, and Plaintiffs’ claims here do not concern that exception.
2
Available at https://www.michigan.gov/docu-
ments/sos/VI_Michigans_Absentee_Voting_Process_265992_7.pdf.
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Secretary’s website also continues to recognize that Michigan law provides that
“absentee ballot[s] must be received by your city or township clerk by 8 p.m. on
3
Michigan Secretary of State, Vote at home/absentee voting, available at
https://mvic.sos.state.mi.us/Home/VoteAtHome (last accessed on September
28, 2020).
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“count ballots received within 14 days after Election Day.” Complaint, Michigan
Alliance at 38.
49. In Michigan Alliance, the Secretary “did not challenge the documen-
tary evidence at the hearing and conceded 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.” Opinion and
Order, Michigan Alliance, at 2–3 (September 18, 2020), Attachment A.
50. The Court refused motions to intervene from the Michigan Senate
and the Michigan House of Representatives, thus excluding adverse parties from
participating in the case in any capacity that would allow them to appeal the
court’s decision that usurped their role under the Constitution in setting the time
and manner of elections.
51. After permitting no adversarial evidence or arguments before it, the
Court concluded that the “unrefuted factual record” and “the uncontroverted
data,” supported enjoining the ballot receipt deadline. Id. at 12.
52. The Court of Claims enjoined “[e]nforcement 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 tal-
lied, 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 [fourteen days after Election Day], are eligible to
be counted in the same manner as all provisional ballots.” Id. at 1–2.
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expressly forbid the Secretary or election officials from counting ballots received
within the 14-day window that lack any legible postmark.
54. On information and belief, the Secretary intends to allow ballots re-
ceived after November 3 without a legible postmark to be counted.
55. Having obtained a result from the Michigan Court of Claims that it
could not obtain from the Michigan Supreme Court or the Michigan Court of
Appeals, the Secretary refused to appeal the decision permitting the non-enforce-
ment of the receipt deadline for absentee ballots.
56. In so doing, the Secretary has chosen to abandon the enforcement
of statutes enacted by the Michigan Legislature.
D. The Secretary’s Late-Receipt Policy Conflicts with Federal Law
57. Article II delegates the power to enact rules regulating the manner
and time of elections to each state legislature and Congress, respectively.
58. The Secretary is neither Congress nor the legislature of Michigan.
59. The State Plaintiffs that enabled the Secretary’s policy to ignore
state law are neither Congress nor the legislature of Michigan.
60. The Secretary’s policy is not promulgated by either Congress or the
Michigan Legislature and is ultra vires.
61. The law enacted by the Michigan Legislature provides an 8:00 p.m.
deadline on Election Day for mail-in ballots to arrive. This law is the constitu-
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62. The Secretary is barred from changing the receipt deadline by oper-
ation of Article II of the United States Constitution.
63. The late-receipt deadline also usurps the power of the Michigan
Legislature to set the manner of conducting elections. Among other things, it
provides that ballots received up to fourteen days after Election Day will be
counted.
E. The Late-Receipt Policy Harms the Plaintiffs
64. The Secretary’s policy to count ballots received and even cast after
Election Day harms Plaintiffs.
65. All Plaintiffs are registered voters and intend to vote in compliance
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election contests (which the vote-counting process qualifies as) will not satisfy
Congress’s safe harbor of 3 U.S.C. § 5 unless it is resolved “by laws enacted prior
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75. Congress has set a date for the presidential election this year, No-
vember 3, 2020, and the Michigan State Legislature has set a bright-line deadline
of 8 p.m. on that date for receipt of all absentee ballots.
76. The Secretary has acted ultra vires by acceding to a policy that ig-
nores the Legislature’s constitutional role in determining the deadline for when
absentee ballots must be received.
77. The extended receipt deadline is contrary to Michigan State Law
setting the receipt deadline as 8:00 p.m. on November 3, 2020, and therefore in
conflict with Article II, which vests authority solely in the state legislature to
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lots.
81. Plaintiffs are entitled to injunctive relief, a declaration of rights un-
der the United States Constitution and any further necessary or proper relief
against Defendant pursuant to 28 U.S.C. §§ 2201 and 2202.
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DAVID B. RIVKIN*
ANDREW M. GROSSMAN*
RICHARD B. RAILE*
BAKER & HOSTETLER LLP
1050 Connecticut Ave., N.W.
Suite 1100
Washington, DC 20036
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